Research On The Tax Planning Right

Right starts from nothing,often experiences twists and turns.Holmes has said that words are not crystals which keep unchanged in shape and content,and that they are the shells of some sort of living thought.Tax planning is still a new thing in our country,and as a product of starting from scratch,the bringing forward of the tax planning right concept witnesses the economic structure changes and social development.In the tax-system-developed countries outside China,the tax planning right is the legal right,also the existent right enjoyed and benefited by the taxpayers.However,based on the policy and national nature of the right,certain rights are universally recognized and respected in a country,and the same protection is not necessarily obtained in other countries.Whether a benefit or freedom should be recognized as a right,without exception,is to be proved from a theoretical and practical point of view.The late emerging of tax planning in China leads to superficial recognition,many misconceptions and being often mixed with tax avoidance and tax evasion,even the legitimacy of tax planning right is questioned.In the practice of taxation,some tax authorities are accustomed to debasing tax planning in the view of the supremacy of the treasury benefits,and think that tax planning is an immoral circumvention.The tax planning right has not received the universal recognition among the tax authorities in the collection practice.Power standard in our country has not yet been completely abandoned in the organization architecture,the tax authorities have a wide range of tax enforcement discretion,being easy to abuse their anti-tax avoidance approval,ignore the lighter taxation,recharacterize the trading model established by taxpayers,adjust the tax base,and abolish tax reduction benefits sought by taxpayers in tax planning.Theoretically speaking,in our country the existing tax planning research mainly explores the establishment of tax planning scheme and the economic effectiveness,and some fundamental theories such as the legitimacy,the patterns,the nature and contents of the tax planning right are seldom deeply involved,so that whether the tax planning right is a kind of right or not and whether it should be protected or not in practice are still controversial.The value of theory lies in its response to the needs of reality.In the market economy environment,the taxpayers,as the market entities,have put forward the legitimate claim of tax planning right and theoretically responding this issue is the original purpose of this paper.This paper discusses the current situation,difficulties and the guarantee of the tax planning rights of taxpayers in our country mainly from the legal system and tax practice of our country,trying to make the relevant system concept to meet the specific needs of China's tax practice environment.Because of the broadness and profoundness of right research,this paper does not intend to create a new set of theoretical right model.Following the basic theoretical system of the right study in jurisprudence,namely,“the origin of right-the ontology of right-the limit of right-the status of right-the protection of right”,the setup of this paper consists of the exploration of the legitimacy foundation of the tax planning right,the fundamental theories on the contents,the status,the nature and the limitations of the tax planning right,and the current situation of the tax planning right in China and its realization guarantee,etc.The main structures of the study are as follows:The introduction consists of the significance of topic selection,the literature review,research methods and the innovations of the present paper.The first chapter theoretically interprets some fundamental problems such as the concept,patterns,formation,and nature of the tax planning right.The action of tax avoidance is formally legal without the business objective but essentially goes against the intention of tax law and it is actually the escape of tax enforcement law and an action out of the control of law.Tax evasion and dodging is a clear unlawful action in form and substance which is quite different from tax planning.The tax planning right is not only a legal right but also a universal existent right shared by taxpayers in many countries outside China which is confirmed by the classic judicial precedents,statute law and the international normative documents.Through the private property right,the statutory principle of taxation and the freedom principle of contract and so on,the legal status of the tax planning right can be inferred and confirmed.The contents of tax planning right are compounded,which is a combination of the right to know about tax information,the right of tax law predictability,creation of economic behavior plan,optimization and enforcement right,and the combination of the claim right and the tax planning right.In terms of nature,tax planning right is a kind of property right,right in rem,the principal right,it is also a kind of constitutional basic right,and economic freedom right with the characteristics ofprivate law and tax law;the established value of tax planning right is mainly embodied in:it is beneficial to give full play to the role of macro-control function of taxation,conducive to promoting the construction of tax law and order in thedynamic game and maintaining taxpayers' rights and interests and promoting standardized management.The second chapter is the legitimacy foundation of tax planning right.Tax planning right is a kind of right not only because of the fact that tax planning right includes the legitimate interests of taxpayers worthy of protection,but also because of the ideological basis and legal basis for the legitimacy.The contract theory of taxation legal relationship is the legal ideological basis of the tax planning right;The statutory principle of taxation and the autonomyprinciple of private law are its legal basis.Taxation relationship is the most basic relationship between a country and its citizens as well as the constitutional contractual relationship.According to the theory of tax contract,the essence of taxation is the constitutional contract relationship in which citizens transfer property in exchange for the provision of the country's services,and the two sides of tax collecting and paying are of equal relationship.The tax contract theory requires that one party should pay tax and be entitled to free services in accordance with the contract,and the other party may levy tax or collect less tax in terms of the contract,which is agreed upon by the representative assembly of the taxpayers.The essence of the tax contract theory is that the duty of taxation is not determined by the administrative organs' disciplinary action but by the taxpayers' action meeting the taxation conditions according to the contract.Tax collector and taxpayer are equal,taxpayers are not in an obedient and passive position,they have the right to choose and determine whether the tax-paying behaviors occur or not and how to occur in terms of what the taxation condition requires in the contract.Tax payers can freely plan and choose a way of behavior in which no tax is paid at all.The