Du Weiqiang v. Foshan Shunde District State Tax Bureau

 

Questions:

1How to treat, effect of Taxation Assistance Response Letter in the litigation evidence?

2The reconsideration decision, the tax can increase amplitude of the tax treatment or punishment?

                       

The case:The plaintiff Du Weiqiang Shunde City Ronggui town far east lighting factory owners, belonging to a defendant Foshan Shunde District State Tax Bureau tax jurisdictions in the private enterprises. The factory during the period from 1999 January to 2000 July, 27 copies of VAT invoices, were covered with "Chaoyang Yalun development limited invoice dedicated seal", "Chaoyang Sen River Industrial Co. Ltd. invoice dedicated seal", the above invoices with invoice price is 3832832.81 yuan, contained in the VAT input tax a total of 651581.59 yuan has been declared deduction. For the above invoice, the original Shunde crack down on cheating export tax rebate work leading group office of Chaoyang state tax bureau and the Jieyang Municipal State Taxation Bureau for verification. The two tax bureau to stating above invoice for "no goods trading, Xukai invoice" and "false enterprise, bank bill payment does not match, no goods transaction". The original Shunde crack down on cheating export tax rebate work leading group office will clue to the former Shunde State Taxation Bureau Inspection Bureau processing.

 

   Accordingly, the Bureau of investigation discovery, Du Weiqiang the business of buying and selling invoice records recorded, including 1741859 yuan for the invoice check is recorded sales unit, but to the drawer bank check, cheque payment to 1741859 yuan is not recorded on the invoice payment account sales unit, which makes false records. At the same time, Du Weiqiang said in a statement 1741859 yuan were Du Weiqiang at from cash to these sales unit, or transferred to the sales unit through the relevant business units, but there is no evidence to confirm. For the rest of the invoice records should be payment, Du Weiqiang says it has paid to the sales unit, also cannot submit the corresponding original evidence of payment to be confirmed. Shunde Municipal State Taxation Bureau Inspection Bureau in accordance with the above investigation to obtain evidence, in December 28, 2001, according to the "special invoices for value-added tax provisions for the use of" eighth , make the tax collection office along the word [2001] No. 784th "tax treatment decisions", Du Weiqiang further more taxes to invoice deducted 651581.59 yuan.

 

   Du Weiqiang of the decision, apply for administrative review to the audit bureau of State Taxation Bureau of Shunde. Audit Bureau of Shunde City, the State Administration of Taxation to shun tax referendum word [2002] No. first "administrative reconsideration decision", change the application ofthe [1997]134 text, document [2000]182, and document [2000]187 document, to be recovered 651581.59 yuan in taxes. Du Weiqiang refuses to accept, and administrative proceedings, request to cancel the appellee to make a reconsideration decision. The court made in August 21, 2002 (2002) smoothing method for early word no. thirteenth administrative decision, the decision to withdraw the appellee to shun tax referendum "[2002] first" administrative reconsideration decision ", and the decision by the appellant to make the decision of reconsideration. Audit Bureau of Shunde City National Tax Bureau in September 16, 2002 to make a smooth tax referendum word [2002] No. second "administrative reconsideration decision", think: according to Guoshuifa No. [1997]134 "notice" the State Administration of Taxation on Xukai invoice processing problem of getting taxpayer provisions and the "people's Republic of China on tax collection and management law" (revised in February 28, 1995) fortieth the provisions of paragraph 1, that made the original Shunde State Tax Bureau Inspection Bureau of the "tax treatment decisions" that the facts were not clear, erroneous application of the law or regulations, shall be changed in accordance with the law, the qualitative behavior of Du Weiqiang for tax evasion, tax deduction of 651581.59 yuan has been decided. Du Weiqiang to shun tax referendum "[2002] second" administrative reconsideration decision "is still not satisfied, then bring an administrative lawsuit.
  

