中国“透明实体”课税制度研究 -以分析中国合伙企.ppt

1、THE LAW SCHOOL OF NANKAI UNIVERSITY GUANG PING, YANG 5/13/2011,5/13/2011,1,Research on Tax Law System of Transparent Entityin China On The Basis of Analyzing The Pass-Through Taxation System of Partnership Enterprise in China,The Definition of “Transparent Entity”,5/11/2011,2,(CFR 1.894-1) an entity

2、 is fiscally transparent under the laws of the entitys jurisdiction /with respect to an item of income/ to the extent that the laws of that jurisdiction require the interest holder in the entity, wherever resident, to separately take into account on a current basis the interest holders respective sh

3、are of the item of income paid to the entity, whether or not distributed to the interest holder, and the character and source of the item in the hands of the interest holder are determined as if such item were realized directly from the source from which realized by the entity. Personal Opinion on d

4、efining the concept of “transparent entity” Firstly, it is an entity (which is distinguished from individuals-”self-employed entrepreneur”, or individual enterprise, and the partner provided in civil law of china), while, such entity is determined as legal form by private law system (in other words,

5、 that is a form provided by business laws and other enterprise laws); ( or ) Secondly, the substance of “transparency” is stressed here that it is a actually technical means in taxation law, through this technical means, an item of income received from entity is reflected directly in the calculation

6、 of income on the level of interest holder in order to achieve the tax purpose(in the other words is called “fiscally”). ( (pass-through) , )continue,Fundamental Type of “Transparent Entity”in Modern Chinese private law,5/11/2011,3,In Chinese law System In China, there is only one type of legal form

7、 of partnership (including GP ( ) the second is that the tax law system which is scheduled out for SME should be consistent with substance of economic activities. ( )Next, Introduction,5/11/2011,6,Awareness of Problem Could The Chinas Existing Partnership Taxation System Promote the development of t

8、he Small and Medium scale enterprises? Whether the Chinese current partnership enterprise income tax law system is in compliance with the private law purpose and tax law purpose or not? Next, Formation partner which is a corporation or other organization have to pay enterprise income tax. (2) The Op

9、eration of Enterprise Income is from the balance which is the gross income of each tax year earned by the Partnership from the production and operation deducted from the costs, expenses and losses, is as. Tax rate is 5%-35% (3) The Distribution of Profits To determine the amount of taxable income in

10、 accordance with the following principles in the partnership：in accordance with the allocation of the partnership agreement to determine taxable income (4) Transactions between Partner (4) according to other appropriate methods. (5) The Liquidation of Partnership,5/11/2011,13, The Development of The

11、 Theory of The Transparent Entity “Theory of The Trialism of Taxpayer classification”,5/11/2011,14,1. The Dualism of Taxpayer classification or like some very large scale partnerships, its private form is a partnership, but the economic substance is very close to the company. In this case, how to de

12、termine it according to the tax purposes? NEXT,5/11/2011,15,Problem,In Chinese tax law system (including Japan and South Korea), the usual way to determine an economic organization, that is whether a entity or not , are based on private law form (legal personality), and is not based on its economic

13、substance, it also means that there is no criterion on taxation law ( ) So there is not a tax law form that was designed like “transparent entity” outside the private law form. It is for this reason, that there is no a concept of transparent entity in Chinese tax system, and also do not create the t

14、ax regulations for transparent entity for tax purpose. In other words, the tax purpose is not clear in current Chinese tax law system ( ) NEXT,5/11/2011,16,Problem,Currently, a common practice in the tax system is to contrast a new private lawl form with existing enterprise income tax or personal in

15、come tax. The result is that this is not conducive to the development of SME, and to realize the fairness in tax burden. For this reason, using private forms to conduct tax avoidance in the areas of domestic and international.,5/11/2011,17, Main Problems of Partnership Taxation System in China,5/11/2011,18,1. Identify the Nature of partnership2. The problems on The scopes of Partners3. The problems on Tax Avoidance and Anti-Tax Avoidance, Conclusion,5/11/2011,19,For establishing a fair, neutral and s