税务稽查执法风险的法律防控
摘要
当前,我国税收征管的目标模式定义为“以申报纳税和优化服务为基础,以计算机网络为依托,集中征收,重点稽查,强化管理”的34字方针,凸显了税务稽查在我国税收征管工作中的重要地位和作用,促进了税务稽查执法的迅速发展。然而,由于税务稽查法制建设不完善,稽查机构设置不合理,任务型稽查管理模式占据税务稽查执法的主导地位,缺乏完善的税务稽查执法保障体系,内外监督制约机制不健全,稽查人员质量和数量上远远不能适应当前税务稽查执法环境需要等诸多因素,我国税务稽查执法还存在着诸多问题,其中因税务稽查执法行政行为引起税务行政复议、行政诉讼导致税务稽查面临越来越多、越来越严重的风险困境问题,尤其值得特别关注。税务稽查执法风险问题,将导致税务稽查执法举步维艰,甚而会使税务稽查执法被相关法律规范四面围困,走进死胡同,因而必须从法制建设和体制规范入手,规避可能导致税务稽查执法风险的各种因素,让税务稽查执法摆脱四面楚歌的危险可能性。近年来,我国关于税务稽查执法引入风险管理体制的理论研究已初具态势,有些地区和部门的税务稽查执法中也有所运用,并取得了一定的成效。本文希望在已有研究成果的基础上,进一步分析当前税务稽查执法中的风险现象及其成因,为我国税务稽查执法风险防控作些有益的探索。
本文从风险和风险管理的基本理论入手,对税务稽查执法风险展开论述。全文分三部分。一、税务稽查执法风险法律防控基本理论,在分析风险及风险管理理论的基础上,论述了税务稽查执法风险的概念、种类及特征,税务稽查执法风险管理的概念、种类、必要性及现实意义。二、税务稽查执法风险现状分析,以风险现状中风险出现的外在表现形式即税务行政复议、行政诉讼案件为切入点,主要分析风险的内在隐藏形式,即对风险事中防控不够所导致的行使自由裁量权问题、程序违法问题、实体性问题三个主要问题;税务稽查执法风险成因,即对风险的事前防控不足所导致,主要包括社会环境因素、法制和体制因素、人员因素、监控体系因素、信息因素五个部分。三、税务稽查执法风险的法律防控措施,通过对税务稽查执法风险的现状及成因分析,提出具体可行的法律防控措施,一是完善税务稽查法制建设;二是完善税务稽查执法监督制约机制;三是健全税务稽查执法保障体系。
In recent years, with the Administrative Review Law, the Administrative Procedure Law, the State Compensation Law, the new collection law and its implementation details such as the further implementation of various laws and regulations, social and legal system, the degree of the continuous improvement, the taxpayer's rights protection awareness and legal awareness of significant enhanced, objectively speaking, the tax authorities, especially law enforcement inspection department has put forward higher requirements. Nevertheless, under the influence of various factors, the tax inspection of law enforcement in an objective implies a greater law enforcement risks, the performance of law enforcement violations of law enforcement for law enforcement officers continue to increase, the tax authorities lost because of administrative litigation, administrative compensation and loss of revenue due to the country have been held and the administrative, legal responsibilities, which greatly affected the auditing department of law enforcement authority and social image. Social and legal process, and the practical needs of administering the tax inspection department and law enforcement officers to effectively enhance the tax inspection of law enforcement risk awareness, and from the theory and practice of tax inspectors and law enforcement personnel to seriously study and prevent the risk of inspection of law enforcement made an urgent requirement.
However, with regard to the risk of the tax inspection of law enforcement issues, current theories, industry and tax practitioners still attach great importance to the risk of tax audit study of law enforcement have not yet precisely defined, urgent need to build basic theory. In this paper, risk and risk management, the basic theory start with the risk of tax audit commenced discussion of law enforcement. Full text of three parts: First, the tax inspection of law enforcement risk prevention and control of the basic theory of law; 2, the tax inspection status of law enforcement risk analysis; 3, the tax inspection law enforcement risk prevention and control measures.
The first chapter of tax audit risk law enforcement prevention and control of the basic theory.
From risk and risk management start with the basic theory, defining risk, risk management, tax inspection of law enforcement concept of risk. In my opinion, the risk of loss of rights or obligations assumed by the possibility of the tax inspection of law enforcement risk refers to the tax inspection authorities and tax inspectors in the inspection of law enforcement process, the result of misconduct by law enforcement the right to assume the possibility of loss or obligation. Ji Zhi loss of power by law enforcement power of tax inspectors the power of the invisible image, dignity and power loss caused by the exercise of undue power to size, degree of loss, loss of profits mainly for economic compensation, etc.; obligation to assume accountability for the performance of legal sanctions, accountability for the performance of civil liability, administrative accountability, criminal, constitutional accountability, and legal sanctions for the performance of civil sanctions, criminal sanctions, administrative sanctions, and sanctions unconstitutional. On this basis, in-depth analysis of the risk characteristics of the tax inspection of law enforcement, types; the same time, defining the risk of tax audit law enforcement concept of prevention and control, in-depth analysis of the tax audit risk of the law enforcement and the need for prevention and control of practical significance.
The second chapter is a tax inspection of law enforcement risk and genetic analysis of the status quo. This is the main part of the paper.
Section I is a tax audit risk Analysis of law enforcement. Primarily a matter of risk analysis in the prevention and control issues, in tax inspection of law enforcement, all of the risks posed by the risk of mesh body, mainly caused by the exercise of discretion by the tax inspection of law enforcement risk; tax law arising from the inspection of law enforcement procedures enforcement of the tax audit risk; the implementation of substantive tax law enforcement caused by the tax audit risk. In which the exercise of discretion was a direct incentive, the program violations of the law is the key, substantive issue is the nature of. These three main issues, in tax inspection of law enforcement, or repeat the run, or cross-cutting operation, eventually leading to loss of rights or obligations assumed by the possibility of the formation from the point to the risk of surface to body mesh body, the volume of the adverse consequences arise large and wide, must be highly valued.
