If a party refuses to accept the punishment decision, enforcement measures or tax preservation measures of the tax authorities, it may apply for administrative reconsideration according to law or bring a lawsuit in a people's court according to law.
If the party concerned fails to apply for administrative reconsideration, bring a suit in a people's court or perform the punishment decision of the tax authorities within the time limit, the tax authorities that made the punishment decision may take compulsory enforcement measures as stipulated in Article 40 of this Law, or apply to the people's court for compulsory enforcement.
Interpretation This article is a provision on tax administrative reconsideration, administrative litigation and enforcement measures.
Tax administrative reconsideration refers to a legal system in which taxpayers, withholding agents, tax payment guarantors and other parties refuse to accept the specific administrative acts of the tax authorities, and apply to the tax administrative reconsideration organ for reconsideration according to the applicant's application, and the tax administrative reconsideration organ reconsiders the original decision, and makes decisions to maintain, change or revoke the ruling according to different circumstances. It is an effective means to solve tax disputes timely and correctly, and it is of great significance to protect the legitimate rights and interests of taxpayers, withholding agents and other parties, and to safeguard and supervise the tax authorities to exercise their functions and powers according to law.
According to China's Administrative Reconsideration Law and the Rules for Tax Administrative Reconsideration issued by State Taxation Administration of The People's Republic of China, the applicants for tax administrative reconsideration refer to citizens, legal persons and other organizations that directly bear the obligation of tax collection and management. Including taxpayers, withholding agents, tax payment guarantors, persons directly responsible for tax acts and other parties to tax disputes. Foreigners, stateless persons and foreign organizations may also become applicants for tax administrative reconsideration. The application for tax administrative reconsideration must be made in the name of the person who has the right to apply for reconsideration, otherwise it will be invalid. If a citizen who has the right to apply for administrative reconsideration dies, his close relatives may apply. A citizen who has the right to apply for tax administrative reconsideration is a person with no capacity or limited capacity, and his legal representative may apply on his behalf. Where a legal person or other organization that has the right to apply for administrative reconsideration is merged, divided or terminated, the legal person or other organization that has legally inherited its rights may apply; Other citizens, legal persons and other organizations have an interest in the specific administrative act for which the application for administrative reconsideration is made, and may participate in the administrative reconsideration as a third person. The respondent of tax administrative reconsideration is the tax authority that has made a specific administrative act. The applicant and the third party may entrust an agent to participate in the administrative reconsideration, and the respondent shall not entrust an agent to participate in the administrative reconsideration.
Taxpayers and other tax parties who are not satisfied with the tax collection behavior made by the tax authorities shall first apply to the reconsideration organ for administrative reconsideration, and then bring an administrative lawsuit to the people's court if they are not satisfied with the administrative reconsideration decision. The tax authorities' tax collection behaviors include: (1) levying taxes and charging late fees; (2) Withholding and collecting and remitting acts made by withholding agents and units entrusted by tax authorities. When applying for administrative reconsideration, the applicant must first settle the taxes and late payment fees according to law or provide corresponding guarantees.
If an applicant refuses to accept other specific administrative acts made by the tax authorities, he may apply for administrative reconsideration or bring an administrative lawsuit directly to the people's court.
If the applicant applies for administrative reconsideration to the reconsideration organ, and the reconsideration organ has accepted it, the applicant may not bring an administrative lawsuit to the people's court within the statutory time limit for administrative reconsideration; if the applicant has brought an administrative lawsuit to the people's court and the people's court has accepted it, he may not apply for administrative reconsideration.
The tax authorities at or above the county level shall be responsible for the legal affairs as the tax administrative reconsideration organ, and specifically handle the reconsideration matters.
After receiving the application for administrative reconsideration, the reconsideration organ shall conduct a review within 5 days. If it does not meet the requirements, it shall decide not to accept it and notify the applicant in writing. To meet the conditions, but does not belong to the agency to accept, inform the applicant to apply to the relevant authorities, to meet the requirements, the legal affairs office of the reconsideration organ shall accept the application from the date of receipt, and shall inform the parties in writing. The reconsideration organ shall send a copy of the application to the respondent within 7 days from the date of accepting the application for reconsideration. The respondent shall, within 10 days from the date of receiving the copy of the application, submit the relevant materials, evidence and defense to the reconsideration organ for tax collection or illegal treatment.
