Beijing No.1 Intermediate People's Court

? Administrative judgment

(20 16) Jing 0 1 Hangchu 10 1

Plaintiff Xiong Jun, male, was born on 1978 1 February1day, and his domicile is in Wanzhou District, Chongqing.

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

Defendant State Taxation Administration of The People's Republic of China, whose domicile is No.5 Yangfangdian West Road, Haidian District, Beijing.

Legal representative: Wang Jun, director.

Entrusted agent: Zhang Xuerui, 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 thought that defendant State Taxation Administration of The People's Republic of China (hereinafter referred to as the State Administration of Taxation) failed to perform his statutory duties and refused to accept the decision of the defendant State Administration of Taxation [20 15] 12 to reject the application for administrative reconsideration (hereinafter referred to as the sued reconsideration decision), and filed an administrative lawsuit with our court. After the court filed the case, it served the defendant a copy of the complaint and a notice of responding to the lawsuit to the State Administration of Taxation within the statutory time limit. Our college formed a collegial panel according to law and heard the case in public on May 20 16 10. Plaintiff Xiong Jun and his entrusted agent Feng Li, and defendants' entrusted agents Zhang Xuerui and Wang Jiaben attended the proceedings. The case has now been closed.

On June 29th, 20 15, the plaintiff mailed an application to the State Administration of Taxation to perform legal duties according to law, demanding that the State Administration of Taxation investigate and punish the illegal acts of Beijing Guangfa Weiye Electric Co., Ltd. (hereinafter referred to as Guangfa Weiye Company) and its shareholder Zhong Donghua, such as forgery, alteration, concealment, unauthorized destruction of account books, accounting vouchers and tax evasion, and investigate the legal responsibilities of the violators according to law. After that, the plaintiff believed that the State Administration of Taxation did not handle the application submitted by it, and filed an application for administrative reconsideration with the defendant, requesting to confirm that the failure of the State Administration of Taxation to perform its statutory duties in accordance with the law was illegal, and ordered the State Administration of Taxation to continue to perform its statutory duties and inform the plaintiff in writing of the progress of the case. Upon examination, the defendant believes that according to the provisions of Articles 3 and 14 of the Measures for the Administration of Reporting Tax Violations, the State Administration of Taxation, after receiving the plaintiff's report, transferred it to the inspection bureau of the lower tax authorities as a general case and investigated it in compliance with relevant laws and regulations. The State Administration of Taxation has fulfilled its statutory duties by registering and transferring the plaintiff's report. Therefore, on 20 151February 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 the Administrative Reconsideration Law of the People's Republic of China 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 the People's Republic of China on Tax Collection and Administration, the State Administration of Taxation, as the competent tax department of the State Council, was in charge of the national tax collection and administration. 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, the State Administration of Taxation has the statutory duty to investigate and deal with tax violations. As a shareholder of Guangfa Weiye Company, the plaintiff applied to the State Administration of Taxation to investigate and deal with the illegal acts of Guangfa Weiye Company and its shareholders. After receiving the application, the State Administration of Taxation fails to follow the legal procedures, issue a written receipt and reply 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 perform its duties within the time limit stipulated in Article 16 of the Measures for the Administration of Reporting Tax Violations, so it shall be deemed that the act is illegal. The plaintiff applied to the defendant for administrative reconsideration for the failure of the State Administration of Taxation to perform its statutory duties. Although the defendant cited the legal provisions in making the decision of reconsideration against the defendant, it did not point out which provision of this clause was specifically applicable, which was an error in applying the law. Moreover, the defendant failed to submit evidence materials such as when he received the application for administrative reconsideration, whether he made a notice of acceptance, whether he served it on the plaintiff, whether he wanted the respondent to serve the application for administrative reconsideration and the delivery time, whether the respondent submitted a written reply and evidence, the person in charge or the collective discussion decision before making the reconsideration decision, etc., which is a failure to submit evidence on whether the reconsideration procedure is legal and should bear the legal responsibility of failing to provide evidence. To sum up, request the court to decide to cancel the reconsideration decision; Confirming that the defendant's failure to perform his statutory duties is illegal, 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 legal duties, 2.EMS mail order and detailed list. The above evidence proves that the plaintiff filed an application for performing duties with the State Administration of Taxation, which signed it on June 30, 20 15; 3. An application for administrative reconsideration, which proves that the plaintiff filed an application for administrative reconsideration with the defendant for the failure of the State Administration of Taxation to perform its statutory duties; 4. The respondent's reconsideration decision.

