Beijing No.1 Intermediate People's Court

? the administrative ruling

(20 16) Jing 0 1 Hangchu 10 1

Plaintiff Xiong Jun, male, was born in February of 1978 1 year, and his domicile place is Wanzhou District, Chongqing.

Authorized Agent: Li Feng, lawyer of Hubei Kaiqi Law Firm.

Defendant, People's Republic of China (PRC) State Taxation Bureau, whose domicile is No.5 Yangfangdian West Road, Haidian District, Beijing.

Legal Representative: Wang Jun, director.

Authorized Agent: Zhang, male, deputy inspector of State Taxation Administration of The People's Republic of China Policy and Regulation Department.

Authorized Agent: Wang Jiaben, lawyer of Beijing Tianchi Juntai Law Firm.

Plaintiff Xiong Jun believes that defendant People's Republic of China (PRC) State Taxation Administration of The People's Republic of China (hereinafter referred to as State Taxation Administration of The People's Republic of China) failed to perform his statutory duties and refused to accept State Taxation Administration of The People's Republic of China's decision to reject the application for administrative reconsideration (hereinafter referred to as the respondent's reconsideration decision), and filed an administrative lawsuit with our court. After filing the case, the court served the defendant with a copy of the indictment and State Taxation Administration of The People's Republic of China's notice of responding to the lawsuit within the statutory time limit. Our hospital formed a collegial panel according to law and heard the case in public on May 16. The plaintiff and his entrusted agent, and the defendant's entrusted agent Zhang, attended the proceedings in court. The case has now been closed.

2065438+On June 29th, 2005, the plaintiff mailed an application to State Taxation Administration of The People's Republic of China, demanding that State Taxation Administration of The People's Republic of China perform his legal duties according to law, investigate and deal with the illegal acts of Beijing Guangfa Ye Wei Electric Co., Ltd. (hereinafter referred to as Guangfa Ye Wei Company) and its shareholder Zhong Donghua, such as forgery, alteration, concealment, unauthorized destruction of account books, accounting vouchers, tax evasion and so on, and investigate the legal responsibilities of the offenders according to law. Later, the plaintiff believed that State Taxation Administration of The People's Republic of China refused to handle the application submitted by him, and filed an application for administrative reconsideration with the defendant, requesting to confirm that State Taxation Administration of The People's Republic of China's failure to perform his statutory duties in accordance with the law was illegal, ordering State Taxation Administration of The People's Republic of China to continue to perform his statutory duties, and informing the plaintiff in writing of the progress of the case. Upon examination, the defendant believed that according to the provisions of Articles 3 and 14 of the Administrative Measures for Reporting Tax Violations, State Taxation Administration of The People's Republic of China, after receiving the plaintiff's report, transferred it to the inspection bureau of the lower tax authorities as a general case and conducted an investigation according to relevant laws and regulations. State Taxation Administration of The People's Republic of China has fulfilled its legal duty by registering and transferring the plaintiff's report. Therefore, on 20 15 12 14, the defendant made a reconsideration decision and rejected the plaintiff's application for administrative reconsideration according to the first paragraph of Article 48 of the Regulations for the Implementation of People's Republic of China (PRC) Administrative Reconsideration Law and the first paragraph of Article 78 of the Tax Administrative Reconsideration Rules.

Xiong Jun, the plaintiff, claimed that according to Article 5 of the Law of People's Republic of China (PRC) on Tax Collection and Management, State Taxation Administration of The People's Republic of China was the competent tax department of the State Council, and was in charge of the national tax collection and management. Articles 60 to 80 of the Law stipulate that the competent tax authorities have the right to investigate and deal with tax evasion and other tax violations. Therefore, State Taxation Administration of The People's Republic of China has the statutory duty to investigate and deal with tax violations. As a shareholder of Guangfa Ye Wei Company, the plaintiff applied to State Taxation Administration of The People's Republic of China to investigate and deal with the illegal acts of Guangfa Ye Wei Company and its shareholders. State Taxation Administration of The People's Republic of China, after receiving the application, fails to issue a written receipt and reply in accordance with legal procedures and in accordance with the provisions of the first and fourth paragraphs of Article 10 of the Measures for the Administration of Reporting Tax Violations, and performs his duties within the time limit specified in Article 16 of the Measures for the Administration of Reporting Tax Violations, it shall be deemed that the act is illegal. The plaintiff applied to the defendant for administrative reconsideration on the grounds that State Taxation Administration of The People's Republic of China failed to perform his statutory duties. Although the defendant cited the legal provisions when making a reconsideration decision against the defendant, it did not point out which provision of the clause was specifically applicable, which was an error in applying the law. And the defendant failed to submit evidence materials such as the time of receiving the application for administrative reconsideration, whether to make a notice of acceptance, whether to serve the plaintiff, whether to expect the respondent to serve the application for administrative reconsideration and the delivery time, whether the respondent submitted a written reply and evidence, and the person in charge or the collective discussion decision before making the reconsideration decision. , belongs to the failure to submit evidence on the legality of the reconsideration procedure, and shall bear the legal responsibility of false evidence. To sum up, request the court to decide to cancel the reconsideration decision; Confirming that it is illegal for the defendant not to perform his statutory duties, ordering the defendant to continue to perform his statutory duties, and informing the plaintiff of the progress of the case in writing; The litigation costs in this case shall be borne by the defendant.

