The limitation of prosecution for tax administrative punishment refers to the effective period for tax authorities to investigate the administrative legal responsibility of offenders who violate national tax laws and regulations and should be given administrative punishment. After this period, you can stop pursuing it. It can be seen that whether the prescription of tax administrative punishment can be accurately defined is an important yardstick to distinguish between legal and illegal law enforcement actions of tax authorities. A scientific and fair system of investigating the limitation of tax administrative punishment is of indispensable significance for safeguarding the legitimate rights and interests of administrative counterparts and improving the efficiency of administrative punishment of tax authorities.
First, the historical evolution of the limitation of tax administrative punishment after the founding of the People's Republic of China
After the founding of People's Republic of China (PRC), the limitation of tax administrative punishment in China has gone through three stages:
1, prescription missing stage.
For a long time after the founding of the people's Republic of China, due to? Value entity over procedure? Influenced by this traditional concept, like other administrative penalties, the prescription of tax administrative penalties in China is in a nihilistic stage, including the original Law of People's Republic of China (PRC) on Tax Collection and Management, which came into effect on 10/9931day. This situation often leads to the inefficiency of tax authorities in law enforcement, and it is difficult to fully protect the legitimate rights and interests of administrative counterparts.
2. The subordinate stage of prescription.
1in March, 1996, the National People's Congress enacted the Administrative Punishment Law of the People's Republic of China, which attracted worldwide attention, and uniformly stipulated the time limit for investigating administrative punishment. According to the principle that the new law is superior to the old law, tax administrative punishment, as a branch of administrative punishment, began to apply the two-year limitation. Although this is a subordinate regulation, it can be said that it is a breakthrough in the zero prescription of tax administrative punishment in China, which promotes the efficiency of tax authorities' law enforcement to a certain extent and protects the legitimate rights and interests of taxpayers. However, due to the complexity and particularity of tax violation cases and the lag of tax law enforcement equipment, this provision does not fully conform to the practice of tax law enforcement, which dispels the rigidity of tax law to some extent.
3. Independent stage of investigation limitation.
On April 28th, 20001year, the National People's Congress deliberated and passed the Law of People's Republic of China (PRC) on Tax Collection and Management (the new tax collection and management law), which came into effect on May 28th, 20001year. In the history of taxation after the founding of the People's Republic of China, this law stipulated the time limit for the investigation of tax administrative punishment for the first time, which greatly broke through the two-year time limit stipulated in the Administrative Punishment Law. This kind of special courtesy enjoyed by tax administrative punishment has been widely praised by tax law enforcement departments. But I think, this one? Historic? The breakthrough has further adapted to the reality of tax law enforcement to a certain extent, which is conducive to better deterring tax violations; On the other hand, whether this breakthrough is truly scientific and fair remains to be discussed.
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In order to link up the application of the old and new tax collection and management laws, on May 18, 2006, State Taxation Administration of The People's Republic of China issued the Notice of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Implementing the Law of People's Republic of China (PRC) on Tax Collection and Management (Guo Shui Fa [2006] No.5438+05) to apply the new tax collection and management law. Tax violations that should be given administrative punishment occurred before September 30, 1996/kloc-0, and shall be implemented in accordance with the provisions of the original tax administration law; 200 1 that occurred before April 30th shall be dealt with according to the provisions of the Administrative Punishment Law; If it happens after 200 1 May 1 day, it shall be implemented in accordance with the provisions of the new tax administration law. ?
Second, the current problems in the limitation of tax administrative punishment in China
1, the law is not strict. Article 86 of the new tax collection and management law stipulates that administrative punishment shall be given to acts that violate tax laws and administrative regulations. If they are not discovered within five years, no administrative punishment shall be given. This regulation clarifies the time limit for investigating and dealing with tax-related violations in violation of national tax laws and administrative regulations. However, in practice, the regulations formulated by the Ministry of Finance of People's Republic of China (PRC) and State Taxation Administration of The People's Republic of China can also set administrative penalties, and it is not clear whether the prescription applies for five years or two years. The author believes that the legislative intention of the new tax collection and management law is that all tax-related illegal acts should be applied for five years. Article 29 of the Administrative Punishment Law stipulates that if an illegal act is not discovered within two years, no administrative punishment will be imposed. Except as otherwise provided by law. The law here refers to the narrow law, that is, the National People's Congress and its designated normative documents, such as the Tax Administration Law. Accordingly, the limitation of punishment set by the regulations can only be applied to two years, which violates the original intention of the new tax collection and management law.
