中、韩、美实施《海关估价协议》的立法与执法比较——从涉特许权费、软件费、生产援助的热点案件说起
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摘要
特许权费、许可证费、软件费、海关法上的援助等项目是否应当计入进口商品的完税价格,是近期海关估价的热点问题,在其他入世较早的国家中也是争议焦点。经过对中国、美国和韩国实践的比较,我们可以发现中国偏离了《海关估价协议》,存在双重征税。从企业的角度来说,的确有将货款作为特许权费进行支付降低税负的动机,但是不能因为企业的这种冲动就把所有的特许权费计入到成交价格之中,因为这种做法必然会造成同一种费用既被作为货物又被作为服务处理的矛盾和冲突。许多跨国公司及科技企业的发展也都会因为这项政策而受到重大的影响。另一方面,海关有强烈的意愿要扩大《海关估价协议》项下的补税,特许权费成为关注的重点。
Whether royalties,license fees,software fees and assist should be included in customs value is recently a hot issue in customs valuation in China as well as in those countries that entered into the WTO earlier. Through a comparison among China,the US and South Korea in the practice of customs valuation,it is discovered that China deviates from the rules provided in CVA and imposes duplicate taxation. From the perspective of businesses,there exists the intention to reduce the tax burden by disguising the payment for the goods as royalties and license fees. However,the intention should not be taken as the ground to calculate the royalties and license fees into the transaction value since this practice will inevitably lead to the conflict or dilemma that the same payment is dealt with on the basis of both goods and service. In particular,the development of many multinational companies and high-tech companies are undergoing tremendous impact from this practice. Nevertheless, the customs administration has the strong intention to increase tax recovery under CVA,and thus royalties and license fees turn into a big concern for customs. The paper lists out the risks and recommendations of customs valuation through a comparison of enforcement among different countries.
Whether royalties,license fees,software fees and assist should be included in customs value is recently a hot issue in customs valuation in China as well as in those countries that entered into the WTO earlier. Through a comparison among China,the US and South Korea in the practice of customs valuation,it is discovered that China deviates from the rules provided in CVA and imposes duplicate taxation. From the perspective of businesses,there exists the intention to reduce the tax burden by disguising the payment for the goods as royalties and license fees. However,the intention should not be taken as the ground to calculate the royalties and license fees into the transaction value since this practice will inevitably lead to the conflict or dilemma that the same payment is dealt with on the basis of both goods and service. In particular,the development of many multinational companies and high-tech companies are undergoing tremendous impact from this practice. Nevertheless, the customs administration has the strong intention to increase tax recovery under CVA,and thus royalties and license fees turn into a big concern for customs. The paper lists out the risks and recommendations of customs valuation through a comparison of enforcement among different countries.
引文
(1)税总货便函[2014]140号《国家税务总局货物和劳务税司关于征求小米通讯技术有限公司向境外支付特许权使用费有关税收问题意见的函》。
(2)Headquarters Ruling No.547532.
(3)Headquarters Ruling No.545381 dated May 4,1998.
(4)Headquarters Ruling No.544742 dated June 6,1995.
(5)Headquarters Ruling No.236746 dated Jul.1,2013.
(6)Headquarters Ruling No.547946 dated Nov.30,2001.
(7)Headquarters Ruling No.548190 dated Nov.25,2002.
(8)海关合作理事会评论13.1。
(9)Statement made by the chairman at the meeting of the committee on customs valuation of 24 September,1984,prior to the adoption of the decision on the valuation of carrier media bearing software for data processing equipment.
(10)《海关估价案例汇编》合订本,第339-342页。
(11)Decision taken by the committee on customs valuation,4.1.
(12)Korean Customs Administration Publication Notice No 86-428 Regarding Working Regulations on Customs Valuation,Art.20.3
(13)Sherman&Glashoff,Customs Valuation:Commentary on the GATT Customs Valuation Code(1988).
(14)Korean trade association,proposal to improve customs duty on technical service fees and license fees for patent and other right,1990.
(15)Ministry of trade and industry,document 28240-309,1990,Regarding Computation of royalties,on magnetic tape,for semiconductor manufacturing technology.
(16)WTO《关于海关有理由怀疑申报价格真实性和准确性的情况的决定》。
(2)Headquarters Ruling No.547532.
(3)Headquarters Ruling No.545381 dated May 4,1998.
(4)Headquarters Ruling No.544742 dated June 6,1995.
(5)Headquarters Ruling No.236746 dated Jul.1,2013.
(6)Headquarters Ruling No.547946 dated Nov.30,2001.
(7)Headquarters Ruling No.548190 dated Nov.25,2002.
(8)海关合作理事会评论13.1。
(9)Statement made by the chairman at the meeting of the committee on customs valuation of 24 September,1984,prior to the adoption of the decision on the valuation of carrier media bearing software for data processing equipment.
(10)《海关估价案例汇编》合订本,第339-342页。
(11)Decision taken by the committee on customs valuation,4.1.
(12)Korean Customs Administration Publication Notice No 86-428 Regarding Working Regulations on Customs Valuation,Art.20.3
(13)Sherman&Glashoff,Customs Valuation:Commentary on the GATT Customs Valuation Code(1988).
(14)Korean trade association,proposal to improve customs duty on technical service fees and license fees for patent and other right,1990.
(15)Ministry of trade and industry,document 28240-309,1990,Regarding Computation of royalties,on magnetic tape,for semiconductor manufacturing technology.
(16)WTO《关于海关有理由怀疑申报价格真实性和准确性的情况的决定》。