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摘 要：中國于近年内制定发布了关于如何解释税收协定中的"受益所有人"这一概念的部门规章。然而，有关这一概念的界定问题有待更为细化的阐释和说明。同时，考虑到部门规章的法律效力问题，有必要在税法上对其进行界定。
关键词：受益所有人；部门规章；国内法解释；中介公司
Abstract：China had issued departmental rules to interpret the term "beneficial owner" in recent years while more instructions should be added to explain it， and it is necessary to prescribe the "beneficial owner" with the tax law considering the legal force of departmental rules.
Key Words：beneficial owner；departmental rules；domestic law meaning；intermediary
The Application and Interpretation of "Beneficial Owner" in China
--Considering the New Trends in the OECD Model Tax Convention
1.The Need for Interpretation of "Beneficial Owner"
Beneficial owner is one of the most important terms included in tax treaties. It is used to limit the benefit of reduced withholding taxes on passive income （i.e. dividends， interest and royalties） to recipients who are beneficial owners of the income. Notwithstanding the concept is widely adopted in most bilateral treaties， it is defined clearly in none of them. Even the OECD has not succeeded in coming up with an explicit meaning of that. The UN Model Convention Commentary on beneficial owner is mainly based upon the OECD commentary. China has entered into double taxation treaties with probably more than 90 countries. And there has been a definition on "beneficial owner" in China's departmental rules. These rules are of great value in legal practice between China and other Contracting states in recent years. But there are still several problems waiting to be solved to reduce the uncertainty of "beneficial owner"， considering the new trends in the OECD Model Tax Convention.
2. The Development of China's Departmental Rules on the Term "Beneficial Owner"
The State Administration of Taxation of China issued the "Notice of the state Administration of Taxation on How to Understand and Determine the 'Beneficial Owners' in Tax Agreements" （Letter No. 601[2009] of the State Administration of Taxation）. The notice points out the "The term 'beneficial owner' refers to a person who has the right to own and dispose of the income and the rights or properties generated from the said income. To assist in the judgment of cases， it lists seven factors that will put an applicant in a disadvantageous position in the determination of its "beneficial owner" status. The notice of which the basic principles and criteria are extremely similar to the standpoint of OECD is a big step on beneficial ownership. In fact， China's attitude on the determination of beneficial owner is being more circumspect which is reflected in the paragraph eight of another announcement[1]， saying that the cases related to denying the beneficial owner status of applicants should be submitted to provincial-level tax authorities who have the power to approve the negation. Under such circumstances， fewer intermediaries will suffer， which is a promotion of normal operation. However， the rules seem to be not concrete enough to apply in specific cases and there are little practicable rules about procedures to comply with.
3.Should "Beneficial Owner" Have an Autonomous Treaty Meaning or a Domestic Law Meaning？
On April 29th， 2011， the OECD released a public discussion draft entitled "Clarification of the meaning of 'beneficial owner' in the OECD Model Tax Convention".[2] The discussion draft 2011 made a lot of modification on the commentary on Article 10 to 12.Again on October 19th， 2012， the OECD released the "revised proposals concerning the meaning of beneficial owner in Article 10， 11 and 12 of the OECD Model Tax Convention".[3] According to the comments received on the first and revised discussion drafts， most of the comments supported the suggestion that "beneficial owner" should have an autonomous treaty meaning as well as a few commentators disagree.
Craig Elliffe mentioned that "there has been a tendency in foreign case law decisions for the domestic definition to be used rather than an international definition".[4] He took the Indofood case and the Prevost cast as examples. In the first case， Sir Andrew Morrit applies the test of "the full privilege to directly benefit from the income"， which is a phrase from the circular letter issued by the Directorate General of Taxation in Indonesia. It means Sir Andrew Morrit chose the domestic law meaning of beneficial owner.
The commentary indicates that the "Beneficial Owner" should be interpreted based on its context and the objectives that it seeks to achieve. These requirements result in the difficulty of making a reasonable domestic law meaning. What's more， although a lot of countries have entered into DTTs with other countries， they haven't provided the definition of "beneficial owner" under the applicable tax laws. China hadn't issued the rules to deal with beneficial ownership until the year 2009.
