The Construction Of Tax Advance Ruling System Of China

The tax advance ruling is a system in which the taxpayer makes a request on how to apply and interpret the tax law for the current or future transactions,and the tax authorities make a binding decision document.According to Comparative Information in OECD and Other Advance and Emerging Economics published by the OECD organization in 2017,the tax advance ruling system is an important reference to measure whether a country's tax system is advanced or not and to judge the level of protection of taxpayers' rights.Among the 55 countries or regions surveyed by the OECD,53 respondents have established the system,which is not included China,but Chinese scholars claim that the system exists in China.In 2015,China first attempted to introduce the tax advance ruling in the Draft Amendment of Tax Administration Law,but deleted the relevant provisions in the final draft.At the same time,the local tax authorities began to explore the system of tax advance ruling more and more.This contradiction has aroused attention and discussion among scholars.Since then,there have been many achievements in the exploration of this system in China,but the fruitfulness of the results does not represent the maturity of the research.So far,there are still great controversies about the basic issues of the concept,nature and effectiveness and other questions.In this regard,this paper will analyze the existing stage of the system in China,demonstrate the necessity of establishing the system,compare countries' experiences and put forward suggestions for localization measures.This paper is divided into three parts:The first part is about the theoretical overview of the tax advance ruling system in China.Firstly,it demonstrates the scope of tax advance ruling system discussed by Chinese scholars,contrasting with the scope of private adjudication abroad and excluding public adjudication from the establishment of the system.At the same time,it is analyzed that the system does exist in our country,but it is still in the embryonic stage of the system which is not systematic.Secondly,from the perspective of system basis and practice,this paper introduces the current situation and problems of tax pre-judgment system in China.At the level of institutional basis,this paper studies the institutional basis for the prior decision of tax authorities in China,which includes contract and normative documents,and divides them into contract normative model and legislative normative model.At the same time,it finds that there are two major problems: the lack of legislative normative model at the central level,the imbalance of legislative normative model and contract normative model at the local level.At the practical level,through summarizing and studying some cases of tax advance ruling made by tax authorities in China,it is found that there are some problems in the implementation of the tax advance ruling system in China,such as ultra vires taxation,active intervention,abuse of the system,disguised preferences and great differences in implementation procedures in different places.Finally,the necessity of establishing the system of tax pre-adjudication in China's tax law is demonstrated from three realistic meanings: rectifying and correcting the chaos,improving the certainty of tax law and promoting the international docking level of tax law.The second part is about the research of the extraterritorial experience of tax ruling.Firstly,from the overall point of view,the overall situation of foreign implementation of the system is introduced.According to OECD's series of reports and other research results on Comparative Information in OECD and Other Advance and Emerging Economics in 2010,2013,2015 and 2017,we can see that: Nowadays,most countries have established this system,adopting three means,namely "judicial mode","quasi-judicial mode" and "administrative mode".According to the difference of the system binding force and domination of each country or region,each country or region can be divided into three levels of development,and presents different system characteristics.Specific differences exist in the implementation of the system,such as the type and effectiveness of the ruling,the time limit of the ruling and whether the fee is charged or not.Secondly,taking six countries of New Zealand,the United States,the United Kingdom,Canada,Australia and Sweden at the first level of development as the research objects,it is found that the advance ruling system of these countries includes name and type,application subject,adjudicating subject,time and scope limitation of adjudicating matters,validity and revocation of adjudication,duration and effective period of adjudication,relief measures of adjudication.The publication of rulings and the charging system,etc.In addition to the common content of these countries' tax advance ruling systems,there are also some special institutional arrangements,such as hiring external resources or outsourcing services,pre-business testing and accelerating processing procedures.Finally,through the analysis of the above results,we can get the following enlightenment for our tax advance ruling system: first,the legislative normative model is the general implementation path;second,the design of the system content is related to the identification of the nature of the system,and through the "tax service" nature