The basic principles of taxation are the fundamental norms that govern all tax norms, and must be complied with in all tax activities, including tax legislation, law enforcement, justice, and law-abiding. The principle of tax fairness is often regarded as the first principle in the design and implementation of the tax system, and it is regarded as the two basic principles of contemporary taxation, as well as the principle of tax law. Taxation law is the core, the foundation, the premise and the guarantee; Tax fairness is the effect, the test, the justice, the overall recognition of taxpayers and society, and the foundation of the sustainable operation of the tax system.
1. The basic meaning of the principle of tax fairness.
The principle of tax fairness, also known as the principle of tax fairness, means that the legal status of taxpayers must be equal, and the tax burden must be fairly distributed among taxpayers. (See Liu Jianwen, Special Research on Fiscal and Taxation Law, 2nd Edition, p. 196, Peking University Press, 2007.) ）
The State levies taxes in such a way that each taxpayer's burden is appropriate to his or her economic situation and that the level of burden is fair among taxpayers. The principle of tax fairness refers to the fact that taxpayers should be treated equally under the same economic conditions, that is, the so-called equal tax treatment. Tax fairness can be further divided into horizontal fairness and vertical fairness. Horizontal fairness means that people with the same economic capacity or tax ability should pay the same amount of tax, that is, people with the same economic conditions should be treated with the same tax standards; Vertical equity, on the other hand, treats people with different economic conditions differently according to the size of their ability to pay or the amount of income they receive. In layman's terms, it means that high-income earners should be taxed more than low-income earners. Vertical fairness may seem unfair on the surface, but it pays more attention to substantive fairness.
The principle of tax fairness requires that taxes must be levied universally and equally, which should not only reflect formal fairness, but also pay more attention to substantive fairness. In terms of the measurement standard of tax fairness, it is generally believed that the amount of wealth owned by the taxpayer should be used as the standard to measure its ability to pay taxes, that is, the strength of the ability to pay taxes should be measured by comprehensively using the three measures of wealth, such as property, income and expenditure, so the state levies corresponding tax items: property tax, income tax and consumption tax (or commodity tax).
The academic community has different understandings of the principle of tax fairness in different historical periods. From the perspective of historical development, tax fairness has undergone a transformation and development process from absolute fairness to relative fairness, from formal fairness to substantive fairness. Absolute fairness of taxation, i.e., the requirement that every taxpayer should pay the same amount of tax. The reflection in tax practice is the prevalence of fixed tax and poll tax. Adam, an English philosopher and economist. According to Smith, natural justice is the fairness of natural justice when individuals are to pay taxes proportionately to their abilities, that is, to the benefits they receive under the protection of the state. Adam. Smith's "principle of tax fairness" or natural justice fairness theory was later transformed into the "tax fairness principle" or social policy fairness theory by the German economist Wagner into the concept of social policy, that is, according to the size of the tax paying capacity, the progressive tax rate is used to tax in order to achieve substantive equality. At the same time, the minimum living expenses are exempt from taxation and property income tax is levied. This is Wagner's social policy equity with Adam. Where Smith's natural justice fairness differs. Wagner developed the standard of fairness from absolute fairness to relative fairness, that is, taxation should take into account the taxpayer's ability to pay taxes. Those with a large ability to pay taxes should pay more taxes, and those with a small ability to pay taxes should pay less, which further reflects substantive fairness.
2. Factors influencing the principle of tax fairness.
1. The relationship between tax fairness and legislation.
China's tax legislation does not explicitly put forward the principle of tax fairness, but the general taxation system and the principle of differential treatment and reasonable burden actually embody the spirit of tax fairness.
