First, the embodiment and significance of the tax administrative law enforcement crisis
The tax authorities have many difficulties in the process of administrative law enforcement. "Going to Wan Li Road, entering thousands of homes, and being influenced by a hundred families" is a true portrayal of the work of tax officials. At the same time, the existence of potential crisis due to the risk of tax administrative law enforcement also puts forward higher requirements for tax authorities to standardize and effectively enforce the law.
According to relevant information and media reports, due to problems such as improper law enforcement, mistakes in law enforcement, administrative inaction or lax enforcement of tax laws, tax administrative reconsideration cases and administrative litigation cases are relatively common in China, and they have shown an upward trend in recent years, so many tax officials have been investigated for their responsibilities. According to incomplete statistics, the number of cases of tax administrative reconsideration in China was 1035 from 1994 to 2000, and it rose to 3,305 from 200/kloc-0 to 2005, 3.2 times that of the previous six years. The number of tax administrative litigation cases 1994 to 2000 was 328, and it rose to 108 1 from 200/kloc-0 to 2005, which was 3.3 times of the previous six years. In administrative reconsideration cases and administrative litigation cases, there are not many cases that can maintain the original decision, and the losing rate is relatively high. For example, in the reconsideration cases completed by the national tax authorities in 2005, the ratio of maintaining, revoking and changing the reconsideration decision was 54: 46; In the tax administrative litigation cases concluded by the people's court, the ratio of judgment maintenance to cancellation and change is 48: 52; In 2004, 204,900 tax officials were investigated by tax authorities nationwide, 4,597 were subject to administrative sanctions, and 19 1 person was transferred to judicial organs; From July 2005 to the end of 2006, there were 439 tax officials in the national tax authorities who were investigated and dealt with by the procuratorial organs for dereliction of duty and infringement. In 2006, only the national tax system was investigated and dealt with by the procuratorial organs for dereliction of duty and infringement for 144. However, from the end of last year to March this year, eight grass-roots front-line tax collectors and a deputy director of a bureau-affiliated unit in Guangzhou successively neglected their duties and used their powers to seek personal gain. They were questioned by the discipline inspection and procuratorial organs, detained, released on bail and even arrested and detained, which brought irreparable negative effects to Guangzhou local tax. The painful lesson has to sound the alarm and attract our attention.
In view of the above situation, the author believes that the proposal of tax administrative law enforcement crisis has profound practical significance.
(A) the crisis of tax administrative law enforcement can effectively safeguard the vital interests of tax law enforcement personnel. Scientifically preventing and resolving the crisis of tax law enforcement, thus ensuring the safety of tax law enforcement, is the basis for protecting comrades and stabilizing the ranks, and is also the key to building a healthy atmosphere inside and an image outside.
(two) the tax administrative law enforcement crisis, can establish a good image of tax law enforcement agencies. For example, law enforcement officers can always keep a sense of crisis in tax administrative law enforcement, do correct and civilized law enforcement, and at the same time do a good job in tax service and try to resolve the contradiction between tax collection and payment, which can not only resolve the crisis in tax administrative law enforcement, but also establish a good image of themselves and the entire tax law enforcement team. On the other hand, if the law enforcement method is simple and the law enforcement method is rough, it will cause tension between tax collection and payment, reduce the safety factor of law enforcement, increase the crisis of tax administrative law enforcement, damage the image of law enforcement team, and make tax law enforcement work passive.
(3) The crisis of tax administrative law enforcement can ensure the quality of tax law enforcement and tax revenue. If law enforcement officers can always keep the sense of crisis in tax administrative law enforcement, they can ensure the smooth implementation of government decrees, improve their sense of responsibility, overcome their paralysis, and ensure that they are conscientious and receive all due.
(4) The crisis of tax administrative law enforcement can also prevent corruption, overcome bureaucracy and promote the building of a clean government. Although it is a very small number of tax cadres who cause the crisis of tax administrative law enforcement because of dishonest behavior, their behavior seriously affects and tarnishes the image of tax workers, damages the authority of tax authorities and desecrates the dignity of the law.
