Article 1
Research on Legal Issues of E-commerce Taxation in China
The tax policy of e-commerce has been widely valued by countries and international organizations all over the world. This paper analyzes the international attitude towards whether e-commerce should be taxed, studies the challenge of e-commerce to China's traditional tax system, and connecting with China's actual national conditions, puts forward some principles and countermeasures that China should adopt to solve the tax problem of e-commerce.
Keywords: e-commerce tax law
Electronic commerce (electronic commerce) is a brand-new enterprise management model that began to rise in the United States, Canada and other countries in the early 1990s. The development of e-commerce provides a promising global electronic virtual market for enterprises, which greatly improves the efficiency of business activities. However, with the rapid development of e-commerce, it poses new challenges to the traditional tax system, causes some tax problems and has a certain impact on the current tax system.
First of all, there are different attitudes towards whether e-commerce should be taxed.
The definition of e-commerce can generally be divided into broad sense and narrow sense. Broadly speaking, e-commerce refers to all business activities conducted by using electronic technology. Including commercial transactions conducted by the parties to the transaction by telephone, telex and fax. E-commerce in a narrow or strict sense refers to commercial transactions based on the Internet. This is the fastest-growing and most promising form of e-commerce and the mainstream of e-commerce. The e-commerce discussed in this paper refers to the narrow sense of e-commerce.
At present, there are two main attitudes towards e-commerce taxation in the world: one view is that developed countries insist on not taxing e-commerce transactions, because these countries implement a tax system with income tax as the main body, and e-commerce has less tax losses for their own countries, which on the contrary is conducive to these countries selling electronic products to other countries. The representative of this view is the United States. The American Electronic Advisory Council strongly opposes the taxation of online sales. In their view, the current e-commerce is just a rudiment, which has not yet laid a solid foundation, and actually accounts for a very low proportion of retail sales. If e-commerce is taxed now, it will lead to a decline in online sales.
On the other hand, developing countries insist on taxing e-commerce, because these countries implement a tax system with turnover tax as the main body. As a net consumer of electronic products, the development of e-commerce will lead to the loss of turnover tax. They believe that online sales, like other sales channels, cannot be exempted from sales tax, otherwise, for traditional businesses, they will compete unfairly with online vendors. As the main source of local fiscal revenue, sales tax is the financial basis for the public to enjoy various social services. If * * * can't achieve fiscal revenue, the people will suffer in the end.
At present, the development of e-commerce in China is still in the primary stage. In April 2000, Xiang Huaicheng, then Minister of Finance of China, said at the Enterprise Summit of the World Economic Forum: Internet taxation is an important issue; Taxpayers need vouchers, and there is no paper on the Internet, which is very difficult. China is studying this problem; China doesn't want to give up the right to tax, but also wants to make the Internet in China develop faster. Xiang Huaicheng said that China will make a decision on whether to levy, levy more or levy less on the basis of learning from the experience of other countries. Therefore, it is necessary for us to make an in-depth study of e-commerce taxation in combination with the actual situation in China, and formulate e-commerce taxation countermeasures suitable for China's national conditions.
Second, e-commerce challenges to China's traditional tax system
A country's tax jurisdiction conflicts.
The so-called tax jurisdiction refers to all kinds of powers owned by the state or * * * in taxation, which is the embodiment of the state in taxation. At present, all countries in the world have determined the principles of active tax jurisdiction and resident tax jurisdiction, or exercise both source tax jurisdiction and resident tax jurisdiction at the same time. China is a country that chooses dual jurisdiction. However, in the e-commerce environment, it is difficult to judge the place of transaction and the place where goods and services are provided, and there are disputes among countries on the determination of income sources, which will inevitably weaken the tax jurisdiction of the source countries. Therefore, some countries, such as the United States, put forward that the tax jurisdiction of residence is superior to the tax jurisdiction of source, and tend to strengthen the tax jurisdiction of residents rather than the tax jurisdiction of source.
