How to help optimize the business environment? The tax administration law needs to be changed like this
Release time: 2019-04-09 Preview times：910
Since the implementation of the current "Tax Collection and Administration Law", in tax practice, disputes on the investigation of legal liabilities such as "whether tax evasion should have subjective intention" and "whether false invoices should have the double intention of false opening and tax evasion" have always been heard. On January 5, 2015, the "Draft Revision of Tax Collection and Administration Law ("Draft for Comment") issued by the Legislative Affairs Office of the State Council (hereinafter referred to as the "Draft for Comment") revised relevant provisions to resolve such disputes. For example, “tax evasion” is used to replace “tax evasion”, unpaid underpaid taxes caused by negligence are separated from tax evasion, and relatively light penalties are stipulated. However, the author believes that such amendments in the "Draft for Comments" are only based on "solving problems" and are still confined to "remediation" under the existing framework, and there is no complete system of legal liability for tax violations. system. This kind of thinking of law revision may lead to disputes between the two parties, "one will lose the other," and the revision will fall into the situation of "treating the symptoms but not the root cause".
In view of this, the author proposes to take the opportunity of the revision of the Tax Collection and Administration Law to reconstruct the chapter of "Legal Liability" for tax violations, and to clarify the legal responsibilities of tax violations (accountability method), the principle of liability, and the principle of accountability, etc. , To comprehensively reshape the legal responsibility system for taxation violations, avoid disputes with the system design, and achieve both guiding tax compliance and safeguarding the legitimate rights and interests of taxpayers, and assisting the continuous optimization of the taxation business environment.
1. Clearly define the legal liability for tax violations
The current "Tax Collection and Administration Law" stipulates the legal liabilities for tax violations, mainly including tax recovery, late payment fees, administrative penalties, blocking exits, collection or suspension of the sale of invoices, and tax arrears announcements. However, the aforementioned legal responsibilities are not uniformly regulated in the "Legal Liability" chapter, but scattered in the "Tax Collection" and "Legal Liability" chapters. On the one hand, tax-related parties lack a complete and unified understanding of what are tax violations and what legal responsibilities should be borne by tax violations, which is not conducive to guiding tax compliance; on the other hand, it triggers the jurisdiction of different functional departments within the tax authority to pursue legal liabilities. Disputes, such as whether the Tax Inspection Bureau can apply the provisions of the "Tax Collection" chapter to make a decision to collect or stop the sale of invoices.
Based on this, the author suggests that in the "Legal Liability" chapter of the Tax Collection and Administration Law, the legal responsibility for tax violations should be unified: On the one hand, it is clear that the legal responsibility for tax violations includes loss recovery (tax recovery) and interest increase. Penalties (additional late fees), administrative penalties (fines, confiscation of illegal income, confiscation of illegal properties), cancellation or restriction of related rights (prevention of exit, collection or suspension of invoices, suspension of export tax rebates) and reputation sanctions (announcement of tax arrears) To ensure that both parties to the collection can clearly define the legal responsibilities for tax violations. On the other hand, it stipulates who should be held accountable for tax-related parties’ tax violations, conditions and procedures, etc., to ensure that tax authorities know the boundaries of power and follow due process, so that the legitimate rights and interests of tax-related parties can be protected. The business environment is optimized.
2. Formally establish the principle of liability for tax violations
The "Administrative Punishment Law" did not clarify the principle of imputation for administrative violations, but when the "Tax Collection and Administration Law" was revised, legislators formally established the principle of imputation for violations in the tax field and there was no legal obstacle.
The author believes that legislators can make clear provisions on the principle of liability for tax violations when amending the "Legal Liability" chapter of the Tax Collection and Administration Law:
The first is to establish the principle of imputation for the presumption of fault for tax violations.
With the goal of regulating taxation order and optimizing the business environment, taking into account the efficiency of tax administration management, the "Legal Liability" chapter of the Tax Collection and Administration Law should identify the principle of liability for administrative violations, the principle of presumption of fault, as tax violations. The basic principle of imputation. That is to say, when the tax authority proves that there is a causal relationship between the tax violation and the fact of damage (not paying underpaid taxes, disrupting the order of tax collection and management, etc.), if the tax-related party cannot prove that the damage occurred without fault, the The fact of damage itself presumes that it is at fault, and its legal responsibility is pursued. Under the principle of presumption of fault, the imputation of tax violations is not subject to subjective status, which is not only conducive to the formation of risk awareness of tax-related parties and the formation of tax compliance, but also minimizes levy disputes, regulates taxation order, and is fair. To lay the foundation for the creation of a tax environment.
