1、Legal System on International TaxationOutlineA Brief Introduction Income Taxes Bases of Income TaxationIncomeDouble Taxation Tax Treaties Tax Incentives Tax Avoidance and Evasion Reference 1.Ray August,International Business Law:Text,Cases,and Reading,5th Edition 2.刘剑文，国际税法，北京大学出版社，第二版，2004年4月 3.余劲松
2、 吴志攀，国际经济法，北京大学出版社 高等教育出版社，第三版，2009年4月A Brief Introduction to International Tax Law1.Concept:International tax law is the body of law that deals with taxation relationships based on transactional incomes among states,states and tax-payers.国际税法是调整国家间以及国家与纳税人之间的,以跨国所得为基础形成的国际税收关系的法律关系的总和。2.Characteris
3、tics:(1)The Relationship it governs调整对象:the relationship occurred in tax levy 税收征纳关系 tax benefits allocation.国家间税收分配关系(2)Subject matter客体:transnational income,property,etc.;跨国所得以及各种流转税的征税客体;international tax benefits 国家间进行分配的国际税收收入(3)Subjects主体:the subjects of international tax levy,the subjects of
4、international tax payment,the subjects of tax benefits allocation(4)Regulatory forms法律规范形式:a combination of public law&private law,international law&domestic law3.Sources:(1)Taxation treaties(2)Taxation usages(3)Domestic Law(foreign-related tax law)INCOME TAXES Most Widely Used Basic Tax Governments
5、 Use One of Two“Models”to Collect Income Taxes Schedular model分类所得税制分类所得税制:Imposes taxes at flat rates on different sources of income.将纳税人的各项所得划分为若干种类，按类别规定不将纳税人的各项所得划分为若干种类，按类别规定不同的适用税率和不等的费用扣除及优惠办法，分别计征所得税同的适用税率和不等的费用扣除及优惠办法，分别计征所得税 Global model综合所得税制综合所得税制:Imposes uniform rates on all sources of
6、income.将纳税人的各项所得加总，再减去税法允许扣除的有关费用和将纳税人的各项所得加总，再减去税法允许扣除的有关费用和减免项目之后，按统一的税率计征所得税减免项目之后，按统一的税率计征所得税 Progressive rates are commonly imposed.累进制Defined:Rates that increase as income increases.1.Nationality Principle:States tax their citizens or nationals on their worldwide income no matter where they ma
7、y reside.2.Residency Principle:States tax the worldwide income of persons legally residing within their territorial jurisdiction.Determining residenceNatural persons determined by one of three tests:Objective test:The length of time a person resides within a states borders.Subjective test:The intent
8、 of the individual to make a place his or her permanent domicile or household.Declarative test:The individual meets the admission criteria for entering the country as a resident.Companies determined by two tests:Where the company was incorporated Where the company is managed and controlled BASES OF
9、INCOME TAXATION3.Source Principle:States tax all income from sources within their territorial jurisdiction and generally exempt from taxation income accruing abroad.Income accrued or derived from local sources commonly includes:Income derived from property located within the country.Income derived f
10、rom any trade or profession carried on through any agency or branch within the country.Income derived from local employment carried on within the country4.Interrelationship of Taxation TreatiesThe three bases may be used in conjunction with each other.PrioritySource principle is usually regarded as
11、the normal or default rule.通常使用的或一般性标准Nationality and residency are usually treated as supplemental and subordinate rules.特别标准或补充性标准 5.Persons Immune from Taxation The following persons are commonly immune from taxation:Foreign governments.Foreign diplomats.Embassy technical and support staff and co
12、nsular officials are exempt only with respect to their employment in the embassy or consulate.International organizations and their personnel,depending on The instrument creating the organizationAgreements between the organization and the particular stateThe applicability of multilateral tax convent
