In June 2007, Beijing State Taxation Bureau conducted a tax inspection on an investment company's information consulting branch, and found that the company evaded corporate income tax 1087600.55 yuan in 2006. The company obtained the business license from June 5438 to February 2005, and it is an unincorporated branch with independent accounting and tax payment. In May 65438+August, 2006, the tax registration was cancelled with the approval of the local tax authorities, and the business license was cancelled with the approval of the administrative department for industry and commerce on May 25th of the same year. When recovering taxes, the tax authorities have encountered the following problems: First, the company has been cancelled according to legal procedures. Should the tax evasion discovered later be recovered? Second, if it should be recovered, who should it be recovered from? How to recover? Thirdly, it is derived from this that if it is an independent legal person company, how to recover the tax evasion found after cancellation according to legal procedures? How can companies (including unincorporated companies) recover the tax underpaid after cancellation according to legal procedures? Should late fees and fines for tax evasion be recovered?

There is not much discussion on the above issues in the theoretical circle, but there are some legal gaps and management loopholes in the practice of tax enforcement, and the actual situation is often lost, making the cancellation of the company a common means for some taxpayers to evade their tax obligations, resulting in a large loss of tax. It can be said that this is an important issue in the process of strengthening tax management and perfecting tax legal system, which needs serious discussion.

Second, the analysis of related tax recovery issues

(a) whether it should be recovered.

The cancellation of a company can generally be divided into the following situations: the company handles industrial and commercial and tax cancellation through legal procedures; The company has gone through industrial and commercial cancellation, but has not gone through tax cancellation; The company handled the tax cancellation, but the industry and commerce did not cancel it; Enterprise bankruptcy; Merger, division and merger. These situations all belong to the disappearance of legal subjects, some are clear in legal norms, and some have no particularly clear basis for whether to recover the tax evaded before. Especially in the first case, it is particularly difficult to recover the tax evaded before, to whom and how. Therefore, this paper focuses on the handling of tax evasion found after the company has gone through legal procedures such as industrial and commercial and tax cancellation.

There are two basic views on whether the above tax evasion should be recovered. One view is that the company, as a taxpayer, no longer exists, so it can't be recovered, and even it should not be inspected from the beginning. As far as the company is concerned, the legal subject of the company has been eliminated legally, and its limited liability for debts has been cleared up. The Law of People's Republic of China (PRC) Municipality on the Administration of Tax Collection (hereinafter referred to as the Law on the Administration of Tax Collection) and its implementing rules have not made clear provisions on the recovery of tax evasion in this case. Although the Company Law of People's Republic of China (PRC) (hereinafter referred to as the Company Law) stipulates that members of the liquidation team shall be liable for compensation if they cause losses to the company or creditors due to intentional or gross negligence when the company is cancelled and liquidated, can the above tax evasion be implemented mutatis mutandis? Can these tax evasion behaviors be attributed to the intentional or gross negligence of the members of the liquidation team, or are the shareholders of the company maliciously evading debts? In this regard, the "Company Law" is not clearly defined. Take the branch as an example. Although the Company Law stipulates that the head office shall be jointly and severally liable for the debts of the branch, can tax evasion be recognized as ordinary debts? Can I recover tax evasion from the head office? There is no clear stipulation in the company law, and there is no clear basis in the tax collection and management law. Another view is that even if the business license and tax registration of the enterprise have been cancelled, the original investors or shareholders of the enterprise should be recovered for tax evasion discovered later. I tend to the second view, mainly because:

1. According to the company law, the head office is jointly and severally liable for the debts of its branches, and can recover the tax evaded by the branches from the head office. This involves a basic theory, namely "the theory of creditor's rights and debts of tax nature". From the perspective of tax entity relationship, tax is a kind of creditor-debtor relationship in public law, and the power and rights enjoyed by the state are a kind of "property right", that is, "state creditor's right". The legal relationship of taxation is similar to that of civil creditor's rights and debts, so the way to realize civil creditor's rights can also be applied mutatis mutandis to tax creditor's rights. Although this theory has not been clearly recognized as a legislative guide in tax legislation, the civil creditor's rights system such as subrogation, revocation, security right and priority in tax collection and management law has actually been applied to tax practice.

2. In essence, the disappearance of the business entity does not exempt the original investor from the negative tax obligation. The "contract theory" in modern enterprise theory abandons the view that the enterprise is the simple accumulation of material wealth and the technical relationship or production function of material elements, but regards the enterprise as a cooperative organization for property rights transactions between individuals, which is a contract network composed of a series of "contracts", and explains the nature of the enterprise from the perspective of the transaction relationship between people. In essence, the subject who bears the tax obligation is not the material that constitutes the enterprise, but the person who grasps the production factors of the enterprise. They are the real taxpayers, that is, the taxpayers. From this theory, the so-called "enterprise no longer exists" is actually the reorganization of the "production factors" that constitute the enterprise by the shareholders or investors of the enterprise, and it is impossible to give up the recovery of the tax obligation of the real subject of the enterprise-the asset owner because of the dissolution of a certain "contract" of the enterprise. Although "contract theory" is only one of many enterprise theories, it is not a legal explanation, but it can be used as a guide and way to understand the essence of things, especially for the above problems.

