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The Study On Anti-avoidance Rules In International Tax Law

Posted on:2016-08-02Degree:DoctorType:Dissertation
Country:ChinaCandidate:W X ZhaoFull Text:PDF
GTID:1366330482952294Subject:Economic Law
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This dissertation attempts to explore the anti-avoidance rules in the international tax aspect.International tax avoidance is the inevitable result of the current international tax structure defects.Thus,countries try to protect its tax base by anti-avoidance rules is necessary and legitimacy.However,due to the international aspect,countries need to coordinate the anti-avoidance rules with existing tax treaty.In this dissertation,the general anti-avoidance rule is the main line through the whole text about anti-avoidance rules in the international taxation area.This dissertation is divided into five chapters.The first chapter discusses the basic theory of international tax avoidance and anti-avoidance.This part discusses some of the basic issues of international tax avoidance,such as the connotation and extension of international tax avoidance,which is the prerequisite and basis to the topic anti-avoidance rules.The basic principles of international tax law is also should be discussed here,which including the principle of tax sovereignty,the principle of fair distribution,the principle of tax equity.Then the main ways of tax avoidance and the corresponding anti-avoidance rules will be discussed.Furthermore,the legal basis of general anti-avoidance rules of anti-avoidance rules debated in detail.The legal nature of general anti-avoidance rules is to create some rights,instead of have some rights by analogy.The standard of the general anti-avoidance rules is abstract,which undermine the certainty of the tax law,however,it is still justified.The arguments consist of the incomplete law theory and substance over form theory.In second chapter,the general anti-avoidance rules will be discussed in the perspective of international tax law.As it relating to the taxation of cross-border income,the domestic tax law should comply with tax treaties.According to the Pacta Sunt Servanda Principle,the state should set the anti-avoidance rule under the framework of tax treaties.International tax avoidance origins from the conflict of the tax jurisdictions.When a resident of a country earns income from outside the country,the claim of that country to tax the income based on its residence jurisdiction may overlap the claim of a foreign country for tax revenue based on source jurisdiction.In order to eliminate the double taxation,countries have taken an initiative to limit the countries' jurisdictions.In this chapter,it also studied the history of the tax treat evolution.From the beginning of the tax treaty in 1920 to present,it can be conclude that double non-taxation caused by the structure of the existing international taxation system.Before the restructure of the international taxation system,this non-taxation problem could only resort to the unilateral action of anti-avoidance rules.The OECD's action plan to combat base erosion and profit shifting(BEPS)is the latest international tax initiative that will significantly impact the international tax system and the domestic tax law.The third chapter concentrates on the comparative study on general anti-avoidance rules.Although due to fact that countries have different legal traditions and legal practice,their rules are similar in elements.For example,it includes the legal definition of terms that relating to anti-avoidance rules,constitutive requirements and exceptions to anti-avoidance rules,as well as procedural matters.Because of the limitation of the length to the dissertation,only representative countries will be selected,such as the general anti-avoidance rules in the United Kingdom,the United States,Canada and Australia and other countries.In addition,BEPS action plan plays an important role in reshaping domestic tax law,including anti-avoidance rules.The fourth chapter discussed the trend of general anti-avoidance rules.On the basis of the previous chapter on the study of general anti-avoidance rules from the technical aspect.It can be drawn the preliminary conclusion that most general anti-avoidance rules should include the definition of tax avoidance,requirements and exceptions,as well as the tax consequences.There is no clause about the relationship between the anti-avoidance rules and tax treaty in current OECD Model and the Model UN.China's practice is at the frontier.Before the change of the whole international tax system changed,fiscal evasion and avoidance can only be corrected by the countries themselves.Moreover,it need to pay more attention to the BEPS action plans,which will be an important impact on the domestic general anti-avoidance rules countries.The fifth chapter takes the research on the current legislation,judicature and administration of domestic general anti-avoidance rules in the perspective of BEPS Action Plan.China should improve the general anti-avoidance rules both from the domestic tax law and tax treaties aspects.In the international tax aspect,the anti-avoidance rules need to be added into the existing tax treaty in order to eliminate the conflict between the domestic tax law and tax treaty and abate the international tax dispute.In addition,China,as an emerging market,should take positive attitude to participate into the revision of the model tax treaty,reflecting her interest in international tax affairs.In the domestic aspect,there still have enough room to improve in the legislative,judicial and administrative aspects.In legislation,the legal hierarchy of the general anti-avoidance rules is low,and the rule didn't organize in a systematic way.Moreover,some technical rules still need to clarified,for example,the meaning of tax avoidance and tax benefit in general anti-avoidance rules.In this area,we need draw lessons from other countries.As to the tax administration,if the fact tax is a professional area admitted,as a result,it justified for the administrative legislation in tax area after solving the improper use the power of administration.In order to choose the proper measures of anti-avoidance rules,it should be introduced the cost benefit analysis.Whether use general anti-avoidance rules or specific anti-avoidance rules depends on the experience of tax administration.In the judiciary aspect,judicial control mechanism is still weak in the tax area,China may consider setting tax courts in selected Intermediate or higher People's Courts.The Supreme People's Court may issue the judicial interpretation about anti-tax avoidance rule in the suitable time.Last but not the least,the dissertation studied the case in taxing indirect transfers and gave some views on how to improve it.
Keywords/Search Tags:Tax avoidance, General anti-avoidance rules, Tax treaty, BEPS
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