Study On Interpretive Tax Normative Documents

The Interpretive tax normative documents are an important part of the tax administrative rules.The tax administrative rules refer to the rules formulated by the financial and taxation administrative department according to the legal authorization or its own administrative power.According to the nature of the rules and the legal effect,the tax administrative rules can be divided There are two categories of legislative and non-legislative rules.The tax legislative rules refer to the generally binding administrative rules formulated by the administrative department of finance and taxation in accordance with the administrative regulations and administrative regulations.Its specific manifestation is in the form clearly stipulated by the "Legislation Law" of tax administration,administrative regulations,etc.The tax non-legislative rules refer to the administrative rules that are only binding within the jurisdiction without the statutory procedures formulated by the administrative department of finance and taxation,which are embodied in various levels of tax regulatory documents.According to the different content and functional significance of the regulations,non-legislative tax rules can be divided into Interpretive tax normative documents,management tax normative documents,and discretion tax normative documents.Among them,the Interpretive tax normative documents are manifested as the difference between the issuing body and the procedure Notifications,replies,letters and other forms.The Interpretive tax normative documents are essentially an implementation interpretation formulated by the administrative departments of finance and taxation at all levels to fully use their administrative power in the process of law enforcement,and further explain and explain the specific application issues of the tax law rules in accordance with the law.According to Hart's theory of legal rules,the Interpretive tax normative documents belong to the secondary rules,which are the supporting rules of the tax law rules,and have the characteristics of derivation,subordination and non-renewability.The Interpretive tax normative documents are borns due to the limitations of the tax statute law,the professionalism and complexity of the tax law application,the rheology and diversity of the tax law adjustment objects,and to make up for the inherent defects of the tax legislation,overcome the uncertainty of the implementation of the tax law rules Relatively clear tax administrative law enforcement standards play an irreplaceable positive role.The theory of room for administrative judgment and the theory of authority provide theoretical support for the generation of Interpretive tax normative documents.With the continuous advancement of the construction of the tax rule of law and the gradual opening of tax jurisdiction,the number of various tax disputes has begun to increase substantially,and the types of disputes have become increasingly diversified and refined.Among them,the tax administrative disputes caused by the judicial application of the Interpretive tax normative documents are particularly prominent.Under the current administrative interpretation system in China,the legal status of implementing interpretation is awkward,which leads to the apparent insufficient standardization of this type of implementing interpretation in practice.The academic community regards this phenomenon as the anomie of the administrative interpretation of the tax law,or the alienation of the validity of the tax administrative normative documents,and discusses the issues of the standardization of the tax administrative explanation,the validity of the tax administrative normative documents and judicial review.However,these theoretical studies have not completely resolved the judicial application disputes of the Interpretive tax normative documents from the practical level,and the problem of anomie in the administrative interpretation of the tax law in the form of Interpretive tax normative documents still exists.Relatively speaking,cutting in from the dual perspectives of text analysis and case empirical investigation can more intuitively and clearly discover and analyze the real problems in the current practice of administrative interpretation of China's tax law.Therefore,it is necessary to take the text of the Interpretive tax normative documents and the cases of judicial application disputes as the object of investigation,and conduct different levels of empirical investigation on the external form and content of the Interpretive tax normative documents.Through the analysis of the external manifestations of the texts of the Interpretive tax normative documents in China for the past 40 years,we can find that the external forms of the current Interpretive tax normative documents in China are disorderly,and the forms are insufficient.On the other hand,through an in-depth analysis of the practical aspects of the Interpretive tax normative documents and typical tax cases in the past 40 years from the five dimensions of referee time,dispute type,trial procedure,review attitude and referee result,we can find that the current The Interpretive tax normative documents expose problems such as defects in content and defects in validity regulations.Among them,the defects in the content are mainly manifested in insufficient legitimacy and weak rationality.The lack of legitimacy can be summarized as exceeding the legal authority,conflicting with the higher law,increasing the duty of the tax administration counterpart or restricting the tax administration.Human rights,procedural violations and other violations;weaker rationality can be summarized as violation of the principle of appropriateness,violation of the principle of necessity,violation of the principle of proportionality;due to retrospective application of illegal laws,unclear scope of validity,and unknown expiry time,etc.Tax disputes caused by flaws in the validity provisions can be summarized as retrospective disputes,universally applicable disputes,and abolition of determination disputes.The problems exposed by the above-mentioned Interpretive tax normative documents in practice have their obvious system or operating rules and other reasons:First,the scope of tax law administrative interpretation is ambiguous,the tax law administrative interpretation is embarrassingly positioned,the tax law administrative interpretation subject is diversified and generalized,and