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The value of
tax procedure
He Yang

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  ⒈ OVERVIEW OF TAX PROCEDURE IN CHINA

  In order to study the value criteria to evaluate and conform tax procedure, and for the value propose of implement tax law through tax procedure, this paper chooses the visual angle of procedure value, and analyzes the theory and practice of tax procedure in tax administration of China.

  In economic theory, procedure was mentioned in institutions economy as an institution arrangement, which considers different procedure producing different efficient. James Buchanan, the founder of constitutional political economy, declares unanimity rule is the standard procedure to judge whether a public choice is efficient. In fact, both of them are similar with law in the concept of procedure, but the latter one emphasize that the result is legality, if the procedure accords with due process. Differently, economy analyzes from efficient, but law from equity. However, they reach the same goal——attaching importance to procedure. Just for the fact that procedure is despised in our country, this dissertation is from the law philosophy angle not the economic angle.

  In practice, tax authority often change tax procedure for technical problem, and negate proper tax procedure by some tax rationality. Tax procedure is just regarded as taxing process and management tool by tax authority. So it result that tax authority loose a lawsuit in administration suits for the improper procedure. The theory reason of this fact is that tax procedure has not been analyzed, even the arrangement of tax procedure is considered to be a heap of trivial gutless rules. The original propose of this dissertation is to discuss whether the invisible spirit role is hided under visible tax procedure system, whether the comparatively stable principle deposit under changeful tax procedure law. The conclusion is that tax procedure is merely dispensable form or means, and tax procedure itself bear and reflect value independent of tax propose. In a word, tax procedure is valuable in law.

  

  ⒉ VALUE OF TAX PROCEDURE

  Taking it as argumentation, this dissertation is logically organized as five parts.

  

  ⒉1 THE NEED TO STUED VALUE OF TAX PROCEDURE

  Tax procedure consist of tax person take action such as collecting and paying tax, relation between methods, process, time limit and order of making tax decision. As an law procedure, tax procedure contain procedure main body and procedure result peculiar of social procedure besides natural time factor. The subject principle is the key of tax procedure, that is, design and function of tax procedure should be consistent with body desire of both sides, and taxpayer should be endue with right to participate in procedure and choose procedure. Also the level of trust an admit to procedure of taxpayer should been advanced. This dissertation will describe the development history of western procedure value theory. We found that the trend is procedure value from ensuring the complement of law to emphasizing its independent value or intrinsic value.

  

  ⒉2 SOCIAL FUNCTION AND COMMAN VALUE OF TAX PROCEDURE

  In tax field, tax procedures can maintain the authority of tax law, constrain tax-imposing power, and guarantee rights an interest of taxpayers. Those social functions make for tax nomocracy, upgrade of right sense of taxpayers and improve tax compliance. The right of taxation represents public interests, but the wealth of taxpayers is private interests. There are natural contradictions between them. In this incompatible practice, people require to have democracy control of the power to tax of state by resident status, which can be realized by tax law, and also make right constrain on taxing power of tax authority based on tax law, which should be realized by tax procedure. It is decided by the nature of tax procedure. Concretely, the first one is that the taxing action should be controllable. Secondly, it is possible to control tax levy. Thirdly, it is efficient to control taxing action, because the taxing action is in some process. So, tax procedure is naturally a process to make taxing decisions, and is a kind of nature power to control and constrain taxing action. Tax procedure will be enhanced to constrain on taxing power and protect tax payers’ fair right, if it is more just and rational. Without constraint by procedure, the tax levy can’t be unanimous, open and rational, nor the property right and esteem of taxpayers. Therefore, we need due procedural rules for taxing action. The fairness value, efficiency value, and tool value of tax procedure is the criteria to evaluate the fairness of procedure, and different taxing action should have different procedure stander.

  

  ⒉3 WHERE THE VALUE OF TAX PROCEDEUR COMS FROM

  Those social function of tax procedure just because that it has tool value to ensure entity tax law, and independent value and efficiency value with the key of procedure fairness.

  The efficiency value of tax procedure is extrinsic power representation of tax administration, and a kind of extrinsic value of tax procedure. Under the traditional opinion, which emphasize free, compellent, and tax revenue, the tool value of tax procedure is regarded to acme. No matter how is the tax procedure, the result of tax levy is the key point. This phenomenon ignores the function of tax procedure to protect right and control power. In fact, tax procedure naturally has a kind of process value, which exists independent of procedure result, such as esteem, participant, fairness, humanism and procedure rationality. The attitude of taxpayers will be negative, if tax procedure doesn’t have such criteria. Just the fair procedure can make taxpayers ease, and more importantly, ensure that both sides are on the equal status. This is the essence of fair procedure.

  Fairness is the core value of procedure’ internal value. As the basic value sense, most modern countries have admitted the procedure fairness recently. In short, the first value of procedure fairness is to respect person, and make person as propose, not tool. The second value of procedure fairness is conviction. And the third value is that the realization of law is admitted by society. In a legislation society, it is not allowed to gain entitative value without procedure. A procedure will be regarded to be fair if it reaches the lowest standard of procedure fairness. Applying the lowest standard for fairness to format the criteria of tax procedure, such as esteem, participation, fairness, neutrality, public, autonomy and ration. Just these internal values make tax procedure has both technology and power constraint meaning, and improve the fairness level of tax levy by hearing, blenching, information, rights remedy, to protect fundamental rights of taxpayers.

  However, procedure fairness is not the only value or final value of tax procedure, but the necessary condition of fair taxing action. Form law economy, it will be fair when tax procedure action is efficient. Tax procedure without benefit means wasting limit taxing resource and violates justice of economy. Because of the high cost, it will become procedure luxury good with appreciation value. The taxpayers who can’t afford may loose the right to use procedure. It is unequal for taxpayers. So efficiency value of procedure is also an important procedure value, that is, the cost of a tax procedure should reduce to least level.

  The there values of tax procedure are in a opposite-uniform dynamic relation. In order to keep consistency of those tax procedure values and solve their conflict, we need to make those values balance and coordination. It is orientation of tax procedure value——harmoniously development of there values with core of procedure fairness. Evaluating and designing a tax procedure should ensure it accord with its internal value criteria, and have lowest fairness and rationality. But these value criteria should incarnate form itself, not any external factors. Besides, tax procedure should have ability to produce good result and meet economic benefit requirements.

  

  ⒉3 THE COMBINATION OF THERE VALUES OF TAX PROCEDURE

  In demonstration analysis, we found many limitations in tax procedure, such as legislation procedure, execution procedure or judicature procedure.

  The tax levy and rate paying tell us that any levy decision, which can’t meet procedure fairness requirement, will easily arouse controversy and oppugn, and induce taxpayers’ collision on social mentality level, and make it more difficult to execute tax action. In china, those phenomena have much relation with tax procedure without fairness.

  

  ⒊ THE CONCLUSION

  On above studying background, I try to criterion an rebuild our tax procedure system and a tax procedure law with tax basic law status in the core of fairness value.

  On the precondition of affirming that tax procedure has traditional external value for tax debt requirement and discharge, we should regard it as independent internal value, and perfect our hearing system, redressing system and apprizing system, and make tax procedure law, for rights, but not for levying.

  These studying about tax procedure value of this dissertation are not conclusion, but just a exploration or enlightenment. The propose is to call for tax procedure value sense, and make the fairness value of tax procedure to be absolute rule higher than taxation in our mind.

  

  

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