納稅對企業(yè)行為的影響

1、本科畢業(yè)論文（設計）外 文 翻 譯外文題目 The Influence of Tax on Corporate Behavior 外文出處 Tax and Corporate Governance 外文作者 Wolfgang Schon 原文：The Influence of Tax on Corporate BehaviorEconomic and Legal PerspectivesThe analysis of the basic legal framework where the interaction of tax and corporate governance takes pla

2、ce has to commence with the question of whether there exists any difference between the economic perspective presented in the preceding contribution by Mihir Desai and Dhammika Dharmapala1 and the legal perspective which is the topic of this chapter. In the old days, the distinction has been quite c

3、lear: the legal analysis would look at the law as it stands, the statutory and judge-made rules in the field of taxation, company law and financial markets from a normative standpoint, while the economic analysis would focus on the effects of such rules in mathematical models and the real world, try

4、ing to describe their impact on efficiency and distribution. Over the years, this distinction has become considerably blurred. Legal scholars employ the tools of economic analysis of law, capital market theory and information economics in corporate affairs as well as the findings of public finance a

5、nd public choice in tax matters to discuss the current state of their field while economists use their theoretical and empirical findings in order to bring forward normative recommendations for legislation in different areas of the law. Lawyers still feel on their own when they engage in the interpr

6、etation and application of existing rules, but they have realized that they have to share the task of public policy recommendations with their economic brethren. It makes no sense any more to separate the theoretical, empirical and normative aspects of tax and corporate governance in this respect.Ne

7、vertheless, it makes some sense for a policy-oriented book like this to find some common legal ground on a comparative basis, starting with a closer look at the legal framework which we currently find in major jurisdictions. In this respect, the focus will be on existing statutory and judge-made rul

8、es and standards, putting the emphasis on U.S., U.K. and German law.Income Measurement in Tax and Financial AccountingThe most important effect of corporate and financial law rules on the way taxable income is measured, is enshrined in the alignment of corporate and taxable profits which we find in

9、several important jurisdictions. In this book, Judith Freedman presents an in-depth analysis of the legal background of such a technique. Under such system, the basic structural elements of financial accounting find their way into tax accounting. Again we can ask ourselves whether financial rules ha

10、ve a positive impact on the tax management of the company and the fulfillment of its obligations under tax law.The effects are manifold. Firstly, the taxman can rely on a set of financial accounts which have been audited by a public accountant before the tax inspector arrives. This is a valuable sta

11、rting point in the process of the tax audit itself. Moreover, at the individual level of the company, alignment means that the management will consider the effects of a particular accounting position both on the capital market and on the tax situation. The outcome will depend on the benefits manager

12、s receive from different options. If and insofar as the management is paid on the basis of the financial results of the company, there will be a tendency of the management to give an optimistic picture of the companys overall profit, thereby increasing the tax bill as well. Nevertheless, this effect

13、 might be mitigated by the fact that management compensation is normally based on after-tax profit. Moreover, in a corporation oriented to the stock market, it is important to show good results to the investors in order to make stocks rise and keep take-over at bay. In addition, good results can lea

14、d to an appreciation of the managements stock options. Again, the taxman should be glad in this respect. On the other hand there might be closely held firms where shareholders do not look at the financial accounts in the first place and where they do not regard dividends to be the most important ben

15、efit they receive from the company. In these cases, the shareholders who are often themselves the managers of the firm may press for low numbers both in the financial and in the tax accounts, thus distorting both calculations.Tax An Ally to Corporate Governanceit is well known that tax rules have a

16、major influence on the way a companys business is conducted, how the corporation is financed and structural changes are brought about. The tax neutrality of company reorganizations is a topic in every tax system and capital gains taxation will surely impact the ownership structure of an enterprise.

17、The deductibility of pension liabilities in German tax law has contributed largely to internal financing of big and small corporations and the choice between a partnership and a company for closely held firms, including the most recent products in the LLC and LLP sector can tell a story about tax re

18、asons for specific legal forms in the same way.In our context, we find some tax provisions which have a direct impact on the internal governance system of corporations. In this respect we have to distinguish between tax provisions which are specifically aimed at this sort of regulation and others wh

19、ere the positive or negative impact on corporate governance is more or less a side-effect. Tax provisions which are meant to have a direct impact on corporate governance can specifically be found in the United States. Well-known examples for such regulatory taxation include limitations to the deduct

