First, the concept of tax jurisdiction. As we all know, sovereign states are the basic subjects of international law. Judicial power is one of the basic rights of a country. Jurisdiction means that in the international community, all sovereign and independent countries have the right to exercise laws over all people, things and events in their fields, which is an important attribute of national sovereignty. Tax jurisdiction is an important embodiment of national sovereignty in the field of taxation, and it is the power of the sovereign government to exercise taxation. Therefore, it is a completely independent and exclusive power. In addition to the principles stipulated in international laws and treaties, any sovereign country can exercise its tax jurisdiction by adopting the best and most appropriate principles. Because a series of contradictions and problems in international tax relations are related to tax jurisdiction, it is necessary to understand tax jurisdiction first to study and solve international tax law problems. According to public international law, sovereign States exercise jurisdiction according to the principle of territoriality and the principle of personality. Due to the particularity of taxation, the principle of territoriality is reflected. The principle of personality is reflected in international taxation, which is manifested in the jurisdiction of residents.
Second, the classification of tax jurisdiction. According to the different principles of jurisdiction and the choice of connection points, tax jurisdiction can be divided into two categories:
1, resident tax. Jurisdiction Residents' tax jurisdiction refers to the tax power exercised by the state according to the taxpayer's tax domicile and other related factors in the country. It is the embodiment of individual principle in international tax law. The premise of its establishment is that there is a personal connection between the taxpayer and the taxing country. This principle of exercising tax jurisdiction according to the taxpayer's resident status is also called subordinate taxation. According to the principle of personality, it is a legal fact that there is a personal relationship between taxpayers and tax-collecting countries. As far as natural persons are concerned, these personal factors mainly include domicile (residence), habitual residence, nationality and so on. As far as the legal person is concerned, it mainly includes the company's registered place or land, the location of the company's actual control center and the location of the company's headquarters. The contact factor that determines this personal nature is generally called "tax residence" in international tax law. A taxpayer who has such a tax residence in the taxing country is a resident taxpayer in the national tax law, and this taxing country is also called the taxpayer's domicile country accordingly. Sovereign countries exercise the right to tax according to the legal fact that taxpayers have tax residence in their own territory. This principle of taxing all taxpayers' property and income at home and abroad according to the contact of tax residence is called "residence principle" or "resident tax jurisdiction principle"
2. Sources of income. Tax jurisdiction The source of income tax jurisdiction refers to the power of a country to tax the income of transnational taxpayers within its territory. It is the embodiment of territoriality principle in international tax law. Its establishment is based on the connection of some economic interests between the tax object and the territory of the tax country. This principle of exercising tax jurisdiction according to the source is also called source taxation. The prerequisite for exercising tax jurisdiction according to the principle of territoriality is that there is an economic source relationship between the taxpayer's income as the object of taxation and the taxing country. These geographical contact signs indicate that there is a source relationship between income and the tax country, such as the location of real estate; The location of the permanent establishment; The location of dividends, interest, royalties, rents, etc. Happen; The location of the debtor or payer, etc. In the theory of international tax law, it is called "income source country" or "income source country". In international tax law, the principle that a country taxes non-resident taxpayer according to the source of income is called "territoriality principle" or "source tax jurisdiction principle".
Fourthly, the exercise of residents' tax jurisdiction.
(1) Determination of the resident status of transnational taxpayers. Because the exercise of residents' tax jurisdiction is based on the existence of tax residence between the taxpayer and the taxing country, and according to the international tax practice, the resident taxpayer in a country's tax law should pay taxes to the country on all income from inside and outside the country, that is, bear unlimited tax obligations; On the other hand, non-resident taxpayer in a country's tax law should only pay taxes to the country for its income, that is, it should bear limited tax obligations. Therefore, the determination of the resident status of transnational taxpayers directly affects the exercise of tax jurisdiction of domestic residents.
1. Confirmation of resident status of natural persons. In international tax law, the following criteria are mainly used to determine the resident status of natural persons:
(1) Living standard. Domicile generally refers to the residence with long-term intention, usually the location of spouse and family. Any natural person who establishes a domicile in a country is a resident taxpayer in that country. Living standards are adopted by France, Germany and other western European countries.
(2) living standards. Residence generally refers to a place where a person stays for a short time and reaches a certain time. Residence does not have the nature of permanent residence. In international tax practice, the residence standard is generally combined with the residence period, that is, the identity of a natural person resident taxpayer depends on his residence time in a country. In terms of residence time, the tax laws of different countries are different, some are half a year and some are one year.
