全球反避稅條款對台商投資架構之影響及其因應之道

Abstract

自OECD於2015年10月發布稅基侵蝕及利潤移轉專案(BEPS)行動計畫以來，各國為配合推行該等計畫，遂陸續制定其反避稅條款以為因應，其中影響重大者有移轉訂價三層文件所要求的國別報告(CbCR)、共同申報準則(CRS)、受控外國企業制度(CFC)及實際管理處所制度(PEM)等規定。而歐盟亦於2019年實施其反避稅指引(ATAD)，擴及非歐盟成員的ATADⅡ則於2020年施行。在OECD及歐盟推行全球反避稅條款的風潮影響下，台灣近年來亦陸續發布反避稅規定，其中移轉訂價三層文據架構及共同申報盡職審查準則已陸續施行，惟受控外國企業制度及實際管理處所制度雖經立法，然仍待兩岸間相關配套措施進一步完備後方再擇日施行。 由於各國CFC及PEM制度已逐步實施，台灣亦無法無限期延宕該等法規。依近期情勢發展，財政部將於2021年8月至2022年8月間報請行政院擇日施行CFC。因CFC及PEM等法規相當程度地影響台灣營利事業過往之租稅規劃(如三角貿易、多層投資架構及關係人交易等安排)，故台灣營利事業亟須重新調整其租稅規劃以提前部署合乎規定之安排。 反避稅條款濫觴於歐美諸國，他山之石可以攻玉，本論文遂歸納歐美營利事業之投資架構及價值鏈規劃以供國內業者參考，並整理各國租稅條件及租稅誘因以演繹可能之投資架構及租稅安排以與前述歸納相印證。本論文為前述目的又兼論及租稅天堂為配合歐盟之改善要求所陸續實施之經濟實質法案，以及東南亞各國為配合註冊於租稅天堂之公司遷入所修正之相關遷冊規定，又投資架構之重組事涉跨國分割及股份轉換等併購方法之運用，本論文亦稍涉略之。 本研究囿於筆者之財力與才力，於有限之資源及時間條件下，無法臻於完善，或僅能做為研究路上拋磚引玉的一塊磚石。「片言以待來者，一脈能繼斯文」，相信在更多的志同道合者投入後續的研究後，能使相關議題的探討達到止於至善的境界。

Ever since The Organization for Economic Co-operation and Development (OECD) unveiled its Base Erosion and Profit Shifting (BEPS) project in October 2015, in response to the flux, those associated countries enacted their own anti-tax avoidance clauses consequently, and among those clauses, the most important are Country-by-Country Reporting rules (CbCR), Common Reporting Standard (CRS), Controlled Foreign Companies Rules (CFC) and Place of Effective Management Rules (PEM). Then a fortiori, European Union (EU) also implemented its own Anti-Tax Avoidance Directive (ATAD) in 2019, and the ATAD Ⅱ for non-EU nations will be implemented in 2020 to boot. In view of the anti-tax tsunami urged by OECD and EU looming large in the offing, Taiwan authorities also promulgated anti-tax avoidance rules in preceding years, amongst them, CbCR and CRS are in effect now, while CFC and PEM are put on shelf and waiting for the coordinate sets of measures been stipulated in Cross-Strait regulations. Since the CFC and PEM rules have been implemented by other jurisdictions one after another, it is impracticable for Taiwan authorities to mothball those rules permanently. According to the developing status, in the one-year period after August 2021, the Ministry of Finance should propose a bill to the Executive Yuan for initiating an enforcement date and put those rules into force. Taiwanese entrepreneurs should adopt proactive actions to legally streamline their tax arrangements as soon as they could in that those rules catastrophically impact on their traditional tax avoidance tools, including but not limited to triangular transactions, multiple-tier investment structures and non-arm’s length transactions. Those multinational enterprises (MNEs) located in OECD and EU did acclimate themselves to anti-tax avoidance clauses before and their tax arrangements may be deemed as legal prototypes for us, we may take a leaf from their books for cutting short to our goals. The thesis was developed into two directions, one induced the de facto investment structures and value-chain deployments from those chosen MNEs, the other deduced the de jure investment structures and should be tax arrangements from known tax clauses and incentives of the majority of global tax jurisdictions, then demonstrated the both meet at end and consistent with each other. For the same purposes, the thesis also touched on topics including the Economic Substance Laws declared by tax havens for delisting themselves from the non-cooperative list of EU and Re-Domiciliation rules promulgated by ASEAN for adopting those entities stamped from tax havens, in addition, the thesis scratched the surface of cross-border spin-off and stock swap for MNEs’ restructures as well. Subject to my unaffordability and incapability, the thesis cannot be ameliorated as my hope in due course and left much to be desired, still, it might play as a devil’s advocate for disproving something wrong and pave the way for newcomers to bypass minefields. Unfortunately, the poor thesis did consist one segment of an aerial root of this topic tree and waits for new bloods to splice the searching lineage for rooting in a tera incognita. I believe after other cartographers join forces with me and in the same boat for fathoming unknown domains, the uncharted waters will be mapped out soon.