原文地址：https://plus.google.com/u/0/106372800511710859472/posts/UE7WqDPGaN3
行政复议申请书
申 请 人：北京发课文化发展有限公司 住 所 地：北京市朝阳区崔各庄乡草场地村258号（邮政编码：100015） 法定代表人：路 青
被 申请 人：北京市地方税务局第二稽查局
申请事项：
1、被申请人所依据的《国家税务总局关于印花税违章处罚有关问题的通知》（国税发【2004】15号）不合法，申请对该规定予以审查；
2、请求依法撤销被申请人作出的《北京市地方税务局第二稽查局税务行政处罚决定书》（二稽税稽罚【2011】56号）。
事实与理由：
被申请人经对申请人2000年11月29日至2010年12月31日涉税事项进行税务检查后，作出《北京市地方税务局第二稽查局税务行政处罚决定书》（二稽税稽罚【2011】56号）（以下简称“《处罚决定书》”），处以罚款6,766,822.37元。
申请人认为，被申请人作出的行政处罚决定是错误的。具体理由如下：
一、处罚决定依据不合法
被申请人作出的《处罚决定书》第二（一）部分载明，“根据《中华人民共和国税收征收管理法》第六十四条第二款及《国家税务总局关于印花税违章处罚有关问题的通知》（国税发【2004】15号）第一条的规定，对你单位未按规定贴花的行为处以3倍罚款13,106.01元”。
上述依据，即《国家税务总局关于印花税违章处罚有关问题的通知》（国税发【2004】15号）载明，“《中华人民共和国税收征收管理法》（以下简称《税收征管法》）、《中华人民共和国税收征收管理法实施细则》（以下简称《税收征管法实施细则》）重新修订颁布后，《中华人民共和国印花税暂行条例》（以下简称《印花税暂行条例》）第十三条及《中华人民共和国印花税暂行条例施行细则》（以下简称《印花税暂行条例施行细则》）第三十九条、第四十条、第四十一条的部分内容已不适用。为加强印花税的征收管理，依法处理印花税有关违章行为，根据《税收征管法》、《税收征管法实施细则》的有关规定，现对印花税的违章处罚适用条款明确如下：印花税纳税人有下列行为之一的，由税务机关根据情节轻重予以处罚：一、在应纳税凭证上未贴或者少贴印花税票的或者已粘贴在应税凭证上的印花税票未注销或者未画销的，适用《税收征管法》第六十四条的处罚规定”。
该文在事实上认为，由于新的法律、法规的颁布，仍有效的行政法规（《中华人民共和国印花税暂行条例》，以下简称“《印花税条例》”）及部门规章（《中华人民共和国印花税暂行条例施行细则》，以下简称“《印花税条例细则》”）中的部分条款既存在下位法违反上位法规定之情形，又存在行政法规之间不一致、规章的规定不适当之情形。
1、下位法违反上位法之情形
就《国家税务总局关于印花税违章处罚有关问题的通知》（国税发【2004】15号）引用的《中华人民共和国税收征收管理法》（以下简称“《征管法》”）较之于《印花税条例》、《中华人民共和国税收征收管理法实施细则》（以下简称“《征管法细则》”）较之于《印花税条例细则》属于上位法与下位法的关系，如果认为下位法违反了上位法，根据《中华人民共和国立法法》（以下简称“《立法法》”）第八十七条“法律、行政法规、地方性法规、自治条例和单行条例、规章有下列情形之一的，由有关机关依照本法第八十八条规定的权限予以改变或者撤销：（二）下位法违反上位法规定的”以及第八十八条“改变或者撤销法律、行政法规、地方性法规、自治条例和单行条例、规章的权限是：（二）全国人民代表大会常务委员会有权撤销同宪法和法律相抵触的行政法规，有权撤销同宪法、法律和行政法规相抵触的地方性法规，有权撤销省、自治区、直辖市的人民代表大会常务委员会批准的违背宪法和本法第六十六条第二款规定的自治条例和单行条例；（三）国务院有权改变或者撤销不适当的部门规章和地方政府规章”之规定，改变《印花税条例》的有权机关应当是全国人民代表大会常务委员会，而不是下发国税发【2004】15号文的国家税务总局；改变《印花税条例细则》的有权机关是国务院，而不是下发国税发【2004】15号文的国家税务总局。
2、行政法规之间不一致之情形
就《征管法细则》与《印花税条例》而言，两者属于同一位阶的行政法规，根据《立法法》第八十五条第二款“行政法规之间对同一事项的新的一般规定与旧的特别规定不一致，不能确定如何适用时，由国务院裁决”之规定，如果两者之间不一致，也应由国务院裁决，而不是下发国税发【2004】15号文的国家税务总局。
3、规章的规定不适当之情形
《印花税条例细则》属于部门规章，根据《立法法》第八十七条“法律、行政法规、地方性法规、自治条例和单行条例、规章有下列情形之一的，由有关机关依照本法第八十八条规定的权限予以改变或者撤销：（四）规章的规定被认为不适当，应当予以改变或者撤销的”以及第八十八条“改变或者撤销法律、行政法规、地方性法规、自治条例和单行条例、规章的权限是：（三）国务院有权改变或者撤销不适当的部门规章和地方政府规章”之规定，如果认为《印花税条例细则》第三十九条、第四十条、第四十一条不适当，也应由国务院予以改变或撤销，而不是下发国税发【2004】15号文的国家税务总局。
二、行政处罚适用法律错误、超越法定时效且处罚失当
除上述行政依据不合法外，被申请人适用法律亦存在错误。且不论“违法事实是否成立”，仅就《处罚决定书》适用依据而言，申请人认为存在如下问题：
1、适用法律错误
现行有效的《征管法》是于2001年4月28日经国家主席令第49号发布，并于2001年5月1日起实施的。根据《立法法》第八十四条“法律、行政法规、地方性法规、自治条例和单行条例、规章不溯及既往，但为了更好地保护公民、法人和其他组织的权利和利益而作的特别规定除外”之规定，“法律不溯及既往”，上述《征管法》只能适用于规范2001年5月1日之后的税收征纳行为。
被申请人《处罚决定书》第一（二）部分，期间为“2000年11月29日至2010年12月31日”， 引用的法律依据却是2001年5月1日施行的《征管法》，且导致《处罚决定书》第二（二）部分也直接适用2001年5月1日施行的《征管法》。
《征管法》早于1993年1月1日起实施，历经1995年2月28日、2001年4月28日两次修订。被申请人何以将2001年5月1日才开始实施的《征管法》适用于2000年11月29日至2001年4月30日？
2、处罚超越法定时效
《中华人民共和国行政处罚法》（以下简称“《行政处罚法》”）属于一般法，而《征管法》则属于特别法，根据《行政处罚法》第二十九条“违法行为在二年内未被发现的，不再给予行政处罚。法律另有规定的除外”、《征管法》第八十六条“违反税收法律、行政法规应当给予行政处罚的行为，在五年内未被发现的，不再给予行政处罚”之规定，按照特别法优于一般法的原则，对于纳税人“违反税收法律、行政法规”之行为的处罚，应适用特别法即《征管法》第八十六条“五年”的处罚时效规定；而对于除“违反税收法律、行政法规”规定以外的其他违法行为，除非对该等行为也存在着特别法的规定，否则应适用一般法即《行政处罚法》所规定之“二年”的处罚时效。
申请人认为，如果适用“五年”的时效规定，必须首先判定被申请人援引的《中华人民共和国发票管理办法》（以下简称“《发票管理办法》”）即财政部令【1993】第006号文是否属于“税收法律、行政法规”。
现行有效的《发票管理办法》是于1993年12月12日经国务院批准、于1993年12月23日经财政部令第6号发布，并根据2010年12月20日《国务院关于修改〈中华人民共和国发票管理办法〉的决定》修订的。根据《立法法》的规定，2010年12月20日修订前的《发票管理办法》属于部门规章，而2010年12月20日修订后的《中华人民共和国发票管理办法》方属于行政法规。故，不论《发票管理办法》的内容是否涉及“税收”，被申请人引用的财政部令【1993】第006号，即2010年12月20日修订前的《发票管理办法》不属于“法律、行政法规”，从而不属于“税收法律、行政法规”。因此，2010年12月20日修订前的《发票管理办法》所规范之“违法行为”当然应适用一般法即《行政处罚法》所规定之“二年”的处罚时效。
被申请人在《处罚决定书》第一（三）部分，时间期间为“2000年11月29日至2010年12月31日”，认定依据即为财政部令【1993】第006号，而与此对应的《处罚决定书》第二（三）部分，处罚依据也为财政部令【1993】第006号。因此，被申请人所谓的“未按照规定开具及取得发票的行为”，均发生于2010年之前，根据前述“法律不溯及既往”原则，应当适用2010年12月20日修订前的《发票管理办法》，即财政部令【1993】第006号，从而被申请人所谓的“未按照规定开具及取得发票的行为”，处罚时效应为“二年”，而 “2000年11月29日至2010年12月31日”竟长达10年之久。
3、处罚幅度失当
被申请人在《处罚决定书》第二（一）、第二（二）、第二（三）部分中，分别按3倍、1.5倍、10,000元、10,000元处以罚款。
根据《北京市地方税务局转发北京市人民政府关于印发行政执法责任制配套制度的通知》（京地税法【2007】349号）之规定，以及《北京市关于规范行政处罚自由裁量权的若干规定》（京政发【2007】17号）第五条“规范行政处罚自由裁量权应当根据法律目的，全面考虑、衡量违法事实、性质、情节及社会危害程度等相关因素，排除不相关因素的干扰；对违法事实、性质、情节及社会危害程度等因素基本相同的同类行政违法行为，所适用的法律依据、处罚种类和幅度应当基本相同”之规定，被申请人应当排除不相关因素的干扰，对同类行为应适用基本相同的幅度，或处罚幅度不应高于情节更为严重的行为。从国家税务总局公布的重大涉税案（参见 http://www.chinatax.gov.cn/n8136506/n8136548/n8136623/8279062.html）可知，北京市地税局2007年6月对北京泰跃房地产开发有限责任公司的纳税情况进行全面检查，认定该公司通过虚假纳税申报，少申报营业税应税收入共计13.53亿元，涉及营业税款6,762.87万元。税务机关责令北京泰跃房地产开发有限责任公司补缴营业税6,762.87万元、城市维护建设税473.4万元、教育费附加202.89万元，加收滞纳金3,246.8万元，并处以罚款3,618.14万元。该案处于房地产敏感行业，且已由国家税务总局认定为重大税案，金额、影响远甚于本案，但其处罚幅度仅为0.5倍。本案中被申请人何以对申请人处以1.5倍乃至3倍甚至最高额的1万元之罚款？
即便对照《北京市关于规范行政处罚自由裁量权的若干规定》（京政发【2007】17号）第七条“制定给予较重行政处罚的标准时，应当考虑下列情形：（一）隐匿、销毁违法证据或者有其他妨碍执法行为的；（二）不听劝阻，继续实施违法行为的；（三）违法情节恶劣，造成严重后果的；（四）胁迫、诱骗、教唆他人实施违法行为的；（五）共同实施违法行为中起主要作用的；（六)屡教不改，多次实施违法行为的；（七）在发生突发公共事件时实施违法行为的；（八）其他可以给予较重处罚的”之规定，申请人不具有上述之任一情形，怎能被施之以较重行政处罚？
4、加处罚款不当
被申请人《处罚决定书》第3页第二段载明，“限你单位自本决定书送达之日起十五日内到北京市朝阳区代理支库缴纳入库。到期不缴纳罚款，我局将依照《行政处罚法》第五十一条第（一）项规定，每日按罚款数额的百分之三加处罚款”。
《最高人民法院关于行政处罚的加处罚款在诉讼期间应否计算的答复》（最高人民法院【2005】行他字第29号）规定，“根据《中华人民共和国行政诉讼法》的有关规定，对于不履行行政处罚决定所加处的罚款属于执行罚，在诉讼期间不应计算”。
第一，该司法解释适用于所有行政机关作出的所有行政处罚决定，而无论该等行政机关是否为税务机关。
第二，既然执行罚在诉讼期间不应计算，同样，在复议期间加处的罚款亦属于执行罚，在复议期间也不应计算。最高人民法院行政审判庭审判长蔡小雪在2008年第11期《人民司法》发表的文章《行政处罚的加处罚款在诉讼期间不应计算》中明确指出，基于行政处罚的加处罚款在诉讼期间仍继续计算的话，将可能导致行政相对人支付数倍于罚款本金的加处罚款，从而可能导致行政相对人对提起行政诉讼望而却步，使行政相对人的诉权得不到充分的保护。这样的做法显然不符合行政诉讼法所确立的保护公民、法人和其他组织依法提起行政诉讼的目的。而根据《征管法》第八十八条第二款“当事人对税务机关的处罚决定、强制执行措施或者税收保全措施不服的，可以依法申请行政复议，也可以依法向人民法院起诉”之规定，当事人如果直接选择向人民法院起诉，则根据《最高人民法院关于行政处罚的加处罚款在诉讼期间应否计算的答复》（最高人民法院 【2005】行他字第29号）之规定，不存在加处罚款。如果当事人选择向税务机关申请行政复议，而行政复议期间如果仍然要加处罚款，则同样导致行政相对人对申请行政复议望而却步，也妨碍了当事人司法选择权的平等行使，这使《征管法》第八十八条第二款所规定的选择权变得毫无意义。因此，被申请人如果机械地援引《行政处罚法》第五十一条第（一）项之规定，而不区分已申请行政复议或提起行政诉讼的情形，必然背离了《行政复议法》所确立的“为了防止和纠正违法的或者不当的具体行政行为，保护公民、法人和其他组织的合法权益，保障和监督行政机关依法行使职权”之目的。
三、事实认定未清，征收方式错误，导致处罚错误
1、事实认定未清，征收方式错误
被申请人作出的《北京市地方税务局第二稽查局税务处理决定书》（二稽税稽处【2011】63号），其采用的是“查账征收”而非“核定征收”。仅就这一方式而言，被申请人存在自相矛盾和错误之处。
根据2009年2月28日实施的《中华人民共和国刑法修正案（七）》第三条之规定，在税务部门作出追缴通知、清缴税款之前，公安部门不能提前介入“逃避缴纳税款”（即《征管法》六十三条之“偷税”）案，而公安部门提前介入此案的理由限于“隐匿、故意销毁会计凭证、会计账簿、财务会计报告”。被申请人也自称其资料来源于公安部门，则由此表明被申请人取得的是账册不全的资料，被申请人认定的所谓“违法事实”必然存在事实不清、依据不足。
根据《征管法》第三十五条“纳税人有下列情形之一的，税务机关有权核定其应纳税额：（四）虽设置账簿，但账目混乱或者成本资料、收入凭证、费用凭证残缺不全，难以查账的”，以及《企业所得税核定征收办法（试行）》（国税发【2008】30号）第三条 “纳税人具有下列情形之一的，核定征收企业所得税：（四）虽设置账簿，但账目混乱或者成本资料、收入凭证、费用凭证残缺不全，难以查账的”之规定，被申请人应当采用“核定征收”方式，而非错误地采用“查账征收”方式。
2、处罚错误
在“核定征收”方式下，被申请人不应对申请人处以罚款。
（1）“核定征收”是事实不清、证据不足下适用的征收方式
根据前引之《征管法》第三十五条及《企业所得税核定征收办法（试行）》（国税发【2008】30号）第三条之规定可知，“核定征收”是指在纳税人的会计账簿不健全，资料残缺难以查账，或者因其他原因难以准确确定应纳税额时，由税务机关依法核定纳税人应纳税额的一种征收方式。即，“核定征收”是在不能取得准确纳税资料的前提下，税务机关退而求其次采取的一种征收方式。
根据《征管法细则》第四十七条之规定，“纳税人有税收征管法第三十五条或者第三十七条所列情形之一的，税务机关有权采用下列任何一种方法核定其应纳税额：（一）参照当地同类行业或者类似行业中经营规模和收入水平相近的纳税人的税负水平核定；（二）按照营业收入或者成本加合理的费用和利润的方法核定；（三）按照耗用的原材料、燃料、动力等推算或者测算核定；（四）按照其他合理方法核定。采用前款所列一种方法不足以正确核定应纳税额时，可以同时采用两种以上的方法核定”。据此，“核定征收”是税务机关采取的最接近于纳税人实际经营情况的一种征收方式，但其核定的应纳税额是在事实不清、证据不足的情况下，税务机关依法定程序计算的结果。
（2）核定征收情形下，违法事实难以准确查清
根据《行政处罚法》第四条之规定，“设定和实施行政处罚必须以事实为依据”；根据《行政处罚法》第三十条之规定，“公民、法人或者其他组织违反行政管理秩序的行为，依法应当给予行政处罚的，行政机关必须查明事实；违法事实不清的，不得给予行政处罚”。
因此，进行行政处罚的前提是违法事实清楚、证据确凿。而核定征收，按照《征管法》的相关规定，是指在纳税人的会计账簿不健全，资料残缺难以查账，或者因其他原因难以准确确定应纳税额时，由税务机关按照法定方法核定纳税人应纳税额的一种征收方式。即核定征收正是在缺少事实、证据的情况下才予以运用的。
因此，在违法事实不清的情况下，简单的采用核定的税额作为罚款的计算依据显然不符合《行政处罚法》的要求。
（3）处罚依据不足
根据《征管法》第六十三条之规定，“纳税人伪造、变造、隐匿、擅自销毁帐簿、记帐凭证，或者在帐簿上多列支出或者不列、少列收入，或者经税务机关通知申报而拒不申报或者进行虚假的纳税申报，不缴或者少缴应纳税款的，是偷税。对纳税人偷税的，由税务机关追缴其不缴或者少缴的税款、滞纳金，并处不缴或者少缴的税款百分之五十以上五倍以下的罚款”。
在认定纳税人的偷税数额时，被申请人应当提供充分的证据证明纳税人实施了《征管法》第六十三条所规定的偷税手段；被申请人亦应查明申请人是否隐匿收入，以及隐匿多少数额的收入；纳税人是否虚列成本，以及虚列多高数额的成本、费用。无论是隐匿收入的证明，还是虚列成本、费用的论证，均需要直接证据准确的予以核实。若证据缺失的，或者证据之间难以形成有效的证据链条，从而无法准确证明所隐匿之收入或者所虚列之成本、费用的，所谓的偷税数额将难以被司法机关所认定。而在核定征收方式下所确定之税款，其既可能小于纳税人实际上不缴或者少缴的税款；也可能高于纳税人实际应缴纳的税款。但该等税款显然并不等于纳税人实际上不缴或者少缴的税款。在被申请人未能或者难以提供充分的证据证明被申请人不缴或者少缴税款的真实、准确数额的情况下，《征管法》第六十三条显然难以适用，对申请人作出处罚当然也就缺乏法律依据。
（4）相关法律、法规对核定征收不予处罚的规定，表明在核定征收方式下不适用偷税认定及处罚
根据《征管法》第三十七条之规定，“对未按照规定办理税务登记的从事生产、经营的纳税人以及临时从事经营的纳税人，由税务机关核定其应纳税额，责令缴纳；不缴纳的，税务机关可以扣押其价值相当于应纳税款的商品、货物”。对于无证经营的纳税人，其从事生产经营的所得当然存在不进行纳税申报、不缴纳税款的情况，但是《征管法》对该等不缴或者少缴税款行为只是核定其应纳税额，而无加收滞纳金或给予罚款等规定。即使因纳税人拒不缴纳核定的税款而依法采取强制措施时，该等强制措施也仅仅针对其价值相当于应纳税款的商品、货物，甚至不包括滞纳金。由此可见，《征管法》的立法原意就已非常明确，对于核定的应纳税额，既无滞纳金，更不应予以罚款。
