Court precedent: If the tax is not paid, the time limit for reconsideration of the tax treatment decision is not counted

Other second-instance judgments of Weng and Guo

Subject matter: Tax administration (taxation)

Case No.: (2023) Liao 10 Xingzhong No. 195

Published: 2024-02-06

Intermediate People's Court of Liaoyang City, Liaoning Province

Administrative Judgments

(2023) Liao 10 Xingzhong No. 195

The appellant (plaintiff in the original trial) Weng lived in Heping District, Shenyang City.

The entrusted agent, Jin Xiaohong, is a lawyer of Liaoning Anjie Law Firm.

Entrusted agent Xue Jiao, a lawyer of Liaoning Zhantuo Law Firm.

The appellant (defendant in the original trial) is the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation, with its domicile at No. 134, Bayi Street, Baita District, Liaoyang City.

The legal representative, Sun Deru, is the director of the bureau.

Entrusted agent Yuan.

Entrusted agent Liu.

Appellant Weng v. Appellant Liaoyang Municipal Taxation Bureau of the State Administration of Taxation for the case of non-acceptance of administrative reconsideration decision, appellant Weng and appellant Liaoyang Municipal Taxation Bureau of the State Administration of Taxation were dissatisfied with the administrative judgment of the Dengta Municipal People's Court (2023) Liao 1081 Xingchu No. 146 and appealed to this court. After this court accepted the case, it formed a collegial panel in accordance with law and tried the case in open court. Jin Xiaohong and Xue Jiao, the entrusted agents of the appellant Weng, Zhang Yukun, the person in charge of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation, and the entrusted agents Yuan and Liu attended the court to participate in the litigation. The case is now closed.

The court of first instance ascertained that on June 29, 2020, the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation issued the tax treatment decision of the Liaoyang Municipal Tax Inspection Office [2020] No. 6, and the plaintiff was dissatisfied and applied to the defendant Liaoyang Municipal Taxation Bureau of the State Administration of Taxation for administrative reconsideration, and the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation made a decision on the inadmissibility of the administrative reconsideration of Liaoshi Shui Fu Bu [2023] No. 1 on July 27, 2023, and decided: it will not be accepted. and served on the plaintiff, who was dissatisfied and sued to this court. In addition, the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation issued a notice on tax matters of Liaoshi Shui Ji Tong [2023] No. 4 on April 17, 2023. The content of the notice: The tax payable by you from March 21, 2019 to March 31, 2019 (capitalized) is 10,000 yuan (¥:8317800.00), which is limited to be paid before April 24, 2023, and from the date of late payment of the tax to the date of payment or release, a late fee of 5/10,000 of the overdue tax will be charged on a daily basis, which will be paid together with the tax. Failure to pay within the time limit will be handled in accordance with the relevant provisions of the Law of the People's Republic of China on the Administration of Tax Collection. On May 24, 2023, the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation issued the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 5, which reads: According to your application for the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 4 and the statement and defense of your statement and defense to the Tax Treatment Decision of Liao Shui Ji Tong [2020] No. 6, according to Article 88 of the Law of the People's Republic of China on the Administration of Tax Collection, "taxpayers, withholding agents, In the event of a dispute between the tax guarantor and the tax authorities, the tax guarantor must first pay or release the tax and late payment penalty or provide the corresponding guarantee in accordance with the tax payment decision of the tax authority, and then apply for administrative reconsideration in accordance with the law; Those who are dissatisfied with the administrative reconsideration decision may file a lawsuit with the people's court in accordance with law. You must provide the corresponding tax guarantee by June 2, 2023. Failure to perform within the time limit will be handled in accordance with the relevant provisions of the Law of the People's Republic of China on the Administration of Tax Collection. On June 8, 2023, the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation issued the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 10, which is the content of the notice: according to the tax guarantee matters submitted by your unit regarding the tax matters of the Notice of Tax Matters of Liao Shui Ji Tong [2023] No. 4 and the Tax Treatment Decision of Liao Shui Ji Tong [2020] No. 6. After the review of our bureau, the tax payment guarantee is confirmed, and the effective date of the guarantee is the date of registration of the collateral. On July 11, 2023, the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation issued the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 1202, which reads the following: 1. After review by our Bureau, we confirm the tax guarantee of the Notice on Tax Matters (Liao Shi Shui Ji Tong [2023] No. 4), and the effective date of the guarantee is the date of registration of the collateral; 2. Revoke the confirmation of the tax guarantee of the Notice of Tax Matters (Liao Shi Shui Ji Tong [2023] No. 10).

