First, the status quo of tax administrative punishment management
According to Article 8 of the Administrative Punishment Law, there are seven kinds of administrative punishments: (1) warning, (2) fine, (3) confiscation of illegal income and property, (4) order to stop production and business, (5) temporary suspension or revocation of license, (6) administrative detention and (7) other administrative punishments stipulated by laws and administrative regulations. When implementing administrative punishment, administrative organs must implement the prescribed types of punishment in strict accordance with the authority and procedures stipulated in the Administrative Punishment Law. Considering the need of specific adjustment of other laws and regulations, the Administrative Punishment Law has made a special supplementary provision in Article 8 when stipulating the types of administrative punishments of administrative organs, that is, "other administrative punishments prescribed by laws and administrative regulations". This is actually a reduction in the types of administrative punishment. According to this regulation, the types of administrative punishment stipulated by other effective laws and regulations before the promulgation of the Administrative Punishment Law can continue to apply, and the laws and regulations introduced later can also supplement the types of administrative punishment.
According to Article 7 (6) of People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Tax Administrative Reconsideration Rules, tax administrative punishment includes: fine, confiscation of illegal income, and stopping the right of export tax refund. Among them, the penalty setting for stopping the export tax rebate right is clearly stipulated in the law. Only in April 28th, 20001year, Article 66 of the Tax Administration Law was clearly defined as administrative punishment, which was in line with the provisions of the Administrative Punishment Law on the setting of types of administrative punishment.
Correctly classifying the types of tax administrative punishment is conducive to standardizing the administrative law enforcement behavior of tax authorities, because tax administrative punishment is a specific administrative act that tax authorities give the relative person a certain punishment after violating the tax management order, and it is a actionable act. When tax authorities implement administrative punishment, they must do so in accordance with legal procedures and authority, otherwise the tax authorities' actions are illegal, so they should correctly define the tax administrative punishment behavior and "the tax authorities' failure to handle or reply according to law" (Article 7 of the Rules for Tax Administrative Reconsideration).
However, before the newly revised Law on the Administration of Tax Collection was promulgated, the types of tax administrative punishment were not standardized and improved. The Regulations on Tax Administrative Reconsideration and the Regulations on Tax Collection and Management stipulate fewer types of tax administrative penalties, which are not suitable for the management practice of grass-roots tax authorities. According to the tax collection and management rules, some tax authorities have taken effective management measures, especially those that harm the interests of taxpayers, without sufficient legal basis. Therefore, according to the development of tax collection and management, the effective management measures stipulated in the original rules and regulations will be upgraded to the provisions of tax laws and regulations.
Two, the types of tax administrative punishment
According to the revised Law on the Administration of Tax Collection, the types of tax administrative punishment should include warning (ordering correction within a time limit), fine, stopping the right of export tax rebate, confiscating illegal income, collecting invoices or stopping the sale of invoices, requesting the revocation of business license, and notifying the exit administration authorities to stop leaving the country.
In essence, it is similar to the warning stipulated in the Administrative Punishment Law, and it is almost the same as the warning in function and nature, but with a different name. The Regulations on Tax Administrative Reconsideration clearly stipulates the types of tax administrative penalties such as fines, confiscation of illegal income and cessation of export tax rebates.
Notifying the exit administration authorities to stop leaving the country is a punishment measure clearly stipulated in the original Tax Administration Law, which is regarded as a separate reconsideration case in the Rules of Tax Administrative Reconsideration and not as a tax administrative punishment. However, page 57 of the book "Basic Knowledge of Tax Law Enforcement", which is used for the unified examination of tax officials' law enforcement qualifications, holds that "other laws and regulations also stipulate that the relevant authorities can take administrative penalties such as deportation, restriction of entry or exit, and exit within a time limit" against foreigners and stateless persons according to law. Article 44 of the Law on the Administration of Tax Collection stipulates that "taxpayers or other legal agents who owe taxes need to leave the country, they shall settle the tax payable, late payment fees or provide guarantees to the tax authorities before leaving the country. If the taxes and late fees are not settled and the guarantee is not provided, the tax authorities may notify the exit administration authorities to prevent them from leaving the country. " Judging from the nature and means of this measure, it should be a tax administrative punishment requested by the tax authorities according to law and assisted by the competent authorities. According to Article 9 of the Administrative Punishment Law, the law can set various administrative penalties, so it should be regarded as tax administrative penalties to prevent this from happening.