Section II of the Tax Audit Risk Analysis of law enforcement. Tax Audit presented in law enforcement out of these three major appearance problems, go back further, it should be the first step that causes the most origin of law enforcement risk factors analysis, to identify and measure, to take reasonable means to achieve positive prevention and control in advance in order to to reduce the likelihood of ex post relief. Specifically, the tax inspection of law enforcement in China are the main reasons the risk of social environment, the rule of law and institutions, personnel, supervision system, information technology five factors. Of which: Social environmental factors is the basic factor, the rule of law and institutional factors are the root causes of factors, human factors are the key factor, factor is protection factor surveillance system, and information factors are contributing factors. These factors, cross-linking, it would produce a corresponding risk of inspection of law enforcement bodies, the lack of advance prevention and control of risks arising from physical, but also in the prevention and control, and something less than the risks arising from physical cross-linking, the inspection body of the volume of law enforcement risk The large and broad, immeasurable, which would greatly reduce the tax authorities, law, national dignity and image of our economic development, there will be significant lag. In this paper, jurisprudence, through an analysis of theoretical analysis and practical combination of law enforcement risk of tax audit causes of theoretical and empirical analysis.
Social environment factors are the underlying factor. Focused on analysis of government intervention in the tax inspection of law enforcement, the external powers and functions related to the tax department can not effectively meet the inspection of law enforcement in two ways.
The rule of law and institutional factors are the root causes of factors.
First analyzes the major shortcomings of the legal system of China's tax audit. China's 94 years since the land tax system, divided the country since the risk of adverse effects on the highlighted dramatically in recent years, mainly because of China's tax laws and regulations in the construction and inspection organization-building is not yet fully aware of the risks, there is no risk in advance is a matter , the ex post effective prevention and control, leading to the lagging nature of the legal, risk-prone, the risk of body size is too large or too broad an error arising from one of today's "privilege", "rule of man" thinking, therefore, should be correct, profound analysis of the rule of law and institutional shortcomings, so that a correct understanding of risk, to advance, things in the whole process after the prevention and control, get rid of erroneous ideas and knowledge. Mainly manifested in the following aspects: 1. The legal status of the tax audit is too low. 2. The exercise of discretion lack of a unified, standardized constraints.
Second, analysis of the main shortcomings of China's tax audit system. Focuses on task-based inspection of income management, tax inspection bodies and the tax collection agency decentralization and coordination of the tax inspection agency set up these three main aspects.
Human factors is a key factor. Mainly analyzes the quality of the tax inspectors in legal ethics and professional quality, several aspects of a serious shortage of staff. Monitoring system is to protect elements of factors. Under the current tax law and system audit, tax, audit of internal oversight of law enforcement is still quite weak. Tax Audit although the external oversight of law enforcement can play a certain role, but the main is that "the incident" in processing, prior, things are mostly a formality in supervision.
Information factors are contributing factors. The outstanding question is: inspectors, computer applications are not high, the full sharing of information network construction to be achieved and strengthened, the relative lack of information professionals.
Chapter III is a tax inspection law enforcement risk prevention and control measures.
Under the Inland Revenue inspection of law enforcement status and causes of risk analysis, I believe that, based on a correct understanding of risk and try to improve the legal system, tax audit, improve the tax inspection of law enforcement supervision and control mechanism, based on a sound security system, tax audit, proper risk The pre-effective prevention and control, risk the appearance of things in the stage show a reasonable expectation of sexual issues, while effective advance, something in after the prevention and control. The risk of the tax audit by the law enforcement prevention and control, effectively reducing the risk of body size in each of the points, the risk of the whole body of law-enforcement inspection volume contraction to minimize the risk of the tax inspection of law enforcement the potential loss of rights and obligations of commitment control to a minimum degree of both possible and necessary. Therefore, based on the current situation and causes of risk analysis, inspection of law enforcement risk through the tax laws of prevention and control, to conduct tax audit of law enforcement risk management, inspection of law enforcement risk through beforehand, something in the reasonable expectation of ex post facto, will effectively control the tax the risk of adverse consequences of the law enforcement inspection occurs, abandon the people's hearts "privilege", "rule of man" erroneous ideas, through the inspection tax environment of law enforcement to maintain order and prevent tax loss, the socio-economic regulation and control, maintaining the tax authorities, law, the country's image and dignity.
Tax Audit Section is to improve the legal system. In my opinion, drawing on Western experience of developed countries, China's legal system of taxation should be at least "tax the Basic Law," "Tax Procedure Act" and the "Organic Law of the tax authorities", otherwise, for the tax inspectors and even the entire tax collection system is concerned, is the most fundamental legal deficiencies. In the above various measures to improve the legal system of taxation based on the constitutionality of the possibility should be considered. The risk of tax audit law enforcement prevention and control, at least do the following five aspects of work.
The first is to develop "Tax Basic Law." Enhance the legal status of the tax inspection agencies to strengthen enforcement of the tax inspection authority, the statutory external relevant departments and the parties would support obligations, statutory tax collection and investigation of the powers, duties and collaboration, constraining relations, effective control of law enforcement internal audit, external risks the occurrence of adverse effects, reduce the risk of the tax inspection of law enforcement bodies, tax collection and the risk of physical, external risks of cross-combination of body size, and thus reduce the risk of the whole body of the volume of tax revenue, and ultimately achieving the risk of law enforcement prevention and control inspection purposes.
The author believes that the status of the tax audit should be added to one thing: tax inspectors through the inspection of law enforcement to safeguard the dignity of law; tax audit functions should be as follows: the dignity of the functions, revenue functions, disciplinary functions, monitoring functions, educational functions.
The second is to develop "Tax Procedure Act." China's program of legal construction, should be the existing "Tax Collection and Management Law" and its implementing regulations are "tax the Basic Law," the contents of the stripping out the existing procedural rules of law based on the deletions, improve, develop "Tax Procedure Act."
(I) the inspection of law enforcement of statutory rules of procedure of the various components: the establishment of procedures links of the overall rules of procedure, the establishment of a specific part of the program rules of procedure.
(II) the exercise of discretion control the rules of procedure.
(III) External relevant departments, related-party assistance, with the tax inspection of law enforcement rules of procedure.
(IV) monitor the rules of procedure. Rules of procedure is divided into internal control and external monitoring of rules of procedure.
(V) Tax collection and management of collaborative search constrained rules of procedure. Revenue can be divided into special inspection rules of procedure, routine inspections of rules of procedure.