Two, the tax administrative law enforcement system crisis analysis
Tax law is a "double-edged sword", which restricts the exercise of tax enforcement power to a greater extent while regulating taxpayers' tax payment behavior. At present, the crisis of tax law enforcement is not an isolated social phenomenon, which has both the tax authorities' own factors and social and economic roots. There are both objective and subjective factors. To sum up, there are the following reasons:
(A) lack of awareness of law enforcement crisis among tax officials. Some tax law enforcement officers lack effective understanding of the risks and consequences that may be caused by improper tax law enforcement, and their legal awareness is weak, and law enforcement is arbitrary and lax in law enforcement; The quality improvement of some law enforcement personnel lags behind, failing to adapt to the great changes in economic and tax development, resulting in lax law enforcement procedures and leading to law enforcement crisis. Mainly include:
1, low work efficiency. For example, the inspection department has been handling cases for too long, resulting in the disappearance of taxpayers and the loss of evidence, resulting in some cases that could have been handled eventually because of insufficient evidence; Taxpayers questioned the tax-related audit matters handled by the tax collection organ over time; Tax source management information is distorted, and taxpayers disappear after fraudulently purchasing invoices, resulting in tax loss. This kind of risk is not easy to detect and ignore on the daily surface, and the final consequences may be extremely serious, and even bear legal responsibility.
2. Improper tax handling. The deviation of tax law enforcement officers' understanding of the tax law and related laws makes them pay back taxes on matters not clearly stipulated in the tax law; Failing to add a late payment fee according to the provisions for the unauthorized deferred tax payment; There is no punishment for some cases that should be administratively punished; Pay attention to the entity in the work, ignoring the procedure, resulting in the case can not be handled because of illegal procedures. According to relevant data, during the period from 1999 to 2004, the losing rate of tax authorities rose from about 66% to about 82%, which was much higher than the average losing rate of 40% of the national administrative organs. Among them, the effectiveness of tax law enforcement cases in providing legal evidence is the weakest link in law enforcement.
3. Tax enforcement is not in place. First, the documents are delivered illegally, and the documents are not delivered to the legal personnel. If it involves taking measures such as tax preservation and tax enforcement against taxpayers, it will cause disputes and conflicts, and there is a direct risk of losing the case; Second, the enforcement measures are not in place, and the tax arrears (fees and penalties) are not recovered effectively. The measures given by law to recover taxes are not fully utilized, resulting in the loss of state taxes.
4. Making and issuing non-standard documents or internal workflow will increase the probability of crisis to some extent. At present, all kinds of management systems have higher and higher requirements for tax personnel, which is conducive to the standardization and development of tax collection and management in the long run, but some requirements for tax law enforcement personnel are too high, and even the obligations and responsibilities that should be borne by taxpayers are required to be borne by tax authorities and tax law enforcement personnel. Moreover, all kinds of management systems and management requirements overlap, and one requirement is more perfect than the other, which puts great pressure on the tax personnel engaged in grass-roots tax management in the current legal environment and tax collection environment, thus designing institutional inaction traps for themselves and increasing the probability of law enforcement crisis.
(2) Individual tax collectors use their rights as a tool for personal gain. Grass-roots tax collectors work in the front line and often deal with tax paying enterprises, managers and intermediaries, which is particularly easy to become the main target of corruption by individual lawless elements. Some people with ulterior motives try their best to win over and "close" the relationship with tax cadres through the "bait" of material interests, or act as "brokers" through intermediary agencies to seek and seek not to pay or pay less taxes. However, when individual tax collectors use their rights as tools and means for personal gain, it may lead to a crisis of clean government.
1, the audit selects the human case and the relationship case. At present, the evaluation of case selection is not perfect and the case selection is arbitrary. Individual personnel take advantage of the convenience of being at the "entrance" of case inspection and "releasing water without leaving traces" and take selective filing methods such as "when standing, not standing" to seek illegitimate interests.
2. Implementation of case inspection. When tax inspectors carry out case inspection, they take advantage of management loopholes such as the lack of uniform standards and procedures for evidence selection and the lack of effective supervision in the process of evidence selection, focus on small problems, avoid heavy ones, and neglect heavy ones, and over-report or under-treat the taxes that should be recovered on the pretext of being unfamiliar with business and insufficient evidence, so as to seek illegitimate interests in private.
3. Implementation of the case. Inspectors take advantage of loopholes such as low openness of case execution, lax supervision of execution, and greater subjectivity and arbitrariness to connive at or instruct taxpayers to transfer executable property, which leads to the failure to execute or partially execute the results of case inspection and handling, and seek illegitimate interests in private.
4. Final settlement and subsequent management of enterprise income tax. Tax administrators take advantage of the fact that the final settlement of enterprise income tax is mostly represented by intermediaries, reach a tacit understanding with intermediaries or taxpayers, and take such measures as turning a blind eye to existing problems or appointing intermediaries to conspire with intermediaries or taxpayers privately to seek illegitimate interests.
5. Tax relief. Whether it is policy relief or difficult relief, in practice, the specific operation caliber of tax relief is often in the hands of tax administrators. In the case of a large number of applicants and limited amount of tax relief actually approved, tax administrators are easy to take advantage of the "double information asymmetry" of superiors about their own work and taxpayers about tax relief conditions to seek illegitimate interests.