即使在税务稽查案件中，也仍然存在事后核定征收的情形。如广州市地方税务局印发的《事后核定征收企业所得税和纳税评估补缴企业所得税处罚及加收滞纳金的指引》（穗地税发【2006】192号）第三条规定，“符合《广州市地方税务局核定征收企业所得税暂行办法》（穗地税发【2005】297号，以下简称《暂行办法》）第五条各点情形而事后核定征收企业所得税的处理方法：（一）符合《暂行办法》第五条第（一）点情形的，即‘依照法律、行政法规的规定应当设置帐簿但未设置的’，按《中华人民共和国税收征收管理法》（以下称《征管法》）第六十条规定给予处罚，并加收滞纳金。（二）符合《暂行办法》第五条第（二）点情形的，即‘擅自销毁帐簿或者拒不提供纳税资料的’，参照《征管法》第六十条和第六十二条相关规定给予处罚，并加收滞纳金。（三）符合《暂行办法》第五条第（三）点情形的，即‘虽设置帐簿，但帐目混乱或者成本资料、收入凭证、费用凭证残缺不全，难以查帐的，包括：1.只能准确核算收入总额，或收人总额能够查实，但其成本费用支出不能准确核算的；2.只能准确核算成本费用支出，或成本费用支出能够查实，但其收入总额不能准确核算的；3.收入总额及成本费用支出均不能正确核算，不能向主管税务机关提供真实、准确、完整纳税资料，难以查实的’，如果凭证和相关资料残缺不全，可按《征管法》第六十条规定给予处罚，并加收滞纳金；如果只是帐目混乱，可不给予处罚，仅加收滞纳金。（四）符合《暂行办法》第五条第（三）点第4点情形的，即‘账目设置和核算虽然符合规定，但并未按规定保存有关账簿、凭证及有关纳税资料的’，按《征管法》第六十条规定给予处罚，并加收滞纳金。（五）符合《暂行办法》第五条第（四）点情形的，即‘事业单位、社会团体、民办非企业单位不按规定将取得应纳税收入有关的成本、费用、损失与免税收入有关的成本、费用、损失分别核算，又不能按分摊比例法等合理办法计算应纳税所得额的’，不需给予处罚，只加收滞纳金。（六）符合《暂行办法》第五条第（五）点情形的，即‘企业所得税纳税义务人未按照规定办理税务登记，从事生产经营的’，按《征管法》第六十条规定给予处罚，并加收滞纳金。（七）符合《暂行办法》第五条第（六）点情形的，即‘发生纳税义务，未按照规定的期限办理纳税申报，经税务机关责令限期申报，逾期仍不申报的’，按《征管法》第六十二条给予处罚，并加收滞纳金。（八）符合《暂行办法》第五条第（七）点情形，即‘纳税人申报的计税依据明显偏低，又无正当理由的’，且没有《暂行办法》第五条其他各点情形的，第一次事后核定征收时暂不给予处罚，不加收滞纳金，责令其改正。再次发现有该点情形存在的，移交稽查部门处理”。
首先，该文件明确指出，核定征收既可以事先核定，即按年度经纳税人申请后，就其所得税的征收方式予以鉴定，认定为按应税所得率方式核定征收；同时，该文件也明确规定，并且根据《广州市地方税务局核定征收企业所得税暂行办法》（穗地税发【2005】297号）第一条“为进一步规范核定征收企业所得税工作，加强企业所得税的征收管理，根据《中华人民共和国税收征收管理法》（以下简称《征管法》）及其实施细则（以下简称《征管法实施细则》）、《中华人民共和国企业所得税暂行条例》（以下简称《条例》）及其实施细则（以下简称《条例细则》）和国家税务总局《核定征收企业所得税暂行办法》（国税发【2000】38号，以下简称《核定办法》）的有关规定，结合我市具体情况，制定本办法”，第三条“核定征收企业所得税，按核定的行为与税款所属期的时间先后关系分为事前核定、事中核定和事后核定”，以及第四条“事前核定是指税务机关在企业所得税所属年度结束前，根据纳税人以前月份或年度的情况，对本年未来月（季）税款核定征收；事中核定是指税务机关在纳税人临时取得某项收入，向税务机关提出申请开具发票时，因其有关收入、支出凭证不完整而对该项收入核定征收；事后核定是指税务机关在纳税期结束后，检（稽）查发现纳税人有本办法第五条情形而核定征收”之规定，核定征收也可以事后进行核定，即纳税期结束后，税务机关在稽查过程中发现纳税人有应当予以核定征收之情形的，即可予以事后核定征收。
其次，该文件明确规定，对采取事后核定方式进行征收的，按照《征管法》第六十条“纳税人有下列行为之一的，由税务机关责令限期改正，可以处二千元以下的罚款；情节严重的，处二千元以上一万元以下的罚款”之规定予以处罚，即最高不超过1万元的罚款。即在事后核定征收方式下，并不能适用《征管法》第六十三条关于偷税的规定，当然更不得给予对应的罚款。
申请人认为，首先，税款的核定征收，既可以发生在事前，也可以发生在事后；其次，无论是事前的核定征收，还是事后的核定征收，其执法依据均为《中华人民共和国企业所得税暂行条例》、《中华人民共和国企业所得税法》、国家税务总局关于企业所得税核定征收的规范性文件，以及各地方税务机关关于核定征收企业所得税的操作细则文件，事前核定征收和事后核定征收，并非分别适用不同的法律依据；最后，在采取事后核定征收的方式，既然各地援引的上位法是相同的，各地的执法依据也应当一致，而不应对同一行为出现：在南边给予不超过1万元以下的罚款，而在北边却要给予高达6,733,716.36元的所谓1.5倍罚款。
四、程序错误
根据《中华人民共和国行政复议法》（以下简称“《行政复议法》”）第二十八条第一款第（三）项“具体行政行为有下列情形之一的，决定撤销、变更或者确认该具体行政行为违法；决定撤销或者确认该具体行政行为违法的，可以责令被申请人在一定期限内重新作出具体行政行为：3.违反法定程序的；4.超越或者滥用职权的”、《中华人民共和国行政复议法实施条例》第四十五条“具体行政行为有行政复议法第二十八条第一款第（三）项规定情形之一的，行政复议机关应当决定撤销、变更该具体行政行为或者确认该具体行政行为违法”，以及《税务行政复议规则》（国家税务总局令第21号）第五十五条“行政复议机关应当根据案件的具体情况，从以下方面审查证据的合法性：（一）证据是否符合法定形式。（二）证据的取得是否符合法律、法规、规章和司法解释的规定。（三）是否有影响证据效力的其他违法情形”、 第五十八条“下列证据材料不得作为定案依据：（一）违反法定程序收集的证据材料”之规定，被申请人对申请人作出的处罚决定，应当具有充足的证据；而该等证据应当具备合法性，包括应当经过法定程序取得；如果被申请人违反法定程序收集证据的，则该等证据不得作为具体行政行为的事实依据；同时，若被申请人实施具体行政行为时，存在着违反法定程序之行为的，则其具体行政行为应依法予以撤销。就本案被申请人而言，其执法存在严重违反法定程序及超越、滥用职权之行为，其处罚决定应当然予以依法撤销。
1、被申请人在税务检查前，未依法履行告知义务
根据《税务稽查工作规程》（国税发【2009】157号）第二十二条第一款之规定，“检查前，应当告知被查对象检查时间、需要准备的资料等，但预先通知有碍检查的除外”。
然而，2011年4月6日深夜，在不存在任何有碍检查的情形下，被申请人未依法定程序告知申请人，擅自到申请人委托记账的北京互信财务会计服务有限公司（以下简称“互信公司”），调取了申请人自2000年公司成立至2011年2月的会计资料。
2、被申请人未依法出具税务检查证和《税务检查通知书》
根据《征管法》第五十九条“税务机关派出的人员进行税务检查时，应当出示税务检查证和税务检查通知书，并有责任为被检查人保守秘密；未出示税务检查证和税务检查通知书的，被检查人有权拒绝检查”， 以及《税务稽查工作规程》（国税发【2009】157号）第二十二条第二款“检查应当由两名以上检查人员共同实施，并向被查对象出示税务检查证和《税务检查通知书》”之规定，税务检查人员向被检查对象出示证件和税务法律文书是必备的法律程序。
然而 ，在2011年4月6日深夜，被申请人向互信公司调取会计资料时，却并未履行法定程序，未出示税务检查证和《税务检查通知书》。
3、被申请人调取申请人会计资料严重违反法定程序
根据《税务稽查工作规程》（国税发【2009】157号）第二十五条之规定，“调取账簿、记账凭证、报表和其他有关资料时，应当向被查对象出具《调取账簿资料通知书》，并填写《调取账簿资料清单》交其核对后签章确认。”
但，被申请人到互信公司和申请人处调取会计资料时，均未依上述规定出具《调取账簿资料通知书》，更未填写《调取账簿资料清单》并交申请人核对确认。
4、被申请人调取申请人会计资料未在法定时限内退还
根据《征管法细则》第八十六条“税务机关行使税收征管法第五十四条第（一）项职权时，可以在纳税人、扣缴义务人的业务场所进行；必要时，经县以上税务局（分局）局长批准，可以将纳税人、扣缴义务人以前会计年度的账簿、记账凭证、报表和其他有关资料调回税务机关检查，但是税务机关必须向纳税人、扣缴义务人开付清单，并在3个月内完整退还；有特殊情况的，经设区的市、自治州以上税务局局长批准，税务机关可以将纳税人、扣缴义务人当年的账簿、记账凭证、报表和其他有关资料调回检查，但是税务机关必须在30日内退还”，以及《税务稽查工作规程》（国税发【2009】157号）第二十五条第二款“根据调取纳税人、扣缴义务人以前会计年度的账簿、记账凭证、报表和其他有关资料的，应当经所属税务局局长批准，并在3个月内完整退还；调取纳税人、扣缴义务人当年的账簿、记账凭证、报表和其他有关资料的，应当经所属设区的市、自治州以上税务局局长批准，并在30日内退还”之规定，被申请人向申请人调取以前年度会计资料，应在3个月内完整退还；被申请人向申请人调取当年的会计资料，应在30日内退还。
但，被申请人在上述法定时限届满时，并未依法退回所调取的全部会计资料，且时至今日，仍未退还，不仅严重影响了申请人的生产经营活动，且实质妨碍了申请人听证、复议的权利。
5、税务处罚听证程序违法
根据《行政处罚法》第四十二条“行政机关作出责令停产停业、吊销许可证或者执照、较大数额罚款等行政处罚决定之前，应当告知当事人有要求举行听证的权利；当事人要求听证的，行政机关应当组织听证：（三）除涉及国家秘密、商业秘密或者个人隐私外，听证公开举行”，以及北京市地方税务局印发的《税务行政处罚管理暂行办法》（京地税法【2001】488号）第二章“处罚程序”第三节“听证程序”之规定，听证程序作为实施税务行政处罚的必经程序，在申请人提出要求的情况下，被申请人应当按照规定的程序和要求，组织进行听证。若听证本身违反规定和违反程序的，则必然导致税务行政处罚本身“违反法定程序”，据此，相应的税务行政处罚应依法予以撤销。本案中，尽管被申请人组织了听证，但其听证程序严重违法。
（1）听证未依法公开进行
根据《税务稽查工作规程》（国税发【2009】157号）第五十三条“被查对象或者其他涉税当事人要求听证的，应当依法组织听证。听证主持人由审理人员担任。听证依照国家税务总局有关规定执行”、《税务行政处罚听证程序实施办法（试行）》（国税发【1996】190号）第二条“税务行政处罚的听证，遵循合法、公正、公开、及时和便民的原则”以及第十一条“税务行政处罚听证应当公开进行。但是涉及国家秘密、商业秘密或者个人隐私的，听证不公开进行。对公开听证的案件，应当先期公告当事人和本案调查人员的姓名、案由和听证的时间、地点。公开进行的听证，应当允许群众旁听。经听证主持人许可，旁听群众可以发表意见。对不公开听证的案件，应当宣布不公开听证的理由”之规定，除非涉及国家秘密、商业秘密或者个人隐私，税务行政处罚听证均应公开进行。
2011年6月29日，申请人提交书面申请要求听证。针对被申请人所谓涉及第三方“商业秘密”而“不公开听证”决定，申请人两次向被申请人提出书面异议，但被申请人却拒绝陈述理由。2011年7月14日的听证会表明，被申请人不能向申请人出示任何第三方要求保密的申请。
公开听证是税务行政处罚的程序性要求。本案的听证内容若涉及商业秘密，被申请人也应向申请人释明第三方的书面保密申请。而根据《中华人民共和国刑法》和《中华人民共和国反不正当竞争法》对商业秘密的解释，商业秘密是指“不为公众所知悉、能为权利人带来经济利益、具有实用性并经权利人采取保密措施的技术信息和经营信息”。被申请人却没有任何证据证明第三方信息同时具备上述“不为公众所知悉”、“能为权利人带来经济利益”、“具有实用性”和“经权利人采取保密措施”等诸多特征，所谓“商业秘密”之说，无异于“莫须有”。
（2）申请人的陈述和申辩权被非法剥夺
根据《税务行政处罚听证程序实施办法（试行）》（国税发【1996】190号）第十四条“听证过程中，由本案调查人员就当事人的违法行为予以指控，并出示事实证据材料”之规定，听证实施过程中，被申请人应当向申请人出示据以作出行政处罚的证据材料，并提供原件以便核对该证据的真实性。但被申请人自始仅提供相关证据材料的复印件，且该等复印件也无申请人的签章确认。在被申请人未出示原件供申请人核对的情况下，申请人无法对证据的真实性、合法性和有效性进行确认，同样在实质上剥夺了申请人陈述和申辩的权利。
为维护申请人的合法权益，维系税企双方正常的征纳关系，并维护国家税法及税收执法的权威与公平、公正，申请贵局将被申请人所依据的《国家税务总局关于印花税违章处罚有关问题的通知》（国税发【2004】15号）转交有权机关予以审查，请贵局查明事实并依法撤销被申请人作出的《北京市地方税务局第二稽查局税务行政处罚决定书》（二稽税稽罚【2011】56号）。
此致
北京市 地方税务局
申请人：北京发课文化发展有限公司 法定代表人：路青 2011年12月28日
英译：
Application for Administrative Reconsideration
Applicant: Fake Design Culture Development Ltd.
Domicile: NO. 258, Cao Chang Di Village, Cui Ge Zhuang Town, Chaoyang District, Beijing
Postal Code: 100015
Legal Representative: Lu Qing
Respondent: The Second Investigation Branch of Beijing Local Taxation Bureau
Subject Matter of Application:
1. It is wrongful for the respondent to use Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No. 15) as a basis. So, the applicant applies for a review of the regulation.
2. The applicant requests cancellation of the Written Decision on Administrative Punishment from the Second Investigation Branch of Beijing Local Taxation Bureau ([2011] No.56), made by the respondent, in accordance to the law.
Facts and Reasons:
The respondent made an inspection for tax from November 29, 2000 to December 31, 2010 with the applicant, and then made the Written Decision on Administrative Punishment from the Second Investigation Branch of Beijing Local Taxation Bureau ([2011] No.56) (hereinafter referred to as the written decision on punishment), which imposed a fine of RMB 6,766,822.37.
The applicant believes that this decision is wrong. Specific reasons are as follows:
I．The basis of this decision is unlawful.
In the written decision on punishment made by the respondent, part 2 (1) says, "Under Article 64 (2) of the Law of the People’s Republic of China on the Administration of Tax Collection and Article 1 of the Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No.15), your company is fined RMB 13,106.01 (three times the amount of stamp tax owed) because of the fact that your company does not affix tax stamps according to relevant provisions.”
The Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No.15) has clearly stated that, “After the Law of the People’s Republic of China on the Administration of Tax Collection (hereinafter referred to as Law of Administration of Tax Collection) and the Detailed Rules for the Implementation of the Law of People’s Republic of China to Administer the Levying and Collection of Taxes (hereinafter referred to as Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes) are revised, Article 13 of Provisional Regulations of the People's Republic of China on Stamp Duty (hereinafter referred to as Provisional Regulations on Stamp Duty), Article 39, Article 40 and Article 41 of Detailed Rules for Implementation of Provisional Regulations of the People's Republic of China on Stamp Tax (hereinafter referred to as Detailed Rules for Implementation of Provisional Regulations on Stamp Tax) are no longer applicable. In order to strengthen management of levying the stamp duty and of handling related misconduct, according to relevant provisions from Tax Administration Law and the Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes, the punishment provisions applicable for violation of the stamp duty are hereby clarified as follows. If stamp tax payers are involved in any of the following acts, the tax authority shall punish them according to severity: (1) In cases with tax certificates not affixed or stamp tax tickets not fully affixed or stamp tax tickets in taxable vouchers not written-off, Article 64 of Law of Administration of Tax Collection will be applicable concerning punishment.”