13、ionsLocal tax lawThe applicability of general principles of international private law INCOME 所得所得1.Income Categories 应税所得应税所得 a.personal or business income个人所得或企业所得:The earnings or profits made by individuals and businesses.b.capital gains资本收益:The increase in value of the underlying capital owned or
14、 invested in by individuals and businesses.1)In most countries,all income derived from corporate assets is regarded as business income.Both capital gains and ordinary profits are treated as business income.2)In some countries,capital gains are distinguished from personal or business income.Capital g
15、ains are taxed at a different rate.Or,tax-payers are given tax breaks税收减免 on their capital gains,depending on how long the assets are held or to what purpose the proceeds收益 are put.2.Computation of Income Income of employed persons:Salaries and wages.Income for self-employed persons and companies.Ca
16、lculated by one of two methods Profit and loss statement method损益表法:Gross business income is offset by allowable losses and deductions.总营业收入减去成本和扣除项目 Balance sheet method平衡表法:Income is calculated as the difference between net worth at the beginning and the end of the accounting period.财务年度期初和期末的净值差额
17、Countries using either of the methods make various adjustments to reflect local definitions of income.These typically include personal exemptions,deductions for expenses,and credits for double taxation.3.Integration of Company and Personal Income Taxes Problem:How to allocate(or integrate)the tax bu
18、rden between companies and their dividend receiving shareholders.Approaches:1)Classical system:Impose a tax on company earnings and on company dividends when they are distributed.以“法人实在说”为基础，认为公司和股东是两个不同的经济利益主体。从征税对象看，公司的征税对象是利润，股东的征税对象是股息，因而无论是纳税主体还是纳税客体都不存在双重征税问题。采用古典制的国家中，公司所得税与个人所得税并存，分别征收。公司利润在
19、公司层次要交纳公司所得税，不管该利润是被保留还是被分配。如果其被作为股息分配，这些股息还要由个人股东交纳个人所得税，结果会引起对公司利润的经济性双重征税。2)Shareholder imputation system:Impose a tax on company earnings and on company dividends when they are distributed.Give shareholders a credit for the taxes paid by the company on distributed dividends to offset their perso
20、nal income tax obligation.归集制是将公司层次征收的公司税全部或部分地归集起来，减少股东个人就股息应交纳的所得税。股东可用分得股息所交纳的个人所得税，全部或部分抵免其个人所得税义务。3)Company deduction system:Companies deduct distributed dividends as an operating expense before determining their company income.Shareholders pay ordinary income taxes on the dividends they receiv
21、e.在公司层次上，允许被分配的利润（股息），以经营性指出的名义从应税所得中扣除。股东股东在获得股息时正常交纳个人所得税。4)Company two-rate system applies two rates of company taxes:Higher rate for undistributed profits.Lower rate for distributed profits.Distributed profits are taxed at a lower rate to compensate for the personal tax to be paid by the shareho
22、lder(at the ordinary rate).5)Shareholder two-rate system:Imposes a lower personal tax rate for income received as dividends.Companies are taxed at the ordinary company rate.对股东股东取得的股息按较低的税率征收个人所得税。6)Shareholder exempt system:No taxes are imposed on dividend income received by shareholders.Companies
23、pay ordinary company rate.将股息收入排除在个人的综合收入之外，不征个人所得税。这等于只征收了一道公司所得税。在公司层次，对公司的全部利润，包括未分配利润和保留利润，都按法定税率征收公司所得税。7)Full-integration system:No company taxes are collected.All company profits(whether they are distributed or not)are deemed to be distributed to shareholders.Shareholders pay personal income
24、taxes accordingly.DOUBLE TAXATION Defined:Taxation of the same income in two countries Systems for Relief from Double Taxation 消除双重征税的制度 Exemption system:免税法Income is taxed in one state(commonly a host state).Income is exempt from tax in a second state(commonly the home state).通常是由居住国政府对本国居民来源于境外的所得
25、或财产免于征税。实质上是居住国政府对收入来源国政府行使地域税收管辖权的那部分所得放弃行使居民税收管辖权，承认来源地税收管辖权的独占权，从而避免两种税收管辖权的重叠交叉，防止双重征税的发生。Credit system:抵免法 Tax paid in one state is used as a credit against a taxpayers liability in another state.居住国政府按本国居民纳税人在世界范围内的所得汇总计算其应纳税额，但允许其将因境外所得已向来源地国缴纳的税款在本国税法规定的限度内从本国的应纳税额中抵免。The credit will be in t