   The court held that: issued by the Chaoyang city and Jieyang city the two Tax Bureau letter, made by the Department of state taxation organs real invoice content to their area issued the administrative act, the administrative behavior that behavior is effective, not be effective legal document revocation, is 27 copies of invoices can be as a proof of the Xukai invoice to sale goods trade, no evidence. In this regard, the appellee that the appellant to collect the 27 invoice Xukai invoice is and no goods trade, and the others Xukai invoice, declaration of tax to the tax authorities of the facts, the court for confirmation. The plaintiff issued by the Chaoyang city and Jieyang City, the two tax bureau letters reflect the situation not true proposition, because the plaintiff filed this lawsuit is not the defendant made the decision of reconsideration, therefore, issued by the Chaoyang city and Jieyang City, the two tax bureau of the letter in the case is not the scope of judicial review. And the original Shunde State Tax Bureau Inspection Bureau has access to the account verification, the evidences obtained were unable to prove that the plaintiff and the invoice unit real transaction records. At the same time, the defendant in the investigation and to order the applicant submit refuted the two tax authorities to prove evidence of relevant content, but the plaintiff did not submit rebuttal evidence corresponding. Therefore, the plaintiff claims and billing unit real transaction claims, the court shall not accept. According to the State Administration of Taxation in August 8, 1997 made ofthe [1997]134 "notice" the State Administration of Taxation on Xukai invoice processing problem of getting taxpayer rules: the drawee by others falsely making out special invoices, the tax authorities to declare a tax deduction for tax evasion, should be in accordance with the "PRC tax collection and management law" and the relevant provisions. Tax. At the same time, due to violations of law the plaintiff occurred in the "PRC tax collection and management law" revised in April 28, 2001, and therefore should be applied before the amendment "PRC tax collection and management law". In accordance with the requirements of the law fortieth: "taxpayers...... Or a means of false tax returns, fails to pay or underpays tax evasion, is." Therefore, violations can confirm the plaintiff constitute the tax evasion behavior, we should apply the method. At the same time, the defendant in the Shunde District People's Court (2002) along the statutory time method for early word no. thirteenth administrative verdict after the entry into force of the re make the decision of reconsideration, in compliance with the statutory procedures. In summary, the defendant made the "administrative reconsideration decision", finds that the facts are clear, the evidence is sufficient, correctly applies the law, legal procedures, in accordance with the law shall be maintained. The decision as follows: maintain the defendant made in September 16, 2002 by tax referendum word [2002] No. second "administrative reconsideration decision".

 

    The appellant Du Weiqiang refuses to accept the verdict, the appeal said: first of all, the original inspection bureau of State Taxation Bureau of Shunde's Shunde state tax bureau within institutions, has the qualification of subject of law enforcement and not in violation of tax laws, regulations of behavior, not in his own name to make the tax treatment decisions, the appellee also not the superior departments in charge, should not be the case of the administrative reconsideration organ. Secondly, the program of specific administrative act by the appellant to illegal. The appellee in making administrative behavior, not the relevant evidence submitted to the appellant to cross examination, deprived of the appellant's rights, shall be revoked according to law. Once again, the administrative reconsideration appellee decisions beyond the appellant to apply for reconsideration. For a reconsideration of the appellant, change or cancel the decision of administrative processing requirement only, and the decision of the original administrative handling decision to pursue only the appellant has tax deduction, but by the appellant but that the appellant's behavior of the tax evasion, aggravated the processing of the appellant, it violates the legal provisions. Once again, the appellee to re make Shun tax referendum word [2002] No. second "administrative reconsideration decision" and cancelled the reconsideration decision, in violation of the administrative litigation law the fifty-fifth regulation. Finally, according to the "Supreme People's Court on some issues of administrative litigation evidence rules" first, the provisions of article third, appellee submitted to the court in the case of first instance of the appellant statement notes and self-report data can not be used as the basis for affirming the facts of this case. To sum up, the program of specific administrative act by the appellant made illegal, a judgment error, please the court of second instance shall be amended according to the law.

