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1、税收滞纳金探析（Analysis of overdue tax payment）Analysis of overdue tax paymentAnalysis of tax late fees 2008-12-20 15:15:16Abstract: the overdue tax payment is a sum of money levied on taxpayers and withholding agents according to the provisions of the state tax law due to the failure of taxpayers and with
2、holding agents to pay the tax or the overdue tax on time. It is based on late tax payment, levied according to the number of days overdue and according to a certain ratio. In terms of the nature, the tax late fees are neither pure administrative penalties nor economic compensation and disciplinary n
3、ature. It is only pure economic compensation.Key words: late fees; economic compensation; administrative penaltyTax late payment is a tax collection and management system which is generally practiced in all countries of the world. Chinas tax collection and management system has also made a clear pro
4、vision for tax late fees. The new Peoples Republic of China tax collection and management law (hereinafter referred to as the tax administration law) article thirty-second: the taxpayer fails to pay tax, withholding agent fails to remit the amount of tax payable, the tax authorities in order to pay
5、within a specified time period, from the date of the tax delinquency, shall collect tax in arrears 5/10000 late fees. From the tax collection and management law can be seen in the tax payment phenomenon on the performance of the taxpayer or withholding agent (hereinafter referred to as taxpayers) wi
6、thout pay or remit within the prescribed period (hereinafter referred to as the payment of taxes), the tax authorities from the date of the tax delinquency, according to a certain percentage of the overdue tax shall collect the money. It is different from the tax payable by taxpayers in accordance w
7、ith the tax law,Is different from the tax authorities to give taxpayers illegal behavior of the administrative penalty; it is the tax payable from the taxpayer should belong to (the tax payment is caused, because if there is no tax in arrears overdue tax, tax payment is impossible), but is independe
8、nt of the taxpayers tax payable (tax payment once, and they could not be paid confused, must be accounted for separately).I. The purpose of setting up overdue tax payment systemState Taxation follows the principle of equity and efficiency, and maintains the normal operation of the state apparatus an
9、d the national economy through the collection of taxes. Therefore, the tax law stipulates that taxpayers should pay taxes in accordance with the provisions of the laws, administrative regulations or the tax authorities in accordance with the provisions of the laws and administrative regulations. If
10、the tax can not be collected in a timely and effective way, the operation of the governments funds will be difficult. The author believes that the system of tax late fees established by the state is to compensate for the taxpayers failure to pay taxes on time, the state funds running, use and other
11、aspects of the loss.Two, the nature of overdue tax paymentAccording to the tax payment properties, at present there are three main points: the first view is that the tax payment is the nature of administrative punishment; the second view is that the tax payment of economic compensation and the disci
12、plinary nature contains two properties; the third view is that the tax payment of pure economic compensation properties. The author thinks that it is reasonable and fair to define the nature of tax late fees as pure economic compensation. The reasons are as follows.First, the taxpayers duty to pay t
13、axes is prescribed by law.If it fails to fulfill the statutory duty, it should bear corresponding administrative, criminal and economic responsibilities. That is to say, failing to fulfill the statutory tax liability will be subject to administrative penalties by the tax administration, and if it vi
14、olates the criminal law, it will be subject to criminal penalties. At the same time, due to failure to fulfill the statutory tax obligations, it should bear the corresponding economic compensation responsibility. This form of economic compensation is the form of tax late fees.The two is the administ
15、rative penalty of tax, which is a kind of sanction or punishment imposed by the tax administrative organ on the natural or legal person who has the illegal act but does not constitute a crime. At this point, the taxpayer is responsible for administrative responsibility. The tax late fees is a kind o
16、f compensation, which is the compensation of the economic losses caused by the taxpayers and withholding agents, not the state sanctions against them. Taxpayers are now taking on an economic responsibility.One of the principles of administrative penalty is no punishment for a thing. The twenty-fourt
