Research On The Legal Application General Anti-avoidance Rule

The tax law,as the foundation of the national revenue,is mandatory and inescapable.Tax avoidance is an act that the taxpayer reduces or avoids tax by making arrangement.Such act is the destruction of the principle of tax fairness and the principle of quantity and taxation.And general anti-avoidance rules provide new ideas to solve the conflict between the determinacy of the tax law and diversity and concealment of the act of tax avoidance.Yet it also provides a feasible way to seek the balance between the discretion of tax authorities and the protection of taxpayers' rights.The application of general anti-avoidance rules in China is unclear and needs to be perfected.In the process of analyzing the case of non-resident enterprises indirectly transferring the shares of resident enterprises.It is not difficult for us to find that such problems:There is a lack of judicial review of administrative normative documents when general anti-avoidance rules were applied.The determination of reasonable business purpose is vague.The application of substance over form principle.And lack of the overall observation and comprehensive analysis on the transaction.From the perspective of common character of general anti-avoidance rules,the application of general anti-avoidance rules need to depend on whether the trading behavior constitutes tax avoidance and when in the case of tax avoidance,the choice of special rules or general rules.From the characteristic of general anti-tax rules,there are three problems in the application:the applicable law source is not perfect,which includes the low level in legislation and effectiveness,the administrative normative document judicial review is lacking;The identification of reasonable commercial purposes is vague;The application of substance over form principle is not clear.The existence of these problems not only leads to imbalance between the discretion of the anti-tax avoidance work of the tax authority and the taxpayers' rights,but also damage the legality and fairness of principle of taxation,which will cause the instability of the law.Therefore,the application of general anti-tax avoidance rules should be improved as soon as possible.The anti-tax legislation and practical experience of Germany,Japan,Britain and other countries provide experience to our country.By drawing lesson fron the excellent experience of foreign countries and combining the current situation of anti-tax avoidance in China,follow points in the application problems should be improved.The introduction of management procedure and power constrains mechanism along with the construction of general anti-tax avoidance legislation system.The Identification of criteria for determining reasonable business objectives.The clarification of the idea of Substance over form principle and overall observation and comprehensive analysis on the transaction.And solve the application of general anti-avoidance rules,and make the application of general anti-tax rules in China gradually Step into the track of law.