State Administration of Taxation Decree of the State Administration of Taxation of the People’s Republic of China NO.8 Rules on Taxation Administrative Review (interim) , deliberated and adopted at the first executive meeting of the State Administration Xie Xuren, Director of the State Administration of Taxation February 24th, 2004 Rules for Taxation Administrative Review (interim) Chapter I General Provisions Article 1 With a view to preventing and rectifying the violations of laws or specific improper administrative actions of the tax authorities, Article 2 Taxpayers and other interested parties who believe their legal rights and interests have been infringed by a specific administrative Article 3 The tax administrative review authority referred to in the Rules (hereinafter referred to as the review authority) are those tax authorities Article 4 Agencies of the review authorities in charge of taxation legal affairs (hereinafter referred to as legal affairs agencies) shall shoulder (1) Accepting the application for administrative review; (2) Investigating and searching for evidence from relevant organizations and persons, consulting documents and materials; (3) Examining whether a specific administrative action under a review application is lawful and proper and drafting an administrative (4) Handling or transferring examination applications listed in Article 9 of the Rules; (5) In accordance with the prescribed jurisdiction and procedures, putting forward proposals for handling actions violating the Administrative (6) Handling matters for responding to administrative lawsuits lodged because of objections to administrative review decisions; (7) Examining and supervising the administrative review work of tax authorities at lower levels; (8) Handling compensation issues as result of the administrative review cases; (9) Collecting statistics, making reports and keeping files for administrative review, lawsuits and compensation cases. Tax authorities at all levels shall establish sound legal affairs agencies and assign fulltime clerks in charge of administrative Article 5 In performing the administrative review duties, the review authorities shall fortify the awareness of responsibility and service, Article 6 If taxpayers and other parties concerned disagree to tax administrative review decisions, they may bring administrative lawsuits to Article 7 Expenses incurred in administrative review and litigation in the tax authorities at all levels shall be covered by administrative Chapter II Scope of Taxation-related Administrative Review Article 8 The review authorities shall accept applications for administrative review as a result of objections to any of the following specific (1) Tax collection by the tax authorities, including specific administrative actions such as confirming the taxable entities, taxable (2) Measures taken by the tax authorities to guarantee the tax revenue: (a) Written notification to banks or other financial institutions to temporarily freeze an account; (b) Seizing or detaining commodities, goods or other property. (3) Failure to timely withdraw tax revenue guarantee measures by the tax authorities which results in infringement of the legal rights (4) Mandatory enforcement measures taken by the tax authorities: (a) Written notifications to banks or other financial organizations to withhold tax payments from deposits of the concerned parties; (b) Selling or auctioning the seized or detained commodities, goods or other properties. (5) Administrative penalty imposed by the tax authorities: (a) fines; (b) confiscation of properties and illegal income; (c) depriving the right of getting export tax refund. (6) The actions of the tax authorities in refusing to lawfully handle a matter or to give a reply: (a) Refusing to approve tax reductions and exemptions or export tax refund; (b) Refusing to credit the tax; (c) Refusing to rebate tax; (d) Refusing to issue tax registration certificate or sell invoices; (e) Refusing to issue tax payment vouchers and receipts; (f) Refusing to identify the normal value-added tax payers; (g) Refusing to approve deferred tax declaration, and deferred tax payment. (7) The actions of the tax authorities in disqualifying the general VAT payers; (8) The actions of the tax authorities in capturing and stopping selling invoices; (9) The actions of the tax authorities in ordering the taxpayers to present tax payment guarantees or not to lawfully confirm the validity (10) The actions of the tax authorities in refusing to lawfully grant awards to tax evasion reporters. (11) Decision of the tax authorities of notifying the border exit department to prevent exit of border. (12) Other specific administrative actions of the tax authorities. Article 9 Any taxpayers or other parties concerned believing that the following basis for the specific administrative actions of the tax authorities (1) The rules of the State Administration of Taxation and other departments of the State Council: (2) The rules of the tax authorities at other levels; (3) The rules of the local people’s governments; (4) The rules of departments of the local people’s governments. The provisions mentioned in the preceding Paragraph exclude regulations and rules. Chapter III Jurisdiction of the Taxation Administrative Review Article 10 Objections against specific administrative actions of tax authorities at any level shall be referred to the tax authorities at a higher The objections against the specific administrative actions of the local tax bureaus at provinces, autonomous regions and municipalities Article 11 The objections against the specific administrative actions of the State Administration of Taxation shall be taken to the State Administration Article 12 Those who have any objections against the specific