3. As far as the nature of tax registration is concerned, it is not a necessary condition for fulfilling tax obligations. Tax registration is a form of administrative registration, but it is not an administrative license. It is a means to strengthen the restriction of taxpayers' rights, not a means to restrict taxpayers from fulfilling their tax obligations, and it is not the basis of taxpayers' rights and obligations. The Notice of State Taxation Administration of The People's Republic of China on Several Issues Concerning the Implementation of Tax Administrative Licensing (Guo Shui Fa [2004] No.73) has clearly excluded tax registration from the scope of administrative licensing, and does not think that the purpose of tax registration is to obtain capacity for conduct and qualification for activities. The Law on the Administration of Tax Collection also indirectly shows the above viewpoint. For example, Article 37 stipulates: "Taxpayers engaged in production and business operations and taxpayers engaged in business operations temporarily fail to go through tax registration in accordance with the regulations, which shall be approved by the tax authorities and ordered to pay; If it fails to pay, the tax authorities may detain commodities and goods whose value is equivalent to the taxable amount. " This is still applicable to taxpayers who have never applied for tax registration, and taxpayers who have applied for cancellation, cancellation or cancellation of registration should recover the tax evaded.

4. From the perspective of tax management, if tax evasion is not recovered, a big loophole in tax collection and management will be formed, and taxpayers will be induced to evade taxes through frequent registration and cancellation. In the practice of tax law enforcement, we often encounter such a situation.

(2) Who should be recovered from?

If the tax evasion discovered after the cancellation of the company should be recovered, according to the provisions of the Tax Administration Law, Company Law, Enterprise Bankruptcy Law and Contract Law, the above-mentioned tax recovery objects can be divided into different situations as follows:

1. Joint taxpayer. (1) taxpayers after merger or division. Article 48 of the Tax Administration Law stipulates: "If the taxpayer fails to pay the tax at the time of merger, the merged taxpayer shall continue to perform the unfulfilled tax obligations; If the taxpayer fails to pay the tax at the time of division, the taxpayer after division shall be jointly and severally liable for the unfulfilled tax obligation. " Article 177 of the Company Law also stipulates: "The debts before the division of the company shall be jointly and severally liable by the company after the division." It can be seen that in the case that the original enterprise is cancelled due to merger or division, the above tax evasion can be recovered from the taxpayer after the merger or division. (2) Employer or lessor. According to the provisions of Article 49 of the Detailed Rules for the Implementation of the Tax Administration Law, the author understands that if the cancelled company is a contractor or lessee, and the employer or lessor fails to report to the competent tax authorities within the prescribed time limit, the employer or lessor may be jointly and severally liable for the tax that should be recovered after the cancellation of the contractor or lessee. (3) tax payment guarantor. If a taxpayer or other natural person, legal person or economic organization, with the consent of the tax authorities, provides a guarantee for the tax payable by the taxpayer and the late payment fee by means of guarantee, mortgage or pledge, the tax that the taxpayer cannot recover due to revocation may be recovered from its guarantor. (4) the person who pays off the debt. If the company goes through the cancellation and liquidation, but the remaining property after liquidation has not been distributed or exists in liquidation plan, but has not been implemented, it can go through the industrial and commercial cancellation registration, but the industrial and commercial registration authority will require the liquidation subject to bear joint and several liability for guarantee or be responsible for handling the company's outstanding debts. In this case, the tax authorities can recover the above tax evasion from the debtor. (5) The guarantor of the bankrupt and other joint debtors. Article 124 of the Enterprise Bankruptcy Law stipulates: "The guarantor of the bankrupt and other joint debtors shall continue to bear the responsibility of paying off the outstanding creditor's rights in accordance with the bankruptcy liquidation procedure after the bankruptcy procedure is over." Therefore, for a company terminated through bankruptcy proceedings, the tax authorities can recover the tax evaded from its guarantor and other joint debtors. (6) Tax recovery through corporate. Article 20 of the Company Law stipulates: "If a company's shareholders abuse the independent status of a company as a legal person and the shareholders' limited liability to evade debts and seriously damage the interests of the company's creditors, they shall be jointly and severally liable for the company's debts." According to this regulation, if a company is found to have evaded taxes after cancellation, it can be identified as a "public debt" that deliberately evades state taxes, which is an abuse, and its shareholders should bear unlimited joint liability for the full amount of tax payable. Article 64 of the Company Law also has a similar provision: "If the shareholders of a one-person limited liability company cannot prove that the company's property is independent of their own property, they shall be jointly and severally liable for the company's debts." In this case, you can directly recover the tax from the shareholders. In addition, if the assets of the company as a legal person are unknown, the accounts are unclear, and there is no way to liquidate them, it can be presumed that the shareholders abuse the personality of the company as a legal person and bear unlimited joint and several liability for the company's tax payable. (7) the acquired company. For a company, it may not be recognized as an independent legal person, and the company to which it belongs shall bear all the responsibilities. (8) Head office. As mentioned above, according to the provisions of the Company Law, the head office is jointly and severally liable for the debts of its subsidiaries, so it can recover the tax evasion found out after the cancellation of its subsidiaries from the head office.

