Research On The Practical Issues Involvedin The Taxation Administrative Penalty

The taxation administrative penalty is the regular work of tax departments, an important means to punish any violation of tax law, an effective guarantee for implementation of the tax law, and plays an important role in maintaining the normal order of taxation. The taxation by law is the lifeline of tax, the inevitable requirement to regulate tax punishment behavior and to further strengthen the taxation by law, an effective way to prevent the tax law enforcement risk, and also conducive to the protection of the rights of taxpayers. Continuing to strengthen theory research on the tax administrative penalty and realizing the scientificness and the rule of law in tax administrative penalty is of great significance to accelerate the pace of the taxation by law. This paper combines both the legislation theory and interpretation theory, starts from the basic theory of taxation administrative punishment, combines the cases in the practice, analyzes the status quo of the tax administrative penalty and the existing problems from the perspective of legislation and enforcement, and proposes the counter measures for the regulation of the tax administrative penalty in combination with the actual taxation work.In addition to the introduction, this paper is composed of three parts, about 20.000 in total.Part One researches the concept and characteristics of the taxation administrative penalty. Firstly, defines the concept of the taxation administrative penalty. implementation bodies of the main taxation administrative penalty are the taxation authorities at all levels; the objects are the interested parties of the taxation administration, either the tax payers or the non taxation subjects and the banks and financial institutions also constitute the assistance obligation subject; and the nature is the administrative sanction on the taxation violations. The taxation administrative penalty is characterized with the specificness of the subjects, the extensiveness of the penalty object and the fixedness of the penalty form. Article 14 of the Rules for Taxation Administrative Reconsideration contains only three kinds of the taxation administrative penalties, including fine, confiscation of illegal income and stopping the export tax rebate right and the author also makes and also makes detailed analysis on whether other administrative measures belong to the administrative penalty.The administrative penalty notification must be consistent with the penalty subject; upon the notification of the penalty under the prerequisite of no addition of new violation facts, reasons and bases, it is no need to reduce the penalty and the special circumstance of aggravation or addition of penalty items requires to be notified again. As for the principle of no re-punishment on one incident, this part elaborates “how to define the same violation”, how to determine “one issue” and the application principle. Finally, this part researches the penalty must be involved in remedy, analyzes the preposition of reconsideration system, which has many problems, for example, it plugs the last way for the taxpayers to exercise the remedy right, and therefore it is the tendency to conceal the preposition of reconsideration system for the amendment to the collection law. Part Two analyzes the existing problems at the current stage in the taxation administrative penalty from the perspective of legislation and law enforcement. In the legislation level, the tax collection law and the law of administrative compulsory law are inconsistent in the provisions in the nature of seizure, distrainment and freezing as well as the duration, the making of compulsory enforcement decision and the upper limit of overdue payment and the system and relevant provisions in the foreign countries and Taiwan region on the taxation administrative penalty plays the reference role; the taxation collection administration law is required to have connection with the amendment to the criminal law(VII) in the amendment of the crime of evading taxes to the crime of evading payment of taxes, responsibility exemption in case of paying overdue tax and case transfer. In the law enforcement level, this paper researches the understanding on being ordered to correct within a prescribed time limit, the taxation administrative penalty, notification procedure and the principle of no re-punishment on one incident, the understanding controversies in these aspects and the administrative penalty work long confused the tax law enforcement personnel. Then this part comes to the conclusion that being ordered to correct within a prescribed time limit is neither administrative penalty nor the necessary preposition procedure of the administrative penalty.Part Three proposes the counter measures for the regulation of the taxation administrative penalty. The first is to regulate the system for the taxation administrative penalty, enhance the judicial degree thereof, refine and improve the hearing system, improve the taxation evidence system and establish the overseeing system of the taxation administrative penalty. The second is to earnestly improve the quality of the law enforcement personnel. The third is to regulate the discretionary power in the taxation administrative penalty. This part proposes to construct the regulation of the discretionary power in the taxation administrative penalty by detailing the benchmark system of the discretionary power, establishing the case system of the taxation administrative penalty and researching the management system for the discretionary power. The fourth is to further protect the legitimate rights and interests of the taxpayers.