The court of first instance held that, in accordance with Article 12 of the Administrative Reconsideration Law of the People's Republic of China and Article 17 of the Rules for Administrative Reconsideration of Taxation, the defendant, the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation, had an authority basis for the sued act.

Paragraph 1 of Article 88 of the Law of the People's Republic of China on the Administration of Tax Collection stipulates that when a taxpayer, withholding agent, tax guarantor and the tax authorities have a dispute over tax payment, they must first pay or release the tax and late payment penalty or provide corresponding guarantees in accordance with the tax payment decision of the tax authorities, and then may apply for administrative reconsideration in accordance with the law; Those who are dissatisfied with the administrative reconsideration decision may file a lawsuit with the people's court in accordance with law. Paragraphs 1 and 2 of Article 33 of the Rules for Administrative Reconsideration of Taxation stipulate that if the applicant is dissatisfied with the acts specified in Paragraph (1) of Article 14 of these Rules, he shall first apply to the administrative reconsideration authority for administrative reconsideration; Those who are dissatisfied with the administrative reconsideration decision may file an administrative lawsuit with the people's court. If the applicant applies for administrative reconsideration in accordance with the provisions of the preceding paragraph, it must pay or release the tax and overdue penalty in advance in accordance with the tax amount and time limit determined by the tax authorities in accordance with laws and regulations, or provide corresponding guarantees, before it can file an application for administrative reconsideration within 60 days after the tax and late fees have been paid in full or the guarantee provided has been confirmed by the tax authorities that have taken specific administrative acts. According to the above-mentioned legal provisions, the plaintiff must pay or release the tax and late payment penalty in advance in accordance with the tax amount and time limit determined by the tax authorities in accordance with the laws and regulations, or provide the corresponding guarantee, before it can file an application for administrative reconsideration within 60 days from the date of the tax authority confirming the specific administrative act after the tax and late payment penalty have been paid in full or the guarantee provided has been confirmed by the tax authority that has taken a specific administrative act, and the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation issued the Notice of Liao Shi Shui Ji Tong [2023] No. 1202 on July 11, 2023, revoked the confirmation of the tax guarantee in the Notice of Tax Matters (Liao Shi Shui Ji Tong [2023] No. 10), that is, there was no tax guarantee in this case, and the defendant's reason for applying for administrative reconsideration was inappropriate, so the defendant's reconsideration decision not to accept the application was wrong in applying law and should be revoked. To sum up, the plaintiff's request to revoke the defendant's decision to dismiss the administrative reconsideration of Liao Shi Shui Fu [2023] No. 1 is in accordance with the law and is supported by this court. After deliberation by the collegial panel, in accordance with the provisions of Article 70 (2) of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows: 1. Revoke the decision of the defendant Liaoyang Municipal Taxation Bureau of the State Administration of Taxation on July 27, 2023 that the administrative reconsideration of Liaoshi Shui Fu is not subject to acceptance [2023] No. 1; 2. Order the defendant Liaoyang Municipal Taxation Bureau of the State Administration of Taxation to take a new administrative act within the statutory time limit from the effective date of this judgment.