The defendant argued: 1. The defendant made a reconsideration decision against 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 transferring the report, and there is no administrative omission. According to Article 20 of the Measures for the Administration of Reporting Tax Violations, after the reporting center receives the investigation results replied by the undertaking department, it can brief the informant of the investigation results related to the reporting clues at the request of the informant; Before reporting a case, it is not allowed to disclose the investigation and handling of the case to the prosecutor. The defendant has no legal duty to inform in writing the progress of reporting the case and or the investigation results, while the reporting center of the Inspection Bureau of Beijing State Taxation Bureau has the obligation to inform the investigation and handling results of reporting the case when it meets the legal conditions. In the administrative reconsideration procedure, the reported cases involved are still in the process of inspection and have not been settled, so 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 decide to dismiss the plaintiff's claim.

Within the statutory time limit for adducing evidence, the defendant submitted the following evidence to our court: 1. An application for performing legal duties according to law and a postal order, which proved that the defendant received the plaintiff's application materials; 2. Letter (Guo Shui Ju Jiao [20 15]0673, hereinafter referred to as Letter No.673) on reporting the matters reported by Beijing Guangfa Weiye Electric Co., Ltd., which proves that the defendant has transferred the plaintiff's report according to law and has performed legal duties; 3. The Inspection Bureau of the State Administration of Taxation provided materials about Xiong Jun's reconsideration case of the Department of Policies and Regulations, which proved that the defendant 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 against 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 act 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. There is no official seal of the reporting center for the evidence 3, and the identity of the signer is unknown, and the attached reporting materials have no official seal, so there is objection 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 case being sued, and it 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, and meet the requirements of legality and authenticity of the evidence, which can prove the relevant facts of this case, and our court will accept it.

It was found through trial that on June 29th, 201May, the plaintiff mailed an application to the State Administration of Taxation to perform legal duties according to law, requesting the State Administration of Taxation to investigate and punish illegal acts such as forgery, alteration, concealment, unauthorized destruction of account books, accounting vouchers, tax evasion, etc. of Guangfa Weiye Company and its shareholder Zhong Donghua, and to investigate the legal responsibilities of the violators according to law. On June 30th of the same year, the State Administration of Taxation received the above application. On September 8 of the same year, the Inspection Bureau of the State Administration of Taxation made a letter No.673, and transferred the reported matter to the Inspection Bureau of the State Administration of Taxation of Beijing for investigation and handling.

The plaintiff believes that after receiving its application, the State Administration of Taxation failed to perform its duties within the statutory time limit and handled the application submitted by it. Therefore, an application for administrative reconsideration was filed with the defendant on 20 15 10/4, requesting to confirm that the failure of the State Administration of Taxation to perform its statutory duties according to law was illegal, and ordered the State Administration of Taxation to continue to perform its statutory duties and inform the plaintiff in writing of the progress of the case. After the defendant accepted the case, the legal department in charge of reconsideration asked the Inspection Bureau of the State Administration of Taxation, the contractor that handled the plaintiff's application for reporting, to give a reply. The Inspection Bureau of the State Administration of Taxation submitted its reply, letter No.673 and Report on the Case of Beijing Guangfa Weiye Electric Co., Ltd. on 20 151month 16. After examination, the defendant made a reconsideration decision on 20 151February 14, and rejected 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 the People's Republic of China on the Administration of Tax Collection stipulates that the tax authorities mentioned in this Law refer to tax bureaus at all levels, tax branches, tax offices and tax agencies established in accordance with the regulations of the State Council and announced to the public. Article 4 and Article 11 of the Measures for the Administration of Reporting Tax Violations stipulate that the Inspection Bureau of the tax authorities at or 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 received by the reporting center should be classified and handled. 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 transferred 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 reported matter after receiving the plaintiff's application for reporting. After examination, it was considered that the reported matter was a case that provided certain clues and there might be tax violations. As a general case, the matter was transferred to the inspection bureau of Beijing State Taxation Bureau for investigation, which was in line with the provisions of Item (2) of Article 14 of the above measures and had fulfilled its statutory duties. The plaintiff claimed that the defendant had the responsibility to investigate and deal with the reported matters only on the basis of Article 5 of the Law of the People's Republic of China on the Administration of Tax Collection, which stipulated that the competent tax authorities in the State Council were in charge of the administration of tax collection nationwide, and the relevant provisions of Articles 60 to 68 of the Law on the handling of tax violations by tax authorities. Regarding the plaintiff's question that the defendant has neither issued a written receipt nor made a written reply, as stipulated in 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 a real-name report. The plaintiff in this case only asked the defendant for a written reply when reporting to the defendant's 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 replies 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 transferring the reported matters, so the plaintiff's litigation reasons about the defendant's failure to perform the investigation duties are not accepted by our court. None of the plaintiff's reasons for the defendant's failure to perform his statutory duties can be established, and his request to confirm that the defendant's failure to perform his statutory duties was illegal, to order the defendant to continue to perform his statutory duties, and to inform him in writing of the progress of the case, was not supported by our court.

