The development and growth of enterprises can not be separated from the support and care of local governments, and the taxation and employment of local governments also depend on the vigorous development of enterprises. In the process of attracting investment, local governments often give enterprises tax incentives or tax rebates. Is this behavior in accordance with the law?

We know that the statutory principle of taxation is one of the basic principles of tax law. Article 3 of the Law on the Administration of Tax Collection stipulates that the collection and suspension of tax, as well as tax reduction, exemption, tax refund and overdue tax, shall be implemented in accordance with the provisions of the law; Where the State Council is authorized by law, it shall be implemented in accordance with the administrative regulations formulated by the State Council. Therefore, tax concessions such as tax relief can only be stipulated by laws, administrative regulations, autonomous regulations and separate regulations. No organ, unit or individual may, beyond their functions and powers, formulate preferential tax policies such as tax collection, suspension, tax reduction, tax exemption, tax refund and overdue tax that contravene the above laws without authorization.

However, China's national conditions are so complicated. The following author summarizes the current effective preferential tax policies and regulations of local governments as follows:

1.20 10 may 15, the tax incentives promised by the local government will remain valid, and let bygones be bygones.

Guo Fa [2065438+05] No.25 Notice of the State Council on Relevant Matters Concerning Preferential Policies such as Taxation: 2. Preferential policies issued by various regions and departments should be implemented within the prescribed time limit; If there is no prescribed time limit and adjustment is really necessary, the local government and relevant departments shall set up a transition period in accordance with the principle of grasping the rhythm and ensuring stability, and continue to implement it during the transition period.

Three, all localities and enterprises have signed preferential policy contracts, continue to be valid; For the cashed part, it is not retroactive.

Four, all regions and departments to formulate new preferential policies in the future, except as stipulated by laws and administrative regulations, involving tax or non tax revenue approved by the central government, should be reported to the State Council for approval before implementation; Other expenditures implemented after the approval of local governments and relevant departments shall generally not be linked to the tax or non-tax income paid by enterprises.

Two. The taxpayer's application for tax reduction or exemption is valid according to the Measures for the Administration of Tax Reduction or Exemption, which was implemented on August 1 2065438 in State Taxation Administration of The People's Republic of China, People's Republic of China (PRC).

Article 5 of the Measures for the Administration of Tax Reduction and Exemption: Taxpayers who enjoy the approved tax reduction and exemption shall submit the approval materials, file an application, and implement it after being approved and confirmed by the tax authorities with the power of examination and approval according to the provisions of these Measures. Taxpayers who fail to apply in accordance with the provisions or apply but have not been approved and confirmed by the tax authorities with the power of examination and approval shall not enjoy tax reduction or exemption.

Taxpayers who enjoy the filing of tax reduction or exemption shall have the corresponding qualifications for tax reduction or exemption, and go through the filing procedures according to regulations.

Special reminder: After Guo Fa [20 15] No.25 was published on May15, 2005, the new preferential treatment for tax reduction and exemption shall be implemented in accordance with the Administrative Measures for Tax Reduction and Exemption.

Three. On September 3, 20 16, the court held through trial that the administrative counterpart (taxpayer) and the administrative organ did not sign a tax refund contract, so the provisions of Guo Fa (2015) No.25 were not applicable.

The administrative judgment No.56 of the Intermediate People's Court of Leshan City, Sichuan Province (20 16), line 1 1 "Appellant Sichuan Guangxin Silicon Technology Co., Ltd. v. Appellee Leshan High-tech Industrial Development Zone Management Committee";

Article 3 of the Law of People's Republic of China (PRC) on the Administration of Tax Collection stipulates that the collection and suspension of tax, as well as tax reduction, exemption, tax refund and overdue tax, shall be implemented in accordance with the provisions of the law. No organ, unit or individual may, in violation of the provisions of laws and administrative regulations, arbitrarily make decisions on tax collection, suspension, tax reduction, exemption, tax refund, overdue tax and other decisions inconsistent with tax laws and administrative regulations. On June 65438+1October 16, 2000, the State Council issued the "Notice on Correcting the Local Self-formulated Policy of Retreating Taxes", in which Article 1 stipulates that: All departments shall not attract investment by levying taxes before returning them or by other tax reduction or exemption, and shall not change tax laws and policies in any way, which will damage the authority of tax revenue; Article 2 stipulates that local people's governments shall not change, adjust or adapt the national tax policies without authorization beyond the management authority explicitly granted by tax laws and regulations. As a form of tax reduction and exemption, the examination and approval authority belongs to the State Council, and local people's governments at all levels are not allowed to formulate tax policies on their own. Document No.49 was formulated on April 16, 2000. Article 3 stipulates that after the polysilicon project with a capacity of 1000 tons/year is put into production, the local income will be returned to the enterprise to repay the principal and interest three years before the value-added tax, the income tax will be returned by the finance at the same level in the first five years, and 50% will be returned by the finance in the next five years according to regulations. If the enterprise has difficulties, it can be returned in full.

In this case, there is no evidence to prove that the Leshan Municipal People's Government reported to the State Council for approval before making the above-mentioned administrative commitment of collecting taxes first and then returning them. Therefore, the administrative commitment in Document No.49 (Leshan Municipal People's Government April, 2000 16) to reduce or exempt enterprise tax after taxation obviously conflicts with the provisions of the Law of People's Republic of China (PRC) on the Administration of Tax Collection and Guo Fa [2000] No.2.

The appellant claims that the appellee should honor his promise in accordance with Circular 49 and should not support it according to law. The Appellant claimed that Circular No.49 was a contract signed between Leshan Municipal People's Government and the Appellant. According to Article 3 of the Notice on Relevant Matters Concerning Preferential Policies such as Taxation issued by the State Council Guofa [2015] No.25, the Appellee should continue to perform the contract and pay all the tax refund.

We believe that according to the above analysis, Document No.49 is a unilateral commitment made by the Leshan Municipal People's Government, not an agreement between the two parties. The evidence in this case cannot prove that the appellant and the appellee signed a written agreement or contract involving the amount and duration of tax refund. The appellant's claim is not supported according to law.

To sum up, although the tax collection and management law stipulates the tax legalism, the actual operation is bounded by the document 15, which was issued in May, 2005, and the legal effect is quite different before and after.