On The International Tax Avoidance And Anti-tax Avoidance

In recent years, the tax avoidance and tax evasion phenomena in the international revenue domain has become severe and severe. The mobilization of international tax avoidance method has become more and more abroad,the scale of the activity is bigger and bigger,the struggle of international tax avoidance and anti tax avoidance has already become"the world war"in the economic domain. Through the analysis on the reasons of procreant and categories of tax avoidance of the transnational tax payers, the thesis first exposed the inner essence and actualize mode of the international tax avoidance of the transnational companies. Second, through the comparison and research on the anti international tax avoidance measures of Japan, England and United States etc. countries to do an emphases research on the general situation of the legal framework of our country in anti tax avoidance and compared in details the differentiate on the measures of our country with part of countries in anti tax avoidance. Secondly, through the actual analysis on the investment current situation and the tax avoidance situation of the transnational companies,the author has brought up the idea of gradually perfect the anti tax avoidance revenue management system of our country. Finally expatiate the collecting, analysis and application of the basic data information of the anti tax avoidance work from the angle of actual work,tried very hard to bring up new working route and direction on the continuous enlargement of anti tax avoidance work for the future. The thesis is divided into four chapters.The first chapter is panorama. International tax avoidance means that transnational tax payers use the tax laws, the difference of international revenue agreement, the hole, special examples and demerit, evasion of two or more than two countries or lessen its total rate paying obligation action. International tax avoidance is the extend of domestic tax avoidance in terrain area. The tax avoidance span the national boundaries involved with the revenue jurisdiction of two or more than two countries,so the influence of it also has spanned the national boundaries. It not only influence the revenue benefits of the related countries,but also influence the international economic come-and-go and development, as well as the revenue equity of transnational tax payers and the revenue between the countries. International tax avoidance is differentiated and have relation with the concepts of international tax evasion, national tax saving and national revenue design etc..Besides the driving of the subjective benefit, the international tax avoidance of the transnational companies also need to form an impersonality condition in order to form the tax avoidance:the first is the hole of the taxation law itself; the second is that the existing of the motivation of tax avoidance impel people to look for legal route to realize the purpose of lessen the taxation burden ; the third is the internationalization of the action of the tax avoidance of the tax payers,which has made the international tax avoidance more and more popular. Once the arrangement of the tax avoidance of the tax payers possess the above impersonality conditions and plus the following impersonality reasons, they can become realism.In the transferring of tax target,transnational companies usually do the international tax avoidance through the following basic forms:the first is to do the tax avoidance through transfer price fixing. Transfer price fixing is the price fixed by people deliberately during the trading of the related parties in the matters of international revenue,but not the price fixed according to normal trading principals in the equity market by the parties independently. The second is to get tax avoidance through rental. It cannot only get privileges in taxation but also can make the rental enterprise decrease the profit the form of paying rent, lessen revenue amount,usually transnational tax payers use it for the design of international taxation. The third is to use revenue convention to do tax avoidance. The comparatively often seen methods are:transnational tax payer try to move the investment from one country to another through the third country,in order to adapt to the taxation convention of the different countries and get profit from there. The fourth is to avoid become permanent organization to do the tax avoidance. The fifth is to do the tax avoidance through capital weakening.The second chapter of the thesis, using specialized and contract methods to take apart the legal regulation measure that Japan, England and United States take for the action of tax avoidance. The general measure of anti tax avoidance of the national taxation law of Japan insists on three principals:substance is heavier than form, calculating net income and the special treatment for family owned companies.According to the principal of substance is heavier than form, the income after tax will belong to the actual receiptor of the economic income not the middle man,this can prevent some transnational tax payers from the action of escaping tax and tax avoidance. The special measures of Japan in stopping the tax avoidance:the first is to use pre-paid tax to prevent tax avoidance, in details: (1) none residence individual must pay 20% prepaid tax for the income from labor. (2) as for the private company formed because of the labor activities of artists, athletes or consultants etc., when paying the labor to the company, the tax will be deducted there. (3) for none residence or company, the income from interests, shares and usage fee for concession rights, the tax will be prepaid from the resource. The second is to anti use the tax avoidance port for tax avoidance. The third is to anti misuse of taxation convention tax avoidance. Besides adopting prepaid and refund system, Japan also attach importance to international cooperation, exchange information and sign related conventions with convention countries,according to the mutual beneficiary principals to provide information each other to prevent the happening of the actions of tax evasion and tax avoidance.The legislation contents of England in anti tax avoidance are mainly shown in the statute of taxation in 1970. This statute has two important code clauses: the first is No. 478 which aims at the tax avoidance activity of individual,this clause regulates:all the residence of England who has the"right of taking"for the income of the people or entity from abroad,should pay tax in England for the income they get from abroad. The first is clause 482 aiming at the tax avoidance action of the company. This clause has two remarkable characteristics: as for revenue, it has a special punishment character;its structure is like one kind of foreign currency management system not like a special taxation convention. Mainly including migrate abroad, the transfer of business, stop trading or business, partial trade or management, the transfer of body corporate with residence status to none residence, the engender of shares and the sales of shares 6 aspects.The anti tax avoidance measure of the United States mainly show in the aspects of legislation and international taxation cooperation. In the special regulations of anti tax avoidance include (l) the regulations for American citizen and residence. The taxation system of America is mainly proper motion tax paying system. The tasks of the income revenue is to confirm the declaration system in some domains, this related with finance bill, foreign currency trading and the flow of foreign funds internationally. (2) the regulations for domestic companies and foreign organizations:America collect tax for domestic companies for their income in the world,so if the domestic company doing business in foreign countries through their subsidiaries, then they should pay tax to America directly for the income from this business. (3) the regulations for foreign companies. The foreign companies doing business or managing in American should pay tax according to progressive