税法续造与税收法定主义的实现机制
汤洁茵税法续造与税收法定主义的实现机制
Tax Rule-making and Enforcement Mechanism of the Principle of Taxation by Law in China
期刊名称：《法学研究》
期刊年份：
作者：汤洁茵
单位：中国青年政治学院法学院
中文关键词：税收法定主义;税法漏洞;法律续造
英文关键词：principle of taxation by law;loopholes in the tax law;Rechtsforbildung
中文摘要：
契约自由化为市场主体进行经济活动的安排提供了无限的可能性，相对安定的税法不可避免地滞后于社会发展。由于缺乏明确的税法规则的指引，为确保课税公平，新型交易的税收待遇不得不由税务机关在个案中予以裁量。但主要甚至完全仰赖于裁量解决新型交易的课税问题，并不符合税收法定主义的要求。在新型交易尚未被市场广泛、普遍地接受的情况下，立法者可以选择以标准的形式对这一征税事项作出规定。在标准规范之下，税务机关对新型交易的征税作出裁量决定，所形成的先例可以为这一征税事项严格规则的制定提供必要的经验积累。但在社会高度流变的背景下，受限于立法技术、税务人员的专业水平等因素，新型交易的征税事项的规范形式实现从标准到严格规则的演进将是漫长的过程。
英文摘要：
Propelled by technological innovation and information revolution, human society has entered into a period of rapid development. The freedom of contract provides infinite possibility for market entities to arrange transactions in the form they like. However, the tax law, which must be strict, stable and foreseeable for taxpayers, will inevitably lag behind social development, thus leaving loopholes in the tax law. Because of the absence of applicable tax rules, tax treatment of innovative transactions has to be determined by tax authorities at their discretion on a case by case basis, rather than according to the tax law, so as to ensure equitable taxation. However, this is not an effective solution to the problem taxation of innovative transactions and can lead to inconsistency and inequity of tax burden. In most cases it is very difficult, even though not impossible, for the legislature to make strict tax rules governing a particular newly-created innovative transaction. It should be a good choice for the legislature to prescribe the tax treatment of innovative transactions in the form of standards, rather than rules, at this time. According to such standards, the tax authorities are allowed to determine the tax treatment of innovative transactions at their discretion on a case by case basis. The precedents thus developed will provide the necessary experiences for the legislature to institute strict rules on the taxation of innovative transactions when such an arrangement or structure is accepted widely in the market. However, it should be noted that, considering limitations by such factors as legislative techniques, professional capacity and the complexity of society, the evolution of a norm on taxation of innovative transaction from a standard to a strict rule is a very long process against the background of rapid social change.
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