論破產稅負轉嫁

On Tax Shifting of Bankruptcy

納稅人破產後，當稅收債權人獲得較普通破產債權人更優越的清償待遇時，將發生破產納稅人稅負向普通破產債權人轉移的破產稅負轉嫁現象，其與傳統的稅負轉嫁具有形式相似性。破產稅負轉嫁是發生在破產司法程序中強制性的、法定的稅負轉移，與傳統稅負轉嫁所遵循的市場邏輯不同，納稅人在破產稅負轉嫁中無利益動機。破產稅負轉嫁有違稅收負擔公平原則，對普通破產債權人有失公允，立法應當予以相應調整以避免之。對此，宜取消中國大陸當前稅法中的稅收優先權，針對回歸利息定位的稅收滯納金適用破產停止計息規則，破產程序啟動前的稅收罰款在納稅人破產程序中劣後清償。

After taxpayer goes bankrupt, when the tax creditor gets better payment treatment than the ordinary bankruptcy creditors, the phenomenon of tax shifting of bankruptcy enterprises to the ordinary bankruptcy creditors will occur, which has the form similarity with the traditional tax shifting. The tax shifting of bankruptcy is a compulsory and legal transfer of tax burden in the bankruptcy judicial process, which is different from the market logic followed by the traditional tax shifting, and taxpayers have no profit motive in the tax shifting of bankruptcy. The tax shifting of bankruptcy violates the principle of fairness of tax burden and is unfair to ordinary bankruptcy creditors, so the legislation should be adjusted accordingly to avoid it. In this regard, it is advisable to cancel the right of priority for taxation in the current tax law, apply the bankruptcy cessation interest bearing rule to the tax delay charge which returns to the interest positioning, and the tax penalty before the bankruptcy procedure starts should be in the later liquidation in the bankruptcy procedure of the taxpayer.