Administrative Judgment of Xi 'an Railway Transport Intermediate Court

(20 18) Shaanxi 7 1 Hangduan No.475

Appellant (plaintiff in the original trial): Xi 'an Dapeng Biotechnology Co., Ltd., located at Floor 15, Hi-tech Building, No.52 Gaoxin Road, Xi 'an.

Legal representative: Gao Peng, chairman of the board.

Authorized Agent: Li Desong, lawyer of Shaanxi Ling Ansong Law Firm.

Appellee (defendant in the original trial): Local Taxation Bureau of Gaoling District, Xi 'an, and its domicile is No.859 Huancheng East Road, Gaoling District, Xi 'an.

Legal representative: Li Yin, director.

Entrusted agent: Zhang Yu, a staff member of the Bureau.

Authorized Agent: Li Na, lawyer of Shaanxi Haogong Law Firm.

Appellee (defendant in the original trial): Xi 'an Local Taxation Bureau, 83 Xiaozhai West Road, Xi 'an.

Legal representative: Xu Linzhang, director.

Entrusted agent: Dong Lei, deputy director of the Law Department of the Bureau.

Authorized Agent: Wang Xiaolong, lawyer of Shaanxi Renhe Wanguo Law Firm.

The appellant Xi 'an Dapeng Biotechnology Co., Ltd. (hereinafter referred to as Dapeng Technology Co., Ltd.) refused to accept the administrative judgment of Xi 'an Railway Transport Court (20 18) No.367 at the beginning of line 7 102) for the case of other tax administrative actions with the appellee Xi 'an Gaoling District Local Taxation Bureau (hereinafter referred to as Gaoling Local Taxation Bureau) and the appellee Xi 'an Local Taxation Bureau. Our court formed a collegial panel according to law and heard the case in public. Li Desong, the appellant Dapeng Technology Company, Zhang Yu and Li Na, the appellee Gaoling Local Taxation Bureau, and Dong Lei and Wang Xiaolong, the appellee Municipal Local Taxation Bureau, attended the proceedings in court. The case has now been closed.

The court of first instance found through trial that the plaintiff Dapeng Technology Company paid business tax, urban maintenance and construction tax, education surcharge, water conservancy construction fund, stamp duty and land value-added tax on April 25th, 201year, totaling 5,533,302.6 yuan. On may 6, 20 17, the plaintiff Dapeng science and technology company submitted an application for tax refund to the defendant Gaoling local taxation bureau, requesting a tax refund of 4188,500 yuan. On July 5, 20 17, the defendant Gaoling Local Taxation Bureau issued the Notice of Tax MattersNo. [2017] 3468, the main content of which was "The tax refund application submitted by your company did not meet the tax refund conditions, and it was decided not to refund the tax." On July 6, 20 17, the plaintiff Dapeng Science and Technology Co., Ltd. submitted an application for tax refund to the defendant Gaoling Local Taxation Bureau again, and applied for a full refund of the paid taxes and fees of 5,533,3026 yuan. On August 20 17 1 day, the defendant Gaoling Local Taxation Bureau made the Notice of Tax Matters (No.2017) and informed the right of appeal. The main contents of the notice are as follows: "1. According to Article 51 of the Law of the People's Republic of China on Tax Collection and Administration, the time limit for your company to file an application for tax refund has exceeded the legal time limit of' within three years' stipulated in the tax collection and administration law. 2. According to the provisions of Paragraph 6 of Article 35 of the Law of the People's Republic of China on Tax Administration, the Provisional Regulations of the People's Republic of China on Business Tax and its detailed rules for implementation, and the Provisional Regulations of the People's Republic of China on Land Value-added Tax and its detailed rules for implementation, the calculation basis of the amount of overpaid tax that your company requests to refund obviously does not conform to the above-mentioned tax laws and policies. Three. The evidence provided by your unit can't prove that the real estate transfer transaction price of your unit is obviously low and there are legitimate reasons. On April 25th, 20 1 1, the tax authorities levied taxes on your company's transfer of real estate according to law, and the tax basis of the tax payable was in compliance with the laws and relevant tax policies, so your company did not pay more taxes. " "Upon examination, we believe that the reason for your request for refund of overpaid tax is not in compliance with the tax law and relevant tax policies. After the competent tax authorities have verified that there is no overpayment of the tax payable for the real estate transfer transaction of your unit, it is decided not to refund the tax amount requested by your unit. " The plaintiff Dapeng Science and Technology Company refused to accept the above two notices, and submitted an application for administrative reconsideration to the Municipal Local Taxation Bureau on October 9, 20 17/kloc-0, requesting to "cancel the Notice of Tax Matters No.2017 [3468] and No.20/kloc". On February 26th, 20 17/kloc-0, the defendant municipal local taxation bureau made the Decision of Tax Administrative ReconsiderationNo. [2017] 001,and decided to "1. Maintain the decision made by Gaoling District Local Taxation Bureau not to refund tax; 2. Reject the applicant's application for reconsideration. "