The primary value of tax legislation is fairness. Only fairness and tax legislation are "good law"; Any legislation that does not reflect fairness risks becoming a "bad law". Article 3 of the Law on the Administration of Tax Collection stipulates that: "The initiation and suspension of tax collection, as well as tax reduction, tax exemption, tax refund and tax supplementation shall be implemented in accordance with the provisions of the law; Where the law authorizes ***, it shall be implemented in accordance with the provisions of the administrative regulations formulated by ***. "No organ, unit, or individual may violate the provisions of laws and administrative regulations by making decisions on tax levy, levy, tax reduction, tax exemption, tax refund, tax compensation, or other decisions that contradict tax laws and administrative regulations. This provision is not only an essential reflection of the statutory principle of taxation, but also an inevitable requirement of the principle of tax fairness.
Taxation is an important lever for regulating the distribution of national income, and to give full play to the role of leverage, it lies in the scientificity and fairness of the collection legislation.
The fairness of tax legislation must be premised on the scientific nature of legislation. If tax legislation is not scientific, it will lose its fairness, and the leverage of taxation will not be brought into full play.
Only when the formulation of tax laws is fair can it bring a scientific law enforcement basis to tax law enforcement.
Take, for example, the Individual Income Tax Law. Progressive tax rates are widely used in legislation, and progressive tax rates are a means to achieve wealth redistribution, so progressive tax rates are reasonable differences and do not violate the principle of fairness. However, if industry differences are not taken into account as much as possible, progressive tax rates alone are still not enough to fully reflect the fairness of taxation. For example, at present, a unified progressive tax rate system with no industry differences is adopted, and emerging formats such as the film and television industry, entertainment industry, and Internet platforms, such as live streaming, are profiteering, while science, education, and culture require long-term investment in smart costs, economic costs, slow results, low rate of return, and some even have no profit returns at all; Although some can produce certain economic benefits, it is difficult to reflect the market value with the input-output ratio, and even the value is inverted. If a flat progressive tax rate were to be introduced, it would be clearly unreasonable and therefore unfair. For example, those who have made outstanding contributions to social progress should enjoy a higher income, but if they have the same 45% tax rate as those profiteering recipients such as film and television stars, ** Internet celebrities, and live broadcasts, the fairness of the tax burden will become a big problem. At the same time, the current Individual Income Tax Law still has problems such as the relatively narrow scope of tax sources, the imbalance of the tax burden of the classified tax system, the large difference in tax calculation methods, and the unreasonable deduction system, which urgently need to be revised and adjusted.
2. The relationship between tax fairness and law enforcement.
In the process of tax collection and collection between administrative organs and taxpayers in the course of law enforcement, due to the existence of the discretionary power of administrative organs and the awakening of taxpayers' awareness of rights, these require tax authorities to abide by the principle of tax fairness when exercising discretionary powers, and treat the same situation the same. When exercising the authority that is beneficial to the taxpayer's interests, such as the postponement of depreciation and the suspension of the disposition of late payment, if the above authority is exercised against one party and the other party is refused to exercise the above authority against different taxpayers in a unified situation, the principle of tax fairness is violated.
The principle of tax efficiency requires a certain degree of discretion in tax law enforcement, but controlling discretion within appropriate limits is a very important issue in tax law enforcement. Improper exercise of discretion has the immediate consequence of affecting tax fairness.
For example, if there is no effective restriction on whether to impose corporate income tax on the tuition and accommodation fees of students in "non-profit private schools", this kind of discretion in the enforcement process will lead to abuse of power. Some local taxation authorities have engaged in selective law enforcement, violating the "Law on the Promotion of Private Education" and its implementing regulations on "non-profit private schools enjoy the same preferential tax policies as public schools", imposing huge enterprise income tax on the tuition and accommodation fees of a small number of "non-profit private schools", while not leviing enterprise income tax on the same fees charged by other non-profit private schools, and even some for-profit private schools or training institutions have also handled "tax exemption qualifications" for them and are exempt from relevant taxes. This not only seriously violates the law, undermines the uniform implementation of the law, but also loses the fairness of taxation.
