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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。

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

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》。

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编辑推荐

本书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。

前言

Preface

This textbook on international tax law follows the common pattern of similar works in the field, that is, to provide an introductory analysis of the issues about how a country (eg, China) should design its income tax rules and coordinate those rules with the income tax systems of its trading partners (eg, US or EU), and what taxpayers should keep in mind when they pay income taxes transnationally under such rules and systems



However, the work tries to feature a balance between

‘

introduction

’

and

‘

inspiration

’

To do this, the work pays special attention to four inter



connected factors



First, the target readers



The work is especially intended for students with backgrounds in laws, international politics and/or international economics



Therefore, it encourages and shows how to apply the critical thinking based on the observation of international tax rules through the prism of international politics and economics



Second, the focus of the discussion



The work does not focus on technical details; especially, it is not a manual for international double taxation relief or international tax planning



To know

‘

what

’

and

‘

how

’

is of course important, but knowing

‘

why

’

is often more fundamental



The work emphasises the underlying principles and general framework of international taxation



By learning such principles and framework, the students need not worry that their knowledge will soon be outdated with any updates of the tax rules and practices



Third, local thinking



The domestic tax systems in different countries vary widely to suit their economic, social and political needs



Against the background of discussing the underlying principles, the general framework, and common practice of major rule



supplying countries, the work has a dedicated chapter on Chinese income tax rules which will make it easier to get the full picture of China



s international taxation administration



Fourth, self



learning



Besides cases and illustrations pertinent to different situations, the work attaches some questions (most are open questions) to different parts for readers



further thinking



These questions are especially designed for the target students



Nevertheless, this work would also be helpful to anyone who is interested in international business transactions and wants an overview of the legal rights and duties as an international taxpayer and the most frequent method for resolving taxation disputes at international level



Please note that the author is not engaged in rendering legal or other professional advice and this work is not a substitute for the advice of an attorney



If you require legal or other expert advice, you should seek the services of a competent attorney or other professional



The author has used his best endeavours to ensure that the URLs for websites referred to in this work are correct



However, the author has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate



国际税法

Preface

Acknowledgements

The author would like to thank Professors Zhang Lantao, Fu Kajia, Zhang Shiquan, Wu Xiangying and Tao Jian from University of International Relations, Beijing (UIR), Prof



Wang Jun from University of International Business and Economics, Beijing (UIBE), and undergraduate students of UIR and international students of UIBE whoever took this class



Dedication

The work is dedicated to my family



Chen Weiguo

Beijing, 25 June 2015

