“受益所有人”在中国的适用与解释.docVIP

“受益所有人”在中国的适用与解释 　　摘 要：中国于近年内制定发布了关于如何解释税收协定中的受益所有人这一概念的部门规章。然而，有关这一概念的界定问题有待更为细化的阐释和说明。同时，考虑到部门规章的法律效力问题，有必要在税法上对其进行界定。 　　关键词：受益所有人；部门规章；国内法解释；中介公司 　　Abstract：China had issued departmental rules to interpret the term beneficial owner in recent years while more instructions should be added to explain it， and it is necessary to prescribe the beneficial owner with the tax law considering the legal force of departmental rules. 　　Key Words：beneficial owner；departmental rules；domestic law meaning；intermediary 　　The Application and Interpretation of Beneficial Owner in China 　　--Considering the New Trends in the OECD Model Tax Convention 　　1.The Need for Interpretation of Beneficial Owner 　　Beneficial owner is one of the most important terms included in tax treaties. It is used to limit the benefit of reduced withholding taxes on passive income （i.e. dividends， interest and royalties） to recipients who are beneficial owners of the income. Notwithstanding the concept is widely adopted in most bilateral treaties， it is defined clearly in none of them. Even the OECD has not succeeded in coming up with an explicit meaning of that. The UN Model Convention Commentary on beneficial owner is mainly based upon the OECD commentary. China has entered into double taxation treaties with probably more than 90 countries. And there has been a definition on beneficial owner in Chinas departmental rules. These rules are of great value in legal practice between China and other Contracting states in recent years. But there are still several problems waiting to be solved to reduce the uncertainty of beneficial owner， considering the new trends in the OECD Model Tax Convention. 　　2. The Development of Chinas Departmental Rules on the Term Beneficial Owner 　　The State Administration of Taxation of China issued the Notice of the state Administration of Taxation on How to Understand and Determine the Beneficial Owners in Tax Agreements （Letter No. 601[2009] of the State Administration o