Within the statutory time limit for adducing evidence, the plaintiff submitted the following evidence to our court to support his claim: 1. Application for performing statutory duties, 2. EMS mail order and detailed list. The above evidence proves that the plaintiff applied to State Taxation Administration of The People's Republic of China to perform his duties, and State Taxation Administration of The People's Republic of China signed for it on June 30, 20 15; An application for administrative reconsideration, which proves that the plaintiff applied for administrative reconsideration to the defendant because State Taxation Administration of The People's Republic of China failed to perform his statutory duties; 4. The reconsideration decision of the respondent.

The defendant argued: 1. The defendant made a reconsideration decision on the defendant, and found that the facts were clear, the evidence was indeed sufficient, the procedure was legal, the applicable law was correct, and there was nothing improper. Second, the plaintiff's claim has no factual and legal basis. After receiving the report, the defendant has fulfilled all the handling duties of registering and forwarding the report, and there is no administrative omission. According to the provisions of Article 20 of the Measures for the Administration of Reporting Tax Violations, after receiving the investigation results replied by the undertaking department, the reporting center may, at the request of the informant, inform the informant of the investigation results related to the reporting clues; Before reporting the case, it is not allowed to disclose the investigation and handling of the case to the prosecutor. The defendant has no legal obligation to inform the reporting progress and/or investigation results in writing, while the reporting center of the Inspection Bureau of Beijing State Taxation Bureau has the obligation to inform the reporting investigation and handling results when the legal conditions are met. In the administrative reconsideration procedure, the reported cases involved are still in the process of inspection and have not been closed, and the reporting center of the Inspection Bureau of Beijing State Taxation Bureau has no legal obligation to inform the plaintiff. To sum up, I request the court to reject the plaintiff's claim.

The defendant submitted the following evidence to our court within the statutory time limit for adducing evidence: 1. 1. Application for performing legal duties according to law and postal order, which prove that the defendant received the application materials of the plaintiff; 2. 1. Letter on Reporting Matters of Beijing Guangfa Ye Wei Electric Co., Ltd. (No.0673 of the State Administration of Taxation [20 15], hereinafter referred to as Letter No.673), which proves that the defendant has transferred the report to the plaintiff according to law and has performed legal duties; 3. State Taxation Administration of The People's Republic of China Inspection Bureau provided the materials of the Policy and Regulation Department about Xiong Jun's motion, which proved that the defendant had found out the facts of the case during the reconsideration; 4.EMS mail order, which proves that the defendant made and served the reconsideration decision on the defendant within the statutory time limit, and found that the facts were clear, the procedure was legal and the applicable law was correct.

After cross-examination in court, the defendant has no objection to the evidence 1 and 2 submitted by the plaintiff, and has no objection to the authenticity of the evidence 3, but does not agree with the probative function of the evidence advocated by the plaintiff, and thinks that the evidence 4 is the accused behavior in this case, not the evidence. The plaintiff has no objection to the evidence 1 4 submitted by the defendant, and thinks that the evidence 2 belongs to the defendant's internal information and has nothing to do with this case. Evidence 3 has no official seal of the reporting center, the identity of the signer is unknown, and the attached reporting materials have no official seal, which raises objections to the authenticity of the evidence.

After examination, our court believes that the evidence submitted by the plaintiff is the administrative reconsideration decision of the sued case and is not used as evidence; Other evidence submitted by the plaintiff and the evidence submitted by the defendant are related to the legality review of the alleged behavior in this case, which meets the requirements of legality and authenticity of the evidence and can prove the relevant facts of this case, and this court will adopt it.

