First, the embodiment and significance of the tax administrative law enforcement crisis
Tax authorities have many difficulties in the process of administrative law enforcement. "Thousands of miles, thousands of miles, influenced by a hundred schools" is a true portrayal of the work of tax officials. At the same time, the potential crisis due to the risk of tax administrative law enforcement also puts forward higher requirements for tax authorities to standardize and effectively enforce the law.
According to relevant information and media reports, due to improper law enforcement, mistakes in law enforcement, administrative inaction or lax enforcement of tax laws, tax administrative reconsideration cases and administrative litigation cases are relatively common in China, and have shown an upward trend in recent years, so many tax officials have been held accountable. According to incomplete statistics, the number of tax administrative reconsideration cases 1994 to 2000 increased from 5438 in 2006 to 3305 in 2005, 3.2 times that of the previous six years; The number of tax administrative litigation cases in China was 328 from 1994 to 2000, and it rose to 108 1 case from 5438 in 2006 to 2005, which was 3.3 times that of the previous six years. In administrative reconsideration cases and administrative litigation cases, few cases can maintain the original decision, and the losing rate is relatively high. For example, in the reconsideration cases concluded by the national tax authorities in 2005, the proportion of maintaining, revoking and changing reconsideration decisions was 54: 46; In the tax administrative litigation cases concluded by the people's court, the proportion of judgment upholding, revocation and change is 48: 52; In 2004, the national tax authorities investigated 204,900 tax collectors, 4,597 were given administrative sanctions and 65,438 were transferred to judicial organs. From July 2005 to the end of 2006, the procuratorial organs investigated and dealt with 439 tax officials for dereliction of duty and infringement. In 2006, only 144 tax officials in the national tax system were investigated and dealt with by the procuratorate for dereliction of duty and infringement. However, from the end of last year to March this year, eight grass-roots front-line tax collectors in Guangzhou and a deputy director of a bureau subordinate unit successively neglected their duties and used power for personal gain. They were questioned, detained, released on bail and even arrested and detained by discipline inspection and procuratorial organs, which brought irreparable negative impact on Guangzhou local tax. The painful lesson has to sound the alarm and arouse our attention.
In view of the above situation, the author thinks that the crisis of tax administrative law enforcement has profound practical significance.
(a) whether the crisis of tax administrative law enforcement can effectively safeguard the vital interests of tax law enforcement personnel. Scientifically preventing and resolving the crisis of tax law enforcement, so as to ensure the safety of tax law enforcement, is the basis for protecting comrades and stabilizing the ranks, and is also the key to building a healthy atmosphere inside and an image outside.
(two) tax administrative law enforcement crisis, can establish a good image of tax law enforcement agencies. For example, law enforcement officers can always maintain a sense of crisis in tax administrative law enforcement, do correct and civilized law enforcement, and at the same time do a good job in tax service and try to resolve the contradiction of tax collection and payment, which can not only resolve the crisis in tax administrative law enforcement, but also establish a good image of themselves and the whole tax law enforcement team. On the other hand, if the law enforcement method is simple and the law enforcement means is rough, it will cause the tension between tax collection and payment, reduce the safety factor of law enforcement, increase the crisis of tax administrative law enforcement, damage the image of the law enforcement team, and make the tax law enforcement work passive.
(3) The crisis of tax administrative law enforcement can ensure the quality of tax law enforcement and tax revenue. If law enforcement officers can always maintain a sense of crisis in tax administrative law enforcement, they can ensure the smooth implementation of government orders, improve their sense of responsibility, overcome paralyzed thoughts, ensure their due diligence and get everything they deserve.
(4) The crisis of tax administrative law enforcement can also prevent corruption, overcome bureaucracy and promote the building of a clean government. Although a small number of tax cadres have caused the crisis of tax administrative law enforcement because of dishonest behavior, their behavior has seriously affected and defiled the image of tax workers, damaged the authority of tax authorities and violated the dignity of the law.
Two, the tax administrative law enforcement system crisis analysis
Tax law is a "double-edged sword", which restricts the exercise of tax enforcement power to a greater extent while regulating taxpayers' tax payment behavior. At present, the crisis of tax law enforcement is not an isolated social phenomenon, which has both the tax authorities' own factors and socio-economic roots. There are both objective and subjective factors. To sum up, there are the following reasons:
(A) tax officials lack awareness of law enforcement crisis. Some tax law enforcement officers lack effective understanding of the possible risks and consequences of improper tax law enforcement, have a weak legal awareness, and enforce the law arbitrarily and lax; The quality improvement of some law enforcement personnel lags behind, failing to adapt to the great changes in economic and tax development, resulting in lax law enforcement procedures and law enforcement crisis. Mainly includes:
1, the work efficiency is low. For example, the inspection department has been handling cases for a long time, resulting in the disappearance of taxpayers and the loss of evidence, leading to some cases that could have been finally handled because of insufficient evidence; Taxpayers question the tax-related audit items handled by the tax collection authorities beyond the time limit; Tax source management information is distorted, and taxpayers disappear after defrauding invoices, resulting in tax loss. This kind of risk is not easy to detect and ignore on the surface of daily life, and the final consequences may be extremely serious, even with legal responsibility.