(VI) to review the legality of normative documents and conflict resolution rules of procedure
(VII) the powers and responsibilities symmetry rules of procedure.
1. according to various types of risks should bear the legal liability, sanctions, such as civil liability, administrative liability, criminal, constitutional responsibility, and civil sanctions, criminal sanctions, administrative sanctions and unconstitutional sanctions to step up legislative reform, improve the power and responsibility symmetry rules of procedure. In our Constitution, under the premise of continuous improvement, set the corresponding constitutional responsibilities, unconstitutional sanctions.
2. according to the tax inspection agency set up, inspectors check the coverage of the characteristics of the network-sharing mechanisms in the establishment of anonymous reporting under the premise of the tax inspection to accept the relevant departments, the majority of the taxpayer's social supervision, should re-post of heavy responsibility in accordance with the principles involved should be exposure to civil, criminal, and other responsibilities, sanctions, in accordance with his powers, duties size, depending on various circumstances, and should be a corresponding responsibility and sanctions. If related to taxes levied for both sides, within the relevant tax authorities responsible, in line with the composition of the common criminal element should be the common types of crime, the circumstances, be the corresponding responsibility, sanctions.
The third is to develop, "the Organic Law of the tax authorities." Should be designed to fully research and science, based on a reasonable setting up a tax inspection bodies, bodies layout, scale and the relationship between agencies and working procedures, staffing, basic working system, the basic rules of liability to avoid enforcement of the tax audit, tax Inspection bodies chaotic layout, scale properly, the number of personnel unreasonable and relatively low quality of personnel led to the adverse consequences of the risk of inspection of law enforcement. Tax audit for the current outstanding problems in practice, this article that "the Organic Law of the tax authorities" should focus on resolving the following tax audit issues.
(I) a clear law enforcement-based inspection management thinking.
(II) a clear integration of the tax inspection, reasonable to set the tax inspection agency.
To achieve integration of the tax audit, reasonable to set a unified, vertical management of tax audit institutions, the establishment of the State Administration of Taxation Inspection Bureau, the Provincial Tax Audit Bureau, the Provincial Criminal Investigation Bureau, "an inspector" organs. The tax system, the implementation of such a collection, check the independent audit phase separation system, to facilitate the tax inspection authorities to carry out the tax Commission investigation, to avoid duplication of inspection under the old system, the disadvantages of reducing the burden on taxpayers to achieve tax audit specialization, standardization, and the promotion of the tax inspection to further improve the efficiency of law enforcement; the formation of the tax inspection of law enforcement work together as a whole, increase inspection efforts, easy to remove all obstacles and factors that promote the improvement of law enforcement authority.
Creation of specialized Provincial Criminal Investigation Bureau, directly from the State Administration of Taxation Inspection Board's management, but also the purposes of the State Administration of Taxation and the State Administration of Taxation Inspection Bureau of dual leadership will ensure the adequacy of the exercise of power and authority to prevent all kinds of human factors, to maintain the image and dignity of the law, safeguard the country's image and dignity.
(III) a tax inspection authorities a reasonable layout, scale.
1. The layout of the tax inspection authorities should work with the layout of the tax collection authorities rather, parallel, side by side set up.
2. According to the severity of the loss of existing tax revenue, clearly the size of the tax inspection authorities should be roughly equivalent to the tax collection authority in parallel one-fifth to one quarter the size.
3. Explicit tax audit authorities across sectors inside the settings.
(IV) expressly provide that tax inspection agency staffing standards.
Tax inspectors clear idea to protect agency personnel to configure, access, standards, training standards, grading standards, quantity standards, specifically the tax inspection agency personnel to configure the corresponding powers, duties, term limits, and working-level and so on.
Fourth, the formulation of "tax auditing work regulations." By the State Department in the form of administrative regulations to develop, "Tax Audit Work", up one level to "tax auditing work order" based on relevant content, according to "tax the Basic Law," "Organic Law of the tax authorities," "Tax Procedure Law "be amended, supplemented and improved on specific practical work such as tax auditing organization established bodies of work within and outside the convergence and transformation, working procedures, staffing, basic working system, and legal responsibilities specific to perfect the rules and norms. I focus on tax inspection agency staffing standards to supplement and complete.
Fifth, is to improve the "tax auditing work order." Owned by the State Administration of Taxation Inspection Board in the original "tax auditing work order" basis, after extensive research, demonstration, and set forth a complete, standardized, detailed changes to plans by the State Administration of Taxation Inspection Board plans based on the approval according to law, enactment. Tax auditing work procedures should at least include: audit case selection procedures, the implementation of inspection procedures, inspection procedures the trial (audit trial statute of the Commission), checking the implementation of protocols, document management procedures, institutions and other major issues of resolution, a point of order.
Tax Audit Section is to improve the supervision mechanism of law enforcement. Enforcement of tax inspectors to conduct a comprehensive, full supervision can be obtained from the following aspects: accountability system, strict law enforcement, science and case selection system, the rules of evidence system, the case to the system, case-referee system, inspectors and law enforcement indicators of performance appraisal system, the instrument making process external supervision and control mechanisms related sectors. In which the judiciary supervision mechanisms, based on risk should bear civil liability, administrative responsibility, criminal, constitutional responsibility, and civil sanctions, criminal sanctions, administrative sanctions and unconstitutional sanctions to step up on the basis of legislative reform, improve the judiciary's supervisory mechanism. In our Constitution, under the premise of continuous improvement, set the corresponding constitutional responsibilities, unconstitutional sanctions. The network-sharing mechanisms in the establishment of anonymous reporting under the premise of the tax authorities to accept the relevant departments, the majority of the taxpayer's social supervision, involving more than should bear legal liability, sanctions, according to various circumstances, and should be a corresponding responsibility and sanctions. If related to taxes levied for both sides, within the relevant tax authorities responsible, in line with the composition of the common criminal element should be the common types of crime, the circumstances, be the corresponding sanctions.