(3) The lack and imperfection of tax legislation. The lack of tax legislation also has its profound reasons for the crisis of tax administrative law enforcement:
1, it is difficult to accurately grasp the relevant elements of the substantive tax law. China's current tax substantive law is mainly composed of separate laws, administrative regulations and rules of various taxes. The tax elements of some taxes are not specified in the laws, administrative regulations and rules. The tax authorities have too much discretion in exercising tax enforcement power, and subjective factors can easily influence the final tax results, which violates the principle of tax legalism and will inevitably lead to tax disputes and law enforcement crises.
2. The formulation of tax regulatory documents is not rigorous enough. As far as the generalized tax law system is concerned, the tax normative documents are in the last position and their legal effect is the lowest; The narrow tax law system only refers to the laws, regulations and rules formulated and promulgated by the national legislature in accordance with legislative procedures. Tax normative documents do not belong to the narrow scope of tax law, but generally exist as a supplement and explanation to the substantive tax law. Due to the loopholes in the content of some tax regulatory documents, the formulation is not rigorous enough, which leads to inconsistency and poor cohesion, which affects the implementation effect of substantive law. However, once a tax case enters the stage of administrative litigation, when the people's court reviews a specific administrative act, it only takes laws and regulations as the basis, and rules can only be used as a reference. Therefore, the explanation or supplement made by normative documents to the substantive tax law is ineffective in administrative litigation, and the law enforcement actions made accordingly may lead to a law enforcement crisis.
3, some provisions of the tax procedure law are too principled, which is not conducive to operation. In the practice of tax enforcement, there are still some vague spaces in the Tax Administration Law, such as: whether to add a late fee to the tax for tax adjustment and compensation of related party transactions; It is not clear about the taxpayer's failure to declare tax payment in full, how to grasp the limitation of tax collection, etc., which makes tax law enforcement fall into an embarrassing situation of "chaos" or "inaction" in law enforcement and may encounter law enforcement crisis.
(4) Systematic reasons such as tax collection and management mechanism. Due to the systematic reasons of tax collection and management mechanism and external intervention, the crisis of tax administrative law enforcement mainly includes:
1, the tax collection and management mechanism is not perfect. From the dialectical relationship of "collection and inspection", collection is the purpose, management is the foundation and inspection is the guarantee. However, in actual operation, there are some problems such as unclear division of authority and poor communication. Due to the separation of functions, the information exchange channels between tax collection and inspection are not smooth, and the relevant tax-related information cannot operate effectively among various departments, which has affected the crackdown on tax-related illegal activities, formed a large number of runaway households and abnormal households, and formed a law enforcement crisis. In addition, there are also problems between taxation and industry and commerce, banking, finance and other departments, between national and local taxes, and between tax departments in different regions, such as the lack of information sharing and timely communication, which will also affect the crackdown on tax law enforcement and cause passive work.
2. Intervention risks from all sides. Due to the pressure of local economic development speed and social employment, many local governments follow the one-sided working idea of "focusing only on economy" and "focusing only on GDP". However, there are various connections between tax authorities and local governments, especially in terms of tax sources, funds and construction, and they often adopt a cooperative attitude towards the government's "desire" and "overall situation". Some governments are on the verge of law. In such a social environment, tax enforcement has always been at the focus of various contradictions, and a series of problems such as administrative intervention, human intervention, poor cooperation between departments and judicial corruption have seriously restricted the fairness of law enforcement.
3. Tax law enforcement is subject to multi-level supervision and restriction, which increases the law enforcement crisis. With the increasing proportion of tax revenue in national fiscal revenue, tax law enforcement, as a part of national administrative law enforcement, has been closely concerned by discipline inspection and supervision organs at all levels, people's procuratorial organs and all walks of life. The social supervision of tax authorities and law enforcement personnel has increased, which requires tax authorities and their staff to have a higher level of law enforcement and stricter standards of law enforcement.
Three, the tax administrative law enforcement crisis to resolve
Countermeasures The resolution of the crisis of tax administrative law enforcement is an important part of the national tax management mechanism, and it is also the fundamental guarantee for tax administration according to law and tax rule by law. In this regard, White, a famous American administrative jurist, pointed out that there are many bad situations in administrative operation, such as abuse of power, violation of law and discipline, violation of civil rights, weak management and irresponsibility, which easily lead to the crisis of tax administrative law enforcement. Therefore, it is necessary to develop and improve the corresponding countermeasures mechanism in order to effectively supervise the administrative system and ensure its efficient operation. At the same time, it also "ensures that the actions of administrative officials not only coordinate with the law, And it is also in line with the purpose and psychology of citizens. "We can minimize the losses caused by the crisis to the tax authorities by communicating in advance and formulating a complete crisis emergency management plan. In addition, once a crisis occurs, the tax authorities should learn to communicate effectively and learn to deal with and resolve the crisis; Turn the crisis into an opportunity for the development of taxation.