After trial, the court of first instance held that Article 51 of the Law of the People's Republic of China on the Administration of Tax Collection stipulates that "the tax paid by a taxpayer in excess of the taxable amount shall be refunded immediately after it is discovered by the tax authorities; If a taxpayer finds out within three years from the date of settlement and payment of taxes, he may request the tax authorities to refund the overpaid taxes and add interest on bank deposits during the same period, and the tax authorities shall immediately refund them after timely verification; If it involves withdrawing from the state treasury, it shall be returned in accordance with the provisions of laws and administrative regulations on the administration of the state treasury. " The above-mentioned laws stipulate two cases of refunding the overpaid tax. One case is that the tax authorities find it and should refund it immediately; The other is that taxpayers can ask the tax authorities for a refund if they find it within three years from the date of settlement and payment of taxes. The time for the plaintiff Dapeng Technology Company to settle and pay the tax of RMB 5,533,302.6 is April 25th, 201year. If it thinks that it has overpaid the tax, it shall apply to Gaoling Local Taxation Bureau for tax refund within three years. However, it didn't file an application for tax refund with Gaoling Local Taxation Bureau until May/6th and July16th, 20 17, which was far beyond the three-year period and did not meet the legal conditions for applying for tax refund. The procedure of the Notice of Tax Matters made by the defendant Gaoling Local Taxation Bureau is appropriate, and the applicable laws and regulations are correct. Moreover, whether the tax paid by the plaintiff on April 25th, 20 1 1 year is overpaid and whether it should be returned is a matter of investigation and discretion of the tax authorities, and a non-people's court can make a ruling directly. Therefore, the plaintiff's claim to cancel the Notice of Tax Matters and refund the tax overpaid by the plaintiff cannot be established and should be rejected.

The defendant local taxation bureau received the plaintiff's application for reconsideration on October 9, 20 17, and made a tax decision on February 26, 20 17/kloc-00. Procedures such as examination, notifying the respondent, hearing and making reconsideration decisions have been fulfilled, but the statutory time limit stipulated in Article 31 of the Administrative Reconsideration Law of the People's Republic of China has been exceeded. Although the defendant Municipal Local Taxation Bureau argued in court that it had made an extension decision, it did not submit evidence to prove that it had made and served the extension decision within the time limit for proof. According to the provisions of Article 34 of the Administrative Procedure Law of the People's Republic of China, it is deemed that there is no corresponding evidence. In addition, it must be pointed out to the defendant that administrative reconsideration should also follow the basic principle of one case and one reconsideration, and different administrative acts should be tried separately. To sum up, the administrative reconsideration decision procedure made by the defendant local taxation bureau is slightly illegal, but it has no actual impact on the plaintiff's rights, so it should be confirmed that the procedure is illegal. To sum up, in accordance with the provisions of Article 69, Article 74, Paragraph 1 (2) and Article 79 of the Administrative Procedure Law of the People's Republic of China, the judgments are as follows: 1. Confirm the word [20/kloc-0] made by the defendant, Xi 'an Local Taxation Bureau on February 26th, 20/kloc-0. 2. Reject the plaintiff's claim of Xi 'an Dapeng Biotechnology Co., Ltd.. 50 yuan, the case acceptance fee, shall be borne by Xi 'an Dapeng Biotechnology Co., Ltd., the plaintiff.

