我国实质课税原则的适用困境与出路

The Application Dilemma and Solution of the Principle of Substantive Taxation in China

摘要: 实质课税原则对于学术界来说是研究与争议的热点和难点之一，实质课税原则最开始是应用于反避税的领域，无论是起源地德国还是经过日本学者升级之后的实质课税原则均出自反避税的需求。中国关于实质课税原则相关法律法规均为反避税条款，在实践中往往倾向于国家利益主义，这对实质课税原则的适用体现明显偏好的错误倾向，实质课税原则不应该带有对于国家或者个人的明显偏好，应该保持其适用的中立性。文章中对实质课税原则的相关立法层面实质课税原则的法律文件以及司法层面适用实质课税的司法案例分析发现我国目前实质课税原则的适用上存在困境。因此，结合实质课税原则的法理基础，寻找如何正确适用实质课税原则的解决路径，保护国家税收利益的同时又能兼顾保护纳税人的合法权益。

Abstract: The principle of substantive taxation is one of the hot spots and difficulties in research and controversy in the academic circles, and the principle of substantive taxation was first applied to the field of anti-tax avoidance, whether it originated in Germany or upgraded by Japanese scholars, the principle of substantive taxation came from the demand for anti-tax avoidance. China’s laws and regulations on the principle of substantive taxation are all anti-avoidance provisions, and in practice they tend to be based on the principle of national interest, which reflects the wrong tendency of obvious preference for the application of the principle of substantive taxation, and the principle of substantive taxation should not have an obvious preference for the state or individual, and should maintain the neutrality of its application. In this paper, the legal documents on the principle of substantive taxation at the legislative level and the judicial cases on the application of substantive taxation at the judicial level find that there are difficulties in the application of the principle of substantive taxation in China. Therefore, combined with the legal basis of the principle of substantive taxation, it is necessary to find a solution on how to correctly apply the principle of substantive taxation, so as to protect the national tax interests while protecting the legitimate rights and interests of taxpayers.