| "No reasonable commercial purpose" is one of the applicable elements of the general anti-avoidance clause of the enterprise income tax law article 47,which has been the focus of the attention and dispute of both sides.The general anti-tax clauses are the characteristics of anti-tax-tax-based clauses,which determine the general and uncertainty of the content of "no reasonable commercial purpose".Which in general and uncertainty given at the discretion of the tax law enforcement is larger at the same time,not only caused the increase of the difficulty of legal application,also make the tax taxpayer to their trading arrangement can't make a accurate forecast results.The application of "no reasonable commercial purpose" in the field of international anti-tax avoidance has a long history.The determination standards of "no reasonable commercial purpose" in the world have been gradually adjusted in judicial and law enforcement practices.In accordance with the anti tax avoidance cases around the world,especially the famous British and American director Gregory v.Ramsey tax case,the key to decide whether a reasonable business purpose is taxpayer can provide evidence to prove that their trading arrangement has a legitimate purpose of non-tax.The composition of the non-tax purposes is complicated,and the foreign academic circles generally include the company's limited liability,corporate risk management and share price appreciation,etc.into the legal non-tax purposes.The above non-tax purposes should be considered for the application of "no reasonable commercial purpose" in specific cases.Our country law to the provisions of the "do not have reasonable business purpose" only the implementation regulations of PRC enterprise income tax law "the one hundred and twentieth made specific definition,which refers to" reduce,exempt or postpone pay taxes for the main purpose of ".The subsequent implementation regulations and applicable guidelines clearly define three prerequisites for the determination of non-commercial purposes: first,there are individual or serial trading arrangements for human planning;Second,the taxpayer has obtained the tax benefits of postponement,exemption or reduction of tax payment from the arrangement;Third,the tax benefit is the sole or primary purpose of the arrangement.Published in 2009 "special tax adjustment measures [for]" article ninety-two do not have the arrangement of the reasonable business purpose of the enterprise has made the list four kinds of circumstances,respectively: first,the abuse of tax incentives;Second,the abuse of tax treaties;Third,abuse of corporate organizational form;Fourth,use tax havens to avoid tax.Announcement no.7,2015,especially for a non-resident enterprise transfers the taxable property economic activity of China does not have the determination of reasonable business purpose made by far the most detailed provisions,to the tax law enforcement provided in does not have reasonable business purpose should be considered in the process of decision of enterprise assets,equity value source,and the size of the transaction tax,economic substance or not,enterprise risk ability,the survival time and the specific architecture and trading of alternative eight factors.Tax law enforcement "does not have reasonable business purpose" of the enterprise trading arrangement,should be in accordance with the principle of the unity of subjective and objective,with the intention of the taxpayer make arrangements for the logical starting point and objective behavior intention and the results for the estimation of the objective basis,follow the principle of substance over form,strictly in terms of China's tax law and related content,at the same time give full consideration to the real economic activity taxpayer's economic environment,industrial status and other can not affect the decision of the tax factors,careful judgment,a general anti-avoidance investigation.While maintaining the fairness of the tax law,we strive to protect the tax planning rights of taxpayers. |
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