It is surely good to reach a consensus that is accepted by all the countries， since it will give the entities involved in international finance a sense of security and ease the burden of justice. With the involvement of regulations on the "beneficial owner" in a number of states， countries are endeavoring to define it. However， with more and more application of it， problems will arise frequently in the near future. The autonomous meaning will play its rule in such context. 4. How to Understand "the Contractual or Legal Obligation （to Pass on the Payment Received to Another Person） Must Be Related to the Payment Received"？
The concept of beneficial owner excludes agents and nominees and conduit companies akin to mere "fiduciary or administrators". The author tends to consider that the ones who are legally bound to redirect the amounts do not have the ultimate dispose and enjoyment of the rights. And while identifying the status of an intermediary， numerous factual inquiries have to be taken. After reading the comments on the said revised discussion draft released in 2012， the author deemed that most commentators focused on paragraph 12.4 of the Commentary on Article 10. Compared with the first discussion draft， this paragraph was changed a lot and the proposed changes have reduced the uncertainty signally.
The phrase "This type of obligation must be related to the payment received" seems to be too arbitrary and unfair for intermediaries， as it could be interpreted to imply that where any relationship exists between a payment received and a payment made， this would preclude the intermediary from being held to be the beneficial owner of the relevant amount. The revised text provides no explanation of what "related" or "unrelated" mean， or how these terms should be interpreted. Perhaps two implicit requirements are necessary to establish the requisite relation about the said obligation. First， the obligation must exist before the dividend is received. Second， the duty to perform the obligation must be triggered by the receipt of the dividend.
Examples of unrelated obligations set out in the revised discussion draft is a new method of clarification. Indeed there would be some benefit to extending the list of examples or explaining further what is meant by financial transactions in this context. China's departmental rules are in lack of such prescription， even though they are equipped with concrete references to some extent. It will be helpful to merely exclude payment directly counting on a contractual or legal obligation that constrains the recipient's right to use the income. To the author's standpoint， the examples of "related to" are not enough to come into play in legal practices. The ones of "unrelated to" will therefore lead to more clarity.
5. The Legal Force of Departmental Rules
In the legal hierarchy system， the core disparity between laws and regulations is about their legal ranks. The concept of "beneficial owner" shall be referred to "the law of that state" according to Article's of the OECD Model Convention. Rufei Su held the opinion that with the relatively low legal rank of the No. 601 [2009] of the State Administration of Taxation， it may be challenged when the tax authorities are involved in a lawsuit.[5] Nevertheless， In the Indofood case， Sir Andrew Morrit in the Civil Division of the English Court of Appeal used the test from the circular letter issued by the Directorate General of Taxation in Indonesia. There is no legal rank request about the term "law" of "the law of the state" in Article 3 of the commentary. It is stated in the paragraph 13.1 of the commentary in Article 3 that "for purposes of paragraph 2， the meaning of any term not defined in the convention may be ascertained by reference to the meaning it has for the purpose of any relevant provision of the domestic law of a contracting state， whether or not a tax law".[6] The author tends towards to the viewpoint that the departmental rules are welcomed in interpreting the term "beneficial owner". After all， the contracting states entering into a mutual agreement normally recognize the regulations of the other side. And for the long run， it is surely important to prescribe the "beneficial owner" with the tax law instead of departmental rules. References：
[1]The State Administration of Taxation of China （2012）， Announcement of the State Administration of Taxation on Determining the 'Beneficial Owners' in Tax Agreements [EB/OL]. http：//www.chinalawinfo.com/.
[2]OECD （2011）， Clarification of the Meaning of "Beneficial Owner" in the OECD Model Tax Convention： Discussion Draft， OECD Publishing [EB/OL].http：//www.oecd.org/tax/treaties/47643872.pdf.
[3]OECD （2012）， Revised Proposals Concerning the Meaning of Beneficial Owner in Articles 10， 11， and 12 of the OECD Model Tax Convention： Revised Public Discussion Draft， OECD Publishing [EB/OL]. http：//www.oecd.org/ctp/treaties/Beneficialownership.pdf.
[4] Elliffe， Craig Macfarlane， The Meaning of 'Beneficial Ownership' in Double Tax Agreements [J]. British Tax Review， 2009（3）.
[5]苏如飛.完善我国税法受益所有人制度的思考[J].税务与经济，2012，（1）.
[6]OECD （2012）， "Commentary on Article 3： Concerning general definitions"， in Model Tax Convention on Income and on Capital 2010： FULL Version， OECD Publishing [EB/OL].http：//dx.doi.org/10.1787/9789264175181-37-en.