After the revision of the new Tax Collection and Management Law, it is stipulated in the second paragraph of Article 60 that "the business license shall be revoked by the administrative department for industry and commerce upon the request of the tax authorities", which is similar to the subject of enforcement of measures to prevent people from leaving the country, and it is a punishment measure requested by the tax authorities according to law and executed by the competent authorities according to law. Revoking the business license is a kind of punishment measure clearly stipulated in the Administrative Punishment Law, and preventing people from leaving the country is also an administrative punishment measure stipulated by other laws according to its nature, which is only the particularity of the executive organ. According to the provisions of the tax law, the punishment measures stipulated in these two laws are implemented because the relative person violates the order of tax collection and management, and the tax authorities should handle it according to legal procedures before submitting it to the relevant authorities for execution. Before submission, the tax authorities shall investigate and collect evidence in accordance with the procedures stipulated in the Administrative Punishment Law. After the trial fails, the tax authorities shall submit it to the relevant authorities for execution, but the final execution result shall be executed by the relevant departments. This is similar to applying to the people's court for enforcement of tax fines. Therefore, these two measures should be specific administrative actions made by the tax authorities and belong to a special tax administrative punishment of the administrative organs. This is related to China's current law enforcement system, which is determined by the limited scope and authority of the tax authorities in China. The management counterpart may apply for reconsideration or bring an administrative lawsuit to the tax authority at the next higher level according to law. In the process of administrative litigation, the tax authorities are the defendants or defendants of the specific enforcement agencies, and the burden of proof in litigation should be entirely borne by the tax authorities. Therefore, we should further standardize and clarify the procedures and legal responsibilities of these two tax administrative punishment measures.
Collecting invoices or stopping selling invoices is a long-term management measure used by tax authorities. The competent tax authorities at the grass-roots level have adopted different management systems, such as stopping tickets or paying invoices, in response to taxpayers' violations. In particular, the management of special VAT invoices has formed an effective management system, and State Taxation Administration of The People's Republic of China has also formulated many specific invoice management methods. However, for a long time, from the tax legislation to the actual operation of the tax authorities, stopping the supply of invoices has not been regarded as a punishment measure, and the tax administrative reconsideration rules only regard this measure as an administrative act of inaction by the tax authorities.
With the continuous development of market economy, the standardization of financial management and the strengthening of tax collection and management measures, invoices, as an important voucher for economic exchanges, have become the main original vouchers for defining economic responsibilities in economic exchanges and an important proof of taxpayers' trading activities. Invoice management has become an effective means for tax authorities to control tax management. As the competent authority of invoice management, the tax authorities will inevitably affect the normal business activities of taxpayers after they stop issuing or handing in invoices. It is undoubtedly the right of taxpayers to obtain and use invoices normally and ensure the operation of their business order. In tax collection and management activities, tax authorities should fully respect the rights and interests of taxpayers. However, before the implementation of the newly revised tax administration law, the tax authorities stopped selling and handed in invoices at will, which affected the production and business activities of taxpayers. If the taxpayer brings a lawsuit against the invoice control measures of the tax authorities, the tax authorities have no sufficient legal basis in the lawsuit.
After the revision of the new Law on the Administration of Tax Collection, Article 72 stipulates that "if a taxpayer or withholding agent engaged in production or business operations commits an illegal tax act as stipulated in this Law and refuses to be handled by the tax authorities, the tax authorities may collect their invoices or stop selling them", which will be recognized by the tax authorities from the legislative point of view. Collecting and stopping the sale of invoices by tax authorities is a sanction against taxpayers' right to use invoices, which conforms to the nature and characteristics of administrative punishment. Therefore, the tax authorities should take measures to collect and stop invoices and manage them in accordance with the provisions of the Tax Administrative Punishment Law.