taxation for the income related with America. (4) the regulations for controlled tax avoidance foreign companies:if there is intermediary between beneficiary and payer,then the income with characteristic of inactive investment will not enjoy low tax benefit according to the convention;when the intermediary and the beneficiary are both citizens of the conventional countries,the situation will be different. (5) the regulations for misuse of taxation convention. In strengthening international cooperation, America has convention for information exchange with most of the countries they signed conventions with.The third chapter is the key part of this article. Before Jan. 1st of 2008,the laws and regulations of anti tax avoidance of our country are within in the transfer price fixing and prepaid price fixing scope. The lack of law weapons made us difficult in deal with the related business of the complicated transnational companies when we are doing the adjustment of transfer price fixing investigating. Based on fully borrowing the international consuetude,adopting special anti tax avoidance clause(SAAR)form in new enterprise income taxation law,specially set up 8 clauses of chapter six"special rate paying adjustment",for the first time confirmed the principals for the related business of the enterprise in legal form,imported many kinds of whole new anti tax avoidance methods that connected with the track of international consuetude,such as general anti tax avoidance clause, cost apportion, capital weakening, controlled foreign companies, check and ratify revenue and adding revenue amount plus interests etc. and have built a relevant integrated framework system of anti tax avoidance.The comparatively new content of this legislation include related data, controlled foreign companies, cost apportion, capital weakening, general anti tax avoidance clause and the regulation for collecting interest for the miss-paid tax because of the enterprise tax avoidance. As for the declaring and providing of the data for this legislation,under the original related regulations, clearly point out the scope of the related data that is include the related price for related business, the standard for expenditures, calculation method and explanations etc. data. They also include the related data on property, property utilizing right, labor etc. resale ( or transfer) price or final sale (or transfer) price of the related business. At the same time it has for the first time definitude the cooperating duty of enterprises, related parties and third party enterprises. In being-controlled foreign companies aspects, our country for the first time imported the concept of being-controlled foreign enterprises and related regulations. The new taxation law requires that whether the enterprises setting up enterprises in low taxation ratio area or tax avoidance port having reasonable management needs need to be reviewed,otherwise the profit will be calculated into the income of the enterprise for taxation,ended the situation of the enterprises that put their profits stocking up in the controlled foreign company and avoid Chinese taxation but have no way of monitoring(CFC). In the aspect of anti capital weakening, there is new detailed regulation in clause No. 46 in the new law. in the statute, there is explanation on the creditor's rights type of investment accepted from related party and rights and interests type of investment and definitude the contents they include separately .In general anti tax avoidance clauses,there are new methods and newly added contents,belongs to supplement clauses reveal all the details. This clause has provided a advantaged weapon for anti tax avoidance work,as for the tax payers we had no methods to deal with in the past, we might activate this clause to do investigation on them. But the activation of this clause should be very careful, although many countries have this clause in their legislations , in the practice of anti tax avoidance might not use this clause.Chapter four is the existing problems and thinking on anti tax avoidance in our country. Between the years of 2000 to 2007, the loss of class A joint venture enterprises in Dalian City had been between 50-58% and the loss of other foreign investing enterprises in other areas were also similar. The General National Taxation Bureau has done twice on the data estimation of the might-made influence in tax avoidance of the transnational companies in China,all the losses were more than 30,000,000,000 yuan. The reasons for the occurring of this situation , first is the change of the transnational companies in the strategy of investment in China,the control of the transnational companies for their sub companies in China is even stronger and the difficulty for revenue is even bigger. The second is the dispute of the pursuing of maximizing the benefits of the transnational companies with maintain the justness and fair of the taxation. The third is the inner management of the transnational companies are informationized and networknized that has brought up higher requirements for concept, method and measure for international revenue management. The fourth is that transnational companies have brought up higher requirements for taxation information and taxation service. The fifth is that the big enterprises in China are gradually internationalized and brought several new tasks for international taxation collection and management. To meet this five big challenges and build the collection and management system into a healthy and high efficient management system, guarantee the realization of the opinion in anti tax avoidance legislation need us to strengthen the legal system construction of taxation. In details, it include the following aspects: the first is to set up a system with a smooth of information intelligence,all the government departments such as the Customs, Foreign Currency Management Bureau, bank and taxation etc. departments really enjoy the same information resource;the second is to make measures to prevent the agreement of misusing revenue;the third is to further perfect the declare system of the transnational tax payers,going from raising the declare quality of the related business relations of enterprises, perfect the declaration of overseas income and criterion the declaration of the none residence taxation three aspects;four. Raise the international taxation auditing level of transnational companies,extend the taxation audit related with foreign countries into international taxation auditing , actualize electrical computerizing auditing as soon as possible;the fifth is to make full use of taxation convention to strengthen the cooperation and communion of international taxation; the sixth is to set up anti tax avoidance punishment system;the seventh is to confirm the reporting duty and quote duty of the tax payers,at present, the most important thing is to further clear from law that the enterprise must report to the in charge taxation department on the related business;the eighth is to vigorously train special human resources for international taxation revenue and management.The collecting of data information, analysis and utilizing is one kind of basic work of anti tax avoidance work,it directly related the success and loss of anti tax avoidance. In actual work, the investigation process of transfer price fixing is a process of continuously obtaining information, analyzing information and utilizing information. The data information of the anti tax avoidance work mainly include two kinds:one kind is the inner data information of the enterprises, the other kind is the outer data information of the enterprises. No matter is inner or outer information, deeply digging the value of the data is required,applied in the case choosing, auditing and adjusting etc. links of anti tax avoidance work. The anti tax avoidance staff should give the enterprise the should-be-paid tax of the enterprise or the adjusting on the should-be-paid tax amount of the enterprise through the overall analysis on the data information of the related enterprise for business.