税务行政处罚实务问题研究

发布时间：2019-04-18 12:05

【摘要】：税务行政处罚是税务部门经常性工作,是惩治税收违法行为的重要手段,是实施税法的有效保障,对于维护正常税收秩序具有重要作用。依法治税是税收工作的生命线,规范税务行政处罚行为,是进一步加强依法治税的必然要求,是防范税收执法风险的有效途径,也有利于纳税人权益的保护。不断加强税务行政处罚理论研究,实现税务行政处罚的科学化与法治化,对加快推进依法治税步伐具有重大意义。本文兼顾立法论与解释论,从税务行政处罚的基础理论展开,结合实践中发生的案例,从立法和执法角度分析了税务行政处罚的现状及存在的问题,并结合税务工作提出规范税务行政处罚行为的对策措施。本文除引言外,正文共分为三个部分,约两万字。第一部分研究税务行政处罚的概念和特点。首先定义了税务行政处罚的概念,税务行政处罚的实施主体是各级税务机关;对象是税务行政管理相对人,可以是纳税主体,也可以是非纳税主体;性质是对税务违法行为的行政制裁。税务行政处罚具有主体的特定性、处罚对象的广泛性、处罚形式的固定性的特点。《税务行政复议规则》第十四条规定的税务行政处罚种类只有三种:罚款、没收财物和违法所得、停止出口退税权,对于其他税务行政措施是否属于行政处罚作者也进行了详细分析。第二部分从立法、执法和纳税人权利救济三个方面分析现阶段税务行政处罚存在的问题。立法层面,《税收征管法》与《行政强制法》在查封、扣押、冻结的性质与期限、强制执行决定的作出、滞纳金上限等方面规定不一致,通过查阅国外及台湾地区就此方面的体制、制度及相关规定,起到借鉴作用;《税收征收管理法》与《刑法修正案(七)》在偷税罪修改为逃避缴纳税款罪、补税免责、案件移送等方面需要衔接。执法层面,涉及对责令限期改正的认识、税务行政处罚及告知程序以及一事不再罚原则运用的探讨,对这几个方面的认识分歧,长期困扰税务执法人员开展税务行政处罚工作。最后,谈到处罚必然涉及救济,重点评析了复议前置制度,该制度存在很多弊端,取消复议前置制度是《税收征管法》修改的趋势。第三部分提出规范税务行政处罚行为的对策措施。一是规范税务行政处罚机制,包括提高税务行政处罚的司法化程度,细化完善听证制度,健全税收证据制度,建立税务行政处罚监督机制。二是切实提高税收执法人员素质。三是规范税务行政处罚自由裁量权。提出通过细化自由裁量权基准制度,建立税务行政处罚案例制度,研发自由裁量全管理系统等构想。四是进一步维护纳税人合法权益。
[Abstract]:Tax administrative punishment is a regular work of tax departments, an important means to punish illegal acts of taxation, an effective guarantee for the implementation of tax law, and plays an important role in maintaining the normal tax order. Administering tax according to law is the lifeline of taxation work. Standardizing the behavior of tax administrative punishment is the inevitable requirement of further strengthening the administration of tax according to law. It is an effective way to prevent the risk of tax enforcement and is beneficial to the protection of taxpayers' rights and interests. It is of great significance to strengthen the theoretical research of tax administrative punishment and to realize the scientific and legalization of tax administrative punishment, which is of great significance for speeding up the pace of administering tax according to law. Taking both legislative theory and explanatory theory into account, this paper analyzes the present situation and existing problems of tax administrative punishment from the point of view of legislation and law enforcement, starting from the basic theory of tax administrative punishment and combining with the cases that have occurred in practice. Combined with the tax work, this paper puts forward the countermeasures to standardize the behavior of tax administrative punishment. In addition to the introduction, the text is divided into three parts, about 20,000 words. The first part studies the concept and characteristics of tax administrative punishment. Firstly, the concept of tax administrative punishment is defined. The main body of tax administrative penalty is the tax authorities at all levels, the object of which is the relative person of tax administration, which can be the subject of tax payment or the subject of non-tax payment. The nature is an administrative sanction against tax violations. There are only three types of tax administrative punishments stipulated in Article 14 of the rules for Review of tax Administration: fine, tax administrative punishment has the characteristics of subject specificity, the object of punishment is extensive, and the form of punishment is fixed, and there are only three types of tax administrative punishment as stipulated in Article 14 of the rules for Review of tax Administration. The author also makes a detailed analysis on whether other administrative measures of tax administration belong to administrative punishment, such as confiscating property and illegal income and stopping the right of export tax rebate. The second part analyzes the existing problems of tax administrative punishment from three aspects: legislation, law enforcement and taxpayer right relief. At the legislative level, the provisions of the tax Collection Law and the Administrative coercive Law are inconsistent in terms of the nature and duration of seizure, freezing, the making of enforcement decisions, the upper limit of late payment, and so on. By consulting the foreign and Taiwan regions on this aspect of the system, system and related provisions, play a role in reference; The tax Collection Administration Law and the Criminal Law Amendment (7) need to link up with each other in the revision of the crime of tax evasion into the crime of evading paying taxes, making up for tax exemption, and transferring cases. At the law enforcement level, it involves the understanding of ordering time limit to correct, the tax administrative punishment and the procedure of informing, and the application of the principle of non-penalty. The differences of understanding on these aspects have long troubled the tax enforcement personnel to carry out the work of tax administrative punishment. At last, when it comes to the remedy of punishment, this paper mainly analyzes the system of pre-reconsideration, which has many disadvantages, and abolishes the system of pre-reconsideration is the trend of the revision of the Law of tax Collection and Administration. The third part puts forward the countermeasures to regulate the behavior of tax administrative punishment. The first is to standardize the tax administrative punishment mechanism, including improving the judicial degree of tax administrative punishment, refining and perfecting the hearing system, perfecting the tax evidence system, and establishing the supervision mechanism of tax administrative punishment. The second is to improve the quality of tax enforcement personnel. Third, standardize the discretion of tax administrative punishment. This paper puts forward some ideas such as refining the standard system of discretion, establishing the case system of tax administrative penalty, and developing the full management system of discretion. Fourth, we will further safeguard the legitimate rights and interests of taxpayers.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：F812.43

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