2. The time limit for investigation is not classified. In view of the particularity of tax administrative punishment, the new tax collection and management law has broken through the provisions of the administrative punishment law and is indeed of historical significance. On the other hand, the author thinks that this provision is a bit overkill. First, it violates the principle of justice of administrative punishment. The Administrative Punishment Law stipulates that the establishment and implementation of administrative punishment must be based on facts, which are equivalent to the facts, nature, circumstances and social harm of illegal acts. This provision of course includes the establishment and implementation of the limitation of investigation. In practice, the severity of tax violations varies greatly, and the same time limit for investigation leads to unfair results, such as overdue declaration and false issuance of special invoices. Second, it is not conducive to improving administrative efficiency. The long limitation of investigation, especially some vicious and minor illegal acts, is easy to encourage the inertia of law enforcement personnel. Third, the boundary with criminal law is unclear. China's criminal law stipulates four prosecution periods according to the severity of a crime, which better embodies the principle of adapting crime to punishment. The minimum prosecution period of criminal law is also five years, and tax administrative punishment only punishes ordinary illegal acts, not criminal acts. Generally speaking, the limitation of investigation is the bottom line of criminal prosecution period, which obviously ignores the vicious difference between illegality and criminality.
3. The starting point of prescription is difficult to calculate. Accurately defining the starting point of administrative punishment investigation is an important measure to ensure the legitimacy of administrative punishment. The new Tax Administration Law does not stipulate the time limit for investigating tax punishment, so the provisions of the Administrative Punishment Law are obviously applicable to tax administrative punishment. According to the Administrative Punishment Law, the limitation of investigation is usually calculated from the date of the illegal act; If the illegal act continues or continues, it shall be counted from the date when the act ends. In practice, how to understand the above terms is controversial. Like an inspection? What is the date of the illegal act? Whether it refers to the date of the illegal act, the date of inspection, the date of trial, or the date of the notice of administrative punishment, the implementation varies from place to place. ? Continuous state? 、? Persistent state? How to distinguish and grasp the time interval is often confusing in law enforcement practice. Article 86 of the new tax administration law stipulates? Acts that violate tax laws and administrative regulations and should be given administrative punishment shall not be given administrative punishment if they are not discovered within five years. ? , among them? Did you find it? How to understand and implement it is also a law enforcement difficulty that puzzles law enforcement personnel.
4. The supplementary provisions are unreasonable. According to the supplementary provisions of State Taxation Administration of The People's Republic of China, the provisions of Article 29 of the Administrative Punishment Law shall apply to the punishment of tax violations that occurred after September 30, 1996 and before April 30, 2006, that is, the limitation of investigation shall be two years; The provisions of Article 86 of the new tax administration law shall apply to the punishment of tax violations that occurred after May 1 2006. Both cases are in line with the principle of "from the old to the light", which is reasonable and legal. However, according to the supplementary provisions, the punishment for the illegal acts that occurred before September 30th, 1996 of/kloc-0 shall be subject to the provisions of the original tax collection and management law, and the original tax collection and management law has no limit on the investigation period. Therefore, according to the jurisprudence, it is still legal for the tax authorities to investigate and deal with the above illegal acts. This will inevitably lead to such an unreasonable phenomenon: tax violations that occurred after1September 30, 1996 and before April 30, 2006 may not be punished because they exceeded the investigation period, but illegal acts that occurred before1September 30, 1996 must be investigated and dealt with by the tax authorities according to law, and failure to investigate and deal with them is illegal.
Three, some suggestions to improve the limitation of tax administrative punishment in China
Perfecting the limitation of tax administrative punishment is the premise of implementing the responsibility system of tax law enforcement and comprehensively promoting tax administration according to law. The classic meaning of the rule of law includes two parts: First, the law is generally observed by people. Second, the law that people generally abide by is good law. The same is true for the investigation of tax administrative punishment. If the investigation system itself is unfair and unscientific, the results of the investigation can be imagined. Therefore, it is our inevitable choice to improve the investigation system of tax administrative punishment in China as soon as possible. The author believes that it can be improved from the following aspects:
1, should the national legislature be clear? Law? An extension of.
First of all, it is necessary to make clear whether the prescription of tax administrative punishment in China is unitary or dual. If we choose the former, I think State Taxation Administration of The People's Republic of China should suggest the National People's Congress to make a legislative interpretation of the new tax collection and management law: the first plan is to clarify Article 56 of the new tax collection and management law? Law? Including tax regulations. This method is blunt, because from? French? French? From the perspective of laws and administrative regulations? The law in Chinese usually refers to the narrow law, that is, the normative documents formulated by the National People's Congress and its meetings. The second option is to amend article 86 by adding? , local regulations, rules, etc? .
