作者简介

陈卫国，国际关系学院副教授、硕士生导师，2002年11月至2005年1月，厦门大学财政系博士后；2005年2月至2007年1月，密歇根大学法学院访问学者；2007年4月至6月，台湾大学法学院访问教授。代表性作品有：《税法基础理论》（合著）、《美国联邦税收程序》、《财政法基本原则论纲》。

内容简介

本教材考察了体现于众多税收条约和国内法的连贯一致的国际税收体系，以及其作为国际法重要组成部分的路径，无论是基于条约还是基于惯例。其实践性内涵还在于：各国不能任意它们喜欢的国际税收规则，而只能在国际税收体系的背景下运作。当国际法随时间的迁移发生变化时，这个体系也会同样发生变化。因此，单边行动虽然不是没有可能，但是也会受到限制，各国通常都不愿采取违反这个体系基本准则的单边行动，阐释了国际税收体系的结构，也详尽分析了美国税法如何体现其根本准则。

目录

Chapter 1Backgrounds I Introduction II Why taxation III Optimal taxation IV Goals of international tax rules V Current taxation system of China: an overview ［=§ 6I］ Chapter 2Tax treaties and model tax conventions I Important role of international tax treaties II Treaty as main source of international laws III Legal nature and general effect of tax treaties IV Objectives of tax treaties V Model tax conventions VI Interpretation of tax treaties VII Multilateral conventions or provisions involving tax matters VIII Multilateral forums and coordinators on tax matters Chapter 3Jurisdiction to tax I Introduction II Categories of ‘jurisdiction to tax’ III General income tax liabilities under Chinese domestic laws［=§ 6II］ IV Residence rules: defining ‘resident’ V Resident in Chinese tax laws ［=§ 6III］ VI Source rules: determination of ‘source jurisdiction’ and source taxation VII Source taxation in Chinese laws ［=§ 6IV］ VIII Tax jurisdictions: conclusion IX Bilateral modes helpful to resolve conflicts of jurisdictions Chapter 4Double taxation and its relief IInternational double taxation defined IICauses of IDT IIIGeneral approach to relieve double taxation IVRelief mechanism (1): deduction method VRelief mechanism (2): exemption method VIRelief mechanism (3): credit method VIITax sparing VIIIRelief of double taxation under Chinese laws ［=§ 6V］ 国际税收 Contents Chapter 5Tax avoidance and antiavoidance rules IImportant terms IICauses of international tax avoidance IIIBalance of tax avoidance and countermeasures: ethics of tax avoidance, and justification of antiavoidance measures IVBasic elements and ways of tax avoidance VOverview of antiavoidance methods VIThin capitalisation and thin capitalisation rules VIIUse of tax deferral and CFC rules VIIITransfer pricing and its prevention IXTreaty shopping and antishopping clauses XHybrid mismatch and antihybrid rules XI(International) tax planning and international coordination XIISpecial tax adjustments under Chinese laws: antiavoidance rules on enterprise income tax ［=§ 6VI］ XIIIConclusion: international tax law framework Chapter 6Chinas international taxation administration ICurrent taxation system of China: an overview ［=§ 1V］ IIGeneral income tax liabilities under Chinese domestic laws［=§ 3III］ IIIResident in Chinese tax laws ［=§ 3V］ IVSource taxation in Chinese laws ［=§ 3VII］ VRelief of double taxation under Chinese laws ［=§ 4VIII］ VISpecial tax adjustments under Chinese laws: antiavoidance rules on enterprise income tax ［=§ 5XII］ References 〖＝（〗113133374244444651535563747577787984859696146146148160160163169173176181198202204205217224228230235240252284291298310311314314338349360389402428〖＝〗 Illustrations & Cases Illustrations IL1: Some important principles in the field of international taxation2 IL2: Sale of a selfbuilt house (determining the amount of gross income)9 IL3: Payment to a contractor who built a house for the owner (determining the amount of gross income)10 IL4: Roxanne supporting a child living abroad (a simple example of ‘international tax law’)13 IL5: Roxanne receiving interest paid by a foreign bank (tax liability under treaty and domestic law)15 IL6: The expenditure on environmental protection facility reducing the effective tax rate17 IL7: The meaning and use of quick deduction (progressive rates)18 IL8: Reeve being paid $20′000 this year (various tax rate structures)19 IL9: James and Angela spending on purchases (‘regressive’ excise tax)20 IL10: Consulting service at the end of a year (cash method for revenue)22 IL11: Temporary employment at the end of a year (cash method for expenses) 22 IL12: Threeyear loan at compound interest rate of 10% (‘nett income under cash method’ and ‘cash flow’)22 IL13: Consulting service at the end of a year (accrual method for revenue)23 IL14: Temporary employment at the end of a year (accrual method for expenses)23 IL15: Chin being paid ￥162′000 this year as her salary (a simple example of individual income tax computation)24 IL16: Both Reeve and Nancy earning $100′000 (transnational interindividual equity)38 IL17: Reeve earning income from three foreign countries (tax jurisdiction)39 IL18: A German company with a branch in Tunisia (capital import and export neutrality)41 IL19: Taxation on ‘royalties’ (treaty interpretation)49 IL20: ‘Guaranteed’ low rate on royalties under a tax treaty (certainty through tax treaty)55 IL21: ‘Substance over form’ doctrine (treaty interpretation)64 IL22: What is ‘liable to tax’ (tax treaty interpretation)64 IL23: Mr Walter performing abroad (residence and source jurisdiction)79 IL24: Dividends paid to resident or nonresident? (tax jurisdictions)85 IL25: Placeofmanagement shifted to law tax country and receiving royalties there (a way to escape high taxes)93 IL26: Income of a law firm who providing transnational services (difficult to define ‘source’)98 IL27: Painter painting in a large office building (coherent commercial activity) (location test for PE)103 IL28: Salesman regularly visiting customers office (‘disposal’ test for PE)106 IL29: Employee using subsidiarys office to ensure the performance of previous contracts (‘disposal’ test for PE)106 IL30: Prebuilding road and postbuilding restoring (starting time of a PE)107 IL31: Praxis selling wooden chairs abroad through PE (PEs income taxable?)111 IL32: Praxis selling wooden chairs abroad through PE at $90 (‘separate entity approach’ to determine PEs income)112 IL33: Praxis selling wooden chairs abroad through PE at $90 (‘separate entity approach’ to determine PEs income)112 IL34: Apportionment of income from sales in two states (3factor formula method)114 IL35: Praxis selling wooden chairs abroad through PE (income attributable to PE under ‘2factor apportionment method’)115 IL36: Sale of manufactured widgets through a PE (different assumptions under arms length method)116 IL37: Interest received by banks branch as PE and the possible double taxation (the effect of PE rule)118 IL38: Chin being paid ￥162′000 for her services (source taxation on personal services income)118 IL39: Painter painting in clients office for two years (PE or fixed base?)120 IL40: Working for 170 days and staying another 3 weeks on vocation (source taxation on an foreign employee: presence)122 IL41: Hiring welders through a foreign person (international hiring out of labour)124 IL42: Danish company and workers building house in Germany (source taxation rules)126 IL43: Resale of branded shirts (not paying for the application of a trade mark) (meaning of ‘royalties’)131 IL44: Payment for the ‘development’ of a plan (service payment or royalties?)131 IL45: Accountancy firm buying list of tax decisions (payment for services) (meaning of royalties)133 IL46: Payment for a machinery together with technical documents and attached software (meaning of royalties)133 IL47: Payment for a new manufacture process (meaning of royalties)134 IL48: Payment for a franchise agreement of hotel managing (meaning of royalties)134 IL49: Payment for various things abroad (information/knowhow and services) (meaning of royalties)135 IL50: Interest paid to a resident Bank chargeable to a PE (interest in connection with PE) (triangular case)140 IL51: Rent from Paraguay paid to a Mexican resident who keeping a house in Denmark (income from third states) (21 OECDMTC)145 IL52: Dividends between contracting states redistributed through an ‘intermediate’ thirdstate corporation (21 OECDMTC)145 IL53: Consulting firms combined tax rate (double taxation)163 IL54: Resident individual working abroad 4 months (residencesource double taxation)164 IL55: Dividends paid to foreign shareholders (residencesource double taxation)165 IL56: Foreign tax credit not available under different consolidation rules (double taxation)165 IL57: Furnishing of services for a project (service PE under 5.3(b)UNMTC) (bilateral arrangement to relieve double taxation)172 IL58: Consulting firms domestic tax under deduction method (double taxation relief)174 IL59: Deduction of tax for foreign dividend (double taxation relief)175 IL60: Consulting firms domestic tax under full exemption method (double taxation relief)176 IL61: Tax shifting under exemption system (weakness of exemption method) (double taxation relief)177 IL62: Consulting firms domestic tax under exemption with progression (double taxation relief)179 IL63: Unilateral and