A Constitutional Perspective On Tax Legalism

Tax legalism is a major outcome of the modern capitalist revolution, a basic embodiment of modern democracy and rule-of-law in tax-collection, a fundamental principle in tax law, and a milestone for tax to enter constitution. From the start, tax legalism is the origin and source for modern legalism, and the basic components include the legalization of tax factors, the definitive requirement for tax factors, the legalization of tax process, and the legalization of the authority to collect tax. The theoretical sources of tax legalism include the natural right of man, the division and balance of power, and social contract. An underlying theme for tax legalism is the consent of the people, which is the ultimate value for tax collection, i.e., the protection of human rights, the protection of private ownership. The consent of people means the tax code being enacted and managed by the people, i.e., democracy. The only means to achieve democracy and human-right protection is rule-of -law, or constitutional rule. All these reflect the constitutional spirit and the basic requirement of constitutional governance. Effective constitutional governance is a political process that depends on a good constitution, a democratic system, rule-of-law as a foundation, and the protection of human rights as its ultimate goal. Tax legalism reigns in the power of the state and protect the property ownership rights of citizens. All these intimately connected with the spirit of constitutional governance and history of modern tax legalism correlate closely with the history of constitutional governance. Most constitutional states today adopt tax legalism in their respective constitutions. Due to the historical and cultural background that place more emphasis on power than rights in China, tax legalism has not been implemented thoroughly, which reflects in the tax laws and enforcement. The tax law enactment has not been democratic or rational. Administrative power is often abused and run amuck without check. Tax legislation is relegated without proper authorization. The interpretation of tax codes is not standardized. Tax codes undergo frequent changes. The national government and local government compete in the right to collect tax. The problem of tax collection is acute. Tax payers' basic rights lack protection. How to, under the banner of democracy, rule-of-law, and human rights protection, cultivate a thick tax legalism spirit and clarify the constitutional rights of tax payers, rationally demarcate tax legislation authority, improve the democratic and rational aspect of tax legislation, build a rational and complete system of tax laws, improve the safety net for the rights of tax payers, and protect tax payers' rights with tax legalism are the directions we ought to take. The following thesis provides the author's view on the relationship between tax legalism and constitutional governance, the status quo of China's deficiency in tax legalism, its origin and how to advance the protection of tax payers' rights under the banner of tax legalism.