Research On The System Of Bankruptcy Application Right For Tax Authority

The inspiration of this article comes from the cases of Wenzhou taxation bureau applying for bankruptcy,the theory of Tax Debt Relation and the historical background of tax Law making reference to private law.Where an enterprise legal person who has not entered the bankrupt proceeding fails to clear off its tax debt as due,for guaranteeing the tax revenue of the State,the tax authority may file an application with the people's court for bankruptcy,under the circumstances of exhausting its administrative penalty of taxation,tax preservation and taxation execution.The right of bankruptcy application for tax authority is a kind of tax preservation with both characteristics in public and private law,and it has its Legality,Rationality and Necessity.We ought to view the proportionality principle as guiding principle in constructing bankruptcy application system for tax authority.The excessive intervention to private subject is not allowed.The performance of the right of bankruptcy application for tax authority should find a balance between guaranteeing the tax revenue of the State and protecting the legitimate rights and interests of taxpayers.This article suggests that Tax Law should make reference to private law on the right of bankruptcy application by Legislation Method of Guiding.Making clear definition of the right of bankruptcy application for tax authority in Tax Collection and Administration Law as follows:"Where an enterprise legal person causes any loss to the State taxation due to his fails to clear off its tax debt as due,the tax authority may exercise its rights of bankruptcy application in accordance with the provisions in Article 7 Paragraph 2 of the Enterprise Bankruptcy Law".Taxation subrogation right and taxation rescission right,which made reference to Contract Law,also used the legislation method of Guiding.This article thinks that we are supposed to draw experiences and lessons from the constructing taxation subrogation right.Besides making clear definition of the right of bankruptcy application for tax authority in Tax Collection and Administration Law,we should enact supporting measures in bankruptcy application system for tax authority,including issuing judicial interpretation of bankruptcy application for tax authority,changing the concept of taxation enforcement,improving tax officials'skills and the construction of tax information system.The performance of the right of bankruptcy application for tax authority cannot just according to the Enterprise Bankruptcy Law and its judicial interpretation.This article did some research by problem orientation on components,eligibility of the subject,tax debt's contents,procedural restrictions and jurisdiction of the right of bankruptcy application for tax authority and the connections between taxation execution procedures and bankruptcy procedures.