- 期刊
論國際稅法中的「受益所有人」概念
Beneficial Owner in the Field of International Tax Law
摘要
「受益所有人」是一個在國際稅法中用來限制對境外企業支付利息、股利和權利金的重要概念。大體上，自1977年起，OECD的避免雙重課稅協定範本就使用了受益所有人的概念；這顯然也連帶地影響了歐盟2003年儲蓄稅指令以及聯合國的避免雙重課稅協定範本，將之引入。然而，無論是OECD或是聯合國，都不存在著對這一概念的完整定義，只有歐盟儲蓄稅指令設有相對較為完整之定義。作為一個起源自普通法體系的法律概念，其應當如何在不同法律環境及背景中被解釋和適用，即有深入探究之空間。法國近期司法實務，隨著中央行政法院「蘇格蘭銀行」一案之確定判決，再次掀起了此一概念在內國法上解釋適用之討論。隨著我國與法國間避免雙重課稅協定之簽署及生效，此一問題在我國不僅具有學術上之趣味，更將成為我國與歐盟重要成員國家間相關貿易及稅務爭訟案件的重要爭點。尤其是在我國與法國內國法制中均不存在「受益所有人」概念的情形下，課稅實務上的爭議恐怕難以避免。本文擬自「受益所有人」概念的形成過程出發，探究此一概念在英美法上之起源及使用，並試圖和OECD避免雙重課稅條約範本之規定相互連結，以檢討相關問題在我國與法國內國法秩序中所可能面對之疑難，俾作為我國涉外課稅實務問題之參考。
並列摘要
”Beneficial Owner”, an important concept under international tax laws, is meant to limit the distribution of interests, dividends and royalties of offshore enterprises. Since 1977, the OECD ”Model Tax Convention on Income and on Capital” has adopted the concept of Beneficial Owner, which apparently had an influence on the incorporation of the same concept in the Model Double Taxation Convention between Developed and Developing Contries of United Nations and 2003 European Savings Tax Directive. However, there is no complete definition of this concept either in Model of OECD or United Nations. There is only a definition comparatively complete in the directive of EU. As a concept generated from common law system, how such can be interpreted and implemented in different legal schemes is an issue worth further elaboration. Triggered by the conclusive judgment of Conseil d'Etat in the decision of ”Bank of Scotland”, the discussion on the implementation of such concept in domestic laws has been recently re-emerging. As for the execution and taking effect of the ”Agreement for Avoidance of Double Taxation and Prevention of Fiscal Evasion with Respect to Taxes on Income” between Taiwan and France, the study of this issue would not be only for academic interest but would also become an important concern in potential trade and taxation disputes between Taiwan and EU member states. Particularly, as neither Taiwanese nor French legal systems include the concept of Beneficial Owner, the emergence of disputes in taxation practice would be inevitable. In the first part, this article will elaborate on the origin and implementation of the concept of Beneficial Owner. Further, by making reference to the OECD ”Model Tax Convention on Income and on Capital”, this article will review the potential issues arising from this concept, both from the perspectives of Taiwanese and French domestic legal systems. It is the author's hope that such review may provide a valuable reference for Taiwan's foreign taxation practice.