Dapeng Technology Company refused to accept the first-instance judgment and appealed that, first, the basic facts of this case. 20 1 1 year, when the appellant traded real estate with the counterpart, the comprehensive price agreed in the contract was 77.8 million yuan, including loss of production, loss of equipment and relocation expenses, among which the agreed real estate transaction amount was19.6 million yuan. However, the Gaoling Local Taxation Bureau requested that the tax be calculated according to the real estate appraisal value, and after the appellant entrusted the appraisal as required, the Gaoling Local Taxation Bureau finally calculated the tax according to the real estate appraisal value of 31260,000 yuan (including land1715.19.63 million yuan and real estate14/kloc-). On September 29th, 20 15, Shaanxi Higher People's Court (20 15) made the final judgment No.00143, which adjusted the comprehensive contract price (including loss of production, loss of equipment, relocation expenses, etc.) from 78.8 million yuan to 33.77 million yuan. The effective judgment must be fulfilled, which should be a "legitimate reason" for not calculating the tax according to the assessed value. Therefore, the appellant demanded that the tax should be calculated according to the actual income and the overpaid tax should be refunded. Two, the appellee shall refund the tax to the appellant, the three-year period does not apply, and the first-instance judgment is wrong. The judgment of the first instance also holds that the tax refund by the tax authorities stipulated in Article 5 1 of the Tax Administration Law can be divided into two situations: one is found by the tax authorities and should be returned immediately; The other is found by taxpayers within three years after paying taxes, and they can ask the tax authorities for a refund. The first-instance judgment holds that the appellant belongs to the second situation and should apply the three-year time limit. The appellant thinks that it is wrong to apply the law in the first-instance judgment. Because, the second case applies to "the taxpayer found it within three years after paying the tax", and the basic fact (uncontroversial fact) of this case is that the appellant paid the tax in 20 1 1 year, but the appellant's transaction dispute did not last until September of 20 15, when the effective judgment of Shaanxi Higher People's Court was made. In other words, within three years after paying the tax, the appellant could not "discover" it because it had not "happened". Therefore, the appellant's request for tax refund from the tax authorities is not "discovered" within three years without applying, but applied for tax refund after the tax refund reason "occurred", so the second situation mentioned in the judgment does not apply. After the appellant reports (applies for) the tax refund to the tax authorities three years later, the tax authorities should "discover" the situation that the tax refund should be made, and the first situation should be applied. That is, the tax authorities should immediately refund the taxpayer after discovering that he has paid excessive taxes. 3. The judgment of first instance holds that "whether the tax is overpaid" and "whether the tax refund should be made" are matters within the scope of investigation and discretion of the tax authorities, and matters that can be ruled by non-courts are not in compliance with the law. According to Article 88 of the Tax Administration Law: "When a taxpayer, withholding agent or tax payment guarantor has a tax payment dispute with the tax authorities, they must first pay the tax or remit the tax payment and overdue fine or provide corresponding guarantee according to the tax authorities' tax payment decision, and then they can apply for administrative reconsideration according to law; If you are dissatisfied with the administrative reconsideration decision, you can bring a lawsuit to the people's court according to law. " Obviously, tax disputes are within the scope of court acceptance, and this case is just a tax dispute about whether the decision not to refund tax is legal or not. According to Article 77 of the Administrative Procedure Law: "If the administrative penalty is obviously improper, or other administrative acts involve the determination and determination of the amount, the people's court may make a judgment to change it." Therefore, if an administrative act involves the determination and determination of the amount, if there is an error, the court can make a ruling. The judgment of the first instance also didn't make it clear what the exceptional basis was that it thought it was impossible to make a ruling. To take a step back, even if the amount of tax payable is not a matter for the court to decide, whether to pay more tax or not and whether to refund tax is the key to examine the legality of the specific administrative act of the appellee not to refund tax. The court should try how to determine the tax basis and whether there is the fact of overpaying tax, so as to judge the legality of the administrative act of not refunding tax and make a ruling. Four, the court's effective judgment is based on the actual transaction amount of tax justification, should be based on the actual transaction amount determined by the effective judgment, calculate the tax payable. According to Article 3 of the Provisional Regulations of the People's Republic of China on Land Value-added Tax: "Land value-added tax is calculated and levied according to the value-added amount of taxpayers' income from the transfer of real estate and the tax rate stipulated in Article 7 of these regulations." Obviously, the original intention of legislation is to levy land value-added tax based on the actual transaction income from the transfer of real estate. The appellant paid the tax according to the assessed value, but the contract price was finally adjusted by the court five years later, so the appellant could only execute the court's judgment, which should also be a legitimate reason for not paying the tax according to the assessed value. Obviously, Article 9 of the Provisional Regulations on Land Value-added Tax does not apply to this case. According to the law, the appellee should calculate the tax according to the actual transaction amount and refund the overpaid tax. The court shall hear how to determine the tax basis and whether there is the fact of overpaying tax, so as to judge the legality of the administrative act of not refunding tax and make a ruling. Five, the first instance found that the reconsideration procedure was illegal, but it was not revoked in violation of the law. The first instance found that the appellee's reconsideration procedure was illegal in two places: 1, and the reconsideration period was overdue; 2, in violation of the principle of "one thing, one discussion". The first-instance judgment held that the procedure was illegal but had no actual impact on the plaintiff's rights, which was obviously wrong. Because the reconsideration organ violates the principle of "one case, one discussion", the appellant can only sue as a case in administrative prosecution, and the court has to give up the request for one of the matters, which obviously affects the plaintiff's rights. In addition, the reconsideration organ took a written trial of this typical and complicated case, which caused the matters that should be reconsidered not to be clearly dealt with, which was obviously inappropriate. To sum up, the appellant refused to accept the administrative judgment of first instance, so he appealed: 1 and revoked (20 18) the Administrative Judgment No.367 at the beginning of line 7 102; 2. According to the law, the appellee was sentenced to refund 4188,500 yuan to the appellant.