 

   The appellee Foshan Shunde District National Taxation Bureau reply said: first of all, the appellee has the authority of administrative reconsideration of the case. Shunde District National Taxation Bureau Inspection Bureau has law enforcement entity, the tax authorities at a higher level is Shunde District National Taxation bureau. Shunde State Taxation Bureau on the basis of "section second" Administrative Reconsideration Law of the people's Republic of China shall enjoy twelfth, administrative reconsideration law. Secondly, the program of specific administrative act by the appellant to legitimate. Before the decision of administrative punishment of the appellant, has passed the "tax administrative punishment matters notice" to inform the appellant punishment amount and the legal basis, and inform the appellant statements, defenses, enjoy the right to hearing. The appellant shall apply, in accordance with the statutory procedures held hearings. During the hearing, will be made on the basis of all the evidence and the punishment of administrative penalty appeal to people as the present, the appellant has also carried on the pleadings and cross examination. In addition, the "administrative review law" of the people's Republic of China stipulates that the twenty-eighth the reconsideration organ shall examine the specific administrative act by a respondent, this review is comprehensive, but is not limited to the applicant's application scope, the Appellant maintains the reconsideration organ must not exceed the application for administrative reconsideration request scope of the lack of legal basis. Once again, the appellee to re make the decision of reconsideration and the original decision is not the same, and that the facts clearly, correctly applies the law, legal procedures, shall be maintained. Finally, the appellee submitted to the court in the first instance when the appellant statement records and self-report data extraction through legal procedures, should be used as the basis of fact. To sum up, the original judgment was correct, please the court of second instance shall be maintained.

 

   Trial court that: according to the "notice" provisions promulgated by the general office of the State Council Concerning Taxation on deepening the reform of tax administration plan and the State Administration of Taxation of the "on deepening the reform of tax collection and management scheme", and according to the Guangdong Provincial State Tax Bureau issued "on the set of the state taxation bureaus at all levels of check of bureau of notice" (Guangdong Guoshuifa No. [1998]039) and "Guangdong Province State Taxation Bureau of municipalities, county (city, district) Office of the State Administration of Taxation functions configuration, their internal structure and staffing requirements" (Guangdong Guoshuifa No. [2001]103), Audit Bureau of Foshan city Shunde District State Tax Bureau is set up in accordance with the provisions of the State Council and to the tax authorities the public, the tax authority belongs to the "fourteenth provisions of the people's Republic of China tax collection and management law", to enjoy the tax authorities to exercise taxation and investigate and deal with violations of tax laws and regulations, their functions and powers according to law, can be the name of an administrative decision. At the same time, according to the provisions of the second paragraph of "the administrative reconsideration law" of the people's Republic of China in twelfth, the superior departments in charge Foshan Shunde District National Taxation Bureau as Foshan Shunde District National Taxation Bureau Inspection Bureau, enjoy the administrative decision Foshan District of Shunde State Tax Bureau Inspection Bureau made for administrative reconsideration of their functions and powers according to law. The Appellant maintains the appellee Foshan Shunde District National Taxation Bureau does not have the qualification of the administrative reconsideration organ that mistake, the court shall not support.

 

   The appellee on the application for administrative reconsideration receives the appellant shall accept the post, according to law, and made Shun tax referendum administrative reconsideration decision [2002] first words within the statutory time limit after the reconsideration decision, because the facts are not clear, applicable laws, regulations Foshan error by the Shunde District People's Court (2002) along the line at the beginning of the word no. thirteenth administrative decision to withdraw, and order the respondent to make an administrative reconsideration decision. The appellee was within the statutory time limit to make the tax referendum administrative reconsideration decision [2002] second words, the reconsideration decision that the appellant by others Xukai invoice, declaration of tax to the tax authority behavior constitute the tax evasion, tax and make decisions, the evidence fully, finds that the facts are clear, the applicable law is correct administrative reconsideration, and revocation decision in ascertaining the facts and law, not in violation of the provisions of the administrative litigation law article fifty-fifth, in accordance with the law shall be maintained. Take a written examination method based on the principle of "administrative reconsideration, the administrative reconsideration law of the people's Republic of China" the provisions of article twenty-second, and was applied to decide the punishment is not the original administrative behavior of administrative reconsideration of administrative decisions, but ordered the payment of taxes owed, the scope of the provisions is not the law the behavior must be a hearing, the appellant that the respondent makes a decision of administrative reconsideration procedure illegal deprivation of the defense rights, claims, the court shall not support.