Tax Audit Section is sound law enforcement security system. The author believes that the external audit to strengthen tax enforcement information, internal network information to establish a sound mechanism, the risk of ring sizes can be from outside to inside and then be compressed, the risk of ring size compressed to minimize the risk of prevention and control of the inspection of law enforcement to the minimum . The risk of law enforcement for the tax audit of the prevention and control measures to be effective supplement can effectively compensate for the risk of law enforcement prevention and control of the tax audit of the lack of effective promotion of the tax audit of law enforcement risk management efficiency.
本文从风险和风险管理的基本理论入手,对税务稽查执法风险展开论述。全文分三部分。一、税务稽查执法风险法律防控基本理论,在分析风险及风险管理理论的基础上,论述了税务稽查执法风险的概念、种类及特征,税务稽查执法风险管理的概念、种类、必要性及现实意义。二、税务稽查执法风险现状分析,以风险现状中风险出现的外在表现形式即税务行政复议、行政诉讼案件为切入点,主要分析风险的内在隐藏形式,即对风险事中防控不够所导致的行使自由裁量权问题、程序违法问题、实体性问题三个主要问题;税务稽查执法风险成因,即对风险的事前防控不足所导致,主要包括社会环境因素、法制和体制因素、人员因素、监控体系因素、信息因素五个部分。三、税务稽查执法风险的法律防控措施,通过对税务稽查执法风险的现状及成因分析,提出具体可行的法律防控措施,一是完善税务稽查法制建设;二是完善税务稽查执法监督制约机制;三是健全税务稽查执法保障体系。
In recent years, with the Administrative Review Law, the Administrative Procedure Law, the State Compensation Law, the new collection law and its implementation details such as the further implementation of various laws and regulations, social and legal system, the degree of the continuous improvement, the taxpayer's rights protection awareness and legal awareness of significant enhanced, objectively speaking, the tax authorities, especially law enforcement inspection department has put forward higher requirements. Nevertheless, under the influence of various factors, the tax inspection of law enforcement in an objective implies a greater law enforcement risks, the performance of law enforcement violations of law enforcement for law enforcement officers continue to increase, the tax authorities lost because of administrative litigation, administrative compensation and loss of revenue due to the country have been held and the administrative, legal responsibilities, which greatly affected the auditing department of law enforcement authority and social image. Social and legal process, and the practical needs of administering the tax inspection department and law enforcement officers to effectively enhance the tax inspection of law enforcement risk awareness, and from the theory and practice of tax inspectors and law enforcement personnel to seriously study and prevent the risk of inspection of law enforcement made an urgent requirement.
However, with regard to the risk of the tax inspection of law enforcement issues, current theories, industry and tax practitioners still attach great importance to the risk of tax audit study of law enforcement have not yet precisely defined, urgent need to build basic theory. In this paper, risk and risk management, the basic theory start with the risk of tax audit commenced discussion of law enforcement. Full text of three parts: First, the tax inspection of law enforcement risk prevention and control of the basic theory of law; 2, the tax inspection status of law enforcement risk analysis; 3, the tax inspection law enforcement risk prevention and control measures.
The first chapter of tax audit risk law enforcement prevention and control of the basic theory.
From risk and risk management start with the basic theory, defining risk, risk management, tax inspection of law enforcement concept of risk. In my opinion, the risk of loss of rights or obligations assumed by the possibility of the tax inspection of law enforcement risk refers to the tax inspection authorities and tax inspectors in the inspection of law enforcement process, the result of misconduct by law enforcement the right to assume the possibility of loss or obligation. Ji Zhi loss of power by law enforcement power of tax inspectors the power of the invisible image, dignity and power loss caused by the exercise of undue power to size, degree of loss, loss of profits mainly for economic compensation, etc.; obligation to assume accountability for the performance of legal sanctions, accountability for the performance of civil liability, administrative accountability, criminal, constitutional accountability, and legal sanctions for the performance of civil sanctions, criminal sanctions, administrative sanctions, and sanctions unconstitutional. On this basis, in-depth analysis of the risk characteristics of the tax inspection of law enforcement, types; the same time, defining the risk of tax audit law enforcement concept of prevention and control, in-depth analysis of the tax audit risk of the law enforcement and the need for prevention and control of practical significance.
The second chapter is a tax inspection of law enforcement risk and genetic analysis of the status quo. This is the main part of the paper.
Section I is a tax audit risk Analysis of law enforcement. Primarily a matter of risk analysis in the prevention and control issues, in tax inspection of law enforcement, all of the risks posed by the risk of mesh body, mainly caused by the exercise of discretion by the tax inspection of law enforcement risk; tax law arising from the inspection of law enforcement procedures enforcement of the tax audit risk; the implementation of substantive tax law enforcement caused by the tax audit risk. In which the exercise of discretion was a direct incentive, the program violations of the law is the key, substantive issue is the nature of. These three main issues, in tax inspection of law enforcement, or repeat the run, or cross-cutting operation, eventually leading to loss of rights or obligations assumed by the possibility of the formation from the point to the risk of surface to body mesh body, the volume of the adverse consequences arise large and wide, must be highly valued.
Section II of the Tax Audit Risk Analysis of law enforcement. Tax Audit presented in law enforcement out of these three major appearance problems, go back further, it should be the first step that causes the most origin of law enforcement risk factors analysis, to identify and measure, to take reasonable means to achieve positive prevention and control in advance in order to to reduce the likelihood of ex post relief. Specifically, the tax inspection of law enforcement in China are the main reasons the risk of social environment, the rule of law and institutions, personnel, supervision system, information technology five factors. Of which: Social environmental factors is the basic factor, the rule of law and institutional factors are the root causes of factors, human factors are the key factor, factor is protection factor surveillance system, and information factors are contributing factors. These factors, cross-linking, it would produce a corresponding risk of inspection of law enforcement bodies, the lack of advance prevention and control of risks arising from physical, but also in the prevention and control, and something less than the risks arising from physical cross-linking, the inspection body of the volume of law enforcement risk The large and broad, immeasurable, which would greatly reduce the tax authorities, law, national dignity and image of our economic development, there will be significant lag. In this paper, jurisprudence, through an analysis of theoretical analysis and practical combination of law enforcement risk of tax audit causes of theoretical and empirical analysis.
Social environment factors are the underlying factor. Focused on analysis of government intervention in the tax inspection of law enforcement, the external powers and functions related to the tax department can not effectively meet the inspection of law enforcement in two ways.