20、ibility of golden parachute payments in the case of take-over , greenmail taxation when companies dole out large payments to corporate bidders or the non-deductibility of exaggerated management compensation are widely discussed. Moreover, tax incentives referring to particular stock option schemes t

21、ry to align shareholder and management interest .These rules belong to the broad area of regulatory taxation which goes far beyond the topics of corporate behavior. In the U.S. context, these rules are particularly important as corporate law is subject to state legislation while corporate tax is pre

22、dominantly in the hands of the federal legislator. The case is similar to securities law which is in the hands of Congress and the SEC and therefore serves as a complement to the liberal corporate rules which we find at the state level .The Sarbanes-Oxley Act 2002 is a major example of the strong in

23、fluence securities regulation can have on the internal affairs of a corporation. Insofar, federal tax rules can influence the internal affairs of a corporation. In Germany and in the U.K. both company and tax law are governed by the same legislative bodies of the central state. Therefore, the legisl

24、ators do not have a paramount interest in the regulation of corporate governance structures by tax means. Moreover, there are limits to the functioning of such regulatory instruments . Firstly, they work with pretty broad brushstrokes, thereby catching good and bad cases alike. Secondly, they do not

25、 fully prevent unwanted behavior; they simply attach higher after-tax costs to it which finally fall on the shareholder, whose interest was meant to be protected by these rules. If tax law limits the deductibility of high fixed salaries for directors and managers, any increase in the salary will cos

26、t the shareholder even more. Dependent on the functioning of the principal-agent relationship within the company, the respective tax provision will put a brake on the suspect operations of the management or it will not in this case we end up with a combination of the unwanted behavior and an extra t

27、ax cost falling on the shareholders profit. Tax law restraints on fixed remunerations have strongly supported the rise of stock-options which have themselves led to a widespread transfer of wealth from shareholders to the management. Having in mind these unclear and counterproductive effects, Steven

28、 Bank concludes: “Tax can be considered an ally of CorporateGovernance, but not a de facto system of federal corporate lawEven more relevant for the overall stability of the corporate law framework seem to be those tax law provisions which are not specifically intended to influence corporate behavio

29、r but which simply exert external control on the activities of the management. This starts with the mere existence of the corporate tax which produces the necessity to engage in annual income measurement, to file returns and to have them audited by the tax inspector on a regular basis. This puts an

30、extra layer of “certification” on the calculation of corporate profits,in addition to the control mechanisms applied by shareholders themselves and public accountants. As tax inspectorsdo not face the same collective action problems which shareholders encounter and even more important rarely are sub

31、ject to the same conflicts of interest as auditors are, the natural process of tax auditing proves to be helpful for the overall framework of corporate governance. It is not extremely rare that tax inspectors detect corporate fraud which has not been unveiled by big accounting firms; the real proble

32、m is whether they are bound or entitled having tax secrecy in mind to make their findings public in any case. From the German perspective, the most important effect corporate taxation exerts on corporate governance refers to hidden distributions of profits. Under company law, it is well known that m

33、inority shareholders have to be protected if major-it shareholders often in collusion with directors divert the companys assets to themselves, departing from arms-length conditions in their contractual relationships with the company. These hidden withdrawals would hardly be discovered by minority sh

34、areholders themselves but regular tax examinations bring them to the surface and put an effective brake on such manipulations. It is widely acknowledged in German company law practice, that the tax authorities are a major player when it comes to the protection of minority interests.To be sure, there

35、 might be some crazy effects of tax law on corporate governance. Germany provides a case in point. Under a long-standing rule, the compensation paid to members of the supervisory board is only partially deductible at the corporate level. This provision stems from the 1920s when large block holders u

36、sed excessive honoraria as members of the supervisory board in order to circumvent double taxation of corporate profits paid out as dividends. Under current law,Nobody wants to uphold double taxation, therefore this rule only works as an additional cost factor prohibiting the company from hiring and

37、 paying high-class people as members of their advisory boards. It is even claimed that this effect runs foul of basic constitutional principles.ConclusionFrom a legal point of view, one has to start with the fact that rights and obligations under corporate law are basically different from rights and

38、 obligations under tax law. While corporate law looks at the internal affairs of a corporation, dealing with agency problems and some third-party-entitlements, tax law looks at the corporation as such, at the taxpayer that doesnt exist. Any change in the contractual network of the corporation will w

39、ork to the advantage or to the disadvantage of shareholders, management and some third parties like creditors or the workforce. Tax authorities might reap windfall profits from good corporate governance when shareholders putPressure on managers to refrain from tax saving activities. But it is hard t

