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Application of Substantive Taxation Principle

Author: ShangShu
Tutor: LiShouTing
School: Central China Normal University
Course: Legal
Keywords: Substantive Taxation Principle legal status lists type legislation summarized type legislation
CLC: D922.22
Type: Master's thesis
Year: 2011
Downloads: 131
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Abstract

Application of Substantive Taxation Principle is a "sharp sword" which throws away the "legal form" so as to attack tax avoidance. Substantive Taxation Principle is the request of tax justice and fairness, is the need of Treasury Supremacists, is the assurance of financial stability and social justice. In China, we are always disputing the existence of Substantive Taxation Principle, because its nature of "double edge". Some laws have provided Substantive Taxation Principle, but it is still a controversy that Substantive Taxation Principle’s legal position and the future direction of legislation.At present, there are six viewpoints about Substantive Taxation Principle’s legal status:the doctrine of Tax Law’s foundation, the doctrine about the principle of Tax Law’s interpretation and appliance, the doctrine about the method of loophole supplement, the doctrine about lower level principle of Tax Fair Negative doctrine and doctrine of legislative principle. The author thinks that Substantive Taxation Principle should become the principle of legislation, the method of legislative interpretation and judicial explanation, the tools of loophole supplement and the approach of flexible law enforcement. The scholars don’t agree on legislation mode that is Summarized type or Lists type with regard to Substantive Taxation Principle’s legislative development. The author thinks that the legislative development of Substantive Taxation Principle should fit in with the present condition of our country. We should take the Lists type first so as to attack typical avoidance. And then the experienced jurists draft the general articles when the law level reaches a high standard.In this thesis, the author applies the method of empirical analysis and comparative analysis. This thesis has been divided into four parts, apart from introduction.The first part the author expounds the meaning, historical evolution, the basis of theory and legal status of Substantive Taxation Principle. Firstly, the author expound on the different implication of Substantive Taxation Principle in Germany, Japan, the countries of American Legal System and China. And then, the author gives his own understanding about Substantive Taxation Principle that is confirming taxation object is ground on economic purpose or essence, not revenue factors or form. Again, Substantive Taxation Principle’s developing is based on the principle of equitability of taxes and the ability-to-pay principle. Lastly, the author gives his own opinion about the Substantive Taxation Principle that is the principle of legislation, the method of legislative interpretation and judicial explanation, the tools of loophole supplement and the approach of flexible law enforcement after scholars’disputes about the legal status of Substantive Taxation Principle.The second part analyses the necessity, complexity and effect of Substantive Taxation Principle’s application. Firstly, application of Substantive Taxation Principle is necessary, which is demand of treasury supreme, justice as fairness, loophole added and coordinating contradiction social development and legal defects. Then, the article expounds the contradiction between Tax legal, private law, the trust of revenue cooperation, low veracity about taking the evidence of Tax authority and Substantive Taxation Principle. The author obtains a result that application of Substantive Taxation Principle is complicated. Lastly, application of Substantive Taxation Principle has beneficial effect on adding financial revenue, maintaining equitability of taxes, avoiding tax evasion and executing Tax Law.The third part introduces the application of Substantive Taxation Principle in Germany, Japan, Korea and Taiwan of China. The author suggests Chinese law have to provide Substantive Taxation Principle.The fourth part recommends the status quo about application of Substantive Taxation Principle. The author suggests that we should take the mode of summarized type first, then develop legislation mode of Summarized type, and takes some suggestions about applying Substantive Taxation Principle in law enforcement field and judicial field. Firstly, the author expounds the Application of Substantive Taxation Principle in Provisional Regulations of the People’s Republic of China on Value Added Tax and other laws. Secondly, the author suggests how to apply Substantive Taxation Principle in a better way in legislation, enforcement, and judicial. The author suggests we should take the mode of summarized type first, then develop legislation mode of Summarized type. Then the author suggests that Law enforcement agencies should improve the quality of Law enforcers, enhance the accuracy of Investigation and evidence collection and optimize the service of revenue. In judicial, the court should play a fair judicator and improve the supervision in some cases.The innovation in this text is that Substantive Taxation Principle should be set by Lists type first, and then be raised the general clause in the Tax Law so that the principle could have better impact on the whole field of Tax Law.

Application of Substantive Taxation Principle

Abstract

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