The Legal Prevention And Control Of The Enforcement Risks Of Tax Audit

In recent years, with the Administrative Review Law, the Administrative Procedure Law, the State Compensation Law, the new collection law and its implementation details such as the further implementation of various laws and regulations, social and legal system, the degree of the continuous improvement, the taxpayer's rights protection awareness and legal awareness of significant enhanced, objectively speaking, the tax authorities, especially law enforcement inspection department has put forward higher requirements. Nevertheless, under the influence of various factors, the tax inspection of law enforcement in an objective implies a greater law enforcement risks, the performance of law enforcement violations of law enforcement for law enforcement officers continue to increase, the tax authorities lost because of administrative litigation, administrative compensation and loss of revenue due to the country have been held and the administrative, legal responsibilities, which greatly affected the auditing department of law enforcement authority and social image. Social and legal process, and the practical needs of administering the tax inspection department and law enforcement officers to effectively enhance the tax inspection of law enforcement risk awareness, and from the theory and practice of tax inspectors and law enforcement personnel to seriously study and prevent the risk of inspection of law enforcement made an urgent requirement.However, with regard to the risk of the tax inspection of law enforcement issues, current theories, industry and tax practitioners still attach great importance to the risk of tax audit study of law enforcement have not yet precisely defined, urgent need to build basic theory. In this paper, risk and risk management, the basic theory start with the risk of tax audit commenced discussion of law enforcement. Full text of three parts: First, the tax inspection of law enforcement risk prevention and control of the basic theory of law; 2, the tax inspection status of law enforcement risk analysis; 3, the tax inspection law enforcement risk prevention and control measures.The first chapter of tax audit risk law enforcement prevention and control of the basic theory.From risk and risk management start with the basic theory, defining risk, risk management, tax inspection of law enforcement concept of risk. In my opinion, the risk of loss of rights or obligations assumed by the possibility of the tax inspection of law enforcement risk refers to the tax inspection authorities and tax inspectors in the inspection of law enforcement process, the result of misconduct by law enforcement the right to assume the possibility of loss or obligation. Ji Zhi loss of power by law enforcement power of tax inspectors the power of the invisible image, dignity and power loss caused by the exercise of undue power to size, degree of loss, loss of profits mainly for economic compensation, etc.; obligation to assume accountability for the performance of legal sanctions, accountability for the performance of civil liability, administrative accountability, criminal, constitutional accountability, and legal sanctions for the performance of civil sanctions, criminal sanctions, administrative sanctions, and sanctions unconstitutional. On this basis, in-depth analysis of the risk characteristics of the tax inspection of law enforcement, types; the same time, defining the risk of tax audit law enforcement concept of prevention and control, in-depth analysis of the tax audit risk of the law enforcement and the need for prevention and control of practical significance.The second chapter is a tax inspection of law enforcement risk and genetic analysis of the status quo. This is the main part of the paper.Section I is a tax audit risk Analysis of law enforcement. Primarily a matter of risk analysis in the prevention and control issues, in tax inspection of law enforcement, all of the risks posed by the risk of mesh body, mainly caused by the exercise of discretion by the tax inspection of law enforcement risk; tax law arising from the inspection of law enforcement procedures enforcement of the tax audit risk; the implementation of substantive tax law enforcement caused by the tax audit risk. In which the exercise of discretion was a direct incentive, the program violations of the law is the key, substantive issue is the nature of. These three main issues, in tax inspection of law enforcement, or repeat the run, or cross-cutting operation, eventually leading to loss of rights or obligations assumed by the possibility of the formation from the point to the risk of surface to body mesh body, the volume of the adverse consequences arise large and wide, must be highly valued.Section II of the Tax Audit Risk Analysis of law enforcement. Tax Audit presented in law enforcement out of these three major appearance problems, go back further, it should be the first step that causes the most origin of law enforcement risk factors analysis, to identify and measure, to take reasonable means to achieve positive prevention and control in advance in order to to reduce the likelihood of ex post relief. Specifically, the tax inspection of law enforcement in China are the main reasons the risk of social environment, the rule of law and institutions, personnel, supervision system, information technology five factors. Of which: Social environmental factors is the