If the reconsideration organ decides not to accept a specific administrative act that should be applied for administrative reconsideration to the reconsideration organ first, and then brings an administrative lawsuit to the people's court if it refuses to accept it, or fails to make a reply after accepting it within the time limit for reconsideration, taxpayers and other tax parties may bring an administrative lawsuit to the people's court according to law within 15 days from the date of receiving the decision of rejection or the expiration of the administrative reconsideration.
The reconsideration organ shall make a reconsideration decision within 60 days from the date of accepting the application for reconsideration. If the applicant refuses to accept the reconsideration decision, he may bring a suit in the people's court within 15 days after receiving the reconsideration decision.
Taxpayers and other tax parties apply for administrative reconsideration according to law, and the reconsideration organ refuses to accept it without justifiable reasons, and the applicant has not brought an administrative lawsuit to the people's court, the tax authorities at higher levels shall order it to accept it, and the tax authorities at higher levels may also accept it directly if necessary.
During the period of administrative reconsideration, the specific administrative act of taxation shall not be suspended. However, in any of the following circumstances, the execution may be stopped: the respondent considers it necessary to stop the execution; The reconsideration organ considers it necessary to stop execution; The applicant applies for suspension of execution, and the reconsideration organ considers its request reasonable and decides to stop execution; Where the execution is stopped according to laws and regulations.
If you are dissatisfied with the specific administrative acts of taxation made by the State Taxation Bureau and the Local Taxation Bureau at or below the provincial level, apply for administrative reconsideration to the organ at the next higher level; If you are dissatisfied with the specific administrative act made by the provincial State Taxation Bureau and the local taxation bureau, you may apply to State Taxation Administration of The People's Republic of China for administrative reconsideration; if you are dissatisfied with the specific administrative act made by the provincial local taxation bureau, you may also apply to the provincial people's government for administrative reconsideration; If he refuses to accept the specific administrative act made by State Taxation Administration of The People's Republic of China, he shall apply to State Taxation Administration of The People's Republic of China for administrative reconsideration. If he refuses to accept the administrative reconsideration decision, he may bring an administrative lawsuit to the people's court or apply to the State Council for a final ruling; If he refuses to accept the specific administrative act of the dispatched office (institute or branch) established by the tax authorities in accordance with the laws, regulations and rules in his own name, he shall apply for administrative reconsideration to the tax authorities that established the dispatched office; If the withholding agent refuses to accept the withholding tax, he shall apply for administrative reconsideration to the tax authority at the next higher level in charge of the withholding agent, and if he refuses to accept the act of entrusting to collect taxes, he shall apply for administrative reconsideration to the tax authority at the next higher level of the entrusted tax authority; If you are dissatisfied with the specific administrative act made jointly by the State Taxation Bureau and the Local Taxation Bureau, apply for administrative reconsideration to State Taxation Administration of The People's Republic of China; if you are dissatisfied with the specific administrative act made jointly by the tax authorities and other organs, apply for administrative reconsideration to the administrative organ at the next higher level; if you are dissatisfied with the specific administrative act made by the revoked tax authority before revocation, apply for administrative reconsideration to the tax authority at the next higher level that continues to exercise its functions and powers.
To apply for tax administrative reconsideration, the following conditions should be met: the applicant is a citizen, legal person and other organization, as well as a foreigner, stateless person and foreign organization who believes that a specific administrative act directly infringes upon their legitimate rights and interests; There is a clear respondent; There are specific reconsideration requests and factual basis; Belonging to the scope of statutory application for reconsideration; It is under the jurisdiction of the statutory reconsideration organ; If a person refuses to accept the tax collection and applies for reconsideration, he has paid or remitted the tax and late payment fees or provided guarantee in accordance with the tax amount determined by the tax authorities according to laws and administrative regulations before applying for reconsideration; The application for reconsideration is filed within the statutory time limit; Other conditions stipulated by laws and regulations. Only when all the applications for reconsideration meet the above conditions will the reconsideration organ accept them. Where one of the above conditions is not met, the reconsideration organ shall not accept it and give reasons in writing.