The second is to clarify the exceptions for the presumption of fault in tax violations.
On the one hand, under the principle of ignoring the subjective intentional fault presumption, for certain tax violations that do need to consider the subjective status for imputation, the subjective status shall be explicitly stated as a constituent element of the violation in the corresponding legal liability clauses. Implied expression. On the other hand, in the presumption of fault principle, exception clauses are reserved for other tax laws and regulations (such as the "Invoice Management Measures", etc.) to coordinate with other tax laws and regulations.
The third is to establish the principle of exemption from liability for tax violations.
The presumption of fault principle is the principle that allows the parties to defend themselves. If the tax-related parties can prove that they have no fault (intentional and negligence) for the damage, they should not be held accountable. The current "Tax Administration Law" only exempts tax-related parties for non-payment and underpayment of tax due to the responsibility of the tax authority (exemption from additional late fees and no fines). Such a strict exemption is not in line with fault The requirements of the presumption principle. The author suggests that it is clear in the "Tax Administration Law" that tax-related parties can prove that there is no fault in the occurrence of the damage, or can prove that the damage occurred due to the responsibility of the tax authority or other units with management authority, and the tax-related parties should be exempted from the law Responsibility to reflect the substantial protection of taxpayers’ rights and interests.
3. Reshaping the principle of accountability for tax violations in an all-round way
Excessive accountability for tax violations and excessive discretionary powers on administrative penalties granted to tax authorities are important reasons why the current "Tax Collection and Administration Law" has been criticized.
In the context of optimizing the business environment, in order to actively respond to calls from all walks of life to reduce the burden on taxpayers and safeguard the legal rights and interests of taxpayers, the author suggests that the Tax Administration Law should start with the following four aspects to comprehensively adjust and reshape tax violations. Behavior accountability principle:
One is to reduce imperative norms and increase authoritative norms.
Most of the legal liability clauses related to unpaid and underpaid taxes in the current "Tax Collection and Administration Law" are imperative, which leads to tax authorities to impose penalties on tax-related parties once they violate the law, and the legal liability is heavier. The author suggests that for tax violations that are not subjectively malignant, such as non-payment and underpayment of taxes caused by negligence, the legal liability clauses should be changed from "should be punished" imperative regulations to "can be punished" authorization clauses. The taxation authority will make discretionary decisions on whether to impose penalties based on the situation of the individual case, so as to reduce the burden on taxpayers and reduce the conflicts and confrontations between the taxpayers and the taxpayers.
The second is to establish a system for active correction and exemption from accountability.
If a tax-related party violates the provisions of the tax law, if the tax authority voluntarily corrects its illegal conduct before the tax inspection is carried out on it, except for very special circumstances, such as the circumstances are particularly serious, the amount of money is particularly large, and the social impact is particularly bad, it should be in principle Exemption from administrative penalties and other serious legal liabilities. Through exemption from accountability, taxpayers are guided to actively carry out self-examination and self-correction, take the initiative to correct illegal acts, prevent tax risks, and form tax compliance.
The third is to clarify the circumstances under which the punishment can be lightened or mitigated.
The lighter and mitigating penalties stipulated in Article 27 of the Administrative Penalty Law are applicable to tax administrative penalties, but because most of the legal liability clauses related to unpaid and underpaid taxes in the current Tax Collection and Administration Law stipulate fines As a result, the tax authorities have long refused to apply lighter punishments to tax-related parties on the grounds that the special law is superior to the general law, damaging their legitimate rights and interests. The author suggests that when amending the "Tax Collection and Administration Law", it is clearly stipulated that tax violations that meet the prescribed circumstances should be lighter and mitigated.
The fourth is to introduce competition and cooperation rules to solve the problem of multiple accountability.
As mentioned above, the current "Tax Collection and Administration Law" has established legal liabilities for tax violations including five categories and more than ten items. However, except for "fines" which are regulated by the "Administrative Penalty Law" of "no two penalties", certain procedures are avoided. Except for the problem of excessive accountability, other legal liabilities are not regulated by competition rules when they are being investigated. As a result, certain tax-related violations of tax-related parties may be held accountable for multiple violations of several tax laws. The author proposes that the "Tax Collection and Administration Law" establish a system of legal liability investigations, and apply "heavy responsibility, absorb lighter responsibility" to other legal responsibilities other than the liability for loss recovery (tax recovery) and additional penalty (additional late payment fees). The principle of “competitive responsibility” solves the problem of excessive liability caused by the number of responsibilities and the pursuit of accountability.
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How to help optimize the business environment? The tax administration law needs to be changed like this