 

   In addition, according to the "administrative review law" provisions of the people's Republic of China in twenty-eighth, a comprehensive review of the specific administrative act shall be the reconsideration application for reconsideration, and enjoy the specific administrative behavior change, revoke the authority for reconsideration. The Appellant maintains the appellee change the original administrative processing decided that the character of the act, which belongs to the scope of administrative reconsideration request beyond claims there is no legal basis, the court shall not support. Finally, by the appellant in the first instance to submit to the court which made in administrative behavior in the process of the appellant statement notes and self-reported material evidence, did not violate the provisions of the Supreme People's court "" on some issues of administrative litigation evidence of the provisions of article third, the appellant that the evidence can not be used as the basis of fact claim is erroneous understanding of laws and regulations, the school had not supported. In summary, the appellee to shun tax referendum administrative reconsideration word second [2002] decided that the evidence is sufficient, the applicable law, regulations, compliance with the statutory procedures, the decision to maintain the correct decision, in accordance with the law shall be maintained. Therefore, in accordance with the "administrative procedure law of the people's Republic of China" article sixty-first (a) of the Convention, the decision as follows: rejecting the appeal, upheld the.

 

Case analysis:

 

   A,Chaoyang city and Jieyang City, the two tax bureau reply letter evidence effect

     

   In this case, the original Shunde crack down on cheating export tax rebate work leading group office of Chaoyang state tax bureau and the State Tax Bureau of Jieyang city on the enterprises set up receiving VAT invoice verification, the two tax bureau to stating "no invoice, falsely making out invoice trading goods" and "false enterprise, bank bill payment do not match, no goods transaction". Then issued foreign tax authorities to reply letter can directly as the court, based on facts? The court of first instance verdict reason that made the authenticity "Department of national tax agency invoice issued to within its jurisdiction of administrative act, the administrative behavior that behavior is effective, not be effective legal document revocation, 27 copies of invoices can be used as proof of falsely making out the invoices, no evidence of sales of goods trade".

 

   I disagree with the above opinion, the reasons are as follows:

  

  (1) commissioned by the subject is not the defendant investigation letter.

   

   In order to prevent and combat fraudulent special VAT invoices and other illegal and criminal activities, strengthen the value-added tax invoice management investigation, the State Administration of Taxation has formulated "the special VAT invoice checking management approach". The documents prescribed in article second: "the county or the tax authorities above the county level (hereinafter referred to as the trustee) must be in accordance with the present measures, the tax authorities to accept other regions (hereinafter referred to as the client) by or in accordance with the tax authorities at a higher level arrangement, on the questionable or have identified false open special VAT invoice verification and processing." In this case the Shunde crack down on cheating export tax rebate work leading group office is the invoice verification of the client, not the provisions of the client, and the letter issued by the inspection bureau is not Shunde District State Tax Bureau, Shunde District National Taxation Bureau Inspection Bureau directly according to the correspondence to make treatment decisions in violation of the statutory procedures;

 

 (2) investigation reply letter confirmed fact must accept the testimony in court.

 

  According to the "Regulations" provisions on some issues of administrative litigation evidence of the sixty-eighth Supreme People's court, the court can be directly recognized "the following facts: (a) as everyone knows the facts; (two) the natural law and the theory; (three set) in accordance with the law the presumption of fact; (four) facts proved legally; (five) according to the rule of daily life experience of presumption. Paragraph (a), (three), (four), (five), the parties have sufficient evidence to prove otherwise." "The Supreme People's according to law court evidence in some administrative litigation problems about" seventieth content, the current administrative rules of evidence that "the entry into force of the people's court judgment or arbitration documents to confirm the facts, can be used as the verdict." Chaoyang, Jieyang issued by the tax authorities of the letter belongs to administrative confirmation behavior, the behavior is not confirmed can prove its correctness, but subject to cross examination can be used as the basis for decision. The court held that the administrative behavior has not been effective legal documents in the revocation of the former, which can be used as evidence of understanding is wrong to determine the administrative and judicial judgment of res judicata confused. Make foreign administrative certificate as evidence still needs to be subject to judicial review of the court, the tax authorities should not only provide proof letter itself, facts and legal basis to provide the proof behavior on the basis of.

 

 (3) reply letter does not accord with the basic characteristics of investigation of evidence; investigation reply letter belongs to internal correspondence the tax authorities, in the "Zhuhai state tax bureau Beijing Bo three Electromechanical Equipment Co Ltd v. undo" falsely making out special invoices for value-added tax "and" written evidence has confirmed falsely making out special invoices for value-added tax notice "case" in Zhuhai City Intermediate People's court, that, send Audit Bureau of Zhuhai City, the IRS "false proof" and "notice" is built on the basis of the case has been cracked, and the tax authorities is correspondence between, does not have the external validity, not the specific administrative act.