2. Other relevant responsible persons. (1) Dissolve the members of the liquidation team upon termination. In addition to the merger and division of the company, liquidation is a necessary pre-and legal procedure for the termination of the company. Article 190 of the Company Law stipulates: "Members of the liquidation group shall be liable for compensation if they cause losses to the company or creditors due to intentional or gross negligence." For a limited liability company, the members of the liquidation group are shareholders, who are very aware of whether there is tax evasion in the company. In this case, it is probably intentional for the company to apply for cancellation without paying the tax payable, and the members of the liquidation group shall be liable for compensation. Moreover, because the behavior of shareholders in the liquidation group at this time is an infringement, their responsibilities are not limited to their share of remaining property, but the actual losses caused by creditor's rights are infinite. In another case, if the liquidator fails to carry out liquidation or illegal liquidation in the liquidation procedure, that is, if he fails to perform liquidation obligations by taking advantage of the company's controlling position, the liquidator shall also be jointly and severally liable for the company's debts. In liquidation, if it is found that shareholders make false capital contributions, make false capital contributions or withdraw their capital contributions, and fail to meet the statutory minimum capital standards of the company, it will violate the statutory principle of capital. In this case, the company is not qualified as a legal person, and if it involves the recovery of taxes, the shareholders shall bear joint and several liabilities. (2) The legal representative of the debtor and other persons who are directly responsible for the bankruptcy. According to the provisions of Articles 31 and 128 of the Enterprise Bankruptcy Law, if the debtor has an act that harms the interests of creditors one year before the court accepts the bankruptcy application, the legal representative of the debtor and other persons directly responsible shall be liable for compensation according to law. This is actually the exercise of subrogation and cancellation right in bankruptcy procedure. At present, there are no provisions on the exercise of tax subrogation and cancellation right in bankruptcy proceedings in the tax administration law, which needs to be improved. In addition, according to the provisions of Article 123 of the Enterprise Bankruptcy Law, if the bankrupt is found to have property that should be recovered according to law or other property that should be distributed, the creditor may request the people's court to make supplementary distribution according to the bankruptcy property distribution plan. The above taxes can also be recovered through this bankruptcy additional distribution procedure. (3) Exercise the right of tax subrogation and cancellation. Article 50 of the Law on the Administration of Tax Collection stipulates: "If a taxpayer who fails to pay taxes delays in exercising his due creditor's rights, or abandons his due creditor's rights, or transfers his property for free, or transfers his property at an obviously unreasonable low price, and the transferee knows the situation, thus causing losses to the national tax revenue, the tax authorities may exercise the right of subrogation and cancellation in accordance with the provisions of Articles 73 and 74 of the Contract Law. If the tax authorities exercise the right of subrogation and cancellation in accordance with the provisions of the preceding paragraph, the taxpayer's outstanding tax obligations and legal responsibilities will not be exempted. " What needs to be emphasized here is that the subrogation right and cancellation right can still be exercised when the company has been cancelled. Taxpayers' tax arrears are one of the prerequisites for tax authorities to exercise subrogation and cancellation rights, but what does "tax arrears" mean at this time? Does the tax evasion discovered by taxpayers after cancellation belong to the category of "tax arrears"? In this regard, the "Tax Administration Law" is not clearly stated. The author thinks that the "tax arrears" at this time is different from the "tax arrears" in the general sense, and belongs to the "tax arrears" in the sense of "national creditor's rights", so the subrogation right and cancellation right can also be exercised. (4) Withholding agents. Article 69 of the Law on the Administration of Tax Collection stipulates: "If a withholding agent fails to collect tax due to withholding, the tax authorities shall recover the tax from the taxpayer and impose a fine of more than 50% and less than three times the unpaid tax on the withholding agent." There are two situations here: if the cancelled company is a withholding agent, the tax authorities can recover the tax from the actual taxpayer; If the cancelled company is a real taxpayer, the tax authorities may recover the tax from the withholding agent who implemented the withholding. (5) investors. In the absence of the above channels, if tax evasion is found and tax claims still exist, it can be handled in two cases: non-bankruptcy liquidation procedure and bankruptcy liquidation procedure. For non-bankruptcy liquidation procedures, the tax authorities may require the shareholders who have distributed the remaining property to pay off, but the shareholders only bear the responsibility of paying off the remaining property they have shared. If the remaining property has not been distributed, the tax creditor's rights shall be paid off with the undistributed remaining property.

