The Study On The System Improvement Of China Retroactivity Tax Law

Article 93 of the Legislation Law,Article 13 and 14 of the Administrative Measures for the Formulation of Tax Normative Documents,and Article 5 of the Measures for the Formulation and Implementation of Tax Regulations are the bases for the legislation and application of tax retroactivity in our country.The principle of tax law is not retroactive,and the retroactive law is the exception.However,the tax law not only stipulates the rights and obligations of the tax administration and taxpayers,but also undertakes the role of coordinating the operation of the macro economy and social stability.The principle of retroactivity of the tax law mentioned above do not provide clear behavioral guidance for legislation,law enforcement and judicial practice.In the legislation,a large number of tax regulatory documents will make retroactive provisions with or without authorization;In the course of law enforcement,the tax administrative authority has the discretion to determine retroactive taxation or late fees based on the understanding of tax laws,regulations and normative documents;Judicial organs respect the judgment of tax administrative organs,and rarely respond positively to the legality of tax retroactivity and application,and do not conduct judicial review on the normative documents of tax under the rules.Therefore,it is necessary to make a system design for the specific principles and rules of the retroactive application of the tax law,so as to realize the laws in the whole process of tax legislation,law enforcement and judicature.The first chapter introduces the meaning and reasons of the retroactivity of tax law,pointing out that there is not only the alternation of old and new tax laws,but also the characteristics of tax law itself.Secondly,this paper analyzes the logical framework of the retroactivity of the tax law from the perspective of the comparison between the retroactivity of the tax law and that of other department laws.With the principle of not retroactive in the tax law,the retroactive in favor of taxpayers is an exception,and the retroactive in favor of taxpayers is also an exception under certain circumstances.The rationality of the retroactivity of the tax law demonstrates that whether the tax law is retroactive or not has equal attention value.Chapter two studies the legislative and judicial status quo of the retroactive effect of tax law in China.Firstly,according to the types of retroactive tax law,this paper summarizes the embodiment of the tax law in China,and studies the legal effect and existing problems of retroactive tax law.The provisions that do not retroactively are not necessarily beneficial to taxpayers,while a large number of retroactive provisions of the tax law exist in the tax regulatory documents,and there are problems such as lack of legitimacy basis,lack of standards for retroactive years,and unclear specific provisions.Secondly,the paper summarizes the thinking and basic standpoint of the retroactive application of tax law in China’s judicial practice.There are different understandings on the retroactivity of tax law in judicial practice,and there is no precedent on the application of retroactive tax law.The third chapter expounds the practical experience of the retroactive effect of European Union’s tax law and the United States’ tax law.The judicial review of the interests of the measure of the factors and test methods are relatively complete,for the design of China’s system to provide ideas and ways.However,it should also be noted that in the absence of legal norms for the retroactivity of tax laws in the European Union and the United States,the precedent-following review raises questions about the fairness and objectivity of judgments.Chapter four puts forward the improvement of the retroactive system of our tax law.First of all,the principle orientation and rule standard of the retroactivity of the tax law should be clarified.The retroactivity of tax law should be regarded as a principle of tax legislation,which should be emphasized in parallel with the statutory principle of tax revenue and the principle of material taxation,rather than under a certain principle.It can be affirmed by tax constitution system or taxpayer right protection law.Secondly,under the guidance of principles,we draw lessons from the European Union and the United States to determine whether the tax law is retroactive or not.Lastly,this paper mainly puts forward specific measures to improve the legislation,law enforcement and judicial coordination and supervision.