Research On General Anti-avoidance Rule In China

As the Law ensure the state’s revenue and fiscal base, the taxation law is compulsory.Tax avoidance refers to the activities that the taxpayers adopt measures to lighten or relieve possible tax burdens. This act damaged the fundamental principles of taxation, such as the justice of taxation and taxation legalism. The general anti-avoidance rule (GAAR) will provide a new thinking and method to solve two contradictions between the stability of taxation law and the variety of tax avoidance. At the same time, it will find some way to balance the power of regulators and the legal rights of taxpayers. As a result, there is much of realistic meaning to the research on the GAAR.Now there are many disadvantages in our nation’s GAAR. For examples, the GAAR is at the lower legal force level, its composition elements of avoidance tax are obscure, it lacks some rules about burden of proof, the rules of procedures is not perfect. These problems affect the GAAR how to apply in anti-avoidance practice, and it does not leave as much room as possible for the taxpayer’s normal economic activity. Our nation should improve the content of GAAR, speed up the building of relating legal system. Analysis was based on references about the legislation and pratical experience of anti-avoidance that comes from these countries whose anti-avoidance work is mature, like Germany, Australia and France, and combined with the actual situation in China. Our nation ought to take relevant measures in areas such as legislation,law enforcement and judicature.<Tax Administration Law>should define the GAAR,and make clear the constitutive requirements strengthen the inner supervision and guidingof inner Bureaus, improve the constraint mechanisms and groups of judicature. The anti-avoidance work is stepping into the legal system track gradually.