Research On The Issue Of The Right Of Subrogation In Taxation

The right of subrogation in taxation can be understood as follows: when the defaulting taxpayer is so slack to exercise the right of the third party that it does harm to the tax revenue of the whole nation, the tax authority can request the court to exercise the creditor's right of the tax payer to the third party as a arrogate for the tax authority in its own name in order to ensure the realization of the tax revenue in the whole country. In 2001, "The tax collection and management law of the people'Republic of China"regulates the system of the right of subrogation in taxation. Based on the principles of the system of the right of subrogation in taxation in the law of obligation, the paper does a research on the problems existing in the system of the right of subrogation in taxation. The paper includes the following five parts: Partâ… : By the analysis of the system of the right of subrogation in civil legislation, it comments on the right of subrogation in taxation. "Collection and management law"draws references from tax laws abroad and transplants directly the system of the right of subrogation in "Contract law". There are mainly five different aspects between the right of subrogation in taxation and obligee's right of subrogation: subject, legal status between two parties, legal fact to have right of subrogation, applicable law norm, purpose and result. It also surveys the system of the right of subrogation in foreign taxation: first, the right of subrogation abroad. In modern civil law, the earliest regulation about the obligee's right of subrogation is clearly defined in French civil law. Several countries and regions also establish this law. Second, it is about the right of subrogation in foreign taxation. The earliest content about the right of subrogation in taxation is in Roman law, but only few countries establish the system of this right. In addition, it analyzes the significance of the right of subrogation in taxation. The fact that the tax law transplants the system of the obligee's right of subrogation is of practical significance concerning the collection of state tax moneys. The necessity of establishing the right of subrogation in taxation mainly comes to this: first, the function of saving state tax moneys; second, the function of making up the deficiency in former legal means; third, the function of directing all parties to behave correctly; fourth, the introduction of the right of subrogation in taxation is a valuable attempt to the legal citation. Partâ…¡: It mainly expounds the nature of the right of subrogation in taxation. Based on the understanding of the revenue and tax law, it discusses the right of subrogation in taxation from two points of view: public right and private right. First, it probes into the nature of obligee's right of subrogation: the right of subrogation is a legal right, stems from the legal direct regulation, belongs to the right of a material law, has the property of forcible execution and is a kind of legal obligatory right. It reaches a conclusion that the right of subrogation has the characteristics of management right, claim right, and conservatory right. The nature of the right of subrogation can be applicable to the definition of the right of subrogation in taxation. Second, with the direction of public law and private law, it generalizes a conclusion that the system of the right of subrogation in taxation should be brought within the category of the public law. Formally, the system of the right of subrogation in taxation lies between the public law and the private law. From the angle of tax law, it is a typical example of the public law borrowing something from the private law, a representation of privation of the public law. But it is only a technical issue of the legal application, which cannot draw a clear line of demarcation between the public law and the private law, even cannot possess the original attributes borrowed from the private law. As for the right of subrogation in taxation, although it has the meaning of the right of subrogation, it still comes under the public law. Only in this way, can it establish tax authorities'status of a sovereign in public law in the legal relationship of the right of subrogation in taxation, can it make correct judgment and disposal of the important documents and dependent programs in the right of subrogation in taxation, and make sure the correct and effective enforcement of the right of subrogation in taxation. Part â…¢: It induces the tenable prerequisites for the right of subrogation in taxation, mainly from the components of the right of subrogation. The tenable prerequisites for the right of subrogation in taxation are composed of four aspects: first, there exists the fact that the taxpayer fails to pay money.This is statutory requirement and has two contents: the obligation to pay tax has been fulfilled and confirmed; the obligation to pay tax has due. Second, taxpayer is so slack to exercise a mature claim. This is the acting requirement of exercising the right of subrogation in taxation and has two strata of meaning: the taxpayer's claim has been due; the taxpayer is so slack to exercise the claim. Third, the act that the taxpayer is so slack to exercise a mature claim does harm to the tax revenue of the whole nation. This is the result requirement of exercising the right of subrogation in taxation. Fourth, it is about the suitable object of the right of subrogation in taxation. Its object is restricted in the mature claim having paying ability, but beyond some taxpayer's reserved rights; the degree of saving the tax is necessary by exercising the rights. Partâ…£: It mainly discusses the issue of exercising the right of subrogation in taxation. When tax authority can collect the tax money by means of exercising its administrative power, it does not need to exercise the right of subrogation in taxation. But once there is the necessity of exercising the right of subrogation in taxation, the tax authority has to give up this right. It must exercise the right in its own name, by means of lawsuit and the relevant civil procedures. In the lawsuit of the right of subrogation in taxation, the tax authority is the plaintiff. The debtor borrowing from taxpayer is the defendant. Taxpayer is the third party without independent right of claim. The issue of the lawsuit of the right of subrogation in taxation is dominated by the people's court that is seated in the third party's place of domicile. The liable undertaker of the onus of proof is tax authority. The burden of proof concerning the plea matter rests on the debtor borrowing from taxpayer. The lawsuit of the right of subrogation in taxation does not use the principle of mediation in administrative procedure .So it cannot reach an out -of -court settlement. The legal cost is paid by the person who is secondarily liable. The necessary cost of exercising the right of subrogation in taxation except the legal cost is paid by the taxpayer. Part â…¤: It mainly analyzes the ownership of interest. The tax authority applies "rule of priority". On the issue of the ownership of interest, tax takes precedence over the common creditor's claim with the exception of the itemthat legal rules take precedence over the tax. Second, it discusses the validity of exercising the right of subrogation in taxation to parties. In the lawsuit of the right of subrogation in taxation, the administrative power of tax authority and litigious right are limited. The tax authority itself is payed directly by the interest of the lawsuit. The third party discharges the tax authority according to the judgment of the court. The debtor-creditor relationship between the third party and taxpayer is dissolved within the discharging limit. The tax authority exercises the right of subrogation according to the law and does not exempt the taxpayer who fails to pay tax from fulfilling the obligation to pay tax and undertaking the legal responsibility. Besides, the judgment of the right of subrogation in taxation has the binding force to the tax authority, the third party and the taxpayer. Finally, it reaches a conclusion: it is necessary to exercise the right of subrogation in taxation. On the basis of this necessity, the tax authority can exercise the right of subrogation in taxation only in its own name, by means of the lawsuit. It can be payed directly to object of litigation by applying "rule of priority". Note also that when transplant the private law, we must consider the capable operation on the tax legislation.