bilateral exemption (double taxation relief)180 IL64: General meaning of credit method (double taxation relief)181 IL65: Credit in case of higher foreign tax rate (credit method)183 IL66: Thirdcountry interest income of a bank and its branch (ordinary credit)183 IL67: Excess credit (the noncreditable part of foreign income taxes) (ordinary credit)187 IL68: Excess credit carried forward (ordinary credit)188 IL69: ‘Item’ of income (itembyitem limit)189 IL70: Consulting firms domestic tax under ordinary credit191 IL71: Overall, percountry, & itembyitem limitation (credit method)192 IL72: Dividends from whollyowned subsidiary (indirect credit)196 IL73: Shifting of the benefit of a tax incentive to residence country in case of no tax sparing199 IL74: Tax planning without tax sparing under overall limitation on the foreign tax credit (‘mixer company’ to use the low tax)201 IL75: Triple nontaxation on transfer of patent (international tax avoidance)217 IL76: Tax avoidance under ‘permanent establishment rule’218 IL77: Tax advantage of debt financing over equity (thin capitalisation) (tax avoidance)237 IL78: Backtoback loan under thin capitalisation rule (tax incidence under thin capitalisation rule)239 IL79: Transferring interest to a foreign entity in tax haven (tax deferral) (tax avoidance)241 IL80: Double taxation resulting from parallel CFC rules (tax avoidance)252 IL81: Transfer price between affiliates (tax avoidance)253 IL82: Sale of goods through transfer price to avoid taxes (tax avoidance)254 IL83: Double taxation under transfer price adjustment (tax avoidance)255 IL84: The determination of the tested party with different functions (arms length approach) (transfer pricing)259 IL85: Comparable uncontrolled price method used in the sale of wooden chairs (arms length approach) (transfer pricing)261 IL86: Resale price method used in the sale of wooden chairs (arms length approach) (transfer pricing)262 IL87: Cost plus method used in the sale of wooden chairs (arms length approach) (transfer pricing)262 IL88: Comparison of traditional methods used in sale of wooden chairs (arms length approach) (transfer pricing)265 IL89: ProfitSplit Method used in the sale of patented pharmaceuticals repackaged (arms length approach) (transfer pricing)266 IL90: Combination of profit split and traditional methods in the sale of patented pharmaceuticals (residual profit split method) (transfer pricing)267 IL91: Determination of the comparable margins under transactional nett margin method (arms length approach) (transfer pricing)270 IL92: The profitability of a taxpayer selling top quality audio players (transactional net margin method) (arms length approach)271 IL93: Determination of the range of the comparable margins (arms length approach) (transfer pricing)271 IL94: Goods resold by foreign subsidiary after affixing trade name (determination of the tested party under TNMM)272 IL95: Comparability adjustment based on location savings (transfer pricing adjustment)273 IL96: Commensuratewithincome standard used in the transfer of patents of plastic contact lens (arms length approach)276 IL97: Cost contribution arrangements (CCA) to develop small electrical appliance (transfer pricing)277 IL98: Constructive Cost Contribution Arrangements in joint development of intangible property rights (transfer pricing)278 IL99: Correlative adjustment applied to goods sold to foreign affiliate (transfer pricing)279 IL100: A tax loss after transfer pricing methodology fixed under contemporaneous documentation rule (transfer pricing)283 IL101: Taxpayer in a tax haven purchasing bond through independent intermediary for treaty shopping (‘backtoback loan’) (conduit)285 IL102: Taxpayer in a tax haven purchasing stocks through subsidiary for treaty shopping (controlled affiliate as conduit)286 IL103: Canadian taxpayer receiving dividends through EU holding company (controlled affiliate as conduit)287 IL104: Royalties received by a hybrid entity under an OECD style treaty (double nontaxation) (tax avoidance)293 IL105: Double depreciation deduction for purchase through a loan under a ‘doubledip purchase’ (hybrid entity) (tax avoidance)294 IL106: Financial arrangement through a hybrid entity (double deduction) (tax avoidance)294 IL107: Depreciation deduction doubled under a ‘doubledip lease’ (crossborder tax arbitrage transaction) (tax avoidance)295 