《稅收征管法》第35條第(6)項允許稅務機關對納稅人申報偏低而無正當理由的計稅依據重新進行核定。這一規定往往被認為是稅收核定具有反避稅功能的重要體現。然而,本源意義上的稅收核定是在納稅人違反協力義務的情況下由稅務機關以一定的經驗法則替代未被提供的課稅資料而估算稅基的金額的特殊稅基確認方式。一項可能構成避稅安排的交易已在一般稅收確定程序中公開、充分地進行了申報,是不滿足稅收核定的適用條件的。稅收核定作為稅基量化事實的表見證明方式,實際上難以實現對經濟實質予以認定的反避稅目標。更重要的是,以稅收核定重新對稅基進行量化,仍缺少相應的程序性規制,極易造成隨意調增應納稅額的結果。對納稅人申報偏低的計稅依據進行核定,既有違稅收核定的制度初衷,也無法實現以經濟實質為基礎的"據實課征"目標,不足以將其作為反避稅的工具予以規定。

It is allowed for the tax authority to estimate the taxable amount if the tax base is obviously lower without the justifiable reason according to Article 35(6)of Law of Tax Collection and Administration.It is believed that it is the evidence that the tax estimating works as one of the anti-avoidance measures.However,the tax estimating is such a mechanic under which a specified empirical rule may be used to take the place of the tax information which is absent for the taxpayer doesn’t submit to the tax authority who should do so under the tax law.Normally the taxpayer has submitted the documentations about a transaction which is on the anti-avoidance investigation in the general tax collection procedure.There are not enough evidences,particularly direct evidences,to determine the real tax base when the legal form is abused in almost cases.However,it is not raised by the breach of the documentary obligation of the taxpayer.Therefore the taxable event cannot be determined on the approach of tax estimating.As aproven approach of the prima facie,it is doubted that it could be adopted to find out the economic substance.Under the tax estimating approach,the tax authority just can"estimate"roughly the amount of tax base,which is not the real one in most cases.As a result,the principle of ability-to-pay for tax purpose,which governs the anti-avoidance mechanism as the general principle,should not work when the tax estimating is adopted.Moreover,the tax base may be increased on discretion since there is no procedural rules governing the tax estimating until now.Therefore,it is a mistake to adopt the tax estimating as an anti-avoidance measure.It is not a method to determine the real tax base of an avoidance arrangement unless the taxpayer doesn’t submit the documentations according to the tax law.