稅收優惠的規範審查與實施評估－－以比例原則為分析工具

Norms Review and Practice Assessment of Tax Incentives: Principle of Proportionality as a Tool of Analysis

稅收優惠本質上是一種租稅特權，違背量能課稅與平等課稅的根本理念，其合法性與正當性在於它所承載的特定價值追求。運用稅收優惠實現其價值追求時，不可避免地與稅法的其他價值相衝突，甚至以犧牲一些稅法價值追求為代價，造成不同主體之間的利益失衡。作為利益權衡工具的比例原則，天然地與稅收優惠相關聯，可為稅收優惠的“所得”與“所失”提供一種審查方法，防止稅收優惠對稅法根本理念的背離，不至於動搖稅法的確定性、安定性，從而危及稅收法定主義在稅法中的地位。現行稅收優惠無論是其規範設計還是規範實踐均難以通過比例原則的審查，突出地表現為優惠目的立法缺位、優惠總量失控與支出隨意以及利益衡量機制的缺失。要想實現稅收優惠與比例原則的對接，必須以比例原則為指引，從觀念上和制度上對稅收優惠予以規制。在適當性方面，注重稅收優惠目的整體化構建。在必要性方面，關注稅式支出的常態化管理。在均衡性方面，重視利益均衡的法律機制建立。Tax incentives in essence are a kind of tax privilege, which is against the fundamental concepts of taxation on capability and taxation equality, and its legal justification is that it conveys specific value pursuit. When using tax incentives to achieve its value pursuit, it inevitably conflicts with other values of tax law, even sacrifice some value pursuits, which causes interest imbalance between different subjects. As a tool of interest balance, principle of proportionality is associated with tax incentives naturally, which can provide a method of examination for tax incentives between “gains” and “losses”, and it can prevent tax incentives from deviating fundamental concepts, shaking the certainty, stability of the tax law and threatening the status of tax legal prescription. Current tax incentives, whether in the design of norms or in practice, are difficult to get through principle of proportionality review, which is prominently characterized by legislative vacancy of incentive purpose, losing control of incentive total, spending at random and the lack of mechanism to measure interest. To play a good role of tax incentives, principle of proportionality is a necessity, and it must regard the proportion principle as the guidance to regulate tax incentives in perception and system. In terms of appropriateness, we should lay emphasis on building purposes of tax incentives in integration. In terms of necessity, we should pay attention to normalized management of tax incentives. The establishment of legal mechanism of interests balance shall be emphasized for the purpose of balance.