IL108: Financial arrangement through a hybrid entity (deduction / noinclusion) (tax avoidance)295 IL109: Financial arrangement through a hybrid instrument under an OECD style treaty (deduction / noinclusion) (tax avoidance)296 IL110: Carrying on business through a hybrid entity and other operating companies (deduction / noinclusion) (tax avoidance)297 IL111: Transfer of operations together with supporting intangibles under a costcontribution arrangement (international tax planning)299 IL112: Leveraged acquisition with debtpush down and use of intermediate holding companies (international tax planning)301 IL113: Chin being paid ￥162′000 this year as her salary (Chinese individual income tax)322 IL114: Mr Du being paid in both China and Vietnam (residents Chinese IIT calculated separately on foreign and domestic income)355 IL115: What is huji for? (hukou in Chinas daily life)357 IL116: Chinese IIT of shorttermresident employee temporally worked abroad (nondomiciled resident)358 IL117: Representative offices taxable income based on ‘expenditureplus method’ (PEs income)372 IL118: Marketing agricultural machinery in Kuwait for a Chinese company (source taxation without PE in China?)374 IL119: Kuwaiti company marketing drilling rig in China through a Chinese company (source taxation with PE?)374 IL120: Chinese IIT of temporary nonresident employee (nonresident individual staying in China not over 90 days)384 IL121: Chinese IIT of nonresident employee staying in China more than 90 days (source taxation)386 IL122: Praxis derives income from Toland and Piland (foreign tax credit against Chinese EIT)392 IL123: Threetier indirect credit allowable (foreign tax credit against Chinese EIT)396 IL124: Miss Tian derives income from US, Thailand, UK and North Korea (foreign tax credit against Chinese IIT)399 Cases Australia CsAU1: Thiel v FCT, 1990 (use of OECD Model Treaty and Commentaries)65 China CsCN1: How to count a ‘month’ under the permanent establishment provisions of a tax treaty (treaty interpretation by SAT)69 CsCN2: China Unicom requiring tax refund according to SinoSpain tax treaty (broad interpretation of ‘liable to tax’?) (Beijing STB, 2011)73 CsCN3: A Chinese PhD candidate studying in Oxford for 5 years (habitual residence in China) (Suzhou LTB, 2009)357 CsCN4: Oil company exploring oil resources in China (Chinas PE rules)364 CsCN5: Sale of equipment through subsidiary as an agent PE (GuoshuiHan ［2006］ 970)369 CsCN6: PanAmsat case, 2002 (withholding tax on the payment for the supply of compressed video signals through satellite) (meaning of ‘royalties’) (Beijing High Court, 2002)381 CsCN7: Shareholding requirement for indirect foreign tax credit (twotier example)394 CsCN8: Shareholding requirement for indirect foreign tax credit (threetier example)395 CsCN9: Transactions between a ‘bothendsabroad’ enterprise and its Japanese parent (transfer pricing adjustment) (Shenzhen STB, 2012)405 CsCN10: Special adjustment using ‘profit split method’ to the sale of parents products (transfer pricing) (Shenzhen STB, 2011)408 CsCN11: ‘Processing service income’ received by a hightech OEM (transfer pricing adjustment using TNMM) (Shenzhen STB, 2011)409 CsCN12: Sales controlled by related company of an electronics manufacturer (transfer pricing adjustment) (Beijing STB, 2013)410 CsCN13: Tax ‘avoidance’ of Microsoft? (APA?)419 CsCN14: Covered CFC under direct and indirect control (CFC rules)420 CsCN15: Engineering machine manufacturer with high debtequity ratio (thin capitalisation adjustment) (Shaanxi STB, 2011)422 CsCN16: Share transfer through a Mauritian ‘conduit’ (tax treaty interpretation) (Tianjin STB, 2008)423 Denmark CsDK1: TfS 198616 (moving to Norway and staying there with a woman) (allegiance manifestations to deny residence)87 CsDK2: Skat 19854112 (an offices activities of invoicing, dunning, receiving and transferring payments) (auxiliaryorpreparatory activity test for PE)105 CsDK3: Branch abroad of taxpayers parent receiving the payments and transferring them to the taxpayer (auxiliaryorpreparatoryactivity test for PE)105 CsDK4: Power station tobeoperatedbyforeignowner built by local partner (no PE for the owner during the building period)107 CsDK5: Transforming a company to a PE which would keep the existing PEs under it (subPE)108 CsDK6: Pipeline construction in Denmark by employees of a Swiss