Research On Tax Priority

Tax priority indicates the concurrence of the taxpayers for the un-paid revenue and other un-paid debts,and their residual property is not enough for discharging the total debts, revenue can exclude other debt rights and has the priorities in the settlement of claims and rights under certain conditions. The history of tax priority can be traced to ancient Rome era. With the development and variance of economy and society, revenue gradually appeared and developed and tax priority system is also gradually being developed. Starting from the priority system,according the related tax priority law regulations of all the countries and the related current legislation situations of our country, the article has done value and effectiveness analysis on tax priority and has brought up some ideas on the setting up and perfecting of the tax priority system of our country,hopes to provide thinking for the practice of tax priority of our country.The article is divided into five parts:part one, priority summarize;part two, tax priority summarize; part three, value analysis on tax priority;part four, analysis on tax priority effectiveness; part five, some thoughts on tax priority system of our country.The first part starts from the definition and character of priority, using comparison method, reviewing the three kinds different legislation examples of all the countries in continental law system because the difference of priority character(they are legal security property right theory, special kind debt right theory, the protection methods of rights theory), the purpose is to provide references for the examples of nature and legislation of tax priority. At the same time, it also simply introduced the different methods of England, American and France series that is different from the method of continental series: although England, American and France series haven't regulated tax priority, but the lien in the equitable law and the related regulations in bankruptcy law has in fact established a tax priority.The second part is the summarize of tax priority. The article first brought up the definition of tax priority and then set up examples on the tax priority legislation practice of all the countries,introduced in details the legislation situation of tax priority of our country. Finally, according to the major classify of the academia for tax priority, analysis on the types of tax priority established in the collecting management law of our country, confirm as ordinary priority, effect and the unspecific total property of the revenue debtor.The third part is the analysis on the value of the tax priority. First argumentation on the necessity of existence of tax priority,divided into theory base, reality necessity and efficiency meaning three aspects, speaking from theory base, the nature of revenue legal relation is one kind of creditor's rights and debt relation,that is, revenue can be considered as one kind of public creditor's rights, but public creditor's rights can also use the private law method to protect, also, the commonweal of revenue endow the priority position of the revenue creditor's rights, this is also the theory base for the existing of tax priority. Speaking from the necessity, revenue creditor's rights have special risk and this risk will finally be borne by taxpayers, this made the tax priority have the realism necessity of existing. Finally, looking from efficiency, priority system has analogous efficiency that other systems do not have in the protection of rights aspect.After the above analysis, we should also see that tax priority not only has the necessity of existing but also the necessity of restriction, the major reasons are: from the angle of value orientation, the value orientation on the tax priority of our country overemphasized the problem of public finance, it's off the beat with the tide and current of the value orientation of modern tax priority, the orientation has improper part;from the angle of protecting the trade security of private law, overemphasize the priority of revenue creditor's rights, priority will be one-sided approach to the right of all to the allocation of tax claims, especially, the public notice method of tax priority have demerits that will have disadvantage influence for the security of private trade; from the angle of comparison method, the seating arrangement on tax priority of most of the countries are not high,there is reduction of setting arrangement, the scope is gradually narrow, the form goes to strict direction,some countries even cancelled tax priority.The fourth part is the analysis on the effectiveness of tax priority, since priority does not take possess or registration as important documents, and its object can be moveable, real estate or the total property of the debtor, so priority is very easily to compete with other rights of request. Tax priority as one kind of priority, also exists this problem, the regulation of clause 45 of the revenue collecting management law of our country has unclear and unreasonable parts and they often have disputes with other rights, so, the article has spread discussion in this aspect, mainly including:the disputes of tax priority with private law request right,divided into the disputes of ordinary creditor's rights and other security interest ;disputes of tax priority and other priorities in private law,divided into ordinary dispute of priority and dispute of special priority; the dispute of tax priority with other public law request rights: other public law request rights are mainly penalty, fine and confiscate irregularity, administration fee, legal fee, administration enforcing executing fee and administration collection fee etc. dispute of tax priority with other taxation debt rights: including the ones between the state tax and local tax, between the different taxes, disputes of non-assure revenue creditor's rights and assure revenue creditor's rights; the relations of tax priority with close down, detain and freeze etc. public law executing rights etc..The fifth part is about some thoughts on tax priority system of our country, analysis from the setting up of priority system to perfection. Because at present, the"Taxation Collection Management Law"and"Enterprise Bankruptcy Law","Commercial Bank Law"etc. of our country have contradictions and disputes, so the article first suggests setting up a complete priority system, reorient on the value of different priority in order to effectively solve the contradictions and disputes between all kinds of priority effectiveness and the situation of logic disordered of our country at present. Next, we should perfect the related systems of tax priority, including the definitude of the application scope of tax priority:definitude the exertion scope of tax priority and whether or not in accordance with tax claims arising from interest, late fees and fines;perfect the publicity system of tax priority:whether need public notice and in what kind of form,combining with the existing owe tax public notice system to perfect it; definitude the liabilities should be carried for nonfeasance: it should be necessary to clarify the liabilities from the tax as the tax authorities on behalf of the creditor to the debtor's tax liability; identify the ways to achieve the tax priority etc.