tax contract theory has internal logical connection with the statutory principle of taxation,the latter is the legal representation of the former,and the embodiment and extension of the former's legal dimension.The basic implication of the statutory principle of taxation is that legislative power restricts the enforcement power of taxation,that is,if there is no corresponding legal basis as the premise,the government is not to tax the citizens and the citizens also have no legal obligation to pay taxes.The statutory principle of taxation has basically been established in our country,which requires the taxation elements be legal and explicit,taxation procedure be based on laws.To do so is to control the arbitrary abuse of the right of taxation in order to safeguard the property rights of taxpayers.The clarity and stability of the tax law ensure the predictability of taxpayers' tax payment for their intended economic behaviors,which are the legal guarantee for the exercise of taxplanning right.The autonomy principle of private law requires securing the private economic liberty,whether the market participants in their operating process conduct legal actions or not and conduct what kind of legal behaviors are completely a private freedom as long as there is no violation of the prohibitive provisions of the country,the public power should not intervene.The autonomy principle of private law gives taxpayers the tax planning capacity for act,taxpayers have the right to freely create in many potential act modes and choose the action way of no tax payment or less tax payment to achieve their economic goal.The private law to form liberty right is the legal premise of the exercise of the tax planning right.The third chapter defines the limits of the exercise of tax planning right.The exercise of tax planning right must be moderate,and going beyond the legal bottom line constitutes the abuse of rights.The difficulty of regulating the excessive exercise of the tax planning right is mainly due to the difficulty of the establishment of the just decision criteria on the taxpayers' abuse of private law and the formation of right alienation into an avoidance beyond the law.There is a boundary problem in tax planning and tax avoidance beyond law.Generally speaking,the recognized law theory holds a view that the difference between tax avoidance and tax planning is that the former violates the intention of the tax law and it is the evasion against the law.However,the legislative intention is subjective and drifting and difficult to grasp in the practice objectively.Both of them are different in the basic areas of planning,and it is difficult to determine the boundary only according to a simple and clear standard,there is a fuzzy grey zone between the two sides,thus becoming a technical problem in the tax collection and management practice,the system construction of both maintaining a reasonable planning interests and preventing tax avoidance beyond law is the common topic studied in theory and practice.The regulation of the abuse of tax planning right can be done from two aspects : the material imposition principle and the principle of good faith.The material imposition principle is to some extent a breakthrough in the statutory principle of taxation which require the created legal formation produced by the taxpayers' abuse of the private law should be penetrated,redefining the economic behaviors and taxing according its essence.The material imposition principle gives the tax authorities the right of tax adjustment,abolishing the tax benefits obtained by the misuse of tax planning to counterbalance the tax planning right.The principle of good faith is the common principle followed by the tax collecting side and tax paying side,which requires that both parties abide by the tax contract,collect and pay taxes according to law.The fourth chapter analyzes the actual situation and problems of China's tax planning right The tax planning right is a putative legal right in our country.Tax planning,as an important right of taxpayers,is gradually recognized by the national tax administration department,and then guided by the media in our country from theory to tax planning practice has been greatly developed.Tax planning right is the legal right,but also the existent right actually enjoyed by the majority of taxpayers.The legal environment of the exercise of tax planning right is basically established but there are still many problems.The legislative aspects are as follows:the statutory principle of taxation is not fully implemented,the vast majority of the current taxation items are actually based on administrative regulations,the normative documents of the national tax authorities in the tax collection,the important taxation issues“law reservation”principle has not been implemented with great arbitrariness;as the most important right in the tax collection process,there is no legal basis for tax planning right;The stability,clarity and the predictability of the tax law system are not strong,the tax planning is difficult to operate;the administrative tax regulation information is not easy to know.The issues in tax law enforcement link are as follows :tax law enforcement discretion is too broad,too flexible tax adjustment right has broken through the statutory principle of taxation,lacking effective constraints and the existence of the abuse of right lead to the difficult control of legal risks in tax planning.The problems in the right relief link are the following:the prepositive reconsideration and the prepositive delivering tax payment may directly deprive of the opportunity of the right relief;The reconsideration institution is not independent;The judiciary lacks tax professional trial competence.The fifth chapter explores the supportive route for the realization of China's tax planning right from the perspective of tax legislation,tax law enforcement and justice.In the link of legislation,tax law enforcement and justice,the implementation of the statutory principle of taxation is the only way to realize the legalization of taxation,and it is also an important guarantee for the realization of tax planning right.The importance of tax planning right and the urgency of being prone to infringement should be clearly protected by legislation.In order to enhance the legal foundation of the tax law predictability in tax planning,a reasonable and perfect tax system should be established.In the law enforcement link,ensure the laws are strictly observed,moderately control the right of taxation discretion,introduce the advance ruling system and increase the certainty of tax planning;establish a service-oriented tax system and guide the tax planning into the orbit of the healthy advancement.Take a series ofmeasures to improve the level of administration and judicial relief by setting up the independent reconsideration organs,canceling the dual front of reconsideration and delivering tax payment,building the tax court,boosting the independence and professionalism of judicial trial and reasonably allocating the burden of proof,etc.The realization guarantee of the tax planning right is amulti-tiersystem construction and a constantly perfected systematic project.