26、he form of either a direct credit for an overseas branch or an indirect credit for a foreign subsidiary.Direct credit 直接抵免 直接抵免是适用于同一经济实体的跨国纳税人向来源地国已纳所得税税款的抵免。即总公司所属的居住国政府，允许该公司用其海外分支机构已缴来源地国的税款来冲抵总公司的应纳税款。State Beta(the state of residence),50%income tax rate on the worldwide income of its residents
27、 companies 1,100,00050%=550,000 State Omega(the state where the branch locates),30%income tax rate on foreign branch income 1,000,00030%=30,000 550,000-30,000=520,000 居住国应征所得税税额=国内外总所得居住国所得税税率-允许抵免的已缴来源地国所得税税款 Indirect credit 间接抵免 间接抵免是适用于跨国公司母公司与子公司之间的一种抵免方法。母公司所属的居住国政府，允许母公司从其子公司已缴来源地国的所得税款中，用应由母公
28、司分得的股息承担的那部分税款，来冲抵母公司的应纳税款。间接抵免之所以称为间接，是因为母公司所在的居住国政府允许母公司抵免的税额，并不是由母公司直接向子公司所在国政府缴纳的，而是通过子公司间接缴纳的。子公司在国外已纳的所得税税款不能完全视为母公司的缴纳，母公司的居住国只能就该公司所分担的子公司的所得税税款给予税收抵免。间接抵免法计算原理与直接抵免法一致，其复杂性主要在于先应从母公司收取的外国子公司支付的股息计算出这部分股息已承担的外国所得税税额 母公司承担的外国子公司所得税税额=外国子公司向所在国缴纳的所得税母公司分得的股息/外国子公司税后利润Deduction system:扣除法 A tax
29、payer deducts the tax paid to one state from the profits liable to taxation in another state.居住国政府对居民纳税人因国外所得而向来源地缴纳的所得税税款，允许作为扣除项目从应税所得额中扣除，就其余额适用相应税率计算应纳税额。居住国应征所得税额=（居民的跨国总所得-国外已纳所得税额）适用税率 Comparison of the Double Taxation Relief Systems From the perspective of the taxpayer,the tax relief system
30、can be ranked as follows:exemption system-best,credit system-intermediate,deduction system-worst.The most advantageous system of double taxation is the exemption system.By being exempt from tax liabilities in one state,the taxpayer is subject to a lower overall tax bill.The least advantageous system
31、 is the deduction system.Because it only allows the tax paid in one state to be deducted from gross income in the other state,the overall tax bill tends to be higher.The principal adverse feature of the credit system is that the taxpayer ends up paying the higher rate of the two taxing countries.TAX
32、 TREATIES Purpose:To ameliorate the problem of double taxation and other matters,including tax incentives,tax avoidance,and tax evasion Model Treaties these are widely usedOrganization for Economic Cooperation and Development(OECD)Model Treaty.United Nations(UN)Model Treaty.Coverage of Tax Treaties
33、Taxes covered by most treaties:1)Income taxes所得税2)Capital gains taxes资本所得税3)Taxes on net wealth净财富税 Persons covered by most treaties:Natural persons.Companies.Basis for Taxation under the tax treaties 1)Both the OECD and the UN model tax treaties base taxation on the residency of persons within the
34、contracting states.2)Today,states do not insist upon taxing their nonresident citizens.The exception is the United States.3)If individuals have dual residency,their tax status will then be determined by a series of tie-breaking rules set out in the treaty.The following are the rules from both the OE
35、CD and the UN model treaties:a permanent home available to him If an individual has a permanent home in both or neither of the countries,then his residence is in the country with which his personal and economic relations are closest.If a center of vital interest cannot be ascertained,residence is in
36、 the country of the individuals habitual abode.If an individual has a habitual abode in both or neither of the countries,then his residence is in the country of which he is a citizen or national.If all of the foregoing fail to determine residence,then“the competent authorities of the contracting sta
37、tes shall settle the question by mutual agreement.”for companies with dual residency,treaty residence is determined by the place of effective management of the company.Double Taxation Provisions Significant factors:Residency,personality,and types of income.General rule:States may only tax residents.