The rule of law and institutional factors are the root causes of factors.
First analyzes the major shortcomings of the legal system of China's tax audit. China's 94 years since the land tax system, divided the country since the risk of adverse effects on the highlighted dramatically in recent years, mainly because of China's tax laws and regulations in the construction and inspection organization-building is not yet fully aware of the risks, there is no risk in advance is a matter , the ex post effective prevention and control, leading to the lagging nature of the legal, risk-prone, the risk of body size is too large or too broad an error arising from one of today's "privilege", "rule of man" thinking, therefore, should be correct, profound analysis of the rule of law and institutional shortcomings, so that a correct understanding of risk, to advance, things in the whole process after the prevention and control, get rid of erroneous ideas and knowledge. Mainly manifested in the following aspects: 1. The legal status of the tax audit is too low. 2. The exercise of discretion lack of a unified, standardized constraints.
Second, analysis of the main shortcomings of China's tax audit system. Focuses on task-based inspection of income management, tax inspection bodies and the tax collection agency decentralization and coordination of the tax inspection agency set up these three main aspects.
Human factors is a key factor. Mainly analyzes the quality of the tax inspectors in legal ethics and professional quality, several aspects of a serious shortage of staff. Monitoring system is to protect elements of factors. Under the current tax law and system audit, tax, audit of internal oversight of law enforcement is still quite weak. Tax Audit although the external oversight of law enforcement can play a certain role, but the main is that "the incident" in processing, prior, things are mostly a formality in supervision.
Information factors are contributing factors. The outstanding question is: inspectors, computer applications are not high, the full sharing of information network construction to be achieved and strengthened, the relative lack of information professionals.
Chapter III is a tax inspection law enforcement risk prevention and control measures.
Under the Inland Revenue inspection of law enforcement status and causes of risk analysis, I believe that, based on a correct understanding of risk and try to improve the legal system, tax audit, improve the tax inspection of law enforcement supervision and control mechanism, based on a sound security system, tax audit, proper risk The pre-effective prevention and control, risk the appearance of things in the stage show a reasonable expectation of sexual issues, while effective advance, something in after the prevention and control. The risk of the tax audit by the law enforcement prevention and control, effectively reducing the risk of body size in each of the points, the risk of the whole body of law-enforcement inspection volume contraction to minimize the risk of the tax inspection of law enforcement the potential loss of rights and obligations of commitment control to a minimum degree of both possible and necessary. Therefore, based on the current situation and causes of risk analysis, inspection of law enforcement risk through the tax laws of prevention and control, to conduct tax audit of law enforcement risk management, inspection of law enforcement risk through beforehand, something in the reasonable expectation of ex post facto, will effectively control the tax the risk of adverse consequences of the law enforcement inspection occurs, abandon the people's hearts "privilege", "rule of man" erroneous ideas, through the inspection tax environment of law enforcement to maintain order and prevent tax loss, the socio-economic regulation and control, maintaining the tax authorities, law, the country's image and dignity.
Tax Audit Section is to improve the legal system. In my opinion, drawing on Western experience of developed countries, China's legal system of taxation should be at least "tax the Basic Law," "Tax Procedure Act" and the "Organic Law of the tax authorities", otherwise, for the tax inspectors and even the entire tax collection system is concerned, is the most fundamental legal deficiencies. In the above various measures to improve the legal system of taxation based on the constitutionality of the possibility should be considered. The risk of tax audit law enforcement prevention and control, at least do the following five aspects of work.
The first is to develop "Tax Basic Law." Enhance the legal status of the tax inspection agencies to strengthen enforcement of the tax inspection authority, the statutory external relevant departments and the parties would support obligations, statutory tax collection and investigation of the powers, duties and collaboration, constraining relations, effective control of law enforcement internal audit, external risks the occurrence of adverse effects, reduce the risk of the tax inspection of law enforcement bodies, tax collection and the risk of physical, external risks of cross-combination of body size, and thus reduce the risk of the whole body of the volume of tax revenue, and ultimately achieving the risk of law enforcement prevention and control inspection purposes.
The author believes that the status of the tax audit should be added to one thing: tax inspectors through the inspection of law enforcement to safeguard the dignity of law; tax audit functions should be as follows: the dignity of the functions, revenue functions, disciplinary functions, monitoring functions, educational functions.
The second is to develop "Tax Procedure Act." China's program of legal construction, should be the existing "Tax Collection and Management Law" and its implementing regulations are "tax the Basic Law," the contents of the stripping out the existing procedural rules of law based on the deletions, improve, develop "Tax Procedure Act."
(I) the inspection of law enforcement of statutory rules of procedure of the various components: the establishment of procedures links of the overall rules of procedure, the establishment of a specific part of the program rules of procedure.
(II) the exercise of discretion control the rules of procedure.
(III) External relevant departments, related-party assistance, with the tax inspection of law enforcement rules of procedure.
(IV) monitor the rules of procedure. Rules of procedure is divided into internal control and external monitoring of rules of procedure.
(V) Tax collection and management of collaborative search constrained rules of procedure. Revenue can be divided into special inspection rules of procedure, routine inspections of rules of procedure.
(VI) to review the legality of normative documents and conflict resolution rules of procedure
(VII) the powers and responsibilities symmetry rules of procedure.
1. according to various types of risks should bear the legal liability, sanctions, such as civil liability, administrative liability, criminal, constitutional responsibility, and civil sanctions, criminal sanctions, administrative sanctions and unconstitutional sanctions to step up legislative reform, improve the power and responsibility symmetry rules of procedure. In our Constitution, under the premise of continuous improvement, set the corresponding constitutional responsibilities, unconstitutional sanctions.
2. according to the tax inspection agency set up, inspectors check the coverage of the characteristics of the network-sharing mechanisms in the establishment of anonymous reporting under the premise of the tax inspection to accept the relevant departments, the majority of the taxpayer's social supervision, should re-post of heavy responsibility in accordance with the principles involved should be exposure to civil, criminal, and other responsibilities, sanctions, in accordance with his powers, duties size, depending on various circumstances, and should be a corresponding responsibility and sanctions. If related to taxes levied for both sides, within the relevant tax authorities responsible, in line with the composition of the common criminal element should be the common types of crime, the circumstances, be the corresponding responsibility, sanctions.