One of the countermeasures: making a crisis emergency management plan. Crisis management is also called emergency management. If it is not prepared in advance, it will be easy to make mistakes when a crisis occurs. It is very necessary for us to make a crisis emergency management plan to improve the quality and efficiency of crisis response. In the face of the possible tax law enforcement crisis, the measures we can take include avoidance, compliance and cooperation. Taking that measure determines whether we can effectively resolve and solve the crisis when it happens. In today's harmonious society, it should be our first choice to solve the administrative law enforcement crisis with a cooperative attitude of communication and coordination. We can resolve the law enforcement crisis by communicating with taxpayers, coordinating with higher authorities, consulting with judicial departments, and making some concessions on some issues that are not important to ourselves but important to the other side, so as to avoid the occurrence of administrative failure and being investigated for law enforcement responsibility. Especially after the crisis, in the face of taxpayers or external supervision units, what should we say, by whom, in what way, and how can we control or strive for the best communication effect? Therefore, it is necessary to make a crisis emergency management plan.
Specifically, the following principles should be grasped when making a crisis emergency management plan: first, the responsibilities should be clearly defined, and then corresponding countermeasures should be taken. If the tax authorities are not responsible and the crisis is entirely caused by taxpayers, they should adopt the strategy of quick decision and reply to taxpayers in writing as soon as possible to explain the problem. If the tax authorities should take full responsibility, they should adopt the strategy of taking retreat as progress. First, they should make a written commitment to deal with the problem fairly, then take measures to stop the spread of the situation, and finally, they should dare to openly review and save the impact. If the tax authorities should bear part of the responsibility, they should adopt the strategy of social consultation. First, they should invite an impartial third party to identify the responsibility. Secondly, they should choose the "opinion leaders" of taxpayers for equal consultation. Finally, they should take the initiative to improve the insufficient work. Through the adoption of the above coping strategies, we can convince people with reason, treat people with emotion and treat people with law, and the ultimate goal is to resolve the crisis, tide over difficulties and solve problems.
The second countermeasure: establish a crisis early warning mechanism. Objectively, any organization has various problems and defects. If these problems and defects are not properly solved, they will change from quantitative to qualitative, and under the temptation of certain incentives, they will become the prone and frequent parts of the crisis. We can control it through daily institutionalized management and prior monitoring, that is, all tax officials are highly sensitive to the frequent and prone parts of the crisis, with good crisis awareness and good crisis response ability. To do this, we should train and educate all kinds of crises in advance, improve the crisis awareness of all tax personnel, improve the tax law enforcement mechanism, and control and reduce the occurrence of tax crises.
First, improve the comprehensive quality of tax personnel and enhance their ability to resolve the crisis. It is necessary to educate tax officials on "rule of law" and "law enforcement crisis", deepen the awareness of law enforcement crisis of inspection cadres, and make them have a higher level understanding of their work. Therefore, strengthening the study of relevant laws and regulations and improving the professional quality of tax law enforcement personnel are the basis for ultimately preventing the crisis of tax law enforcement. The learning content includes two aspects: first, the current tax laws, regulations and policies, which are the basis and standards of daily tax law enforcement. Only by thoroughly mastering the knowledge of tax law can we improve our professional ability and law enforcement level and avoid dereliction of duty due to inadequate law enforcement or abuse of power in ultra vires law enforcement; The second is the relevant provisions on the handling of law enforcement faults, violations, disciplines and illegal acts, which are the "high-voltage lines" that tax law enforcement personnel should try to avoid touching. It is clear that only when tax officials are familiar with the relevant responsibilities of irregular law enforcement can they standardize law enforcement more consciously and effectively reduce and prevent the occurrence of tax law enforcement crisis.
The second is to improve the law enforcement supervision mechanism and increase internal punishment. We must further improve the internal law enforcement responsibility system. It is necessary to do a good job in the adaptation of job responsibilities and workflow, and standardize the law enforcement procedures for effective connection between law enforcement posts and upper and lower links; Find out in advance the management loopholes and poor monitoring that may be caused by the unconnected and difficult operation of law enforcement process, and make up and correct them in time to reduce the potential crisis of the system; Continue to strengthen appraisal, give full play to the effectiveness of the tax law enforcement responsibility system, and establish a target management assessment mechanism with the tax law enforcement responsibility system as the core; Strictly investigate the fault liability and increase the internal punishment, so as to promote the tax law enforcement personnel to change from passive to active, from "asking me to regulate" to "asking me to regulate", effectively prevent the occurrence of abuse of power, reduce illegal law enforcement and resolve the law enforcement crisis.
