How to grasp the non-administrative punishment of tax violations?
December 19, 2023 China Tax News Edition: 07 Author: Wang Zhewei Zhang Qian.
According to the provisions, if the illegal conduct is minor and corrected in a timely manner, and does not cause harmful consequences, no administrative punishment shall be given. The paper argues that it can be evaluated from three aspects to evaluate whether it causes harmful consequences, and explore the management and dynamic correction of non-punishable matters with a list of "matters + conditions".
In the practice of tax law enforcement, it is a common administrative act to impose or not impose administrative penalties on tax violations. It is worth noting that there are great differences in the treatment of some law enforcement officers for the non-administrative punishment of similar tax violations.
The Administrative Punishment Law clearly stipulates a number of circumstances in which administrative punishment will not be imposed, mainly including three categories: the main responsibility capacity is not available, the facts of the violation are not established, and the degree of violation is slight. Among them, the degree of violation is slight, and the three elements of "minor violation", "timely correction", and "no harmful consequences or minor harmful consequences are met" must be met at the same time. The first paragraph of Article 33 of the Administrative Punishment Law stipulates: "Where the illegal act is minor and corrected in a timely manner, and does not cause harmful consequences, no administrative punishment shall be given." Where the violation is the first time and the harmful consequences are minor and promptly corrected, administrative punishment may not be given. ”
In the author's opinion, it is more difficult to judge whether the harmful consequences have been caused than the minor circumstances of the illegal acts and the timely correction. This paper focuses on how to grasp the non-administrative punishment of relevant tax violations from the perspective of hazard consequence assessment.
Factors for evaluating the harmful consequences of tax violations.
The Administrative Punishment Law and related laws and regulations do not have a clear standard for the term "harmful consequences", and there are large differences in individual cognition on how to grasp it, so it is necessary to make an overall determination, so that law enforcers can grasp it as a whole under a clear concept.
The harmful consequences here refer to the harmful consequences of the violation of administrative law obligations to the interests protected by the law. Administrative punishment is generally not based on the occurrence of harmful results as the basic element, but on the basis of the perpetrator's failure to perform obligations under administrative law, but the harmful consequences caused by illegal acts can usually reflect the magnitude of their social harm. As far as tax administrative regulations are concerned, the legal interests they protect include "tax collection and management order" and "national tax security". However, there is no difference between these two legal interests, and we cannot conclude that there are no harmful consequences if there is no tax loss.
In the author's opinion, in the practice of tax law enforcement, the discretionary scale of the assessment of harmful consequences should be considered from the following three aspects: first, whether the illegal act directly caused the loss of national tax revenue, the enforcement of the tax law and the collection of tax should remain rigid, and the illegal act that caused the loss of tax should not be found to have no harmful consequences;The second is whether the illegal act has caused the loss of the rights and interests of a third party other than the tax authorities and the administrative counterpart, and if the rights and interests of the third party are directly infringed upon due to the illegal act, it should not be determined that there are no harmful consequences;The third is whether the legal interests infringed by the illegal act can be repaired, and if it cannot be repaired or additional administrative costs are required to repair, it should not be found that there are no harmful consequences.
At the same time, the author believes that in the application of the first paragraph of Article 33 of the Administrative Punishment Law, the conclusion of "no harmful consequences has been caused" should be under specific circumstances, that is, no harmful consequences have been caused when the offender has made corrections in a timely manner, rather than that the illegal act itself has no harmful consequences. Only by understanding in this way can we achieve the reasonableness of the negative evaluation of the illegal act by laws and regulations and the reasonableness of not imposing administrative penalties at the same time, so as to achieve the logical self-consistency of legislation.
Provisions of tax laws and regulations on the non-administration of administrative penalties.
According to the model list of rights and responsibilities issued by the State Administration of Taxation, there are currently 39 items for which the tax authorities have the power to impose administrative penalties, which can be divided into 54 illegal acts according to the individual illegal acts, of which 36 illegal acts involve laws and regulations that stipulate that the relevant illegal acts are "punishable" rather than "should be punished". Therefore, there is room for discretion not to impose administrative penalties for these 36 violations.
Judging from the provisions of the law, for the two illegal acts of "taxpayers not going through tax registration" and "taxpayers and withholding agents do not pay or underpay the taxes payable or payable within the prescribed time limit", it is clear that the premise of administrative punishment is that the correction (payment) is not made within the time limit. For this type of conduct, it can be considered that the elements constituting an illegal act include the condition that the correction is not made within the time limit, otherwise it will not constitute an illegal act, and there is no way to talk about administrative punishment. On the contrary, if the administrative counterpart fails to make corrections within the time limit and meets the criteria for triggering punishment, it does not meet one of the prerequisites for not punishing minor violations - "timely correction", so it will not involve the evaluation of the harmful consequences of the illegal acts.
For the rest of the tax administrative violations, on the premise that the violations are minor and corrected in a timely manner, the author believes that the three aspects mentioned in the first part of this article can be used to evaluate whether the harmful consequences have been caused, and then evaluate whether there is room for non-administrative punishment. If the illegal act of "failing to report the bank account number to the tax authorities in accordance with the regulations" is minor and does not involve underpayment of taxes, damage to the interests of a third party, and failure to exercise law enforcement measures such as checking the taxpayer's account number through the tax authorities, the taxpayer has made corrections, it can be deemed that no harmful consequences have been caused and no administrative penalty will be imposed. This is the implementation of the principle of "excessive penalties are commensurate" in the practice of tax law enforcement, and it can also avoid the legal but unreasonable problems caused by mechanical law enforcement.
The feasibility of issuing a list of non-tax administrative penalties.
At present, some tax bureaus have issued a list of non-tax administrative penalties. However, the content is still mainly based on the "first violation without punishment", and the rest of the non-punishment matters are concentrated in the cases of "force majeure leading to illegal acts", "responsibility of tax authorities", "persons under the age of 14 have tax violations", "mentally ill persons who have illegal acts when they cannot recognize or control their own behaviors", etc., which are essentially a reiteration of the circumstances under which administrative penalties are not imposed under the Administrative Punishment Law, rather than a list-based management in accordance with tax violations.
Whether or not to impose an administrative penalty for an illegal act is within the scope of administrative discretion. The report of the 20th National Congress of the Communist Party of China clearly states that the exercise of discretionary power should be regulated, and the author believes that leaving the judgment of whether an illegal act meets the requirements of non-administrative punishment to law enforcement personnel is likely to lead to different handling situations due to different personal subjective judgments, which is not conducive to establishing the authority and credibility of law enforcementHowever, the "one-size-fits-all" approach can easily lead to the creation of non-penalty clauses, which is not conducive to creating a good business environment. Under the conditions prescribed by the current laws and regulations, the local tax authorities may, in accordance with the uniqueness of the field of tax administration and with reference to the long-term practical experience of law enforcement, explore the management and dynamic amendment of the non-penalty matters with the list of "matters + conditions". In this way, it is not only conducive to better realizing the "proportionality of excessive penalties", but also provides practical data for the setting and evaluation of administrative penalties in the tax field.
Author's Affiliation: Tianjin Taxation Bureau, State Administration of Taxation).