of the United States,the "administrative commitment" nature of Germany,and the "pre-verification" nature of Taiwan,China.Thirdly,the content of the system is related to the choice of the country,that is,the design of our system need not limit the superficial practice of foreign experience,but should be based on the selection of a good model and the definition of a good nature,according to the specific situation of our country.The third part refers to Chapter 3 and Chapter 4.It studies the specific construction of the tax pre-judgment system in China,and introduces the specific suggestions in the specific system construction.First,the third chapter introduces a number of issues that have to be resolved before the establishment of the system.The first is the issue of "entry into law" of tax pre-determination,including the definition of "entry into law" and the choice of normative model.That is to say,our tax pre-determination system should follow the normative model of legislation,and adopt the transitional measures at the central and local levels in the current transitional stage,in which the normative model of legislation is the main one and the normative model of contract is the supplementary one.By amending the tax collection and administration law or other forms,we can establish the legal status of tax pre-adjudication at the central level,and provide sufficient legislative basis and adaptable measures for the establishment and improvement of the tax pre-adjudication system in the future.The second problem is the definition of the nature of the tax pre-ruling.The definition of the nature is related to the specific content of the system.Before the construction of the specific system,we should also provide the selection criteria of the nature level for the design of the specific content of the system.This paper points out that the main reason why scholars in our country are disputing the nature of tax pre-determination is that they neglect the characteristics of tax law in the field of area law.The nature of tax pre-determination belongs to the intersection of tax law and administrative law.It is easy to fall into the shackles of the existing classification of tax and administrative acts.Accordingly,this paper argues that pre-judgment has a mixed nature characterized by "interpretation" and "service",and in the field of administrative law regulation,the characteristics of administrative interpretation of tax pre-judgment are more prominent.In the regulation of tax law or economic law,the characteristics of "tax service" of tax pre-judgment are more prominent.The third issue is to analyze the effectiveness of the tax pre-ruling,and to put forward and demonstrate the direct binding effect of the tax pre-ruling on tax authorities and specific taxpayers,as well as the indirect guiding role of the tax pre-ruling on other taxpayers,other administrative organs and judicial organs to a certain extent.However,this function does not belong to the scope of validity when it should be.We should take three measures to limit the indirect guiding role to a reasonable range,namely,prescribing the ways of transformation and uniform standards,defining the criteria for determining evidence by prior ruling,and prohibiting administrative organs or courts from using rulings as basis in their corresponding relations.The fourth problem is the standard of system content selection,which should be divided under the condition of distinguishing priorities.This paper holds that in order to construct the prior determination of taxation,if we need to choose the content,we should improve the certainty of tax law as the fundamental purpose,rely on the protection of taxpayer's rights as the basic principle,and improve the efficiency of tax inspection as the auxiliary standard.The fourth chapter is about the specific construction of the tax pre-judgment system in China.Based on the demonstration and analysis of the full text,this paper gives some suggestions on the construction of the tax pre-judgment system.On the one hand,with regard to the substantive content of prior taxation decisions,firstly,we should choose and refine the main mode,and propose that the main mode of our tax pre-judgment system should choose the administrative mode,and refine it into the tax authorities at or above the provincial level should be responsible for the acceptance and trial.Secondly,the determination scope of tax matters should be limited horizontally and vertically in time.Horizontally,in legislation,the scope of its discretionary matters is limited by the combination of positive and negative provisions.Vertically,the time limit of the application for adjudication is limited to those transactions based on existing facts and laws that have not yet occurred,and should not include transactions that have been completed or that have not yet been completed in accordance with the law.Thirdly,we should differentiate the different situations of the validity of the ruling from two angles: the taxpayer and the taxpayer.Fourthly,the final state of the verdict result must be affirmed under the condition that there are reasonable remedies guaranteed,that is,the effect of non-litigation.On the other hand,referring to the purpose of improving efficiency and avoiding the risk of unfairness,this paper puts forward two kinds of procedural rules: ordinary procedure and expedited procedure.