(3) How to recover

There are only two ways to recover the above tax evasion: one is to recover it directly by the tax authorities; The second is indirect recovery through the people's court. Generally speaking, if the tax administration law and relevant tax laws and regulations clearly stipulate, the tax authorities, as the main body of tax law enforcement, can directly recover the above tax evasion according to law. The "state creditor's rights" are not clearly stipulated in the tax administration law and relevant tax laws and regulations. If the claims are recovered in accordance with the relevant provisions of the civil law and the spirit of relevant laws, a civil lawsuit shall be filed with the people's court, and the claims shall be recovered indirectly through the people's court. For example, for the recovery of the members of the liquidation group, the tax authorities cannot directly recover the tax from the taxpayers, because the liquidation group is responsible for compensation here, not for paying off the creditor's rights. For another example, according to the contract law, the people's court is the executor of subrogation and revocation. Therefore, the tax authorities need to apply to the people's court to exercise subrogation and cancellation rights through the people's court according to law.

(4) How much is recovered?

To recover the tax cancelled by taxpayers according to law, it is necessary to distinguish between tax arrears and tax evasion. If it only involves tax arrears, you only need to recover the tax arrears and late fees. When it comes to tax evasion, according to the Tax Administration Law, it is necessary not only to recover taxes and late fees, but also to impose fines on tax evaders and even transfer them to judicial organs for criminal responsibility. The author believes that two situations should be distinguished at this time: first, the original taxpayer still exists in some form, such as false reorganization and re-registration. At this time, it should be considered that the original taxpayer still exists, and the evaded taxes, late fees and fines should be recovered in accordance with the tax administration law. Second, the original taxpayer no longer exists after cancellation according to legal procedures. When the tax evasion is recovered from the above-mentioned joint taxpayers and other responsible persons other than the original taxpayers, the fine cannot be recovered together with the tax and late payment fees. Because the fine is punitive, it can't be recovered from the joint taxpayers when the main body of the company no longer exists.

Three. Suggestions on Improving Relevant Tax Administration

First, change the concept, establish the concept that taxation is a special creditor's right or a public creditor's right, and attach importance to the dissolution and bankruptcy of enterprises. At the time of liquidation, the tax authorities can actively claim and declare tax claims in accordance with the law, exercise the right of tax recovery directly and through liquidation procedures in accordance with the law, and safeguard the national tax interests.

Second, State Taxation Administration of The People's Republic of China will formulate tax recovery measures after the cancellation of the company. According to the current relevant laws and regulations, the conditions, methods, procedures, measures and precautions will be clearly and specifically stipulated according to different situations.

Third, the tax authorities and courts jointly or independently issue relevant judicial interpretations. At present, the court is formulating a judicial interpretation of the company's dissolution and liquidation, which needs State Taxation Administration of The People's Republic of China to coordinate with it as soon as possible to clarify the provisions of tax liquidation.

Fourth, strengthen coordination with the court, pay attention to the use of judicial means to protect national taxes and standardize law enforcement. Because the scope of the tax collection and management law is not comprehensive enough, there are many places that need to be clarified, which leads to obstacles for tax authorities to recover taxes after the company is cancelled. Therefore, it is necessary for tax authorities to strengthen coordination with the courts and actively recover taxes indirectly through court proceedings.

Fifth, strengthen the management of tax cancellation registration, and strengthen the communication and coordination between the collection and management departments and the inspection and legal departments. It is necessary to strengthen the examination of tax payment when canceling tax registration and implement the system that the original legal representative has the obligation to pay outstanding tax matters when canceling tax registration. At the same time, if the tax registrar goes through the cancellation procedures and cancels the invoice when the taxpayer fails to pay the tax, the responsibility of the tax handling personnel should be strictly investigated.

Sixth, strengthen coordination with industry and commerce, public security and other departments. In order to supervise taxpayers to cancel tax registration according to law, tax authorities should strengthen cooperation with administrative law enforcement departments such as industry and commerce and public security. To prevent taxpayers from evading their tax obligations by canceling their tax registration. The company registration department is required to strengthen the verification of the company's cancellation registration, especially the review of the liquidation of tax arrears, so as to avoid the situation that taxpayers are cancelled without paying taxes.

Seventh, start the revision of the tax administration law and the formulation of the basic tax law as soon as possible, and solve the legal problems in the process of recovery, such as prescription, joint and several tax obligations, the second tax obligation, the implementation object and scope of compulsory measures, tax priority, tax payment guarantee, subrogation and cancellation rights.