17、h article of the administrative penalty law stipulates: the party may not impose administrative penalties of more than two fine on the same illegal act of the party concerned. If you think the tax delinquency metal in administrative punishment, so the fines and penalties are paid in the form of mone
18、y payment, in essence, is formed on the same illegal act against a taxpayer gives two time penalty, conflict with no penalty principle. At the same time, the eighth section of the administrative penalty law stipulates the categories of administrative penalties: (1) warning; (2) fine; (3) confiscate
19、illegal gains and confiscate illegal property; (4) order to stop production and stop business;(5) suspend or revoke the license, suspend or revoke the license; (6) administrative detention; (7) other administrative penalties stipulated in laws and administrative regulations. The late fees are not wi
20、thin the scope of the administrative penalties mentioned above. The tax laws and regulations have not set the tax overdue fees as administrative penalties.The administrative punishment law provisions of article fifty-first: if a party fails to perform the administrative penalty decision, the decisio
21、n of administrative punishment of the administrative organ may take the following measures: (a) fails to pay the fine, the daily amount of the fine at three percent plus a fine; (two) according to the law, seizure, seizure of property auction or to transfer the frozen deposits to offset the fine; (t
22、hree) the peoples court for enforcement. That is to say, in addition to the fine (1) and (two) measures, any administrative sanction must be applied to the peoples court for compulsory enforcement. The tax administration law provisions of article fortieth of the tax authorities to take enforcement m
23、easures of the object is not to pay tax, which is a written notification to the taxpayer banks or other financial institutions deposit tax withholding from taxpayers; two is confiscated and auctioned or sold taxpayer value equivalent to the amount of tax payable of the commodities, goods or other pr
24、operty to auction or sell the income to pay taxes. At the same time, this article also stipulates that when the tax authorities adopt enforcement measures, they shall enforce the overdue fines paid by the taxpayers. The eighty-eighth paragraph of the third paragraph stipulates: the party concerned s
25、hall not apply for administrative reconsideration and shall not bring a suit to the peoples court for the punishment decision of the tax authorities, nor do they perform it.,The tax authorities that have made the decision on punishment may adopt the compulsory measures prescribed in article fortieth
26、 of this law or apply to the peoples court for compulsory enforcement. The law of tax collection and administration clearly stipulates that tax and tax late fees may be enforced, and administrative penalties include fines, which may be enforced by the tax authorities, and may also be applied to the
27、peoples courts for compulsory enforcement. Therefore, the collection of late fees and fines is two different administrative acts.The tax administrative reconsideration rules from October 1, 1999 to begin implementation of the seventh (Trial) stipulates: the review authorities shall accept the follow
28、ing tax administrative reconsideration against a specific administrative act provides for: (a) the tax authorities tax behavior: (1) the tax levy, levy fines;. (six) the tax administrative penalties imposed by the tax authorities: (1) fine; (2) confiscate the illegal gains; (3) stop the right of exp
29、ort tax refund. The Departments regulations clearly stipulate the imposition of late fees on metals, rather than administrative penalties.Thus, the overdue tax payment does not belong to the scope of administrative penalty, nor does it have the nature of administrative punishment. The view that the
30、tax late fee has the nature of administrative penalty is wrong.Three is tax overdue fees, including the nature of economic compensation and disciplinary nature point of view, the tax late fees levied should adhere to the principle of equal emphasis on economic compensation and punishment. As for bec
31、ause of objective reasons can not pay the taxes of the taxpayer, overdue focuses on the role of compensation for property; when trying to free up national taxpayers, overdue focuses on the role of disciplinary nature.This view is also reflected in the legislation of the law on tax collection and adm
32、inistration. In designing the tax late fee increase rate, the legislators considered both economic compensation and consideration of punishment, so the late fee rate was set at 5/10000, which is nearly ten times higher than the current annual interest rate.The so-called punishment is essentially pun
33、ishment, which is a kind of punishment and punishment to the taxpayers. Although the tax payment nature contains exemplary this view does not directly tax surcharge for administrative punishment, but the fallacy of this view is tantamount to tax payment has the property of administrative punishment,