2. Improper tax handling. The deviation of tax law enforcement officers' understanding of the tax law and related laws makes them pay back taxes on matters not clearly stipulated in the tax law; Delaying the payment of taxes without authorization, and failing to collect the overdue fine according to the provisions; There is no punishment for some cases that should be given administrative punishment; Pay attention to the entity in the work, ignoring the procedure, which leads to the case being unable to be handled because the procedure is illegal. According to relevant data, during the period from 1999 to 2004, the turnover rate of tax authorities rose from about 66% to about 82%, which was much higher than the average turnover rate of 40% of the national administrative organs. Among them, the effectiveness of tax law enforcement cases in providing legal evidence is the weakest link in law enforcement.
3. Tax enforcement is not in place. First, the document was delivered illegally, and the document was not delivered to legal personnel. If it involves taking measures such as tax preservation and tax enforcement against taxpayers, it will cause disputes and conflicts, and there is a direct risk of losing; Second, the implementation measures are not in place, and the tax arrears (fees and fines) have not been effectively recovered. The measures given by law to recover taxes have not been fully utilized, resulting in the loss of state taxes.
4. Making and issuing irregular documents or internal work processes will increase the probability of crisis to some extent. At present, various management systems have higher and higher requirements for tax collectors, which is conducive to the standardization and development of tax collection and management in the long run. However, some of them have too high requirements for tax law enforcement personnel, and even require tax authorities and tax law enforcement personnel to bear the obligations and responsibilities that should be borne by taxpayers. Moreover, various management systems and management requirements overlap with each other, and one requirement is more perfect than the other. Under the current legal environment and tax collection and management environment, it has caused great pressure on tax personnel engaged in grass-roots tax management, thus designing institutional inaction traps for themselves and increasing the probability of law enforcement crisis.
(2) Individual tax collectors use their rights as a tool for personal gain. Grass-roots tax collectors work in the front line and often deal with tax paying enterprises, managers and intermediaries, which is particularly easy to become the main target of corruption of individual criminals. Some people with ulterior motives, through the "bait" of material interests, try their best to win over and "close" the relationship with tax cadres, or act as "brokers" through intermediaries to seek and seek not to pay taxes or pay less taxes. However, when individual tax collectors regard their rights as tools and means for personal gain, it may lead to a crisis of clean government.
1, the audit selects human cases and relationship cases. At present, the evaluation of case selection is not perfect, and case selection is arbitrary. Individual personnel take advantage of the convenience of being at the "entrance" of case inspection and "releasing water without leaving a trace" to seek illegitimate interests by adopting selective filing methods such as "when standing, not standing".
2. Implement case inspection. When carrying out case inspection, tax inspectors make use of management loopholes such as the lack of uniform standards and procedures in evidence selection and effective supervision in the process of evidence selection, attach importance to minor problems, avoid major problems, and neglect major problems. Under the pretext of inexperience and insufficient evidence, they overstate or underpay the recovered taxes and seek illegitimate interests in private.
3. Implementation. Inspectors connive at or instruct taxpayers to transfer executable property by taking advantage of loopholes such as low degree of publicity in case execution, lax enforcement supervision, and greater subjectivity, which leads to the failure to implement or partially implement the results of case inspection and handling, and seek illegitimate interests in private.
4. Corporate income tax settlement and follow-up management. Tax administrators take advantage of the fact that the final settlement of enterprise income tax is mostly represented by intermediaries, reach a tacit understanding with intermediaries or taxpayers, take measures such as turning a blind eye to existing problems or appointing intermediaries, and conspire privately with intermediaries or taxpayers to seek illegitimate interests.
5. Tax relief. Whether it is policy relief or difficult relief, in practice, the specific operation caliber of tax relief is often in the hands of tax administrators. In the case of a large number of applicants and the limited amount of tax relief actually approved, it is easy for tax managers to take advantage of the "double information asymmetry" between their superiors about their work and taxpayers about tax relief and exemption conditions to seek illegitimate interests.
