Study On The Tax Bearing Problem Of Internet Judicial Auction Of Real Estate

In the process of online judicial auction of immovable property,the issue of tax collection is related to whether the auction can be successfully completed.However,due to the lack of provisions on the tax collection and administration of immovable property in online judicial auctions in China’s tax law,courts often directly stipulate a "tax clause" in online auction announcements,that is,the buyer participating in the auction directly bears all the taxes payable for the real estate auction.Therefore,it has become a very common phenomenon in foreclosure practice that the buyer actually bears the seller’s tax burden in the auction,in other words,the non-taxpayer in the tax law bears the tax payable by the statutory taxpayer,and even after the buyer pays the tax on behalf of the seller,it is difficult to realize the subsequent rights protection of the buyer,which has further led to frequent tax-related disputes caused by online judicial auctions of immovable property in recent years.This article sorts out the three main practices in practice on the bearing of taxes on immovable property in online judicial auctions: first,the buyer pays all taxes;second,the buyer "pays in advance and recovers later";Third,the buyer "pays in advance and returns it afterwards".Moreover,due to the lack of a unified understanding of the nature and effect of tax clauses,courts at all levels in various regions have presented three different adjudication paths for determining the validity of tax clauses,finding tax clauses invalid,and finding partial validity of tax clauses.Because the buyer is not the legal obligor to bear the taxes and fees on immovable property under the tax law,this method of bearing taxes will inevitably lead to some practical problems,which are specifically reflected in: first,the provisions on the bearing of taxes and fees for online judicial auctions are not detailed;Second,the provisions on the basis for calculating taxes on auctioned items in online judicial auctions are not clear;Third,the provisions on tax priority and bankruptcy tax claims in online judicial auctions are not clear;Fourth,the rights of buyers in online judicial auctions are damaged.In view of the above problems,the author puts forward targeted suggestions for improvement: first,improve the provisions on the bearing of taxes and fees for online judicial auctions;The second is to clarify the tax basis for online judicial auction of immovable property;The third is to improve the relevant provisions on tax priority and bankruptcy claims;The fourth is to improve the mechanism for protecting the rights of buyers in online judicial auctions.