Study On Tax Credit In Bankruptcy Law

The new Bankruptcy Law has mainly solved the order of employee rights protection and financial claim protection, namely, the order of the labor claim and the secured claim in bankruptcy procedures, and has paid no attention to tax credit including tax priority in these procedures. With the implementation of the new Bankruptcy Law, the legal status of tax credit in new law and some related questions appear more serious. In this article the author tries to begin with a thread that tax is a kind of debt in public law, refer to the protection system to a kind of debt in private law and brings forward the idea of making tax credit perfect in the Bankruptcy Law and relevant laws by combining the current condition of our country and analyzing the status of the tax credit in foreign in the proceeding of bankruptcy and reorganization.The significance of the article lies in : Under the current system and the economic condition, by making good use of the law system , emphasizing how to solve problems , integrating resource of public and private law ,according to the intercommunity of the tax credit and private tax and using the relevant systems of credit safeguard in the private law, the article begins with cancelling the special priority and the limitation and adjustability of tax credit in bankruptcy , weighs the requirement of finance and the stability of the order in private law and selects the relevant law systems reasonably to co-ordinate the conflict of tax credit in the bankrupt law and other secured laws.There are four sections in this article: in the first section, the author introduces and studies the definition and nature of tax credit and further analyses the definition and the characteristics of tax as public credit. Tax legal relation is identified as a kind of relation between credit and debt in public law. This identification may offer a reasonable theoretical basis for the protection to tax credit in private law, and make tax credit and civil rights connect well at the same time. In the second section, the author probes into the tax priority, emphasizes on the definition, the characteristic, scope of application, necessity of the tax priority and the negative effects of it in practice. In the third section ,the author begins with the argument of abolish or existence of the tax priority in bankruptcy procedures by combining the current condition of our country and analyzing the status of the tax credit at home and abroad in bankruptcy procedures .It comes to a conclusion that in the current economic and social conditions, retaining the ordinary tax priority is necessary, however, we can replace the special tax priority with revocable system in Bankruptcy Law so as to avoid the conflict of Bankruptcy Law and the Administrative law of Tax Collection. When cancelling the law of special tax priority, we can use civil revocable system for reference to protect the tax credit and sanction the behavior which sets as security after tax unpaid to destroy the tax revenue by bankruptcy procedures. The significance is not only the tax revenue assured in economic but also the secured trade legal system exempted from damages. In the fourth section, the author mainly discusses the status of tax credit in the bankruptcy reconstruction. The new Bankruptcy Law has embodied the joint with advanced ideas on bankruptcy laws and regulations of foreign countries more and more and has emphasized the value of reorganization. But just because of the limit of statutory taxation principle and the lack of adjustability in tax law, single voting team to tax credit set in bankruptcy reorganization losts its real meaning. This substantively conflicts with the adjustability to different interest-subjects'rights in bankruptcy reorganization procedures. Then, how to find a balance between the protection to tax credit and legislative intent to bankruptcy reorganization, the author gives his own thoughts and suggestions bellowed.The article is innovative in two aspects. On one hand, confirming tax revenue as the foundation of the debt of public laws especially in the implementation of special priority, we can use civil revocable system for reference to protect the tax credit and sanction the behavior which sets as security after tax unpaid to destroy the tax revenue. Meanwhile, by remaining the ordinary priority to make sure the legal status of tax credit to take priority to the ordinary credit after cancelling the special priority in the Bankruptcy Law, the demand of the tax revenue of the nation at present is assured. Furthermore, cancelling the deadline of execution stipulated in the revocable system can urge the tax department to collect tax timely, prevent the tax department from abusing the administrative power to destroy the legal system of the market economic trade after they don't exercise the right of tax collection in time to cause damages to the debtor. On the second hand, the author suggests restricting the ordinary priority by judicial procedure, perfecting tax guarantee system, making tax credit which has marked public power with flexibility and adjustability and making sure the enterprise that qualified for reorganization not to lose opportunity for lack of tax credit legality and adjustability, so the purpose of lawmaking and the effects of legislation can come true.