At the same time, corresponding to the three-year tax refund period, Article 52 of the Law on the Administration of Tax Collection stipulates a three-year recovery period: "If the taxpayer or withholding agent fails to pay or underpays the tax due to the responsibility of the tax authorities, the tax authorities may require the taxpayer or withholding agent to pay the tax within three years, but shall not impose a late fee. If a taxpayer or withholding agent fails to pay or underpays the tax due to miscalculation and other reasons, the tax authorities may recover the tax and overdue fine within three years; If there are special circumstances, the recovery period can be extended to five years? " The time limit for tax refund and recovery embodies the principle of equality between the two parties.
In order to better protect taxpayers' right to apply for tax refund, Article 85 of the revised draft of the Tax Administration Law (draft for comments) published on 20 15 revised the time limit for taxpayers to apply for tax refund claim to five years. This article stipulates that a taxpayer who overpays taxes may, within five years from the date of final settlement and payment of taxes, request the tax authorities to refund the overpaid taxes plus the interest on bank deposits in the same period, and the tax authorities shall immediately refund them after timely verification.
Crux: The problem lies in the starting time of the tax refund period.
There is no problem in setting a certain time limit for applying for tax refund. It is believed that the crux of the contradiction between the principle of administrative rationality in Liu's case and the application of Article 5 1 of the Tax Administration Law lies in the starting point of the tax refund period.
The principle of administrative rationality is an important basic principle of administrative law, which is juxtaposed with the principle of administrative legitimacy and is a supplement to the principle of administrative legitimacy. Violation of the principle of legality will lead to administrative violations, and violation of the principle of rationality will lead to improper administration. Therefore, the principle of administrative rationality, also known as the principle of administrative appropriateness, refers to the behavior of the parties to the administrative legal relationship, especially the behavior of the administrative organs, which should be legal, reasonable, appropriate and moderate. In this case, Liu's housing transaction has been invalid, and it is obviously unreasonable for him to bear the tax on this invalid transaction. One of the key issues is the starting point of the tax refund period.
Whether it is Article 51 of the Tax Administration Law or Article 85 of the revised draft of the Law (draft for comments), the starting date of the tax refund period is "from the date of final settlement and payment of taxes". However, the "final settlement date" does not mean "the date when taxpayers can exercise their tax refund rights", because the tax that may need to apply for tax refund on the "final settlement date" has not been generated.
For example, according to the provisions of Article 6 of the Announcement of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Several Issues Concerning Tax Treatment of Taxable Income of Enterprise Income Tax (State Taxation Administration of The People's Republic of China AnnouncementNo. 12) and the relevant provisions of the Law of People's Republic of China (PRC) on Tax Collection and Management, enterprises make special declarations and deductions for expenditures actually incurred in previous years that should be deducted before enterprise income tax according to tax regulations. If the taxpayer finds that there are items that have not been deducted before tax in the enterprise income tax of 20 19, it will be deducted retroactively according to the above provisions, thus resulting in overpayment of taxes. At this time, it has exceeded the three-year tax refund period stipulated in Article 51 of the Tax Administration Law, and applied for refund of the overpaid tax.
In addition, the current tax law stipulates that the basis of tax collection is the establishment of civil legal acts, without considering the validity of legal acts. If the legal act is not effective, revoked or deemed invalid, the tax paid by the parties due to the establishment of the act will lose its practical basis, and then the problem of tax refund will arise. If the legal act does not take effect, is revoked or is deemed invalid after three years of tax payment, the same situation as the above-mentioned Liu Moumou case will also occur. Because before the legal act becomes effective, revoked or deemed invalid, it is necessary to pay taxes in accordance with the provisions of the tax law, and it is even more impossible for taxpayers to exercise their right to apply for tax refund at this time; However, after the legal act is not effective, revoked or deemed invalid, the taxpayer can exercise the tax refund right but faces a three-year tax refund period, which will make the exercise of the tax refund right fall into a "dilemma".
The main purpose of setting the tax refund period is to urge taxpayers to exercise their rights in time, so it is in line with the purpose to set the tax refund period from the date when their rights can be exercised. As far as tax refund is concerned, the day when the overpaid tax is generated is also the day when the rights can be exercised. In order to avoid the contradiction between the application of Article 5 1 of the Tax Administration Law and the principle of administrative rationality, as in Liu's case, it is suggested that the tax refund period should be calculated from the date when taxpayers can exercise their rights, not from the date of final settlement. If so, in this case, the time for Liu Can to exercise the right of tax refund should be counted from the time when the court of second instance finds that the ownership of the house involved belongs to her ex-husband.