Research On General Anti-Avoidance Clauses Of Individual Income Tax

In recent years,the increasingly rampant tax avoidance activities no longer only occur in the field of enterprise income tax,but also exist in the field of individual income tax.This not only leads to the serious erosion of the national tax base,but also destroys the fair social distribution order and the market free competition order.Therefore,in order to curb various types of tax avoidance arrangements and realize tax fairness,the article 8,paragraph 1,item 3 of the individual income tax law was revised in 2018,and the provision of "general anti avoidance provisions of individual income tax" was added.In the face of the adverse effects of tax avoidance arrangements,although the state has responded by amending the individual income tax law,there are still legislative gaps in many aspects of the general anti avoidance provisions of individual income tax.Therefore,it is necessary to construct and improve the general anti avoidance provisions of individual income tax to deal with them.This paper is divided into four parts:The first part is the basic theory of general anti avoidance provisions of individual income tax.The general anti avoidance provisions of individual income tax refer to the general provisions made in the field of individual income tax on the common problems of anti tax avoidance.It does not aim at a specific type of tax avoidance arrangements,but attempts to cover all tax avoidance arrangements that violate the legislative intent of this Law in the form of individual income tax law and through the description of the elements of individual income tax avoidance The power distribution of denial and anti avoidance.There are two theoretical views on the legal nature of the general anti avoidance clause of individual income tax,namely,the theory of declarative clause and the theory of loophole filling clause.The general anti avoidance provisions of individual income tax should be based on the theory of capacity based taxation,Treasury doctrine and state intervention theory to regulate various types of tax avoidance arrangements.The second part is the foreign legislation and evaluation of the general anti avoidance provisions of individual income tax.In foreign tax practice,the United States,Britain and Germany have legislated the general anti avoidance provisions of individual income tax,adopted the judgment standard of "economic essence",and constantly improved the distribution rules of burden of proof.The third part is the legislative status and problems of the general anti avoidance provisions of individual income tax in China.At present,the individual income tax law provides the general anti avoidance provisions of individual income tax in principle,but lacks specific implementation rules in terms of judgment standard,burden of proof,application procedure and connection with other provisions.The fourth part is the improvement of the general anti avoidance provisions of individual income tax in China.Firstly,in terms of improving the judgment standard of general anti avoidance provisions of individual income tax,the standard of "reasonable commercial purpose" should be abandoned and the standard of "significant non-tax benefits" should be established;secondly,the burden of proof of general anti avoidance provisions of individual income tax should be established;thirdly,procedural rules should be adjusted and administrative power restraint mechanism should be established;finally,special anti avoidance provisions of individual income tax should be established respectively The article and the general anti avoidance provisions of enterprise income tax are connected.