basic factor, the rule of law and institutional factors are the root causes of factors, human factors are the key factor, factor is protection factor surveillance system, and information factors are contributing factors. These factors, cross-linking, it would produce a corresponding risk of inspection of law enforcement bodies, the lack of advance prevention and control of risks arising from physical, but also in the prevention and control, and something less than the risks arising from physical cross-linking, the inspection body of the volume of law enforcement risk The large and broad, immeasurable, which would greatly reduce the tax authorities, law, national dignity and image of our economic development, there will be significant lag. In this paper, jurisprudence, through an analysis of theoretical analysis and practical combination of law enforcement risk of tax audit causes of theoretical and empirical analysis.Social environment factors are the underlying factor. Focused on analysis of government intervention in the tax inspection of law enforcement, the external powers and functions related to the tax department can not effectively meet the inspection of law enforcement in two ways.The rule of law and institutional factors are the root causes of factors.First analyzes the major shortcomings of the legal system of China's tax audit. China's 94 years since the land tax system, divided the country since the risk of adverse effects on the highlighted dramatically in recent years, mainly because of China's tax laws and regulations in the construction and inspection organization-building is not yet fully aware of the risks, there is no risk in advance is a matter , the ex post effective prevention and control, leading to the lagging nature of the legal, risk-prone, the risk of body size is too large or too broad an error arising from one of today's "privilege", "rule of man" thinking, therefore, should be correct, profound analysis of the rule of law and institutional shortcomings, so that a correct understanding of risk, to advance, things in the whole process after the prevention and control, get rid of erroneous ideas and knowledge. Mainly manifested in the following aspects: 1. The legal status of the tax audit is too low. 2. The exercise of discretion lack of a unified, standardized constraints.Second, analysis of the main shortcomings of China's tax audit system. Focuses on task-based inspection of income management, tax inspection bodies and the tax collection agency decentralization and coordination of the tax inspection agency set up these three main aspects.Human factors is a key factor. Mainly analyzes the quality of the tax inspectors in legal ethics and professional quality, several aspects of a serious shortage of staff. Monitoring system is to protect elements of factors. Under the current tax law and system audit, tax, audit of internal oversight of law enforcement is still quite weak. Tax Audit although the external oversight of law enforcement can play a certain role, but the main is that "the incident" in processing, prior, things are mostly a formality in supervision.Information factors are contributing factors. The outstanding question is: inspectors, computer applications are not high, the full sharing of information network construction to be achieved and strengthened, the relative lack of information professionals.Chapter III is a tax inspection law enforcement risk prevention and control measures.Under the Inland Revenue inspection of law enforcement status and causes of risk analysis, I believe that, based on a correct understanding of risk and try to improve the legal system, tax audit, improve the tax inspection of law enforcement supervision and control mechanism, based on a sound security system, tax audit, proper risk The pre-effective prevention and control, risk the appearance of things in the stage show a reasonable expectation of sexual issues, while effective advance, something in after the prevention and control. The risk of the tax audit by the law enforcement prevention and control, effectively reducing the risk of body size in each of the points, the risk of the whole body of law-enforcement inspection volume contraction to minimize the risk of the tax inspection of law enforcement the potential loss of rights and obligations of commitment control to a minimum degree of both possible and necessary. Therefore, based on the current situation and causes of risk analysis, inspection of law enforcement risk through the tax laws of prevention and control, to conduct tax audit of law enforcement risk management, inspection of law enforcement risk through beforehand, something in the reasonable expectation of ex post facto, will effectively control the tax the risk of adverse consequences of the law enforcement inspection occurs, abandon the people's hearts "privilege", "rule of man" erroneous ideas, through the inspection tax environment of law enforcement to maintain order and prevent tax loss, the socio-economic regulation and control, maintaining the tax authorities, law, the country's image and dignity.Tax Audit Section is to improve the legal system. In my opinion, drawing on Western experience of developed countries, China's legal system of taxation should be at least "tax the Basic Law," "Tax Procedure Act" and the "Organic Law of the tax authorities", otherwise, for the tax inspectors and even the entire tax collection system is concerned, is the most