Research On The Rules Of Claim For Tax Restitution

With the enrichment of the forms of commercial transactions,the application scenarios of tax restitution claims are becoming more broad.However,the current rules are shorter in length and have been almost unmodified since they were set,which cannot meet the needs of taxpayer rights protection.There are some shortcomings in the current tax restitution rules : First,the expressions "exceeding the amount of tax payable" and "discovery" in the current rules are prone to ambiguity,making it ambiguous when the right to tax restitution can be applied.Second,the scope of the subject of the current rules is also relatively narrow.It does not take into account entities that are closely related to taxpayers,and no provisions are set up on the transfer,mortgage and agency of the claim for tax restitution.Third,it is unclear whether the taxing authorities should return interest when they find that taxpayers have overpaid taxes.And penalty interest in the event of late return of overpaid taxes is not taken into account.The interest rate applied to the additional interest is also relatively low,and setting only one tier of interest rates is not fair enough.Finally,the taxpayer’s rights remedy procedure is more complicated.Taxpayers do not know which processes they should go through to protect their rights.Prepositive reconsideration has played a negative role in taxpayer relief.By summarizing the deficiencies of the rules of tax restitution,combined with judicial practice and foreign legislative experience,we can improve the rules of tax restitution claim from the following aspects : In terms of applicable criteria,replace the requirement of "payment of tax in excess of the taxable amount" with the two elements of "the taxing authority is benefited by the taxation act" and "there is no legal reason for the benefit".In addition,a number of cases for which there are no legal reasons should be enumerated.In terms of the scope of subjects,the status of the actual payer of taxes and the successors of creditors’ rights should be recognized.The transfer and mortgage of the right to claim tax restitution should be allowed,and agents,liquidators and others should also be allowed to exercise such rights.In terms of the calculation and restitution of interest on overpaid tax,it should be made clear that interest is directly calculated by the taxing authority,and it is not necessary for the taxpayer to apply for it.The taxing authority returns the interest when returning the overpaid tax,and it would pay a penalty interest for overdue tax refund.In terms of the period of exercise,it should be made clear that the period for exercising the right is the statute of limitations,and it is calculated from the time when the taxpayer knows that there is an overpayment of taxes.The substantive right of the claim is extinguished when the statute of limitations expires.In terms of rights relief mechanism,improve the independence of tax reconsideration agencies,set up special tax courts,identify lawsuits requesting the return of overpaid taxes as administrative payment lawsuits,and cancel the requirement of administrative reconsideration in judicial relief for tax return claims.