In fact, this text shows that the existing laws which are still valid, i.e. Provisional Regulations of the people's Republic of China on Stamp Duty (hereinafter referred to as Provisional Regulations on Stamp Duty) and Detailed Rules for Implementation of Provisional Regulations of the People's Republic of China on Stamp Tax (hereinafter referred to as Detailed Rules for Implementation of Provisional Regulations on Stamp Tax) have some provisions producing three abnormal situations (i.e. a lower level law contravenes a higher level law, administrative regulations are inconsistent, provisions are inappropriate), because of issuance of the new law and regulation.
1. The situation where a lower level law contravenes a higher-level law
In citation of Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No. 15), there is a higher lower level law relation between Law of the Peoples Republic of China on the Administration of Tax Collection (hereinafter referred to as Law of Administration of Tax Collection) and Provisional Regulations on Stamp Duty or between Detailed Rules for the Implementation of the Law of People’s Republic of China to Administer the Levying and Collection of Taxes (hereinafter referred to as Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes) and Detailed Rules for Implementation of Provisional Regulations on Stamp Tax. If the lower level law contravenes the higher level law, then Article 87 of The Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “In one of following circumstances, laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules will be changed or revoked by the relevant authorities according to rights given in Article 88 of this Law: (2) The lower level law contravenes the higher level law.” Moreover, Article 88 of the Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “Concerning which has the right of changing or revoking laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules: (2) The Standing Committee of the National People's Congress has the right to revoke administrative regulations which conflict with the Constitution and the law, has the right to revoke local regulations which conflict with the Constitution, laws and administrative regulations, and has the right to revoke autonomous regulations and separate regulations which are approved by the standing committee of the people's congress in provinces, autonomous regions and municipalities but conflict with the Constitution and provisions of Article 66 (2) in this Law; (3) the State Council has the right to change or revoke inappropriate regulations in departments and local governments.” The above texts indicate that Provisional Regulations on Stamp Duty can be changed by the Standing Committee of the National People's Congress rather than the State Administration of Taxation issuing Guo Shui Fa [2004] 15, and that Detailed Rules for Implementation of Provisional Regulations on Stamp Tax can be changed by the State Council rather than the State Administration of Taxation issuing Guo Shui Fa [2004] 15.
2. The situation where the administrative rules and regulations are inconsistent
For Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes and Provisional Regulations on Stamp Duty, both of them are on the same level as administrative regulations. The Legislation Law’s Article 85 (2) provisions say, “The State Council will decide whether new general provisions or old special provisions in administrative regulations are applicable, when inconsistency on a matter occurs.” So, in case of inconsistency, the decision will be the State Council rather than the State Administration of Taxation issuing Guo Shui Fa [2004] 15.
3. The situation where rules and regulation are inappropriate
Detailed Rules for Implementation of Provisional Regulations on Stamp Tax are a kind of departmental rules. If its Article 39, 40 and 41 are considered inappropriate, they must be changed by the State Council rather than the State Administration of Taxation issuing Guo Shui Fa [2004]15. The reasons are as follows: Article 87 of The Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “In one of following circumstances, laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules will be changed or revoked by the relevant authorities according to rights given in Article 88 of this Law: (4) Provisions considered inappropriate shall be changed or revoked.” Moreover, Article 88 of the Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “Concerning which has the right of changing or revoking laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules: (3) the State Council has the right to change or revoke inappropriate regulations in departments and local governments.”
II．Law for administrative punishment is wrongfully applied, statute of limitations and punishment are inappropriate
In addition to the wrong basis of administration, the respondent made mistakes in citing applicable law. Regardless of "whether the fact of violation of the law is true”, on the applicability of the written decision on punishment as legal basis, the applicant considers that there are several problems, as explained as follows:
1. The wrong law was cited and applied
The currently valid Tax Administration Law was issued on April 28, 2001 by the National Presidential Decree No.49 and was implemented since May 1, 2001. Article 84 of Legislation Law for the People’s Republic of China says the non-retroactivity principle is adopted in laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules except for those with special provisions for a purpose of better protecting the right and interest with the citizens, legal persons and other organizations. According to the non-retroactivity principle, the above Law of Administration of Tax Collection only applies to tax collection after May 1, 2001.
In part 1(2) of the written decision on punishment made by the respondent, the duration is from November 29, 2000 to December 31, 2010; yet the legal basis cited is the Tax Administration Law that was implemented since May 1, 2001. As a result, the Tax Administration Law, which was implemented from May 1, 2001, was also directly applied to part 2(2) of the written decision on punishment.
The Tax Administration Law was implemented as early as January 1, 1993, and was revised respectively on February 28, 1995, and April 28, 2001. Why does the respondent apply the Tax Administration Law that was implemented since May 1, 2001 to the period from November 29, 2000 to April 30, 2001?
2. Punishment is beyond the statute of limitations
The Law of the People’s Republic of China on Administrative Punishments (hereinafter referred to as Administrative Punishment Law) is a general law, and Tax Administration Law is a special law. Article 29 of Administrative Punishment Law states that “an illegal act that has not been discovered in 2 years will no longer be subjected to administrative punishment, except provided otherwise by law." In Tax Administration Law, Article 86 says, "Any act which contravenes tax laws and administrative regulations, deserving administrative punishment, will no longer be subjected to administrative punishment in the event that it is not detected in 5 years.” According to the principle that a general law is superior to a special law, the punishment for a taxpayer in the act of contravening tax and administrative laws should apply to the provision of statute of limitations of 5 years in Article 86 of Tax Administration Law, and punishment for other illegal acts except for the above said act should apply to the provision of statute of limitations of 2 years unless specified in the other special law.
The applicant believes that if the provision of statute of limitation of 5 years is applicable, then the first thing is to determine whether Invoice Management Regulations of the People's Republic of China (hereinafter referred as Invoice Management Regulations) - Decree No. 006 of the Ministry of Finance is a tax or administrative law.