It was found through trial that on June 29th, 2005, the plaintiff mailed an application to State Taxation Administration of The People's Republic of China to perform legal duties according to law, demanding that State Taxation Administration of The People's Republic of China investigate and deal with illegal acts such as forgery, alteration, concealment, unauthorized destruction of account books, accounting vouchers and tax evasion. Guangfa Ye Wei Company and its shareholder Zhong Donghua, and investigate the legal responsibility of violators according to law. On June 30th of the same year, State Taxation Administration of The People's Republic of China received the above application. On September 8th of the same year, State Taxation Administration of The People's Republic of China Inspection Bureau made a letter No.673, and transferred the reported matters to Beijing State Taxation Administration of The People's Republic of China Inspection Bureau for investigation and handling.

The plaintiff believes that after receiving his application, State Taxation Administration of The People's Republic of China failed to perform his duties within the statutory time limit and handle his application. Therefore, on 20 15, 10 and 14, an application for administrative reconsideration was filed with the defendant, requesting to confirm that State Taxation Administration of The People's Republic of China's failure to perform his statutory duties in accordance with the law was illegal, ordering State Taxation Administration of The People's Republic of China to continue to perform his statutory duties, and informing the plaintiff in writing of the progress of the case. After the defendant accepted it, the legal department in charge of reconsideration asked the State Taxation Administration of The People's Republic of China Inspection Bureau, the organizer of the plaintiff's application for reporting, to give a reply. On 20th116+0, State Taxation Administration of The People's Republic of China inspection bureau submitted the reply on the case of Beijing guangfa Ye Wei electric co., ltd, letter No.673 and report. Upon examination, the defendant made a reconsideration decision on February 4, 20 15+65438, rejecting the plaintiff's application for administrative reconsideration. The plaintiff refused to accept the decision and brought an administrative lawsuit to our court.

We believe that Article 14 of the Law of People's Republic of China (PRC) on Tax Collection and Administration stipulates that the tax authorities mentioned in this Law refer to tax bureaus at all levels, tax sub-bureaus, tax offices and tax agencies established in accordance with the provisions of the State Council and announced to the public. Articles 4 and 11 of the Measures for the Administration of Reporting Tax Violations stipulate that the Inspection Bureau of the tax authorities above the city (prefecture) shall set up a reporting center for tax violations, and stipulate that the main duties of the reporting center and the reporting matters accepted by the reporting center shall be classified. Judging from the above provisions, the reporting center set up by the tax authorities' inspection bureau can be directly investigated by the tax authorities' inspection bureau at the same level or handed over to the tax authorities' inspection bureau at a lower level for investigation with the approval of the person in charge of the tax authorities' inspection bureau at the same level. In this case, the reporting center set up by the inspection bureau to which the defendant belongs registered the reporting matters after receiving the plaintiff's application for reporting. After examination, it is considered that the reported matter is a case that provides certain clues, and there may be tax violations. As a general case, the matter was transferred to the Inspection Bureau of Beijing State Taxation Bureau for investigation, which conforms to the provisions of Item (2) of Article 14 of the above measures and has fulfilled its statutory duties. The plaintiff claimed that the defendant had the responsibility to investigate and deal with the reported matters only in accordance with Article 5 of the Law of People's Republic of China (PRC) on the Administration of Tax Collection, which stipulates that the competent tax authorities in the State Council are in charge of the administration of tax collection throughout the country, and Articles 60 to 68 of the Law of Tax Authorities on Handling Tax Violations. Regarding the plaintiff's claim that the defendant has neither issued a written receipt nor made a written reply, according to the third paragraph of Article 10 of the Measures for the Administration of Reporting Tax Violations, the reporting center shall issue a written receipt at the request of the informant when accepting the real-name report. The plaintiff in this case only asked the defendant for a written reply when reporting the defendant under his real name, and did not ask for a written receipt. The premise of informing the prosecutor of the investigation results stipulated in the first paragraph of Article 20 of the above measures is that the undertaking department will reply to the investigation results. The evidence in this case is not enough to prove that the plaintiff's report has been handled. Moreover, the relevant regulations do not require the defendant to notify the informant after handing over the reported matters, so the plaintiff's lawsuit reason about the defendant's failure to perform the investigation duties is not accepted by our court. The plaintiff's reasons for the defendant's failure to perform his statutory duties are untenable, and his request to confirm that the defendant's failure to perform his statutory duties is illegal, to order the defendant to continue to perform his statutory duties, and to inform the court in writing of the progress of the case, which is not supported by our court.