Appellant Weng appealed, stating that: 1. Request to ascertain, correct and supplement the facts of the case and protect the appellant's legitimate rights and interests; 2. Request that the Appellee be ordered to bear the litigation costs of the first and second instance. Facts and Reasons: The appellant has no objection to the verdict, but the facts of the case should be ascertained, corrected and supplemented, otherwise the appellant's legitimate rights and interests will be harmed. 1. The tax guarantee is aimed at tax disputes, not a specific instrument. 1. The tax guarantee is aimed at tax disputes. Paragraph 1 of Article 2 of the Trial Measures for Tax Payment Guarantee stipulates that "the term "tax payment guarantee" in these Measures refers to the act of providing guarantee for the tax payable and late payment fines by taxpayers or other natural persons, legal persons and economic organizations in the form of guarantees, mortgages and pledges with the consent or confirmation of the tax authorities. This provision makes it clear that the tax guarantee is aimed at taxes and late payment fees, i.e. tax disputes. 2. The tax treatment decision and the notice of tax matters involved in the case are both for the same matter and the same specific administrative act, and are identical. The Appellee has admitted that the Administrative Judgment (2023) Liao 1081 Xingchu No. 148 has confirmed that the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 4 is a procedural administrative act of the Tax Treatment Decision of Liao Shi Shui Ji Tong [2020] No. 6, which all refer to the same matter and the same administrative act. 3. The Appellee's Notice on Tax Matters of Liao Shi Shui Ji Tong [2023] No. 1202 on the Second Tax Guarantee is aimed at the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 4, not the case itself, so the defense that there is no tax guarantee in this case is wrong. First of all, the content of the documents was formed by the Appellee, and the tax object, tax type and amount were the same; Second, since the Appellee recognized that the Disposition Decision and the Notice of Matters were consistent and pointed to the same case, the effect would also extend to the Disposition Decision if only the Notice of Matters was recorded. Finally, the Appellee's statement on specific documents violated the provisions of the Trial Measures for Tax Guarantee and was wrong. 2. The conclusion on page 10 of the first-instance judgment that "there is no tax guarantee in this case" is erroneous, and it is not accurately determined that the tax guarantee is aimed at a tax dispute, which should be corrected. The first-instance judgment held that the No. 1 inadmissibility decision of this case was aimed at the Tax Treatment Decision of Liao Municipal Tax Inspector Office [2020] No. 6, and that the tax affairs notice of Liao Shi Shui Ji Tong [2023] No. 1202, which confirmed the tax payment guarantee, recorded "confirmation of the tax payment guarantee of the Notice on Tax Matters (Liao Shi Shui Ji Tong [2023] No. 4), and did not record the Tax Treatment Decision of Liao Municipal Tax Inspector Office [2020] No. 6, so it concluded that "there is no tax guarantee in this case". It is obviously wrong to artificially divide the same tax case into several cases according to the number of documents. 1. The court of first instance was obviously wrong in not identifying the written decision and the notice of matters as targeting the same administrative act and matter. 2. The tax guarantee is aimed at tax disputes, not specific documents. 3. The conclusion of the first-instance judgment that "there is no tax guarantee in this case" means that the Appellee will require the Appellant to submit another tax payment guarantee for the Tax Treatment Decision of the Liao Municipal Tax Audit Office [2020] No. 6, which will inevitably result in the Appellant providing double guarantees, which is a clear violation of laws and regulations. 4. The court of second instance should correct the erroneous understanding and conclusion of the court of first instance, otherwise, the appellee clearly knew that there was a tax payment guarantee, but insisted on following the erroneous content of the judgment, and on the grounds that "the court found that there was no tax guarantee in this case", required the appellant to either continue to provide tax payment guarantee for the handling decision, or make multiple notices of matters again to request the provision of tax guarantee for each notice, or deliberately continue to make a decision not to accept the case, which harmed the appellant's lawful rights and interests. 3. The service of the Tax Treatment Decision [2020] No. 6 of the Liao Municipal Tax Inspection Office [2020] was not ascertained in the first instance, and the Appellee did not accept the decision for two reasons: one was that it deliberately calculated the time of the first tax payment guarantee application that was revoked from April 21, 2023, instead of the time of the second effective tax payment guarantee from July 11, 2023, and maliciously determined that the application for administrative reconsideration had been more than 60 days on July 21, 2023; One is that it was determined that the Appellant had been served on the Liao Municipal Tax Audit Office [2020] No. 6 Tax Treatment Decision for more than 60 days. The appellant's complaint stated that the appellee had neither served the decision in accordance with the legal procedures nor received the original decision, and requested the court of second instance to obtain and review the formalities for the service of the document. Otherwise, the Appellee deliberately continued to make the decision not to accept the case on the grounds that "the court did not deny service for more than 60 days", which harmed the legitimate rights and interests of the Appellant.

