A Research On Several Issues On The Tax Administrative Coercion

The administrative coercion ensures the realization of the administrative purpose, so it is an important content of the executive authority. The Law on the Management of the Tax Revenue Collection of the People's Republic of China endows the tax authority with the power to exercise the administrative coercion independently. The authority of the tax administrative coercion should be exercised properly, which plays a very important role in strengthening the strictness of law execution in taxation and maintaining the taxation order. As taxation plays an increasingly prominent part in the economical life in our country, the administrative coercion behaviors of the tax authorities are arousing more and more attention of the public; however, the relative theoretical study is not universal and thorough enough. There are many problems with the tax administrative coercion in theory and practice for such reasons as the lack of the guarantee of a perfect law, the over generally-regulated rules, and the imperfection of the collection and management system and the judiciary insurance. The paper attempts to analyze the general theories and defects existing in the tax administrative coercion and discusses how to perfect the system of the tax administrative coercion in our country. Chapter I. An Interpretation of the Tax Administrative Coercion The tax administrative coercion is a basic system in the administrative law. It is a kind of activity, measure and means that the administrative organs or organizations employ to exercise their administrative coercion power directly in the process of exercising the administrative authority in order to achieve the purpose of the administrative management. In the theoretical research on the administrative law, the study on the administrative coercion is moving towards multipolarization and no exact and unified final conclusion has been reached so far. The paper agrees to the opinion that the administrative coercion of China is a general designation of the administrative enforcement and the administrative coercive measure. Based on such a concept, the paper infers the definition of the tax administrative coercion: the tax administrative coercion refers to the tax administrative acts with the coercive measure in the process of the tax administrative management taken by the tax authority in order to realize its tax administrative authority (collection and management). The tax administrative coercion is part of the administrative coercion and belongs to the category of the tax collection guarantee system in the field of the tax revenue. The tax administrative coercion can be divided into the tax administrative coercive measure and the tax administrative enforcement. Both the tax administrative coercion and the tax administrative penalty are the specific administrative acts done by the tax authorities so there are many similarities between them. However, the two behaviors are different in the following four aspects: the foundations, the nature, the principles and the purpose. The tax administrative coercion has the characteristics of concreteness, coerciveness, and dependency. The foundations for the tax administrative coercion can be summarized into two aspects: first, to pay the tax according to law is the obligation of every citizen regulated by the constitution in China. The implementation of the tax administrative coercion must be based on the existence of the legal obligation to pay the tax. Only when the citizen doesn't carry out the legal tax paying duty is the tax administrative coercion implemented. Second, coerciveness is a prominent feature of the collection. The aim to establish such a system is not only to punish those taxpayers who do not carry out the legal tax paying duty, but to make it guarantee for the exercising of the tax collection power and the realization of the tax revenue. Chapter II. An Analysis of the present system of the Tax Administrative Coercion in Our Country The rules on the tax administrative coercion are scattered in some corresponding items of The Law on the Management of the Tax Revenue Collection. The tax administrative coercive measures include the tax preservation system and the tax clearing and exit system. The tax preservation system includes the following parts: to command the tax payer to pay the tax within a period of time, to ask him to offer the tax paying guarantee, to freeze the deposit that amounts to the tax, and to detain or seal up the fortune that amounts to the tax. The tax clearing and exit systemmeans that the litigant who fails to pay tax or offer the guarantee is prevented from leaving the country. The system of the tax administrative coercion includes the direct coercive enforcement and indirect coercive enforcement. The direct coercive enforcement is used to inform the taxpayer's deposit bank or other financial institutions to withhold the tax from his deposits by the written form. It also applies to detain, close up, auction or sell off by law the taxpayer's commodities, goods or other properties whose values amounts to the tax. The indirect coercive enforcement refers to collecting the overdue fine from the taxpayer who fails to pay the tax, so it is of the nature to execute the penalty. At the same time, the paper introduces the premises, the body and the procedure of the tax administrative coercion respectively, and makes a comparison between the tax preservation measures and the coercive enforcement measures. Though the comparison, it is seen that the two are different in four perspectives, that is, the scope of application, the conditions of application, the legal procedure and the execution ordering. A thoughtful system of the tax administrative coercion has not been put forward in our country. There are still some defects in the present system. First, the tax administrative coercion lacks the guarantee of a perfect law, which is mainly shown as follows: the items concerning the tax in the constitution in our country are too simple and general; the rules for the tax paying subjects are too narrow; the l principle of the legal description of the tax collection and the fair principle of tax collection have not been clarified yet; there is no complete system of tax collection law; the tax basic law has not been made yet; the position