Analysis On The Administrative Penalty Case Of Huiji Company V.Qingdao State Administration

With the development and progress of human society,the tax system began to emerge.Tax has a very close relationship with the country’s economic development.In the case of tax administrative penalty,tax evasion is a common tax administrative penalty."Huiji company and Qingdao State Administration of Taxation" is an administrative penalty case involving tax evasion.The dispute focus of the case mainly focuses on whether the determination of tax evasion should consider the subjective intention,the determination of the minor illegal procedure in the tax administrative penalty and the application of the written review principle in the administrative reconsideration procedure.There are two different views in the academic circles on whether the determination of tax evasion should consider the intention,one is affirmative and the other is negative.Affirmative theory is mainly analyzed from three dimensions: literal interpretation,system interpretation and history interpretation,among which the more reasonable one is system interpretation.In terms of system interpretation,the elements of tax evasion determination should be based on the specific implementation and application of the whole tax collection and management law.If it is required that tax evasion must have the main intentional elements,it may lead to the phenomenon of incompleteness or imbalance in the implementation process of the tax collection and management law.In the field of judicial judgment,there are three ways to determine the tax evasion: one is that the tax evasion determination does not consider the intentional factors;the other is that the tax evasion determination considers the behavioral elements and the subjective intentional elements;the third is that the tax evasion determination evades the recognition and comment on the subjective intentional elements.All three methods have their own legal effects,and there is no perfect legislation to solve the dispute,so we should apply different measures in the specific application combined with the case.On the premise of not considering the subjective intention,the behavior of Huiji company involved in the case conforms to the elements of tax evasion,which constitutes tax evasion.The identification of the minor violation of the procedure in the tax administrative punishment involves the discrimination between the minor violation of the procedure and the defect of the procedure and the system of correction.Procedural defects and minor proceduralviolations have different consequences,but the system of correction has not been clearly legislated in China,which is only stipulated in local regulations,and there is a logical progressive relationship between correction and minor procedural violations.The degree of application of correction is less than that of minor procedural violations.The punishment procedure of Qingdao National Tax Inspection Bureau involved in the case is not a minor violation of the procedure,and the punishment is not obviously improper.With regard to the application of the principle of written review in the administrative reconsideration procedure,although the principle of written review is established by administrative law,there are certain limitations in completely following this provision without considering the substantive settlement of disputes.The premise of the application of this principle should be to protect the parties’ right of statement and defense.Although the relevant authorities failed to inform the time when the third party in the original trial,Qingdao Municipal Office of SAT,submitted evidence,statement of defense and legal basis,it did not affect the statement and defense rights of Huiji company.Therefore,the administrative reconsideration procedure of the State Administration of taxation is legal.