The currently valid Invoice Management Regulations was approved by the State Council on December 12, 1993, issued on December 23, 1993 via decree No.006 from the Ministry of Finance, and revised on December 20, 2010 according to Decision of the State Council on Amending the Invoice Management Measures of the People's Republic of China. According to provisions of Legislation Law of the People’s Republic of China, Invoice Management Regulations before revision on December 20, 2010 was a departmental law, and then it becomes an administrative law after revision on December 20, 2010. Therefore, regardless of whether Invoice Management Regulations is involved in taxation, Decree [1993] No. 006 (i.e. Invoice Management Regulations before revision on December 20, 2010) of the Ministry of Finance cited by the respondent is not an administrative law, thus is neither a tax administrative law. As a result, the statute of limitations of 2 years in Administrative Punishment Law applies to illegal acts specified in the Invoice Management Regulation before its revision on December 20, 2010, when it was a general law.
For the time from November 29, 2000 to December 31, 2010 in Part 1(3) of the written decision on punishment, the respondent takes the Decree [1993] No. 006 of the Ministry of Finance as its basis; correspondingly, this basis is applied by the respondent to Part 2 (3) of the written decision on punishment. “The act of issuing and obtaining invoices against provisions” that the respondent cited took place before 2010. According to the aforementioned principle of non-retroactivity, this case should be applicable to the Invoice Management Regulations before revision on December 20, 2010, that is, Decree [1993] No. 006 of the Ministry of Finance. Therefore, for “the act of issuing and obtaining invoices against provisions” according to the respondent, the statute of limitations for punishment should be 2 years; but not from November 29, 2000 to December 31, 2010, a period of over 10 years.
3. Punishment amplitude is inappropriate
In Part 2(1), 2(2), and 2(3) of the written decision on punishment, the fines are 3 times, 1.5 times, RMB 10,000 and RMB 10,000, respectively.
According to the Circular of Beijing Local Taxation Bureau on Forwarding the Notice of Beijing Municipal People's Government on Release of Administrative Law Enforcement Responsibility Supporting System (Jing Di Shui Fa [2007] No.349) and the Several Provisions of Regulating the Free Judging Right of Administrative Penalties in Beijing (Jing Zheng Fa [2007] 17), Article 5 of the latter says, “The free judging right should be based on legal purposes to have a comprehensive consideration for relevant factors such as illegal facts, nature, circumstances and extent of social harm excluding the interference of irrelevant factors; the same kind of administrative violations, that is, illegal facts, nature, circumstances and extent of social harm being basically same should be applicable for basically same legal basis, same punishment type and same punishment magnitude.", the respondent shall exclude irrelevant factors and apply the same magnitude of punishment for similar acts or a magnitude which will not higher than that for more serious acts. In a major tax-related case which was announced by the State Administration of Taxation (seehttp://www.chinatax.gov.cn/n8136506/n8136548/n8136623/8279062.html), the Local Taxation Bureau in Beijing conducted a comprehensive inspection of tax in Beijing Taiyue Real Estate Development Co., Ltd. in June 2007, and concluded that this real estate company made a false tax declaration to cover a total of taxable income of 13.53 billion RMB, which was involved in the sales tax of 6,762.87 million RMB. The tax authority ordered this real estate company to pay the arrears of 6,762.87 million RMB as the sales tax, 473.4 million RMB as the urban maintenance and construction tax, and 202.89 million RMB as the education surtax, 3,246.8 million RMB as the overdue fine, and 3,618.14 million RMB as a fine. The case is from the real estate industry which is highly policy-sensitive, and is identified as a major tax case by State Administration of Taxation, whose amount and influence is far greater than our case; however, the punishment magnitude of this real estate company is only 0.5 times. In contrast, in our case, why is the applicant subject to the fine of 1.5 times, 3 times or even the maximum of 10,000 RMB?
On the other hand, Article 7 of the Several Provisions of Regulating the Free Judging Right of Administrative Penalties in Beijing (Jing Zheng Fa [2007] 17) says, "When there is a heavier administrative punishment, the consideration shall be into the following circumstances: (1) acts to cover and destroy illegal evidence or impede law enforcement and etc.; (2) ignore the advice and continue implementation of violations; (3) Offenses resulting in serious consequences; (4) Force, trick, and abet others to commit illegal acts; (5) a major role in joint implementation of the offense; (6) incorrigible, and repeated violations; (7) implementation of the violations in the event of public emergencies; (8) other circumstances which are subject to a heavier punishment." How can the applicant be subject to the heavier administrative punishment in event of above situations in Article 7 being ruled out?
4. Additional fine is improper
In the written decision on punishment made by the respondent, the second paragraph of page 3 states, “your company must have the payment in the deputy treasure of Chaoyang District in Beijing within 15 days after delivery of this written decision. In case of overdue payment of the fine, our bureau will impose an additional fine at rate of 3% daily in accordance with the Article 51 (1) of the Administrative Punishment Law.”
In the Reply of Supreme People’s Court on Whether Additional Fine of Administrative Punishment Should Be Calculated during Proceedings (Supreme People's Court [2005] No.29), a provision says, “Under the Administrative Procedure Law, the additional fine which is a kind of aggravated punishment imposed for non-compliance with the decision on administrative punishment should not be counted during the proceedings."
First, the judicial interpretation is applicable to all decisions on administrative punishment made by all the administrative organs, regardless of whether these organs are tax authorities.
Second, since the additional fine is not counted during the proceedings, it is also a kind of aggregated punishment and shall not be counted in the review period. Supreme Court administrative tribunal chief judge Cai Xiaoxue published an article titled The Additional Fine Should not be Counted During the Proceedings in November 2008 Issue of the People's Justice Journal. This article clearly points out that if the additional fine is still counted during the proceedings, then it will likely make the administrative counterpart to pay the additional fine which is several times the principal amount of the fine, which might lead to a situation where administrative proceedings are prohibitive for the administrative counterpart whose appeal right will not adequately protected. This approach is clearly inconsistent with the goal of Administrative Procedure Law to protect citizens, legal persons and other organizations bringing an administrative lawsuit.
According to Article 88(2), “If not agreeing with the punishment decision, enforcement measures or measures of saving from damage from the tax authority, the parties concerned may apply for administrative reconsideration according to law or bring a lawsuit to the people's court according to law.” If the parties concerned directly bring a lawsuit to the people's court, then there is no additional fine under the Reply of Supreme People’s Court on Whether Additional Fine of Administrative Punishment Should Be Calculated during the Proceedings (Supreme People's Court [2005] No.29). If the parties concerned apply for administrative reconsideration to the tax authority yet an additional fine is still imposed, the application for administrative reconsideration will become prohibitive for administrative counterparts, thus impeding the equal exercise of judicial choice for parties concerned. This renders the choice right specified in Article 88 (2) of Law to Administer the Levying and Collection of Taxes meaningless. Therefore, if the respondent mechanically cites the provision of Article 51(1) in the Administrative Punishment Law instead of distinguishing the application for the administrative reconsideration from the initiation of an administrative litigation, then it will inevitably abandon the goals established in the Administrative Reconsideration Law to “prevent and correct illegal or improper administrative acts, protect the legitimate rights and interests of citizens, legal persons and other organizations and protect and monitor the exercising of powers with the administrative organ”.
III. Unclear factual findings and wrong collection methods, resulting in punishment mistakes
1. Unclear factual findings and wrong collection methods
In the Administrative Punishment Decision of No. 2 Tax Inspection Department of Beijing Local Taxation Bureau (Er Ji Shui Ji Chu [2011] No. 63) issued by the respondent, it uses an “audit collection” instead of “verification collection.” This approach indicates self-contradictions and mistakes on the respondent’s part.
According to Article 3 of the Criminal Law Amendment of the People’s Republic of China （VII） dated February 28, 2009, before the tax authorities issue a recovery notice and settle taxes, the public security department cannot intervene any case of “evasion of tax payment” (i.e. “Tax Evasion” in Article 63 of the Tax Administration Law) in advance, and the reason for early intervention by the public security department in this case is limited to “hiding and intentionally destroying accounting vouchers, account books and financial and accounting reports.” The respondent also claimed that its materials come from the public security department, this indicating that the account books obtained by the respondent are incomplete materials, and the so-called “illegal facts” identified by the respondent are sure to feature unclear facts and inadequate basis.
According to Article 35 of the Tax Administration Law, “If a taxpayer is under one of the following circumstances, tax authorities shall have the power to assess the amount of tax payable by him：(4) where account books are established, but the accounts are not in order or information on costs, receipt vouchers and expense vouchers is incomplete, making it difficult to check the books;” and Article 3 of Measures for Verification Collection of Enterprise Income Tax (for Trial Implementation) (Guo Shui Fa [2008] 30) “If a taxpayer is under one of the following circumstances, tax authorities shall have the power to verify the enterprise income tax：(4) where account books are established, but the accounts are not in order or information on costs, receipt vouchers and expense vouchers are incomplete, making it difficult to check the books”, the respondent should use the method of “verification collection” instead of using “audit collection” mistakenly.
2. Wrong punishment
In the “verification collection” mode, the respondent should not punish the applicant.
(1) “Verification collection” is a collection mode applicable to unclear facts and insufficient evidence
According to the formerly cited Article 35 of the Tax Administration Law and Article 3 of the Measures for Verification Collection of Enterprise Income Tax (Tentative) (Guo Shui Fa [2008] No. 30), “verification collection” means a collection mode used by the tax authorities to verify the taxable amount of the taxpayer when the taxpayer's account books are not perfect, incomplete information is difficult to audit, or for other reasons is difficult to accurately determine the tax liability. That is, “verification collection” is a collection mode that has to be used by the tax authorities if accurate tax payment information cannot be obtained.
According to Article 47 of the Rules for the Implementation of the Law of the People’s Republic of China on the Administration of Tax Collection, “In the case of a taxpayer in one of the instances stated in Article 35 or Article 37 of the Tax Administration Law, a taxation authority shall have the right to use one of the following methods to assess the amount of tax payable: (1) assess the amount of tax payable with reference to the income and profit rate of other local taxpayers involved in the same or a similar line of business on a similar scale and at a similar level of income; (2) assess the amount of tax payable according to the cost, plus reasonable amounts of expenses and profit; (3) assess the amount of tax payable according to a calculation or assessment of the amount of raw materials, fuel, power, etc. , consumed; (4) assess the amount of tax payable according to other reasonable methods. If use of one of the aforesaid methods is insufficient to accurately assess the amount of tax payable, two or more methods may be used concurrently. Accordingly, the “verification collection” is a collection mode adopted by the tax authorities, which is closest to the actual operating conditions of the taxpayer, but the verified tax liability is a result calculated by the tax authorities according to a legal procedure in case of unclear facts and insufficient evidence.
(2) In case of verification collection, fact of violation of law is difficult to identify with accuracy
Under the Article 4 of the Administrative Punishments Law, “Administrative punishments shall be set and implemented according to facts”; according to Article 30 of the Law of Administrative Punishments, “Where citizens, legal persons or other organizations shall according to law be given administrative punishments for acts violating administrative order, the administrative organ must ascertain the facts; no administrative punishments shall be imposed if facts about the illegal acts remain unclear”.
Therefore, the premise of administrative punishment is that illegal facts are clear and evidence authentic. According to the Tax Administration Law, verification collection means a collection mode used by the tax authorities to verify the tax liability of the taxpayer according to the legal method when the taxpayer's account books are not perfect, incomplete information is difficult to audit, or for other reasons is difficult to accurately determine the tax liability. That is, “verification collection” is a collection mode used in case of insufficient facts and evidence.
Thus, in the case of unclear illegal facts, simple use of the verified tax amount as a calculation basis for penalty obviously fails to meet the requirements of the Law of Administrative Punishments.
(3) Insufficient basis for punishment
According to Article 63 of the Tax Administration Law, “A taxpayer forges, alters, conceals or, without authorization, destroys account books or vouchers for the accounts, or overstates expenses or omits or understates incomes in the account books, or, after being notified by the tax authorities to make tax declaration, refuses to do so or makes false tax declaration, or fails to pay or underpays the amount of tax payable. Where a taxpayer evades tax, the tax authorities shall pursue the payment of the amount of tax he fails to pay or underpays and the surcharge thereon, and he shall also be fined not less than 50 percent but not more than five times the amount of tax he fails to pay or underpays”.
When identifying the amount of tax evasion by the taxpayer, the respondent shall provide sufficient evidence that the taxpayer has implemented the tax evasion means specified in Article 63 of the Tax Administration Law; the respondent should also identify whether the applicant has hidden his income, and the amount of income concealed; whether the taxpayer has inflated costs, and inflated amount of costs and expenses. The evidence of concealing of income or demonstration of inflated costs and expenses shall be verified accurately by direct evidence. If the evidence is missing, or an evidence chain is difficult to form between the evidences, and thus it is impossible to accurately prove the concealed income or inflated costs and expenses, the so-called amount of amount will be difficult to be identified by the judiciary. The tax determined in the verification collection mode may be less than any tax amount that the taxpayer actually fails to pay or underpays; it may actually be higher than the amount to be paid by the taxpayer actually. However, such tax is obviously not equal to any tax amount that the taxpayer actually fails to pay or underpays. Where the respondent fails or is difficult to provide sufficient evidence to prove the real and accurate account of tax that the applicant fails to pay or underpays, Article 63 of the Tax Administration Law is clearly difficult to apply, and punishment of the applicant also lacks legal basis.
(4) The provisions of relevant laws and regulations that punishment is not imposed on verification collection indicate that they does not apply to tax evasion identification and punishment in the mode of verification collection
According to Article 37 of the Tax Administration Law, “Where a taxpayer engaged in production or business operations or a taxpayer temporarily engaged in business operations fails to complete the formalities for tax registration in accordance with regulations, the tax authorities shall assess the amount of tax payable by him and order him to make the payment; if he fails to do so, the tax authorities may detain the commodities or goods of a value equivalent to the amount of tax payable”. For an unlicensed taxpayer, his earnings from production and operation are surely subjected to the lack of income tax returns and tax payments, but the Tax Administration Law only verifies the tax liability with regard to such failure to pay tax or underpayment of tax, and does not specify whether to impose late fees or punishment. When compulsory measures are taken lawfully against the failure of the taxpayer to pay the verified tax, such compulsory measures are only for commodities and goods with the price equal to the tax liability, without any late fees. Thus, the Tax Administration Law had a very clear legislative intent, i.e. neither late fees nor fines shall be imposed on the verified tax liability.