The appellee, Gaoling Local Taxation Bureau, replied that: 1. The Notice on Tax Matters (Highland Tax Pass No.2017-3642) made by the respondent has clear facts, correct application basis and legal procedures. Second, the appellant's claim that the contract price was adjusted because of the court's judgment, which led to a change in the tax basis, required that the tax be calculated according to the transaction price finally judged by law, and returned the overpaid tax, which was unfounded in the law. Three, the court of first instance confirmed that the administrative reconsideration decision procedure made by the Municipal Local Taxation Bureau was illegal, but it did not have a practical impact on the rights of Dapeng Technology Company, which was in line with the law. To sum up, the respondent believes that the facts of the court of first instance are clearly ascertained and the applicable law is correct, which should be upheld according to law.

The appellee, the Municipal Local Taxation Bureau, replied that: 1. Dapeng Technology Company's request for tax refund has exceeded the statutory time limit of three years, and the facts were clearly ascertained and the basis was accurate in the first instance. 2. It is correct for the tax authorities to calculate the tax payable based on the assessed price instead of determining the amount based on the effective court judgment, which is in line with the provisions of laws and regulations. The appellant's appeal reason for this has no legal basis. Three, on the first instance that the respondent's procedure was slightly illegal. In the court inquiry session in the trial of first instance, Dapeng Technology Company clearly recognized the extension decision made by the respondent and stated in court that it had received the extension decision mailed by the respondent. The respondent had submitted the relevant evidence of the extension decision to the court of first instance in the previous pre-trial evidence submission session. Considering the verdict of first instance, the respondent did not appeal. To sum up, the judgment of the first instance found out the facts clearly and the applicable law was correct, so I implore the court of second instance to reject the appellant's appeal.

The facts ascertained through trial in the second instance are consistent with those ascertained in the judgment of the first instance, and this court confirms them.

In our court's opinion, the focus of the dispute in this case is the highland tax pass (2017) No.3642 Notice on Tax Matters made by the appellee Gaoling Local Taxation Bureau, and the word (2017) kloc-made by the appellee Municipal Local Taxation Bureau.

