التنظيم الأمثل لنطاق الخضوع للضريبة ومدي مراعاته في القانون المصري | ||||
| مجلة الدراسات القانونية والاقتصادية | ||||
| Article 14, Volume 8, Issue 2, June 2022, Page 1361-1394 PDF (1.4 MB) | ||||
| Document Type: المقالة الأصلية | ||||
| DOI: 10.21608/jdl.2022.242089 | ||||
 View on SCiNiTO | ||||
| Author | ||||
| إبراهيم عبـد العزيــز النجــــار | ||||
| أستاذ الاقتصاد والمالية العامة المساعد کلية الحقوق – جامعة المنوفية | ||||
| Abstract | ||||
| The Summary This paper discusses an important issue regarding the scope of taxation in our tax legislations to determine whether the legislator is aware of this problem while drafting or not the provisions of these legislations, in both direct and indirect taxes. It addressed the most important two models of direct taxes, namely the tax on Built-up Real Estates, which began receiving the attention of our tax community as a whole since the end of the last century, and the General Income Tax, as the oldest, and most important among direct taxes in all nations, in addition to the Value Added Tax (VAT) model as the most important indirect tax in our tax legislation, and even in most of comparative tax legislations. Within the scope of the real estate tax, the paper examined whether or not the real estate tax legislation No. 196 of 2008 has considered the real scope of this tax, which it, itself, chose for it, by levying it upon the built-up real estate only, all over the country, and its insistence to include within this scope every built- up real estate whatever the material it may built from, including wood and tin, etc. and wherever its location, even if it was located underground, or under water, etc. In this law, however, we found that the legislator as if it had forgotten this elaboration. Since it began to make some exceptions to it, which led to extend the scope of this tax to include some of non-built - up real estates, such as the non - built lands and installations placed upon roofs or facades of built real estates, though such installations have no characteristics of built - up real estates. On the other hand, the legislator decided to remove some of the built-up real estate items from the scope of this tax, and decided that it does not subject to it. Thus, it violates the established rules regarding in this regard. The paper gave examples for such violations, such as exclude the following from the tax scope: the state-owned buildings; bushes and cemetery buildings; and buildings built for religious rites and religious education. The paper proved that if the legislator wants to take such properties out of the taxation scope, the right treatment then is to exempt them from tax. As for the income tax, the paper showed how clear the scope of this tax in the legislator's mind is when it determines its provisions. The paper presented to the position of pensions and end-of-service rewards from the tax scope, and whether the correct provision is: they are not subject to tax as the legislator ended, or they are exempted from it as some schoolers see. The paper concluded that the nature of the pension differs from the nature of the contributions collected during the work of the insured persons before their retirement; because of the fact that the rules for paying the pension may lead to more or less amounts than those collected in the form of contributions from the insured persons, during the period of their job. Moreover, the insured person may pay the installments or contributions due during his employment age and die just before his retirement date, with no heirs, and thus he – or his heirs- may not receive any pension or compensation at all. So this paper appreciated our legislator's position in this regard, and supported its philosophy to consider the pension and rewards as incomes of a different nature than the salary, and decide to exclude them from the income tax scope. When the paper showed us the discounts granted by the law to some low-level taxpayers in recent years, it appreciated the legislator attitude in this regard, but blamed it for following an indirect way for reach this purpose, deciding that the legislator does not need to such indirect treatment to reach some income tax exemptions. Such treatment should be clearly regulated and commensurate with the rule of certainty that all tax legislations should adopt. The paper also blamed the legislator when it restricted the exemption limit in one slice of 8000 pounds without taking into consideration the number of family members as it used to do before, and appealed to it to return to its precedent philosophy. After that, the paper dealt with another important issue; the interference of taxation scopes on commercial and industrial incomes achieved by commercial and industrial activities' owners, and the possibility of taxing them according to more than one direct tax at the same time such as: income tax; real estate tax; and agricultural tax. The paper appreciated the legislator's position for its ability to resolve such interference, and its success in removing any double taxation that could be achieved therein. When the second chapter of this paper came to examine whether our legislator clearly determined the scope of VAT, as the most important indirect tax in the modern era, it showed us that the legislator had adopted, in the first phase of this tax, the selective approach by the Law No. 11 of 1991, and revealed how its determination for VAT scope was not clear over the last years of its application. Though the initial application of this tax occurred upon a clear scope that related to all manufactured goods, excluding some exemptions, in addition to some other goods determined, namely, in schedule No. (1) accompanied it, and some services determined, namely, in schedule No. (2) Which also accompanied it. This clarity led to decrease problems related to the scope of VAT at that time. However, with the following (last) age of this stage, the VAT scope was not obviously determined; because successive amendments of the law No. 11 of 1991 neglected its philosophy, which had determined its scope to include some goods and services only, as we have pre alluded. Thus, clarity related to the scope of VAT had been decreased. However an important judgment issued after by the Supreme Constitutional Court deciding the unconstitutional of law No. 11 of 2001 that was regarding the retroactive effect of “services operated for others” phrase, that was existed in that law. That phrase was the main reason for the lack of clarity in determining the scope of selective VAT on services therein. In fact, this judgment managed to remove many problems in this regard. Finally, the paper shed light on the negative impact of the clarity lack of the VAT scope upon its justice, whether under the provisions of Law No. 11 of 1991, or according to Law No. 67 of 2016. it concluded that the extension of the VAT scope to many services in addition to those (seven services) the legislator initially intended, led to extend its scope to other new services that had been levied at the general rate, which was then 10%, though the nature of beneficiaries of these new services was enough to tax them at a lower tax rate. Also expanding the application of refund or credit system and extending it to VAT levied to capital goods, as input taxes, for both manufactured goods and services, revealed a paradox that would not have been occurred if the problem of determining the scope of VAT remained clear in the legislator's mind until the end of this selective phase. As a result, it was recognized that the VAT that was levied upon services as inputs had the right to be refunded from the output tax levied upon capital goods, but the VAT that was levied upon consumptive goods as inputs had not the right to be refunded from the output tax levied on capital goods! Moreover, when Law No. 67 of 2016 applied the VAT in its current form, it fetched many aspects of injustice, the paper concentrated upon some of these aspects and clarified that not only did the legislator levy the table tax on many of goods and services listed in that table, but also it levied a value-added tax upon these goods and services. Moreover, it has fetched tax injustice by extending the VAT umbrella to include both the monetary value of the taxable good or taxable service along with the value of the table tax itself, forgetting the simplest rules governing VAT regulation in this regard, as it is well known that the final beneficiary of the taxed good or service bears the Vat burden of any. So if the EGVATA 2016[1] has already levied the tax upon the value of table tax itself, then the state, not the consumer, should pay the VAT due in this case. It is the final beneficiary of the table tax. Thus, this research had exposed to the taxation scope issue to discover whether this issue is or is not clearly lucid in the legislator's mind, when drafting the provisions of various tax legislations, and confirmed the existence of some confusion in some of these provisions, and appealed the legislator to review its position in this regard. God grants success [1]- Egyptian Value Added Tax Act No. 67 of 2016. | ||||
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