The Research On The Tax Priority

Tax is the base of the national finance. For the important significance to the nation getting financial income, exercising national functions,providing public product, each country in the world gives tax special protection. Many countries still stipulate the institution of tax priority. Our country has revised the"laws and regulations of tax administration"which increases the stipulation of tax priority. That has the important significance to assure national taxes collection and guarantee the financial income. The academic circles haven't prepared enough theory to discuss the problem of tax priority while the laws and regulations on it are too simple and rough,and the clause related to it is not coordinated very well, so the conflicts among the rules and regulations and the confusion bring out in reality and thus it has to be standardized and perfected. The present paper inspects the problems related to the tax priority comprehensively, which starts with the common theory of tax priority, uses the comparative and the interest analytic methods, and emphasizes the civil law's using and applying. Under the principle of the relatively balance between the national tax interest and the safe trade in private law, the paper has made a systematic arrangement, thinking and building of the tax priority. The purpose of the paper is to provide the theory that can be enforced of tax priority for reference and promote the perfection of the law of the tax's legislation. This paper is divided into three parts:The first part is the definition of the tax priority. Firstly, the article analyzes the conception of the tax priority. The tax revenue priority means that the tax revenue creditor has the preferential right of being discharged with the property of the tax revenue debtor according to the law. Secondly, the part analyzes the types of the tax priority. Taking a wide view on the provision of other countries, according to the dissimilarity of the subject matter of priority, the tax priority can be divided into the tax general priority and the tax special priority. Seeing from foreign lawmaking examples, the tax special priority should be prior to the tax general priority in principle. Finally, the part discusses the property of the tax revenue priority. Whether the enactment of right will influence the substance contents between the parties directly or not comes to a decision a right is substantive or procedural actually. The tax priority added new contents to original relation between the creditor and the debtor, and brings some essential influence, so The tax priority is an entity right. This part will make some analysis that indicate the tax revenue priority have the following characters: legal, domination, exclusiveness, retroactivity, appraising at the current rate to be charged, subrogation, and impartibility. Then the conclusion is the tax priority is a right with characters of security interest.The second part is about the conflict between the tax priority and other rights. The effectiveness oeder of the tax priority resolves the competition between creditor's rights of the tax revenue and other creditor's rights. This is the central contents of the tax priority, and the embodiment of the legislative objective and the value principle in law system. Firstly, the part analyzes the reason why the tax is prior to the common creditor's right, and sums up some exceptional examples. Secondly, the part analyzes competition between the tax priority and hypothec, mortgage and lien. Comparing with multinational legislations and theories, this paper takes a view that it is unreasonable to judge the effective arrangement of the tax priority, hypothec and lien by the time, which gives way to the following standpoint. Thirdly, the part analyzes the competition between the tax priority and other priorities. The litigation expenses, property sells and other commonweal expenses are the condition of carrying out the other creditor's rights, so the public-expenses priority is prior to the other creditor's rights. In the interest of worker's basic right of existence and the social stability, most countries have already ruled the workers' wage, subsidy for disability, pension, endowment insurance, medical treatment insurance and compensation are in preference the tax. Finally, the part discusses the effectiveness arrangement of the tax priority and other creditor's rights in public law. Because confiscated property is punitive, if it is prior to other creditor's rights to be discharged, it may be make the third party's property to suffer loss. This not only destroys the fair principle, but also can't carry out the function of administrative punishment. The same reason, the judicatory fines can't be prior to creditor's rights of tax revenue, either. Moreover, when the tax and the fee exists at the same time, it's necessary to establish that the tax revenue is first. In china"laws and regulations of tax administration"should rule: the tax be prior to all the other fees, besides the law has special rule.The third part is about the consummation of the tax priority. The article makes some consummate advice about the order between the tax priority and other correlative rights, and the public show, the applied scope and the term of the tax priority. In response to the effectiveness arrangement of the tax priority and the security interests, it should definitude the lien be prior to the tax general priority; the tax general priority be prior to the lien which establishes after it shows; the tax special priority be prior to all the security interests on its taxation object or the related property. Because of the tax priority has character of the security interest, it is proper to register or proclaim publicly the tax priority in china. It should make the exclusion duration for the tax priority, which should be ruled by the law depending on actual circumstance. And so it can raise efficiency of tax revenue collection to carry out the design purpose of the tax priority, on the other hand, it can also keep the right from being unstable.