Study On The Differentiation Application Of The Dual Standard Of The General Anti-Avoidance Clause

Tax is a compulsory means for the state to obtain social wealth free of charge according to the standards set by law,is a specific relationship formed by the state's participation in the distribution of national income,and is a means for the state to conduct macro-control over the whole society.Tax planning is a way for taxpayers to reduce the tax burden within the scope not prohibited by law,which is the inevitable result of private law autonomy and the essence of commercial activities.But the boundary between tax planning and tax avoidance is very difficult to grasp,and with the prosperity of the international economy and society and the rapid development of science and technology,tax avoidance means become more diversified and more difficult to detect,which not only causes the country The serious loss of fiscal revenue destroys the national tax system and infringes on the overall interests of the country,and is also unjust to other taxpayers,which is a serious violation of the legal principle of tax revenue and the principle of tax fairness.In order to deal with the endless tax avoidance arrangements and balance the protection of the national tax base and the protection of the rights and interests of taxpayers,our country constantly improves and refines the general anti-avoidance clauses in order to make up for the loopholes existing in the special anti-avoidance rules.However,due to the problems of decentralization and serious administrative alienation,the current general anti-avoidance clause has many defects in legal regulation and practice,and has not really realized the establishment of general anti-avoidance clause The original intention of the law,there is still the use of excessive discretion in the name of the state tax power,infringement of the legitimate property rights and interests of taxpayers.This paper first introduces the case analysis of the current situation of judicial application of general anti-avoidance clause in our country,and finds that the standard of tax avoidance identification,burden of proof and proof is controversial,and then systematically discusses the dual standard of general anti-avoidance clause from the source.It finds that the existing dual standard of anti-avoidance clause has legislative defects,and it leads to the rigid standard of "business purpose ",embarrassment of "economic substance " and ambiguity of proof responsibility.And analysis of foreign general anti-avoidance clause to identify the standard On the basis of the relevant legislative provisions of the quasi-application rules,the author puts forward some concrete suggestions to improve the differentiation and application of the binary standard system from three aspects: legislation,legislation,and amendments to the binary standard system;in law enforcement,the burden of proof of binary standard is clearly distinguished between tax authorities and taxpayers;in the judicial aspect,the burden of proof of tax authorities is reiterated and the proof standard of tax administrative litigation is established.It is hoped that through the re-planning of the binary standard,the burden of proof will be clearly distinguished between the tax authorities and taxpayers,so as to solve the existing dual standard name of the general anti-avoidance clause At this stage,many problems exist in the application of general anti-avoidance clauses,such as the excessive discretion of tax authorities caused by unclear legislation,the excessive reliance of judicial organs on the handling decisions of tax authorities due to the limitation of professional ability,resulting in the absence of judicial supervision,resulting in inadequate protection of taxpayer rights and a series of problems,and finally realize the balanced development between national financial security and taxpayer rights protection.