Paragraph 1 of Article 23 of the Administrative Reconsideration Law of People's Republic of China (PRC) (hereinafter referred to as the Administrative Reconsideration Law) stipulates that the institution responsible for legal affairs of the administrative reconsideration organ shall send a copy of the application for administrative reconsideration or a copy of the written record of the application for administrative reconsideration to the respondent within seven days from the date of accepting the application for administrative reconsideration. The respondent shall, within 10 days from the date of receiving the copy of the application or the copy of the application record, submit the defense, and submit the evidence, basis and other relevant materials for the specific administrative act. Paragraph 1 of Article 31 of the Law stipulates that the administrative reconsideration organ shall make an administrative reconsideration decision within 60 days from the date of accepting the application; However, the time limit for administrative reconsideration prescribed by law is less than 60 days. According to Article 14 of the Administrative Reconsideration Law, the reconsideration involved in this case belongs to the same level of reconsideration. Although the materials submitted by the original undertaking department to the legal affairs office of this organ by State Taxation Administration of The People's Republic of China Inspection Bureau on the reconsideration case of Xiong Jun were not stamped, considering that the above-mentioned transmission belongs to the transmission between internal departments of the administrative organ, combined with the contents of this letter, it can be regarded as the written reply of the reconsideration respondent as stipulated in the first paragraph of Article 23 of the Administrative Reconsideration Law. The above letter also lists the contents of the annex, which can also be used as evidence submitted by the original undertaking department. The evidence on file can prove that the defendant State Taxation Administration of The People's Republic of China accepted the plaintiff's application for administrative reconsideration, and asked the organizer who reported to the plaintiff to submit opinions and evidence. The original organizer also submitted written opinions and related materials to the institution responsible for legal affairs of the administrative reconsideration organ. Defendant State Taxation Administration of The People's Republic of China also made a reconsideration decision within the statutory time limit. The reconsideration procedure conforms to the above provisions of the Administrative Reconsideration Law. To sum up, our court confirmed the legality of the reconsideration decision procedure. The plaintiff's request to cancel the defendant's reconsideration decision was also rejected by our court.

Accordingly, in accordance with Article 69 of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:

Reject all the claims of the plaintiff Xiong Jun.

50 yuan, the acceptance fee of this case, shall be borne by the plaintiff Xiong Jun (paid).

If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the opposing parties, and pay the acceptance fee of the appeal case in advance, 50 yuan, and appeal to the Beijing Higher People's Court. If the appellant fails to pay the acceptance fee of the appeal case in advance during the appeal period and does not apply for extension, the appeal shall be automatically withdrawn.

Chief Justice He Junhui

Acting Judge Yang Xiaoqiong

Acting Judge Ma Xiaoping

201June 29, 6

Bookkeeper Su Meng

Attachment: Legal basis for the application of this case:

Article 4 of the Measures for the Administration of Reporting Tax Violations: The Inspection Bureau of the tax authorities above the city (prefecture) shall set up a reporting center for tax violations (hereinafter referred to as the reporting center), and its staff shall be equipped by the local authorities according to the needs of the work; The county (district) tax authority inspection bureau that has not set up a reporting center shall designate a special department to be responsible for the management of reporting tax violations, and may hang the brand of the reporting center. The main responsibilities of the reporting center are:

(1) Accepting, handling and managing the report materials;

(two) transfer, assign and supervise the reporting of cases;

(3) tracking, understanding and mastering the investigation of reported cases;

(four) report and inform the work of the reporting center and the investigation of the reported matters;

(five) statistics and analysis of management report data;

(six) to guide, supervise and inspect the work of the reporting center of the lower tax authorities;

(seven) responsible for the payment of bonuses and the reply to the informants.

Article 14 of the Measures for the Administration of Reporting Tax Violations: After registering the reported matters, the reporting center shall handle them in the following ways:

(a) the report is detailed, the clues of tax violations are clear, the case is significant and involves a wide range. As a major reported case, with the approval of the inspection bureau of the tax authorities at the same level or the person in charge of the tax authorities at the same level, the inspection bureau of the tax authorities at the same level directly investigates or transfers it to the inspection bureau of the tax authorities at a lower level for investigation and supervision. When necessary, you can apply to the inspection bureau of the tax authorities at the next higher level for supervision.

The tax authorities at higher levels have instructed the supervision and designated investigation units to handle cases, and in principle, they shall not be handed over to the next level for handling.

(two) the report content provides some clues, and there may be tax violations. Under normal circumstances, with the approval of the person in charge of the inspection bureau of the tax authorities at the same level, the inspection bureau of the tax authorities at the same level directly investigates or transfers it to the inspection bureau of the lower tax authorities for investigation.

(3) If the reported matters are incomplete or the contents are unclear and the clues are unknown, they may be temporarily detained for investigation with the approval of the person in charge of the inspection bureau of the tax authorities at the corresponding level, and then processed after the informants have completed the supplementary information.

(four) matters that do not belong to the scope of duties of the inspection bureau may be handed over to the units or departments that have the right to handle them with the approval of the person in charge of the inspection bureau of the tax authorities at the same level.