The third countermeasure: to establish and improve the operational mechanism of crisis resolution mainly requires the tax authorities to innovate the tax management mechanism and promote administration according to law.
The first is to take precautions beforehand. Establish law enforcement procedures and regulatory document review mechanism, regularly review the applicable law enforcement procedures and regulatory documents, and actively put forward countermeasures to superiors for tax system defects and tax policy loopholes, so as to standardize the interpretation of tax law, safeguard the unity, stability and seriousness of tax law, ensure that tax law enforcement has laws to follow, and avoid the damage to taxpayers' legitimate rights and interests caused by the execution of wrong documents, which will lead to unnecessary administrative litigation and even law enforcement violations. In view of the lack of clear or comparative principles in some laws and regulations, it is difficult to grasp the situation in the collection and inspection work, and establish a consultation system for difficult matters to resolve the law enforcement crisis.
Second, based on the centralized core system, the inspector platform is established, and all kinds of specific information related to audit management are integrated into a working platform through information technology. Focusing on improving the quality and efficiency of audit work, according to the four functional modules of case task management, case source information management, audit management and comprehensive management, specific work items, responsibilities, workflow and assessment standards are issued through the information platform. Form an all-round inspection information resource service system oriented to operation layer, management monitoring layer and decision support layer, realize effective connection of tax collection together with tax administrator platform, and realize fine tax management through information digitization, so as to improve the efficiency of tax management, realize benign interaction, form a high-speed operation mechanism of "finding problems in time, feeding back problems in time, communicating information in time, and investigating and handling them in time", ensure the order and efficiency of various functional departments in tax law enforcement activities, and resolve law enforcement to the maximum extent.
Third, the audit-type inspection working papers should be implemented in tax inspection, and the deviation caused by people's subjective judgment and arbitrariness should be corrected by unifying and standardizing the audit procedures, steps and methods; By determining the key points of the audit, the tax issues that may be involved in the whole process of enterprise production and operation are comprehensively revealed, so that the depth and breadth of the audit work are guaranteed; Through the working papers, the working process and quality of inspectors can be reflected concretely, which provides a standard for monitoring and restraining the inspectors, so that the inspectors can't act on the issue of incorruptibility and inaction.
Fourth, establish guidelines for tax assessment of classified management, and construct tax assessment index system and early warning index system; Establish a set of quality risk assessment methods for intermediary agencies, improve the classified management measures for risk levels of intermediary agencies, and improve the supervision mechanism; Extend the collection management to all links related to enterprise operation and taxation, master the accounting system of enterprises or enterprise groups, master the operating characteristics of enterprises, and master the major production and operation changes of enterprises, so as to avoid tax loss caused by neglect of management.
Fifth, increase the publicity of tax matters, disclose the time limit and process, and report the results in time; Refine the operating rules, standardize the reduction and exemption procedures, and reduce the artificial operating space of tax administrators; Gradually cancel the internal quota control of tax reduction and exemption, and examine and approve according to law.
Countermeasure 4: Establishing a crisis coordination and communication mechanism requires the tax authorities to do the following work:
While strengthening our internal strength, we should do a good job in tax law publicity, coordinate all aspects of relations, strive for the understanding and support of all sectors of society for tax work, and form a mass system of tax cooperation and protection, so as to maintain tax order, create a good tax environment and resolve the law enforcement crisis of tax authorities. On the one hand, we should make effective use of various media, popularize the knowledge of tax law, enhance the awareness of paying taxes according to law from all walks of life, and gradually coordinate the construction of tax legal system with the people's legal concept. Putting the behavior, procedure and time limit of tax law enforcement under the supervision of taxpayers and shaping a good image of tax law enforcement can gain the understanding and support of taxpayers and effectively reduce possible contradictions and conflicts in tax law enforcement. At the same time, deepen the level and content of cooperation with national tax, industry and commerce, housing management, customs, banks, intermediaries and other departments, and make good use of the role of local government tax protection agencies to obtain the cooperation and support of relevant departments. On the other hand, it is necessary to strengthen coordination and communication with discipline inspection, supervision, procuratorial work, public security and courts, and discuss and solve the difficulties and problems encountered in tax law enforcement, so as to resolve the external tax law enforcement crisis and build a harmonious and interactive tax environment.
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