Research On The Bankruptcy Application Right For Tax Authorities

The application of the tax authorities for the corporate bankruptcy rights means that when the company has bankruptcy reasons such as insolvency and failure to pay off due debts,in order to safeguard national tax interests,after exhausting compulsory taxation measures,the tax authority applies to the court as a tax creditor The right of a business to go bankrupt.Tax authorities’ application for enterprise bankruptcy helps to avoid the loss of national tax revenue benefits due to the absence of the applicants in practice,can properly guide the orderly withdrawal of "Zombie enterprises" in the market mechanism,and urge the cancellation of dead and in arrears,further optimising the tax business environment.Through the timely application of the tax authorities for bankruptcy,so that the tax creditor’s capital base in a small range,so that the amount of ordinary creditors have been significantly increased.In addition to the above functions,the tax authorities’ application for bankruptcy will also enable the interests of external creditors and investors to stop losses in time,and minimize the impact of bankruptcy cases on other vulnerable groups of creditors,to achieve mutual benefits among creditors.The tax debt relation is the basis for the Tax Authority to apply for the bankruptcy right of the enterprise,and is the legitimate basis for the creditor’s status of the Tax Authority.Therefore,it is legitimate and reasonable to regard the dual structure of the state and the taxpayer as the creditor-debtor relationship.The tax credit under the bankruptcy procedure,that is,before the termination of the bankruptcy procedure,the Tax Authority may request the debtor to pay tax on the basis of the bankruptcy property.Of course,parting with ordinary tax claims,bankruptcy tax claims subject to tax,tax basis and incidental debt is more complex.With the interaction between public law and private law being strengthened,tax claims and common bankruptcy claims belong to the adjustment of different jurisdictions,but their commonness is becoming more and more obvious.To accurately grasp the tendency of blending the two,we must not simply use the difference in the evaluation of the bankruptcy law or the tax law,or completely exaggerate the commonality or pursue the individuality,but seek the harmony between the two,promoting the mutual recognition of rules among laws by the fusion of ideas.The theory of domain law shows that the protection of bankruptcy law should break through the dualistic structure of "private as private",and involve the protection of public interests,which provides the necessity of granting creditor status to tax authorities.The tax authorities’ application for bankruptcy of enterprises is mainly based on the interests of the state,while the bankruptcy of enterprises is based on the interests of the society,in order to systematize the value conflicts between the two sides,they should resort to the restriction of the right to levy taxes and seek the limits of national taxation,therefore,it is necessary to introduce the theory of special tax area to balance the interests of tax authorities,bankrupt enterprises and other creditors.When the tax authorities apply for the bankruptcy of an enterprise,it is often difficult for the enterprise to survive because it can not pay off its debts when they are due,and the corresponding tax-bearing capacity is also greatly weakened.If the tax is still levied on the normal tax standard of the enterprise without any distinction,it would be a violation of the capacity to tax.Therefore,when the tax authorities draw up the bankruptcy proceedings,they need to weigh the advantages and disadvantages of the bankruptcy proceedings in levying tax.After entering the bankruptcy proceedings,they also need to pay attention to the rationality and appropriateness of levying tax,by transferring part of the tax,in order to maintain the "survival operation" of the bankrupt enterprise.Based on the research and analysis of relevant practice and theory,tax authorities should meet the following three conditions when applying for enterprise bankruptcy:First,the subject of application should be tax authorities at or above the county level in principle.If the tax owed by a bankrupt enterprise crosses different regions,several taxcollecting entities may jointly apply for bankruptcy of the enterprise.In addition,a tax authority with a tax payment security right should have the right to apply for bankruptcy only if its security interest can not be fully repaid.Second,the object of application should be the debtor with the ability to go bankrupt.As far as legal persons are concerned,profit-making legal persons have the ability to go bankrupt and should be the target of tax authorities to apply for bankruptcy.However,non-profit legal persons and special legal persons,because of their social commonweal,are mostly backed by state finance and state credit,therefore,it should not be the object of bankruptcy.Second,the motivation for applying for bankruptcy is that the debtor has completely lost the ability to pay taxes,and the type of applying for bankruptcy is mainly bankruptcy liquidation.Finally,the content of the claim should be limited to the "debt due",that is,the tax principal,tax interest,late fees and fines owed by the enterprise before the commencement of the bankruptcy proceedings.At the same time,for the related problems arising in the process of tax authorities applying for bankruptcy,this article mainly from the jurisdiction of bankruptcy cases,the function of the tax authorities in the procedure of the "execution and bankruptcy" and the overseas recovery of tax are analyzed.Although the present law has not stipulated the Tax Authority’s right to apply for bankruptcy,it is necessary to construct and perfect the frame system of the Tax Authority’s right to apply for bankruptcy.First,the tax authorities are legally required to file for bankruptcy.In this paper,the author uses the idea of private law in tax law and the experience of setting up subrogation right and cancellation right in tax law to set up bankruptcy right of tax application in tax collection and administration law,and provides the corresponding judicial interpretation.At the same time,the tax authorities should bear the financial and tax legal responsibility after abusing the right to apply for bankruptcy.Secondly,the tax authorities should be subject to the supervision when they apply for bankruptcy.The principle of proportionality will be applied throughout the exercise of the right to bankruptcy,timely supervision of the exercise of tax authorities.The exercise of the right to apply for bankruptcy should insist on the modesty and restraint of the tax law,only after exhausting the administrative compulsory measures can it be exercised,and at the same time,it should protect the dissenting right and hearing procedure of other creditors.Finally,improve the tax authorities to apply for bankruptcy supporting measures.Through the construction of professional bankruptcy court,the training of highquality tax talents and the sharing of tax information in all aspects,we will propose suggestions and ideas on the legal path for tax authorities to apply for corporate bankruptcy,and try to discuss tax authorities’ acceptance of bankruptcy cases The positive role in the process is expected to benefit the tax collection and management work of our country.