Local Dingnan county Zhang Huai v. Tax Bureau

 Questions: how to calculate the initial period of the taxpayer to file an administrative reconsideration?  

 The case:In December 29, 1999, Zhang Huai and Zhang Shengfu 18 people buy Dingnan County auto repair factory bankruptcy assets to 600000 yuan price partnership (including plant, dormitories and land 4292.28m2), then they will allocate the remaining 2303.56 m2 land open to the community to obtain the land transfer, the transfer of 376352.60 yuan, after the internal settlement dispute, one of 17 people partners to Zhang Huai to bring a civil lawsuit to the defendant, Dingnan County court. Dingnan County in January 9, 2001 Local Taxation Bureau Inspection Bureau inspection found Zhang Huai, 18 people have the remaining land transfer behavior of 2303.56 m2 to the public tender. therefore, according to the relevant tax laws and regulations, provisions, to Zhang Huai 18 issued a fixed tax collection by word (2001) No. twenty-seventh tax inspection treatment decisions, decided to impose its local taxes totaling 58216.79 yuan, and from January 5, 2001 onwards daily peak hour overdue tax payment is 2/1000. All taxes in Dingnan County Local Taxation Bureau in January 11, 2001 with a letter is required in Dingnan county court to assist withholding Zhang Huai, 18 people. Dingnan county court in assisting the buckle end should deduct taxes, will the remaining money in 2001 before 2 March, have all returned to Zhang Huai 18.

   In November 10, 2004, Zhang Huai in Dingnan County Local Taxation Bureau did not strictly in accordance with national tax policies and laws, regulations, tax on appeal, Dingnan County Local Taxation Bureau on 21 August, Dingnan County Local Taxation Bureau of Zhang Huai's appeal to reply. In January 19, 2005, Zhang Huai to Dingnan County Local Tax Bureau to apply for administrative reconsideration. Dingnan County Local Taxation Bureau think that Zhang Huai has neither applies for reconsideration subject qualification, apply for reconsideration and exceed the legal time limit for application. 24 in the same month made local complex is not affected by the word (2005) 1, refuses to accept the reconsideration decision. Zhang Huai refuses to accept, lodge an administrative lawsuit in Dingnan County People's court.

   The court held that the Inspection Bureau of Local Taxation, Dingnan County of 18 people to make the tax collection of tax treatment decisions is the execution of tax inspection duties, and tax law, perform their statutory duties in accordance with the law. Where the defendant to the plaintiff Dingnan County Tax Bureau Zhang Huai to apply for administrative reconsideration made inadmissible book, decided to review legal procedures, applicable law is correct, finds that the facts are clear. The payment of taxes on time although occurred in 2001 March, taxpayers tax dispute with the tax authorities, may apply to the tax authorities at the next higher level for reconsideration in receipt from the tax authorities within 60 days. But the May 1, 2001 implementation of the new tax collection and management law in tax with the tax authorities on tax disputes, clearly stipulates the taxpayer must be in accordance with the provisions of laws, administrative rules and regulations shall apply to the payment of taxes, the tax law before the promulgation of this law are different from the provisions of this law. In addition, the taxation administrative reconsideration rules of the State Administration of Taxation issued eighth orders of the "(Provisional)" the provisions of article fourteenth, the taxpayer applies for administrative reconsideration period is from know to apply for administrative reconsideration within 60 days as of the date of tax payment. Therefore, the plaintiff Zhang Huai as taxpayers in 2001 March had know tax has been withheld, apply for reconsideration to the tax payment period from 2001 March to calculate and raise administrative reconsideration. Local Taxation Bureau of Dingnan County defendant the plaintiff Zhang Huai to apply for reconsideration application in aging basis is in accordance with the law, the plaintiff applies for administrative reconsideration has exceeded the statutory time limit, that November 21, 2004 was received tax certificate copy is caused by illegal law enforcement inspection bureau, set up artificial barriers to the plaintiff, the plaintiff applies for administrative reconsideration to stop behavior, there is no legal and factual basis, the plaintiff refuses to accept the decision of administrative reconsideration receives approximately 15 to the court to bring an administrative lawsuit, the defendant is not the main grid and to prosecute, in accordance with the law, it shall be accepted. Prosecution of the defendant claims the plaintiff should be dismissed reason not established, shall not be accepted. In accordance with the "administrative procedure law of the people's Republic of China" article fifty-fourth (a), the Supreme People's court "on the implementation of 'issues' Administrative Procedure Law of the people's Republic of China" the interpretation of article fifty-sixth (four) regulation, decision: a fixed tax, maintain Dingnan County Local Taxation Bureau made in January 24, 2005 the complex is not affected by the word (2005) 1, refuses to accept the reconsideration decision; two, rejected the plaintiff Zhang Huai's other claims.