The third is to develop, "the Organic Law of the tax authorities." Should be designed to fully research and science, based on a reasonable setting up a tax inspection bodies, bodies layout, scale and the relationship between agencies and working procedures, staffing, basic working system, the basic rules of liability to avoid enforcement of the tax audit, tax Inspection bodies chaotic layout, scale properly, the number of personnel unreasonable and relatively low quality of personnel led to the adverse consequences of the risk of inspection of law enforcement. Tax audit for the current outstanding problems in practice, this article that "the Organic Law of the tax authorities" should focus on resolving the following tax audit issues.
(I) a clear law enforcement-based inspection management thinking.
(II) a clear integration of the tax inspection, reasonable to set the tax inspection agency.
To achieve integration of the tax audit, reasonable to set a unified, vertical management of tax audit institutions, the establishment of the State Administration of Taxation Inspection Bureau, the Provincial Tax Audit Bureau, the Provincial Criminal Investigation Bureau, "an inspector" organs. The tax system, the implementation of such a collection, check the independent audit phase separation system, to facilitate the tax inspection authorities to carry out the tax Commission investigation, to avoid duplication of inspection under the old system, the disadvantages of reducing the burden on taxpayers to achieve tax audit specialization, standardization, and the promotion of the tax inspection to further improve the efficiency of law enforcement; the formation of the tax inspection of law enforcement work together as a whole, increase inspection efforts, easy to remove all obstacles and factors that promote the improvement of law enforcement authority.
Creation of specialized Provincial Criminal Investigation Bureau, directly from the State Administration of Taxation Inspection Board's management, but also the purposes of the State Administration of Taxation and the State Administration of Taxation Inspection Bureau of dual leadership will ensure the adequacy of the exercise of power and authority to prevent all kinds of human factors, to maintain the image and dignity of the law, safeguard the country's image and dignity.
(III) a tax inspection authorities a reasonable layout, scale.
1. The layout of the tax inspection authorities should work with the layout of the tax collection authorities rather, parallel, side by side set up.
2. According to the severity of the loss of existing tax revenue, clearly the size of the tax inspection authorities should be roughly equivalent to the tax collection authority in parallel one-fifth to one quarter the size.
3. Explicit tax audit authorities across sectors inside the settings.
(IV) expressly provide that tax inspection agency staffing standards.
Tax inspectors clear idea to protect agency personnel to configure, access, standards, training standards, grading standards, quantity standards, specifically the tax inspection agency personnel to configure the corresponding powers, duties, term limits, and working-level and so on.
Fourth, the formulation of "tax auditing work regulations." By the State Department in the form of administrative regulations to develop, "Tax Audit Work", up one level to "tax auditing work order" based on relevant content, according to "tax the Basic Law," "Organic Law of the tax authorities," "Tax Procedure Law "be amended, supplemented and improved on specific practical work such as tax auditing organization established bodies of work within and outside the convergence and transformation, working procedures, staffing, basic working system, and legal responsibilities specific to perfect the rules and norms. I focus on tax inspection agency staffing standards to supplement and complete.
Fifth, is to improve the "tax auditing work order." Owned by the State Administration of Taxation Inspection Board in the original "tax auditing work order" basis, after extensive research, demonstration, and set forth a complete, standardized, detailed changes to plans by the State Administration of Taxation Inspection Board plans based on the approval according to law, enactment. Tax auditing work procedures should at least include: audit case selection procedures, the implementation of inspection procedures, inspection procedures the trial (audit trial statute of the Commission), checking the implementation of protocols, document management procedures, institutions and other major issues of resolution, a point of order.
Tax Audit Section is to improve the supervision mechanism of law enforcement. Enforcement of tax inspectors to conduct a comprehensive, full supervision can be obtained from the following aspects: accountability system, strict law enforcement, science and case selection system, the rules of evidence system, the case to the system, case-referee system, inspectors and law enforcement indicators of performance appraisal system, the instrument making process external supervision and control mechanisms related sectors. In which the judiciary supervision mechanisms, based on risk should bear civil liability, administrative responsibility, criminal, constitutional responsibility, and civil sanctions, criminal sanctions, administrative sanctions and unconstitutional sanctions to step up on the basis of legislative reform, improve the judiciary's supervisory mechanism. In our Constitution, under the premise of continuous improvement, set the corresponding constitutional responsibilities, unconstitutional sanctions. The network-sharing mechanisms in the establishment of anonymous reporting under the premise of the tax authorities to accept the relevant departments, the majority of the taxpayer's social supervision, involving more than should bear legal liability, sanctions, according to various circumstances, and should be a corresponding responsibility and sanctions. If related to taxes levied for both sides, within the relevant tax authorities responsible, in line with the composition of the common criminal element should be the common types of crime, the circumstances, be the corresponding sanctions.
Tax Audit Section is sound law enforcement security system. The author believes that the external audit to strengthen tax enforcement information, internal network information to establish a sound mechanism, the risk of ring sizes can be from outside to inside and then be compressed, the risk of ring size compressed to minimize the risk of prevention and control of the inspection of law enforcement to the minimum . The risk of law enforcement for the tax audit of the prevention and control measures to be effective supplement can effectively compensate for the risk of law enforcement prevention and control of the tax audit of the lack of effective promotion of the tax audit of law enforcement risk management efficiency.
