摘要
私法事实及其经济效果的发生是税法规范进行评价的前提。在股权转让的私法事实中,若纳税人在缴纳个人所得税后合意调减股权价款的,业已变动了作为所得税缴纳依据的私法事实及其经济效果,然而纳税人能否就此请求税务机关退还部分税款,则应当以是否符合退税请求权的构成要件为判准。但拘囿于现行税法尚未就纳税人请求税务机关退还多缴税款之情形与规则予以明确,在税收法定原则的掣肘下,股权转让价款调减之私法事实是否能够经过税法规范的评价导引出纳税人的退税请求权不无疑义。究其实质,由于在股权转让法律关系中存在期待利益和归属利益二分的经济利益形态,而《税收征收管理法》第51条(退税请求权规范)中的“应纳税额”应当与何者发生涵摄关系在理论上并不明朗,且缺失针对股权转让价款减少后退税的具体构成要件,双重缘由共同导致私法事实与税法规范的涵摄出现梗阻,致使纳税人在股权转让价款调减后是否应当享有退税请求权并无定论。职是之故,应坚持经济实质主义的立场,立基于所得税规范关注财产变动和归属利益的经济实质,着眼于股权转让私法事实中权利变动和归属利益移转之向度,在税收债权债务关系说理论模型的框架下,通过实质课税原则的运用和对私法上不当得利原理的镜鉴,导引出纳税人在股权转让价款调减后的退税请求权。藉此,兹以纳税人在股权转让价款调减后的退税请求权之证成为例,通过对税法规范的法律续造,探明税法规范与私法事实相互涵摄的内在机理,由此将可以避免因制度供给的不足和文义解释的模糊而带来的与私法事实之经济效果相背离的税法评价,进而推进税法规范与私法事实的良性互动,引导实践的正确走向。
The occurrence of private law facts and their resulting economic impact are the basis of tax law judgement.In the case of an equity transfer,when a taxpayer voluntarily agrees to reduce the price of an equity interest after paying individual income tax,it changes the private law facts and economic situation that are the basis of the income tax liability.However,whether the taxpayer can apply to the tax authorities for a partial tax refund depends on whether the act of reducing the price of the equity meets the legal elements of the tax refund.At present,due to the lack of provisions in the current tax law on the circumstances and procedures for refunding overpayment of tax by taxpayers,the question of whether the private law fact that the price of an equity transfer has been lowered can enable taxpayers to request the tax authorities to refund overpayment of tax has become a problem that needs to be solved.The root of this problem lies in the fact that there are two different economic interests in the legal relationship of equity transfer-expected interest and vested interest.At this point,whether the“taxable amount”provided for in the article 51 of the Law on the Administration of Tax Collection(Norm of Tax Refund Claims)is an anticipatory interest or a vested interest becomes another issue that needs to be resolved,and at the same time,the Law lacks the specific constituent elements of a reduction or exemption of the price of the transfer of an equity interest for the purpose of a tax refund.The above problems illustrate a phenomenon:the obstacles to the interaction between the facts of private law and the norms of tax law have resulted in a lack of certainty as to the right of the taxpayer to seek a tax refund following a reduction in the price of the equity transfer.Therefore,it is important to adhere to a position based on economic substance,prioritising the economic reality of the property change and the benefits attributed under income tax norms.This approach considers the change in equity rights and the redistribution of attributional benefits in the context of the private law facts related to the transfer of equity.Within the theoretical framework of the tax creditor-debt relationship,we can utilise the principle of substantive taxation and draw on the concept of unjust enrichment in private law in order to justify the taxpayer’s right to claim a tax refund following a reduction in the price of the equity.This thesis takes the example of proving that a taxpayer is entitled to a tax refund after a reduction in the price of an equity transfer to illustrate the mechanism of interaction between tax law norms and private law facts.In this way,the incongruity between tax law judgement and private law facts due to inadequate institutional provisions or unclear legal interpretation can be circumvented,thus promoting constructive interaction between tax law norms and private law facts.Ultimately,this would provide a useful approach to practical application in this area.
作者
覃榆翔
QIN Yuxiang(School of Civil,Commercial and Economic Law,China University of Political Science and Law,Beijing 100088,China)
出处
《西安财经大学学报》
CSSCI
2024年第2期105-117,共13页
Journal of Xi’an University of Finance and Economics
基金
国家社会科学基金青年项目“民法典时代共生交易的法律规制研究”(22CFX073)。
关键词
股权转让
私法事实
课税要素
法律涵摄
实质课税原则
transfer of equity
private law facts
elements of taxation
legal subsumption
principle of substantive taxation
