OECD支柱一超額利潤徵稅權規則的國內適用研究

Research on the Domestic Application of the Rule of Taxing Right to Residual Profits in OECD Pillar One

OECD支柱一金額A旨在向市場國分配超大型跨國集團部分超額利潤的徵稅權，相關規則如何在包容性框架成員境內順利適用，成為現階段的關鍵議題。然而，超額利潤徵稅權在課稅客體、納稅主體等實體性事項以及聯結度、稅基確定等技術性事項上，都與我國企業所得稅法的既有規則存在著實質衝突。超額利潤徵稅權的特殊性，導致無法依照我國傳統稅收協定的直接適用模式，而是需要找尋兼具正當性和可行性的國內適用方案。立足於我國條約適用和稅收協定適用的基本立場，綜合考慮我國稅收立法傳統和既有法律規範，由全國人大常委會決定批准《實施支柱一金額A的多邊公約》，配合國務院制定行政法規，是超額利潤徵稅權規則在我國境內適用的可行路徑。

OECD Pillar One Amount A allocates taxing rights over mega MNCs’residual profits to market jurisdictions. The application of the rule of taxing right to residual profits within the member jurisdictions of the Inclusive Framework is the key issue at this stage. However, compared with China’s Enterprise Income Tax Law, the taxing right to residual profits differs in substantive matters such as the taxable income and taxpayers, and technical matters such as the nexus and the tax base determination rules. Due to the special nature of Amount A, it is difficult to follow the direct application model of traditional tax conventions, but rather need to find a proper domestic application with both legitimacy and feasibility in China. Its domestic application needs to be based on China’s basic position on applying treaties and tax conventions, as well as on tax legislation practices and legal norms. Therefore, the feasible path for applying Pillar One Amount A is for the Standing Committee of the National People’s Congress to decide to ratify the Multilateral Convention to Implementation Amount A of Pillar One in conjunction with the State Council’s enactment of administrative regulations.