(3) Nationality standard. Nationality is a fixed legal connection between a person and a specific country. The adoption of this standard does not consider whether there is any actual economic interest connection between the taxpayer and the taxing country. Nationality standards are only adopted by the United States, Mexico and other countries. At present, the international common practice is to determine the resident status of natural persons by combining residence and residence time.
2. Confirmation of legal person resident status. The following criteria are mainly used to determine the legal person resident status in the tax laws of various countries.
(1) Standards for the place of registration of legal persons. In other words, the resident status of a legal person depends on the country where the legal person is registered. The United States and Canada are the main representatives of adopting this standard.
(2) The standard of the location of the actual management control center of a legal person, that is, whether the legal person has a management control center in its own country, is used to judge its resident status. This standard is mainly represented by Britain and Germany.
(3) The standard for the location of the corporate headquarters, that is, the location of the headquarters, is the resident company of which country. Japan and France are the main representatives of adopting this standard.
(2) The principle of resolving the conflict of residents' tax jurisdiction. Because the tax laws of different countries adopt different standards to determine the resident status of taxpayers, conflicts of tax jurisdiction of residents will inevitably occur. At present, conflicts are mainly solved by countries stipulating conflict rules in international tax agreements. In this regard, the conflict rules defined in the Model Double Taxation Agreement on Income and Property of the Organization for Economic Cooperation and Development and the United Nations Model Double Taxation Agreement between Developed and Developing Countries are representative.
1. Resolution of identity conflict of natural person residents. Generally speaking, there are two solutions to the conflict of resident status of natural persons. One is that the contracting parties determine through consultation which side the taxpayer should be a resident. The other is the principle of standardized and orderly settlement proposed by adopting two models, that is, the taxpayer's permanent residence should be taken as the standard first; If both contracting parties have fixed residences, the country where the main economic interests are located shall prevail; If it still cannot be solved, the habitual residence shall prevail; If you have a habitual residence in both Contracting States, the nationality shall prevail; If there is dual nationality or nationality, it shall be settled by both parties through consultation.
2. Resolution of the identity conflict of legal person residents. There are also two ways to solve the identity conflict of legal person residents: one is to determine which side the legal person is a resident through consultation between the two parties, and the other is to set a standard in the tax agreement to determine which side the legal person is a resident. Both models take the country where the actual management institution is located as the country of residence, while the bilateral tax agreements concluded between China and Japan, France, Germany and other countries take the country where the head office is located as the standard to solve the conflict of legal person resident status.
V exercising tax jurisdiction over sources of income
(1) Identification of income sources. Identifying the source of income means identifying the geographical indications of income. According to this geographical indication, the country of origin has the right to tax the income obtained by non-resident taxpayer in its own territory. Generally speaking, countries adopt the following criteria to determine different sources of income:
(1) Operating income, the source of which is determined as follows: the location of the business organization; Commodity trading places; The place where the goods are used; Place where the sales contract is signed: the place where the goods are stored before delivery.
(2) For dividends, countries generally take the dividend distribution company as the country where the residents belong as the source. Some countries consider the actual profit source of dividend distribution companies.
(3) Interest, in order to determine the source of interest income, countries mainly adopt the following standards: the actual use place of the loan; The location of the borrower; The place where the interest is paid.
(4) The sources of movable property rent and royalties are generally: the actual use place of the property; The location of the lessee or licensee; Rent or place of payment.
(5) Real estate income generally comes from the location of real estate. (6) Income from stock transfer generally comes from the place where the company is located.
(7) The income of international transportation industry generally comes from the loading places of passengers and goods.
(8) The sources of income from labor services are generally the place where labor services are provided, the place where labor services are used and the place where the labor remuneration payer is located. According to the provisions of China's foreign-related tax law, China's determination of the source of operating profits in non-resident taxpayer shall be based on the establishment of production and operation institutions and places; The identification of the source of investment income should be based on the actual use of funds, property and property rights; The source of income from personal services should not be determined by the place of payment, but by the place of employment and the place where personal services are provided.
Second, the principle of exercising tax jurisdiction over the source of income. According to the principle of territoriality, the taxing country has the right to exercise the tax jurisdiction of the source of non-resident taxpayer's income from its own territory. The income of non-residents in the source country generally includes operating income, investment income, labor income and property income.
1. Non-resident business income tax generally refers to the income obtained by taxpayers engaged in industrial production, transportation, agriculture, forestry, animal husbandry and fishery, financial business, service industry and other enterprise activities. In international tax law, the principle of permanent establishment is adopted by all countries.