(3) The lack and imperfection of tax legislation. The lack of tax legislation also has its profound reasons for the crisis of tax administrative law enforcement:
1, it is difficult to accurately grasp the relevant elements of substantive law. China's current substantive tax law is mainly composed of separate laws, administrative regulations and rules of various taxes. The tax elements of some taxes are not stipulated in laws, administrative regulations and rules. The discretionary power of tax authorities to exercise tax enforcement power is too large, and subjective factors can easily affect the final tax results, which violates the principle of tax legalism and will inevitably lead to tax disputes and law enforcement crises.
2. The formulation of tax regulatory documents is not rigorous enough. As far as the generalized tax legal system is concerned, the tax normative documents are at the bottom and have the lowest legal effect; The narrow tax law system only refers to the laws, regulations and rules formulated and promulgated by the national legislature in accordance with the legislative procedures. Tax normative documents do not belong to the narrow scope of tax law, but generally exist as a supplement and explanation of substantive law. Due to the loopholes in some tax regulatory documents, the expression is not rigorous enough, which leads to inconsistency and poor connection, which affects the implementation effect of substantive law. However, once a tax case enters the stage of administrative litigation, the people's court only takes laws and regulations as the basis when reviewing specific administrative acts, and the rules can only be used as a reference. Therefore, the explanation or supplement made by normative documents to substantive law is invalid in administrative litigation, and the law enforcement behavior based on it may lead to law enforcement crisis.
3. Some provisions of the Tax Procedure Law are too principled to operate. In the practice of tax enforcement, there are still some vague spaces in the tax collection and management law, such as: whether to add a late fee to the tax for tax adjustment and compensation of related transactions; It is not clear about the taxpayer's failure to declare tax in full and how to grasp the tax limit. It makes tax law enforcement fall into the embarrassing situation of "chaos" or "inaction" in law enforcement, and may encounter law enforcement crisis.
(4) Systematic reasons such as tax collection and management mechanism. Due to the systematic reasons of tax collection and management mechanism and external intervention, the crisis of tax administrative law enforcement mainly includes:
1, the tax collection and management mechanism is not perfect. Judging from the dialectical relationship between collection and inspection, collection is the purpose, management is the foundation and inspection is the guarantee. However, in practice, there are some problems such as unclear division of authority and poor communication. Due to the separation of functions, the information exchange channel between tax collection and inspection is not smooth, and the relevant tax-related information cannot operate effectively among various departments, which has affected the crackdown on tax-related illegal acts, formed a large number of runaway households and abnormal households, and formed a law enforcement crisis. In addition, there are also problems such as information sharing and untimely communication between tax and industry and commerce, banking, finance and other departments, between national tax and local tax, and between tax departments in different regions, which will also affect the crackdown on tax law enforcement and cause passive work.
2. Risk of intervention from all sides. Due to the speed of local economic development and the pressure of social employment, many local governments follow the one-sided working ideas of "only paying attention to the economy" and "only paying attention to GDP". However, there are various links between tax authorities and local governments, especially in tax sources, funds and construction, and they often take a cooperative attitude towards the "desire" and "overall situation" of the government. Some governments are on the verge of law. In such a social environment, tax enforcement has always been the focus of various contradictions, and a series of problems such as administrative intervention, human intervention, poor cooperation between departments and judicial corruption have seriously restricted the fairness of law enforcement.
3. Tax law enforcement is subject to multi-level supervision and restriction, which increases the law enforcement crisis. With the increasing proportion of tax revenue in national fiscal revenue, tax law enforcement, as a part of national administrative law enforcement, has been closely concerned by discipline inspection and supervision organs at all levels, people's procuratorial organs and all walks of life. The social supervision of tax authorities and law enforcement personnel has been strengthened, which requires tax authorities and their staff to have higher law enforcement level and stricter law enforcement standards.
Third, the resolution of the tax administrative law enforcement crisis
Solving the crisis of tax administrative law enforcement is an important part of the national tax management mechanism, and it is also the fundamental guarantee for managing taxes according to law. In this regard, White, a famous American administrative jurist, pointed out that there are many bad situations in administrative operation, such as abuse of power, violation of law and discipline, violation of civil rights, poor management, irresponsibility, etc., which easily lead to the crisis of tax administrative law enforcement. Therefore, it is necessary to formulate and improve the corresponding countermeasures to effectively supervise the administrative system and ensure its efficient operation. At the same time, it also "ensures that the actions of administrative officials are not only in harmony with the law, but also in line with the purpose and psychology of citizens." We can communicate in advance and make a complete crisis emergency management plan to minimize the losses caused by the crisis to the tax authorities. In addition, in the event of a crisis, tax authorities should learn to communicate effectively and learn to deal with and resolve the crisis; Turn the crisis into an opportunity for tax development.
