The Study On The Legal Problem Of Tax Taboo

In the history of human civilization, tax revenue always has double identity of both angeland devil. On one hand, it is indispensable "source" for the survival and operation of a nation,it is the strong “backup” for the improvement of national management ability, and it is the“supporting hand” of the development of social economy. On the other hand, it also has adevil face, the heavy tax burden, poor tax system and wanton taxation existed in the historynot only seriously damaged the citizens’ interests of property and violated their fundamentalrights, but also led to social unrest, people’s suffering, the decaying of the law and state failure.The "double-edged sword" role of tax makes people gradually realize that although tax isindispensable, it has basic principles of normal operation and it is by no means made forcountries to manipulate. If being violated by its nature, tax can turn to a disastrous tool, andeventually lead to the weakness of governance capacity and the reduction of people’s wellbeing. When the strength of national tax power reaches a certain threshold, the taxpayerwould be difficult to carry on the effective checks and balances. In this critical moment，it isrequired to establish the tax taboo for the taxation power which helps to balance the interestbetween the taxpayers’ basic rights and the national tax power.As a matter of fact, whether the light tax policies and the thought of avoiding mercilesshunting implemented in ancient China, or the“without representation without taxation”concept and the tax legalism principle formed in the western countries have expressed that thepower of taxation should be restricted from different degree. In modern society, the mainfunction of tax has been shifted from maintaining social class rules to increasing publicwell-being. Consequently, it has been an important problem to effectively check and balancethe national tax authority as well as guarantee the taxpayers’ basic rights. Especially under thecontext of the slowly growth of residents’ income growth, the high Gini index, the excessivetax misery, and the serious problems of the development of small and medium-sizedenterprises in our country, it appears especially urgent to set reasonable legal boundaries ofstate taxation power in order to protect taxpayers’ basic rights effectively. The tax tabooproblem is based on the above consideration, it focuses on the theoretical analysis of thenature of tax, the structure of the tax law and the tax law enforcement, discusses the domain problems such as how much tax burden can the people withstand and which are the bottomline rules that the national tax power should obey. The paper is trying to ensure the statetaxation power orderly operation under the rule of law and protect the taxpayers’ rightssubstantially by strengthening the concept of modern tax law, perfecting the current tax legalsystem and improving the tax enforcement procedures systematically.The entire research follows the logic of “proposing problems，revealing the essence,considering values, reviewing problems, constructing systems”. It retrospects the source oftax taboo first and then explores the historical development of tax taboo, makes inspection ofits theoretical foundation and core values, and reveals the domain problems among taxlegislation and tax enforcement. Based on the consideration of the necessity and therationality of tax taboo, this paper divides two paths into deep analysis on the present situationof legislation and practice about the problem of tax taboo whether in domestic or abroad inorder to find the bottom line of national tax power. In the end, this paper comes back to theChinese context in an attempt to analyze and reflect the background and significance of taxtaboo from the existing political，economic, cultural and legal environment, and tries toconstruct the tax taboo legal system from the establishment of the concept, the correction ofprinciples and the perfecting of systems.According to the basic train of thought，in addition to the introduction and conclusion,this paper is divided into six chapters to discuss tax taboo problem.The first chapter interprets the category definition of tax taboo. What is the meaning oftax taboo and what is the mechanism of it are the basic questions this paper needs to resolve.The first part explores the basic connotation from the historical evolution of tax taboo. Itreveals that the problem of tax taboo originated in both ancient and modern, both domesticand abroad, and it may have had experienced the period of germination, the period offormation and the period of development. During this process, the basic thought of imposingtax cannot invade the essence, the freedom can not be cancelled have been gradually knownand accepted by the countries around the world. The second part gives out the definition ofthe category of tax taboo. This part holds that tax taboo refers to an area that the national taxshall not be contrary to the nature of the rule of tax or invade into the core content oftaxpayers’ basic rights of survival and development, and it can be established in the absoluteand relative, abstract and concrete, entity and procedure, and other point of view. The thirdpart focuses on the mechanism of tax taboo. It recognizes that the problem of tax taboo is arising from the basic principle of “imposing restrictions on the restrictions”and concludesthat although it is necessary to set a certain limit on the taxpayers’ basic rights attributed to itssocial responsibility, such restrictions should be further restricted in a certain range inavoiding to generate a problem of “abusing restricted rights”.The second chapter reveals the theoretical interpretation of tax taboo. Tracing back tothe source of tax taboo，it is divided into four parts to discuss the theory foundation of taxtaboo. The fist part bases on the dual evolution of nation and society and holds that thedevelopment of tax state must ensure that the "distance" between the state and society shouldbe ensured, and the social defects repaired by the state should not be at the expense ofsacrificing the protection of the private property rights of social members. The second partbases on the value systems of human dignity and freedom of personality development andpoints out that the exercise of the state taxation power must respond to the minimumrequirements of human survival and development, and ensure that the core value of taxpayers’human dignity and the personality development shall not be violable. The third part interpretsthe relationship between “centering on the right of tax justice”,“centering on the equal of taxjustice” and “centering on the public interest of tax justice” and holds that the exercise of statetaxation power should aim at the whole justice that is shaped with rights, equality and publicinterest, and cannot deviate from the tax rules shaped by justice. The fourth part bases on therelationship between the origin of tax and the source of tax from the perspective of economic,pointing out that the taxation must ensure the origin of tax and cultivate the source of tax inadherence to "tax neutral" in order to guarantee the sustainable of tax.The third chapter discusses the core value of the tax taboo. The core value of tax taboo isto protect the essential content of taxpayers’ basic rights, thus it