作者简介：陈旭航（1989-），女，浙江人，就读于华东政法大学研究生教育院国际法专业。
关键词：受益所有人；部门规章；国内法解释；中介公司
Abstract：China had issued departmental rules to interpret the term "beneficial owner" in recent years while more instructions should be added to explain it， and it is necessary to prescribe the "beneficial owner" with the tax law considering the legal force of departmental rules.
Key Words：beneficial owner；departmental rules；domestic law meaning；intermediary
The Application and Interpretation of "Beneficial Owner" in China
--Considering the New Trends in the OECD Model Tax Convention
1.The Need for Interpretation of "Beneficial Owner"
Beneficial owner is one of the most important terms included in tax treaties. It is used to limit the benefit of reduced withholding taxes on passive income （i.e. dividends， interest and royalties） to recipients who are beneficial owners of the income. Notwithstanding the concept is widely adopted in most bilateral treaties， it is defined clearly in none of them. Even the OECD has not succeeded in coming up with an explicit meaning of that. The UN Model Convention Commentary on beneficial owner is mainly based upon the OECD commentary. China has entered into double taxation treaties with probably more than 90 countries. And there has been a definition on "beneficial owner" in China's departmental rules. These rules are of great value in legal practice between China and other Contracting states in recent years. But there are still several problems waiting to be solved to reduce the uncertainty of "beneficial owner"， considering the new trends in the OECD Model Tax Convention.
2. The Development of China's Departmental Rules on the Term "Beneficial Owner"
The State Administration of Taxation of China issued the "Notice of the state Administration of Taxation on How to Understand and Determine the 'Beneficial Owners' in Tax Agreements" （Letter No. 601[2009] of the State Administration of Taxation）. The notice points out the "The term 'beneficial owner' refers to a person who has the right to own and dispose of the income and the rights or properties generated from the said income. To assist in the judgment of cases， it lists seven factors that will put an applicant in a disadvantageous position in the determination of its "beneficial owner" status. The notice of which the basic principles and criteria are extremely similar to the standpoint of OECD is a big step on beneficial ownership. In fact， China's attitude on the determination of beneficial owner is being more circumspect which is reflected in the paragraph eight of another announcement[1]， saying that the cases related to denying the beneficial owner status of applicants should be submitted to provincial-level tax authorities who have the power to approve the negation. Under such circumstances， fewer intermediaries will suffer， which is a promotion of normal operation. However， the rules seem to be not concrete enough to apply in specific cases and there are little practicable rules about procedures to comply with.
3.Should "Beneficial Owner" Have an Autonomous Treaty Meaning or a Domestic Law Meaning？
On April 29th， 2011， the OECD released a public discussion draft entitled "Clarification of the meaning of 'beneficial owner' in the OECD Model Tax Convention".[2] The discussion draft 2011 made a lot of modification on the commentary on Article 10 to 12.Again on October 19th， 2012， the OECD released the "revised proposals concerning the meaning of beneficial owner in Article 10， 11 and 12 of the OECD Model Tax Convention".[3] According to the comments received on the first and revised discussion drafts， most of the comments supported the suggestion that "beneficial owner" should have an autonomous treaty meaning as well as a few commentators disagree.
Craig Elliffe mentioned that "there has been a tendency in foreign case law decisions for the domestic definition to be used rather than an international definition".[4] He took the Indofood case and the Prevost cast as examples. In the first case， Sir Andrew Morrit applies the test of "the full privilege to directly benefit from the income"， which is a phrase from the circular letter issued by the Directorate General of Taxation in Indonesia. It means Sir Andrew Morrit chose the domestic law meaning of beneficial owner.
The commentary indicates that the "Beneficial Owner" should be interpreted based on its context and the objectives that it seeks to achieve. These requirements result in the difficulty of making a reasonable domestic law meaning. What's more， although a lot of countries have entered into DTTs with other countries， they haven't provided the definition of "beneficial owner" under the applicable tax laws. China hadn't issued the rules to deal with beneficial ownership until the year 2009.
