Study On Dual Preposition Procedure Of Tax Administrative Reconsideration

According to Article 88 of China’s Tax Collection Administration Law,if the taxpayer refuses to accept the tax collection act of the tax authorities,he/she must first apply for administrative reconsideration to the tax review authorities.The reconsideration is the pre-procedure for filing a lawsuit,and the pre-condition for applying for tax administrative reconsideration is to pay taxes and the late fee or provide corresponding guaranty.This " dual preposition procedure of tax administrative reconsideration " has always been questioned.Admittedly,in the process of tax relief,the pre-procedure of tax administrative reconsideration and pre-tax procedure are not fair,which is not conducive to the protection of taxpayers’ rights.However,from the perspective of Treasury centralism,the setting of tax preposition reflects the duty of the tax department to strictly conduct tax collection and administration in accordance with the tax collection and administration Law.However,the pre-procedure of tax administrative reconsideration is specialized,which can effectively filter tax cases and achieve an efficient state of cooperation with judicial proceedings.Therefore,this article will study how China’s legislature should examine the dual preposition procedure from a comprehensive perspective,elevate the dual preposition problem to the level of the game balance between public interest and private interest,taxation power and tax payment right,public law and private law attribute,weighing the pros and cons of dual prepositional procedure,and combining the practice of tax cases and overseas experience,that simply cancel a prepositional procedure has not been a good medicine,but should move the tax payment process to the reconsideration and before litigation,and reform it,such as setting tax or guarantee proportion,establishing an independent thirdparty appraisal institution to restrict the discretion of tax authorities.It is suggested to retain and improve the pre-reconsideration procedure,appropriately expand the scope of reconsideration,and from the perspective of improving the procedure for the exercise of rights,clarify the objects of litigation after the reconsideration.This paper is divided into seven chapters: The first chapter is the introduction,which clarifies the background and realistic value of the thesis,and summarizes the domestic and foreign literature.The second chapter introduces the concept of tax payment preposition and reconsideration preposition and the legislative evolution of this policy over the years.The third and fourth chapter expounds the necessity of reforming the dual prepositions,respectively from the perspectives of law and economics,discussing the details of the two preposition’s sexual problems.From the perspective of legal principle,the pre-payment procedure is against the spirit of the constitution,with the conflict between the upper and lower laws and the ineffectiveness of the "incrimination conclusion".The pre-procedure of reconsideration is not only an important part of the taxpayer’s right relief,but also conducive to the internal self-examination of tax authorities,reducing the burden of judicial authorities with professional advantages,and promoting the supervision system.From the economic point of view,using the budget constraint model and the cost-benefit analysis method,explore the impact of the tax preprocedure and pre-procedure of reconsideration on the operating costs of the parties.The fifth chapter emphasizes the rationality of retaining the pre-procedure of tax administrative reconsideration according to the date of administrative review and litigation of tax cases,and introduces the problems of the pro-procedure of tax administrative reconsideration.First,the inconsistency between the tax processing decision and the punishing decision caused by the pre-procedure of tax administrative reconsideration;second,the problem that the reconsideration authority does not accept the application for tax administrative reconsideration.Chapter six is about the experience of foreign countries in dealing with tax relief,referring to the setting of pre-procedure in Japan,Germany and other countries.Chapter seven discusses the future development trend of China’s dual preposition system,and discusses the detailed suggestions on retaining tax pre-procedure of reconsideration and mobile tax preposition on the basis of tax relief cases.