   Zhang Huai the verdict of the first trial, Appeal said: 1, the appellant to buy is the court declared bankruptcy enterprise property (including land). According to the stipulations of the contract, the land transfer payments and transactions tax borne by the liquidation group, the appellant not taxable. 2, the appellant has not received the tax payment certificate issued by tax authorities, supreme prosecutor after the appeal, the appellee Dingnan County Local Taxation Bureau in November 21, 2004 to the appellant a reply at the same time to the taxpayer 5 Dingnan County People's court tax certificate copy. Therefore, the local tax in Dingnan County on 19 January 2005 the bureau to apply for reconsideration does not exceed the statutory time limit. The Appellant maintains, Dingnan County Local Taxation Bureau tax payment vouchers not timely pay the taxpayers is a violation of the law, intentionally to the appellant appeals from obstacles, exercising rights. The trial court, not to consider the appeal of the vulnerable status, subjective judgment to maintain, I request trial court to rescind the original judgment, the judgment of Dingnan County Local Taxation Bureau perform their statutory duties.

  The appellee Dingnan County Local Taxation Bureau in reply said: in December 29, 1999 the appellant Zhang Huai, 18 people partnership buy Dingnan County auto repair factory bankruptcy assets to the transfer of land use rights has not taxable income, tax declaration, the appellee shall make a decision and has served the people, at the same time, the appellee has commissioned Dingnan County People's Court of appeals people Zhang Huai 18 Transfer of land taxes are withheld. Dingnan county court in withholding tax bureau immediately after me, I Bureau in March 19, 2001 issued a tax payment receipt. Dingnan county court in 2001 March the remaining money back to Zhang Huai 18 people, they have to endorse. Therefore, the appellant Zhang Huai in March 2, 2001 in court to receive the remaining has been fully know the court has to tax authorities tax withholding receivable place, if the appellant to tax authorities have objections to their taxation, taxpayer according to the tax administrative reconsideration rules "(Trial)" the provisions of fourteenth, from know how to apply for administrative reconsideration within sixty days of the date of tax payment. But the appellant Zhang Huai to 2005 January to apply for administrative reconsideration, and without any justifiable reason, is clearly more than the law and the administrative review period. The appeal claimed that he did not receive tax receipts, I do not know the tax authority has imposed a tax act, the reconsideration period 2004 November received the reply from the tax authorities and tax certificate copy the reason cannot be established. Because, the appellant Zhang Huai, 18 people in 2001 2 - March from their land back court transfer balance has been know the court has to withhold the tax due, in March 19th the same year the court will withhold tax payment of the tax authorities, the appellee has made five different types of tax receipts. The tax payment receipt is 18 whole ticket, the appellant did not receive not received on behalf of others, not to prove that the appellant shall not know that they have to pay taxes, even if the appellant did not keep tax receipts, as long as the Appellant had after tax objection may apply for administrative reconsideration within sixty days, but the fact proved that, the appellant did not from the period 2001 March to 2004 years in December put forward a formal written application for reconsideration, so the appellant's reconsideration period already over, and no legal justification, the appellee, make a decision of rejection is a fact and legal basis. The trial court to maintain is correct, please the second instance court dismissed the appeal, upheld the.

