First, the difference between expropriation and civil relations
Second, the subject of responsibility for paying taxes according to law.
Three, one of the new rights of taxpayers-making an appointment for adjudication
Fourthly, the taxpayer's second new right-advance reconsideration.
Fifth, taxpayers have more rights and the illegal cost is lower.
Six, should attract the attention of taxpayers.
Before analyzing, let me talk about my personal views on two basic issues.
First, the difference between expropriation and civil relations
The reason for analyzing the difference between collection and payment relationship and civil relationship is that the understanding of this issue directly affects the understanding of some provisions in the draft tax collection and management law, and also affects how taxpayers enjoy their rights.
Let's take a look at the General Principles of Civil Law of People's Republic of China (PRC) and the relevant provisions of the General Principles of Civil Law:
Article 2 The laws of People's Republic of China (PRC) and the state regulate the property relations and personal relations between citizens and legal persons and between citizens and legal persons as equal subjects.
Article 3 Parties have equal status in civil activities.
Article 4 Civil activities shall follow the principles of voluntariness, fairness, compensation for equal value, honesty and credibility.
According to the above provisions, the characteristics of civil relations can be summarized as: equality, voluntariness and compensation.
The relationship between the two parties-the tax bureau and the taxpayer-can be said to be unequal, involuntary and unpaid.
There is no doubt that the tax bureau and taxpayers are unequal, at least not completely equal. Although everyone must abide by the tax law, the tax bureau is the law enforcement department of taxation, and taxpayers are the object of tax law enforcement.
Although taxpayers also declare their taxes voluntarily, this is because they have to meet the requirements of the tax law, and illegal prices cannot be said to be voluntary.
When taxpayers pay taxes to the tax bureau, they do not get any goods or services directly from the tax bureau, nor do they get paid.
Therefore, the relationship between expropriation and civil relations cannot be confused.
Second, the subject of responsibility for paying taxes according to law.
Taxpayers have the responsibility to pay taxes according to law. But is it the taxpayer's responsibility or the tax bureau's responsibility to pay taxes according to law? Should taxpayers declare and pay taxes independently in accordance with the provisions of the tax law and bear the relevant responsibilities for not paying taxes in full and on time, or should the tax bureau inform taxpayers how much tax to pay? This is actually reflected in Article 36 of the draft Tax Administration Law, which stipulates that taxpayers and withholding agents shall calculate the tax payable and the tax withheld by themselves according to law. The main body responsible for paying taxes according to law should be the taxpayer, not the tax bureau.
Three, one of the new rights of taxpayers-making an appointment for adjudication
Compared with the previous tax collection and management law, one of the rights given to taxpayers by the draft tax collection and management law is to make an appointment for adjudication.
(a) the contents of the appointment award
Article 46 of the draft tax administration law stipulates:
The tax authorities shall establish an appointment ruling system for taxpayers to apply the tax law.
When it is difficult to directly apply the tax system to the accounting and tax payment of specific complex matters that are expected to happen in the future and have important economic benefits, taxpayers may apply for an appointment ruling. The tax authorities at or above the provincial level may, within the statutory authority, make a written appointment ruling for taxpayers to apply the tax law.
Taxpayers who fail to pay taxes or underpay taxes due to compliance with the appointment ruling may be exempted from paying taxes.
(b) The significance of making an appointment for adjudication
Mandate system is of great benefit to taxpayers. Taxpayers hope to have a clear expectation of future tax costs when making major decisions such as mergers and acquisitions and restructuring. However, due to the complexity of tax law, taxpayers are often at a loss. If the tax bureau can have a clear opinion, it will undoubtedly be very helpful for taxpayers to make decisions.
(3) The issue of making an appointment for adjudication.
Appointment ruling is undoubtedly beneficial to taxpayers, but it seems that there are also the following problems:
1, put the responsibility of taxpayers to pay taxes according to law on the tax bureau.
Whether taxpayers should pay taxes on economic matters should be judged by taxpayers independently according to the tax law. Taxpayers are responsible subjects for paying taxes according to law, and tax bureaus are responsible subjects for paying taxes according to law. If taxpayers are not sure whether they should pay taxes, they should consult a tax-related service agency that can bear the responsibility.