引文
[1]转引自王美涵主编:《中国财政风险实证研究》,中国财政经济出版社1999年版,第4页。
[2]杨雪冬:《全球风险社会呼唤复合治理》,载“中国社会科学院网站”,http://www.wanzhankexhttp:www.cass.net.cn/file/2005011332083.html。
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[31]王锡锌:《自由裁量与行政正义——阅读戴维斯〈自由裁量的正义〉》,载《中外法学》2002年第1期,第121页。
[32]王名扬:《英国行政法》,中国政法大学出版社1989年版,第152页。
[33][英]克里夫·施米托夫:《判例应具有拘束力吗?》,载《法学译丛》1983年3月,第38页。
[34]姚锐敏:《依法行政的理论与实践》,法律出版社2000年版,第49页;[美]詹·费斯勒等:《行政过程的政治——公共行政学新论》,中国人民大学出版社2003年版,第267页。
[35]段战平、肖婧:《社会成熟度与危机应对》,载《宁夏社会科学》2004年第5期。
[36][美]E·博登海默著:《法理学法律哲学与法律方法》,邓正来译,中国政法大学出版社1963年版,第55页。
[37]姜明安:《行政法与行政诉讼法》,北京大学出版社1999年版,第143页。
[38]姜明安:《行政法与行政诉讼法》,北京大学出版社1999年版,第142页。
1.何学林:《试论税务稽查现代化》,载《上海财税》2001年第3期。
2.刘辉:《规范税收执法若干问题研究》,载《辽宁税务高等专科学校学报》2002年第6期。
3.谢锋、张惠政、王雨:《化解税务稽查执法风险的相关建议》,载《税务研究》2008年第3期。
4.刘辉:《规范税收执法若干问题研究》,载《辽宁税务高等专科学校学报》2002年第6期。
5.韩松、姜学动、卢松臣、刘柯群:《有效规避税收执法风险的措施和建议》,载《税务研究》2008年第8期。
6.王德平:《税务稽查职能定位》,载《税务研究》2002年第3期。
7.王德平等:《论新世纪税务稽查体系》(下),载《税收与企业》2000年第12期。
8.虞拱辰:《税收执法风险的成因及其防范》,载《江西财经大学学报》2000年第3期。
9.肖木林:《应树立防范税收执法风险的意识》,载《税务》2003年第6期。
10.刘星、卢东:《税收风险的生成机理及防范研究》,载《企业经济》2004年第10期。
11.胡云松:《税收风险管理的探索与实践》,载《税务研究》2006年第12期。
12.郭亚光:《当前我国税收执法风险分析》,载《税务研究》2008年第5期。
13.李汉文:《自议税收风险的定义及危害》,载《税务研究》2008年第8期。
14.黄亦瑾:《税收执法风险的成因及防范对策》,载《税务研究》2005年第7期。
15.钟云萍:《论加强税收执法的几个问题》,载《湖南零陵师范高等专科学校学报》2002年第1期。
16.刘应贵:《浅谈如何防范税务执法风险》,载《经济日报》2002年11月。
17.严昌涛:《对我国税收风险的理性认识》,载《税务研究》2002年第10期。
18.焦振科:《现行税收执法中存在的问题》,载《涉外税务》2000年第2期。
19.贾英姿:《关于税收执法权存在问题的制度分析》,载《财政研究》2003年第11期。
20.司久贵:《行政自由裁量权若干问题探讨》,载《行政法学研究》1998年第2期。
21.胡延广:《现代社会中的行政裁量》,载《理论月刊》2005年第9期。
22.杨建顺:《行政裁量的运作及其监督》,载《法学研究》2004年第1期。
23.储朝晖:《构建税务稽查新体系》,《税务研究》1999年第12期。
1.国家税务总局教材编写组:《税务稽查管理》,中国税务出版社2008年9月第1版。
2.刘剑文:《税法学》,人民出版社2003年6月版。
3.刘剑文:《税法专题研究》,北京大学出版社2002年9月第1版。
4.刘剑文、熊伟:《二十年来中国税法学研究的回顾与前瞻》,刘剑文主编《财税法论丛》(第一卷),法律出版社2002年4月版。
5.郝昭成:《税收执法基础知识》,中国财政经济出版社2002年版。
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7.许善达等:《中国税权研究》,中国税务出版社2003年版。
8.胡金木主编:《税收执法全书》,中国财政经济出版社2003年版。
9.谢旭人主编:《税务干部法律知识读本》,中国税务出版社2004年版。
10.金国坤:《依法行政环境研究》,北京大学出版社2003年版。
11.刘钧:《风险管理概论》,清华大学出版社2008年版。
12.何文炯:《风险管理》,东北财经大学出版社1999年7月第1版。
13.卢现祥:《西方新制度学》,中国发展出版社2003年版。
14.许善达:《中国税收法制论》,中国税务出版社1997年版。
15.宋则行主编:《现代西方经济学辞典》,辽宁人民出版社1995年版。
16.贾湛:《行政管理学大辞典》,中国社会科学出版社1989年版。
17.肖金明:《法治行政的逻辑》,中国政法大学出版社2004年版。
1.[美]E·博登海默著:《法理学法律哲学与法律方法》,邓正来译,中国政法大学出版社2004年版。
2.[法]孟德思鸠著:《论法的精神》(上、下),张雁深译,商务印书馆1999年版。
[2]杨雪冬:《全球风险社会呼唤复合治理》,载“中国社会科学院网站”,http://www.wanzhankexhttp:www.cass.net.cn/file/2005011332083.html。
[3]黄华明:《风险与保险》,中国法制出版社2002年版,第5页。
[4]朱自忠、彭喜峰:《保险学概论》,学苑出版社2000年版,第2页。
[5]罗豪才主编:《行政法学》,北京大学出版社1996年版,第33页。
[6]肖金明:《法治行政的逻辑》,中国政法大学出版社2004年版,第257页。
[7]邹东升:《行政自由裁量权的法律保控及其缘由》,载《黑龙江社会科学》2004年第3期。
[8]陈瑞华:《刑事审判原理论》,北京大学出版社1997年版,第50页。
[9]金人庆:《中国当代税收要论》,人民出版社2002年版,第188页。
[10]卢现祥:《西方新制度学》,中国发展出版社2003年版,第34页。
[11]卢现祥:《西方新制度学》,中国发展出版社2003年版,第35页。
[12]顾肃:《论法治现代化的基本原则》,载《江苏社会科学》1996年第4期,第45页。
[13][英]边沁著:《道德与立法原理导论》,时殷弘译,商务印书馆2000年版,第58页。
