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Research On Appealing Existing Tax Administrative Reconsideration

Posted on:2011-04-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiuFull Text:PDF
GTID:2166360332456838Subject:Law
Abstract/Summary:PDF Full Text Request
There are two arguable issues about the scope and the conditions of appealing existing tax administrative reconsideration. First, it is about whether abstract administrative action could be bought directly into the scope of such? Secondly, it is about whether it is reasonable to set obligation to pay tax as a statutory precondition to appeal? Regretfully, these two issues which perplex research scholars in related fields in the past a few years have not been solved satisfactorily up to now even after the newly-revised Administrative Reconsideration Rules for Taxation which was enforced since 1st April, 2010.The primary purpose of establishing tax administrative reconsideration system is to regulate and guarantee the performance of functions by tax agencies, to target unlawful or unreasonable administrative actions in order to protect the legitimate rights and interests of taxpayers. The administrative reconsideration issues are taken upon application only, handling by the tax administrative reconsideration agency when any citizens, legal person or other institutions, especially taxpayers, consider that any administrative actions of the taxation agency infringe upon their legitimate rights and interests. Thus they apply for administrative reconsideration to the taxation agency, requesting to review the legality or the rationality of previous administrative actions. Therefore, in order to achieve the primary goal of setting up tax administrative reconsideration system, it must make sure taxpayers would be able to start the reconsideration procedure. However, the obligation to pay tax as a statutory precondition of tax administrative reconsideration, which is stipulated by the Law of the People's Republic of China on the Administration of Tax Collection and by Administrative Reconsideration Rules for Taxation, limit taxpayers'rights for seeking administrative remedy. Such an obligation evidently increases the cost and consequently makes it harder for taxpayers to start the reconsideration procedure.It seems to be a legislative trend that these unreasonable preconditions should be canceled, and the scope of reviewing tax administrative actions should be enlarged intensively. Then it can provide taxpayers much more effective measures to protect their own rights. In fact, in many developed countries like the U.S and France, abstract administrative actions have been brought conditionally into the scope of appealing the existing tax administrative files. On the contrary, due to rather late introduction of tax administrative reconsideration and the dominant concept of"striving to ensure public authority"in China, this issue remains unsolved and there are always ongoing debates arguing for the standpoint"public authority gets uppermost, efficiency gets priority". In spite that Administrative Reconsideration Rules for Taxation has been revised and reformed intensely for three times, any explicit instructions addressing to the above mentioned problems has not been provided yet. Therefore, studying the two issues listed in the beginning will be of great significance legally and practically, as it helps improving our tax law system and gives me a chance to make contributions by putting forward some humble opinions on further protecting taxpayers'rights as well.Comparative analysis method and practical survey method are adopted for researching and discussing issues involved in the theme of this article, which is composed of the introduction, the discussion and the conclusion.As a starting point for subsequent argumentation, the introduction looks into the development history of current rules for tax administrative reconsideration and current situation of procedures for tax administrative remedies. It states briefly inadequacy consisting in the scope and the conditions of accepting cases of tax administrative reconsideration ruled by the new Rules for Tax Administrative Reconsideration. It also shows clearly that the reform on tax administrative reconsideration is not complete and it is left far behind our legal and social development.The discussion part analyzes the research status of the problem in the learning circle and tax authorities in China's big cities. It further indicates the author's opinion and demonstrates its academic value of this article. This part could be subdivided into three parts:The first part starts with the reforms and the development of Tax administrative reconsideration work more than a decade, and analyses emphatically the roots of scope and conditions of accepting cases of tax administrative reconsideration, then poses some problems still existed.The second part demonstrates the feasibility and necessity of the article through method of comparative analysis, combining with my survey results through practical work environment. It observes the development of related reconsideration system abroad, probes the legislative practice of other Chinese administrative departments, and then sums up with helpful inspiration improving our tax administrative reconsideration system. It introduces both positive and negative aspects of"whether to annul or to set up", and meanwhile it accomplishes refutation, reveals the insight of this article: Why tax authorities are consistent with the requirement to investigate directly abstract administrative actions? Why tax authorities are eager to abolish statutory precondition of tax administrative reconsideration.The third part analyzes issues of accepting cases of tax administrative lawsuit which is closely related to tax administrative reconsideration, also combining with data from actual survey and relevant legal provisions. It analyses and evaluates their link-up both on the entity and the procedure by a demonstration measure.In the conclusion part, it points out the trend of reforming remedy procedures for tax administrative reconsideration, and draws the conclusion that it should enlarge the scope of accepting cases, for instance, abstract administrative action could be bought directly into the scope of accepting cases of tax administrative reconsideration, and statutory preconditions of tax administrative reconsideration should be abolished.
Keywords/Search Tags:Administrative Reconsideration Rules for Taxation, Abstract Administrative Actions, Statutory Preconditions of Tax Administrative Reconsideration
PDF Full Text Request
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