Tang Ming pointed out that, in essence, real estate tax is a tax on real estate property rights, and clear property rights are the legal basis for the good operation of real estate tax. During the transitional period, China's real estate property rights system has undergone several changes, and now it has formed a complex property rights pattern with China characteristics: the dual structure of urban and rural areas, the dual structure of real estate and the coexistence of various urban property rights directly lead to the lack of "legal basis" for the current real estate tax reform. How to levy real estate tax on the basis of huge land ownership and extremely complicated real estate property rights in China is one of the difficult problems that must be solved first in the legislative reform of real estate tax. In order to "break the ice" in the legislative reform of real estate tax, we should start with solving the obstacles of property right system that hinder its development and implement the strategy of joint reform of legal reform, property right protection and real estate tax, so as to break the bottleneck of property right legal system that restricts the reform of real estate tax and promote the formation of property right legal basis in market economy.
Specifically, China's real estate property rights are "urban-rural duality" and "real estate" duality, and real estate property rights are divided between urban and rural areas, which directly leads to the taxation pattern of urban-rural division of real estate tax.
Tang Ming pointed out that private individuals only have the right to use urban land, so urban land use tax is levied; Property tax is levied on urban operating real estate. In view of the fact that when the property tax was introduced in the 1980s, the individual family welfare housing allocation was not fully owned, and the proportion of private houses was very low, so the property tax on self-occupied property was not levied for the time being. In rural areas, agricultural tax and specialty tax are levied on the output of agricultural land, cultivated land occupation tax is levied on the occupation of agricultural land for non-agricultural purposes, and urban land use tax is paid after one year of "rural to non-agricultural". Rural real estate has not been included in the scope of expropriation so far, including some "villages in the city" with taxation conditions, wealthy rural areas in the suburbs of cities and some well-developed characteristic agricultural towns and villages.
Tang Ming believes that the dual structure of urban and rural property rights and real estate directly leads to the dual structure of real estate tax system. If the real estate tax to be levied is the unification of urban and rural areas and the unification of real estate collection, the current pattern of urban and rural and real estate rights will be a huge obstacle to the property rights system.
In Tang Ming's view, the essential difference between urban and rural real estate is that urban real estate property rights have already realized market-oriented resource allocation, and urban families can maximize their income through real estate trading market, leasing market and mortgage market. However, at present, the right to use homestead is restricted by laws and regulations, and there is still no standardized and active real estate market in rural areas, and farmers' families have no good channels to realize the preservation and appreciation of real estate.
Although the housing land and area of rural families exceed that of urban families, there is a huge difference in the market value of urban and rural real estate. The fundamental reason for the difference in the value of urban and rural real estate is the difference in property rights and interests of urban and rural real estate. The basic characteristics of the current homestead are "one household, one house, free acquisition, long-term possession, circulation in the village and free withdrawal". Even though the property law officially defines homestead as usufructuary right, it is an independent property right, but unlike the right to use urban construction land, farmers only have the right to possess and use homestead, and have almost no right to gain and dispose of it, let alone freely trade and mortgage it. The property right of rural real estate is extremely incomplete, and farmers' real estate is far from playing the capital function like urban residents' residential assets. Therefore, at present, the real estate assets owned by peasant families are still rigid assets, which are far from qualified for taxation.
Tang Ming believes that the current real estate tax is only levied on the operational real estate in cities and towns, and the future real estate tax should be extended to all real estate. Whether the real estate tax to be levied can really play its functions of raising fiscal revenue, adjusting the gap between the rich and the poor and allocating resources, there are still many legal issues that need to be further clarified. In the current legislative process, there are many problems and challenges in tax design. Among them, one of the biggest problems is that the real estate tax is widely criticized and cannot be supported by the people. One of the problems is that land ownership is public and private ownership has no land ownership. Is there a solid legal basis and reasonable legitimacy for levying real estate tax on this basis? At present, the main reason against levying real estate tax is that urban land is state-owned and it is unreasonable to levy real estate tax on real estate on state-owned land. In western countries with private ownership, the owner owns all the property rights of the land and the real estate on the land, while in China, the land is owned by the state, and the private person only has the right to use it for 40 to 70 years, and there is no property right. Since there is no property right, it is meaningless to levy real estate tax with real estate.
