On The Judicial Application Of China's General Anti-Avoidance Provisions

The statutory general anti-avoidance provisions provide the legal basis and standard for tax authorities to deal with the tax avoidance behaviors.Based on tax nationalistic stance,however,the tax authorities may use general anti-avoidance clauses in terms of legislation on the generalization and fuzziness,to defend the national tax power in the name of excessive discretion,beyond the scope of the tax law implied to taxpayers legal interpretation,legal property rights and interests of taxpayers.In order to control the tax authorities in apply general anti-avoidance clauses effectively,balance the interests of the state financial and property rights and interests of taxpayers,it's necessary to introduce the general conditions of anti-avoidance judicial application.The purpose of this paper is to analyze the problems of general anti-avoidance clauses judicial application in our country,and draw lessons from foreign general anti-avoidance judicial practice,put some proposes to perfect general anti-avoidance clauses judicial application so that it can guide to unified judicial practice in China.This paper consists of four chapters:introduction,text and conclusion.Chapter one:the application of general anti-tax clauses and general anti-tax clauses in China is analyzed.In general,the judicial application of anti-tax clauses is based on the significance of the application of the general anti-avoidance clause in the judicial application,and the similarities and differences between the meaning and the administrative application.Generally,The application of anti-avoidance clauses in China is through The analysis of The Children's Investment Master Fund,which leads to The insufficient judicial application of general anti-tax provisions in China.Chapter two:discusses the basic requirements of judicial application of general anti-tax clauses.The judicial organs should apply the general anti-avoidance clause under the guidance of the principle of tax law and the independent principle of tax judicature.At the same time,because the general anti-avoidance clauses contain a"reasonable","business purposes,such as concept of uncertainty,requires judicial organs purposefully explanation methods and analysis method of system explanation general anti-avoidance provisions.Chapter three:mainly introduce the main elements of tax avoidance under the general anti-tax clauses and their determination methods.The general anti-tax clauses should not only start from the objective facts,but also judge the objective of taxpayers' transaction.Chapter four:mainly introduces the general anti-tax clauses in the judicial application process of the fact identification.In fact,it mainly involves the application of the rules of evidence,including the burden of proof and the standard of proof.Tax authorities of trading arrangements meet the requirements of avoidance of the taxpayers should be bear the burden of proof of the fact that taxpayers should be rebut prove trading arrangement with reasonable commercial purpose,from the tax adjustment.Considering that the taxpayer holds the vast majority of tax information,the taxpayer has a joint obligation to the tax authorities.