Completing The Burden System Of Proof For Tax Administrative Litigation In Our Country

Tax administrative litigation means the activity that taxpayer, the withholding agent, tax payment guarantor or other tax administrative relative person consider that when the detailed activities of tax authorities has violated theirs legitimate interests, they take proceedings in the people's court according to law, and the people's court will hear and hand down the judgment. While burden of proof for tax administrative litigation means a responsibility that litigants of tax authority and tax payer shall prove the provided evidence bore by specific proposition according to law and undertake adverse legal effect under the condition that they can not provide relative evidence to prove theirs proposition established. Tax administrative litigation is important component element of administrative litigation, on basic regulation on burden of proof in administrative litigation also applies for taxation proceeding as well; burden of proof in tax administrative litigation embodies the characteristic of administrative litigation in many aspects. But tax administrative law has its own laws and regulations after all, either object of execution, the range of execution or the means of execution is different from other administrative authorities. Therefore, in tax related proceedings, burden of proof bore by tax authorities and tax payer is also different from other burdens of proof of administrative litigation. Our country's taxation substantive law and taxation procedural law do not regulate on tax related burden of proof as the form of specific legal provision generally, but when the court hears and tax related cases and litigant related burden of proof, following and applying the provisions are the most basic provisions of administrative litigation actually. However, tax law also is an aggressive regulation, which directly refers to the proper interests of tax payer. In the procedure of tax related proceeding, the two parties of tax collection and tax payment bear different burden of proof. The defendant of tax authority shall bear the main burden of proof based on law, and burden of proof tax authority bore shows obvious characteristic of tax administrative execution.Taxation is unilateral burden of the people, which is used for meeting common requirement of public property; the appearance of tax affairs is originated from tax collection. While the most often mentioned tax case is that most tax evidences are in the range of domination of taxpayer; it is quite difficult for the tax authority to gain direct tax records. Based on the characteristic of tax cases, burden of proof for the issue of tax administrative litigation shall adjust burden of proof based on the requirement of equal taxation principles according to the characteristic of tax cases itself. Relative to other laws, the component element of tax bond is far more complex, which is not only constructed a suit of complete specification for occurrence, improvement, remission or elimination of tax bond by various legal provisions, but also is constructed its complete specification by interlaced positive elements and negative elements. This is the distinction made based on component elements and it's logistic of linking efficacy of law. And this is the distribution made based on the regulation of substantive law. The distribution of burden of proof that applies for tax bond is: taxing authority shall be responsible for burden of proof in the matter of element facts of the occurrence and improvement of tax bond; tax payer shall be responsible for burden of proof in the matter of the remission or elimination of the tax bond. However, this objective burden of proof may be transferred by implied fact of legal substantive enactment. As the debtee of tax bond, taxing authority shall be responsible for objective burden of proof in principle when the taxing authority and debtor are in proceeding for arguing the occurrence and improvement of tax bond in the matter of the following positive elements of component elements on the occurrence and improvement of tax bond; as the debtor of tax bond, tax payer shall be responsible for objective burden of proof in principle when the tax payer and debtee are in proceeding for arguing the remission or elimination of tax bond in the matter of negative elements of component elements on the remission or elimination of tax bond.Our concerning burden system of proof for tax administrative litigation has many problems: Firstly, tax law has excessive characteristics of administrative law. Influenced by administrative enforcement of law, our present active rough in the process of enforcing the law and loss of due process, together with the traditional thought of judge—Authority First not People First, in the event of tax-related proceedings, the judge always focus on the external form of law and intentionally or unintentionally ignored the internal spirit of law as reviews the procedures of tax authorities. Our courts haven't set up tax administrative court for handling specific tax-related litigation yet, which not only affected the unity of tax-related court cases result but reduced the trial efficiency of tax-related administrative litigation. Secondly, the scope of China's tax administrative litigation ruling case is too narrow. Abstract administrative acts are excluded from the tax-related litigation case, as well as Tax Administration Law raises preconditions for tax administrative litigation. Furthermore, judicial review of our country's tax administrative litigation has complexity. Our country's executive legislature has strong color of the Civil Law System. On the trial courts and judges, they holds skeptical or rejecting attitude against facts made by executive administration actually. They asked that executive administration must provide conclusive evidence in the process of administrative litigation to support its fixed facts in administrative procedures; otherwise, executive administration may assume liability to lose a suit. Finally, China's tax administrative litigation got that the range of accused proof is too narrow and proofing standard of China's tax administrative litigation is one-sided. China's administrative litigation required proof to the level of truth object, which in essence adopts the Evaluation of Legal Evidence. This requires evidence in the proceedings must be in accordance with the law and the judge doesn't have much discretion.After exploring the current situation of related burden system of proof for tax administrative litigation, the author put forward the counter measures to improve our burden system of proof for tax administrative litigation. Firstly, it is the reform of tax related administrative litigation system. Considering from designing long-term blueprint of China's administrative trial mechanism, the reform can learn experience and practice from many civil law system countries to establish an administrative court system as Germany in China. Secondly, it is the increase scope of administrative litigation ruling case. Abstract administrative actions will be included in the scope of court ruling case and reduce precondition of tax administrative litigation. Furthermore, it is a definition. Burden proof of the accused is mainly defined by legal burden proof with fact for complementary. In the case that side most closely related to evidence should bear the burden of proof and when there is no clear document, burden of proof is fixed by court. In addition, presumption rule should be introduced. In the practice of tax related justice trail, presumption rules are introduced, which are not only convenient means of judges to close case and effectively resolve the difficulties of burden of proof certain tax-related matters. In fact, it can effectively restrict judge to expand scope of the accused burden of proof. And it also relatively simplify original complex distribution tax related burden of proof because of the presumption. At the same time, it also provides a security system for accused person's cognition on facts in administrative procedures and protection of accuser's right legally respected by court. Finally, it includes distribution principle of burden of proof building tax-related proceeding. In selecting legislation during construction of China's legal distribution standards tax burden of proof, it should take regular as basis and learn good experience and practice from common law countries regarding to distribution system on burden of proof. First kind is the general regulation of distribution burden of proof for tax administrative litigation. For burden of proof should be undertook by accused tax authorities, undertaking burden of proof in evidence on specific administrative acts and complied regular document of tax collection; undertaking the evidence responsibility of taxation collection administrative procedures, in other words, undertaking burden of proof of legality and rationality of taxation collection administrative acts; undertaking the persuading responsibility of evidence in proceeding. For the burden of proof undertook be accuser, it should undertake the burden of proof regarding to pay tax. Second kind is inversion burden of proof in tax administrative litigation. Based taxation collection and related legal regulations, inversion of our burden of proof for tax administrative litigation includes four sorts: fact presumption on laws; tax payer undertakes burden of proof regulated clearly in document; tax law requires tax payer is undertook the duty of providing related tax paying materials and other proof documents; it should be inverse when court judge burden of proof in individual tax related case.