is necessary to explore thecore value form the relationship between tax taboo and the taxpayer’s property rights, the rightto life, the personality right and the equal rights. The first part analyzes the tax taboo with thetaxpayers’ property rights protection. Taxation is a direct infringement of the taxpayer’sproperty, to safeguard the taxpayers’ rights of property; we must ensure that taxation shouldnot strangle the taxpayers’ property interests and not constitute to levy the taxpayers’ property.The second part discusses the relationship of tax taboo with the taxpayers’ rights to life. Oneof the basic functions of the tax is to advance the national welfare, to protect the taxpayer’sright and to improve national welfare; we must obey the principles of “no ability no tax” and“the minimum property right for life should be excluded from tax”. The third part analyzes the tax taboo with the taxpayers’ personality rights. It points out that the information privacyrights is the core part of taxpayers’ personality rights and it is essential to make sure that the"personality puzzle" composed by information privacy should not be destructed by thetaxation power. The fourth part discusses the tax taboo with taxpayers’ equal rights protection.This part holds that tax equality means the taxpayers should be equally treated and the taxburden is suitable to their economic ability, to guarantee the equal rights of taxpayers, weshould adhere to the principle of " ability to pay” and ensure the burden between thetaxpayers are equal and unreasonable discrimination is prohibited.The fourth chapter analyzes the structure of tax taboo from the tax law. How to reflectthe tax taboo into tax legislation and practice is related to whether it has the key value of theconstruction and operation of the modern tax law, and this chapter emphatically discusses therules of tax taboo from the substantive aspect and the procedural aspect of modern tax law.The first part mainly discusses the relationship between the tax taboo and the substantivesystems of tax legislation. It notes that under the essential constraints of the componentelements of taxation constitutive requirements, the exception rules should be established toexclude the inadequacy tax subject, tax object and tax base, and it needs to have a reasonableconsideration on the taxation object of ownership and the tax rate for the substantive justice.The second part focuses on the relationship between the tax taboo and procedural systems oftax legislation. It holds that the exercise of state taxation power should not only ensure thatsubstantive rules to justify the tax debt, but also ensure the procedural rules of tax debtcollection and implementation are justified. From the procedural justice of tax collection andadministration, the idea of "the state should not invade into tax taboo" should be implantedinto the design of the specific procedural rules to make sure the tax levying uphold theprocedure rules of the bottom line.The fifth chapter talks about the Chinese context of tax taboo. Although the problem oftax taboo has been controversial since ancient times, it has very special realistic backgroundand is of especially important significance and value to put forward in our country. The firstpart describes the political ecology of the tax taboo in our country. It holds that China’spolitical philosophy has transferred from state-oriented to people-oriented at present,butowing to the influence of the path dependence, the tax law did not realize humanismtransformation for the prevalence of authoritarianism makes the tax law in our country take astrong national standard, and the taxpayer rights protection is not considerately designed. The second part analyzes the economic situation of the tax taboo in our country. Tax essentiallyreflects the degree of sharing social wealth between the state and taxpayers and that thenational finance income and the taxpayers’ profit are inversely correlated. As a result, it willcause the taxpayers lack of ability to keep on living and create new social wealth if too muchproperty loss happened. Although the strength government intervention will promote theeconomy with high growth and high efficiency in the intersection of the economic reform andtransformation, it also brings a series of problems such as the gap between rich and poor ishuge, the market space is narrow, and the phenomenon of the country is becoming prosperousbut the people are being weak. The third part focuses on the culture vision of the tax taboo inour country. It holds that in the interaction influence of both old culture and new culture, it isnot optimistic referring to the reality of tax compliance since the legacy of the officer cultural,the lack of constitutional culture and contract culture make the beliefs of tax culture in ourcountry on the brink of deficiency. The fourth part emphasizes to explore the legalenvironment of the tax taboo in our country. It consider a dual dilemma that the form of therule of law has not been established and the essence of the rule of law has not been realized inour country, which is exactly the primary cause that the tax authority can not get effectiveconstraint and the taxpayers’ rights can not get solid guarantee. Consequently the realizationof the rule of tax law depends on the reasonable and standard operation of the taxation power.The sixth chapter conceives the system construction of tax taboo. Tax taboo is not onlyan important theoretical problem of the tax law subject, but also is an ideological guidance fortax legislation and practice. To promote the tax taboo transform from a basic concept to aperfect system, it should be shaped from the concept transformation, the principle remoldingand the system construction as well as other aspects. The first part is for the concepttransformation of our tax law. It holds that the loss of concept is a deep problem for theexcess of taxation power and the incapability protection of the taxpayer rights in our country.Thus we have to take the concept which guidance goes first and transform the concept ofstate-oriented to the people-oriented, taxation arbitrary to taxation tolerance,the tax-free stateto the tax state, which constitutes a good groundwork for the system construction of tax taboo.The second part is for the principles of remolding our tax law. It shares the view that thestatutory taxation principle, tax equity principle and tax efficient principle are the three basicprinciples of tax law. Under the concept of modern tax law, the connotation of the above threeprinciples should pay more attention to restricting the national taxation power and protect taxpayers’ basic rights, which will direct the tax legislation and practice to be more scientificand effective. In the end, the third part focuses on the concrete construction and perfection oftax system in our country. It points out the construction of tax taboo should eventually arrivalto the system and hold that whether the taxpayers’ right protection system, the tax system, thetax structure or the tax collection and management system are tend to have some aspects ofviolating the taxpayers’ basic rights. Consequently it is essential to perfect the tax system andmake the taxpayers’ rights effectively guaranteed by establishing the taxpayers’ rights,optimizing the tax system and controlling the taxation power effectively.