2. The general provisions of the tax law have been replaced by the provisions of the administrative department.
The tax bureau is the collection and management department that implements the tax law, and has no final interpretation right on the tax law. However, the draft tax collection and administration law stipulates that "taxpayers who fail to pay or pay less taxes because they abide by the appointment ruling are exempt from paying taxes." In fact, the tax collection and management department has been given the final interpretation right of the tax law, and the general provisions of the tax law have been replaced by the ruling of the tax collection and management department.
3. Replace written law with case law.
China's legal system is not case law, but civil law system and statutory law system. Once the appointment ruling is made, there will be similar cases in the future. Even if there are some problems in the initial ruling, it may have to be hasty, and it is suspected that case law replaces statute law.
(4) the risk of making an appointment for arbitration
For taxpayers, agreement adjudication is a right, but it also has potential risks. Its risk lies in two aspects: one is the risk of changes in tax laws, and the other is the risk of changes in facts.
1, risk of tax law change
When the tax bureau made an appointment for a ruling, it was based on the tax law at that time. If the tax law is changed, the ruling conclusion shall be invalid. If the tax law becomes favorable to taxpayers after the ruling, taxpayers may pay more taxes according to the ruling; If the tax law becomes unfavorable to taxpayers, taxpayers can pay less tax according to the ruling.
2, the risk of fact change
Even if the tax law has not changed after the appointment ruling, it is difficult for taxpayers to ensure that the actual situation is exactly the same as that submitted by the tax bureau when implementing economic transactions. In many cases, even if the transaction changes a little, or even the wording of the contract changes a little, the nature of the whole economic behavior may change, and the conclusion ruled by the tax bureau may no longer apply. If taxpayers handle tax-related matters according to the ruling, risks may arise.
As a new attempt of tax management and tax service, appointment adjudication can be tried. It is estimated that only a few major enterprises can enjoy this right, and it cannot be an inclusive policy. Even taxpayers who can enjoy this kind of treatment should be very cautious, and pies and traps are often one step away.
Fourthly, the taxpayer's second new right-advance reconsideration.
Early reconsideration is also a new right given to taxpayers by the draft tax collection and management law.
(a) the contents of the first reconsideration
The so-called first reconsideration means that taxpayers and tax bureaus can apply for administrative reconsideration first when they have differences on tax payment, and if they are not satisfied with the reconsideration decision, they can bring a lawsuit in court. At present, the tax administration law stipulates that taxes should be paid in accordance with the opinions of the tax bureau before reconsideration or litigation.
Article 126 of the draft Tax Administration Law specifically stipulates that taxpayers, withholding agents, tax payment guarantors and tax authorities may apply for administrative reconsideration in accordance with the law when there is a dispute over tax payment and administrative punishment directly related to tax payment; Whoever refuses to accept the administrative reconsideration decision shall first pay or remit the tax or provide corresponding guarantee according to the tax decision of the reconsideration organ, and then may bring a lawsuit to the people's court according to law.
The significance of the first review
For taxpayers, reconsideration first will undoubtedly help to safeguard their legitimate rights and interests.
Differences between taxpayers and tax bureaus often occur between taxpayers and inspection bureaus. Generally speaking, the policy level and business level of grass-roots tax collectors are lower than those of higher-level tax collectors, and they may be more inclined to collect taxes due to factors such as the pressure of collecting tasks. Early reconsideration is undoubtedly helpful to safeguard the legitimate rights and interests of taxpayers.
(3) the issue of prior reconsideration
However, the practice of the first reconsideration also has the following points to be discussed.
1, equating the expropriation relationship with the civil relationship.
In front of this paper, the relationship between tax collection and payment is not a civil relationship, nor is the difference between the tax bureau and taxpayers on tax payment a civil relationship. For example, if a taxpayer rents an idle office building of the tax bureau, the area and orientation are different, and the taxpayer does not pay the rent, both parties can go to court, because this is a civil relationship. If the taxpayer and the tax bureau have differences on tax payment, they can go to administrative reconsideration without paying taxes, which actually turns the relationship between the taxpayer and the competent tax bureau into a civil relationship.