The appellant, the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation, appealed, claiming that it requested to revoke the judgment of the Dengta Municipal People's Court (2023) Liao 1081 Xingchu No. 146 and uphold the Decision on Inadmissibility of Administrative Reconsideration (Liao Shi Shui Fu Bu (2023) No. 1). Facts and reasons: (1) The Liaoyang Municipal Inspection Bureau of the State Administration of Taxation, which lawfully made a specific administrative act in the service of retention in custody procedure, went to the Liaoyang City Detention Center on June 29, 2020, but due to the epidemic situation, it could not directly serve the "Tax Treatment Decision" (Liaoshi Tax Inspection Office (2020) No. 6) to the applicant, so it was handed over to the applicant through the police officers, and the applicant refused to accept or sign, and such service was served in lien, and the service time was June 29, 2020. There is a "Tax Treatment Decision" (Liao Municipal Tax Audit Office [2020] No. 6) service certificate and on-site records as evidence, and the on-site records are signed by the service and witnesses. (2) On June 29, 2020, the Administrative Reconsideration Period Calculation and Reasonableness of the Inspection Bureau served the Tax Treatment Decision (Liao Municipal Tax Inspection Office (2020) No. 6) and informed the respondent of the right of reconsideration, but the respondent did not apply for reconsideration within the statutory time limit. In addition, if the applicant was released from prison on August 19, 2022, if the respondent is inconvenient to apply for reconsideration within the statutory time limit due to the restriction of his personal freedom in prison, he should actively exercise the right of reconsideration from the time of release, that is, from August 19, 2022. The respondent only applied to the respondent for guarantee confirmation on April 21, 2023, and applied to this authority for administrative reconsideration on July 21, 2023, which has exceeded the "60 days" time limit for administrative reconsideration application stipulated by law. In accordance with the first paragraph of Article 17 of the Administrative Reconsideration Law of the People's Republic of China and the first paragraph of Article 45 of the Rules for Administrative Reconsideration of Taxation, this organ has decided not to accept the application. (3) The legal basis for not accepting the reconsideration due to the failure to provide a guarantee is that the first paragraph of Article 88 of the Law of the People's Republic of China on the Administration of Tax Collection stipulates that when a taxpayer, withholding agent, tax guarantor and the tax authorities have a dispute over tax payment, they must first pay or release the tax and overdue fees or provide corresponding guarantees in accordance with the tax payment decision of the tax authorities, and then they may apply for administrative reconsideration in accordance with the law; Those who are dissatisfied with the administrative reconsideration decision may file a lawsuit with the people's court in accordance with law. Paragraphs 1 and 2 of Article 33 of the Rules for Administrative Reconsideration of Taxation stipulate that if the applicant is dissatisfied with the acts specified in Paragraph (1) of Article 14 of these Rules, he shall first apply to the administrative reconsideration authority for administrative reconsideration; Those who are dissatisfied with the administrative reconsideration decision may file an administrative lawsuit with the people's court. If the applicant applies for administrative reconsideration in accordance with the provisions of the preceding paragraph, it must pay or release the tax and overdue penalty in advance in accordance with the tax amount and time limit determined by the tax authorities in accordance with laws and regulations, or provide corresponding guarantees, before it can file an application for administrative reconsideration within 60 days after the tax and late fees have been paid in full or the guarantee provided has been confirmed by the tax authorities that have taken specific administrative acts. According to the above-mentioned legal provisions, the appellee must pay or release the tax and late payment penalty in advance in accordance with the tax amount and time limit determined by the tax authorities in accordance with the laws and regulations, or provide the corresponding guarantee, before it can file an application for administrative reconsideration within 60 days from the date of the payment of the tax and late payment penalty or the date on which the guarantee provided is confirmed by the tax authority that has taken the specific administrative act. The tax guarantee of the Notice of Tax Matters (Liao Shi Shui Ji Tong (2023) No. 10) confirmed that there was no tax guarantee in this case, so the appellant's reconsideration decision of inadmissibility was legal. To sum up, I request your court to revoke the judgment of Dengta Municipal People's Court (2023) Liao 1081 Xingchu No. 146 and uphold the Decision on Inadmissibility of Administrative Reconsideration (Liao Shi Shui Fu Bu (2023) No. 1).