2. Revise the relevant provisions of the Tax Administration Law with reference to the criminal law model.
In order to ensure the scientific and fair prescription, China can divide the prescription of tax administrative punishment into two categories with reference to the model of People's Republic of China (PRC) Criminal Law, and the prescription of illegal acts that violate the basic management of tax collection and management is two years; The time limit for investigating and dealing with serious illegal acts such as tax evasion, tax refusal and tax fraud is four years.
3. Refine the method of determining the starting point of investigation in tax laws and regulations.
The provisions of the Administrative Punishment Law on the limitation of investigation are rather general, while the new Tax Administration Law and its implementing rules have no clear provisions on the calculation starting point of the limitation of investigation of tax administrative punishment. The author thinks that State Taxation Administration of The People's Republic of China should formulate the Measures for the Implementation of Tax Administrative Punishment according to the characteristics of tax administrative punishment and the types of tax violations. What is the date of the illegal act? To make provisions in principle for the determination of ...; Right? Continuous state? 、? Persistent state? Clearly explain the connotation and extension of vague terms; Right? The day of discovery? How to grasp and make more standardized and unified regulations? Especially? The day of discovery? The identification of inspection cases is very inconsistent, and some places think that it should be the date when the inspection notice was delivered; Some places think that the inspection should be over; Some places think that it should be the day when the internal trial is completed; Some places think that it should be the date of delivery of the Notice of Tax Administrative Punishment, and so on. Inconsistent law enforcement standards will inevitably lead to unfair law enforcement and will inevitably infringe on the legitimate rights and interests of taxpayers.
4. Amend the supplementary provisions issued by the General Administration as soon as possible.
State Taxation Administration of The People's Republic of China should revise the provisions in the Notice of State Taxation Administration of The People's Republic of China on Implementing the Law of People's Republic of China (PRC) on Tax Collection and Management (Guo Shui Fa [20065438+0] No.54) as soon as possible before formulating a separate Measures for the Implementation of Tax Administrative Punishment. The author thinks? Tax violations that should be given administrative punishment occurred before September 30, 1996/kloc-0, and shall be implemented in accordance with the provisions of the original tax administration law; ? Modify it to? If the tax violation that should be given administrative punishment occurred before1September 30, 1996, no administrative punishment will be given, and if it constitutes a crime, it shall be implemented in accordance with the provisions of the Criminal Law; ? This modification conforms to the principle of treating the old with leniency.
Tax administrative punishment is a punitive legal act implemented by tax authorities. Applicable to taxpayers who violate the tax law but are not enough to give criminal sanctions. Tax administrative punishment is the most powerful guarantee for tax authorities to administer according to law, and its basic form is fine. Two points should be pointed out here,
First, the punishment that the tax authorities request other administrative organs to implement should not be regarded as tax administrative punishment, otherwise the tax administrative punishment will lose the necessary boundary with other administrative punishments, and the tax administrative punishment should be marked by the implementation of its own punishment right.
Second, the illegal handling of tax officials is an administrative punishment rather than an administrative punishment. The difference is that administrative punishment is based on the internal regulations of administrative organs for internal staff, while administrative punishment is based on universally applicable laws, regulations and rules for management counterparts; The forms of administrative punishment include warning, informed criticism, demerit recording, gross demerit recording, demotion and salary reduction, dismissal from public office, etc. These are different from administrative punishment.
What are the applicable elements of tax administrative punishment? The application of administrative punishment corresponds to the concept of administrative punishment legislation (including setting), which is the specific application of administrative punishment stipulated by administrative regulations. Specifically, it refers to the activities of administrative organs and organizations authorized by law to decide whether to give administrative punishment to the actor and how to implement it on the basis of identifying the actor's administrative violations. It is an activity that applies the principles, forms and specific methods of administrative punishment stipulated by administrative laws and regulations to various specific cases of administrative violations.
The application of administrative punishment must be based on the administrative violations of citizens, legal persons or other organizations, and no administrative punishment shall be given to citizens, legal persons or other organizations that have not committed administrative violations; There must be a basis for laws and regulations, and no punishment shall be imposed if there is no explicit provision in the law; Must be implemented by the subject who enjoys the right of administrative punishment; The applicant must be an administrative offender, who has no administrative violations and related property, and has certain responsibility ability; The application of administrative punishment also requires the actor to have subjective fault conditions, without subjective intention or negligence, and administrative punishment shall not be applied.