40、o think of a point where tax authorities themselves can rely on these internal commitments. If tax authorities want to exert pressure on corporate taxpayers they have to find their own way within the framework of tax law as is most impressively shown in their work on tax shelters. Moreover, any inte

41、nsification of tax obligations should not look at the corporate character of an entity but rather at its overall financial and economic situation and try to treat all taxpayers alike which are irrespective of their legal form in comparable circumstances. The positive influence of taxation on the int

42、ernal governance structure of companies is another story. Here we find both explicit de facto rules for the corporate sector, disguised as tax incentives or disincentives, and certification procedures which have a positive side-effect on corporate conduct. The question which we have to face in the f

43、uture is whether we should keep things apart as they currently stand or we should opt for stronger interaction between tax and corporate law.This will be the goal of more interdisciplinary work of economists and lawyers.Source: Tax and Corporate Governance.Springer-Verlag Berlin .2008:31-61譯文：納稅對企業(yè)行

44、為的影響以經(jīng)濟和法律觀點有一個積極的影響的工具，資本市場理論和信息經(jīng)濟在公司事務上和對于公共選擇在稅務的問題上，來討論這一領域的現(xiàn)實狀況。可是，經(jīng)濟學教用他們的理論和實踐的結論來提出規(guī)范的建議對于法律規(guī)定在不同領域內(nèi)的法律。仍然堅信自己的想法放他們的解釋，但是他們也意識到他們應該分享來自經(jīng)濟方面的公共建議。然而，對于一個像這樣的向的書來說，發(fā)現(xiàn)一些普遍的以法律為基礎的，并以法律框架來支配主要的管制是有一定意義的。在這方面，我們要集中力量在現(xiàn)有的條款和判定的規(guī)定和標準，特別關注的是美國，英國和德國。收入的計量和財務會計公司的應納稅和利潤保持一致起到了一個衡量稅收收入的重要作用。在這本書中展示了一

45、個全面的分析的方法以法律背景。在這種體系下，最基礎的結構中找到了財務會計變成稅務賬務的方法。我們又問，財務會計上的規(guī)定是否有一個積極的影響在公司的稅務管理和并滿足稅務法律的條件。影響是多種多樣的。首先，在稅務檢查員到來之前，財務人員只能依照一系列被公共會計審要求來調(diào)整賬戶。這是審計過程中的一個重要環(huán)節(jié)。之后，在公司的上層，進行校對特定賬戶管理，因為它可能既出現(xiàn)在資本市場同時又出現(xiàn)在稅務的環(huán)境中。這個結果取決于經(jīng)理在不同的選擇中所得到的好處。到此為止，管理將在公司的財務結果的基礎上產(chǎn)生一個趨勢，樂觀的描繪公司的總收益，因此，增加公司稅收賬單。但是，這種趨勢主要以稅后利潤為基礎。進一步說，在以一個

46、公司為導向的股票市場，為投資者現(xiàn)時好的結果是十分重要的，這樣就會使股票增值并繼續(xù)接管這種好的勢頭。此外，好的結果可以是期權增值。同時，稅收員也很高興在這種層面上。在另一個角度上說，這里可能有關系十分緊密的股東，他們不是先看財務賬戶，也不在意分紅，因為這不是他們在公司中能夠獲得的最大收益。在股東同時是公司的主管的情況下,希望在會計和稅務賬戶上達到以上的效果，因此扭曲了賬戶的計算。稅務是公司管理的一個重心總所周知的是，稅務條款對公司的運營有很重要的影響，影響著公司如何運用資金和資金結構的變動。無論在哪個稅務系統(tǒng)中，稅務都是公司組建的一個重要話題，并一定會影響公司所有全的結構。福利債務在德國的稅務中的規(guī)定，很大程度上決定了對于大小的公司在所有權形式上的選擇，包括最近的有限責任企業(yè)和有限合伙企業(yè)的有關條例能夠告訴我們稅務法規(guī)的影響有多大。我們發(fā)現(xiàn)了一些稅務規(guī)定直接的影響在公司內(nèi)部的系統(tǒng)管理。在這層面上， 我們需要分辨稅務影響，分類的正面和負面的影響和在公司管理哪一方面的影響。稅務條款有一個直接的影響在公司的管制，尤其是美國。一個熟悉的例子，這些規(guī)定的稅務包括減少