Regarding the legality of the Notice on Tax Matters made by the appellee Gaoling Local Taxation Bureau (No.2017-3642). The Notice on Tax Matters made by the Appellee Gaoling Local Taxation Bureau considers that the reasons for the appellant Dapeng Technology Company's request for refund of the overpaid tax are not in line with the provisions of the tax law and relevant tax policies, and it is decided not to refund the amount of tax it requested after examination that the taxable amount of its real estate transfer transaction is not overpaid. The first reason why Gaoling Local Taxation Bureau decided not to refund the tax is that according to Article 51 of the Law of the People's Republic of China on the Administration of Tax Collection, it is considered that the time limit for Dapeng Technology Company to apply for tax refund has exceeded the statutory time limit of three years. According to Article 51 of the Law of the People's Republic of China on the Administration of Tax Collection: "The tax paid by taxpayers in excess of the taxable amount shall be refunded immediately after being discovered by the tax authorities; If a taxpayer finds out within three years from the date of settlement and payment of taxes, he may request the tax authorities to refund the overpaid taxes and add interest on bank deposits during the same period, and the tax authorities shall immediately refund them after timely verification; If it involves withdrawing from the state treasury, it shall be returned in accordance with the provisions of laws and administrative regulations on the administration of the state treasury. " The law stipulates two cases of refunding the overpaid tax. One case is that the tax authorities find it and should refund it immediately. The other is that taxpayers can ask the tax authorities for a refund if they find it within three years from the date of settlement and payment of taxes. This case is the case where the appellant Dapeng Technology Company thinks that its company has overpaid the tax and filed an application for tax refund with the appellee Gaoling Local Taxation Bureau, and the application period stipulated in the second case shall apply. In this case, the appellant Dapeng Technology Company paid and settled the tax to the appellee Gaoling Local Taxation Bureau on April 25th, 201/year. If Dapeng Technology Company thinks that it has paid more tax, according to the above-mentioned laws and regulations, it shall file an application for tax refund with Gaoling Local Taxation Bureau within three years from the date of settlement and payment of tax. However, it didn't apply for tax refund to Gaoling Local Taxation Bureau until May 6, 20 17 and July 617, so the first reason of Gaoling Local Taxation Bureau was in compliance with the law. The court of first instance found that Dapeng Technology Company had applied for tax refund for more than three years and did not meet the legal conditions for applying for tax refund, which was well-founded in the law and recognized by our court. The appellant Dapeng Science and Technology Co., Ltd. thinks that it is impossible to "discover" whether to overpay taxes within three years after paying taxes because the actual transaction amount has not been determined, because it has not "occurred" until the appellant's appeal to the Supreme People's Court was completed on June 24, 20 16, so the three-year application period is not applicable, and it will report (apply for) the tax refund to the tax authorities three years later. The tax authorities should "discover" the tax refund, and should apply the appeal reason of the first case, which lacks factual and legal basis, and the appellee Gaoling Local Taxation Bureau does not think that Dapeng Science and Technology Company has overpaid the tax, so this case does not belong to the case that the tax authorities should immediately refund the tax when they discover the overpaid tax, that is, the first case is not applicable to this case, and our court does not support the appeal reason of the appellant. For the second and third reasons why Gaoling Local Taxation Bureau decided not to refund tax, according to Article 2 of the Law of the People's Republic of China on the Administration of Tax Collection: "The collection and suspension of tax, as well as the reduction, exemption, refund and overdue tax, shall be implemented in accordance with the provisions of the law; What the law authorizes the State Council shall be implemented in accordance with the provisions of the administrative regulations formulated by the State Council. "At present, there is no lawsuit about the real estate transfer transaction in the tax refund situation stipulated by the laws and regulations on tax collection management. The court's judgment determines the actual transaction amount, and the provisions that the tax paid before should be recalculated and refunded, and whether the tax paid by the appellant is overpaid and whether it should be refunded is within the scope of investigation and discretion of the tax authorities. Non-people's courts can adjudicate matters directly, so the second and third reasons of Gaoling Local Taxation Bureau are also in compliance with the law. The procedures of the Notice on Tax Matters made by Gaoling Local Taxation Bureau by the court of first instance are appropriate, and the correct determination of applicable laws and regulations is well founded in the law, which is also recognized by our court.

On the legality of the Tax Administrative Reconsideration DecisionNo. [20 17]00 1 made by the Appellee Municipal Local Taxation Bureau. The appellee Municipal Local Taxation Bureau received the plaintiff's application for reconsideration on October 9, 20 17/kloc-0, and made a tax decision on February 26, 20 17 [20/kloc-0] 001 The court of first instance held that it had made a written decision on administrative reconsideration beyond the statutory time limit, which was correct. The Municipal Local Taxation Bureau argued that it had made an extension decision and delivered it to Dapeng Technology Company, but it did not submit evidence to the court of first instance to prove it within the time limit of first instance. According to Article 34 of the Administrative Procedure Law of the People's Republic of China, the court of first instance held that there was no corresponding evidence and the law was correct. At the same time, the court of first instance held that administrative reconsideration should follow the basic principle of one case and one reconsideration, and different administrative acts should be tried separately. Based on the above two reasons, the court of first instance determined that the administrative reconsideration decision procedure made by the Municipal Local Taxation Bureau was slightly illegal, but it did not have a practical impact on the plaintiff's rights, so it was confirmed that the procedure was illegal. According to Article 74, paragraph 1 (2) of the Administrative Procedure Law of the People's Republic of China, "If an administrative act is in any of the following circumstances, The people's court ruled that it was illegal, but did not revoke the administrative act: …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

To sum up, the first-instance judgment found that the facts were clear and the applicable law was correct, and the appellant Dapeng Science and Technology Company's appeal reason could not be established, so our court did not support it. According to Article 89, Paragraph 1 (1) of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:

Reject the appeal and uphold the original judgment.

50 yuan, the court acceptance fee for the second instance case, was paid by the appellant Xi 'an Dapeng Biotechnology Unit.

A limited company to bear.

This judgment is final.

Hu Yan, presiding judge

Judge chai Miao

Acting Judge Chen Quanchi

June 26th, 2018

Bookkeeper Chen Siyu