   Trial court that, according to the tax is the tax authorities shall perform their statutory duties, national tax law stipulates that citizens have the obligation to pay taxes according to law, conduct the appellant Zhang Huai is the transfer of land, the initiative to pay taxes should be in accordance with the law. According to relevant state provisions of the tax law, institutions, agencies can, such as community organizations become the withholding agent. Dingnan County Court although legal duty not to withhold Dingnan County Local Taxation Bureau, but it is based on the Local Taxation Bureau letter Dingnan assist withholding Zhang Huai, 18 person of the amount of tax payable no inappropriate behavior. Zhang Huai if there are objections to the tax authorities of tax behavior, can exercise their rights according to law, to seek relief. The appellant in January 11, 2001 signed the tax treatment decisions when they have decided to book, and to know if there is any dispute, must be in accordance with the provisions of laws, administrative regulations and pay taxes and fines, and then can be received within sixty days of the local tax authorities for reconsideration of local tax authorities date of receipt of a payment receipt. The appellant in 2001 March 2 days in Dingnan county court cases from the back the money was actually know the court has to withhold the Dingnan County Local Taxation Bureau decision requires its own pay local taxes. At this time, the appellant may exercise the right to apply for reconsideration. Although the appellee decision to deal with informed "can receive the tax authorities tax payment or apply for reconsideration within sixty days after the tax payment voucher." But not necessarily with proof of tax payment, the tax authorities to accept the application for reconsideration. The appeal said they had never received the tax receipts, therefore, is still not over the review period. Tax payment receipt is not an administrative legal document, it is not must be served on the requirements for entry into force. Tax receipts are mainly on the basis of not for reconsideration, treatment decisions made by tax authorities is the specific administrative act, the tax is a kind of way, to perform the specific administrative act so, treatment decisions is the basis for reconsideration.

   If the appeal that must hold the tax payment receipt to apply for reconsideration, appeal people have know their tax and no tax certificate, shall actively and timely reflect its case to the tax authorities for tax payment certificate, apply for reconsideration, the exercise of rights. But the appellant failed from 2001 March to 2004 December in the years to the tax authorities to put forward their own did not receive tax receipts, and no request reconsideration application. According to the Supreme People's court "on the implementation of 'issues' Administrative Procedure Law of the people's Republic of China to explain" forty-first "executive specific administrative acts, did not inform the citizens, legal persons or other organizations the right to appeal or the prosecution, prosecution deadline from the citizen, legal person or other organization knows or ought to know that the calculation of the right of appeal or the prosecution maturity date, but he knows or should know that the provisions of the specific administrative act within a period not exceeding two years.". The appellant Zhang Huai from January 11, 2001 to sign the letter of treatment and in March the same year in Dingnan county court cases subject paragraph back already know the content of specific administrative acts, the appellant to 2005 January to formally Dingnan County Local Taxation Bureau of the application for reconsideration, the statutory period of more than two years. The appellant appellee collected taxes not to issue tax payment receipts tax, set up artificial barriers claims, no basis in fact, the court shall not support. The appellant to that he did not receive payment receipts should be regarded as no more than the period of the request, no legal basis, the court shall not accept. The appellee Dingnan County Local Taxation Bureau undertook the specific administrative act shall not accept the truth and law, the trial court to maintain the correct. In accordance with the "administrative procedure law of the people's Republic of China" article sixty-first (a) the provisions of item, the decision as follows: rejecting the appeal, upheld the.

 Case analysis:

    This is a typical case of bad decision. Although the facts of this case is very clear, but from the judgment reason view, court understanding of tax provisions and the legislative intent of the serious deviation:

  One, the tax authorities will court withholding legal?