However, the tax jurisdiction of residents and citizens is also facing its own challenges. First of all, although the identity of residents is usually judged by the place where the company is registered, many countries still insist on judging the identity of residents by the standards of supervision and control. The corporate tax laws of most countries allow foreign citizens to serve as directors of their own companies, and also allow board meetings to be held in countries other than their countries of residence. The widespread use of video conferencing and other technologies makes the tax jurisdiction of residents invalid. Secondly, in e-commerce, companies can choose the place where the transaction takes place. For tax avoidance or other reasons, the company may transfer its trading activities to areas with weak tax jurisdiction. In addition, if the tax jurisdiction of residents is unilaterally emphasized, developing countries, as importers of e-commerce goods and services, will lose or weaken their tax jurisdiction over foreign enterprise income tax, which is obviously not conducive to the economic development and international competition of developing countries.
(2) It is difficult to determine the location of the permanent establishment.
The so-called permanent establishment refers to the fixed place where an enterprise carries out all or part of its business, including business premises, branches, offices, factories, business premises, etc. The concept of permanent establishment mainly includes two points: first, a fixed place of business or actual place of business; The second is an independent agent who can sign contracts on behalf of the company. If an enterprise has a permanent establishment in the non-resident country where its income comes from, and its business income comes from the permanent establishment, it can be judged that the income comes from the territory of that country, and that country can levy taxes on its exercise of income source tax jurisdiction. However, in e-commerce, you can set up or rent a server at will in any country and set up a commercial website, which challenges the traditional definition of a permanent establishment. In addition, the provision of products and services in e-commerce is only done through websites and related software. Parties in different countries can negotiate, order and pay directly on the computer through the Internet. Therefore, the traditional way of setting up business premises, fixed institutions or entrusted agents in the host country has lost its significance.
3. Taxable items are in disorder.
The object of taxation refers to the object of taxation, which is the basis of taxation, the main symbol to distinguish one tax type from another, and one of the basic elements of the tax system. However, e-commerce has changed the inherent form of products and made the purpose of taxable items qualitatively ambiguous. E-commerce blurs the difference between sales profit, labor remuneration and royalties. Due to that development of modern information and communication technology, various tangible commodity such as books, newspaper, audio-visual products and intangible commodities such as computer software and proprietary technology, as well as various consultation service, can be directly transmitted on the Internet through data processing. Traditional tax rules that distinguish the nature of transaction income according to the nature of transaction objects and the form of transaction activities are difficult to apply to digital products and services traded online.
Fourth, the difficulty of tax collection and management has increased.
Law of People's Republic of China (PRC) on Tax Collection and Administration, enacted in 1992 and revised in 1995. After years of development and improvement, China has now established a relatively complete legal system for tax collection and management. However, in the face of e-commerce, the traditional tax collection and management is facing great challenges.
First of all, the current tax registration method is not suitable for e-commerce. E-commerce deals through information network, and its business scope is often unlimited, or it cannot be approved by the industrial and commercial departments in advance. Therefore, the current tax registration method of tangible trade is no longer applicable to e-commerce, and it is impossible to determine the taxpayer's business situation.
Secondly, the current account book voucher invoice management and tax declaration methods are not suitable for e-commerce. In Internet e-commerce, account books, vouchers and invoices all exist in the intangible form of electronic data, and the digitalization of such online vouchers may be modified at any time without leaving any trace, which makes the taxation lose a reliable auditing basis.
In addition, the identity and geographical location of customers are difficult to determine, and it is even more difficult to declare and pay taxes. There is no concept of national boundaries on the internet. If the existing tax principles are applied to e-commerce tax without modification, enterprises with tax obligations may pretend to supply goods abroad to defraud export tax rebates, or evade import duties by concealing the real consumption place of goods.
Third, suggestions to solve the tax problems of e-commerce in China.