For public schools, China's law clearly stipulates that tuition fees and accommodation fees are administrative fees of public institutions of higher learning, which fall within the scope of non-taxable income under the Enterprise Income Tax Law. In addition, in the "List of Administrative and Institutional Fees of National and ** Departments and Units" issued by the Ministry of Finance in 2017, it is also clearly listed that the tuition fees, accommodation fees, entrusted training fees, and short-term training fees of public colleges and universities (including scientific research institutes, party schools at all levels, etc.) are administrative fees. The second paragraph of Article 7 of the Enterprise Income Tax Law stipulates that "administrative fees collected in accordance with the law and included in financial management" are not taxable income. Therefore, the nature of tuition and accommodation fees collected by public schools is administrative fees, which are not taxable income.
Article 47 of the Law on the Promotion of Private Education stipulates that "non-profit private schools enjoy the same preferential tax policies as public schools." According to the spirit of this law, non-profit private schools are subject to the same tax policy as public schools. The state does not levy enterprise income tax on the tuition and accommodation fees of students in public schools, and it is natural that no enterprise income tax is levied on the tuition and accommodation fees of students in non-profit private schools, so as to reflect tax fairness. A small number of local taxation authorities selectively levy huge enterprise income tax on the tuition and accommodation fees of students of some non-profit private schools on the grounds of opening up "tax sources" when laws, administrative regulations and departmental rules do not stipulate that enterprise income tax shall be levied on the tuition and accommodation fees of students of non-profit private schools, which seriously affects the principle of tax fairness, gives rise to many tax-related disputes, and affects the business environment and legal environment of the private economy and private undertakings.
3. The relationship between tax fairness and law-abiding.
The implementation of tax fairness not only requires the tax law enforcement agencies to collect taxes fairly, but also requires all citizens, legal persons and other organizations to establish a sense of paying taxes, abide by the Constitution and legal provisions, consciously implement all tax laws and relevant administrative regulations, and take the initiative to pay all kinds of taxes payable in accordance with the law. In particular, it is necessary to carry out various forms of tax law publicity, positive guidance, typical incentives, case analysis, and illegal sanctions, so as to form a tax paying awareness and a culture of paying taxes according to law in the whole society of glorious tax payment, tax evasion and illegal crimes, and tax resistance crimes. The power of culture can have a silent, lasting impact.
Strengthen the publicity of using cases to explain the law, not only to publicize positive examples with great fanfare, to form demonstration and guidance, but also to timely lead negative cases of tax evasion and tax resistance. Especially for some stars and network anchors in the film and television industry, entertainment industry, it is necessary to increase the intensity of tax-related inspections, and convey to the society the firm determination of the tax department to continue to crack down on tax evasion by film and television stars and online anchors in accordance with the law, and maintain the authority of the tax law and a fair tax environment, which reflects the "zero tolerance" attitude towards tax-related violations, which not only sounds the alarm for lawbreakers who take risks to evade taxes, but also creates a fair and just tax environment for law-abiding people.
In particular, the current emerging formats such as online live streaming often become tax-related blind spots, pain points and difficulties. To this end, in March 2022, the Cyberspace Administration of China, the State Administration of Taxation, and the State Administration for Market Regulation jointly issued the "Opinions on Further Regulating the Profit-making Behavior of Online Livestreaming to Promote the Healthy Development of the Industry", requiring online livestreaming publishers to standardize tax payment and enjoy tax incentives in accordance with the law, and also requiring online livestreaming platforms and online livestreaming service providers to perform withholding and payment obligations in accordance with the law. Only by cracking down on the illegal acts of tax evasion by online anchors, improving the tax supervision of the online live broadcast industry, and making the law truly "shine the sword", can we better rectify the chaos, improve the compliance of practitioners with tax laws, create a fair and just tax environment, and promote the transformation of the industry from barbaric growth to standardized development. There are laws that must be followed, violations must be investigated, honest tax payment is glorious, tax evasion is shameful. Everyone has the obligation to pay taxes in good faith in accordance with the law, and emerging industries such as online live broadcast are neither extralegal places nor tax "gray areas", as online anchors or entertainment stars, no matter how famous and popular they are, once tax evasion touches the bottom line of the law, it will be difficult to escape sanctions, and they will have to bear the corresponding price.
