Can Taxpayers' Self Examination Affect The Nature Of Tax Violations?

Whether taxpayers should be exempt from administrative punishment after self checking and paying taxes or not, how to make a qualitative analysis of their tax illegal acts, there is no specific stipulation in the tax law of our country, and there are different law enforcement problems in different tax organs all over the country, and even in some court decisions there are different opinions.

Taking tax evasion as an example, we should discuss with readers how the taxpayer's self checking tax should affect the qualitative and administrative penalties of taxpayers' tax violations.

(1) the same title.

Taxpayer self-examination is usually based on the taxpayer's own tax declaration system, which is a tax assessment and inspection method led by the tax authorities.

At present, the taxpayer self-examination has become one of the main methods for tax authorities to carry out tax inspection. The tax authorities in some provinces and cities have the same name for the taxpayer's self-examination in the dispatch, such as the Hunan provincial land tax bureau's "tax self-examination". Anhui's IRS expresses itself as "taxpayers self check and self correction". Hainan's IRS expresses itself as "taxpayer self check", and the Guangzhou Local Taxation Bureau has described it as "household self-examination" and so on.

[1], among them, the expression of "tax self-examination" and "taxpayer self check" are the most widely used.

In order to have a better understanding of this system, this article will be described as "taxpayer self examination" for the time being.

(two) "taxpayers' self checking and tax collection" includes two cases.

The twenty-fifth section of the tax collection and management law stipulates that taxpayers should declare tax according to the time limit specified. The thirty-first section of the tax collection and management law stipulates that taxpayers should pay taxes according to the definite tax payment period. The thirty-second provides that taxpayers who pay taxes over time should bear the responsibility of paying late fees.

Correspondingly, taxpayers' self checking tax collection also includes two situations: first, taxpayers find tax errors in the tax declaration period through self examination procedures, and complete supplementary declaration and payment tax in the tax declaration period; two, taxpayers find out that the tax matters that have passed the tax declaration period are mistaken through self-examination procedures, and supplement declaration and payment of taxes and late fees.

(three) about "

Legal provisions

At present, there is no legal basis for the taxpayer self-examination system.

This system is scattered in the normative documents issued by the State Administration of Taxation and the local normative documents formulated by some provincial and provincial tax authorities.

The representative general documents are the opinions of the State Administration of Taxation on Further Strengthening Tax Collection and administration in 2004 ([2004]108).

The article stipulates that "the general problems of tax assessment, such as calculation and completion, policy understanding and other non subjective errors, can be interviewed by tax authorities.

Through consultation, necessary guidance and guidance should be conducted to guide taxpayers to correct their own mistakes, and within the time limit for declaring tax payment, they shall be exempted from punishment according to the relevant provisions of the tax law, and those who exceed the time limit for declaring taxes shall be charged late fees.

However, No. 108 is not only for taxpayers' self-examination system, but also does not provide detailed and comprehensive regulations for taxpayers' self-examination system.

In the local normative documents, the more representative one is the tax inspection inspection system of Anhui province's national tax inspection system, which was formulated in 2009 by the Inland Revenue Bureau of Anhui province (the trial tax), which is formulated by the Xiamen State Taxation Bureau in 2013, the Interim Measures for the inspection and management of taxpayers of the State Administration of Taxation in Xiamen (2013, the tax administration Letter No. [2009]53) and the tax inspection and self inspection management method of Hunan local tax inspection department formulated by the Hunan Local Taxation Bureau in 2014 (Hunan provincial taxation bureau announcement 2014 fifth).

The above three local normative documents provide a comprehensive and detailed stipulation on the taxpayer's self-examination system in their respective jurisdictions, especially for taxpayers' self checking and tax collection, and make clear provisions on how to implement tax administrative treatment and impose discretionary tax administrative penalties.

Laid the foundation.

Two, can taxpayers' self-examination affect the nature of tax violations?

The tax law sets procedural and substantive obligations for taxpayers. The fact that taxpayers violate these statutory obligations constitutes an illegal fact.

According to the specific provisions of the tax law, the tax authorities deal with and punish the illegal facts of taxpayers.

This is the basic logic of the application of the tax law, that is, the premise (tax law) - the minor premise (the taxpayer's illegal facts) - conclusion (treatment and punishment).

Taking tax evasion as an example, the tax collection and management law stipulates the requisites for tax evasion and the legal consequences of taxpayers. This is a major premise. Taxpayers' acts constitute tax evasion, which means that taxpayers have the illegal facts of tax evasion. This is a minor premise.

