The Regulation Research Of The Granting Of Treaty Benefits In Inappropriate Circumstances Under The Background Of BEPS

With the in-depth development of economic globalization,the frequent flow of production factors,expelling the profitability of capital,the differences in the taxation system of multinational corporations using countries have become more and more prominent,and the increasing malicious abuse of tax treaty concessions has been greatly enlarged.The destructive nature of tax base erosion has further eroded the tax base of developed and developing countries and brought a series of economic problems to the international community.According to the report of the Organization for Economic Co-operation and Development,the taxation and tax avoidance behaviors such as the abuse of tax treaty concessions have caused global business income tax loss of about 100 billion US dollars to240 billion US dollars per year.The problem of tax base erosion and profit transfer has attracted the attention of the international community.The root cause lies in the fact that the current international tax rules lags behind the economic globalization and the development of business models.The preferential treatment of tax treaties and the differences in tax systems provide a soil for tax base erosion..Cross-border taxpayers took the opportunity to use the differences in the tax system between countries to carry out tax planning,and build tax avoidance structures to obtain preferential tax treaties that should not be obtained,which in turn led to tax base erosion and profit transfer.As a result,the Organisation of Economic Co-operation and Development commissioned by the group of 20 initiated Action Plan six on Base Erosion and Profit Shifting: “preventing improper granting of preferential treatment in tax treaties” in 2015,coordinating the national tax system in order to cope with multinational companies establish tax avoidance structures,which causing the challenge of international taxation fair order for countries.Subsequently,the OECD released “BEPS multilateral convention”,which will come into force in July 2018.It hopes to revise bilateral tax treaty through multilateral tools.Which achieving the largest scope of multilateral coordination and cooperation in the history of tax treaties.This article will analyze the sixth action plan report and the tax treaty preferential treatment incentive measures mentioned in the convention,in order to find a perfect method for the shortcomings,and provide reference for the improper promotion of China's tax treaty protection.Learn from.The first part of the article analyzes the methods and causes of improper granting of tax agreement preference,we know that it will erode the national tax base,violate the reciprocityof the agreement,and affect the fair competition among tax payers.The OECD therefore released the “BEPS Action Plan 6” and the “BEPS Multilateral Convention”,which want to prevent the imbalance of the international tax order caused by improper tax treaty preferential awards.Action Plan 6 proposes two types of regulatory measures to prevent inappropriate tax treaty benefits,prevent the circumvention of the agreement itself and prevent the use of agreements to circumvent domestic anti-tax avoidance rules.The LOB clause and PPT provisions become a highlight.In order to improve the consistency of international tax rules,the Convention absorbs the important part of the BEPS Action Plan 6 that deals with improper granting of preferential treatment in tax treaties and establishes the minimum standards for tax avoidance.The second chapter describes the tax avoidance regulation measures,and concludes that the LOB clause is more certain than the PPT clause.At the same time,the evaluation criteria can be quantified,but the excessive mechanical and technical regulations also add difficulty to the practical operation.While the PPT rules can ensure that tax treaties can provide preferential treatment for real personnel capital circulation and services,and commodity transactions,too macro regulations also bring uncertainty to the judgment of specific cases.Neither can cope with the special tax avoidance catheter arrangement,so it needs to be supplemented by the “ beneficiary owner ” rule.In response to the improper use of dual resident status for cross-border tax avoidance to obtain tax benefits,the “ States of Contracting State ” may be extended to be interpreted as an internal law of a Contracting State and a bilateral tax treaty signed by a Contracting State;or through Article 4 of the OECD Model Tax Treaty.The interpretation and application of the second sentence of paragraph 1 directly excludes a person who has lost his or her identity as an resident of another agreement.In order to prevent abuse of permanent establishments in third countries,consideration may be given to the inclusion or extension of the scope of Article 10,paragraph1,of the Convention in its covered tax treaties.The third part of the article analyzes the taxpayers' use of the preferential provisions of the agreement to circumvent the domestic law,it is concluded that if the tax treaty is involved,the application of the anti-avoidance rules in the tax law of the State party should not be affected by the relevant provisions of the agreement,or the application of Article 11 paragraph1 of the Convention.The provisions are supplemented by the PPT provisions or by interpreting the purpose and purpose of the agreement to resolve taxpayers' use of treatypreferences to circumvent domestic laws.The fourth part of the article combines the above detailed analysis of the improper regulation of tax treaty preferential treatment,combined with the current situation and shortcomings of the improperly granted preferential treatment of China's tax treaty,and puts forward some suggestions for improving the improper regulation of China's tax treaty.For example,China should appropriately include the LOB clause when it applies the PPT clause for tax avoidance.In response to the triangle case,the taxpayer can use the double resident identity abuse tax treaty preferential agreement to expand the scope of the “resident” clause on the “law of the State party”.Or interpret the resident clause as a person who directly excludes the loss of resident status in one agreement and becomes a resident of another agreement;in order to improve China's prevention of cross-border taxpayers' abuse of a permanent establishment located in a third country,Article 10 of the Convention may be waived.The reservation of paragraph 1 shall also expand its scope of application;China shall waive the reservation to Article 11 paragraph 1 of the Convention when it is used to evade the domestic tax law to obtain preferential tax treaty benefits,supplemented by the application of the PPT clause;There are five recommended measures,such as the balance between China and other countries' tax interests.