Research On The System Of Rescission Right Of Tax In China

Tax, an important source of the financial revenue of the State, has vital bearing on national economy and people’s livelihood. As one of tax claims preserve systems, the system of rescission right of tax is a new system which appears with the development of socialist market economy, it is also an important system to guarantee the tax revenue of the State and safeguard the legitimate rights and public interests of the taxpayers.The rescission right of tax arises from the rescission right in obligation law of civil law. The Law of the People’s Republic of China Concerning the Administration of Tax Collection which was amended in2001firstly introduced the concept of rescission right of tax and established the system of rescission right of tax. The establishment of the system of rescission right of tax not only effectively prevents the taxpayer from hiding or transferring his properties, intentionally evading his tax debts; but also extends the effectiveness of the tax debts to a third person and invalidates the illegal actions of property disposition which are took by the taxpayer with tax debts and the third person, and ultimately guarantees the tax revenue of the State.Because the behavior of taxpayer with tax debts abusing the right of property disposition does harm to the tax revenue of the State, law gives the rescission right of tax to tax authorities by submitting the request to the court. The right combines tax law theory with obligation law theory, so it mainly has statutory nature, subsidiary nature, and unilateral nature. Scholars from various countries have different opinions in the nature of legal relationship of taxation; this paper is for tax debt doctrine which advocates legal relationship of taxation is a relationship of claims and liabilities in public law. The rescission right of tax not only has the essence of formation right in obligation law, but also has the characteristics of litigation rights in procedure law, so it is a right of formation suit in nature.The regulations of the current tax law about the established elements of rescission right of tax, the exercise conditions, scopes and effects are too simple, which causes that the tax authorities are short of specific legal basis to use rescission right of tax and weighs against the legitimate rights and interests of the State and taxpayers, so it is necessary for us to refine and interpret the relevant provisions. When the tax claims have happened and been identified, taxpayer with tax debts has reduced his properties, the former behavior of taxpayer has done harm to the tax claims of the State and the third person has illegal purposes when he has transactions with taxpayer, tax authorities can exercise the rescission right of tax. Besides, the subject and object of the right should comply with the law and the right has to subject to the restrictions of time and pre-program. The range of the right must limit to tax claims of the State and the exercise effect mainly has an impact on taxpayers, tax authorities and the third person.Although the system of rescission right of tax was established in our country, it was minimally effective because of the immature legislations in taxation and the problems in practice. There are many immature legislative regulations in the system of rescission right of tax such as no clear definition for the constituent elements of rescission right of tax, narrow scope of rescission right of tax, undefined time limit of the right, the lack of the system of second obligation of tax, imperfect mechanism of litigation of rescission right of tax, poor operating conditions for performing the right and so on. These problems impede the effective implementation of the system of rescission right of tax.Maximizing the value and utility of the system of rescission right of tax is considered in this paper. In respect of legislation, the paper improves the subjective and objective elements of the rescission right of tax, expands the objective range of the object to the behavior of a taxpayer to reduce properties and increase the burden, expands the objective range to the behavior of a taxpayer reducing his properties and increasing his burden, and establishes general limitation of one year and special limitation of three years or five years in different situations. In respect of practical operation, the paper discusses the idea and the specific methods of operation of the system of second obligation of tax, gives advice on the choice of litigation of rescission right of tax, applicable ways of jurisdiction, establishment of parties’ statuses, distributions of the burden of proof and defenses, the burden of cost in litigation. In respect of social environment, the executive, judiciary, tax officials and taxpayers should strength their legal consciousness, the tax authorities should enhance awareness of tax officials to use the rescission right of tax; tax officials should strengthen the professional knowledge and improve the methods of work so as to improve their quality of exercise; the State should also establish the legal culture atmosphere of independence of the judiciary as a primary premise, justice and fairness as a core and being conducive to the effective implementation of the rescission right of tax.