company (source taxation on foreign employee: deduction) (Danish High Court, 2006)123 CsDK7: Hiring Latvian workers to milk the stable (international hiring out of labour)125 CsDK8: Deduction of alimony under MAP (economic double taxation)162 CsDK9: TfS 1986501 (thirdcountry interest income of a bank and its branch) (ordinary credit)184 European Union CsEU1: Bachmann v Belgium, 1992 (discrimination to foreign workers by only allowing the deduction of domestic life policy)(discrimination to nonresident)38 CsEU2: Royal Bank of Scotland plc v Greece, 1999 (higher rate on foreign banks) (discrimination to nonresident)39 CsEU3: Schumacker case, 1995 (‘once somewhere’ principle: crossborder workers’ tax benefits in a EU state) (nondiscrimination)150 CsEU4: De Groot case, 2002 (finding a discrimination if tax systems discouraging residents from working abroad) (nondiscrimination)151 CsEU5: Gilly v Directeur des Services Fiscaux du BasRhin, 1998 (French resident teaching in Germany trying to claim full credit but failed)185 CsEU6:De Lasteyrie du Saillant, 2004 (no automatic taxation on latent capital gains allowed) (antishift rules)232 Germany CsDE1: German writer writing book in a caravan parked in Italy (professional services and fixed base at least 6 months) (Bundessteuerblatt 1993)119 CsDE2: Liechtenstein ‘Compact Disk purchase’, 2008 (exchange of information)157 The Netherlands CsNL1: Dutch Supreme Court, 2009 (a nontaxpayer under domestic law is not the resident under the tax treaty) (‘material approach’ of interpreting ‘liable to tax’)70 Switzerland CsCH1: Immediate redistribution of aftertax dividends received by an intermediate company (reading a ‘good faith’ duty into a tax treaty)289 The United Kingdom CsUK1: De Beers v Howe, 1906 (diamond company in South Africa) (placeofmanagement test)92 CsUK2: Swedish Central Railway Co v Thompson, 1925 (placeofmanagement & placeofincorporation test)95 CsUK3: Memec v IRC, 1998 (taxation of ‘silent partnership’) (double taxation) (treaty interpretation)166 CsUK4: Ramsay Ltd v IRC, 1981 (artificial capital losses generated through readymade avoidance scheme) (‘Ramsay principle’)208 The United States CsUS1: Nat′l Paper v Bowers, 1924 (rational of residence jurisdiction)90 CsUS2: Boulez v CIR, 1984 (worldrenowned Germanresiding conductor conducting concerts in US) (royalties or service income?)167 CsUS3: Gregory v Helvering, 1935 (transfer of share through artificial corporate reorganisation) (‘business purpose doctrine’ & ‘doctrine of substance over form’)206 CsUS4: WinnDixie v CIR, 2001 (life insurance for all employees by high rate loan) (‘closely related economic substance’ doctrine)208 CsUS5: Countryside LP v CIR, 2009 (accountant assisting his longterm client in a ‘basis swaps’ arrangement) (tax adviser and tax planning)215 CsUS6: Valero v US, 2009 (transactions generated huge taxdeductible losses at the advise of the adviser) (‘promotion’ of tax shelter)216 CsUS7: IES v US, 2001 (no tax avoidance by buying and selling the same asset at almost the same time to capture foreign tax credit)219 Tables Table1: Framework of international tax law4 Table2: Tax revenue as a percentage of GDP in OECD countries and China27 Table3: Number of bilateral tax treaties concluded per year and cumulatively45 Table4: Chinas positions in OECD Model Treaty61 Table5: Tax jurisdictions146 Table6: OECD mutual agreement procedure statistics153 Table7: Framework of international tax law311 Table8: Tax treaties and agreements signed by China327 Table9: Collection scopes of Chinese tax authorities336 Table10: ［Example］ annual return of Chinese EIT for nonresident taxpayers342 Table11: General lists of permanent establishment (PE) in Chinas tax treaties364 Table12: Projects as PE in Chinas tax treaties366 Table13: Withholding taxation on dividends in Chinas tax treaties376 Table14: Withholding taxation on interest in Chinas tax treaties378 Table15: Withholding taxation on royalties in Chinas tax treaties380 Table16: Example to adjust the Chinese taxpayers cost markup with location savings416 Table17: Number of Chinas APAs417 Table18: Transfer pricing methods used in Chinas APAs418 Table19: Transactions covered in Chinas APAs418 Table20: Industries covered in Chinas APAs418 Table21: Antiabuse clauses in Chinas bilateral tax treaties424

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