非居民企业境外间接转让股权中“合理商业目的”认定标准研究

Research on the Determination Standard of “Reasonable Business Purpose” in Indirect Equity Transfer by Non-Resident Enterprises Abroad

摘要: BEPS背景下，各国面临税收收入的压力，积极应对跨国公司的避税行为以保护国内税基，我国通过企业所得税法47条确立了以合理商业目的原则为主的避税认定标准，并通过一系列部门规章、规范性文件对合理商业目的进行细化，但仍有未明确之处，需要通过执法和司法机关在个案中对合理商业目的含义具体化。儿童投资主基金案中执法机关在认定合理商业目的时忽略非税收利益因素。司法机关秉持国库主义立场，高度依赖税务机关的认定标准，合理商业目的的司法认定标准严重缺位。印度法院在沃达丰案中尊重纳税人交易自由，从整体视角认定合理商业目的，并在后续立法中引入实质重于形式原则。

Abstract: Under the background of BEPS, countries are facing the pressure of tax revenue, and actively respond to the tax avoidance behavior of multinational companies to protect the domestic tax base. China has established the tax avoidance identification standard based on the principle of reasonable business purpose through Article 47 of the Enterprise Income Tax Law, and refined the reasonable business purpose through a series of departmental regulations and normative documents, but there are still some unclear points, which need to be concretized by law enforcement and judicial organs in individual cases. In The Children’s Investment Master Fund’s case, law enforcement agencies ignored non-tax interest factors when identifying reasonable commercial purposes. The judiciary adheres to the position of treasury doctrine and highly relies on the standards of tax authorities, and the standards of judicial identification of reasonable commercial purposes are seriously absent. In Vodafone case, the Indian court respected the taxpayer’s freedom to trade, identified the reasonable commercial purpose from the overall perspective, and introduced the principle that substance was more important than form in the subsequent legislation.