In addition, the application of administrative punishment should also consider the limitation of accountability. Specifically, the applicable premise of administrative punishment, first, the illegal subject is composed of citizens, legal persons or other organizations as the object of administrative management; Second, there are objectively violations of administrative legal norms. The above aspects are the necessary conditions for the application of administrative punishment. On the basis of these conditions, the subject of punishment decides the content of administrative punishment, that is, whether to give administrative punishment to offenders and how to implement it. Specifically, the applicable contents mainly include:
(1) Decide whether to give administrative punishment;
(2) What kind of punishment is the specific form of administrative punishment, such as warning, fine, detention, revocation of license, order to stop production and business, etc. ;
(3) determine the specific discretion methods such as lighter, heavier and single;
(four) whether it is a single punishment or several punishments;
(5) Penalty and penalty deduction;
(6) Limitations of the accountability of tax administrative punishment. Article 86 of the Law on the Administration of Tax Collection stipulates that administrative punishment shall be given to acts that violate tax laws and administrative regulations. If they are not discovered within five years, no administrative punishment shall be given. The application of administrative punishment is not only a substantive issue, but also a procedural issue, and the process of application is also a process of integration of entity and procedure.
The application of administrative punishment is the activity that the subject of punishment applies the administrative punishment law to punish illegal cases.
I. Elements of punishment
The constitutive elements that should be punished refer to the conditions that must be met when an act is subject to administrative punishment, which must be confirmed when administrative punishment is implemented. The specific contents include:
(1) must be illegal. The illegal facts already exist objectively, and the subjective imagination or planning idea of the actor cannot be regarded as illegal behavior.
(2) Illegal acts are in violation of administrative regulations, and administrative penalties can only be imposed on acts that violate administrative norms.
(3) The person who commits the illegal act is the responsible administrative counterpart. The counterpart of administrative punishment is citizens, legal persons and other organizations, among which legal persons and other organizations are the subjects with responsibility ability and can apply administrative punishment. For citizens, they must reach the age of responsibility and have the ability to be responsible before they can be punished. Therefore, the "Administrative Punishment Law" stipulates that people under the age of 14 will not be given administrative punishment if they commit illegal acts; If a mental patient commits an illegal act when he cannot identify or control his own behavior, he shall not be given administrative punishment.
(4) should be punished according to law. The counterpart has committed illegal acts, but some illegal acts may not reach the level of punishment, or because of special provisions of the law, they should not be punished. The administrative organ shall not impose administrative punishment on it. Only when the law clearly stipulates that illegal acts should be punished can administrative punishment be applied.
Second, there is no penalty.
No punishment means that although the perpetrator has committed an illegal act, he will not be punished because of specific circumstances. The Administrative Punishment Law stipulates that no punishment shall be imposed in any of the following circumstances:
(1)1The person under the age of 4 commits an illegal act;
(2) A mental patient commits an illegal act when he cannot identify or control his own behavior;
(three) minor violations and timely correction, without causing harmful consequences.
3. Lighter or mitigated punishment
Lighter punishment refers to the application of lighter types or lower limits of punishment within the statutory types and ranges of administrative punishment, but it cannot be lower than the minimum limits of the statutory range of punishment. Mitigating punishment refers to giving punishment below the minimum range of legal punishment. According to the provisions of the Administrative Punishment Law, a lighter or mitigated punishment shall apply to the following situations:
(1) A person who has reached the age of 14 but has not reached the age of 18 commits an illegal act;
(2) actively eliminating or mitigating the harmful consequences of illegal acts;
(3) Being coerced by others to commit illegal acts;
(four) with the administrative organs to investigate and deal with illegal acts with meritorious service;
(5) Other circumstances in which administrative punishment is given a lighter or mitigated according to law.
Fourthly, the limitation of prosecution of administrative punishment.
The limitation of prosecution of administrative punishment refers to the effective period of investigating the responsibility of offenders and giving administrative punishment. If the time limit is exceeded, no administrative penalty will be imposed. The limitation of prosecution for administrative punishment is two years, and the illegal act has not been discovered by the administrative organ within two years after its occurrence. After two years, no matter when such illegal acts are discovered, no administrative punishment can be given. The prescription shall be counted from the date of the illegal act. If the illegal act is in a continuous or continuous state, it shall be counted from the date when the act ends. Continuous state means that the perpetrator has committed several similar illegal acts continuously, such as selling pirated CDs every day for a month. Persistent state refers to the persistence of illegal behavior in time. For example, it took 15 days to make pirated CDs.
The limitation of prosecution is two years, which is a general rule. Where there are special provisions in the law, such provisions shall prevail.
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