国际税收

　　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。

　　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》。

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］
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