administrative actions of tax authorities or organizations other than those prescribed (1) Those who have any objections against the specific administrative actions of municipalities separately listed in the state budgetary (2) Those who have objections against the specific administrative actions of tax offices or inspection departments of tax bureaus at any (3) Those who have objections against the withholding actions of withholding agents shall apply for administrative review to the tax authorities (4) For tax-related cases jointly investigated by the state tax bureau,(including inspection department and tax office) and local tax For objections against the specific administrative actions jointly made by the state tax bureau (including inspection bureau and tax (5) For objections against the specific administrative actions of a dissolved tax department made before it was dissolved, the application For any one of the circumstances described in(2) ,(3) ,(4) and(5) , the applicants may apply for review to the local county people’s Chapter IV Application for Tax Administrative Review Article 13 Applicants may put forward the application for administrative review within 60 days after being notified of the specific administrative Article 14 Where the taxpayers, withholding agents and sureties of tax payment object to the actions listed in Item 1 and Subparagraph 1,2,3 Where applicants apply for administrative review according to the preceding provisions, they shall first pay taxes and overdue fines The means of guarantee provided by applicants include surety, mortgage and pledge. The tax authorities taking the specific administrative Article 15 Where the applicants object to other specific administrative actions than the actions listed in Item 1 and Subparagraph 1, 2, 3 in Article 16 Applicants may make applications either in written form or orally. In case of oral application, the review authorities shall record Article 17 Taxpayers or other parties concerned requesting for administrative review are the applicants of the tax administrative review, specifically Where the citizens having the right to apply for administrative review are dead, their families or close relatives may apply for administrative Where the legal persons or other organizations having right to apply for administrative review are merged, split or terminated, the Other citizens, legal persons or organizations having a stake in the specific administrative action under review may participate in A third party who is not the target of a specific administrative action but whose right has been directly deprived of, restricted Applicants and third parties may entrust agents to take part in the administrative review on their behalf, while the respondents shall Article 18 Where taxpayers or other parties concerned apply for administrative review on the specific administrative action of the tax authorities, Article 19 An applicant shall not institute an administrative lawsuit to the people’s court within the legal time limit for administrative review, Chapter V Acceptance of Tax Administrative Review Article 20 After receiving the application for administrative review, the review authority shall examine it within 5 days and make a decision Applications for administrative review shall be refused in the following circumstances:(1) applications for cases outside the scope For those qualified applications that are not under the jurisdiction of a review authority, the review authority shall inform the Should the review authority do not examine the application and make a decision on refusing it within time limit prescribed above after Article 21 For those qualified review applications, the date when the legal affairs sections of the review authorities receive them shall be Article 22 For the specific administrative actions that shall be first applied to the review authorities for administrative review and then be In case of extension of review time limit according to Article 43 of the Rules, the date of the expiration of the review time limit Article 23 Where the taxpayers and other parties concerned lawfully apply for review, but the review authorities refuse to accept without justifiable Article 24 During the term of the review, the specific administrative action shall not cease unless one of the following circumstances exists: (1) The respondent believes it necessary to cease; (2) The review authority believes it necessary to cease; (3) The applicant applies for ceasing implementation and the review authority believes the request is reasonable and determines to cease (4) It shall cease according to laws and regulations. Article 25 The administrative review shall be suspended in any of the following circumstances: (1) The applicant dies and it is necessary to wait for the inheritor to make clear whether or not to participate in the administrative (2) The applicant has lost the capability to engage in litigation and his legal representative has not been designated yet; (3) The administrative institution, the legal person or any other organization as one of the parties has terminated, and the party to (4) The review authority can not investigate for a while because of force majeure; (5) The basis for the specific administrative action is being processed according to Article 39 and 40 of the Rules; (6) The adjudication of the case pending is dependent on the results of the trial of another case that has not yet been concluded; (7) The respondent is performing certain duties as the applicant applied for; (8) Other circumstances that warrant the suspension of the administrative review. The suspension of the administrative review shall be notified to parties concerned in written form. The administrative review shall Article 26 The administrative review shall be