Three, standardize the tax administrative punishment measures
According to Article 20 of the Administrative Punishment Law, administrative punishment shall be under the jurisdiction of the administrative organs of local people's governments at or above the county level, and Article 74 of the Law on the Administration of Tax Collection stipulates that "if the administrative punishment prescribed in this Law is less than 2,000 yuan, it may be decided by the tax office." Therefore, among the seven kinds of tax administrative punishment measures, the county-level tax authorities should stop the export tax rebate right, confiscate the illegal income, collect invoices or stop selling invoices, request the revocation of business licenses, and notify the exit administration authorities to stop leaving the country.
However, in the Regulations on the Administration of Tax Collection, the provisions on tax administrative penalties other than warnings and fines are not specific, which is very irregular in the implementation of grass-roots tax authorities. The procedure of tax administrative punishment in the current tax collection and management regulations needs to be improved urgently. When the relative person violates the order of tax administration and needs to be given tax administrative punishment, the tax authorities shall handle it in accordance with the general procedure of administrative punishment except warning and fine. For example, if it is necessary to prevent unpaid taxes from leaving the country before leaving the country, the competent tax authorities shall report the unpaid taxes and reminders to the county-level tax authorities for trial. After hearing the tax arrears and documents, the tax authorities at the county level will issue a notice of tax administrative punishment to the parties. After the parties state their arguments, they will make a decision of tax administrative punishment to prevent them from leaving the country, and hand over the notice of preventing them from leaving the country with the decision of tax administrative punishment to the entry-exit administration authorities for execution. If a party refuses to accept the decision on tax administrative punishment, it may apply for reconsideration or bring an administrative lawsuit against the decision of the tax authorities.
Therefore, it is necessary to further improve the tax administrative punishment procedures in the current tax collection and management regulations, and formulate tax documents required for the tax administrative punishment procedures except warnings and fines as soon as possible to standardize and straighten out the tax management procedures.
Also taking into account:
Chapter II Types and Establishment of Administrative Penalties
Article 8 Types of administrative punishment:
(1) warning;
(2) a fine;
(three) the confiscation of illegal income and illegal property;
(four) ordered to suspend production or business;
(5) withholding or revoking the license, withholding or revoking the license;
(6) Administrative detention;
(seven) other administrative penalties prescribed by laws and administrative regulations.
Article 9 The law may set various administrative penalties. Administrative penalties that restrict personal freedom can only be set by law.
Article 10 Administrative regulations may set administrative penalties other than restricting personal freedom. The law has stipulated administrative penalties for illegal acts, and if administrative regulations need to make specific provisions, they must be stipulated within the scope of the acts, types and ranges of administrative penalties stipulated by law.
Eleventh local regulations may set administrative penalties other than restricting personal freedom and revoking the business license of enterprises. Laws and administrative regulations have stipulated administrative penalties for illegal acts, and local regulations need to make specific provisions, which must be made within the scope of acts, types and ranges of administrative penalties stipulated by laws and administrative regulations.
Twelfth regulations formulated by the Ministry of the State Council, can make specific provisions within the scope of the acts, types and scope of administrative punishment stipulated by laws and administrative regulations. Where laws and administrative regulations have not been formulated, the regulations formulated by the Ministry of the State Council and the Committee mentioned in the preceding paragraph may set administrative penalties such as warning or a certain amount of fine for acts violating administrative order. The limit of fines shall be stipulated by the State Council. The State Council may authorize the directly affiliated institutions with the power of administrative punishment to stipulate administrative punishment in accordance with the provisions of the first and second paragraphs of this article.
Article 13 The regulations formulated by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, the people's governments of cities where the people's governments of provinces and autonomous regions are located and the people's governments of larger cities approved by the State Council may make specific provisions within the scope of the acts, types and ranges of administrative penalties prescribed by laws and regulations. If laws and regulations have not been formulated, the regulations formulated by the people's government as stipulated in the preceding paragraph may set administrative penalties such as warnings or a certain amount of fines for acts that violate the administrative order. The limit of fines shall be stipulated by the standing committees of the people's congresses of provinces, autonomous regions and municipalities directly under the Central Government.
Article 14 Except for the provisions of Articles 9, 10, 11, 12 and 13 of this Law, no administrative penalty may be imposed on other normative documents.