Study On The Application Requirements Of The General Anti-tax Avoidance Clause In The Enterprise Income Tax La

The tax avoidance of enterprises causes the loss of national tax revenue and destroys the principle of tax fairness,so it should be regulated.The general anti-tax avoidance clause stipulated in Article 47 of China’s Enterprise Income Tax Law can provide guidance for tax authorities to identify tax avoidance behaviors.However,there are still some problems to be clarified in the applicable requirements of general anti-avoidance provision in the enterprise income tax law.To examine whether the applicable requirements of the general anti-avoidance provision of the Enterprise Income Tax Law is reasonable,to provide advice for the perfect of the Enterprise Income Tax Law’s general anti-avoidance provision’s applicable requirements and to enhance the maneuverability of the Enterprise Income Tax Law’s general anti-avoidance provision,the article uses normative analysis,case analysis,comparative analysis and other methods for the study.The main applicable requirement of the general anti-avoidance provision of the Enterprise Income Tax Law is business purpose doctrine,but the judgment of this requirement is subjective and lacks objective judgment standards.At the same time,the general anti-avoidance provision of the Enterprise Income Tax Law only stipulate the business purpose requirement,which is impossible to identify the linear tax avoidance transactions.Finally,the Special Tax Adjustment Implementation Measures(Trial)stipulates the substance over form doctrine,which leads to the conflict between the lower law and the upper law on the applicable requirements of the general anti-tax avoidance provision.Moreover,the substance over form doctrine as an abstract tax avoidance principle,lacks concrete and operational standards,which should also be improved.The United States has developed a series of general anti-avoidance principles in the long-term judicial anti-avoidance,which can provide reference for China.The business purpose doctrine is usually applied as a standard of the economic substance’s two-prong test,which has objective criteria of judgment.These objective criteria include: the reasonable possibility of obtaining pre-tax profits,the possibility of obtaining non-profit commercial benefits and whether the rights and obligations of taxpayers have been affected.The business purpose doctrine is not applicable to all tax avoidance transactions,and it cannot be applied to linear tax avoidance transactions.The content of the substance over form principle includes the sham transaction principle,the sham entity principle and the step transaction principle.In order to improve the applicable requirements of general anti-avoidance provisions of the Enterprise Income Tax Law,the substance over form principle should be regarded as the most important applicable requirement and written into Article 47 of the Enterprise Income Tax Law.Secondly,refine the connotation of the substance over form principle,and establish the sham transaction principle,the step transaction principle and the sham entity principle.Thirdly,clarify the objective judgment criteria of business purpose doctrine.Finally,clarify the system conflict of the general anti-avoidance provision: enhance the legislative rank of the substance over form principle and take the business purpose doctrine as a sub-principle of judging the substance over form principle.