fundamental legal deficiencies. In the above various measures to improve the legal system of taxation based on the constitutionality of the possibility should be considered. The risk of tax audit law enforcement prevention and control, at least do the following five aspects of work.The first is to develop "Tax Basic Law." Enhance the legal status of the tax inspection agencies to strengthen enforcement of the tax inspection authority, the statutory external relevant departments and the parties would support obligations, statutory tax collection and investigation of the powers, duties and collaboration, constraining relations, effective control of law enforcement internal audit, external risks the occurrence of adverse effects, reduce the risk of the tax inspection of law enforcement bodies, tax collection and the risk of physical, external risks of cross-combination of body size, and thus reduce the risk of the whole body of the volume of tax revenue, and ultimately achieving the risk of law enforcement prevention and control inspection purposes.The author believes that the status of the tax audit should be added to one thing: tax inspectors through the inspection of law enforcement to safeguard the dignity of law; tax audit functions should be as follows: the dignity of the functions, revenue functions, disciplinary functions, monitoring functions, educational functions.The second is to develop "Tax Procedure Act." China's program of legal construction, should be the existing "Tax Collection and Management Law" and its implementing regulations are "tax the Basic Law," the contents of the stripping out the existing procedural rules of law based on the deletions, improve, develop "Tax Procedure Act."(I) the inspection of law enforcement of statutory rules of procedure of the various components: the establishment of procedures links of the overall rules of procedure, the establishment of a specific part of the program rules of procedure.(II) the exercise of discretion control the rules of procedure.(III) External relevant departments, related-party assistance, with the tax inspection of law enforcement rules of procedure.(IV) monitor the rules of procedure. Rules of procedure is divided into internal control and external monitoring of rules of procedure.(V) Tax collection and management of collaborative search constrained rules of procedure. Revenue can be divided into special inspection rules of procedure, routine inspections of rules of procedure.(VI) to review the legality of normative documents and conflict resolution rules of procedure(VII) the powers and responsibilities symmetry rules of procedure.1. according to various types of risks should bear the legal liability, sanctions, such as civil liability, administrative liability, criminal, constitutional responsibility, and civil sanctions, criminal sanctions, administrative sanctions and unconstitutional sanctions to step up legislative reform, improve the power and responsibility symmetry rules of procedure. In our Constitution, under the premise of continuous improvement, set the corresponding constitutional responsibilities, unconstitutional sanctions.2. according to the tax inspection agency set up, inspectors check the coverage of the characteristics of the network-sharing mechanisms in the establishment of anonymous reporting under the premise of the tax inspection to accept the relevant departments, the majority of the taxpayer's social supervision, should re-post of heavy responsibility in accordance with the principles involved should be exposure to civil, criminal, and other responsibilities, sanctions, in accordance with his powers, duties size, depending on various circumstances, and should be a corresponding responsibility and sanctions. If related to taxes levied for both sides, within the relevant tax authorities responsible, in line with the composition of the common criminal element should be the common types of crime, the circumstances, be the corresponding responsibility, sanctions.The third is to develop, "the Organic Law of the tax authorities." Should be designed to fully research and science, based on a reasonable setting up a tax inspection bodies, bodies layout, scale and the relationship between agencies and working procedures, staffing, basic working system, the basic rules of liability to avoid enforcement of the tax audit, tax Inspection bodies chaotic layout, scale properly, the number of personnel unreasonable and relatively low quality of personnel led to the adverse consequences of the risk of inspection of law enforcement. Tax audit for the current outstanding problems in practice, this article that "the Organic Law of the tax authorities" should focus on resolving the following tax audit issues.(I) a clear law enforcement-based inspection management thinking.