On Taxpayer's Rights Protecting Under The Pre-system Of Taxation Reconsideration

Modern state can be called tax state. Tax liability of citizens is increasing popularity. Tax is sustains by myriads of taxpayers. Taxpayer is the important subject of legal relationship of taxation. Mutual exclusive between taxes and tax laws importance to the nation's economy and the people's livelihood, importance to the various activities and daily life of our country and citizens. The conflicts between the taxpayer and the tax administration authorities frequently because of tax law regulate tax liability is a kind of offensive rule. Taxation Administrative Reconsideration System emerges as the times require resolving levied contradictions, the implementation of internal supervision, to safeguard the legitimate rights and interests of taxpayer. However because of the variability of practical issues, the problems of Taxation Administrative Reconsideration System become apparent increasingly. Research procedures of dual pre-system of Taxation Administrative Reconsideration found it injury the taxpayer rights. In order to get the advantages unifies our country fundamental realities by comparison research the similarities of two big legal system countries and Taiwan. Then makes the concrete tentative plan carries on the consummation to our country taxpayer's rights protecting under the pre-system of taxation reconsideration.First is simple analysis to pre-system of taxation reconsideration in our country. This part will have a brief introduction to explain objective and the significance of set up Taxation Administrative Reconsideration System, to clarify the value of Taxation Administrative Reconsideration System and in order to understand the negative effects of pre-system Taxation Administrative Reconsideration to it in following content. In China, Taxation Administrative Reconsideration System is one of main legal ways for taxpayer exercises their relief power of tax administration, also, is the tax authorities to resolve a tax dispute in accordance with law, strengthen supervision of a hierarchy within the legal system. Taxation Administrative Reconsideration System was established as early as after the founding of our new nation. With the passage of time and social development, the Taxation Administrative Reconsideration System has undergone continuous change and development. The Law of the People's Republic of China on the Administration of Tax Collection was amended on April 28, 2001 and adopted on May 1, 2001 will go into effect. The newly revised The Law of the People's Republic of China on the Administration of Tax Collection made some special provisions of rule 88; paragraph one on the Taxation Administrative Reconsideration System. The dispute of levier and taxpayer on tax obligation both accepts to make the dual pre-system of Taxation Administrative Reconsideration namely reconsidered preplaced in the lawsuit and preplaced the tax obligation has continued to use now. China's Customs Law also provides for conditions of preplaced reconsideration, however, cancel the provisions of amended in 2000. In addition, it clearly pointed out the bone of contention that exists in China's current taxation reconsideration proposing.Second is analysis on problems of China's pre-system of taxation reconsideration. At present, the design of tax relief system is take taxpayer as main body to choose the relief way freely as the principle with an exception for taxation reconsideration proposing. However, in the practice, taxation reconsideration proposing is a serious obstacle to the smooth realization of the taxpayer's rights as following: firstly, impartiality and independence are the problems of taxation reconsideration proposing. The fair statement of tax administrative review cases was a conclusion which obtains through the subjective judgment. As the different subjective understanding of taxation administration law enforcement, their own quality level and a number of improper factors unavoidably Causes unfair cases. As the principles of the taxation administration review written examination has a strong doctrine and unilateral powers color, it difficult to win people's trust. In addition, we can not fully protect the taxpayers excise their rights of tax review cause by our rules and regulation mode of taxation administrative review, as well as non-full-time staff. Secondly, violate principles of due process. Due process is aimed at preventing abuse of the tax authorities. And more important is to give the taxpayers the rights to defend themselves and defense. While pre-tax administrative review procedure is in place blocking the taxpayer access to basic legal rights is a clear violation of the principles of due process of law. Third, not meet the principle of proportionality. During the procedure of Taxation Administrative Reconsideration, there is no reasonable proportion between the approach taken by the tax authorities and achievement what they want. Fourthly, it conflict with the administrative law. Mutual contradiction between rule 14 of The Rules of Taxation Administrative Reconsideration Law'provisional', rule 9 of Administrative Reconsideration Law and rule 15 of the Regulations of Administrative Reconsideration Law will bring the confusion in understanding and implementation of taxation administrative reconsideration deadline. Fifth, it related to the taxpayer right on refund request. Under dual pre-procedure, if the taxpayer reconsideration is successful, it will be related to the right of the taxpayer refund requests.Third is the Enlightenment from comparative analysis among relevant legislation in abroad and other areas. Although somewhat differences in different national tax system and administrative remedies theory and system, yet there is the possibility to compare. In which the article lists opposition censorship in German as continent law system countries, dissatisfied appeals with Japan's National Tax, Korea's tax administration system as well as the trial of the petition system in the Taiwan region of China, there are common law countries, the U.S. tax appeal system, and British administrative tribunal remedies. At this point, the article analyzed and compared the similarities of pre-system of taxation reconsideration among two big legal system countries as well as Taiwan area in our country; understood the connections of pre-system of taxation reconsideration between two big legal system countries. Then, drive the benefits of them in order to improve the pre-system of taxation reconsideration in our nation. It should be connected the international requirement with the pre-system of taxation reconsideration in our mainland, perfect the pre-system of taxation reconsideration and protect the rights of taxpayer.Fourth, the tentative plan for protect taxpayer rights under pre-system of taxation reconsideration in our country. After observed and the analysis on the problems of China's pre-system of taxation reconsideration, it should be take some certain measures. The author has put forward a sound specific plan for the protection of taxpayer rights. Firstly, improve legislation of taxpayer rights. The tax revenue is source of all kinds of government affairs; China should take the rights of the taxpayer into the Constitution to make special provisions and supplements, to enhance the legal status of the taxpayer, and concrete taxpayer rights in the Constitution. Transforms the legal right into the realistic right, and enable taxpayer to have an actual operation immediately. Secondly, tentative plan of realize our taxpayer rights. Recommendations to amend rule 88 of The Tax Collection and Administration Law and cancel duel pre-system of taxation reconsideration. The protection of fundamental rights of the taxpayer should not just stay at abstract and empty legal provisions. Review procedure should increase the proportion of openness and legitimacy. Ensure the taxpayer procedural rights in order to protect the relative rights of taxpayer to achieve substantial rights. At the same time, we must increase the fundamental rights of taxpayer, forms the universal consciousness of taxpayer right, adjust concept of tax law enforcement. Thirdly is specific perfecting of pre-system of taxation reconsideration. The relate department should correctly positioned functions of our pre-system of taxation reconsideration. Reconsideration should be transfer the focus from internal oversight function to the function of relief. Sets up independent wield power committee of pre-system of taxation reconsideration, construct pre-system of taxation reconsideration with taxation expertise characteristics area, equipped with full-time tax officers of pre-system of taxation reconsideration department to ensure fair and impartial trial review cases, introduce of simple, flexible and informal hearing procedures, collegiate approach to the trial, carrying out the sunshine review, in order to carry out pre-system of taxation reconsideration function effectively and smoothly.