Court precedent: Application for enforcement of tax treatment decision, rejected

A ruling on the application for enforcement review of a non-litigation administrative act between a company and a company in Xi'an

Subject matter: Tax administration (taxation)

Case No.: (2024) Shaanxi 7102 Xingshen No. 12

Published: 2024-03-30

Xi'an Railway Transport Court

Administrative rulings

(2024) Shaanxi 7102 Xingshen No. 12

The executor of the application is the XX Inspection Bureau of the State Administration of Taxation, and the domicile is Xi'an.

Entrusted agent: Wang Dongfang, lawyer of Beijing Deheng (Xixian New Area) Law Firm.

The person subject to enforcement, Xi'an XX Company, is domiciled in Shaanxi Province.

Legal representative Xi Guopeng.

The applicant for execution, the XX Inspection Bureau of the State Administration of Taxation, applied to this court for the enforcement of the Xixian Tax Penalty XX "Tax Administrative Penalty Decision" and the Xixian Tax Audit Office XX "Tax Treatment Decision". After the case was filed, this court formed a collegial panel to conduct a review in accordance with law, and the review of the case has now been concluded.

The XX Inspection Bureau of the State Administration of Taxation submitted an enforcement request to this court: to apply to your court to enforce the Xixian Tax Inspector's (2023) No. 3 Tax Treatment Decision and Xixian Tax Penalty (2023) No. 4 Tax Administrative Penalty Decision made by the respondent in accordance with the law, and enforce the respondent's outstanding tax of RMB 5,647,338.15 and the tax overdue penalty of RMB 5,419,057.53. A fine of RMB 1,236,013.05 and an additional fine of RMB 1,236,013.05 were imposed.

The evidence submitted to this court by the XX Inspection Bureau of the State Administration of Taxation includes: 1. Tax inspection case filing approval form, 2. Tax inspection project book, 3. Tax inspection, notification of matters and delivery certificate; 4. Opinions on the trial of tax cases; 5. Notice of tax administrative penalty matters and proof of delivery; 6. Tax treatment decision and receipt of service; 7. Tax administrative penalty decision and delivery receipt; 8. Reminders; 9. Information of the parties.

After review and investigation, the XX Inspection Bureau of the State Administration of Taxation received the report and filed a case for inspection on July 14, 2022 against the person subject to enforcement, Xi'an XX Company, in accordance with the "Measures for the Management of Tax Inspection Case Sources (Trial)", and made the Xixian Tax Retrial Decision (2023) No. 2 "Opinion on the Trial of Major Tax Cases" on April 14, 2023. On December 12, 2022, the XX Inspection Bureau of the State Administration of Taxation issued the Notice of Tax Matters (2022) No. 30 of Xixian Tax Audit and Shui Tong (2022), and the Notice of Tax Administrative Penalty Matters (2023) No. 2 issued by Xixian Tax Audit and Penalty Notice (2023) No. 2 on April 14, 2023. On April 27, 2023, the Xixian Tax Inspection Office (2023) No. 3 "Tax Treatment Decision" was issued, ordering the person subject to enforcement, Xi'an XX Company, to pay back the tax of RMB 5,647,338.16, and to impose a late payment penalty of 5/10,000 of the overdue tax on a daily basis from the date of tax delay. On the same day, the Xixian Tax Audit Penalty (2023) No. 4 "Tax Administrative Penalty Decision" was issued, fining the person subject to enforcement, Xi'an XX Company, RMB 1,236,013.05, and failing to pay the fine when due, and imposing an additional fine of 3% of the fine amount per day. On January 10, 2024, the XX Inspection Bureau of the State Administration of Taxation issued the Xixian Tax Ji Qiang Reminder (2024) No. 2 "Reminder", requiring the person subject to enforcement, Xi'an XX Company, to pay the outstanding taxes, late fees, fines, and additional fines within 10 days of receiving the reminder.