the joint interpretation The low level of behavioral norms leads to the lack of legitimacy and weak rationality in the interpretation content.Second,the administrative interpretation rules of the tax law are unclear and there is a lack of unified interpretation rules.Interpretation methods,interpretation goals,etc.are different,which leads to an increasingly prominent inter-subjectivity between interpreting subjects.The pre-understanding and consideration factors of different interpreting subjects are different.The interpreting behavior of different interpreting subjects is arbitrary;Third,the administrative interpretation of tax law Inadequate procedures,insufficient consultation,lack of democracy,and lack of openness;Fourth,the failure of the tax law administrative interpretation review and supervision mechanism,incomplete filing review,unreasonable review review,formal judicial review,and inadequate review system connection,leading to tax law Explanatory rules are alienated,tax administration counterparts save Ways grossly inadequate.In order to solve the above difficult problems of Interpretive tax normative documents,guide the subject of tax administrative law enforcement to correctly understand and apply tax law rules,guide judicial personnel to conduct a comprehensive and in-depth review of the disputes of the application of the Interpretive tax normative documents,and truly realize the standardized expression of Interpretive tax normative documents.To effectively bridge the gap between the statutory principles of taxation and the operability of tax law rules,it is necessary to specifically regulate the external form and content of the current Interpretive tax normative documents in our country,and strengthen the generation and operation of Interpretive tax normative documents Review and supervision.The specification of the form of Interpretive tax normative documents should start with the establishment of the principle of form convenience,the enhancement of the recognizability of texts,and the establishment of formal examination procedures.One is to comply with the basic requirements of the principle of convenience to ensure that the text of the Interpretive tax normative documents is easy to apply,understand,explain and publicize;the second is to govern the Interpretive tax normative documents from the aspects of uniform text name form,clear text style format,clear text structure elements,etc.The complicated and disordered text names enhance the recognition of the text of the Interpretive tax normative documents,amend the "Administrative Measures on the Formulation of Tax Normative Documents",and increase the provisions on the requirements of the form of the Interpretive tax normative documents;the third is the establishment of a review procedure for the interpretive rules of the tax law To ensure that the form of the Interpretive tax normative documents is concise,clear,practical,orderly,and convenient for management and supervision.The regulation of the content of the Interpretive tax normative documents should follow the logical path of "how to interpret-Interpret how to start",focusing on bridging the intersubjectivity between interpreters and promoting the normative expression of the administrative interpretation of our tax law.Specifically: First of all,it is necessary to re-determine the scope of tax law administrative interpretation,clarify the implementation status of tax law administrative interpretation,strictly limit the boundary of tax law administrative interpretation power,unify the form of tax law administrative interpretation power subject,and regulate the joint interpretation behavior of multiple subjects,Determine the scope of the "joint interpretation";secondly,the construction of the tax law administrative interpretation rules system is mainly to unify the interpretation position,establish rules for the use of interpretation methods,establish rules for interpretation responsibility,etc.,to solve the "how to interpret" problem.Finally,the administrative interpretation procedures of the tax law should also be improved,including the dialogue and consultation procedures before interpretation,the democratic participation procedure during interpretation,the comprehensive disclosure procedure after interpretation,and the regular clean-up procedure during operation,etc.to solve the "Interpret how to start" problem.Based on the practice of reviewing and supervising the Interpretive tax normative documents in China,the core essence of the power balance theory,the tax debt relationship theory and the responsible government theory has effectively proved the necessity and legitimacy of the review and supervision of the Interpretive tax normative documents.To comprehensively supervise the generation and operation of the Interpretive tax normative documents,we should improve the filing and review mechanism of the Interpretive tax normative documents from the aspects of constructing a comprehensive open system for record review,liability system,and relief system;from clarifying the review organization,establishing review standards,and constructing an objection handling system,Increase the review procedure starting method and other aspects to update the review mechanism of the Interpretive tax normative documents;from establishing a double review path,building specific review standards based on theoretical authority as a classification basis,refining judicial review processing authority,setting referee reasoning responsibilities,and improving related supporting systems,etc.Improve the judicial review mechanism of the Interpretive tax normative documents.The relevant supporting system mainly refers to the establishment of a special tax adjudication agency and the leniency of the Interpretive tax normative documents with the application conditions for review.More importantly,it is also necessary to establish the linking rules of the Interpretive tax normative documents review system from the aspects of clarifying the final status of the record review of the Standing Committee of the National People's Congress,the pre-processing mode of the pilot record review,endowing the judicial review with the effectiveness of the record review,and establishing the principle of priority for administrative review.Each review system exerts its system pre-set function to the greatest extent and effectively and effectively supervises the generation and operation of the Interpretive tax normative documents.