Even in the case of tax audit, there is still the situation of ex-post verification collection. For example, Article 3 of the Guide to Ex-post Verification Collection of Penalties and Late Fees Imposed on Enterprise Income Tax and Enterprise Income Tax Supplemented in Tax Assessment (Shui Di Shui Fa [2006] No. 192) issued by Guangzhou Local Taxation Bureau provides that, “Comply with the situations of Article 5 of the Interim Measures of Guangzhou Local Taxation Bureau on Verification Collection of Enterprise Income Tax (Shui Di Shui Fa [2005] 297, hereinafter referred to as Interim Measures) and treatment measures for verification collection of enterprise income tax: (1). Where the situation in Article 5 (1) of the Interim Measures is met, i.e. ‘where account books should be established according to the laws and administrative regulations but were not established’, punishment will be given and late fees imposed in accordance with Article 60 of the Law of the People's Republic of China on the Administration of Tax Collection (hereinafter referred to as the Tax Administration Law). (2). Where the situation in Article 5 (2) of the Interim Measures is met, i.e. ‘where account books are destroyed without permission or tax payment materials are not provided’, punishment will be given and late fees imposed in accordance with the Article 62 of the Tax Administration Law. (3). Where the situation in Article 5 (3) of the Interim Measures is met, i.e. ‘where account books are established, but the accounts are not in order or information on costs, receipt vouchers and expense vouchers is incomplete, making it difficult to check the books, including: 1. Where total income can be only checked accurately or verified, but its expenses and expenditures can not be checked accurately; 2. Where costs, expenses and expenditures can be only checked accurately or verified, but its total income cannot be checked accurately; 3. Total income and costs and expenses cannot be checked properly, and true, accurate and complete tax information cannot be submitted to the competent tax authorities, causing it difficult to be verified’, punishment will be given and late fees imposed in accordance with Article 60 of the Tax Administration Law if the vouchers and related materials are incomplete; punishment will not be given and only late fees imposed if accounts are in disorder. (4). Where the situation in Article 5 (3) 4) of the Interim Measures is met, i.e. ‘where account books are established and checked in accordance with the regulations but account books, vouchers and tax-related materials are not maintained according to the regulations’, punishment will be given and late fees imposed in accordance with the Article 60 of the Tax Administration Law. (5) Where the situation in Article 5（4）of the Interim Measures is met, i.e. ‘Where institutions, social organizations, and private non-enterprise units fail to check taxable income-related costs, expenses, losses and tax-exempt related costs, expenses and losses respectively and can not calculate the taxable income as per the reasonable measures such as absorption proportion method, punishment will not be given and only late fees imposed. (6) Where the situation in Article 5（5）of the Interim Measures is met, i.e. “Where the taxpayer of enterprise income tax fails to handle the tax registration in accordance with regulations in production and operation’, punishment will be given and late fees imposed in accordance with the Article 60 of the Tax Administration Law. (7) Where the situation in Article 5（6）of the Interim Measures is met, i.e. “Where, in case of tax liability, the taxpayer fails to handle the tax return within the specified period and still fails to do so overdue after being ordered by the tax authorities to handle tax return within the specified term’, punishment will be given and late fees imposed in accordance with the Article 62 of the Tax Administration Law. (8). Where the situation in Article 5 （7）of the Interim Measures is met, i.e. ‘Where the taxbase of tax return is obviously low, without proper reasons’, and there is no situation in each item of Article 5 of the Interim Measures, punishment will not be given and no late fees imposed when first ex-post verification collection is made, being ordered to correct such cases. If presence of such situation is discovered, it shall be brought to the audit department for treatment”.
Firstly, the document clearly points out that verification collection allows advance verification, i.e. after application by the taxpayer as per year, the collection mode for his income tax shall be identified, and income tax shall be verified and levied in accordance with the taxable rate; furthermore, the document has also defined regulations, based on the Interim Measures of Guangzhou Local Taxation Bureau on Verification Collection of Enterprise Income Tax (Shui Di Shui Fa [2005] No. 297), Article 1, “In order to further standardize verification collection of enterprise income tax, to strengthen the management of collection of enterprise income tax, according to the Law of the People's Republic of China on the Administration of Tax Collection (hereinafter referred to as the Tax Administration Law) and its implementing rules (hereinafter referred to as the Implementation Rules of Tax Administration Law), Provisional Regulations of the People's Republic of China on Enterprise Income Tax (hereinafter referred to as Regulations) and its implementing rules (hereinafter referred to as Rules of Regulations) and the Interim Measures for Verification Collection of Enterprise Income Tax (Guo Shui Fa [2000] No. 38 by the State Administration of Taxation (hereinafter referred to as Measures for Collection), in combination with specific situation of our city, these measures are hereby formulated’, Article 3, “Verification collection of enterprise income tax, according to the verification behavior and respective tax period, is divided into ex ante verification, in-progress verification and ex-post verification’, and Article 4, “Ex ante verification refers to verification collection of the tax for the future month (quarter) of the year by the tax authorities before end of the year of enterprise income tax according to the situation of the taxpayer for the previous month or year; in-progress verification refers to verification collection of the tax by the tax authorities on the income because of incomplete vouchers of relevant income and expenditures when a taxpayer obtains temporary income and applies to the tax authorities for invoices; Ex-post verification refers the verification collection by the tax authorities when finding the taxpayer to have the situation in Article 5 during in section (audit) after end of the tax period, verification collection may also be ex-post verification, i.e. after end of the tax period, the tax authorities may pursue ex-post verification when the taxpayer is found to have the situation for verification collection during the audit process.
Secondly, the document clearly states that, if tax collection is made according to the ex-post verification mode, punishment shall be given in accordance with Article 60 of the Tax Administration Law, “Where a taxpayer commits one of the following acts, he shall be ordered by the tax authorities to rectify within a time limit and may be fined not more than RMB 2,000 yuan; if the circumstances are serious, he may be fined not less than 2,000 yuan but not more than 10,000 yuan”, i.e. a fine not more than 10,000 yuan will be imposed. That is, in the mode of ex-post verification collection, the regulations of Article 63 of the Tax Administration Law are not applicable, and of course, corresponding penalty shall not be imposed.
In the opinion of the applicant, firstly, verification collection of tax may occur in advance or afterwards; secondly, no matter the ex ante verification collection or the ex-post verification collection, its bases for enforcement are the Provisional Regulations of the People's Republic of China on Enterprise Income Tax, the Law of the People’s Republic of China on Enterprise Income Tax, normative documents of the State Administration of Taxation on verification collection of enterprise income tax as well as implementing rules of local tax authorities at all levels on verification collection of enterprise income tax, different legal bases are not applicable to ex ante verification collection and ex-post verification collection respectively; finally, with regard to ex-post verification collection, now that the higher-level laws cited in all places are the same, the bases for enforcement in all places shall also be consistent, and for the same action, the following situation shall not be allowed: a fine of less than RMB 10,000 is given in the south but so-called 1.5 times fine as high as RMB 6,733,716.36 is given in the north.
IV. Wrong procedures
Subject to Paragraph 1 (c) of Article 28 of the Administrative Reconsideration Law of the People's Republic of China (hereinafter referred to as Administrative Reconsideration Law), “If a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled, altered, or confirmed as illegal by decision; if the specific administrative act is annulled or confirmed as illegal by decision, the applied may be ordered to undertake a specific administrative act anew within a fixed time: 3. violation of legal procedures; 4. excess of authority or abuse of powers”, Article 45 of the Regulation on the Implementation of the Administrative Reconsideration Law of the People’s Republic of China, “Where a specific administrative action is under any of the circumstances set forth in Paragraph 1 (c) of Article 28 of the Administrative Reconsideration Law, an administrative reconsideration organ shall decide to revoke or modify the specific administrative action or confirm the specific administrative action as a violation of law”, and Article 55 of the Rules for Taxation Administrative Reconsideration (No. 21 Decree of the State Administration of Taxation), “The administrative reconsideration agency shall examine the legitimacy of the evidences in the following respects according to the specific situations of a case:
(1) Whether the evidences conform to the legal form; (2) Whether the obtaining of evidences conforms to the provisions of laws, regulations and judicial interpretations; and (3) Whether there are other circumstances in violation of laws which may affect the force of evidences”, and Article 58 “The following evidentiary materials shall not be used as the basis for determination of a case:
(1) Any evidentiary material collected by any means in violation of legal procedures”, the punishment decision made by the respondent to the applicant should have sufficient evidence; and such evidence should have legitimacy, including those obtained through legal procedures; furthermore, if the respondent collects evidence in violation of legal procedures, such evidence shall not be used as the factual basis for specific administrative act; moreover, if the respondent commits an action in violation of legal procedures when implementing the specific administrative act, its specific administrative act shall be revoked according to law. In terms of the respondent in the present case, its law enforcement has committed serious violation of legal procedures and excess of authority or abuse of powers, and thus its penalty decision should of course be revoked according to law.
1. Before tax inspection, the respondent has not fulfilled obligations of disclosure according to law
According to Article 22 (1) of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “Before inspection, the inspected party shall be informed of the inspection time and materials to be prepared, unless prior notice impedes the inspection”.
However, late at night on April 6, 2011, the respondent failed to inform the applicant according to legal procedures and retrieved accounting materials of the applicant from the founding time of the company, the year 2000, to February 2011, from Beijing Huxin Financial Accounting Services Co., Ltd. (hereinafter referred to as Huxin Company), to which the applicant entrusts for bookkeeping.
2. The respondent failed to issue a tax inspection certificate and the Tax Inspection Notice according to law
According to Article 59 of the Tax Administration Law, “When conducting tax inspection, the officials sent by the tax authorities shall produce tax inspection certificate and tax inspection notice, and shall have the duty to keep confidentiality for the persons under inspection; where no such certificate and notice are produced, the persons subject to inspection shall have the right to refuse to accept the inspection” and Article 22 (2) of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “The inspection shall be executed by two or more inspectors, who should show the inspected party the tax inspection certificate and the Tax Inspection Notice”, it is a necessary legal procedure for the tax inspectors to show the inspected party the certificates and tax legal documents.
However, late at night of April 6, 2011, when retrieving accounting materials from Huxin Company, the respondent failed to present the tax inspection certificate and the Tax Inspection Notice, in violation of the legal procedure.
3. The respondent gravely violated the legal procedure when retrieving accounting materials of the applicant
According to Article 25 of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “When retrieving account books, accounting vouchers, statements and other relevant information, present to the inspected party the Notice for Retrieving Account Book Materials and fill out the List of Retrieved Account Book Materials, which shall be signed for confirmation after being checked with the inspected party.
However, when retrieving accounting materials from Huxin Company and the applicant, the respondent failed to issue the Notice for Retrieving Account Book Materials and fill out the List of Retrieved Account Book Materials for verification with the applicant.
4. The accounting materials of the applicant retrieved by the respondent had not been returned within the statutory time limit
According to Article 86 of Rules for the Implementation of the Law of the People’s Republic of China on the Administration of Tax Collection, “A taxation authority exercising its powers of office provided under the provisions of item (1) of Article 54 of the Tax Administration Law may do so at the business premises of a taxpayer or tax-withholding agent. If deemed necessary and subject to approval by the head of a taxation authority at county level or above, the taxation authority may also demand that the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the previous accounting year be submitted for examination. When doing so, however, the taxation authority must provide the taxpayer or tax withholding agent with a detailed list of the items taken and shall return them within three months in entirety; in special cases, and subject to approval by the head of a taxation authority at city and autonomous prefecture level or above, the taxation authority may take back the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the current accounting year for examination, which must be returned by the taxation authority within 30 days”, and Article 25 (2) of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “Retrieving of the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the previous accounting year shall be approved the head of a taxation authority and they shall be returned within three months; retrieving of the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the current accounting year shall be subject to approval by the head of a taxation authority at city and autonomous prefecture level or above and they must be returned within 30 days”, any accounting materials of the previous accounting year retrieved by the respondent from the applicant shall be returned completely within three months; any accounting materials of the current accounting year retrieved by the respondent from the applicant shall be returned within 30 days.
When, however, the above statutory time limit expired, the respondent did not return all the retrieved accounting materials according to the law, and until now, has not yet returned them, which not only seriously affects the applicant's production and business activities, and substantially impedes the applicant’s rights to hearing and reconsideration.
5. Illegal tax penalty hearing procedure
Under Article 42 of the Administrative Punishment Law, “The administrative organ before making a decision on the administrative punishment such as ordering to stop production and business, withdrawing the permit or license，or large sum of fine，shall advise the party of the right to hearing. And the administrative organ at the request of the party shall organize hearing;（3） Hearing shall be held in public，with the exception that state or commercial secret or personal privacy is involved”, and Section 3, “Hearing Procedure” of Chapter 2 in “Punishment Procedure” of the Interim Measures for Administrative Punishment printed and issued by Beijing Local Taxation Bureau (Jing Di Shui Fa [2001] No. 488), the hearing procedure is a necessary procedure for implementation of tax administrative punishment. The respondent at the request of the party shall organize hearing in accordance with the specified procedures and requirements. If the hearing itself violates the regulations and the procedures, it will inevitably lead to “violation of legal procedures” by the tax administrative punishment itself, and thus, the corresponding tax administrative punishment shall be revoked according to law. In present case, although the respondent has organized a hearing, its hearing procedure has violated the law seriously.
(1) The hearing was not conducted in public
According to Article 53 of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “Where the inspected party or other tax-related party requests a hearing, the hearing shall be organized according to law. A hearing officer should preside over the hearing. A hearing shall be conducted in accordance with the relevant regulations of the State Administration of Taxation”, and Article 2 of Implementing Measures for Hearing Procedures of Tax Administrative Punishment (tentative) (Guo Shui Fa [1996] No. 190) states that “The hearing of tax administrative punishment shall follow a principle of being lawful, fair, open, timely and convenient for citizens” and Article 11, “The hearing of tax administrative punishment shall be conducted in public, with the exception that the state's or commercial secret or personal privacy is involved. For a case of public hearings, the name of the parties and investigators in the case, cause of action, hearing time and place shall be announced in advance. People shall be allowed to attend public hearings. For a case of closed hearings, the reason for closed hearings shall be announced”, tax administrative punishment hearings shall be conducted in public, with the exception that state or commercial secret or personal privacy is involved.
