Research On The Application Of The Bona Fide Doctrine On The Tax Law

The Bona Fide Doctrine is an important basic principle on the private law. Whether the Bona Fide Doctrine can be applied to the tax law is important to make the taxpayers to pay their taxes faithfully, to improve the taxation work of our country legally and standard, to bring macroeconomic control and regulation through the market by the tax law into play, to develop the socialism market economic. To the point of the General Terms, the request of the Bona Fide Doctrine is that the legalist must balance not only the benefits between the civil subjects but also the benefits between the subject and the society. It involved two sides: one is the balance for the benefits between the civil subjects; the other is the balance for the benefits between the subject and the society. From applied to the debtor to applied to the debtor and the debtee, from applied to contract to applied to all civil acts, the Bona Fide Doctrine have been "the royal term"on the private law more and more. The Bona Fide Doctrine and the bona fide are both relative and different. The distinction primarily is that the categories they belong to are different; the contents and ranges of them are different; the compulsion if they are disobeyed is different. There are three points about the theoretical basis for the Bona Fide Doctrine applied to the tax law: First, mutual permeation between the public law and the private law. As the normal standard, the tax law belongs to the public law but the Bona Fide Doctrine belongs to the private law. So we ought to analyze the question in two sides: one side, it isn't more better by our traditional National Distribution Theory than by the Social Compact Theory because of the improvement of the market economic and the affirmation of the independent market subjects; the other side, the government becomes a subject giving and serving more and more in modern country, the relation between the government and the people is more like the private contract. The tax law needs the theory of the private law to fit for the modern market economic, so it is suitable that the Bona Fide Doctrine be applied to the tax law. Second, establishment about the equality of the legal relationship in taxation. In order to establish this question, we have to make sure what is the essence of the legal relationship in taxation. As the Tax Exchange Theory tax is the compensation for the government providing the public goods like the taxpaying is the consideration for the people exchanging the public goods. Moreover, the legal characters of the legal relationship in taxation are similar to the debt on the private law. Therefore, we can definite that the legal relationship in taxation is the debtor-creditor relationship on the public law. It is certainly equal of the legal relationship in taxation. Owing to this the Bona Fide Doctrine can be applied to the tax law. The third, the affirmation and safeguard to the private benefits through the tax law. Unlike the civil law, the tax law is used to protect the public benefits, which must be conflict with the private law for the safeguard of the private benefits. Nevertheless, we should recognize that the public benefits are relative with the private benefits. If we only emphasized the tax power of the government, we would damage the people's wealth and rights. We should affirm to and protect the private benefits through the tax law. Due to this reason the Bona Fide Doctrine can be applied to the tax law. Before we apply the Bona Fide Doctrine to the tax law, we have to compare the Bona Fide Doctrine with the Principle of Tax Legality. As simply said, it not only mutual complement but also mutual harmonize in the two principles. On the tax law the Principle of Tax Legality is the highest. Compared to it, the Bona Fide Doctrine is only applied to the circumstance in which the application of the Principle of Tax Legality is unreasonable in order to balance the benefits between the country and the taxpayers and to realize the justice. It is necessary to beneficially complement the disadvantages of the Principle of Tax Legality. There are different requests to different subjects when we apply the Bona Fide Doctrine to the tax law. The influence for the subject of taxation as the country involves such three points: first, stabilizing the tax law; second, advantaging the taxpayers to pay their taxes; the third, advantaging the taxpayers to enforce their rights; the fourth, being faithful to the taxpayers. One of the influence for the subject of taxation as the tax administration agency is to advantage the taxpayers to pay their taxes and to protect thetaxpayers'rights, the other is to make sure that the taxes is completely covered into the treasury on the scales in time. The influence for the taxpayers is mainly to ask the taxpayers to pay their taxes faithfully. Now there are no rules about the Bona Fide Doctrine on the tax law because it is essential of the Tax Power Theory for a long time in our country. If we apply the Bona Fide Doctrine to the tax law in the future, it is helpful to develop the market economic and to build the faithful society. However, we have to pay attention to some questions: first, strengthening the tax legislation to establish the status of the Bona Fide Doctrine on the tax law; second, improving the law enforcement to avoid the Bona Fide Doctrine abused; the third, managing the use of the tax strictly to develop the effect of the Bona Fide Doctrine; the fourth, setting up a value system of taxpayer's faith to realize the Bona Fide Doctrine; the fifth, giving publicity deeply to the tax law to make the environment better to apply the Bona Fide Doctrine. In a word, we ought to apply the Bona Fide Doctrine to the tax law to bring the Bona Fide Doctrine into play and realize the faithful taxation.