3. Fully implement the principle of tax fairness in practice
First, carry forward the spirit of the Constitution and protect the legitimate property of taxpayers in accordance with the law. As mentioned above, Articles 12 and 13 of the Constitution of the People's Republic of China stipulate that "socialist public property is sacred and inviolable" and "the lawful private property of citizens shall be inviolable" respectively. In other words, whether it is public property or legal and legitimate private property, it is property protected by the Constitution and laws. In order for the state to collect the property of citizens, legal persons and other organizations to the state as taxes free of charge, it can only be implemented under the circumstances expressly provided by laws or administrative regulations.
Second, limit the discretion of tax enforcement.
The statutory principle of taxation is also directly embodied in Article 3 of the Law on the Administration of Tax Collection. This article stipulates: "The initiation and suspension of taxes, as well as tax reductions, exemptions, refunds and supplementary taxes, shall be carried out in accordance with the provisions of the law; Where the law authorizes ***, it shall be implemented in accordance with the provisions of the administrative regulations formulated by ***. "No organ, unit, or individual may violate the provisions of laws and administrative regulations by making decisions on tax levy, levy, tax reduction, tax exemption, tax refund, tax compensation, or other decisions that contradict tax laws and administrative regulations. This provision more comprehensively reflects the requirements of the statutory principle of taxation, so that the statutory principle of taxation has been further established and improved in the rule of law in taxation. This provision also limits the discretion of tax enforcement. Therefore, tax enforcement should not only adhere to the principle of tax legality, but also limit discretion; It is necessary not only to obtain greater substantive fairness through the exercise of discretion, but also to control discretion to a lawful and reasonable degree.
Third, adhere to substantive fairness.
Fairness and justice are not only external fairness, i.e., procedural fairness, but more importantly, substantive fairness and substantive fairness. Academics generally divide fairness into formal fairness and substantive fairness. Formal fairness emphasizes fairness in opportunity and distribution, while substantive fairness focuses more on fairness in outcomes. Civil law emphasizes autonomy of will, while economic law such as tax law emphasizes state intervention by imposing necessary restrictions on autonomy of will to reflect fairness of results.
Substantive fairness is always the essence of fairness and justice. Procedural justice certainly has its independent value, but more importantly, the essence of procedural justice is the safeguard measures and processes for relevant subjects to obtain substantive justice. It would be naïve for law enforcers or judicial officials to think that fairness and justice would be achieved as long as the procedure was deduced. What's more, some well-known scholars have said that substantive justice is an obstacle and a stumbling block to fairness and justice. This kind of visiting scholar who has been abroad or abroad for a year and a half will not recognize his country when he comes back, and he does not know who his surname is, and his argument can only become a laughing stock of "either bad or stupid."
As with all administrative enforcement, allowing tax enforcement to have a moderate degree of discretion is at its core to ensure substantive fairness. Law enforcers must uphold the concept of substantive justice, uphold the conscience of law enforcement, make reasonable use of discretionary powers, and ensure that every law enforcement and every case is handled while strictly abiding by procedural rules, so that the counterpart of administrative law enforcement has a real sense of fairness and justice.
Of course, we must also oppose the pursuit of procedural justice instead of so-called substantive fairness. It should be said that procedural fairness and substantive fairness are opposites.
1. Complementary dialectical relationship. The common saying of "a bowl of water is even" actually contains the internal unity of substantive fairness and procedural fairness. how to "equalize", this is a matter of procedural fairness; "A bowl of water" this is essentially fair. That is to say, it is necessary not only to have a real "bowl of water", but also to "this bowl of water" to be level, without discrimination, without bias, eccentricity and deviation. It is also as the general secretary of *** demanded that "let the people feel fairness and justice in every case". "Feeling fairness and justice" means that the people should not only obtain real justice, but also the process and method of achieving justice should be visible and felt by the people.
*: Mountain tiger saying.