In the process of administrative reconsideration, the respondent shall not collect evidence from the applicant and other relevant organizations and individuals.
Before the administrative reconsideration decision is made, if the applicant requests to withdraw the application for administrative reconsideration, he may withdraw it after explaining the reasons; If the application for administrative reconsideration is withdrawn, the administrative reconsideration shall be terminated.
When examining the specific administrative act made by the respondent, the reconsideration organ considers that the basis is illegal, and if it has the right to handle it, it shall handle it according to law within 30 days; Without the right to deal with it, it shall be transferred to the administrative organ with the right to deal with it according to legal procedures within 7 days. During the period of handling, the review of specific administrative acts shall be suspended.
The legal affairs office of the reconsideration organ shall review the legality and appropriateness of the specific administrative act made by the respondent, put forward opinions, and make an administrative reconsideration decision in accordance with the following provisions with the consent of the person in charge of the reconsideration organ:1.If the specific administrative act is clearly ascertained, the evidence is conclusive, the application basis is correct, the procedure is legal and the content is appropriate, it is decided to maintain it. 2. If the respondent fails to perform its statutory duties, it shall be decided to perform it within a certain period of time. 3. The facts are unclear and the evidence is insufficient; The application basis is wrong; Violation of legal procedures; Exceeding or abusing authority; The specific administrative act is obviously improper; Deciding to cancel, change or confirm that the specific administrative act is illegal. If it is decided to revoke or confirm that the specific administrative act is illegal, the respondent may be ordered to make a new specific administrative act within a certain period of time.
If the reconsideration organ orders the respondent to re-do a specific administrative act, the respondent shall not do the same or basically the same specific administrative act as the original specific administrative act on the same facts and reasons.
When applying for administrative reconsideration, the applicant may submit a state compensation request together. Where the reconsideration organ makes compensation in accordance with the relevant provisions of the State Compensation Law, it shall, at the same time, decide that the respondent shall make compensation according to law when deciding to cancel or change the specific administrative act or confirm that the specific administrative act is illegal.
If the applicant fails to make a request for state compensation when applying for administrative reconsideration, the reconsideration organ shall, when deciding to cancel or change the compulsory measures such as taxes, late fees, fines and seizure and sealing up of property determined by the original specific administrative act according to law, simultaneously order the respondent to refund the taxes, late fees and fines, lift the compulsory measures such as seizure and sealing up of property, or compensate the corresponding price.
The reconsideration organ shall make an administrative reconsideration decision within 60 days from the date of accepting the application for administrative reconsideration. If the situation is complicated and the administrative reconsideration decision cannot be made within the prescribed time limit, it may be appropriately extended with the approval of the person in charge of the reconsideration organ, but the extension period shall not exceed 30 days at most.
If the respondent fails to perform the administrative reconsideration decision or delays the performance of the administrative reconsideration decision without justifiable reasons, the reconsideration organ or the relevant superior administrative organ shall order it to perform it within a time limit. If the applicant for reconsideration fails to bring a lawsuit to the people's court within the time limit, nor to perform the reconsideration decision, or fails to perform the final administrative reconsideration decision, it shall be handled according to the following procedures: if the decision on a specific administrative act is upheld, the administrative organ that made the specific administrative act shall enforce it according to law, or apply to the people's court for compulsory execution; The administrative reconsideration decision to change a specific administrative act shall be enforced by the reconsideration organ according to law or apply to the people's court for enforcement. If the applicant files an application for review of the relevant normative documents, the reconsideration organ shall have the right to handle it, and it shall handle it according to law within 30 days; if it has no right to handle it, it shall send it to the organ with the right to handle it within 7 days, and the organ with the right to handle it shall handle it within 60 days. During the handling period, the review of the specific administrative act shall be suspended.
The litigation about tax disputes brought by the parties to the people's court is an administrative litigation, regardless of whether it has gone through the reconsideration procedure or not, it is carried out in accordance with the relevant provisions of China's administrative litigation law. The tax authorities should comply with the statutory requirements and procedures when enforcing the law by themselves, and apply to the people's court for enforcement in accordance with the relevant provisions of the people's court.