Paragraph 1 of Article 23 of the Administrative Reconsideration Law of the People's Republic of China (hereinafter referred to as the Administrative Reconsideration Law) stipulates that the institution in charge of legal affairs of the administrative reconsideration organ shall, within seven days from the date of accepting the application for administrative reconsideration, 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. The respondent shall, within ten days from the date of receiving the copy of the application or the copy of the application record, submit a written reply 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 provided by the Inspection Bureau of the State Administration of Taxation on Xiong Jun's reconsideration case submitted by the original undertaking department to the institution in charge of legal affairs of this organ were not stamped, considering that the above-mentioned transmittal belongs to the transmittal 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 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, the State Administration of Taxation, accepted the plaintiff's application for administrative reconsideration, and requested to submit opinions and evidence to the organizer of the plaintiff's report. The original organizer also submitted written opinions and related materials to the institution responsible for legal affairs of the administrative reconsideration organ. The defendant, the State Administration of Taxation, 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 procedure of reconsideration decision. The plaintiff's request to cancel the reconsideration decision of the defendant was also rejected by our court.

Accordingly, according to Article 69 of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:

Reject all the claims of plaintiff Xiong Jun.

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

If you don't 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 court acceptance fee of 50 yuan in advance to appeal to the Beijing Higher People's Court. If the appellant fails to pay the acceptance fee of the appeal case in advance within the appeal period and does not file an application for deferment, the appeal shall be handled as automatic withdrawal.

Chief Judge He Junhui

Acting Judge Yang Xiaoqiong

Acting judge Ma Xiaoping

June 29th, 2016

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 at or 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 without a reporting center shall designate a special department to be responsible for the management of reporting tax violations, and may hang the brand of reporting center. The main responsibilities of the reporting center are:

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

(two) transfer, assign, supervise and urge to report cases;

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

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

(five) statistics and analysis of the data of the management of the report;

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

(seven) responsible for the payment of the bonus and the reply to the prosecutor.

Article 14 of the Measures for the Administration of Reporting Tax Violations: After registering the reported items, 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 serious and involves a wide range. As a major report case, with the approval of the tax authority inspection bureau at the same level or the person in charge of the tax authority at the same level, the tax authority inspection bureau at the same level directly investigates or transfers it to the tax authority inspection bureau at a lower level for investigation and supervision. If necessary, it can apply to the tax authority inspection bureau at a higher level for supervision.

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

(II) The contents of the report provide certain clues, and there may be tax violations. As a general case, with the approval of the person in charge of the tax authorities' inspection bureau at the same level, the tax authorities' inspection bureau at the same level directly investigates or transfers it to the tax authorities' inspection bureau at a lower level for investigation.

(3) If the reported matters are incomplete or the contents are unclear and the clues are unknown, they may be temporarily held 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 informant supplements the information completely.

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