(1) principle of permanent establishment. The so-called permanent establishment principle refers to the principle that the source country only taxes the business income obtained by non-resident taxpayer through the activities of a permanent establishment located in the taxation country. This principle shows that whether non-resident taxpayer has a permanent establishment in the source country is a prerequisite for the tax-collecting country to collect operating income from non-resident taxpayer in its own country. Therefore, permanent establishment is an important concept in international tax law. The so-called permanent establishment refers to the fixed business place where an enterprise conducts all or part of its business activities. Its scope generally includes: management places, branches, offices, factories, workshops, mines, oil wells, gas wells, quarries, construction sites and so on. Because the permanent establishment is easy to identify the source of business income, all countries expand or narrow the scope of the permanent establishment according to their own specific conditions. According to the provisions of China's Income Tax Law on foreign-invested enterprises and foreign enterprises, institutions and places are set up in China to engage in production and operation.
(2) Effective connection principle. According to this principle, the source country will pay attention to the income from non-resident taxpayer's "effective contact" with the permanent institutions located in its own territory. Income belonging to a permanent establishment may be taxed. The so-called "actual connection" refers to the actual connection between the shares, creditor's rights, property rights and property rights owned or managed by the institution or place on the basis of obtaining profits (dividends, bonuses), interest, rent, royalties and property income. According to China's Income Tax Law on Enterprises with Foreign Investment and Foreign Enterprises, in China, foreign enterprises' production, business income and other income, as well as profits (dividends, bonuses), interest, rent, royalties and other income actually related to institutions and places established by Chinese enterprises in China, are taxable income of foreign enterprises.
2. Non-resident investment income tax. Taxpayers' income from investment refers to dividends, interest, royalties and other income obtained from passive investment activities. Non-resident taxpayer's investment income in the source country is generally taxed by withholding, that is, the payer is obliged to withhold the income tax payable by non-resident taxpayer when paying these funds to non-residents. The above taxes are usually called withholding tax internationally. This is a way to control income tax collection from the source. The withholding tax rate is generally lower than the enterprise income tax rate, and it is often levied in full according to the income without deduction, which has the characteristics of assessing withholding income tax. According to the provisions of China's foreign-related tax law, the above-mentioned investment income obtained by foreign enterprises without institutions or places but without actual contact with their institutions or places is the final tax payment.
3. Non-resident individual income from labor services is taxed. Labor income includes independent labor income and subordinate labor income. The tax laws of various countries and the two model books stipulate that the source country should tax the independent income obtained from personal services in non-resident taxpayer, provided that the non-resident individuals who provide services stay in China for a certain number of days or have a fixed base in China to engage in such independent labor activities. Non-resident taxpayer's income from subordinate personal services obtained in the country of origin, both model laws stipulate that wages, salaries and other income obtained by non-residents in another country can be taxed in the country of origin, but if the following three conditions are met at the same time, it should be taxed in the country of residence: the continuous or cumulative stay in an accounting year does not exceed 183 days; The person who pays his remuneration is not a resident of another country; The remuneration shall not be borne by the employer's permanent establishment or fixed base in the country of origin.
4. Non-resident property income tax. With regard to the income from non-residents' property, especially from the transfer of real estate, the international common practice is to tax the country where the property is located. However, according to the provisions of the two model laws, the property represented by ships, aircraft and ships engaged in international transportation, as well as the movable property attached to the above-mentioned ships, aircraft and ships, should only be taxed in the contracting state where the actual management institution of the enterprise is located.
Legal basis:
People's Republic of China (PRC) tax collection management law
Article 1 This Law is formulated with a view to strengthening the administration of tax collection, standardizing tax collection, safeguarding national tax revenue, protecting the legitimate rights and interests of taxpayers and promoting economic and social development. Article 3 The collection, suspension, reduction, exemption, refund and supplementary payment of taxes shall be carried out in accordance with the law. Where the State Council is authorized by law, it shall be implemented in accordance with the administrative regulations formulated by the State Council.
No organ, unit or individual may, in violation of the provisions of laws and administrative regulations, arbitrarily make decisions on tax collection, suspension, tax reduction, exemption, tax refund, overdue tax and other decisions inconsistent with tax laws and administrative regulations. Article 4 Units and individuals that are obligated to pay taxes according to laws and administrative regulations are taxpayers.
Units and individuals that have the obligation to withhold and pay taxes according to laws and administrative regulations are withholding agents.
Taxpayers and withholding agents must pay taxes, withhold and remit taxes and collect and remit taxes in accordance with the provisions of laws and administrative regulations. Article 28 The tax authorities shall collect taxes in accordance with the provisions of laws and administrative regulations, and shall not levy, stop, overpay, underpay, pre-levy, postpone or apportion taxes in violation of the provisions of laws and administrative regulations.
The taxable amount of agricultural tax shall be verified in accordance with the provisions of laws and administrative regulations.