After examination, this court held that, according to Article 37 of the Law of the People's Republic of China on the Administration of Tax Collection, "the tax authorities shall verify the amount of tax payable and order the taxpayers engaged in production and business operations who have not completed tax registration in accordance with the regulations, as well as taxpayers who are temporarily engaged in business operations; If the tax is not paid, the tax authorities may seize the goods and goods whose value is equivalent to the tax payable. If the tax payable is paid after seizure, the tax authorities must immediately release the seizure and return the seized commodities and goods; If the tax payable is still not paid after the seizure, with the approval of the director of the tax bureau (sub-bureau) at or above the county level, the seized commodities and goods shall be auctioned or sold in accordance with the law, and the proceeds from the auction or sale shall be used to offset the tax. Article 38 of the Law of the People's Republic of China on the Administration of Tax Collection and Collection stipulates that: "If the tax authorities have grounds to believe that a taxpayer engaged in production or business operation has evaded tax obligations, they may order the taxpayer to pay the tax payable within a specified time limit before the prescribed tax payment period; If a taxpayer is found to have obvious signs of transferring or concealing his taxable commodities, goods and other property or taxable income within the time limit, the tax authorities may instruct the taxpayer to provide a tax payment guarantee. If the taxpayer is unable to provide a tax payment guarantee, the tax authorities may take the following tax preservation measures with the approval of the director of the tax bureau (branch) at or above the county level: (1) notify the taxpayer's bank or other financial institution in writing to freeze the taxpayer's deposit with an amount equivalent to the tax payable; (2) Seizure or sealing of commodities, goods or other property of the taxpayer whose value is equivalent to the tax payable. If a taxpayer pays the tax within the time limit specified in the preceding paragraph, the tax authorities must immediately lift the tax preservation measures; If the taxpayer fails to pay the tax within the time limit, with the approval of the director of the tax bureau (branch) at or above the county level, the tax authority may, with the approval of the director of the tax bureau (branch) at or above the county level, notify the taxpayer's bank or other financial institution in writing to withhold the tax from the frozen deposits, or auction or sell the seized or seized commodities, goods or other property in accordance with the law, and use the proceeds of the auction or sale to offset the tax. Housing and supplies necessary for the maintenance of individuals and their dependents are not covered by tax preservation measures. Article 40 of the Law of the People's Republic of China on the Administration of Tax Collection and Collection stipulates: "If a taxpayer or withholding agent engaged in production or business operation fails to pay or release the tax within the prescribed time limit, or the tax guarantor fails to pay the guaranteed tax within the prescribed time limit, the tax authorities shall order the taxpayer to pay the tax within the prescribed time limit, and if the tax is not paid within the time limit, the tax authorities may take the following compulsory enforcement measures with the approval of the director of the tax bureau (branch) at or above the county level: (1) notify the bank or other financial institution in writing to withhold the tax from the deposit; (2) Seizing, sealing, auctioning or selling commodities, goods or other property whose value is equivalent to the tax payable, and using the proceeds from the auction or sale to offset the taxes. Article 41 of ......the Law of the People's Republic of China on the Administration of Tax Collection stipulates that "the power to take tax preservation measures and compulsory enforcement measures as provided for in Articles 37, 38 and 40 of this Law shall not be exercised by units or individuals other than the statutory tax authorities. Article 53 of the Administrative Coercion Law of the People's Republic of China stipulates: "If a party does not apply for administrative reconsideration or initiate an administrative lawsuit within the statutory time limit, and fails to perform the administrative decision, the administrative organ that does not have the power of administrative compulsory enforcement may apply to the people's court for compulsory enforcement in accordance with the provisions of this chapter within three months from the date of expiration of the time limit." "To sum up, it can be seen that the power to take tax preservation measures and compulsory enforcement measures can only be exercised by the tax authorities, and if the taxpayers or withholding agents engaged in production and business operations fail to pay or release the taxes within the prescribed time limit, and the tax guarantor fails to pay the guaranteed taxes within the prescribed time limit, the tax authorities shall order them to pay within a time limit, and if they fail to pay within the time limit, the tax authorities may take compulsory enforcement measures of seizure, sealing, auction or sale in accordance with the law. and only administrative organs that do not have the power of enforcement should apply to the people's court for compulsory enforcement in accordance with law. Therefore, the Law of the People's Republic of China on the Administration of Tax Collection has given the applicant for enforcement the right to enforce the Tax Treatment Decision applied for enforcement by the XX Inspection Bureau of the State Administration of Taxation, which involves the recovery of taxes and the imposition of late fees, and the applicant for enforcement shall enforce it on its own, and the non-litigation enforcement application for this part shall be rejected in accordance with the law. With regard to the part of the "Tax XX Penalty Decision", the person subject to enforcement, Xi'an XX Company, did not apply for administrative reconsideration and file an administrative lawsuit within the statutory time limit, and the penalty decision has taken legal effect and does not have the circumstances that the law and judicial interpretation stipulate that enforcement is not allowed. The person subject to enforcement shall perform the corresponding legal obligations, and the person applying for enforcement shall submit an application for compulsory enforcement to this court after being reminded to comply with the provisions of the law.

In summary, in accordance with Article 97 of the XX Litigation Law of the People's Republic of China and Article 58, Paragraph 2 of the XX Compulsory Law of the People's Republic of China, it is ruled as follows:

1. Reject the non-litigation enforcement application of the XX Inspection Bureau of the State Administration of Taxation on the Xixian Tax Inspection Office (2023) No. 3 Tax Treatment Decision;

2. Approve the "Tax Administrative Penalty Decision" of Xixian Tax Audit Penalty (2023) No. 4 made by the XX Inspection Bureau of the State Administration of Taxation, the executor of the State Administration of Taxation, that is, to pay a fine of RMB 1,236,013.05 and an additional fine of RMB 1,236,013.05.

If the applicant for execution, the XX Inspection Bureau of the State Administration of Taxation, is not satisfied with this ruling, it may, within 15 days from the date of receipt of the ruling, apply to the Xi'an Railway Transport Intermediate Court for reconsideration through this court, or directly apply to the Xi'an Railway Transport Intermediate Court for reconsideration.

adjudicating the Yangtze River

Adjudicator Zhang Yun

Adjudicator: Duan Cen Cen

February 4, 2024

Judge's assistant Cheng Xiaolong

Clerk: Zhang Tengyao

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