“视为”的税法评判与纳税人财产权保护

"视为"一词常常被用来表达法律拟制,类推适用、推定及注意规定等法律意涵却易被人们忽略。在不同的法律意涵下,"视为"的构成要素及法律效果迥异。现有的税收规范性文件存在"视为"的表达内容混乱、滥用"视为"僭越税收立法权及"视为"的使用理由列示不充分等问题,有必要重新审视"视为"正当性适用的法治构造。建立税收规范性文件的备案审查机制、列示"视为"使用的正当理由、廓清"视为"的涵义指向与形式外观是对税法中"视为"正当性适用法治构造的有效路径。

Tax Law Judgment on "Regarding as" and Protection of Property Right of Taxpayers

Regarding as" is used to indicate legal fiction, but other legal implications contained in the word are ignored, such as analogy suitability, presumption and caution regulation. Where "regarding as" indicates different content, different constitution and effect will be brought. There are many problems with tax normative documents, such as the content of "regarding as" in tax normative documents being obscure, arrogation of tax legislative power by abuse of "regarding as" and the failure in presenting the reasons to use "regarding as". Therefore, it is necessary to review the structure of rule of law and propose the effective path for the justifiable application of "regarding as" by constitution of review mechanism for tax normative documents, presentation of the reasons for the application and clarification of the content as well as the proforma of "regarding as".