In view of the many problems existing in e-commerce taxation, we should plan ahead as soon as possible and solve them from the following aspects.
A clear attitude towards whether to levy taxes.
At present, there is no clear attitude about whether to tax e-commerce in China, but the author believes that in the long run, it is an inevitable trend to tax e-commerce, and the problem is only when and how to tax.
First of all, from the development speed and trend of e-commerce. E-commerce came into being less than 20 years ago, but its development speed is amazing, and its proportion in the whole trade is rising rapidly. In the future, e-commerce may catch up with or even surpass traditional trade. If there is no tax, the national income will be greatly reduced, which will affect the investment in public utilities.
Secondly, from the perspective of national laws and regulations. China's Constitution stipulates that "China people and China citizens have the obligation to pay taxes according to law", and other separate tax laws and regulations also stipulate the scope of citizens' tax payment. E-commerce only adopts more advanced trading methods and conducts transactions through the Internet, but its essence has not changed. Electronic transactions are not beyond the scope of taxation stipulated in the tax law and should also be taxed.
In addition, from the international attitude towards e-commerce tax issues. In foreign countries where e-commerce is relatively developed, the taxation of e-commerce has not only been put on the agenda, but also entered the substantive operation stage. For example, in the report of Taxation and Internet, the Australian Taxation Bureau also tends to levy taxes on online transactions and fundamentally reform the current tax system.
Therefore, at present, China should first show its attitude of reserving the right to tax on e-commerce, and then encourage all sectors of society to carry out research on e-commerce tax issues, strengthen international cooperation, keep abreast of the latest developments in various countries, and work out a tax plan suitable for China's national conditions and conducive to the development of e-commerce as soon as possible.
Second, the establishment of e-commerce tax principles suitable for China's national conditions
Although the scale of e-commerce in China is limited at present, we should also determine the principles of e-commerce taxation suitable for China's national conditions as soon as possible and clarify the development direction of e-commerce taxation. China e-commerce tax principles should include:
1. Tax principle * * *.
Tax jurisdiction is the concrete embodiment of the country's exercise of * * * in the economic field. In the field of e-commerce, China will be a net importer for a long time. Therefore, when formulating the e-commerce tax scheme in China, we should try our best to make our tax system consistent with the existing international tax principles on the premise of ensuring national interests.
2. The principle of tax neutrality.
At present, the authorities in the world and those issuing internet trade's tax policies all emphasize the elimination of tax barriers for the development of e-commerce and adhere to the principle of tax neutrality. Tax neutrality includes two basic meanings: first, national taxation should try not to bring other extra losses to taxpayers or society; Second, taxes should try to avoid affecting the choices of producers and consumers. E-commerce tax policy should follow the principle of neutrality and tax according to the nature of transactions to avoid the influence of transaction forms.
3. Based on the current tax system principle.
As a new trade mode different from traditional commerce, e-commerce is still a commodity and service that people often use in the existing society. Its content and essence have not changed. The current tax laws and regulations and the tax principles they embody are social norms of social production and trade activities, which are basically applicable to e-commerce. We should continue to use the current tax laws and regulations and tax principles to explain, analyze and study the tax problems of e-commerce.
Third, the construction of e-commerce tax legal system.
Most of the current tax laws are established under the background of traditional trade environment, so it is necessary to adjust the tax legal system under the environment of e-commerce to make it more suitable for the development of e-commerce.
1. Modify and improve the concepts related to e-commerce taxation in the tax law.
At present, China's e-commerce tax should focus on the revision and improvement of existing tax laws and regulations. By redefining and explaining the connotation and extension of some tax concepts related to e-commerce in the current tax law, such as "permanent establishment", "resident", "source of income", "commodity", "labor service" and "franchise", the basic principles and provisions of the current tax law are revised and deleted, and the corresponding provisions applicable to e-commerce are added to properly handle the tax legal problems caused by e-commerce.