2. Deprived the grass-roots tax bureau of law enforcement power.
The premise of administrative reconsideration is that a certain tax bureau has made a certain conclusion to the taxpayer, and the taxpayer refuses to accept the reconsideration. If the taxpayer can directly go for reconsideration, it is actually depriving the grass-roots tax bureau of its law enforcement power.
There is a more radical view that in order to reflect the equality of both parties, if there are differences on tax payment, taxpayers can go to court directly. If this is done, the court will actually become the tax bureau, and the judicial power of the court will replace the law enforcement power of the tax bureau. The practice of the draft tax collection and management law actually adopts a compromise between the current tax collection and management law and the radical viewpoint. But this compromise also changed the nature of things.
(d) the risk of prior review
The preliminary examination is undoubtedly a right of taxpayers, but it should be exercised with great care.
After the taxpayer's right of first reconsideration becomes law, the grass-roots tax bureaus will be more cautious when making decisions, and generally seek the opinions of higher tax bureaus. Therefore, the taxpayer's reconsideration is less likely to succeed. In the case of reconsideration failure, even if a lawsuit is filed, the possibility of turning over is far lower than the possibility of continuing failure.
Fifth, taxpayers have more rights and the illegal cost is lower.
(1) Decentralize the approval level of deferred tax payment, and increase the provisions of tax payment by installments.
The examination and approval calculation of deferred tax payment is delegated from the provincial tax bureau to the tax bureau at or above the county level. If the newly paid tax amount is relatively large, it can be paid in installments within one year with the approval of the tax director at or above the county level. This is a very favorable condition for improving taxpayers' cash flow.
(two) late fees into tax interest.
According to the current tax collection and management law, if the taxpayer fails to pay the tax within the prescribed time limit and the withholding agent fails to pay the tax within the prescribed time limit, an overdue fine of 0.5 ‰ will be charged on a daily basis, which is about 18% a year. However, in the draft tax administration law, the late payment fee is changed to tax interest, and the interest rate of tax interest is determined by the State Council in combination with the benchmark interest rate of RMB loans and the reasonable market loan interest rate.
Compared with the late payment fee, the term tax interest is a neutral word, which means that the punishment is less severe. However, it is illegal to pay taxes within the prescribed time limit. It is not the state that agrees to lend taxes to taxpayers. The statement and standard of late payment fees can better reflect the essence of the matter itself. The tax statement is determined according to the market interest rate, which blurs the nature of the matter to some extent.
In addition, there are some difficulties in operation. If the taxpayer delays paying taxes for many years, it may be necessary to apply several different tax rates.
According to the provisions of Article 67 of the draft Tax Administration Law, if a taxpayer fails to perform the tax collection decision made by the tax authorities according to law within the time limit, a 0.5% late fee will be charged on a daily basis from the date of overdue. In other words, the late payment fee is only applicable to the case that the tax authorities fail to fulfill the collection decision within the time limit.
(3) The time for applying for refund of overpaid taxes is extended.
The time for applying for refund of overpaid taxes has been extended from the current three years to five years. Of course, if the taxpayer neglects to pay less tax, the time for the tax bureau to investigate will be extended from three years to five years.
Shorten tax collection time.
The period of tax fraud and refusal was shortened from indefinite to 15 years. New tax arrears for more than 20 years, no longer pursue this provision.
(5) Reduce the fine multiple.
The fine for underpaying taxes by cheating or concealing will be reduced from the current maximum of 5 times to 3 times. The withholding agent's fine is changed from the maximum of 3 times to 1 times.
Those who pay less taxes due to negligence will be held accountable by the Inland Revenue Department and fined less than 50% of the tax paid or unpaid. Those who pay taxes voluntarily, who fail to pay or underpay the tax, shall be fined up to 20%.
Due to the advanced collection and management methods of the tax bureau, the possibility of taxpayers violating laws and regulations is greatly improved. Even if the cost of violation is reduced, it should not stimulate the occurrence of violation.
