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境外投资者购买和转让中国境内公司股权的交易正日渐频繁,随之而来的中国税收问题变得越来越重要。《外商投资企业和外国企业所得税法》(下文简称《外税法》)及其《实施细则》对在中国境外转让中国股权的收入是否征税没有明确规定,国家税务总局目前对《外税法》有关条款的解释也值得商榷。从税收法定主义和税法解释原则分析,《外税法》第19条中的“其他所得”并未包括非居民股权转让所得,因此,中国政府有必要通过修改法律明确此项纳税义务。
As foreign investors purchase and transfer their shares in Chinese companies are becoming increasingly frequent transactions, the tax issue in China is becoming more and more important. The Law of the People’s Republic of China on the Income Tax of Foreign-invested Enterprises and Foreign Enterprises (hereinafter referred to as the “Foreign Tax Law”) and its Implementing Regulations have no explicit provisions on whether the revenue from the transfer of Chinese equities out of China is levied or not. Currently, the State Administration of Taxation The interpretation of the terms is also debatable. From the tax statutory principle and the tax law, the “other income” in Article 19 of the “Foreign Tax Law” does not include the income from the non-resident equity transfer. Therefore, it is necessary for the Chinese government to clarify this tax obligation by amending the law.