2. Modify the substantive law.
According to the development of e-commerce, timely adjust China's tax substantive law. China's tax substantive law mainly includes circulation tax law, income tax law and other tax laws. In e-commerce tax legislation, we should consider the revision, change, supplement and perfection of substantive law according to the different situations affected by e-commerce.
3. Further improve the tax collection and management law.
In the tax collection and management of e-commerce, because electronic transactions are conducted in cyberspace in the form of data exchange, it is difficult for tax authorities to track, master and identify the e-commerce transactions of buyers and sellers. Therefore, it is necessary to revise the current tax collection and management law and make some principled and forward-looking provisions on the above issues. We can consider focusing on the payment system, so that the tax authorities can grasp the information of e-commerce transactions from the information stored in banks and determine the tax amount accordingly. In addition, the right of tax authorities to check electronic transaction data should be confirmed in the law. It should be clearly stipulated in the tax clause that the tax authorities have the right to consult or copy the electronic information of taxpayers in accordance with legal procedures, and have the obligation to keep it confidential for taxpayers.
the second
Legal definition of e-commerce subject
Abstract: With the development of science and technology, the application of computers in the commercial field has been quite large. With the deepening of Chinese scholars' research in the field of e-commerce, its legal theoretical framework has also begun to develop in depth. Compared with traditional commercial activities, e-commerce has more complicated legal relations. Therefore, it is an important task to deconstruct the dynamic and static aspects of e-commerce from a legal perspective and build a good legal system. This paper attempts to analyze the legal definition of different participants in e-commerce.
[Keywords:] E-commerce; Subject; Internet network
On the one hand, the development of e-commerce is based on the improvement of computer and network technology, on the other hand, it is also guaranteed by the constantly improving e-commerce environment. The so-called e-commerce is essentially a special commercial activity, that is, on the electronic platform, with the help of data to complete the modern commercial behavior of commerce. There are different ways to classify the types of e-commerce according to different standards, among which it is most practical to classify them according to different e-commerce subjects. Therefore, studying different subjects in e-commerce is an important aspect of deconstructing and reshaping the legal system of e-commerce.
According to different subjects, e-commerce can be divided into B2B business-to-business, B2C business-to-consumer, C2C person-to-person and other different types of transaction modes. The legal rules for adjusting commercial activities between different subjects are also different. It is necessary to analyze the current situation and situation of trading methods of different subjects.
First, the content of e-commerce subject
In essence, e-commerce is a special business behavior. From the legal point of view, the subject of e-commerce refers to the party that enjoys certain civil and commercial rights and undertakes civil and commercial obligations as one of the constituent elements of the legal relationship of e-commerce. Of course, when defining the subject of e-commerce, we should judge it not only from the appearance of behavior, but also according to the facts of commercial relations.
The subject of e-commerce under the network environment has the following characteristics:
1 virtual.
Compared with the subject in traditional business activities, the subject of e-commerce has certain virtuality due to the application of the network. Although the final transaction between the two parties is still realistic, it is different from traditional business activities in behavior. The existence of this bit-based concept makes it more difficult for the law to preliminarily judge its real commercial ability and control every transaction link.
2 Multi-faceted.
Different from the traditional commercial behavior, the main body of e-commerce also includes other participants, such as network platform service institutions, construction teams, management institutions and other parties that have a positive impact on the e-commerce environment. This complex relationship has also become a difficult point to be overcome in the construction of e-commerce legal system, especially in the determination of the responsibilities of all parties.
3 development.
E-commerce is an open system. With the development of science and technology and the continuous progress of network technology, it will also have an important impact on the operation mode of e-commerce. In order to promote an effective and safe trading environment, the trading mode may be more complicated, so more subjects may participate in the legal relationship of e-commerce, which makes the subjects of e-commerce constantly expand their suites.