One of the countermeasures: make a crisis emergency management plan. Crisis management is also called emergency management. If you don't prepare in advance, it is easy to make mistakes when a crisis occurs. In order to improve the quality and efficiency of crisis response, it is necessary for us to make a crisis emergency management plan. In the face of possible tax law enforcement crisis, we can take measures including evasion, compliance and cooperation. Taking this measure determines whether we can effectively resolve and solve the crisis when it happens. In today's harmonious society, it should be our first choice to solve the crisis of administrative law enforcement with a cooperative attitude of communication and coordination. By communicating with taxpayers, coordinating with higher authorities and consulting with judicial departments, we can make some concessions on some issues that are not important to ourselves but important to the other side to resolve the law enforcement crisis and avoid administrative failure and being held accountable for law enforcement. Especially after the crisis, in the face of taxpayers or external regulators, what should we say, by whom, in what way, and how can we control or strive for the best communication effect? Therefore, it is necessary to make a crisis emergency management plan.
Specifically, when making a crisis emergency management plan, we should grasp the following principles: first, clarify the responsibilities, and then take corresponding countermeasures. If the tax authorities are not responsible and the crisis is entirely caused by taxpayers, they should adopt the strategy of quick decision and reply to taxpayers in writing as soon as possible to explain the problem. If the tax authorities want to take full responsibility, they should adopt the strategy of retreating for progress. First of all, they should make a written commitment to deal with the problem fairly, then take measures to stop the spread of the situation, and finally, they should dare to openly review and save the influence. If the tax authorities want to bear part of the responsibility, they should adopt the strategy of social consultation. First, they should invite an impartial third party to determine the responsibility. Secondly, they should choose the "opinion leaders" of taxpayers for equal consultation. Finally, they should take the initiative to improve the shortcomings in their work. Through the adoption of the above coping strategies, we can convince people with reason, treat people with affection and treat people with law, and the ultimate goal is to resolve the crisis, tide over difficulties and solve problems.
The second countermeasure: establish a crisis early warning mechanism. Objectively, any organization has various problems and defects. If these problems and defects are not properly solved, they will change from quantitative change to qualitative change, and under the temptation of some incentives, they will become the prone and frequent parts of the crisis. We can control it through daily institutionalized management and prior monitoring, that is, all tax officials are highly sensitive to crisis-prone areas and have good crisis awareness and good crisis response ability. To do this, it is necessary to train and educate all kinds of crises in advance, improve the crisis awareness of all tax personnel, improve the tax law enforcement mechanism, and control and reduce the occurrence of tax crises.
First, improve the comprehensive quality of tax officials and enhance their ability to resolve the crisis. It is necessary to educate tax officials on "rule of law" and "law enforcement crisis" to deepen the awareness of law enforcement crisis of inspection cadres and make them have a higher level of understanding of their work. Therefore, strengthening the study of relevant laws and regulations and improving the professional quality of tax law enforcement personnel are the basis for ultimately preventing the crisis of tax law enforcement. The learning content includes two aspects: First, the current tax laws, regulations and policies are the basis and standards for daily tax enforcement. Only by thoroughly understanding the knowledge of tax law can we improve our professional ability and law enforcement level, and avoid dereliction of duty due to inadequate law enforcement or abuse of power in ultra vires law enforcement; The second is the relevant provisions on the handling of law enforcement faults, violations, disciplines and illegal acts, which are the "high-voltage lines" that tax law enforcement personnel should try to avoid touching. Obviously, only when tax officials are familiar with the relevant responsibilities of irregular law enforcement can they standardize law enforcement more consciously and effectively reduce and prevent the occurrence of tax law enforcement crisis.
The second is to improve the law enforcement supervision mechanism and increase internal punishment. We must further improve the internal law enforcement responsibility system. It is necessary to adapt to job responsibilities and work processes, standardize law enforcement procedures, and realize the effective connection between law enforcement posts and upper and lower links; Find out in advance the management loopholes and ineffective monitoring that may be caused by the unconnected law enforcement process and operational difficulties, make up and correct them in time, and reduce the potential crisis of the system; Continue to strengthen the assessment, give full play to the effectiveness of the tax law enforcement responsibility system, and establish a target management assessment mechanism with the tax law enforcement responsibility system as the core; Strictly investigate the fault liability and increase the internal punishment, so as to promote the tax law enforcement personnel to change from passive to active, and change "asking me to supervise" into "asking me to supervise", effectively prevent the occurrence of abuse of power, reduce illegal law enforcement and resolve the law enforcement crisis.
