税法和税收协定都有其本身的特殊性,两者之间的关系要比一般的条约和国内法的关系更加复杂。我国《外商投资企业和外国企业所得税法》与《税收征管法》规定,当其与税收协定的规定不同时,税收协定优先。这种规定不仅在法律上缺乏宪法依据,而且在理论上也有可商榷之处。在一定的情况下,国内税法应可优于税收协定。美国关于税收协定与国内税法关系的规定值得借鉴。在我国宪法没有对条约的法律地位进行规定之前,我国国内税法关于税收协定优先的规定应当取消;在宪法对条约的地位进行规定之后,我国的税法可再据以作出适当的规定。 Tax laws and tax treaties have their own peculiarities. The relationship between the two is more complicated than the general treaty and domestic law. China’s “Income Tax Law for Foreign-invested Enterprises and Foreign Enterprises” and the “Law on the Administration of Tax Collection” stipulate that the tax treaty takes precedence when it differs from the provisions of the tax treaty. This kind of provision not only lacks legal basis for constitutional law, but also has theoretical debates. Under certain circumstances, domestic tax laws should outweigh the tax treaties. The United States provisions on the relationship between tax treaties and domestic tax law are worth learning from. Before the constitution of our country does not stipulate the legal status of the treaty, the provisions of our domestic tax law on the priority of the tax treaty should be abolished. After the constitution stipulates the status of the treaty, the tax law in our country may make further provisions as required.