On June 29, 2011, the applicant submitted a written application to request a hearing. In light of the decision of the respondent that “trade secrets” of a third party is involved and a “closed hearing” will be carried out”, the applicant submitted a written objection to the respondent twice, but the respondent refused to state the reasons. The hearing dated July 14, 2011 shows that the respondent cannot produce any application of a third party for cofidentiality to the applicant.
Public hearing is the procedural requirements of tax administrative punishment. If the contents of the hearing in the case involve commercial secrets, the respondent should also explain to the applicant any written application of a third party for keeping confidential. According to the Criminal Law of the People’s Republic of China and the Anti Unfair Competition Law of the People’s Republic of China, commercial secrets refer to “the technical information and operational information which is not known to the public, which is capable of bringing economic benefits to the owners of the rights, which has practical applicability and which the owners of the rights have taken measures to keep secret”. The respondent does not have any evidence that the information of a third party has such features that the information is not known to the public, is capable of bringing economic benefits to the owners of the rights, has practical applicability and the owners of the rights have taken measures to keep secret, and so-called “commercial secrets” are unwarranted.
(2) The applicant was illegally deprived of rights to statement and defence
According to Article 14 of Implementing Measures for Hearing Procedures of Tax Administrative Punishment (tentative) (Guo Shui Fa [1996] No. 190), “During the hearing, the case investigation officer shall accuse the parties of illegal acts, and produce evidence of facts”, during the hearing, the respondent shall present to the applicant the evidence materials for administrative punishment, and provide the originals to verify the authenticity of the evidence. However, the respondent, only at the beginning, provided the applicant with copies of relevant evidence materials, and such copies did not bear a signature of the applicant for confirmation. Because the respondent did not produce the originals to be checked with the applicant, the applicant is unable to confirm the evidence for authenticity, legitimacy and effectiveness, and moreover, the applicant was substantially deprived of its rights to statement and defence.
To safeguard the legitimate rights and interests of the applicant, to keep the tax payment relation between tax authorities and enterprises, and to maintain authority, equality and fairness of national tax laws and tax law enforcement, your bureau is kindly asked to forward the Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No. 15) on which the respondent is based to the competent authorities for review, verify the facts and according to law, withdraw the Administrative Punishment Decision of No. 2 Tax Inspection Department of Beijing Local Taxation Bureau (Er Ji Shui Ji Fa [2011] No. 56).
Hereby undersigned, for the
Beijing Local Taxation Bureau
Applicant: Fake Design Culture Development Ltd.
Legal representative: Lu Qing
December 28, 2011
Applicant: Fake Design Culture Development Ltd.
Domicile: NO. 258, Cao Chang Di Village, Cui Ge Zhuang Town, Chaoyang District, Beijing
Postal Code: 100015
Legal Representative: Lu Qing
Respondent: The Second Investigation Branch of Beijing Local Taxation Bureau
Subject Matter of Application:
1. It is wrongful for the respondent to use Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No. 15) as a basis. So, the applicant applies for a review of the regulation.
2. The applicant requests cancellation of the Written Decision on Administrative Punishment from the Second Investigation Branch of Beijing Local Taxation Bureau ([2011] No.56), made by the respondent, in accordance to the law.
Facts and Reasons:
The respondent made an inspection for tax from November 29, 2000 to December 31, 2010 with the applicant, and then made the Written Decision on Administrative Punishment from the Second Investigation Branch of Beijing Local Taxation Bureau ([2011] No.56) (hereinafter referred to as the written decision on punishment), which imposed a fine of RMB 6,766,822.37.
The applicant believes that this decision is wrong. Specific reasons are as follows:
I．The basis of this decision is unlawful.
In the written decision on punishment made by the respondent, part 2 (1) says, "Under Article 64 (2) of the Law of the People’s Republic of China on the Administration of Tax Collection and Article 1 of the Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No.15), your company is fined RMB 13,106.01 (three times the amount of stamp tax owed) because of the fact that your company does not affix tax stamps according to relevant provisions.”
The Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No.15) has clearly stated that, “After the Law of the People’s Republic of China on the Administration of Tax Collection (hereinafter referred to as Law of Administration of Tax Collection) and the Detailed Rules for the Implementation of the Law of People’s Republic of China to Administer the Levying and Collection of Taxes (hereinafter referred to as Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes) are revised, Article 13 of Provisional Regulations of the People's Republic of China on Stamp Duty (hereinafter referred to as Provisional Regulations on Stamp Duty), Article 39, Article 40 and Article 41 of Detailed Rules for Implementation of Provisional Regulations of the People's Republic of China on Stamp Tax (hereinafter referred to as Detailed Rules for Implementation of Provisional Regulations on Stamp Tax) are no longer applicable. In order to strengthen management of levying the stamp duty and of handling related misconduct, according to relevant provisions from Tax Administration Law and the Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes, the punishment provisions applicable for violation of the stamp duty are hereby clarified as follows. If stamp tax payers are involved in any of the following acts, the tax authority shall punish them according to severity: (1) In cases with tax certificates not affixed or stamp tax tickets not fully affixed or stamp tax tickets in taxable vouchers not written-off, Article 64 of Law of Administration of Tax Collection will be applicable concerning punishment.”
In fact, this text shows that the existing laws which are still valid, i.e. Provisional Regulations of the people's Republic of China on Stamp Duty (hereinafter referred to as Provisional Regulations on Stamp Duty) and Detailed Rules for Implementation of Provisional Regulations of the People's Republic of China on Stamp Tax (hereinafter referred to as Detailed Rules for Implementation of Provisional Regulations on Stamp Tax) have some provisions producing three abnormal situations (i.e. a lower level law contravenes a higher level law, administrative regulations are inconsistent, provisions are inappropriate), because of issuance of the new law and regulation.
1. The situation where a lower level law contravenes a higher-level law
In citation of Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No. 15), there is a higher lower level law relation between Law of the Peoples Republic of China on the Administration of Tax Collection (hereinafter referred to as Law of Administration of Tax Collection) and Provisional Regulations on Stamp Duty or between Detailed Rules for the Implementation of the Law of People’s Republic of China to Administer the Levying and Collection of Taxes (hereinafter referred to as Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes) and Detailed Rules for Implementation of Provisional Regulations on Stamp Tax. If the lower level law contravenes the higher level law, then Article 87 of The Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “In one of following circumstances, laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules will be changed or revoked by the relevant authorities according to rights given in Article 88 of this Law: (2) The lower level law contravenes the higher level law.” Moreover, Article 88 of the Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “Concerning which has the right of changing or revoking laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules: (2) The Standing Committee of the National People's Congress has the right to revoke administrative regulations which conflict with the Constitution and the law, has the right to revoke local regulations which conflict with the Constitution, laws and administrative regulations, and has the right to revoke autonomous regulations and separate regulations which are approved by the standing committee of the people's congress in provinces, autonomous regions and municipalities but conflict with the Constitution and provisions of Article 66 (2) in this Law; (3) the State Council has the right to change or revoke inappropriate regulations in departments and local governments.” The above texts indicate that Provisional Regulations on Stamp Duty can be changed by the Standing Committee of the National People's Congress rather than the State Administration of Taxation issuing Guo Shui Fa [2004] 15, and that Detailed Rules for Implementation of Provisional Regulations on Stamp Tax can be changed by the State Council rather than the State Administration of Taxation issuing Guo Shui Fa [2004] 15.
2. The situation where the administrative rules and regulations are inconsistent
For Detailed Rules for the Implementation of Law to Administer the Levying and Collection of Taxes and Provisional Regulations on Stamp Duty, both of them are on the same level as administrative regulations. The Legislation Law’s Article 85 (2) provisions say, “The State Council will decide whether new general provisions or old special provisions in administrative regulations are applicable, when inconsistency on a matter occurs.” So, in case of inconsistency, the decision will be the State Council rather than the State Administration of Taxation issuing Guo Shui Fa [2004] 15.
3. The situation where rules and regulation are inappropriate
Detailed Rules for Implementation of Provisional Regulations on Stamp Tax are a kind of departmental rules. If its Article 39, 40 and 41 are considered inappropriate, they must be changed by the State Council rather than the State Administration of Taxation issuing Guo Shui Fa [2004]15. The reasons are as follows: Article 87 of The Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “In one of following circumstances, laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules will be changed or revoked by the relevant authorities according to rights given in Article 88 of this Law: (4) Provisions considered inappropriate shall be changed or revoked.” Moreover, Article 88 of the Legislation Law of the People's Republic of China (hereinafter referred to as Legislation Law) says, “Concerning which has the right of changing or revoking laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules: (3) the State Council has the right to change or revoke inappropriate regulations in departments and local governments.”
II．Law for administrative punishment is wrongfully applied, statute of limitations and punishment are inappropriate
In addition to the wrong basis of administration, the respondent made mistakes in citing applicable law. Regardless of "whether the fact of violation of the law is true”, on the applicability of the written decision on punishment as legal basis, the applicant considers that there are several problems, as explained as follows:
1. The wrong law was cited and applied
The currently valid Tax Administration Law was issued on April 28, 2001 by the National Presidential Decree No.49 and was implemented since May 1, 2001. Article 84 of Legislation Law for the People’s Republic of China says the non-retroactivity principle is adopted in laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules except for those with special provisions for a purpose of better protecting the right and interest with the citizens, legal persons and other organizations. According to the non-retroactivity principle, the above Law of Administration of Tax Collection only applies to tax collection after May 1, 2001.
In part 1(2) of the written decision on punishment made by the respondent, the duration is from November 29, 2000 to December 31, 2010; yet the legal basis cited is the Tax Administration Law that was implemented since May 1, 2001. As a result, the Tax Administration Law, which was implemented from May 1, 2001, was also directly applied to part 2(2) of the written decision on punishment.
The Tax Administration Law was implemented as early as January 1, 1993, and was revised respectively on February 28, 1995, and April 28, 2001. Why does the respondent apply the Tax Administration Law that was implemented since May 1, 2001 to the period from November 29, 2000 to April 30, 2001?
2. Punishment is beyond the statute of limitations
The Law of the People’s Republic of China on Administrative Punishments (hereinafter referred to as Administrative Punishment Law) is a general law, and Tax Administration Law is a special law. Article 29 of Administrative Punishment Law states that “an illegal act that has not been discovered in 2 years will no longer be subjected to administrative punishment, except provided otherwise by law." In Tax Administration Law, Article 86 says, "Any act which contravenes tax laws and administrative regulations, deserving administrative punishment, will no longer be subjected to administrative punishment in the event that it is not detected in 5 years.” According to the principle that a general law is superior to a special law, the punishment for a taxpayer in the act of contravening tax and administrative laws should apply to the provision of statute of limitations of 5 years in Article 86 of Tax Administration Law, and punishment for other illegal acts except for the above said act should apply to the provision of statute of limitations of 2 years unless specified in the other special law.
The applicant believes that if the provision of statute of limitation of 5 years is applicable, then the first thing is to determine whether Invoice Management Regulations of the People's Republic of China (hereinafter referred as Invoice Management Regulations) - Decree No. 006 of the Ministry of Finance is a tax or administrative law.
The currently valid Invoice Management Regulations was approved by the State Council on December 12, 1993, issued on December 23, 1993 via decree No.006 from the Ministry of Finance, and revised on December 20, 2010 according to Decision of the State Council on Amending the Invoice Management Measures of the People's Republic of China. According to provisions of Legislation Law of the People’s Republic of China, Invoice Management Regulations before revision on December 20, 2010 was a departmental law, and then it becomes an administrative law after revision on December 20, 2010. Therefore, regardless of whether Invoice Management Regulations is involved in taxation, Decree [1993] No. 006 (i.e. Invoice Management Regulations before revision on December 20, 2010) of the Ministry of Finance cited by the respondent is not an administrative law, thus is neither a tax administrative law. As a result, the statute of limitations of 2 years in Administrative Punishment Law applies to illegal acts specified in the Invoice Management Regulation before its revision on December 20, 2010, when it was a general law.
For the time from November 29, 2000 to December 31, 2010 in Part 1(3) of the written decision on punishment, the respondent takes the Decree [1993] No. 006 of the Ministry of Finance as its basis; correspondingly, this basis is applied by the respondent to Part 2 (3) of the written decision on punishment. “The act of issuing and obtaining invoices against provisions” that the respondent cited took place before 2010. According to the aforementioned principle of non-retroactivity, this case should be applicable to the Invoice Management Regulations before revision on December 20, 2010, that is, Decree [1993] No. 006 of the Ministry of Finance. Therefore, for “the act of issuing and obtaining invoices against provisions” according to the respondent, the statute of limitations for punishment should be 2 years; but not from November 29, 2000 to December 31, 2010, a period of over 10 years.
3. Punishment amplitude is inappropriate
In Part 2(1), 2(2), and 2(3) of the written decision on punishment, the fines are 3 times, 1.5 times, RMB 10,000 and RMB 10,000, respectively.
According to the Circular of Beijing Local Taxation Bureau on Forwarding the Notice of Beijing Municipal People's Government on Release of Administrative Law Enforcement Responsibility Supporting System (Jing Di Shui Fa [2007] No.349) and the Several Provisions of Regulating the Free Judging Right of Administrative Penalties in Beijing (Jing Zheng Fa [2007] 17), Article 5 of the latter says, “The free judging right should be based on legal purposes to have a comprehensive consideration for relevant factors such as illegal facts, nature, circumstances and extent of social harm excluding the interference of irrelevant factors; the same kind of administrative violations, that is, illegal facts, nature, circumstances and extent of social harm being basically same should be applicable for basically same legal basis, same punishment type and same punishment magnitude.", the respondent shall exclude irrelevant factors and apply the same magnitude of punishment for similar acts or a magnitude which will not higher than that for more serious acts. In a major tax-related case which was announced by the State Administration of Taxation (seehttp://www.chinatax.gov.cn/n8136506/n8136548/n8136623/8279062.html), the Local Taxation Bureau in Beijing conducted a comprehensive inspection of tax in Beijing Taiyue Real Estate Development Co., Ltd. in June 2007, and concluded that this real estate company made a false tax declaration to cover a total of taxable income of 13.53 billion RMB, which was involved in the sales tax of 6,762.87 million RMB. The tax authority ordered this real estate company to pay the arrears of 6,762.87 million RMB as the sales tax, 473.4 million RMB as the urban maintenance and construction tax, and 202.89 million RMB as the education surtax, 3,246.8 million RMB as the overdue fine, and 3,618.14 million RMB as a fine. The case is from the real estate industry which is highly policy-sensitive, and is identified as a major tax case by State Administration of Taxation, whose amount and influence is far greater than our case; however, the punishment magnitude of this real estate company is only 0.5 times. In contrast, in our case, why is the applicant subject to the fine of 1.5 times, 3 times or even the maximum of 10,000 RMB?