The third countermeasure: to establish and improve the crisis resolution operation mechanism mainly requires the tax authorities to innovate the tax management mechanism and promote administration according to law.
The first is to take precautions in advance. Establish law enforcement procedures and regulatory document review mechanism, regularly review applicable law enforcement procedures and regulatory documents, and actively put forward countermeasures to superiors in view of tax system defects and tax policy loopholes, so as to standardize the interpretation of tax law, safeguard the unity, stability and seriousness of tax law, ensure that tax law enforcement has laws to follow, and avoid the damage to taxpayers' legitimate rights and interests caused by the execution of wrong documents, which will lead to unnecessary administrative litigation and even law enforcement violations. In view of the lack of clear or comparable principles in some laws and regulations, it is difficult to grasp the situation in the collection and inspection work, and establish a consultation system for difficult matters to resolve the law enforcement crisis.
Second, based on the centralized core system, the inspector platform is established, and all kinds of specific information related to audit management are integrated into a working platform through information technology. Focusing on improving the quality and efficiency of audit work, according to the four functional modules of case task management, case source information management, audit management and comprehensive management, specific work items, responsibilities, workflow and assessment standards are released through the information platform. Form an all-round inspection information resource service system for operation layer, management monitoring layer and decision support layer, realize the effective docking of tax collection and tax administrator platform, realize fine tax management through information digitization, thus improve the efficiency of tax management, realize benign interaction, form a high-speed operation mechanism of "finding problems in time, feeding back problems in time, communicating information in time and investigating them in time", ensure the orderly and efficient tax enforcement activities of various functional departments, and solve law enforcement problems to the maximum extent.
Thirdly, tax inspection should implement audit inspection working papers, and correct the deviation caused by people's subjective judgment and arbitrariness by unifying and standardizing audit procedures, steps and methods; By determining the audit focus, the tax issues that may be involved in the whole process of enterprise production and operation are fully revealed to ensure the depth and breadth of audit work; Through the working papers, the working process and quality of inspectors can be reflected concretely, which provides a standard for supervising and restraining inspectors, so that inspectors can't make a difference on the issue of dishonesty and inaction.
Fourthly, establish tax assessment guidelines for classified management, and construct tax assessment index system and early warning index system; Establish a set of quality risk assessment methods for intermediaries, improve the management measures for risk classification of intermediaries, and improve the supervision mechanism; Extend the collection management to all links related to enterprise operation and taxation, master the accounting system of enterprises or enterprise groups, master the operating characteristics of enterprises, master the major changes in enterprise production and operation, and avoid tax loss due to neglect of management.
Fifth, increase the publicity of tax matters, publicize the time limit and process, and report the results in time; Refine the operation rules, standardize the reduction and exemption procedures, and reduce the artificial operation space of tax administrators; Gradually cancel the internal quota control of tax reduction and exemption, and examine and approve according to law.
Countermeasure 4: The establishment of crisis coordination and communication mechanism requires the tax authorities to do the following work:
While practicing internal strength, we should do a good job in tax law publicity, coordinate all aspects, strive for the understanding and support of all sectors of society for tax work, form a mass system of tax cooperation and protection, jointly safeguard tax order, create a good tax environment, and resolve the law enforcement crisis of tax authorities. On the one hand, we should make effective use of various media, popularize the knowledge of tax law, enhance the consciousness of paying taxes according to law in all walks of life, and gradually coordinate the construction of tax legal system with the people's legal concept. Putting the behavior, procedure and time limit of tax law enforcement under the supervision of taxpayers and shaping a good image of tax law enforcement can gain the understanding and support of taxpayers and effectively reduce possible contradictions and conflicts in tax law enforcement. At the same time, deepen the level and content of cooperation with national tax, industry and commerce, housing management, customs, banks, intermediaries and other departments, make good use of the role of local government tax insurance institutions, and obtain the cooperation and support of relevant departments. On the other hand, it is necessary to strengthen coordination and communication with discipline inspection, supervision, procuratorial work, public security and courts, jointly study and discuss the difficulties and problems encountered in tax law enforcement, resolve the external tax law enforcement crisis, and jointly build a harmonious and interactive tax environment.
1, Yang Keyang Kuan: Standardizing Tax Responsibility-Avoiding Law Enforcement Risks, Lanzhou State Taxation Bureau Network (September 5, 2007).
2. Huo Zhiyuan and Liu: "Better late than never-on the prevention of tax law enforcement risks", website of State Taxation Bureau of Hebei Province (2007- 12- 17).
3. Xie: How to prevent and resolve tax law enforcement risks, China Tax News.
4. Chen Ruilian Cai: Public management.