After trial, it is ascertained that the facts ascertained by this court through trial are consistent with the facts ascertained in the first-instance judgment, and this court affirms it.

This court held that, according to the provisions of paragraphs 1 and 2 of Article 33 of the "Tax Administrative Reconsideration Rules", the appellant Weng X must first pay or release the taxes and late fees, or provide corresponding guarantees, before he can file an application for administrative reconsideration within 60 days after the taxes and late fees have been paid in full or the guarantee provided has been confirmed by the tax authorities that have taken specific administrative acts. Since the appellant, the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation, issued the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 1202 on July 11, 2023, which revoked the confirmation of the tax guarantee of the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 10, and only confirmed the confirmation of the tax guarantee of the Notice of Tax Matters of Liao Shi Shui Ji Tong [2023] No. 4, that is, the Tax Treatment Decision of Liao Shui Ji Tong [2020] No. 6, which applied for reconsideration in this case, has no tax guarantee. The original trial court's finding was not improper. Appellant Weng erred in asserting that there was no tax guarantee in the first instance, but did not submit evidence of the existence of tax guarantee in the Tax Treatment Decision of Liao Municipal Tax Audit Office [2020] No. 6, so this court does not support this reason for appeal. Since the tax and late payment penalty stipulated in the Tax Treatment Decision [2020] No. 6 of the Liaoyang Municipal Tax Inspection Office have not been paid, and there is no tax payment guarantee at present, the reconsideration period of the tax treatment decision has not yet begun to be calculated, and the appellant's Liaoyang Municipal Taxation Bureau Inspection Bureau of the State Administration of Taxation did not comply with the law on the grounds that the application for administrative reconsideration was not accepted within the time limit, so the appellant's Liaoyang Municipal Taxation Bureau Inspection Bureau of the State Administration of Taxation erred in applying the law in the reconsideration decision of inadmissibility, and it was not improper for the first-instance judgment to revoke the reconsideration decision not to accept the reconsideration. The appellant's grounds for appeal from the Inspection Bureau of the Liaoyang Municipal Taxation Bureau of the State Administration of Taxation have no factual and legal basis, and this court does not support it.

In summary, the facts found in the first-instance judgment are clear and the law is correctly applied. In accordance with the provisions of Article 89, Paragraph 1 (1) of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:

The appeal was dismissed and the original judgment was affirmed.

The case acceptance fee is 100 yuan, and the appellant Weng and the appellant Liaoyang Municipal Taxation Bureau Inspection Bureau of the State Administration of Taxation shall each bear 50 yuan.

This judgment is final.

Presiding Judge: Liu Dajun

Judge Jiang Shuhai

Judge Ma Bole

February 5, 2024

Clerk: Wang Yanni

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