On the other hand, Article 7 of the Several Provisions of Regulating the Free Judging Right of Administrative Penalties in Beijing (Jing Zheng Fa [2007] 17) says, "When there is a heavier administrative punishment, the consideration shall be into the following circumstances: (1) acts to cover and destroy illegal evidence or impede law enforcement and etc.; (2) ignore the advice and continue implementation of violations; (3) Offenses resulting in serious consequences; (4) Force, trick, and abet others to commit illegal acts; (5) a major role in joint implementation of the offense; (6) incorrigible, and repeated violations; (7) implementation of the violations in the event of public emergencies; (8) other circumstances which are subject to a heavier punishment." How can the applicant be subject to the heavier administrative punishment in event of above situations in Article 7 being ruled out?
4. Additional fine is improper
In the written decision on punishment made by the respondent, the second paragraph of page 3 states, “your company must have the payment in the deputy treasure of Chaoyang District in Beijing within 15 days after delivery of this written decision. In case of overdue payment of the fine, our bureau will impose an additional fine at rate of 3% daily in accordance with the Article 51 (1) of the Administrative Punishment Law.”
In the Reply of Supreme People’s Court on Whether Additional Fine of Administrative Punishment Should Be Calculated during Proceedings (Supreme People's Court [2005] No.29), a provision says, “Under the Administrative Procedure Law, the additional fine which is a kind of aggravated punishment imposed for non-compliance with the decision on administrative punishment should not be counted during the proceedings."
First, the judicial interpretation is applicable to all decisions on administrative punishment made by all the administrative organs, regardless of whether these organs are tax authorities.
Second, since the additional fine is not counted during the proceedings, it is also a kind of aggregated punishment and shall not be counted in the review period. Supreme Court administrative tribunal chief judge Cai Xiaoxue published an article titled The Additional Fine Should not be Counted During the Proceedings in November 2008 Issue of the People's Justice Journal. This article clearly points out that if the additional fine is still counted during the proceedings, then it will likely make the administrative counterpart to pay the additional fine which is several times the principal amount of the fine, which might lead to a situation where administrative proceedings are prohibitive for the administrative counterpart whose appeal right will not adequately protected. This approach is clearly inconsistent with the goal of Administrative Procedure Law to protect citizens, legal persons and other organizations bringing an administrative lawsuit.
According to Article 88(2), “If not agreeing with the punishment decision, enforcement measures or measures of saving from damage from the tax authority, the parties concerned may apply for administrative reconsideration according to law or bring a lawsuit to the people's court according to law.” If the parties concerned directly bring a lawsuit to the people's court, then there is no additional fine under the Reply of Supreme People’s Court on Whether Additional Fine of Administrative Punishment Should Be Calculated during the Proceedings (Supreme People's Court [2005] No.29). If the parties concerned apply for administrative reconsideration to the tax authority yet an additional fine is still imposed, the application for administrative reconsideration will become prohibitive for administrative counterparts, thus impeding the equal exercise of judicial choice for parties concerned. This renders the choice right specified in Article 88 (2) of Law to Administer the Levying and Collection of Taxes meaningless. Therefore, if the respondent mechanically cites the provision of Article 51(1) in the Administrative Punishment Law instead of distinguishing the application for the administrative reconsideration from the initiation of an administrative litigation, then it will inevitably abandon the goals established in the Administrative Reconsideration Law to “prevent and correct illegal or improper administrative acts, protect the legitimate rights and interests of citizens, legal persons and other organizations and protect and monitor the exercising of powers with the administrative organ”.
III. Unclear factual findings and wrong collection methods, resulting in punishment mistakes
1. Unclear factual findings and wrong collection methods
In the Administrative Punishment Decision of No. 2 Tax Inspection Department of Beijing Local Taxation Bureau (Er Ji Shui Ji Chu [2011] No. 63) issued by the respondent, it uses an “audit collection” instead of “verification collection.” This approach indicates self-contradictions and mistakes on the respondent’s part.
According to Article 3 of the Criminal Law Amendment of the People’s Republic of China （VII） dated February 28, 2009, before the tax authorities issue a recovery notice and settle taxes, the public security department cannot intervene any case of “evasion of tax payment” (i.e. “Tax Evasion” in Article 63 of the Tax Administration Law) in advance, and the reason for early intervention by the public security department in this case is limited to “hiding and intentionally destroying accounting vouchers, account books and financial and accounting reports.” The respondent also claimed that its materials come from the public security department, this indicating that the account books obtained by the respondent are incomplete materials, and the so-called “illegal facts” identified by the respondent are sure to feature unclear facts and inadequate basis.
According to Article 35 of the Tax Administration Law, “If a taxpayer is under one of the following circumstances, tax authorities shall have the power to assess the amount of tax payable by him：(4) where account books are established, but the accounts are not in order or information on costs, receipt vouchers and expense vouchers is incomplete, making it difficult to check the books;” and Article 3 of Measures for Verification Collection of Enterprise Income Tax (for Trial Implementation) (Guo Shui Fa [2008] 30) “If a taxpayer is under one of the following circumstances, tax authorities shall have the power to verify the enterprise income tax：(4) where account books are established, but the accounts are not in order or information on costs, receipt vouchers and expense vouchers are incomplete, making it difficult to check the books”, the respondent should use the method of “verification collection” instead of using “audit collection” mistakenly.
2. Wrong punishment
In the “verification collection” mode, the respondent should not punish the applicant.
(1) “Verification collection” is a collection mode applicable to unclear facts and insufficient evidence
According to the formerly cited Article 35 of the Tax Administration Law and Article 3 of the Measures for Verification Collection of Enterprise Income Tax (Tentative) (Guo Shui Fa [2008] No. 30), “verification collection” means a collection mode used by the tax authorities to verify the taxable amount of the taxpayer when the taxpayer's account books are not perfect, incomplete information is difficult to audit, or for other reasons is difficult to accurately determine the tax liability. That is, “verification collection” is a collection mode that has to be used by the tax authorities if accurate tax payment information cannot be obtained.
According to Article 47 of the Rules for the Implementation of the Law of the People’s Republic of China on the Administration of Tax Collection, “In the case of a taxpayer in one of the instances stated in Article 35 or Article 37 of the Tax Administration Law, a taxation authority shall have the right to use one of the following methods to assess the amount of tax payable: (1) assess the amount of tax payable with reference to the income and profit rate of other local taxpayers involved in the same or a similar line of business on a similar scale and at a similar level of income; (2) assess the amount of tax payable according to the cost, plus reasonable amounts of expenses and profit; (3) assess the amount of tax payable according to a calculation or assessment of the amount of raw materials, fuel, power, etc. , consumed; (4) assess the amount of tax payable according to other reasonable methods. If use of one of the aforesaid methods is insufficient to accurately assess the amount of tax payable, two or more methods may be used concurrently. Accordingly, the “verification collection” is a collection mode adopted by the tax authorities, which is closest to the actual operating conditions of the taxpayer, but the verified tax liability is a result calculated by the tax authorities according to a legal procedure in case of unclear facts and insufficient evidence.
(2) In case of verification collection, fact of violation of law is difficult to identify with accuracy
Under the Article 4 of the Administrative Punishments Law, “Administrative punishments shall be set and implemented according to facts”; according to Article 30 of the Law of Administrative Punishments, “Where citizens, legal persons or other organizations shall according to law be given administrative punishments for acts violating administrative order, the administrative organ must ascertain the facts; no administrative punishments shall be imposed if facts about the illegal acts remain unclear”.
Therefore, the premise of administrative punishment is that illegal facts are clear and evidence authentic. According to the Tax Administration Law, verification collection means a collection mode used by the tax authorities to verify the tax liability of the taxpayer according to the legal method when the taxpayer's account books are not perfect, incomplete information is difficult to audit, or for other reasons is difficult to accurately determine the tax liability. That is, “verification collection” is a collection mode used in case of insufficient facts and evidence.
Thus, in the case of unclear illegal facts, simple use of the verified tax amount as a calculation basis for penalty obviously fails to meet the requirements of the Law of Administrative Punishments.
(3) Insufficient basis for punishment
According to Article 63 of the Tax Administration Law, “A taxpayer forges, alters, conceals or, without authorization, destroys account books or vouchers for the accounts, or overstates expenses or omits or understates incomes in the account books, or, after being notified by the tax authorities to make tax declaration, refuses to do so or makes false tax declaration, or fails to pay or underpays the amount of tax payable. Where a taxpayer evades tax, the tax authorities shall pursue the payment of the amount of tax he fails to pay or underpays and the surcharge thereon, and he shall also be fined not less than 50 percent but not more than five times the amount of tax he fails to pay or underpays”.
When identifying the amount of tax evasion by the taxpayer, the respondent shall provide sufficient evidence that the taxpayer has implemented the tax evasion means specified in Article 63 of the Tax Administration Law; the respondent should also identify whether the applicant has hidden his income, and the amount of income concealed; whether the taxpayer has inflated costs, and inflated amount of costs and expenses. The evidence of concealing of income or demonstration of inflated costs and expenses shall be verified accurately by direct evidence. If the evidence is missing, or an evidence chain is difficult to form between the evidences, and thus it is impossible to accurately prove the concealed income or inflated costs and expenses, the so-called amount of amount will be difficult to be identified by the judiciary. The tax determined in the verification collection mode may be less than any tax amount that the taxpayer actually fails to pay or underpays; it may actually be higher than the amount to be paid by the taxpayer actually. However, such tax is obviously not equal to any tax amount that the taxpayer actually fails to pay or underpays. Where the respondent fails or is difficult to provide sufficient evidence to prove the real and accurate account of tax that the applicant fails to pay or underpays, Article 63 of the Tax Administration Law is clearly difficult to apply, and punishment of the applicant also lacks legal basis.
(4) The provisions of relevant laws and regulations that punishment is not imposed on verification collection indicate that they does not apply to tax evasion identification and punishment in the mode of verification collection
According to Article 37 of the Tax Administration Law, “Where a taxpayer engaged in production or business operations or a taxpayer temporarily engaged in business operations fails to complete the formalities for tax registration in accordance with regulations, the tax authorities shall assess the amount of tax payable by him and order him to make the payment; if he fails to do so, the tax authorities may detain the commodities or goods of a value equivalent to the amount of tax payable”. For an unlicensed taxpayer, his earnings from production and operation are surely subjected to the lack of income tax returns and tax payments, but the Tax Administration Law only verifies the tax liability with regard to such failure to pay tax or underpayment of tax, and does not specify whether to impose late fees or punishment. When compulsory measures are taken lawfully against the failure of the taxpayer to pay the verified tax, such compulsory measures are only for commodities and goods with the price equal to the tax liability, without any late fees. Thus, the Tax Administration Law had a very clear legislative intent, i.e. neither late fees nor fines shall be imposed on the verified tax liability.
Even in the case of tax audit, there is still the situation of ex-post verification collection. For example, Article 3 of the Guide to Ex-post Verification Collection of Penalties and Late Fees Imposed on Enterprise Income Tax and Enterprise Income Tax Supplemented in Tax Assessment (Shui Di Shui Fa [2006] No. 192) issued by Guangzhou Local Taxation Bureau provides that, “Comply with the situations of Article 5 of the Interim Measures of Guangzhou Local Taxation Bureau on Verification Collection of Enterprise Income Tax (Shui Di Shui Fa [2005] 297, hereinafter referred to as Interim Measures) and treatment measures for verification collection of enterprise income tax: (1). Where the situation in Article 5 (1) of the Interim Measures is met, i.e. ‘where account books should be established according to the laws and administrative regulations but were not established’, punishment will be given and late fees imposed in accordance with Article 60 of the Law of the People's Republic of China on the Administration of Tax Collection (hereinafter referred to as the Tax Administration Law). (2). Where the situation in Article 5 (2) of the Interim Measures is met, i.e. ‘where account books are destroyed without permission or tax payment materials are not provided’, punishment will be given and late fees imposed in accordance with the Article 62 of the Tax Administration Law. (3). Where the situation in Article 5 (3) of the Interim Measures is met, i.e. ‘where account books are established, but the accounts are not in order or information on costs, receipt vouchers and expense vouchers is incomplete, making it difficult to check the books, including: 1. Where total income can be only checked accurately or verified, but its expenses and expenditures can not be checked accurately; 2. Where costs, expenses and expenditures can be only checked accurately or verified, but its total income cannot be checked accurately; 3. Total income and costs and expenses cannot be checked properly, and true, accurate and complete tax information cannot be submitted to the competent tax authorities, causing it difficult to be verified’, punishment will be given and late fees imposed in accordance with Article 60 of the Tax Administration Law if the vouchers and related materials are incomplete; punishment will not be given and only late fees imposed if accounts are in disorder. (4). Where the situation in Article 5 (3) 4) of the Interim Measures is met, i.e. ‘where account books are established and checked in accordance with the regulations but account books, vouchers and tax-related materials are not maintained according to the regulations’, punishment will be given and late fees imposed in accordance with the Article 60 of the Tax Administration Law. (5) Where the situation in Article 5（4）of the Interim Measures is met, i.e. ‘Where institutions, social organizations, and private non-enterprise units fail to check taxable income-related costs, expenses, losses and tax-exempt related costs, expenses and losses respectively and can not calculate the taxable income as per the reasonable measures such as absorption proportion method, punishment will not be given and only late fees imposed. (6) Where the situation in Article 5（5）of the Interim Measures is met, i.e. “Where the taxpayer of enterprise income tax fails to handle the tax registration in accordance with regulations in production and operation’, punishment will be given and late fees imposed in accordance with the Article 60 of the Tax Administration Law. (7) Where the situation in Article 5（6）of the Interim Measures is met, i.e. “Where, in case of tax liability, the taxpayer fails to handle the tax return within the specified period and still fails to do so overdue after being ordered by the tax authorities to handle tax return within the specified term’, punishment will be given and late fees imposed in accordance with the Article 62 of the Tax Administration Law. (8). Where the situation in Article 5 （7）of the Interim Measures is met, i.e. ‘Where the taxbase of tax return is obviously low, without proper reasons’, and there is no situation in each item of Article 5 of the Interim Measures, punishment will not be given and no late fees imposed when first ex-post verification collection is made, being ordered to correct such cases. If presence of such situation is discovered, it shall be brought to the audit department for treatment”.
