Penalty For Non Tax Evasion Can Be Discussed.

Local tax and land tax at various levels shall carry out tax avoidance for non tax evasion. The sixty-fourth section and second paragraph of the tax administration act shall not be paid by taxpayers, but not paid or paid less. The punishment shall be more than 10 times more than five times less than half the time.

However, with the increasing awareness of citizens' rights protection, the contradiction between them is increasing.

The understanding of the application of this provision is also controversial in the tax system.

1. Do not correctly understand the relevant legal principles and relevant provisions.

"Twenty-seventh" and "tax collection and management law" sixty-fourth.

The twenty-seventh provision of the administrative punishment law stipulates that "administrative penalty shall be lighten or lighten if one of the following situations occurs: first, it should eliminate or mitigate the harmful consequences of illegal activities voluntarily; two, it is coercion by others to commit illegal acts; three, cooperate with the administrative organs in investigating and doing illegal deeds for meritorious service; four, other acts that should be lighter or mitigated administrative punishment according to law"; "minor violations and timely correction, without causing any harmful consequences, no administrative penalty".

What is "lighter" refers to the administrative organs in the statutory punishment and punishment within the scope of the administrative offenses in a number of possible ways of punishment to choose a lower penalty, or under a penalty mode, within the scope permitted by the law, the lower limit of the penalty.

What is "mitigation"? It refers to the administrative penalty applicable to the offending person under the statutory punishment mode and the minimum penalty scope.

In terms of the degree of punishment, it falls between lighter punishment and exemption from punishment.

Concretely speaking, there are two situations for applying mitigated punishment. First, the administrative organ shall impose penalties on offenders under the statutory punishment.

The other is that the executive authorities impose penalties below the minimum prescribed penalty.

What is a slight and timely correction? It means that the law enforcement agencies have corrected themselves before they have intervened. What is not harmful to the society?

The above general provisions apply equally to tax administrative penalties. The reasons are as follows:

(1) according to the principles of the legislative law, the new law is superior to the old one and the special law is superior to that of the general law.

Although it is a special law, it is an old law. The administrative punishment law is a general law, but it is a new law.

Therefore, when the choice is executed, the general law does not provide for the special law, but the general law is applicable.

(two) according to the notice of the State Council on the issuance of the outline for the implementation of comprehensive administration according to law (No. 10 [2004]] - reasonable administration...

Administrative organs can implement administrative purposes in many ways, and avoid adopting the way of damaging the rights and interests of the parties.

(three) according to the principle of implementing the administrative law of the State Administration of Taxation, the State Administration of Taxation has second guiding opinions on standardizing the work of tax administrative discretion: (65 of the national tax [2012] 65): "the basic requirements for standardizing the administrative discretion of Taxation" are: "reasonable discretion."

To achieve administrative purposes in a variety of ways, we should choose the way to minimize the rights and interests of taxpayers.

The general Punishment Law of the general law mentioned above fills the defects of the special law "tax administration law".

It is also the relationship between the special needs and universality of contradictions in Marx's philosophy, that is, from individual to general, and from general to individual principles.

Therefore, as long as there is one of the twenty-seventh cases of the administrative punishment law, it can be punished less than half times.

In the practice of tax administration enforcement, that dogmatism has cut off the relationship between the law of tax collection and administration and the administrative penalty law. The tax evasion tax shall be punished by at least half the time in accordance with the sixty-fourth articles and second sections of the tax administration law.

What is more, it is extremely inaccurate to say that if we should check that the duty payable should be more than that of the tax payable, it would be extremely wrong to impose a fine of more than half the amount of the tax paid, which could constitute a tort crime.

Two, there is a great deal of controversy in the understanding of the law.

It is generally understood that taxpayers are subjective in their fault, and that they should apply only if they do not declare tax payable.

This clause is not applicable to taxpayers who have no fault but do not declare the tax payable.

Such a case can only be punished according to the sixty-second section of the tax collection and Administration Law: "failure to pay tax declaration according to the prescribed time limit", that is, the tax authorities shall order a correction within a time limit, and a fine of less than two thousand yuan shall be imposed; if the circumstances are serious, it may be fined not less than two thousand yuan but not more than ten thousand yuan.

(two) insufficient declaration does not mean that no declaration is made. The tax collection law interpretation compiled by the economic law office of the National People's Congress law and Law Commission does not declare tax payers, pay no taxes or pay less taxes. It means that taxpayers do not pay tax returns within the prescribed time limit, pay more taxes or pay less taxes.

At present, most of the non tax evasion tax is the taxpayer's insufficient declaration, and it is not not declared. The law does not expressly provide for the penalties for taxpayers to declare insufficient. According to the principle of statutory punishment, insufficient declaration can not be punished.

3, it is not clear when determining whether or not to pay the tax declaration without paying the tax declaration. It is not clear whether the time at which the following households inspect or when the time point of the penalty decision is issued.

If the time limit for the penalty decision is to be issued, the taxpayer will declare that he has paid the unpaid tax before issuing the bill. He can only be punished according to the sixty-second provision of the tax collection and administration law.

Three, officials, scholars and taxpayers demand to consider whether there is a fault or not.

1, the effectiveness of Fuzhou city "Fuzhou city to carry out the work of standardizing the administrative penalty discretion" work plan (Rong Zheng comprehensive [2009] 36) stipulates that the punishment should consider whether there are subjective or fault factors.

2, the Xiamen Local Taxation Bureau has implemented the practice of "no fault without penalty".

And in April 24, 2009, the "China tax journal" with "no fault presumption" to let enterprises rest assured that the theme of a detailed report.

3, in the eighth issue of the 2007 issue of China tax, the 15th anniversary high-level seminar on the promulgation and implementation of the law on tax collection and administration was published.