of the separate tax law is low; the corresponding strictness and authority is far from enough and the implementation is not thorough; the tax legislation lacks the democratic legislation procedure; the judicial guarantee system of the tax civil is not perfected; the judicial saving mechanism of taxation is imperfect; and the judicial protection of taxation is not enough. Second, the complete tax administrative coercion system has not been set up yet in our country, which is mainly presented by the following: the authority of the tax administrative coercion is unclear; the executive means of the tax administrative coercion is incomplete; the procedure ruled by the tax preservation measures is likely todelay the time of preservation; the authority to limit the personal freedom of the taxpayer and the tax paying guarantor is not clarified; the rule for the effectiveness for a given period of time of the tax administrative coercive enforcement not clarified, either. Third, there are problems existing in the process of exercising the tax administrative coercion power, mainly including: the tax administrative coercion is often intervened by the avoidable interference and resistance; it is difficult to carry out the coercive enforcement; the departments do not cooperate with each other well; the improper administrative interference of the local government has bad effect on executing the law on tax; the present means of controlling the tax resource is hard to guarantee the thorough implementation of the coercive enforcement of the tax authority; the quality of the tax law enforcement officials is inconsistent with the requirements of the administrative law execution; the social atmosphere advantageous for the tax law execution is not fostered. Chapter III. The Thought to Perfect the System of the Tax Administrative Coercion in Our Country First, a complete legal ensuring environment must be built. First of all, the rules for the tax revenue in the constitution must be perfected in our country. Item 56 in the present constitution should be amended; the rules for the scope of subjects should be standardized; the principle of the legal description of tax collection and the fair principle of tax collection should be clarified in the constitution. Next, the tax legislation system in our country should be perfected. The democratic participation of the public should be enlarged; the system of legislation advertisement and hearing of witnesses should be carried out, the legislation grade should be upgraded; the present system of hierarchical authorized legislation should be changed; and the legal system of the tax collecting procedure should be perfected, too. Then, the basic law on taxation should be made, including the general principles, the tax revenue administration system, the jurisdiction of the tax revenue, the tax authorities, the taxpayers, the legal responsibility, the supplementary articles and so on. Finally, The Law on the Administrative Coercion should be enacted as soon as possible. Second, the system of the tax administrative coercion should beperfected and completed. On the one hand, the scope of the tax administrative coercion should be enlarged so that the authority to limit the personal freedom can be brought to the scope of the tax administrative coercion. The power to take over or stop selling invoices should be intensified. Other indirect coercive enforcement measures such as the system of advertising the tax credit. On the other hand, the exertion of the tax administrative coercion authority should be standardized. By borrowing the system model of the tax administrative coercive enforcement of the USA, France, Germany, and Austria, the tax administrative coercive enforcement in our country should take the principle that the authority apply for the people's court to carry out the enforcement coercively, and the autonomous coercive execution of the tax authority is only an exception. That is what the tax administrative coercive enforcement model should be like. What's more, the advertising system of law execution should be carried out. The jurisdiction of the tax administrative coercive enforcement should be clarified; the means of the coercive enforcement should be intensified; the coercive enforcement procedure should also be clarified; the tax authorities below the county level should be endowed with the administrative coercion authority. All the above are the measures to standardize the exertion of the tax administrative coercion. Third, the tax collection and management system should be perfected on the basis of the system of the tax administrative coercion. The first is to lessen the tax bearing, to strengthen the penalty and to cancel the tax rate. The second is to decrease the requirements of kinds of ratifications, to emphasize the examination after ratification and to punish the one who does not reach the standard according to the law seriously. The third is to intensify the construction of information and promote the intelligence control of the tax. The fourth is to implement all the beneficial policies of tax revenue carefully. The fifth is to punish the illegal acts of the agents in taxation seriously, too. Fourth, the judicial insurance system of taxation should be strengthened. The strengthening of tax laws is the presupposition of realizing legal taxation. The normal tax system relies on the protection of the judicial insurance system, which includes the improvement of judicial insurance system oftaxation as well as the establishment of special judicial organization for taxation. This process first requires the close contact with the police, procuratorate and judicial departments and getting support from them. Meanwhile, the exploration, consolidation and development of special judicial insurance system of taxation is of equal importance. If conditions permitted, the specific tax polices should be trained on a national scale, who are mainly responsible for the spy of case related to the tax and the maintenance of the tax system; the tax procuratorate should be erected for the lawsuit of the case related to the tax; the tax court house should be established for the judgment and execution of the case concerning the tax. Finally, we should promote the construction of the tax administrative saving system in order to protect the legal right of the taxpayers.