Firstly, the document clearly points out that verification collection allows advance verification, i.e. after application by the taxpayer as per year, the collection mode for his income tax shall be identified, and income tax shall be verified and levied in accordance with the taxable rate; furthermore, the document has also defined regulations, based on the Interim Measures of Guangzhou Local Taxation Bureau on Verification Collection of Enterprise Income Tax (Shui Di Shui Fa [2005] No. 297), Article 1, “In order to further standardize verification collection of enterprise income tax, to strengthen the management of collection of enterprise income tax, according to the Law of the People's Republic of China on the Administration of Tax Collection (hereinafter referred to as the Tax Administration Law) and its implementing rules (hereinafter referred to as the Implementation Rules of Tax Administration Law), Provisional Regulations of the People's Republic of China on Enterprise Income Tax (hereinafter referred to as Regulations) and its implementing rules (hereinafter referred to as Rules of Regulations) and the Interim Measures for Verification Collection of Enterprise Income Tax (Guo Shui Fa [2000] No. 38 by the State Administration of Taxation (hereinafter referred to as Measures for Collection), in combination with specific situation of our city, these measures are hereby formulated’, Article 3, “Verification collection of enterprise income tax, according to the verification behavior and respective tax period, is divided into ex ante verification, in-progress verification and ex-post verification’, and Article 4, “Ex ante verification refers to verification collection of the tax for the future month (quarter) of the year by the tax authorities before end of the year of enterprise income tax according to the situation of the taxpayer for the previous month or year; in-progress verification refers to verification collection of the tax by the tax authorities on the income because of incomplete vouchers of relevant income and expenditures when a taxpayer obtains temporary income and applies to the tax authorities for invoices; Ex-post verification refers the verification collection by the tax authorities when finding the taxpayer to have the situation in Article 5 during in section (audit) after end of the tax period, verification collection may also be ex-post verification, i.e. after end of the tax period, the tax authorities may pursue ex-post verification when the taxpayer is found to have the situation for verification collection during the audit process.
Secondly, the document clearly states that, if tax collection is made according to the ex-post verification mode, punishment shall be given in accordance with Article 60 of the Tax Administration Law, “Where a taxpayer commits one of the following acts, he shall be ordered by the tax authorities to rectify within a time limit and may be fined not more than RMB 2,000 yuan; if the circumstances are serious, he may be fined not less than 2,000 yuan but not more than 10,000 yuan”, i.e. a fine not more than 10,000 yuan will be imposed. That is, in the mode of ex-post verification collection, the regulations of Article 63 of the Tax Administration Law are not applicable, and of course, corresponding penalty shall not be imposed.
In the opinion of the applicant, firstly, verification collection of tax may occur in advance or afterwards; secondly, no matter the ex ante verification collection or the ex-post verification collection, its bases for enforcement are the Provisional Regulations of the People's Republic of China on Enterprise Income Tax, the Law of the People’s Republic of China on Enterprise Income Tax, normative documents of the State Administration of Taxation on verification collection of enterprise income tax as well as implementing rules of local tax authorities at all levels on verification collection of enterprise income tax, different legal bases are not applicable to ex ante verification collection and ex-post verification collection respectively; finally, with regard to ex-post verification collection, now that the higher-level laws cited in all places are the same, the bases for enforcement in all places shall also be consistent, and for the same action, the following situation shall not be allowed: a fine of less than RMB 10,000 is given in the south but so-called 1.5 times fine as high as RMB 6,733,716.36 is given in the north.
IV. Wrong procedures
Subject to Paragraph 1 (c) of Article 28 of the Administrative Reconsideration Law of the People's Republic of China (hereinafter referred to as Administrative Reconsideration Law), “If a specific administrative act has been undertaken in one of the following circumstances, the act shall be annulled, altered, or confirmed as illegal by decision; if the specific administrative act is annulled or confirmed as illegal by decision, the applied may be ordered to undertake a specific administrative act anew within a fixed time: 3. violation of legal procedures; 4. excess of authority or abuse of powers”, Article 45 of the Regulation on the Implementation of the Administrative Reconsideration Law of the People’s Republic of China, “Where a specific administrative action is under any of the circumstances set forth in Paragraph 1 (c) of Article 28 of the Administrative Reconsideration Law, an administrative reconsideration organ shall decide to revoke or modify the specific administrative action or confirm the specific administrative action as a violation of law”, and Article 55 of the Rules for Taxation Administrative Reconsideration (No. 21 Decree of the State Administration of Taxation), “The administrative reconsideration agency shall examine the legitimacy of the evidences in the following respects according to the specific situations of a case:
(1) Whether the evidences conform to the legal form; (2) Whether the obtaining of evidences conforms to the provisions of laws, regulations and judicial interpretations; and (3) Whether there are other circumstances in violation of laws which may affect the force of evidences”, and Article 58 “The following evidentiary materials shall not be used as the basis for determination of a case:
(1) Any evidentiary material collected by any means in violation of legal procedures”, the punishment decision made by the respondent to the applicant should have sufficient evidence; and such evidence should have legitimacy, including those obtained through legal procedures; furthermore, if the respondent collects evidence in violation of legal procedures, such evidence shall not be used as the factual basis for specific administrative act; moreover, if the respondent commits an action in violation of legal procedures when implementing the specific administrative act, its specific administrative act shall be revoked according to law. In terms of the respondent in the present case, its law enforcement has committed serious violation of legal procedures and excess of authority or abuse of powers, and thus its penalty decision should of course be revoked according to law.
1. Before tax inspection, the respondent has not fulfilled obligations of disclosure according to law
According to Article 22 (1) of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “Before inspection, the inspected party shall be informed of the inspection time and materials to be prepared, unless prior notice impedes the inspection”.
However, late at night on April 6, 2011, the respondent failed to inform the applicant according to legal procedures and retrieved accounting materials of the applicant from the founding time of the company, the year 2000, to February 2011, from Beijing Huxin Financial Accounting Services Co., Ltd. (hereinafter referred to as Huxin Company), to which the applicant entrusts for bookkeeping.
2. The respondent failed to issue a tax inspection certificate and the Tax Inspection Notice according to law
According to Article 59 of the Tax Administration Law, “When conducting tax inspection, the officials sent by the tax authorities shall produce tax inspection certificate and tax inspection notice, and shall have the duty to keep confidentiality for the persons under inspection; where no such certificate and notice are produced, the persons subject to inspection shall have the right to refuse to accept the inspection” and Article 22 (2) of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “The inspection shall be executed by two or more inspectors, who should show the inspected party the tax inspection certificate and the Tax Inspection Notice”, it is a necessary legal procedure for the tax inspectors to show the inspected party the certificates and tax legal documents.
However, late at night of April 6, 2011, when retrieving accounting materials from Huxin Company, the respondent failed to present the tax inspection certificate and the Tax Inspection Notice, in violation of the legal procedure.
3. The respondent gravely violated the legal procedure when retrieving accounting materials of the applicant
According to Article 25 of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “When retrieving account books, accounting vouchers, statements and other relevant information, present to the inspected party the Notice for Retrieving Account Book Materials and fill out the List of Retrieved Account Book Materials, which shall be signed for confirmation after being checked with the inspected party.
However, when retrieving accounting materials from Huxin Company and the applicant, the respondent failed to issue the Notice for Retrieving Account Book Materials and fill out the List of Retrieved Account Book Materials for verification with the applicant.
4. The accounting materials of the applicant retrieved by the respondent had not been returned within the statutory time limit
According to Article 86 of Rules for the Implementation of the Law of the People’s Republic of China on the Administration of Tax Collection, “A taxation authority exercising its powers of office provided under the provisions of item (1) of Article 54 of the Tax Administration Law may do so at the business premises of a taxpayer or tax-withholding agent. If deemed necessary and subject to approval by the head of a taxation authority at county level or above, the taxation authority may also demand that the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the previous accounting year be submitted for examination. When doing so, however, the taxation authority must provide the taxpayer or tax withholding agent with a detailed list of the items taken and shall return them within three months in entirety; in special cases, and subject to approval by the head of a taxation authority at city and autonomous prefecture level or above, the taxation authority may take back the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the current accounting year for examination, which must be returned by the taxation authority within 30 days”, and Article 25 (2) of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “Retrieving of the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the previous accounting year shall be approved the head of a taxation authority and they shall be returned within three months; retrieving of the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the current accounting year shall be subject to approval by the head of a taxation authority at city and autonomous prefecture level or above and they must be returned within 30 days”, any accounting materials of the previous accounting year retrieved by the respondent from the applicant shall be returned completely within three months; any accounting materials of the current accounting year retrieved by the respondent from the applicant shall be returned within 30 days.
When, however, the above statutory time limit expired, the respondent did not return all the retrieved accounting materials according to the law, and until now, has not yet returned them, which not only seriously affects the applicant's production and business activities, and substantially impedes the applicant’s rights to hearing and reconsideration.
5. Illegal tax penalty hearing procedure
Under Article 42 of the Administrative Punishment Law, “The administrative organ before making a decision on the administrative punishment such as ordering to stop production and business, withdrawing the permit or license，or large sum of fine，shall advise the party of the right to hearing. And the administrative organ at the request of the party shall organize hearing;（3） Hearing shall be held in public，with the exception that state or commercial secret or personal privacy is involved”, and Section 3, “Hearing Procedure” of Chapter 2 in “Punishment Procedure” of the Interim Measures for Administrative Punishment printed and issued by Beijing Local Taxation Bureau (Jing Di Shui Fa [2001] No. 488), the hearing procedure is a necessary procedure for implementation of tax administrative punishment. The respondent at the request of the party shall organize hearing in accordance with the specified procedures and requirements. If the hearing itself violates the regulations and the procedures, it will inevitably lead to “violation of legal procedures” by the tax administrative punishment itself, and thus, the corresponding tax administrative punishment shall be revoked according to law. In present case, although the respondent has organized a hearing, its hearing procedure has violated the law seriously.
(1) The hearing was not conducted in public
According to Article 53 of the Tax Audit Regulations (Guo Shui Fa [2009] No. 157), “Where the inspected party or other tax-related party requests a hearing, the hearing shall be organized according to law. A hearing officer should preside over the hearing. A hearing shall be conducted in accordance with the relevant regulations of the State Administration of Taxation”, and Article 2 of Implementing Measures for Hearing Procedures of Tax Administrative Punishment (tentative) (Guo Shui Fa [1996] No. 190) states that “The hearing of tax administrative punishment shall follow a principle of being lawful, fair, open, timely and convenient for citizens” and Article 11, “The hearing of tax administrative punishment shall be conducted in public, with the exception that the state's or commercial secret or personal privacy is involved. For a case of public hearings, the name of the parties and investigators in the case, cause of action, hearing time and place shall be announced in advance. People shall be allowed to attend public hearings. For a case of closed hearings, the reason for closed hearings shall be announced”, tax administrative punishment hearings shall be conducted in public, with the exception that state or commercial secret or personal privacy is involved.
On June 29, 2011, the applicant submitted a written application to request a hearing. In light of the decision of the respondent that “trade secrets” of a third party is involved and a “closed hearing” will be carried out”, the applicant submitted a written objection to the respondent twice, but the respondent refused to state the reasons. The hearing dated July 14, 2011 shows that the respondent cannot produce any application of a third party for cofidentiality to the applicant.
Public hearing is the procedural requirements of tax administrative punishment. If the contents of the hearing in the case involve commercial secrets, the respondent should also explain to the applicant any written application of a third party for keeping confidential. According to the Criminal Law of the People’s Republic of China and the Anti Unfair Competition Law of the People’s Republic of China, commercial secrets refer to “the technical information and operational information which is not known to the public, which is capable of bringing economic benefits to the owners of the rights, which has practical applicability and which the owners of the rights have taken measures to keep secret”. The respondent does not have any evidence that the information of a third party has such features that the information is not known to the public, is capable of bringing economic benefits to the owners of the rights, has practical applicability and the owners of the rights have taken measures to keep secret, and so-called “commercial secrets” are unwarranted.
(2) The applicant was illegally deprived of rights to statement and defence
According to Article 14 of Implementing Measures for Hearing Procedures of Tax Administrative Punishment (tentative) (Guo Shui Fa [1996] No. 190), “During the hearing, the case investigation officer shall accuse the parties of illegal acts, and produce evidence of facts”, during the hearing, the respondent shall present to the applicant the evidence materials for administrative punishment, and provide the originals to verify the authenticity of the evidence. However, the respondent, only at the beginning, provided the applicant with copies of relevant evidence materials, and such copies did not bear a signature of the applicant for confirmation. Because the respondent did not produce the originals to be checked with the applicant, the applicant is unable to confirm the evidence for authenticity, legitimacy and effectiveness, and moreover, the applicant was substantially deprived of its rights to statement and defence.
To safeguard the legitimate rights and interests of the applicant, to keep the tax payment relation between tax authorities and enterprises, and to maintain authority, equality and fairness of national tax laws and tax law enforcement, your bureau is kindly asked to forward the Notice of the State Administration of Taxation on Some Issues Concerning the Punishments for Acts in Violation of the Regulations on Stamp Tax (Guo Shui Fa [2004] No. 15) on which the respondent is based to the competent authorities for review, verify the facts and according to law, withdraw the Administrative Punishment Decision of No. 2 Tax Inspection Department of Beijing Local Taxation Bureau (Er Ji Shui Ji Fa [2011] No. 56).
Hereby undersigned, for the
Beijing Local Taxation Bureau
Applicant: Fake Design Culture Development Ltd.
Legal representative: Lu Qing
December 28, 2011
还是老艾能折腾，这么长的文章谁能看得完？
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