The Right Of Application For Refund Of Tax Paid Of Taxpayer

In the current Chinese, construction of rule of law has been support among t he people,a concept of tax state has just surfaced. In any case, the tax law has b een more and more attracting people’s attention,which is tied to their own interes ts,whether individuals or entrepreneurs. Improving the expense deduction standar ds,levying real estate tax,or reducing the tax burden of enterprises has been m ade people become aware of the tax law and our daily life more and more cl osely.But as a feudal autocratic country,the concept of national and voluntary c oncept deeply has been rooted in people’s mind,especial in the field of tax law."Constitution of People’s Republic of China”only stipulates that citizens have ob ligation to pay taxes. Although the "Law of the PRC on the Administration of Tax Collection" has made a breakthrough in the protection of the rights of taxpa yers, there are still many deficiencies of the protection of taxpayer right,a typic al example is article 51 of "Law of the PRC on the Administration of Tax Col lection " which the scope of the subject and content of rights still exist uncertaint ies,the right to request the return of the taxpayer. In December 1, 2009, the Stat e Administration of Taxation issued a "Notice of rights and obligations of taxpa yers", will be scattered in the"Law of the PRC on the Administration of Tax C ollection law",clearly indicates that China’s tax refund claims, can be said “a small step on the paper,one leap of the country”, but it is just a collection of the ri ghts of taxpayers, the operation right of claim is still unclear.This paper in the scope of the study divided into four chapters:Chapter one is the legal basis of the right to request the return of tax,whic h elaborated the definition and the theoretical basis of tax refund claim. First of all, determining the concept of tax refund request right,which also known as th e right of tax refund, tax overpaid tax law, the right to request the return of unj ust enrichment claim. The claim of tax refund has general side and narrow side.the general one includes the power of state to request the return and the right t o request the return of taxpayers, the other is the right to request the return oftaxpayers,because of lack of legal cause to the tax authorities to pay taxes.Seco ndly, defining of the nature of the right of tax refund. The scholars of tax law i n china still have differences, some people considers that the right of tax refundis a unjust enrichment of the private law,which others consider a unjust enric hment of the the public law. The different understanding of the nature of clai m right of tax rebates will directly lead to the differences in legislation and theor y, so it is necessary to define.the natures of all various rights and a legal relatio nship which all rights based on are unified.if the legal relationship based on pub lic law, the nature of all rights also are based on public law. as a type of the nature based on the public law,The legal relations of taxation,all rights are ba sed on public law. Therefore, the tax refund shall be based on public law. Thir dly,The causes of the no legal reasons are divided into three types,which is no le gal reason for special reasons. Finally, the unjust enrichment of the public law an d relationship of creditor’s rights debt of tax law to provide theoretical support for the tax refund.Chapter two is the legislation of protection of tax refund in china,which i ncluding the protection of the status quo of the tax system in China and the "Law of the PRC on the Administration of Tax Collection law" article 51 and other relevant laws and regulations.there are a lot of problems,which should to be determined, such as the absence of legislation, the lack of logic of the law system which leads to conflict of laws regulations conflict, the unreasonableof the rule of interest, the uncleanly of refund time limit of the agreement.Chapter three is the comparative study on the legislation protection of taxrefund,to develop future legislation for china,which mainly consisted of stud y on the representative of the United States, Japan and China’s Taiwan region on the taxpayers’ right to request the return of comparative,which have the adv anced experience of legislation.Chapter four is the suggestions of developing future legislation of tax refu nd in china, which in reference to foreign advanced legislative experience and the national conditions of our country.the first is to develop the tax law syste m which should be implement the tax legal principle in the legislation, to ensu re that the rights of the content of specific legislation.the withholding agent sh ould not be the subject of the right of tax refund.This principle should be e xcluded from the third tax as the right to request the return of the main qualif ications, in addition to the original tax heir(the successor, successor and heir) and the division of a company or the newly merged company(the original co mpany does not exist). the interest should not be differ with the subject which found this problem. the interest shall be calculated according to the proportionof actual tax payable tax paid and prepaid. Secondly, to improve the tax relie f system of tax refund, the China’s taxation administrative reconsideration instit utions and organizations should be reconstructed. Final,The most important thi ng is improved taxpayer’s protection consciousness of tax refund by themselve s.The innovations and main points of the paper are followed:1.the withholding agents of tax should not has the right to request the ret urn2.other people principally should not be the subject of tax refund.3.The scope of the calculation of interest depended on the goodwill benefi ciary or the proportion between of the amount of the advance and the actual p ayment.4.The nature of a period time of tax refund should be the extinctive presc ription,which suspended by the condition beyond human control.5.To enhance the independence and impartiality of administrative reconside ration on taxation,which should be reconstructed,at the same time,judges shoul d be trained to improve the ability.6. Providing effective ways To enhance awareness of the right of taxpayer s,such as the education of tax laws begins at school for teenagers.