Therefore, the core of the taxpayer's self checking tax can affect the nature of tax evasion is whether the taxpayer's self checking tax can obstruct the illegal fact that taxpayers constitute tax evasion.

According to the sixty-third provision of the tax collection and management law, taxpayers constitute tax evasion, and should have the following four elements:

(1) the main body of tax evasion is the taxpayer who has the duty to pay taxes in accordance with the provisions of the tax law.

(2) the intention of tax evasion is that taxpayers have the intention of evading taxes subjectively.

(3) the act of evading taxes, that is, the taxpayer has implemented the sixty-third law of tax collection and management, and clearly enumerates tax evasion.

(4) the consequence of tax evasion is the consequences of tax evasion by taxpayers, resulting in failure to pay or pay less taxes.

Obviously, taxpayers' self-examination and tax collection can not affect the major premise of the tax law.

Then, assuming that taxpayers' self checking tax can obstruct the composition of tax evasion, it is inevitable that taxpayers play a role in the minor premise of illegal facts.

For example, if the taxpayer completes the supplementary declaration within the statutory declaration period and completes the tax payment within the statutory tax payment period, it will obstruct the composition of tax evasion through self checking and timely correction and no consequences of not paying or paying less taxes.

It can be seen that judging whether taxpayers' self checking and paying taxes can obstruct tax evasion constitutes the core of whether the taxpayers' self checking tax collection makes the four elements of tax evasion fail.

That is to say, taxpayers' self-examination of tax collection does not necessarily obstruct the formation of tax illegal acts. Only when taxpayers self examine and make up the tax cause the constitutive requirements of tax violations can not be achieved, can they prevent the formation of tax violations.

Three, can taxpayers self examine tax increases affect tax administrative penalty?

When taxpayers examine the composition of tax offences against tax offences, there will be no question of punishment. If taxpayers do not check the composition of tax offences themselves, can they affect the corresponding penalties?

The legal basis for this view is the twenty-seventh article of the administrative punishment law of the People's Republic of China, which stipulates: "one of the following parties shall be given a lighter or mitigated administrative punishment according to law: (1) to eliminate or mitigate the consequences of illegal activities voluntarily; (two) to be coercion by others to commit an illegal act; (three) to cooperate with the administrative organs in investigating and doing illegal activities; and (four) to reduce the administrative penalty according to law.

If an illegal act is minor and corrected in time, if no harm is caused, no administrative penalty shall be imposed. "

There are similar provisions in local normative documents.

For example, the seventeenth rule of Hunan province stipulates: "the tax paid by the self inspection in accordance with the present Measures shall be punished according to the provisions of the twenty-seventh section of the administrative punishment law of the People's Republic of China and the sixth rules for the implementation of the tax administration discretionary power of the Hunan local Taxation Bureau."

The tenth rule of Anhui province stipulates: "the principles of dealing with taxpayers' self-examination and self correction are as follows: (1) the tax related problems that taxpayers voluntarily find and actively remedy during the period of self-examination and self correction can be punished lightly or exempted according to the regulations.

(two) during the implementation of the tax inspection, the taxpayer actively seeks and actively remedies tax issues that the tax authorities have not yet grasped. It can be moderately lenient in the scope permitted by laws and regulations, and the leniency should be strictly controlled within the scope specified in Item 1 above.

(three) the tax related problems that taxpayers voluntarily search for and actively remedy during the period of self-examination and self correction and the implementation of tax inspection shall be dealt with strictly according to regulations once verified by the tax authorities.

The sixteenth regulation of the Xiamen method: "tax illegal acts reflected in the self-examination report" by the self checking objects, and distinguish the following cases from lighten or lighten the tax administrative punishment in accordance with the law: (1) the self checking objects voluntarily pay the taxes in full and pay the late fees; (two) cooperate with the tax authorities to investigate and punish the illegal activities of Taxation, showing the meritorious service; self checking objects tax violations are minor and timely rectified; and the full amount of tax payment and payment of late fees shall be paid in full, without causing any harmful consequences, and no tax administrative penalty shall be imposed.

In practice, there is a certain discretionary power on how to apply the tax authorities without penalty, lighter punishment and mitigated punishment. It is also easy for different tax authorities to deal with different standards of different cases.

Combined with the above analysis, taxpayers' self checking and tax collection can obstruct the composition of tax violations under certain conditions.

When taxpayers self check tax can not obstruct the composition of tax offences, they may have an impact on the corresponding tax administrative penalties. However, in practice, tax authorities still have different problems in exercising discretionary power, which needs further clarifying legislation.

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