34、 the intrinsic properties of them are the same. If this point of view is established, then the tax surcharge is the penalty for the fine of the late fees, and the taxpayer will be punished in disguised form.The tax late fees are punitive, which is unfair to some taxpayers. There are subjective and o
35、bjective reasons for taxpayers not paying tax on time. Some are due to objective reasons such as force majeure and unexpected accidents, while others are trying to free the state tax. The latter is obviously malicious in the subjective. Because the tax collection and administration law stipulates th
36、e late fees and the yield, it has the disciplinary nature in the legislative purpose. This actually caused taxpayers who did not pay the tax on time without exception to be punished. Taxpayers who have failed to pay the same amount of tax on time have received the same punishment for their subjectiv
37、e, non malicious and malicious intentions. This is clearly unfair to taxpayers who are not malicious.Thus it can be seen，The view that the late tax payment includes the nature of economic compensation and the nature of punishment is unreasonable and unfair.Four, the author thinks that the nature of
38、the tax late fees is defined as pure economic compensation, which clarifies the economic responsibility that taxpayers should bear because they have not paid the tax on time, instead of administrative responsibility or criminal responsibility. No matter whether the taxpayer is out of subjective mali
39、ce or not, he should bear the economic responsibility for the loss of the state due to the non payment of the tax on time. Taxpayers with subjective malice should also be subject to administrative penalties.To distinguish whether taxpayers with malice, according to the understanding of a future perf
40、ectly logical and reasonable, taxpayers in tax authorities, no subjective malicious taxpayers will pay tax according to the tax authorities within the prescribed time limit, with malice taxpayers may still not pay. Tax administration law sixty-eighth stipulates: the taxpayer or withholding agent fai
41、ls to pay or Shao Jiao or payable taxes should be interpreted within the prescribed time limit, the tax authorities ordered a payment, fails to pay the tax authorities in accordance with the provisions of this Law Article fortieth to take enforcement measures to recover the unpaid or less pay taxes,
42、 can more than not pay or underpays fifty percent to five times the fine. Under this rule, taxpayers with subjective malice are subject to administrative penalties, and his financial losses will be greater than taxpayers without subjective malice. In fact, taxpayers without subjective malice may app
43、ly for deferred payment of taxes in accordance with the provisions of the tax collection and administration law. Therefore, the author thinks,It is not only necessary to punish the taxpayers who have not paid the tax on time, but also can not achieve the purpose of punishment.To sum up, only the tax
44、 payment definition of pure economic compensation, in order to make the tax payment more scientific, reasonable and fair, so that the majority of taxpayers and tax administrative law enforcement personnel to more easily understand and accept, more conducive to levy income tax delinquency base gold,
45、compensate for economic losses.Three, the determination of the late tax refund rateThe author believes that in the tax collection and administration law in the late fee recovery rate fixed approach is not feasible. Once a law is promulgated, it has its seriousness and relative stability. It is not a
46、llowed to change at will, nor should it be modified in the short term. The late tax payment reflects the role of economic compensation, and should be adjusted accordingly with the change of the national economic situation. 5/10000 of the fines and yield explicitly stipulated in the tax administratio
47、n law, the fines and yield could not change, can not adapt to the change of economic situation of the country, resulting in fines and the yield is too high or too low, so that taxpayers cannot afford or national economic losses cannot be remedied, fines will lose its economic compensation.Therefore,
48、 the tax collection and administration law should not make a clear provision for the late fee increase rate. It is only appropriate to stipulate which behaviors should be subject to late fees, and what circumstances can be exempted from late fees. The specific late fees and yield are specially promu
49、lgated by the State Administration of Taxation in the form of departmental regulations,And specify the applicable tax year (for example, 35 years). After the expiration, according to the change of the national economic situation, new late fees will be issued and the yield will be increased. In this way, the late fee plus yield has certain stability, is conducive to the actual operation of the tax au