(II) a clear integration of the tax inspection, reasonable to set the tax inspection agency.To achieve integration of the tax audit, reasonable to set a unified, vertical management of tax audit institutions, the establishment of the State Administration of Taxation Inspection Bureau, the Provincial Tax Audit Bureau, the Provincial Criminal Investigation Bureau, "an inspector" organs. The tax system, the implementation of such a collection, check the independent audit phase separation system, to facilitate the tax inspection authorities to carry out the tax Commission investigation, to avoid duplication of inspection under the old system, the disadvantages of reducing the burden on taxpayers to achieve tax audit specialization, standardization, and the promotion of the tax inspection to further improve the efficiency of law enforcement; the formation of the tax inspection of law enforcement work together as a whole, increase inspection efforts, easy to remove all obstacles and factors that promote the improvement of law enforcement authority.Creation of specialized Provincial Criminal Investigation Bureau, directly from the State Administration of Taxation Inspection Board's management, but also the purposes of the State Administration of Taxation and the State Administration of Taxation Inspection Bureau of dual leadership will ensure the adequacy of the exercise of power and authority to prevent all kinds of human factors, to maintain the image and dignity of the law, safeguard the country's image and dignity.(III) a tax inspection authorities a reasonable layout, scale.1. The layout of the tax inspection authorities should work with the layout of the tax collection authorities rather, parallel, side by side set up.2. According to the severity of the loss of existing tax revenue, clearly the size of the tax inspection authorities should be roughly equivalent to the tax collection authority in parallel one-fifth to one quarter the size.3. Explicit tax audit authorities across sectors inside the settings.(IV) expressly provide that tax inspection agency staffing standards.Tax inspectors clear idea to protect agency personnel to configure, access, standards, training standards, grading standards, quantity standards, specifically the tax inspection agency personnel to configure the corresponding powers, duties, term limits, and working-level and so on.Fourth, the formulation of "tax auditing work regulations." By the State Department in the form of administrative regulations to develop, "Tax Audit Work", up one level to "tax auditing work order" based on relevant content, according to "tax the Basic Law," "Organic Law of the tax authorities," "Tax Procedure Law "be amended, supplemented and improved on specific practical work such as tax auditing organization established bodies of work within and outside the convergence and transformation, working procedures, staffing, basic working system, and legal responsibilities specific to perfect the rules and norms. I focus on tax inspection agency staffing standards to supplement and complete.Fifth, is to improve the "tax auditing work order." Owned by the State Administration of Taxation Inspection Board in the original "tax auditing work order" basis, after extensive research, demonstration, and set forth a complete, standardized, detailed changes to plans by the State Administration of Taxation Inspection Board plans based on the approval according to law, enactment. Tax auditing work procedures should at least include: audit case selection procedures, the implementation of inspection procedures, inspection procedures the trial (audit trial statute of the Commission), checking the implementation of protocols, document management procedures, institutions and other major issues of resolution, a point of order.Tax Audit Section is to improve the supervision mechanism of law enforcement. Enforcement of tax inspectors to conduct a comprehensive, full supervision can be obtained from the following aspects: accountability system, strict law enforcement, science and case selection system, the rules of evidence system, the case to the system, case-referee system, inspectors and law enforcement indicators of performance appraisal system, the instrument making process external supervision and control mechanisms related sectors. In which the judiciary supervision mechanisms, based on risk should bear civil liability, administrative responsibility, criminal, constitutional responsibility, and civil sanctions, criminal sanctions, administrative sanctions and unconstitutional sanctions to step up on the basis of legislative reform, improve the judiciary's supervisory mechanism. In our Constitution, under the premise of continuous improvement, set the corresponding constitutional responsibilities, unconstitutional sanctions. The network-sharing mechanisms in the establishment of anonymous reporting under the premise of the tax authorities to accept the relevant departments, the majority of the taxpayer's social supervision, involving more than should bear legal liability, sanctions, according to various circumstances, and should be a corresponding responsibility and sanctions. If related to taxes levied for both sides, within the relevant tax authorities responsible, in line with the composition of the common criminal element should be the common types of crime, the circumstances, be the corresponding sanctions.Tax Audit Section is sound law enforcement security system. The author believes that the external audit to strengthen tax enforcement information, internal network information to establish a sound mechanism, the risk of ring sizes can be from outside to inside and then be compressed, the risk of ring size compressed to minimize the risk of prevention and control of the inspection of law enforcement to the minimum . The risk of law enforcement for the tax audit of the prevention and control measures to be effective supplement can effectively compensate for the risk of law enforcement prevention and control of the tax audit of the lack of effective promotion of the tax audit of law enforcement risk management efficiency.