38、Exceptions:1)relate to the taxpayers Personality:Non-resident person providing independent or professional services may be taxed by a tax treaty state if the person maintains a fixed base within that state.However,only the income attributable to the fixed base may be taxed.如果非居民跨国独立劳务提供者在该税收协定缔约国有固定
39、基地，该缔约国可对该非居民跨国独立劳务提供者征税，但应限于可归属于该固定基地的那部分劳务所得(“固定基地原则”)Non-resident employee may be taxed in a tax treaty state to the extent of the earnings the employee receives in that state.税收协定缔约国对非居民的受雇者以在该缔约国取得的收入为限征税 However,they are not to be taxed,if -they are present in that state for less than 183 days
40、;-they are paid by a nonresident employer;-the nonresident employer does not have a fixed base or permanent establishment within that state.Non-resident companies may be taxed by a tax treaty state if they maintain a permanent establishment within that state.如果在非居民公司在一缔约国有常设机构，该税收协定缔约国对该公司可征税，但应限于可归
41、属于该常设机构的利润为限。(“常设机构原则”)The OECD and the UN model treaties use the term to refer to a fixed place of business at which a nonresident carries on any commercial activity,either wholly or partly.This includes,but is not limited to the following:-Branch offices,factories,and workshops;-Mines,oils and gas
42、 wells,quarries,and other places for extracting natural resources;-Building sites,construction projects,and assembly projects that last for more than 12 months A permanent establishment,does not,however,include any of the following:-The use of facilities to store,display,or deliver goods -The mainte
43、nance of a stock of goods or merchandise for the purpose of storage,display,delivery,or processing by another -The maintenance of a facility for purchasing goods or merchandise,for scientific research,or for collecting or disseminating information -The maintenance of a facility for advertising,marke
44、ting,or any other activity of a preparatory or auxiliary nature -The maintenance of a building sites,construction projects,and assembly projects that last for 12 or fewer months -The carrying on of business through a broker,general commission agent,or any agent of independent status acting in the or
45、dinary course of business The UN model allows profits to be attributed from a wider range of sources than does the OECD model by following the force-of-attraction rule.引力原则This rule says that if a company in Country A has a permanent establishment in Country B,then Country B may tax not only the pro
46、fits generated by the company through the permanent establishment but also any profits that come to the company from trade or business that is carried on in Country B independent of the permanent establishment.Certain special persons,such as the estates of deceased individuals and personal trusts,wh
47、o are subject to taxation by a contracting state.Although these persons are juridical entities similar to companies,they are not business entities.Because they exist to manage the assets of an individual,the OECD and UN model treaties look to the residency of that individual in determining their res
48、idency.2)relate to the types of Income:Immovable property is taxable only in the state where the property is situated.Dividends remitted by a subsidiary are subject to limited withholding taxes代扣所得税by the host(or source)state.Under the OECD treaty,royalties are to be taxed only in the state where th
49、e recipient is a resident(i.e.,the home state);Under the UN treaty,both the source state and the home state may tax royalties,but the contracting parties are to set a limit on the withholding rate that the source state may impose.Capital gains.-alienation of immovable propertysituated in the other c
50、ontracting state may be taxed in that other state.-alienation of movable propertypertaining to a fixed base available to a resident of a contracting state in the other contracting statemay be taxed in that other state.-alienation of ships or aircraft operated in international traffic.shall be taxabl
