从赠与视角看构建部颁税法规则审议机制——以财税[2001]28号、财税[2011]82号等为例

实务中,税收构成要件的认定贯穿于税法评价始终。税法评价旨在税企争论双方论辩中达成共识,其争辩借助并基于部颁税法规则。部颁税法规则一事一议,针对复杂的交易形式,提供交易定性的判定规则,具有无可替代的独特作用。税法评价基于民法规则,与民商法具有内在协调性,而税法规则的缺陷在于罔顾民商法规则。于政策层面,国家财税主管机关应专设规范性文件审议机构,以提升部颁税法规则的法学素养,增进其法学品行,打通其与部门法特别是民商法规则的隔阂。随着时间推移,该类机构或可逐渐独立于国家财税主管机关,形成类似税务仲裁或税务法庭之类的机构。

Establishment of Review Mechanism for Provisions Issued by SAT From the Point of Bestowal --Take the Example of Caishui [ 2001 ] No. 28 and Caishui [ 2011 ] No. 82

In law practice, it is essential to identify the main components of tax. The application of tax law helps to reach an agreement in tax debates between enterprises and tax authorities via the basis of provisions issued by SAT. They specialize the cases, offers rules of transaction characterization for complicated transaction forms, and thus shall not be replaced. The application of tax law is based on and intrinsically harmonious with civil law. Howev- er, the defects of tax law comes from the ignorance of civil and commerce laws. In policy terms, special mechanism should be set up by finance and tax authorities to examine, review and improve the law quality and activities of the provisions issued by SAT, and thus break the barriers between tax laws and other department laws, especially civil law. In future, these institutions may be independent from finance and tax authorities, and then become an organ that is similar to tax arbitration or tax tribunal.