[14][法]孟德思鸠著:《论法的精神》(上篇),张雁深译,商务印书馆1999年版,第146页。
[15]国家税务总局教材编写组:《税务稽查管理》,中国税务出版社2008年版,第1页。
[16]国家税务总局教材编写组:《税务稽查管理》,中国税务出版社2008年版,第1页。
[17]国家税务总局教材编写组:《税务稽查管理》,中国税务出版社2008年版,第2页。
[18]国家税务总局教材编写组:《税务稽查管理》,中国税务出版社2008年版,第2页。
[19]国家税务总局教材编写组:《税务稽查管理》,中国税务出版社2008年版,第4页。
[20]国家税务总局教材编写组:《税务稽查管理》,中国税务出版社2008年版,第6页。
[21]姜明安:《行政法与行政诉讼法》,北京大学出版社1999年版,第143页。
[22]张小平:《日本的税务警察》,载《厉风》2004年第1辑,第78页。
[23]江必新、周卫平:《行政程序法概论》,北京师范学院出版社1991年版,第310页。
[24]杨联华:《兼论英国注重程序法的缘由》,载《比较法研究》1991年4月,第18页。
[25]季卫东:《法治秩序的建构》,中国政法大学出版社1997年版,第11页。
[26]季卫东:《法治秩序的建构》,中国政法大学出版社2000年版,第57页。
[27][美]欧内斯特·盖尔霍恩、罗纳德·M·利文:《行政法和行政程序概要》(中译本),中国社会科学出版社1996年版,第2页。
[28]王万华:《行政程序法研究》,中国法制出版社2000年版,第60页。
[29]苗连营:《立法程序论》,中国检察出版社2001年版,第24页。
[30]杨建顺:《行政裁量的运行和监督》,载《法学研究》2004年第1期。
[31]王锡锌:《自由裁量与行政正义——阅读戴维斯〈自由裁量的正义〉》,载《中外法学》2002年第1期,第121页。
[32]王名扬:《英国行政法》,中国政法大学出版社1989年版,第152页。
[33][英]克里夫·施米托夫:《判例应具有拘束力吗?》,载《法学译丛》1983年3月,第38页。
[34]姚锐敏:《依法行政的理论与实践》,法律出版社2000年版,第49页;[美]詹·费斯勒等:《行政过程的政治——公共行政学新论》,中国人民大学出版社2003年版,第267页。
[35]段战平、肖婧:《社会成熟度与危机应对》,载《宁夏社会科学》2004年第5期。
[36][美]E·博登海默著:《法理学法律哲学与法律方法》,邓正来译,中国政法大学出版社1963年版,第55页。
[37]姜明安:《行政法与行政诉讼法》,北京大学出版社1999年版,第143页。
[38]姜明安:《行政法与行政诉讼法》,北京大学出版社1999年版,第142页。
1.何学林:《试论税务稽查现代化》,载《上海财税》2001年第3期。
2.刘辉:《规范税收执法若干问题研究》,载《辽宁税务高等专科学校学报》2002年第6期。
3.谢锋、张惠政、王雨:《化解税务稽查执法风险的相关建议》,载《税务研究》2008年第3期。
4.刘辉:《规范税收执法若干问题研究》,载《辽宁税务高等专科学校学报》2002年第6期。
5.韩松、姜学动、卢松臣、刘柯群:《有效规避税收执法风险的措施和建议》,载《税务研究》2008年第8期。
6.王德平:《税务稽查职能定位》,载《税务研究》2002年第3期。
7.王德平等:《论新世纪税务稽查体系》(下),载《税收与企业》2000年第12期。
8.虞拱辰:《税收执法风险的成因及其防范》,载《江西财经大学学报》2000年第3期。
9.肖木林:《应树立防范税收执法风险的意识》,载《税务》2003年第6期。
10.刘星、卢东:《税收风险的生成机理及防范研究》,载《企业经济》2004年第10期。
11.胡云松:《税收风险管理的探索与实践》,载《税务研究》2006年第12期。
12.郭亚光:《当前我国税收执法风险分析》,载《税务研究》2008年第5期。
13.李汉文:《自议税收风险的定义及危害》,载《税务研究》2008年第8期。
14.黄亦瑾:《税收执法风险的成因及防范对策》,载《税务研究》2005年第7期。
15.钟云萍:《论加强税收执法的几个问题》,载《湖南零陵师范高等专科学校学报》2002年第1期。
16.刘应贵:《浅谈如何防范税务执法风险》,载《经济日报》2002年11月。
17.严昌涛:《对我国税收风险的理性认识》,载《税务研究》2002年第10期。
18.焦振科:《现行税收执法中存在的问题》,载《涉外税务》2000年第2期。
19.贾英姿:《关于税收执法权存在问题的制度分析》,载《财政研究》2003年第11期。
20.司久贵:《行政自由裁量权若干问题探讨》,载《行政法学研究》1998年第2期。
21.胡延广:《现代社会中的行政裁量》,载《理论月刊》2005年第9期。
22.杨建顺:《行政裁量的运作及其监督》,载《法学研究》2004年第1期。
23.储朝晖:《构建税务稽查新体系》,《税务研究》1999年第12期。
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2.刘剑文:《税法学》,人民出版社2003年6月版。
3.刘剑文:《税法专题研究》,北京大学出版社2002年9月第1版。
4.刘剑文、熊伟:《二十年来中国税法学研究的回顾与前瞻》,刘剑文主编《财税法论丛》(第一卷),法律出版社2002年4月版。
5.郝昭成:《税收执法基础知识》,中国财政经济出版社2002年版。
6.顾孟迪、雷鹏:《风险管理》,清华大学出版社2005年版。
7.许善达等:《中国税权研究》,中国税务出版社2003年版。
8.胡金木主编:《税收执法全书》,中国财政经济出版社2003年版。
9.谢旭人主编:《税务干部法律知识读本》,中国税务出版社2004年版。
10.金国坤:《依法行政环境研究》,北京大学出版社2003年版。
11.刘钧:《风险管理概论》,清华大学出版社2008年版。
12.何文炯:《风险管理》,东北财经大学出版社1999年7月第1版。
13.卢现祥:《西方新制度学》,中国发展出版社2003年版。
14.许善达:《中国税收法制论》,中国税务出版社1997年版。
15.宋则行主编:《现代西方经济学辞典》,辽宁人民出版社1995年版。
16.贾湛:《行政管理学大辞典》,中国社会科学出版社1989年版。
17.肖金明:《法治行政的逻辑》,中国政法大学出版社2004年版。
1.[美]E·博登海默著:《法理学法律哲学与法律方法》,邓正来译,中国政法大学出版社2004年版。
2.[法]孟德思鸠著:《论法的精神》(上、下),张雁深译,商务印书馆1999年版。