According to the provisions of Article 32 of People's Republic of China (PRC) Tax Collection and Management Law, if the taxpayer fails to pay the tax within the prescribed time limit and the withholding agent fails to pay the tax within the prescribed time limit, the tax authorities shall, in addition to ordering the tax to be paid within the prescribed time limit, impose a late fee of 0.5% of the overdue tax on a daily basis from the date of tax payment. According to Article 75 of the Detailed Rules for the Implementation of the Law of People's Republic of China (PRC) Municipality on the Administration of Tax Collection (hereinafter referred to as the Detailed Rules), the starting and ending time of the late payment fee is from the day after the expiration of the tax payment period stipulated by laws and administrative regulations or determined by the tax authorities in accordance with the provisions of laws and administrative regulations to the date when the taxpayer or withholding agent actually pays or remits the tax.

As can be seen from the above provisions, the tax law only stipulates the proportion of surcharge and the starting and ending period, and does not limit whether the amount of surcharge can exceed the amount of tax. According to the above regulations, when the overdue tax payment period exceeds 2000 days (about 5.5 years), the amount of overdue tax payment will exceed the amount of tax. Then, can the late payment fee exceeding the tax amount not be paid?

This issue was not controversial before the entry into force of 20 12 1 Administrative Compulsory Law of the People's Republic of China (hereinafter referred to as the Compulsory Law), that is, it needs to be paid in full. However, after the implementation of the law, it has been controversial. The reason is that Article 45 of the Law stipulates that the administrative organ shall make an administrative decision on the obligation of payment according to law, and if the party fails to perform it within the time limit, the administrative organ may impose a fine or a late payment fee according to law. The parties concerned shall be informed of the criteria for increasing the fine or late payment fee. The amount of fine or overdue fine shall not exceed the amount of obligatory payment. Therefore, many people think that according to this regulation, the amount of tax late fees can't exceed the tax amount, that is, the maximum amount of tax late fees is the tax amount, and the excess part can of course not be paid.

In fact, I think the key to this problem is whether the tax late payment fee is the same as the late payment fee stipulated in Article 45 of the Compulsory Law. If the nature is the same, the provisions of the compulsory law shall apply, and the overdue tax shall not exceed the taxable amount, and the excess may not be paid. Because the implementation rules stipulate the starting and ending period of the calculation of tax late fees, this law belongs to administrative regulations, and its effect is lower than that of compulsory law, which conflicts with it. According to the applicable legal rules, mandatory laws should be applied. If the nature is different, the provisions of the Tax Administration Law and its detailed rules for implementation shall apply. The amount of overdue tax may exceed the tax payable, and it shall be paid in full.

So, are they the same in nature?

Let's look at the provisions of the Compulsory Law. According to the provisions of Article 12 of this Law, the nature of late payment is an administrative compulsory means. Article 2 of the law stipulates that administrative coercion refers to the act of an administrative organ or an administrative organ applying to the people's court for compulsory performance of its obligations against citizens, legal persons or other organizations that fail to perform administrative decisions according to law. Article 45 of the law stipulates that if a party fails to perform an administrative decision within the time limit, the administrative organ may impose a late fee according to law, with the purpose of urging the administrative counterpart to perform the decision. According to the provisions of Article 32 of the Tax Administration Law, the late payment fee is not an administrative compulsory means, but is based on the provisions of the substantive law (such as the enterprise income tax law and the individual income tax law) on the tax payment period, as long as taxpayers and withholding agents do not abide by it. In nature, the interest generated by the occupation of state tax funds focuses on compensation to the state, and its purpose is not to force taxpayers to fulfill their obligations. In fact, the compulsory tax measures stipulated in the Tax Administration Law do not include the collection of late fees. In order to avoid confusion with the late payment fee in the compulsory law, the revised draft of the Tax Administration Law of 2065438+2005 also suggests changing the late payment fee of tax to "tax interest". It can be seen that although the tax late payment fee is the same as the late payment fee in the compulsory law, it is essentially different and the two cannot be confused.

To sum up, the provisions of the Tax Administration Law and its detailed rules for implementation shall apply to the collection of tax late fees, and the amount may exceed the tax payable. Taxpayers and withholding agents shall pay the tax late fees in full according to the amount calculated by the tax authorities according to law.