It is surely good to reach a consensus that is accepted by all the countries， since it will give the entities involved in international finance a sense of security and ease the burden of justice. With the involvement of regulations on the "beneficial owner" in a number of states， countries are endeavoring to define it. However， with more and more application of it， problems will arise frequently in the near future. The autonomous meaning will play its rule in such context. 4. How to Understand "the Contractual or Legal Obligation （to Pass on the Payment Received to Another Person） Must Be Related to the Payment Received"？
The concept of beneficial owner excludes agents and nominees and conduit companies akin to mere "fiduciary or administrators". The author tends to consider that the ones who are legally bound to redirect the amounts do not have the ultimate dispose and enjoyment of the rights. And while identifying the status of an intermediary， numerous factual inquiries have to be taken. After reading the comments on the said revised discussion draft released in 2012， the author deemed that most commentators focused on paragraph 12.4 of the Commentary on Article 10. Compared with the first discussion draft， this paragraph was changed a lot and the proposed changes have reduced the uncertainty signally.
The phrase "This type of obligation must be related to the payment received" seems to be too arbitrary and unfair for intermediaries， as it could be interpreted to imply that where any relationship exists between a payment received and a payment made， this would preclude the intermediary from being held to be the beneficial owner of the relevant amount. The revised text provides no explanation of what "related" or "unrelated" mean， or how these terms should be interpreted. Perhaps two implicit requirements are necessary to establish the requisite relation about the said obligation. First， the obligation must exist before the dividend is received. Second， the duty to perform the obligation must be triggered by the receipt of the dividend.
Examples of unrelated obligations set out in the revised discussion draft is a new method of clarification. Indeed there would be some benefit to extending the list of examples or explaining further what is meant by financial transactions in this context. China's departmental rules are in lack of such prescription， even though they are equipped with concrete references to some extent. It will be helpful to merely exclude payment directly counting on a contractual or legal obligation that constrains the recipient's right to use the income. To the author's standpoint， the examples of "related to" are not enough to come into play in legal practices. The ones of "unrelated to" will therefore lead to more clarity.
5. The Legal Force of Departmental Rules
In the legal hierarchy system， the core disparity between laws and regulations is about their legal ranks. The concept of "beneficial owner" shall be referred to "the law of that state" according to Article's of the OECD Model Convention. Rufei Su held the opinion that with the relatively low legal rank of the No. 601 [2009] of the State Administration of Taxation， it may be challenged when the tax authorities are involved in a lawsuit.[5] Nevertheless， In the Indofood case， Sir Andrew Morrit in the Civil Division of the English Court of Appeal used the test from the circular letter issued by the Directorate General of Taxation in Indonesia. There is no legal rank request about the term "law" of "the law of the state" in Article 3 of the commentary. It is stated in the paragraph 13.1 of the commentary in Article 3 that "for purposes of paragraph 2， the meaning of any term not defined in the convention may be ascertained by reference to the meaning it has for the purpose of any relevant provision of the domestic law of a contracting state， whether or not a tax law".[6] The author tends towards to the viewpoint that the departmental rules are welcomed in interpreting the term "beneficial owner". After all， the contracting states entering into a mutual agreement normally recognize the regulations of the other side. And for the long run， it is surely important to prescribe the "beneficial owner" with the tax law instead of departmental rules. References：
[1]The State Administration of Taxation of China （2012）， Announcement of the State Administration of Taxation on Determining the 'Beneficial Owners' in Tax Agreements [EB/OL]. http：//www.chinalawinfo.com/.
[2]OECD （2011）， Clarification of the Meaning of "Beneficial Owner" in the OECD Model Tax Convention： Discussion Draft， OECD Publishing [EB/OL].http：//www.oecd.org/tax/treaties/47643872.pdf.
[3]OECD （2012）， Revised Proposals Concerning the Meaning of Beneficial Owner in Articles 10， 11， and 12 of the OECD Model Tax Convention： Revised Public Discussion Draft， OECD Publishing [EB/OL]. http：//www.oecd.org/ctp/treaties/Beneficialownership.pdf.
[4] Elliffe， Craig Macfarlane， The Meaning of 'Beneficial Ownership' in Double Tax Agreements [J]. British Tax Review， 2009（3）.
[5]苏如飛.完善我国税法受益所有人制度的思考[J].税务与经济，2012，（1）.
[6]OECD （2012）， "Commentary on Article 3： Concerning general definitions"， in Model Tax Convention on Income and on Capital 2010： FULL Version， OECD Publishing [EB/OL].http：//dx.doi.org/10.1787/9789264175181-37-en.
作者简介：陈旭航（1989-），女，浙江人，就读于华东政法大学研究生教育院国际法专业。