First, two examples of successfully starting the review of tax administrative handling behavior
(1) Village Committee of a town in Fujian v. Inspection Bureau of Fuqing Local Taxation Bureau.
1998 10, the inspection bureau of Fuqing Local Taxation Bureau made a tax treatment decision on a village Committee of a town, and the amount of overdue tax was about 60,000 yuan. From June 5438 to 10, 2002, the Inspection Bureau of Fuqing Local Taxation Bureau issued a notice of withholding tax, and withheld the corresponding tax from the deposit account of the village committee. The village Committee refuses to accept the withholding tax and submits it for administrative reconsideration. The reconsideration organ maintained the tax withholding behavior. The village committee brought an administrative lawsuit to Fuqing Municipal People's Court.
Fuqing City Court held that this case belongs to the implementation measures after the administrative decision was made, so the legality of the formal elements of the administrative decision should be examined. According to the Supreme Court's reply that "there is no legal basis for the inspection branch of the Local Taxation Bureau to make administrative treatment decisions in its own name", Fuqing City Court held that the tax treatment decisions made by the inspection branch of Fuqing Local Taxation Bureau to the village committee exceeded its authority; In this case, the defendant's compulsory tax withholding measures against the plaintiff were illegal, so it was obviously illegal for the defendant to take compulsory tax withholding measures against the plaintiff. In August, 2003, the court ruled (1) to cancel the tax withholding notice made by the defendant, and (2) the defendant returned the deposit withheld by the plaintiff within 10 days after the judgment came into effect.
(II) Jinguan Coatings Group Co., Ltd. v. Guangdong Provincial State Taxation Bureau.
In June, 2006, Guangdong Provincial State Taxation Bureau determined that Jinguan Paint Factory had underpaid the value-added tax of more than RMB1140,000, and made a tax treatment decision to pay back the tax, so that Jinguan Paint Factory was transferred to the public security organ for investigation on suspicion of tax evasion.
In April 2007, the Sanshui District Procuratorate of Foshan filed a public prosecution with the Sanshui District Court for the crime of tax evasion by Jinguan Paint Factory. In September, 2007, Sanshui District Court made a criminal judgment, and found that the evidence accusing Jinguan Paint Factory of tax evasion was insufficient, the facts were unclear and the procedure was illegal. Jinguan Paint Factory was acquitted according to law. In June 2007, Foshan Intermediate People's Court upheld the first-instance judgment of Sanshui District Court.
On October 20 12, 1 1 year 10, Guangdong Provincial State Taxation Bureau made a tax enforcement decision on Jinguan Paint Factory and deducted some taxes from its bank account. Jinguan Paint Factory refused to accept the tax enforcement decision and filed a lawsuit with the Guangzhou Intermediate People's Court.
Guangzhou Intermediate People's Court held through trial that the defendant in this case made the tax enforcement decision based on the tax treatment decisionNo. 1 1 made in June 2006. Although the tax treatment decision has not been changed or revoked by the statutory authorities, it is still valid in form, but the facts on which the tax treatment decision is based conflict with the criminal judgment that came into effect by the court, which denies the facts on which the tax treatment decision is based from the aspects of evidence, inspection methods and procedures. Due to the finality of judicial determination, if the facts identified in the effective criminal judgment deny the facts on which the tax treatment decision is based, it shall be determined that the defendant's tax enforcement decision is obviously lack of factual basis, and the tax enforcement decision made by the defendant based on the tax treatment decision is unclear and wrong in applicable law and should be revoked. The court finally decided to cancel the tax enforcement decision made by Guangdong Provincial State Taxation Bureau on Jinguan Paint Factory.
Second, the focus of the problem: Does the court have the right to conduct joint judicial review of relevant administrative acts?
The above two cases highlight a core issue, that is, in the administrative litigation of tax enforcement disputes, whether the court has the right to conduct judicial review of the legality of tax administrative decisions based on tax enforcement actions in addition to judicial review. This issue is called the joint judicial review of relevant administrative acts in administrative law.
(1) What is a related administrative act?
In China's administrative law system, the concept and types of relevant administrative acts have not been legalized. Drawing lessons from the administrative law theories of Germany and Japan, related administrative acts mainly refer to administrative acts made by the same administrative organ or different administrative organs against the same administrative counterpart. There is a certain correlation between administrative acts, which mainly shows that the latter administrative act needs to be based on the former one, and on the whole, the purposes of these administrative acts are the same, and each has its own stages.
In the field of tax collection and management, there are generally related administrative actions. If the tax authorities find that the taxpayer has violated the law and made a decision on tax refund, and the taxpayer refuses to perform the tax refund obligation, the tax authorities shall make a compulsory tax measure or a compulsory tax decision on the taxpayer ex officio. The administrative compulsory behavior made by the tax authorities constitutes an associated administrative behavior with the previous tax administrative handling behavior, which shows that the tax administrative handling behavior is the factual basis of the tax administrative compulsory behavior.
(3) Relevant administrative acts should be subject to joint judicial review.
Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Licensing Cases (Fa Shi [2009] No.20) stipulates that "other administrative decisions or documents on which the sued administrative licensing act is based shall not be recognized by the people's court under any of the following circumstances: (1) There is an obvious lack of factual basis; (two) the obvious lack of legal basis; (three) beyond the authority; (4) Other major and obvious violations of the law. " Although Article 7 of Law Interpretation No.20 (2009) is only aimed at administrative licensing litigation cases, it provides useful guidance for judges to try other administrative litigation cases. When there are obvious defects in the legality of the relevant administrative acts, and the legality of the accused administrative acts is directly determined as the basis of the accused administrative acts, the court has the right to jointly review the legality of the relevant administrative acts. This kind of joint review can be understood as a necessary link for the court to review the legality of the accused administrative act.
Third, the joint judicial review in tax enforcement procedures.
As mentioned above, there are many related administrative actions in the tax collection and law enforcement activities implemented by tax authorities, and the typical ones are tax treatment decisions and tax law enforcement decisions. For example, in the first case mentioned above, the tax authorities made a tax treatment decision to the village Committee, confirmed the fact that the village Committee owed taxes, and investigated the legal responsibility for the village Committee to recover taxes and late fees. As the village committee fails to fulfill its tax obligations, according to the provisions of the Tax Administration Law, the tax authorities have the right to enforce it. Therefore, the tax authorities made a compulsory enforcement decision on the village Committee according to their functions and powers and the factual basis of the tax treatment decision. Because the defendant's enforcement behavior is based on the tax payment decision made by the tax authorities, the court conducted a combined review of the tax treatment decision in the defendant's tax enforcement behavior.
summary
Although the newly revised Tax Administration Law changed the relief mode of tax disputes to "reconsideration-tax payment-litigation", it is still necessary to pay taxes before resorting to judicial review in this mode. Determining the court's right of joint review of relevant administrative acts plays an important role in standardizing tax authorities' law enforcement activities, filling taxpayers' relief channels, safeguarding taxpayers' legitimate rights and interests, strengthening the court's judicial review function, and solving the contradiction between collection and payment.