Tang Ming said that in our country, the price of ordinary people buying a house includes the land price of 50-70 years. At present, under the system that the government monopolizes land supply and collects land transfer fees in the next few decades, the land price mainly based on land transfer fees often accounts for 50% of the house price. Then, the real estate tax to be levied in the future is based on the evaluation value of the market transaction price. Is the annual appraisal value real estate tax paid in the holding link suspected of double taxation? The first thorny issue to be faced when levying real estate tax is how to deal with the existing tax-fee relationship involving land and real estate, especially the relationship with land transfer fees. The above problems, from disagreement to understanding, directly affect the functional orientation of real estate tax reform and directly determine whether the real estate tax reform can take substantive steps.
Drawing lessons from the concept of international real right legislation, the legislative focus of China's real right law has shifted from "ownership" to "utilization". First, determine and protect the real right of real estate and its specific powers, and bring the real right related to real estate and the real right related to ownership into the legal system, so that the real estate tax can have a corresponding legal basis for real right. China's land use right and ownership are separated. "Property Law" clearly gives real estate owners the right to use construction land and clarifies their usufructuary rights. Although they don't own the land ownership, they do have the right to use the land with independent property rights beyond the contractual creditor's rights. The independent property right of land use right has laid the property right foundation for the real estate tax. At present, it is urgent to consolidate the complete private property right of real estate, clarify the specific methods for renewing the right to use construction land as soon as possible, or at least clarify the principles for handling it after it expires in the future. It is suggested that with the transformation from "land finance" to "land tax" in China and the improvement of municipal bonds and local tax system, depending on urbanization and local financial situation, the expired land should be automatically renewed free of charge, or the annual rent system and real estate tax system with China characteristics should be implemented. Make clear the basic principles and specific measures for the renewal of the right to use construction land as soon as possible, and fundamentally further consolidate the private property rights of construction land. For the expiration of the term of use of state-owned land, the transferee or sub-transferee of land use right can solve it by paying the annual rent of differential rent to protect the legitimate rights and interests of both land owners and users.
Tang Ming suggested that the protection of rural real estate property rights should be strengthened to lay the foundation for levying real estate tax in rural areas in the future. Among them, the connotation of independent and complete property right of homestead should be clearly defined from the law; Clarify the boundaries of government administrative power and guarantee farmers' right to own homesteads; Reform the system of homestead use and start the rural real estate market; Resolutely solve the "small property right house" and legalize it by paying taxes and collecting real estate taxes.
Tang Ming said that under the background of accelerating urbanization, more and more farmers become citizens in cities, which leads to the weakening of social security rights and the increasingly prominent nature of property rights. Respect market demand and the laws of market economy, let urban and rural real estate and real estate resources and urban and rural capital flow freely in both directions as soon as possible, create all-round conditions to start the rural real estate market, and gradually effectively integrate the urban real estate market based on state-owned construction land with the rural real estate market based on homestead and rural construction land to realize the integration of urban and rural real estate markets. Legally change the current system of free distribution of homesteads obtained as members of rural collectives, change the current legal restriction of "one household, one house" and limit the circulation of homesteads to rural collectives, and ensure that farmers have complete property rights and corresponding homestead property rights. The introduction of market-oriented allocation will gradually make homestead a real commodity, thus laying a prerequisite for starting the rural real estate market.
In addition, in 2007, the Notice of the General Office of the State Council on Strict Enforcement of Laws and Policies on Rural Collective Construction Land stipulated that "small property houses" would not be registered for property rights transactions, which actually prohibited the development of commercial houses on rural collective land. But in the long run, it is necessary and legal to gradually create conditions for the development and construction of commercial housing on rural collective land without violating the land use control and planning. Rural real estate was built under the background of relevant laws and administrative omissions, and it was sold to urban citizens. This kind of real estate, which is established in fact and has a wide influence on people's livelihood, should be temporarily registered in the unified registration of real estate. When the time is ripe, relevant policies and detailed rules will be issued to allow buyers to pay land taxes and fees to register property rights, so as to realize the transition from "small property houses" to private property rights. After the "small property right house" becomes a complete and clear property right, it can be considered to be included in the scope of real estate tax collection, so as to give full play to the property right function of real estate tax to define and protect property rights. The above idea is a relatively fair and reasonable way to deal with the buyers of "small property houses" and the transferor and transferor of the construction land use right of small property houses. It is also an important embodiment of protecting fair property rights, and it is also the starting point of the rural real estate market, which can achieve multiple effects.
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