terminated in any of the following circumstances: (1) The applicant withdraws the application for administrative review according to Article 38 of the Rules; (2) After accepting of the application, the review authority finds that other review authority or the people’s court has accepted the (3) The applicant dies without an inheritor, or the inheritor waives the right to apply for administrative review; (4) After the termination of a legal person or other organization, the applicant of the administrative review, its inheritor waives the (5) The review authority finds out that the requirements for accepting applications are not met after accepting the application for administrative The termination of the administrative review shall be notified to relevant parties in writing. Chapter VI Evidence Article 27 Evidence shall be classified as follows: (1) documentary evidence; (2) material evidence; (3) video and audio material; (4) testimonies of witnesses; (5) statements of the parties concerned; (6) appraisal conclusions; and (7) written record of spot inspection or investigation, and written record at the locale. Article 28 In the administrative review, the respondent shall have the burden of proof for the specific administrative action it has undertaken. Article 29 The review authority shall take facts supported by evidence as the basis for the review of the cases. Article 30 The review authority shall examine the validity of the evidence from the following aspects based on the specific circumstances of (1) whether the evidence meets the requirement on legal form; (2) whether the procurement of evidence meets the requirement prescribed by laws, regulations, rules, judicial interpretations and other (3) whether there exist any other law-violating circumstances that have an impact on the validity of the evidence. Article 31 The review authority shall examine the authenticity of evidence from the following aspects based on specific circumstances of each (1) the causes that lead to the evidence; (2) the objective circumstances when the evidence is found; (3) whether the evidence is original and whether the duplicated copy is consistent with the original. (4) whether the interest of the witness or person providing the evidence is connected with the parties concerned in the case; (5) other factors that may influence the authenticity of evidence. Article 32 The following evidence materials shall not be taken as the basis for deciding on a verdict: (1) evidence materials collected in a way that goes against the legal proceedings; (2) evidence materials infringing other persons’ lawful rights and interests obtained in such ways as shooting and recording on the sneak, (3) evidence materials procured in such wrongful ways as temptation, fraud, menace, violence etc; (4) evidence materials provided by parties concerned beyond the time limit without reasonable grounds; (5) duplicates provided by a party concerned who refuses to present the originals without reasonable grounds, and cannot present any other (6) evidence materials which are unable to determine true or false; (7) testimony provided by a witness unable to express his idea precisely; (8) other evidence materials bearing no validity and authenticity. The relevant materials procured by the legal affairs agencies according to item 2 of Article 4 of the Rules shall not be taken as Article 33 In the course of an administrative review, the respondent shall not go its own way to collect evidence from the applicant, other relevant Article 34 The applicant and the third party may have access to the written reply of the respondent, evidence and justifications for the specific Chapter VII Decision of Tax Administration Review Article 35 The administrative review adopts the way of paper examination in principle. Where, however, the applicants request for or the legal Article 36 The review authority shall comprehensively examine the factual evidence, legal proceedings, legal basis and the validity and propriety Article 37 The legal affairs agency of a review authority shall deliver the duplicate copy of the administrative review application or the duplicate The respondent shall put forward a written reply and provide the evidence, basis and other relevant materials for taking the specific Article 38 Before the review decision is made, the applicant may withdraw its application, but shall not apply again for administrative review Article 39 Where an applicant applies for examination of the relevant rules when applying for administrative review according to Article 9 of Article 40 Where the review authority believes, during the examination, that the specific administrative action of the respondent is not legally Article 41 The legal affairs agency shall examine the validity and properness of the specific administrative action taken by the respondent, (1) Where the facts are clear, evidence strong, legal basis correct, procedures lawful and content proper, the review authority shall (2) Where the respondent fails to perform its statutory duty, the review authority shall make a decision that the respondent shall perform (3) In one of the following circumstances, the review authority shall decide to cancel, change or confirm the action unlawful. Should (a) The main facts are not clear, the evidence is not sufficient. (b) The legal basis is wrong. (c) The legal procedures are not followed. (d) The respondent steps over or abuses its power. (e) The specific administrative action is obviously inappropriate. Should the review authority order the respondent to take a new administrative action, the respondent shall not take the same or similar (4) Where the respondent fails to put forward a written reply, provide the basis, evidence and other relevant materials for the specific
MORE STORIES
|