A Study On Tax Administrative Appeal In Institution Of Law

Because tax is a kind of activity or method for a country to get the fiscal revenue gratis and forcibly according to law, the disputes about tax are inevitable. Tax administrative appeal is a kind of institution of law which solves the tax disputes through the judicial means. It aims to ensure the lawful rights and interests of taxpayer and other taxation parties and supervise the correct law enforcement of tax authorities. Chinese tax administrative appeal is set up formally and developed with the issuing and implementation of Tax Administrative Appeal Law of the People's Republic of China and Tax Administration and Collection Law of the People's Republic of China. While Chinese tax administrative appeal plays an important role in practice, it still has some problems in legislation, law enforcement and justice; these problems has influenced the quality and normal operation of tax administrative appeal to some extent and interfered tax's rule of law, so the tax administrative appeal needs to be perfected.This article analyses the tax administrative appeal in theory and in practice, promotes a certain number of suggestions for improving and perfecting Chinese tax administrative appeal based on its problems and lessons learned from foreign tax administrative appeal.This article is divided to four chapters. The first chapter elaborates the concept, significance, characteristics and principles of tax administrative appeal and the difference and similarities between tax administrative appeal and administrative review. The tax administrative appeal is the court-based judicial activity done by the court to investigate the administrative behavior of government revenue collecting offices and make the verdict when the relative persons of tax administration refuse to accept the administrative behavior of government revenue collecting offices as a final and submit the case to the court. The tax administrative appeal has the irreplaceable function and significance in solving the disputes concerning the tax, protecting the taxpayer's right, coordinating the balance between administrative power and national right and maintaining the tax law's authority. The characteristics of tax administrative appeal are as follows: tax administrative appeal is a kind of judicial activity in which the people's court hears and makes the verdict; the plaintiff and defendant of tax administrative appeal has the quality of invariance; tax administrative appeal is to solve tax disputes within certain limits; tax administrative appeal is the mechanism of legal redress. The principles that tax administrative appeal abides by are principle of legality examination for specific administrative behavior of tax, principle of reconsideration in advance for taxation payments, principle of continuous execution for specific administrative behavior of tax and tax administrative appeal cannot apply to the principle of mediation. Tax administrative review is also an important institution of law to solve the tax administrative disputes and it has close relationship with tax administrative appeal while they are two different systems differing in nature, examine principle, scope, limits to rights and applicable program.The second chapter mainly introduces the systems of tax administrative appeal in America, Canada and Japan, foreign systems of public interest litigation for taxpayers and does the contrastive analysis of foreign systems of tax administrative appeal. In America, if the taxpayer is not willing to seek for the administrative remedy, he can refuse to pay the tax and appeal to taxation court directly; or after the failure of administrative remedy he will pay the debatable tax and then select one local court or court of claims to seek for the judicial remedy. In Canada when the federal tax court deals with the case of tax appeal there are two hearing procedures: informal one and formal one. The taxpayer needs to choose one according to his own case. In Japan, the taxpayer concerning the tax dispute needs to raise an objection to tax authorities first, and then if he does not accept the decision of tax authorities, he should propose an examination application to national tax dissatisfaction trial institute; if he still does not accept the adjudication of trial institute on examination application, he can propose the administrative appeal and seek for the judicial remedy. The foreign systems all emphasize to do the administrative remedy first and put the appeal at the end of the dispute solving mechanism. The tax administrative remedies all have the characteristics of simpleness, convenience, highly specialization and etc, so every country uses many motivation means in the system designing to urge taxpayers to choose the administrative remedy first. The foreign systems also put the focus on the specialty of tax remedy and it can be seen from the set up of special office to deal with the tax disputes. In many countries taxpayers are given the complete right to supervise the use of their tax payments used by government and other offices. The foreign countries'practice has proved that public interest litigation for taxpayers is the effective way for taxpayers to enjoy the right of supervising the rational charge and use of tax. The third chapter introduces Chinese tax administrative appeal's scope of accepting cases, jurisdiction, application of law (hearing rules), its development and the state quo. Chinese tax administrative apple's scope of accepting cases includes: the taxation, administrative penalty, tax implementing measures, tax protective measures, charge of providing surety, prohibition of exiting, nonfeasance and other specific administrative behavior. Except the taxation needs the Reconsideration in Advance, other behaviors all can be sued directly to the court. The cases of tax administration can be divided into five types: Jurisdiction by level, Territorial jurisdiction, alternative jurisdiction, Transfer of Jurisdiction and designated jurisdiction. The hearing rules for people's court to investigate the specific tax administrative behavior are in terms of law, administrative regulation and local regulation; consulting the departmental rules and local rules.In the forth chapter based on the analysis and discussion of Chinese system of tax administrative appeal's, the author points out the existing problems of Chinese tax administrative appeal and put forward the thinking and suggestions for perfecting Chinese system of tax administrative appeal. With the promotion of Chinese democratic and legalized construction, the taxpayers'awareness to protect rights is strengthened gradually and more and more taxpayers get used to use the legal means to get the remedy. It is seen from the survey that the number of Chinese tax administrative cases are on the rise in the whole, but from the analysis of absolute figure or relative figure, the number of tax administrative cases is very small. The main reasons lying in the small number of Chinese tax administrative cases are that the citizen and organization dare not to sue and are not willing to sue and the court has the difficulty in the trial. Because Chinese system of tax administrative is implemented for a short time and it is influenced by citizens'law awareness and related systems, its operation is not fully up to expectations. The main problems of Chinese tax administrative appeal are as follows: the limited scope of accepting cases of tax administrative appeal, review of abstract behaviors excluded by the scope of tax administrative appeal, defect of systems of reconsideration in advance and tax in advance. Reconsideration in advance, especially the tax payment in advance, increases the cost for taxpayer to exercise the just claim and it causes the taxpayer to lose the just claim very easily. Tax administrative appeal has the different foundation of judgment comparing to tax administrative review and it causes the contradictions and conflicts between decisions of tax administrative review and judgment of tax administrative appeal in evaluating the administrative behaviors. The taxpayer's lack of civil plaintiff qualifications of the Civil Public Interest Litigation shows the neglect of protection for public interest. Based on the analysis of mentioned problems and learning from foreign advanced experiences, the author puts forward the thinking and suggestions for perfecting Chinese tax administrative appeal according to the specific situation of China. They are as follows: enlarge the scope of tax administrative appeal, include the abstract behaviors in the examination of tax administrative appeal; appropriately open the forbidden areas of unconstitutional review, cancel the limitations for tax lawsuit's reconsideration in advance, completely establish the free choice model of tax administrative appeal; unify the application of law for tax administrative appeal and tax administrative review and make the better combination of tax administrative review and appeal; appropriately enlarge the scope of plaintiff in tax administrative appeal and bestow the taxpayer the right of public interest litigation.