   In this case, the court to assist the tax authorities tax fact in the tax law (2001 Revision) issued before, the detailed rules for the implementation of the people's Republic of China in accordance with the law on the administration of tax collection was applied (1993) the provisions of thirty-second: "the tax authorities in accordance with the relevant provisions of the state may entrust related units to collect a few scattered the tax, and issued a certificate of a commissioned tax. A commissioned unit to collect the certificate, the tax collector." From the tax authority approach, to assist in the implementation of the contents of the documents in the letter instead of formal certificate of a commissioned tax does exist irregularities in the Commission form. In addition, the court's statement will apparently commissioned tax withholding behavior mistaken. Withholding is a statutory obligation, which obviously does not apply to the court. Because the court as a cube, is not only the payment transaction, auction, the buyer can become law meaning of the withholding agent.

  The initial period of two, how to calculate the tax administration reconsideration?

   The court of second instance are of the view that the taxpayer to file an administrative reconsideration period from the court to receive the money from the case, the reason is "mainly based on the tax payment receipt is not for reconsideration of the decision, the tax authorities is the specific administrative act, the tax is to perform a method, the specific administrative act. So, the decision to it is the basis for reconsideration. If the appeal that must hold the tax payment receipt to apply for reconsideration, appeal people have know their tax and no tax certificate, shall actively and timely reflect its case to the tax authorities for tax payment certificate, apply for reconsideration, the exercise of rights."

   The author thinks that the special court did not correctly understand the tax administrative reconsideration. Tax collection and management law article fifty-sixth amended in 1998, stipulated taxpayers to file an administrative reconsideration condition, namely " taxpayers, withholding agents, tax payment guarantor disputes with the tax authorities on payment of tax, must first pay or remit the amount of tax and overdue fine in accordance with the provisions of laws, administrative regulations, and then can receive tax authorities for reconsideration a level within sixty days from the tax authorities tax payment certificate date. The 2001 revision of the law on the administration of tax collection and administration law eighty-eighth article fifty-sixth basic consistent, but no clear starting time limit administrative reconsideration, tax administrative reconsideration rules issued in 2004 "(Provisional)" thirteenth with "Ninth" for administrative reconsideration law of the people's Republic of China Regulations, provisions from the taxpayers know starting period calculation of the specific administrative acts of the day. In this case the tax authorities have been on January 9, 2001 issued a tax treatment decisions and have served, taxpayers in March 2nd from the court to receive a court case object, so that the taxpayer has to know the contents of specific administrative acts, administrative reconsideration starting period at the latest in March 2, 2001. The reasoning process of court, there seems to be no logical problem. But it ignored the taxation administrative reconsideration filed the key condition that "must be in accordance with the laws, administrative rules and regulations shall pay or remit the amount of tax and overdue fine", this is also the reason why tax receipts as evidence in the reconsideration procedure in very important. In accordance with the provisions of the tax law, the taxpayer administration reconsideration not only to prove the existence of a specific administrative act, but also prove that it has to pay taxes and the tax payment receipt is the fact, that has performed the key evidence of the obligation of tax payment, there is no such evidence, the taxpayer will not confirm the qualifications administration reconsideration. As the court said the "taxpayers should take the initiative to ask for taxable vouchers" reason in law is untenable, because of the tax administration law (1998) twenty-second of the tax collection and management law (2001) thirty-fourth are specified by the tax authorities of tax receipts must be issued to the taxpayers, the law emphasizes the active obligation of tax authorities, rather than taxpayers need to apply for the license.

      Furthermore, the Supreme People's court "on the implementation of 'of the people's Republic of China Administrative Procedure Law' interpretation of several issues" forty-first stipulates, "the executive specific administrative acts, did not inform the citizens, legal persons or other organizations the right to appeal or the prosecution, prosecution deadline from the citizen, legal person or other organization knows or should know the right calculation or prosecution deadline date, but he knows or should know that the content of specific administrative acts date not exceeding two years". Set a barrier to taxpayers in this case because of the administrative reconsideration filed system, in fact deprived of the exercise of the right to litigation, even after the elimination of obstacles, may also be due to exceed the maximum limitation of action and eventually loses the relief way.