Legal Effect Of Tax Assignment Clause

Tax assignment clauses widely exist in domestic civil and commercial transactions.However,in recent years,tax-related disputes have been frequent in judicial practice,and controversies about their legal effects have been ongoing.The root cause of this is actually due to the lack of provisions for non-tax payers to pay taxes in China’s current taxation legal system,which has led to great differences between law enforcement and judicial departments at all levels in determining the results.It is imperative to clarify the legal nature of tax assignment clauses and analyze their legal effects.The whole paper is divided into three chapters,the first part defines the concept of tax assignment clauses and clarifies the scope of the article’s discussion.The second part summarizes the three adjudication paths in judicial practice in the form of cases,namely,determining the validity,invalidity and avoiding the validity dispute for judgment.The third part summarizes the controversial points in determining the validity of tax assignment clauses in practice,namely,whether they violate the mandatory provisions of validity,whether they affect tax fairness and whether they damage the national tax order.Chapter 2 aims to define the legal nature of the tax assignment clause,with the purpose of clarifying the respective rights and obligations of tax authorities,tax obligors and non-tax obligors.This part rejects the viewpoint that the tax assignment clause belongs to debt assumption in practice,proposes that the tax assignment clause should be a debt performance assumption,and analyzes the impact of the tax assignment clause on the state tax revenue.The third chapter makes a theoretical analysis of the legal effect of the tax assignment clause from the perspective of the substantive taxation principle in the tax law and the perspective of the invalid contract theory in the civil law.From the perspective of the principle of substantive taxation,the effect of the tax assignment clause should be based on the national tax interests and tax fairness.For the tax types that will lead to the loss of national tax revenue,it should be directly judged that it has no legal effect;To pass on the tax that will not lead to the loss of national tax revenue,it is only necessary to pay attention to whether the tax in question is paid in full.From the perspective of invalid contract theory in civil law,to analyze the internal effect of the tax assignment clauses,we should proceed from two aspects: the principle of autonomy of will and the mandatory provisions of effectiveness.The provision of tax transfer commitment belongs to the category of party autonomy,and the premise of its legality and validity is that it does not damage the national and social public interests.As a debt performance commitment agreement,it should not be deemed invalid directly on the grounds that it violates the mandatory provisions of tax laws and regulations,but only when it involves land value-added tax,income tax,stamp duty and other tax transfer agreements that lead to the loss of national tax revenue.is a violation of the peremptory norm of validity.Thence,on the basis of respecting the autonomy of the parties and following the principle of substantive taxation in tax law,it is considered that tax assignment clauses that harm the national taxation interests should be invalid,while tax assignment clauses made under the true intention of both parties should be valid.The forth chapter suggests the path to determine the effectiveness of tax assignment assumption provisions.The legislature should improve the legal system of tax assignment assumption,raise the level of effectiveness of tax laws and regulations,and construct the basic legal system of tax assignment assumption to effectively protect the national tax interests and the economic interests of civil and commercial subjects.The judicial organs related to tax enforcement should regulate the tax collection management system,clearly distinguish the civil and administrative legal relations between parties in the assignment of tax and fee,and regulate the use of the assignment of tax and fee provisions by the parties.