Six, should attract the attention of taxpayers.
(A) pay attention to tax integrity
Article 9 of the draft tax administration law stipulates that "the state establishes and improves the tax credit system, praises credit, punishes dishonesty and promotes tax payment according to law." Article 8 stipulates that "the state practices a unified taxpayer identification number system." Perhaps in the near future, whether taxpayers pay taxes according to law will become an important factor affecting taxpayers' credit rating, bidding, listing and other major issues. Taxpayers should attach great importance to the integrity of tax payment, at least not be blacklisted by the tax bureau.
(B) E-commerce tax issues
Article 19 of the draft Tax Administration Law stipulates: "Taxpayers engaged in online transactions shall disclose the release information or electronic link logo of tax registration in a prominent position on the home page of their website or the main page engaged in business activities." Article 33 The online trading platform shall provide the tax authorities with the registration information of e-commerce traders.
Although many e-commerce companies do not pay taxes, it has never been stipulated that e-commerce companies can not pay taxes. Selling things in online stores is as taxable as selling things in physical stores. The above provisions of the draft tax collection and management law mean that the tax registration and payment of e-commerce will be put on the agenda gradually, and the good days when online stores do not pay taxes are not expected to last long.
(3) the authenticity of income
The tax bureau has been grasping the taxpayer's information through various channels. Article 22 of the draft tax administration law stipulates that "taxpayers should use the taxpayer identification number when signing contracts, agreements, paying social insurance premiums, registering real estate and handling other tax-related matters." Chapter iv information disclosure is added to the draft tax administration law. Article 31 stipulates: "Units and individuals engaged in production and business operations that pay more than 5,000 yuan to other units and individuals in economic activities shall provide the tax authorities with the payment amount, the name of the recipient and the taxpayer identification number. If the single payment of cash reaches more than 50,000 yuan, the payment amount, the name of the income party and the taxpayer identification number shall be provided to the tax authorities within five days. "
The above provisions will undoubtedly help the tax bureau to grasp the taxpayer's information more timely and comprehensively, and it will become more and more difficult for taxpayers to evade paying taxes by concealing sales and inflating costs.
(d) the coercive force of enforcement.
Law enforcement is a powerful measure of the tax bureau. According to the provisions of the draft tax administration law, the tax bureau may request the people's court and the public security bureau to assist in the implementation. This undoubtedly further increases the coercive power of law enforcement.
(5) tax inspection problems
The draft tax collection and management law gives the tax bureau a wider scope of tax inspection and a more powerful means of inspection. For example, "go to the online trading platform provider to inquire about online transactions, and go to the online transaction payment service agency to inquire about online transaction payment." When taxpayers evade inspection by locking doors and cabinets, the tax bureau can force inspection by opening doors and unlocking them. For taxpayers, it is wise to cooperate actively in tax inspection. Article 124 of the draft Tax Administration Law stipulates: "Those who take the initiative to correct tax violations or cooperate with tax authorities to investigate and deal with tax violations may be given a lighter, mitigated, exempted from administrative punishment or exempted from tax interest, depending on the circumstances."
Of course, there are also some problems in the integrity of the draft tax collection and management law. For example, at present, in addition to the tax bureau, there are taxpayers and banks. There are also tax-related professional service organizations. As a law to adjust tax-related relations, it is necessary to make clear provisions for all parties, especially in the case that tax-related services have reached a large scale, which is neither realistic nor conducive to the harmony of tax-related relations. In addition, how to improve the external constraints of tax collection by the tax bureau according to law is also worth studying.
In addition, there are some technical descriptions worthy of scrutiny. For example, Article 5 of the draft Tax Administration Law stipulates that "the tax authorities shall calculate the tax amount according to the statutory tax rate" and it is more accurate to change it to "the tax authorities shall calculate the tax amount according to the statutory tax rate and tax basis", because it is the tax rate and tax basis that determine the tax amount.
In short, the revision of the tax collection and management law has made great progress in many aspects. As taxpayers, we expect this law to be passed as soon as possible, and taxpayers should learn this law in time to guide their tax-related work, avoid risks and create value.