Second, the classification of e-commerce subjects
The traditional commercial subject refers to the owner of rights and obligations in commercial legal relations. The subject of e-commerce not only refers to both parties to direct transactions, but also includes participants in commercial legal relations who have an important influence on the completion of specific e-commerce behaviors. From this perspective, the main body of e-commerce can be divided into the following categories:
1 transaction entity
Generally speaking, the transaction subject refers to the seller and buyer of the transaction, that is, the main actors in e-commerce. The trading subject is similar to the traditional trading subject in appearance and essence. As a special business activity, e-commerce still needs to fundamentally meet the requirements of traditional commercial law. Except for the individual who is a party to the transaction, other commercial subjects need to register according to the existing commercial law to obtain commercial qualifications, and at the same time, they need to have commercial ability to ensure their performance ability. Trading entities can be divided into the following categories:
1. Commercial organization: a legal person or partnership organization established in accordance with the law, engaged in business activities, enjoyed rights and assumed obligations in accordance with the relevant provisions of the Commercial Law. With strong financial and technical support, commercial organizations are more likely to develop e-commerce and become the most active party in e-commerce.
2. Individuals: E-commerce has two trading modes: C2C and B2C, and both ends of the transaction are individuals. In e-commerce, most individuals appear as users and accept goods or services. In some cases, individuals who are sellers use online platforms to provide goods or services to others.
Third, the service subject.
The so-called service subject refers to providing technical support for the implementation of e-commerce, so as to effectively obtain network and control information and enable both parties to reach a transaction quickly. It is the existence of this subject that makes the legal regulation of e-commerce very different from the traditional commercial law. This brand-new subject has an influence that cannot be underestimated in the implementation of e-commerce, and it is even more decisive for some disputes.
1. Internet Service Provider: Internet Service Provider (ISP) refers to the providers that provide infrastructure services such as information connection and data access for e-commerce, including network infrastructure operators, bulletin board system system operators, access service providers and host service providers. A good basic environment is the key to the effective implementation of e-commerce, and the legal regulation of network service providers is indispensable.
2. Internet content provider: Internet content provider ICP refers to the person who provides all kinds of substantive information content for e-commerce, and all kinds of information content and different information forms in e-commerce are provided by such subjects. On the surface, the Internet content provider is a person who directly transmits information to the buyer beyond the seller of the transaction, so the fault of the Internet content provider and the transaction subject is the most difficult place to distinguish, and how to regulate it legally is very important.
Fourth, the subject of supervision.
The so-called regulatory subject refers to the subject who is responsible for all aspects of e-commerce and ensures the good performance of obligations under the e-commerce environment. E-commerce has become the main way of economic development, and the use of the Internet for business transactions has attracted much attention because of its convenient and efficient advantages. With all kinds of disputes, due to the technical loopholes and virtual characteristics of e-commerce, there are more and more phenomena of infringing on the business secrets of both parties, threatening the security of transactions, infringing on personal information, property information and other legitimate rights and interests. Therefore, it is of positive significance to establish and maintain the order of e-commerce and form a good supervision system for promoting the good development of e-commerce.
* * * plays an important role in the supervision of e-commerce, which involves not only business transactions and business information, but also other social factors such as personal information. * * * As the most effective regulatory agency, it can form a strong guarantee for the development of e-commerce. Among them, the protection of public information and state secrets, the protection of third-party payment platforms and the prevention of cyber crimes are all important aspects. Therefore, it is urgent to strengthen the enforcement of e-commerce and promote the improvement of network environment.
At the same time, as consumers, individuals should also actively use relevant laws to safeguard the legitimate rights and interests of consumers, supervise and report all kinds of behaviors and information that violate laws and regulations, form a good interactive system, and promote the development of e-commerce.
refer to
[1] Wang, Introduction to Commercial Law [M], Beijing: Tsinghua University Publishing House, 2007.438+05438+0.
[2] Qi Aimin, Principles and Practice of Electronic Commerce Law [M], Wuhan: Wuhan University Press, 2009.438+0.