A Brief Study On The Taxation Enforcement In Our Country

The paper involves the following four parts as its research field: the general theories of taxation enforcement in our country, the existing problems in the enforcement, the issues deserving our attention when carrying out the taxation enforcement, and legislative suggestions on perfecting taxation enforcement. It aims to analyze and illustrate some controversial problems which trouble the tax staff for a long term in taxation enforcement as follows: whether the tax authority has the executive power over the decision on the penalty; whether the administrative reconsideration or the administrative litigation can cancel the specific administrative acts or not; and so on. Through the analysis and the illustration, it aims to clarify some misunderstandings on the theories of taxation enforcement for a long term. It will play an active and instructive role in standardizing the tax authority in carrying out taxation enforcement properly, and it also offers helpful references for the amendment of the law on taxation enforcement. Part I makes an illustration on the general issues of the taxation enforcement in our country. First, on the basis of the original concept of the taxation enforcement, the paper redefines its concept. The paper holds that the taxation enforcement refers to that the tax authority or the people's court enforces the taxpayer, the withholding agent, the surety of tax payment and other parties to realize their acts on the executable contents such as the tax, the late fee, the fines, and the added fines according to the national laws and the administrative regulations. In the concept, the enforcement is executed by the tax authority with the help of its administrative power or by the judiciary power of the state. At the same time, it explains the concept of the taxation enforcement in the following five aspects: bodies, foundations, objects, content and time limit. It makes a further analysis on the executive body, executive content and executive effectiveness for a period of time as well. Second, it summarizes the characteristics in which the taxation enforcement is different from the general administration enforcements. It points out that the taxation enforcement has the characteristics like this: the taxation enforcement should mainly rely on the execution of the tax authority, but make the execution of the people's court subsidiary; it should mainly rely on the looking ahead execution, while making the execution after event subsidiary; and it should mainly rely on the traditional administrative enforcement with the help of the enforcement of the civil procedure means. Third, the taxation enforcement is divided into indirect taxation enforcement and direct taxation enforcement according to the traditional method of classifying the administrative enforcement. Finally, it differentiates and analyses the relationship between the forcible execution and the administration review and that between it and the administrative litigation. Part II analyses the problems still existing in the taxation enforcement in our country. On the one hand, it discusses the defects of the taxation enforcement in legislation. It points out that the taxation enforcement lacks systematics in legislation, which leads to the problem that many practical problems have no legal foundations in execution. Then the job of execution becomes complicate. It is short of harmony. The regulation on the priority of taxes in The Law on the Management of Tax Revenue Collection is too simple, inharmonious with The Guarantee Law and The Maritime Law. That's because it does not take the relationship dealing when the conflicts happen in execution into consideration. It brings about the problem that the practical problems cannot be solved when conflicts happen in execution. It is in need of meticulousness as well. It lacks the regulation concerning the responsibility to execute the enforcement in time. For example, the rule that the fines are confiscated by that got in the whole auction is easy to produce ambiguities. On the other hand, it discusses the flaws of the taxation enforcement in execution, pointing out that there are some problems with the enforcement procedure and enforcement entity when the tax authority executes the enforcement. The immediate legal consequence produced is that the taxation enforcement behavior is illegal. The flaws in the executive procedure are mainly shown as follows: the identity of the execution subject is unsuitable; the identity is not declared before the execution; and the considerate and effective caution is ignored at the first step. The main flaws in the executive entity are listed in thefollowing: the original executable content is not accorded with loyally; even it is beyond the execution scope allowed by the law; the effective specific administrative act is not executed properly. Part III makes some requirements for the execution of the taxation enforcement, that is, there are some issues deserving our attention. According to the regulations laid down clearly in the tax law, it is noticeable that the caution should be put at the first place. Then we can make a report to the tax bureau above the county level, waiting for ratification. The executive power can only be exercised by the legal tax authority. As for the special guarantee for the basic right of existence, the authority must open the bill or receipt as is required by law when detaining or closing down one's possession. These requirements are regulated in The Law on the Management of Tax Revenue Collection clearly, so the tax authority must perform the execution according to the requirements strictly and carefully. According to the definite requirements embedded in the law, we should pay attention to the fact that the late fee and the tax should be collected forcibly together; the different executive conditions for the tax and the fines must be identified; the application for attachment from the people's court must accord with the legal conditions; the executive power should be limited in bankruptcy and other executive procedures; the judge execution is not allowed and the tax authority should do the execution independently; the criminal responsibility will be pursued further and the strict enforcement will not stop; the imposed fine is only executed by the people's court through application after the administration reconsideration. The requirements above are not regulated in any specific laws or regulations, and the conclusion can only be got after a comprehensive analysis through combining with different laws and articles of laws. Part IV maps a blueprint for the legislation suggestions to perfect the taxation enforcement in our country. From the perspective of the legislation suggestions concerning the tax authority itself, the executive procedure of tax regulated by Item 40 in The Law on the Management of Tax Revenue Collection is not applicable to it directly, so the executive procedure of the punishment decision should be claimed clearly in legislation as soon as possible; in order to perfect the integration setting of the security of tax payment, the security for execution and the preservation for execution, some suggestions are brought forth on amending the law: the command to offer thesecurity of tax payment should be added to Item 37 in The Law on the Management of Tax Revenue Collection ; the provision of the security for execution should be listed as one of the specific conditions for the probation of execution in Item 40; in Item 65 in the Detailed Rules for Implementation of the Law on the Management of Tax Revenue Collection, the power should be endowed with the tax authority that the tax authority can perform the attachment for the fines which are not on due under the condition of the whole auction; the regulation on the service by leaving rejected legal processes at the place of abode of the witness execution document should be added, and the difficulty should be overcome that enforcement instrument of the intermediate order cannot be served caused by the situation in which the person against whom a judgment or order is being executed refuses to sign his name and nobody holds the position of the witness; the legal regulation on the tax execution by mandate and the execution at distant places should be added in order to meet the law need of the tax authority performing the enforcement on the counterpart across province, city or county; the execution power should be endowed to non-production or non-business taxpayers and the dead angle of the execution of the tax authority should be avoided; the tax debt transference should be brought into the independent execution scope of the tax authority. From the perspective of legislation suggestions concerning what is beside the tax authority, it is pointed out that the power to custody the person avoiding the execution by the police security organ should be added; the person against whom a judgment or order is being executed should be forced to pay off the tax and the fines with the transferred fortune; a point is clarified that the tax is put to the priority when the conflict happens in order to settle the execution conflict between the tax authority and the people's court or other administrative organs; under the precondition that the tax authority adduces effective evidence and fully ensures the right of objection of the third party, the tax authority is endowed with the power to perform the execution with the civil subrogation according to the law; the forbidden zone for the tax execution of the people's court is cancelled by which the jurisdiction of the people's court over the tax execution is enlarged; the examination mode to apply for the execution of the people's court is reoriented.