Research On Tax Administrative Litigation System

At the beginning of the establishment of our country, some administrative litigation systems were made and enforced in specific areas, such as in the field of finance, taxation and customs, etc. However, the legislations concerning the tax administrative litigation are unsystematic, non-standard and incomplete. Since the reform and opening to the outside world, the socialist market economy system has been set up in our country and the government has been carrying out reforms with keen determination. Although the action begun a little later, kinds of systems of the modern market economy were established in the situation of the socialism with Chinese characteristics, which perfects the system of the tax administrative litigation system. Based on the brief illustration of some relative concepts and theories in the system of the tax administrative litigation, this dissertation provides a comparative introduction to the tax administrative litigation systems of Japan and America. Also, it tries to put forwards some contributions on the corresponding countermeasures and suggestions through a further discussion on the present situation of the tax administrative litigation system. The dissertation includes the following four chapters: a general introduction of the tax administrative litigation system, a comparative analysis of foreign tax administrative litigations system, the present situation and defects in the current Chinese tax administration litigation system, and the suggestions and measures to perfect the tax administration litigation system in our country. Chapter I is the introduction of the tax administrative litigation system. The chapter introduces the concept, the legal principles and some contents of the tax administrative litigation. It also addresses the necessity of the existence of this litigation system, and the evolution of it in our country. The tax administrative litigation refers to a means by which the taxpayer and other tax clients can request legal aid in order to protect their legal rights when they refuse to accept the tax administrative acts of the tax authorities. The tax administrative litigation has the following characteristics: the existence of the controversy in the tax administration is the prerequisite for the tax administration lawsuit contest; it is educed by the application of the tax payer; the main content of the tax administrative litigation is to protect the right of the tax payer; the tax administrative litigation is a kind of aid after the event. The tax administrative litigation is of the common legal principle that all the salvation means of the general rights have, that is, the principle of legitimacy, the principle of rationality, and the principle of efficiency. Meanwhile, as a special right of aid, the tax administrative litigation has its own characteristics: the principle of universality, the principle that the aid is on the priority in administration, the principle of the judicial lastness. It is composed of the review and lawsuit caused by the action that the relative person of tax management refuses to accept the behaviors of the tax administration, in which the former is called the tax administration review whereas the latter is called the tax administration litigation. The establishment of the system of the tax administrative litigation mainly aims to settle the dispute concerning the tax, to protect the rights of the tax collecting and paying parties and maintain the normal order of tax collection, and to promote the democratic atmosphere among people actively. With more than 50 years'development, the system of the tax administrative litigation in our country has made great progress. For example, the government has made a series laws and regulations successively such as The Administrative Litigation Law of the People's Republic of China, The Administrative Review Law of the People's Republic of China, The Tax Administration Review Regulation of the People's Republic of China (trial operation), The Tax Collection Management Law of the People's Republic of China and its detailed rules for implementation, The Tax Administration Review Regulation of the People's Republic of China (provisional). According to the above, it can be clearly seen that the government keeps abreast of the times in protecting the people's right and interest. Chapter II presents a comparative analysis of the systems of the tax administrative litigation in foreign countries. The chapter introduces the objection appeal system of taxation in Japan and the appeal system oftaxation in America. Then it makes a comparative analysis of the systems of the tax administration lawsuit contest in foreign countries. The appeal from a judgment in Japan includes the objection appeal and the examination request. The principle of such a design is to protect the people's right in the largest extent. The following characters can be found in the analysis: first, the appeal from a judgment is not considered as a system of administrative supervision, but as a system of right protection definitely; second, the examination of the appeal from a judgment is executed by the organ independent of the administrative organs. The tax administration review organ in America is the Appeal Department, which is an administrative organ completely independent of the domestic Incomes Bureau. The design of the tax administration review system presents the principle to offer all the administrative aid regulated in the Administrative Law of America. The ingenuity of the system lies in the fact that the taxpayer is not forced to experience the phase of the tax administration review. What's more, the tax court, the district court, and the federal claim court satisfy the litigious right of the taxpayer to the maximum limit. Through the brief introduction to the tax administrative litigation in Japan and America, the dissertation provides a comparative analysis of the following main issues: the problem whether the tax is collected first before review, the system of joining the tax administration review and the tax administration litigations proceeding, the setting of the litigation agency, and the composing of the litigation personnel. Chapter III illustrates the present situation and defects in the system of the Chinese tax administrative litigation. This chapter mainly introduces the external environment, current situation of implementation and the existing problems with the system of the tax administrative litigation in our country. In the last 25 years since the reform and opening, more than 20 laws and regulations was legislated per year in average in order to meet the need of the development of the socialist market economy. Therefore, the laws and regulations appear variable, and it is hard to avoid that the laws and regulations are inconsistent with the policy. On the one hand, the design of tax system in our country follows the model of the west, which results in theirrationality of some laws and regulations; on the other hand, the powerful inclusiveness and dissolvability of the Chinese culture offers space for the tax authority to enforce the laws with excess of authority. The current implementation situation of the system of the tax administrative litigation is as follows: the total amount of the tax administration case is small in our country and the consciousness of the tax payer to safeguard his or her rights and interests is not strong; the quality of the tax administration review is low, but the fail percentage of the tax authority in lawsuit of the administrative litigation cases is high; the tax administration review develops unevenly from area to area; the infringement on the taxpayer's right of the abstract administrative act causes lots of tax administrative cases. And the existing problems can be summarized as: the abstract administrative act is unattainable, and the operation to apply for examination is complex; the emphasis on the tax paying obligation causes a series of difficult problems; strict jurisdiction affects the neutralization of the review organ, so the supervision function of it is weakened; the tax administration review is disjointed with the tax administration litigations. Chapter IV provides the contributions on the suggestions and measures to perfect the system of the tax administrative litigation in our country. To examine the existing problems of current system of tax administrative litigation in our country, we should start with the following perspectives: fristly, the review mechanism of the abstract administrative act should be perfected, including allowing one to apply for the review of the abstract administrative act independently. The tax administrative regulations will be brought into the scope of the tax administration review, and the abstract act will be brought into the review scope of the administrative litigation. The system of opening the abstract tax administrative act should be set up in order to develop the socialist democratic politics. Secondly, the examination of the specific administrative act should be enlarged and the rationality of the specific administrative act should be brought to the administrative administration. Thirdly, the procedure of the tax administrative litigation should be perfected by following methods: to abolish the regulations to pay tax first and offer the corresponding guarantee, to set up the hearing systemof the administrative reconsideration on taxation, and to promote the judicialization of the administrative procedure. Fourthly, the personnel setting in the tax administrative litigation organ should be reformed. A relatively independent organ of the administrative reconsideration on taxation should be established; the staff in the tax administration review organ should be disposed reasonably; and the rules of organizing the tax administration review committee and judging a case will be regulated. Finally, the system of joining the tax administration review and the tax administration litigations proceeding should be reconstructed. It could be mainly realized by re-regulating that: all the cases after consideration would take the review organ as defendant; the model in which the administrative reconsideration is a compulsory procedure should be cancelled and the selective reconsideration model should take its place; the examination should be strengthened in the light of the harmonization of the tax administration review and the administrative action of taxation.