It is considered that the "tax avoidance" should be included in the legal norms, because tax evasion has always existed objectively in the actual work.

Tax evasion refers to the taxpayer's unintentional failure to pay or pay less taxes. It is a general tax illegal act without subjective intent, which should be ordered and paid by the tax authorities, and no penalty should be imposed.

4, most are fined the taxpayer's statement, they have no intention to pay tax less subjective, one is that many enterprises can voluntarily require tax audit firms to carry out tax audits, and through the tax department, most enterprises think it is caused by different policy understanding of tax payment; the two is the majority of the financial personnel, the tax collector is an employee, the subjective difficult to pay less tax payment motivation, because once the penalty can not be handed over to the employer, so the more than half of the penalty is very much, and the three is that some taxpayers are afraid to be penalized, and intentionally pay tax.

Four, the current political and economic situation.

1, global economic growth is slowing down, and China is also deeply affected by social contradictions. The law enforcement departments across the country are calling for flexible enforcement.

The notice of the Fujian Provincial Local Taxation Bureau on Issuing the guiding opinions on the application and practice of tax flexible enforcement in the inspection work (Local Taxation Letter No. 2012] 169, third) (five) stipulates that the combination of punishment and education should be persisted.

According to the nature, circumstances and social harmfulness of tax violations, we should discriminate and exercise discretionary power in a reasonable and standard way.

For tax evasion, we should strictly punish according to law and put an end to its fluke psychology. For those who produce misunderstanding or disputes due to unclear policies, they may be punished or punished in accordance with the law. They can provide taxpayers with opportunities and channels to correct mistakes, and promote their honest and trustworthy taxation through education and counselling.

2. After the issuance of the State Council's opinions on supporting Fujian to speed up the construction of the Economic Zone on the west side of the Straits, the local government requires all departments to conscientiously implement them and create loose investment software environment for enterprises.

The Fuzhou Municipal Administration of Fuzhou has carried out the work plan of standardizing the discretionary power of administrative penalty in the city of Fuzhou (third (two) of No. 2009], and the principle of rationality is: "combining the degree of social harm and subjective fault, we should accurately grasp the" degree "of the detailed discretion standard so as to avoid being unsound and serious.

The sixth requirement is to divide the seriousness of the illegal plot into consideration: (1) the illegal executor is an offender, a first offender, or a habitual offender; whether the subjective aspect is deliberate or negligent; the motive and subjective malignancy of the offender.

(2) the consequences of illegal acts, such as the number and severity of hazards, whether to take measures to eliminate or mitigate the negative consequences of actions, and whether the mistakes can be remedied objectively.

Five, the punishment standard is too severe, unfair, easy to cause administrative litigation, increased social instability factors.

Compared with the new 201 criminal law, the crime of tax evasion is changed to tax evasion. For the first time tax evasion, as long as the tax, late fees and fines can not be investigated for criminal responsibility, the penalty for at least half the time for non tax evasion is equal to that of tax evasion.

In addition, the litigant law stipulates that if the parties concerned are not satisfied with the administrative penalty, they can directly bring administrative proceedings to the people's court according to law. The eighty-eighth and second sections of the tax collection and management law also stipulate that the administrative reconsideration should be punished as a non compulsory procedure, which makes the tax authorities easy to fall into a relatively passive situation. At present, a local tax bureau in Fuzhou has a case.

Six, the penalty for checking taxes is different from other acts of punishment, because at the same time, in addition to the tax authorities, other taxes should be charged 0.05% of the late fee, which is 18.25% (365 * 2 per thousand) annually.

What are the late fees? The current notes are different.

The twelfth section of the administrative compulsory law is classified as "the mode of administrative enforcement"; the tax dictionary, published by Li Minglong and the Gansu people's publishing house, explains the term "tax overdue payment": also known as the "fine for arrears", or "overdue fine".

The tax authorities shall impose a fine on taxpayers who fail to pay taxes according to the prescribed time according to law.

By the former head of the State Administration of Taxation Liu Zhicheng and Lu Renfa as consultants, Zhang Wei, editor in chief of the tax dictionary published by the China financial and Economic Publishing House, explained that the term "late payment" was interpreted as: "according to the tax law, the amount of money collected by taxpayers who fail to pay taxes in accordance with the prescribed time limit".

It is an economic sanction of the tax authorities for taxpayers who violate the tax law.

The late fee is different from the fine. It is both punishing and interest oriented, so it is calculated on a daily basis. "

Under such circumstances, it is inappropriate to punish the non tax evasion tax according to the sixty-fourth clause and the second paragraph of the tax collection and management law, and make adjustments as soon as possible.

Taking into account the government's request to make a list of penalties for blurring the law, according to the above, the penalties for non tax evasion tax should be punished by half times the following items:

1, the policy is controversial; 2, there are controversial issues; 3, force majeure; 4, local governments and relevant government departments; 5, taxpayers' understanding of the policy deviation; 6, the land use tax increment and the corporate income tax calculation and the related tax levy.

7, taxpayers calculate or fill in the error.

For example, there is no mistake in the enterprise tax return, but the tax receipt entry is incorrect.

8, the tax authorities notice lag: such as: the lag time of the policy change arrival time (including the lagging behind the tax department's collection method), the taxpayer has already been dealt with according to the original regulations; the management series related tax identification is wrong, and so on; 9, the new tax law, the new policy, the new regulation, the new method, and the taxpayers who are not newly declared or newly paid tax items for the first time; and 10, they can not enter the Treasury according to the time limit for tax authorities, but there is evidence to prove that the funds are difficult or will cause the laid-off workers to affect the social stability. 11, check that the tax refund should be more than the tax payable, 12, and other special reasons.

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