Research On Some Issues Of Tax Administrative Punishment

Tax Administrative Punishment is an important role of tax administrative enforcement of law, a significant content for law-based administration and law-based tax administration of tax authority, and a vital means for guaranteeing the correct implementation of the tax laws and regulations. This paper adopts the method combining the theory and practice to analyze on the meaning of tax administrative punishment form the general theory of tax administrative punishment firstly, and then deeply discriminate to the Tax administrative punishment and the tax criminal penalty. At last, the author discusses and analyzes the issues existed in Tax administrative punishment during the application by contacting his word experience, and tries to resolve the issues existed in the theory and practice of Tax administrative punishment to provide some valuable referential suggestions.The first chapter is systemically discussed on the general theory of tax administrative punishment.Firstly, in connection with the wide opinions on the definition of Tax administrative punishment, combining with the work experience of tax affairs, and then proposing Tax administrative punishment means that, according to the Administrative Punishments Law of the PRC and relevant laws, regulations and provisions, the subject of tax administration is a administrative tax sanction implementing to the tax affairs illegal activities but have not constituted criminal act of tax administrative person in charge and some tax-related criminal behaviors but have constituted illegal activities. Meanwhile, the author expounds the four characteristics of tax administrative punishment, that is: tax administrative punishment is a punishment administrative activities; the implementation subject of tax administrative punishment is the subject of tax affair administration; tax administrative punishment is in accordance with the activities that offend against tax laws, regulations and provisions, and infringe the administrative order of national taxation should be taken legal responsibility. The object of tax administrative punishment is administrative adressat who have violated tax laws, regulations and provisions.Secondly, it is analyzed on the tax administrative punishment from the view of tax legal relationship jurisprudentially. Through analyzing the power relations of Otto Meillet's theory to derivate tax administrative punishment under the theory of power relations, and the main reference is administration, that is how to execute the administrative activities of tax affairs conveniently and how the taxation to go down entry effectively and timely. It is mainly start from the purpose of guaranteeing the national taxing power smoothly implementation, and is considered that all those activities hindered tax administration or taxing power should be punished of the country. Through analyzing the debtor-creditor relationship of Albert·Hensel's theory to derivate the tax administrative punishment under the debtor-creditor relationship, and the main reference is contract. In such a debtor-creditor relationship, the country is in the position of debtee who is responsible for carrying out tax collection from the tax payer; while the tax payer is in debtor who is responsible for the obligation of tax payment. Once it is found someone do not carry out the contract of debts, the country has the right to punish the tax payer according to the agreement on the contract. Through comparing those two theories, the author proposes his own opinion: as for the jurisprudential foundation of tax administrative punishment, it should be made distinction from different situations. The punishment due to violate the procedure law is by the reason of go against the right of taxation of the tax authorities, while the punishment due to offend against the substantive law is by the reason of run counter to the contractual arrangement of the tax debt.At last, it is to discuss on the constituent of tax administrative punishment. The author considers that, the theory of the three constituents can not reflect the constituent of tax administrative punishment exactly and in all directions, the tax administrative punishment shall be consist of four constituents such as the subject of tax administrative punishment, the object of tax administrative punishment, tax administrative illegal activities and the implementation of tax administrative punishment.The second chapter makes a distinction on the tax administrative punishment and tax criminal punishment. Firstly, it is indicated the difference of the two theories, that is: the characteristics of power are different; the subject implementing the punishment is different; the applied condition is different; the procedure of punishing decision making is different; and the category of punishment is different. And then it is analyzed on the combination of the tax administrative punishment and the punishment in the aspect of legislation. As for the shortcomings existed in that the current combining way is over general and single which is not propitious for criminal sanction on the tax related criminal behavior, proposing the method of administrative punishment to resolve the issues. So-called administrative punishment means that the obligor violating the administrative laws and regulations shall be taken sanctions by the general provision of applying criminal laws according to the implementation of the procedure of criminal action. In addition, it is analyzed the competitor of the tax administrative punishment and the punishment in aspect of application, and it is proposed that adopting the principle of it should be prior to select application and adhere to penalty to deal with the competitor issue of tax administrative punishment and the punishment in aspect of application. Meanwhile, as for the application in detailed of this principle is divided into three kinds of situations to analyze. The first is that tax authorities can correctly make sure the status that the illegal activities of tax administrative adressat have constituted crime during finding out tax criminal cases. The second is that the tax authorities have confirmed that the activity of tax administrative adressat does not have constituted crime at the beginning but finds out it is constitute crime after implementing administrative penalty during finding out tax criminal cases. And the third is, during finding out the tax criminal cases, if the activities of the client have constituted crime, but the tax authorities consider it does not have constituted crime. At last, the author analyzes the combination of the administrative penalty and the punishment in aspect of category of penalty.The third chapter is to take empirical analysis on the application in detailed of tax administrative punishment. First of all, it is indicated that the premise of the application of tax administrative punishment is the objective existence of tax administrative criminal activities of tax administration adressat. And then it is further elaborated that there are four essentials of the tax administrative violation of laws: the first is subject essential, that is tax administrative adressat having responsibility; the second is subjective essential, that is tax administrative adressat must have goal or offence; the third is objective essential, that is there is criminal activities in objective aspect, and there is cause-and-effect relationship between its hazard results and administrative illegality; the fourth is object essential, that is the tax administrative orders are damaged. Furthermore, it is indicated that the application in detailed of tax administrative punishment means enforcement operations that tax authorities will apply tax administrative punishment in detailed to the special tax administrative illegal cases based on laws, and analyzed the detailed situation on lighter punishment based on laws and lightening punishment, heavier punishment, exemption from punishment, and its following legal timeliness limitation. At last, combining with the tax affairs work experience, the author elaborates on the issues existed in the application of tax administrative punishment and proposes resolving suggestions. The first is the tax authorities have faults on cognition when applying administrative punishment. Therefore, it must improve the sense of administration according to laws of tax authorities, especially the higher-level tax authorities, so that can resolve this issue finely. The second is the phenomenon that place stress on entity and place light on procedure still exists. The resolving method is to enhance the abstract administrative behavior ability of the state bureau of taxation in procedure laws, and to reasonably design interior evaluation mechanism of taxation departments. The third is that there are faults existed in the system designing of significant tax administrative punishment. Only to re-design the current system can avoid the appearance of such issue. And the fourth is the phenomenon of randomness of punishment is still distinct. It must rationally control the implementation of random discretionary power of Tax administrative punishment can avoid the appearance of such situation.