 

   In addition, the author thinks that legal assistance act of the tax organ itself is still in doubt. Investigation behavior does not belong to the administrative entrustment, in accordance with the administrative entrustment theory, the administrative entrustment is refers to the administrative organ of social public power entrusted to organize outside the administrative organ system or private right organization, in the name of the administrative organ to exercise some administrative functions, for some administrative affairs, and the administrative organ shall bear corresponding legal liability system. Therefore, the administrative organ can not become the object of the administrative entrustment. According to the present administrative law theory of division, investigation behavior belongs to administrative assistance. The so-called "administrative assistance", refers to the process in the official start, after the exercise of administrative powers, because the law or fact constraints, the administrative subject unable to perform duties or to perform their duties will bring serious economic need not, based on the public interest, the administrative subject to non subordination relations proposed by requests for assistance, subject at the request of its authority to request the main administrative duties from side to help or by request body and asked subjects to the administrative relative person to exercise the administrative power, and bear the corresponding legal responsibility behavior and system [note 4]. But in view of administrative assistance is only seen in sporadic laws and regulations, academic circle is still in research stage of its basic system. From the existing legal provisions on administrative assistance, only seen in sporadic laws and regulations, the administrative entrustment current laws and regulations of tax collection and management level has no law basis, "value-added tax invoices investigation management approach" the legal level is too low, the lack of legal basis. Administrative entrustment of the current laws and regulations of tax collection and management level has no law basis, the lack of law basis. Create a great sensation in the 2007 Hurun rich Zhou Weibin tax evasion in the judgment of first instance, the court Foshan City Sanshui District, the tax authorities tax inspection of Jinguan company is not according to the crown's books, but through a letter all over the country tax authorities, the reply data as the basis, the evidence from this inspection method, there are important defect, decided Jinguan company does not constitute the crime of evading taxes [note 5].

 

  Two, the defendant to make a reconsideration decision is appropriate?

 

   In this case the qualitative behavior of the reconsideration organ for tax evasion and punish, compared with its subordinate units so decided, processing content increased administrative fines, penalties and further aggravated. This kind of behavior is appropriate? "Administrative review law" the twenty-eighth regulation, the administrative reconsideration organ to make the decision of reconsideration, according to different circumstances, can be made to maintain the specific administrative act or revocation, modification, to confirm the specific administrative act as illegal decision, and may order the respondent to make a specific administrative act within a time limit. However, the administrative reconsideration organ can add new kinds of punishment in the administrative punishment or other specific administrative behavior or aggravate the applicant's punishment, there is no explicit legal provisions. Trial court that the reconsideration organ may conduct a comprehensive examination of the specific administrative act is the application for reconsideration, the reconsideration decision process is recognized units of the original specific administrative act including increase scale, change.

 

   The author thinks, this problem though the law does not specify, but other laws and regulations in the "appeal not infliction" and "provision of the administrative litigation shall not impose a heavier punishment". Such as "criminal procedural law" the 190th regulation, the people's Court of second instance trial the defendant or his legal representative, counsel, close relatives of the appeal case, shall not increase the criminal punishment on the defendant. "The Supreme People's Court on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" the provisions of article fifty-fifth, the people's courts shall not add to the punishment. The legislative purpose of "Administrative Reconsideration Law", the administrative reconsideration rules to the taxpayer's right relief and not increase their burden, therefore the administrative reconsideration organ on the review undertaken by the administrative punishment or other specific administrative act, the applicant should not be increased or aggravated punishment. State Environmental Protection Administration in 2001 as the administrative reconsideration organ can aggravate the punishment of the applicant's written request the Standing Committee of the NPC, reply of the NPC Standing Committee, said: "the administrative reconsideration organ for reconsideration on administrative punishment or undertaken by the other specific administrative act, the administrative reconsideration decision shall be the administrative punishment or the specific administrative act to increase the penalties for the applicant or aggravated punishment."Therefore, in this case the reconsideration organ in the reconsideration decision, the plaintiff for tax evasion behavior qualitative and give punishment, in violation of the spirit of the law.