Research On The System Of Cancellation Right Of Tax

By the research of the system of cancellation right of tax, this paper attempts to systematically discuss the concept and the characteristics, the origins and the natures, exercising conditions and limitations, exercising ways and effects as well as questions and consummations of the cancellation right of tax. The paper divides four parts. The first part is the basic theory of cancellation right of tax, the cancellation right of tax refers to the action that the tax office request the Court cancels the taxpayer's action that owes the tax money but abuses the disposition right and destroys the national taxation. It is a new kind of preservation system of tax. The cancellation right of tax has three legal characteristics: First, the cancellation right of tax is a substantive right which attached to the creditor's rights of tax; Second, as one of the measures which preserving the creditor's rights of tax, the cancellation right of tax is different from the guaranty of tax payment in the " Levy and Management of the Tax Law "; Third, the cancellation right of tax can be exercised when the taxpayer dispose his property right. The cancellation right of tax system source in civil law debt law, and the cancellation power system source in the Roman law, which also calls Paulo the right. The cancellation right means that the creditor can move the court to cancel debtor's act of dispose property that play harm to the realization of creditor's rights. Because in the tax revenue substantive law on the legal relationship and the civil law debt has the common nature, In order to comply with the legislation tendency, Our country on May 1, 2001 executes "the Tax Law of Levy and Management" in the foundation which "Law of contract" stipulated, Embarks from the tax revenue debt of public law attribute, it has stipulated the cancellation right of tax system. The creditor abolishes the power concurrently request power with to form the power two kind of nature, The cancellation right of tax is abolishes the power to the civil law debt law in the model and diverts to another use, Therefore also has the civil law creditor's rights cancellation power nature, Namely has the request power and forms the power the nature. Therefore, The cancellation right of tax exercises can produce is similar in the civil law debt law abolishes the legal effect which the power exercises, Namely may cause the taxpayer and the third human of between legal act elimination similarly, Also can produce the third person to return the effect to the property. The second part is conditions and limitations of exercising the cancellation right of tax. The prerequisite that\ tax affairs institution exercise the cancellation right of tax is the taxpayer owe the tax money. The taxpayer owes the tax money, Namely taxpayer's still has not paid the due payment tax money when tax payment deadline expiration Indicated between the country and the taxpayer has the legitimate effective creditor's rights debt relations. The tax affairs institution exercised the cancellation right of tax objective important document is owes taxes the human to have to implement the punishment property behavior, Must owe taxes the human to punish the property the behavior to have the legal effect. The tax affairs institution exercises the cancellation right of tax subjective important document is regarding the giving up creditor's rights, the free transfer property behavior regardless of taxpayer's subjective psychological condition how, So long as it objectively causes the reduction of the responsibility property. The tax affairs institution may exercise the cancellation right of tax. In view of the taxpayer who owes the tax money by obviously the unreasonable low price transfer property situation exercises the cancellation power, the tax affairs institution so long as presents evidence grantee to know taxpayer's transfer behavior was obviously the unreasonable low price transfer the property. The cancellation right of tax exercises also has some limiting conditions: One is the exercising of the cancellation right of tax must have the legitimate effective body ship; Two is the exercising scope of the cancellation right of tax is taxpayer's in arrears tax money and the fine for delayed payment is limited to by the tax revenue creditor's rights Three is the exercising of the tax affairs institution does not have to cancel power on the identical right repetition; Four, the exercising of the cancellation right of tax not to have to injure the good intentions grantee the legitimate rights and interests; Five is we cannot exercise the cancellation right of tax to the act that belongs to taxpayer own behavior. The third part is the Ways and effects of exercising the cancellation right of tax. In the tax Law of Levy and Management, cancellation power is thetaxpayer which owes the tax money give up creditor's rights, or free transfer property, or grantee by obviously the unreasonable low price transfer property that creates the harm to the national tax revenue. The tax affairs institution requested the court abolishes the taxpayer's behavior. In other words, Exercises the cancellation power to have to apply by the tax affairs institution to the people's court, Also the people's court makes the cancellation to owe taxes the human behavior the decision to be able to have the cancellation potency. Therefore, the tax affairs institution exercises the cancellation power way is the lawsuit way, but is not by the tax affairs institution's law enforcement behavior direct realization. The effects of cancellation right of tax should depend on the court cancellation decision, and has the potency to the tax affairs institution, the taxpayer, the relative person. At the same time, when being cancelled, it namely occurs from the behavior to lose the potency. Therefore abolishes may occur the effect. In the cancellation right of taxation lawsuit, Debt of the tax revenue has the right which first receives recompenses. The taxpayer only then after pays owes the tax money, Can again carry on to other creditors pays off. The fourth part is self-criticisms and consummations to the present system of cancellation right of tax in our country. Effectively has safeguarded the tax revenue creditor's rights, effectively prevented owes taxpayers to punish the property, the hideaway property at will, evades the tax revenue debt intentionally. But in practice, the cancellation right of tax exercises has some barriers and the insufficiency: One is the feasibility of the cancellation right of tax system is bad to the tax affairs institution who has massive public right. Therefore it has little effect; Two is "the Tax Law of Levy and Management" is too succinct regarding to the cancellation right of tax system, it is not easy to limit and to grasp ; Three is the scope of cancellation right of tax applicable is too narrow and small, it is only restricted in three kind of situations; Four is the eliminates period of cancellation right of tax reprimands cause the cancellation right of tax incomplete; Five is some stipulations is too fuzzy, such as the scope of exercising. Cancellation right of tax From this, we can put forward proposals of consummation the cancellation right of tax: one is to expand the applicable scope of cancellationright of tax. Namely the scope should include: Free or low price transfer; Free remises the creditor's rights; The giving up to the third human of creditor's rights, remits a debt; Undertakes on own initiative should not the debt which undertakes by it; Is afterwards sets up the mortgage, the nature power take own property as other people and so on. Two we must consummate the cancellation right of tax to eliminate reprimands the legislation the of period. The cancellation right of tax should be suit "Law of contract" the 75th stipulation, at the same time lengthens the longest protection deadline. Three we must establish the tax affairs lawsuit system. Our country should profit from the overseas mature procedure, and unifies our country own judicature system at present to establishes the tax affairs court firstly.