Tax Administrative Review
36 Tax Administrative Review
This review forms part of China's overall administrative review system. It allows parties that believe tax administrative acts of the tax department have infringed upon their legal rights or interests, to seek redress, by applying for a tax administrative review to examine the legality and appropriateness of those acts.
The State Administration of Taxation (SAT) has taken steps to formulate comprehensive review procedures for the following reasons:
- To prevent and rectify tax administrative acts that are inappropriate or that violate the law.
- To safeguard the lawful rights and interests of taxpayers and other concerned parties.
- To supervise the tax administrative practices of the tax department, and to ensure that these practices are carried out in accordance with the prevailing rules.
On February 24, 2004, it promulgated the revised Rules Governing Tax Administrative Review (for trial), which came into effect on May 1, 2004, in accordance with the Law of the People's Republic of China on Administrative Review, the Law of the People's Republic of China on Tax Administration and Collection, and other relevant rules.
Where taxpayers or other concerned parties believe that specified tax administrative acts of the tax department have infringed upon their legal rights or interests, they may apply in accordance with the law for a tax administrative review to examine the legality and appropriateness of the acts.
Applications are normally made to a higher tax department, but they may also be made to the People's Government at the same level as the tax department being investigated.
Taxpayers and other parties concerned who disagree with the rulings of the tax administrative review may lodge a tax administrative appeal with the People's Court, in accordance with the provisions laid out under the Law of Administrative Review.
The tax department that accepts the application, investigates the case, and makes a ruling shall be termed the tax administrative review department (hereafter referred to as the review department).
Legal Affairs Division
The review department's division of legal affairs (hereafter referred to as the legal affairs division) shall be tasked with handling the casework related to review cases and the following responsibilities related to such cases:
- Accepting review applications.
- Seeking evidence from relevant organizations and individuals.
- Perusing relevant documents and materials.
- Examining the legality and appropriateness of the acts under review.
- Drafting the review ruling.
- Handling or handing over the examination application of relevant rules.
- Handling compensation issues.
- Making proposals on appropriate ways to deal with the junior tax departments whose acts have contravened the Law of Administrative Review or the Rules Governing the Tax Administrative Review.
- Dealing with appeals, where the parties concerned object to the rulings made by the review department.
- Inspecting and monitoring the tax administrative review work of the junior tax departments.
- Handling the statistical, reporting, and filing work related to reviews, appeals, and compensation.
- Tax administrative review.
Every administrative review must abide by the principles of legality, fairness, and openness. Each review must also be carried out with all due promptness, and care must be taken to cause as little inconvenience as possible to any of the affected parties.
To this end, all review departments must instill and strengthen the following characteristics in their staff:
- A sense of responsibility and service.
- A commitment to administration by law.
- A readiness to fastidiously perform the duties involved in administrative review.
- A belief in strict adherence to the law.
- The dedication to ensure correct and appropriate execution of the law.
- The conviction that mistakes must be remedied.
To ensure the smooth processing of reviews and appeals, tax offices at all levels should ensure that their legal affairs divisions are equipped with professional staff that are competent to handle review and appeal work.
This section discusses various administrative acts that can be brought under administrative review.
Stipulations by State organs, discussed later, can also be brought under review.
Review departments shall accept applications to review the administrative acts discussed below.
Determinations made by the tax department on the following issues in the course of collecting taxes may be brought under review:
- Taxpaying entities; tax base; tax scope; taxable items.
- Applications of tax rates.
- Tax stage.
- Tax reductions; tax exemptions.
- Tax refunds.
- Time limits for tax payment; places for tax payment.
- Collection of taxes; collection of tax arrears, and interest charged for late payments.
- The withholding and collection of taxes by withholding agents and units entrusted by the tax department.
Guaranty Measure-Related Activities
The following actions undertaken by the tax department in the course of implementing guaranty measures may be brought under review:
- Notifications in writing to banks or other financial institutions to freeze taxpayers' deposits.
- Confiscation or sealing up of taxpayers' commodities, goods, or other property.
Acts of Omission Related to Guaranty Measures
The following act of omission by the tax department in the course of implementing guaranty measures may be brought under review:
- Failure to rescind guaranty measures in a timely fashion, thereby infringing upon taxpayers' legal rights or interests.
Payment Enforcement-Related Activities
The following activities undertaken by the tax department in the course of enforcing tax payment may be brought under review:
- Notifications in writing to banks or other financial institutions to deduct taxes from the deposits of taxpayers, withholding agents, or guarantors.
- Auctioning of impounded or sealed-up commodities, goods, or other property belonging to taxpayers, withholding agents, or guarantors, to settle tax arrears.
The following punitive actions undertaken by the tax department may be brought under review:
- The imposition of fines.
- The expropriation of property or illegal gains.
- The suspension of tax refund entitlements.
Acts of Omission Related to Taxpayer Applications
The following acts of omission by the tax department in terms of handling applications, and executing and expediting procedural formalities, in contravention of prevailing laws, may be brought under review:
- Failure to approve tax reductions, tax exemptions, or tax refunds for exports.
- Failure to allow for tax credits.
- Failure to rebate taxes.
- Failure to issue tax registration certificates or sell invoices.
- Failure to issue tax payment memoranda or receipts.
- Failure to identify normal Value-Added Tax (VAT) payers.
- Failure to approve applications to extend deadlines for the filing of tax returns or for tax payment.
- Decisions by the tax department to cancel the qualification of normal VAT taxpayers.
- Decisions by the tax department to take over invoices or stop selling invoices.
- Decisions by the tax department to order taxpayers to provide tax guaranties.
- Failure by the tax department to confirm the validity of tax guaranties.
- Decisions by the tax department not to give rewards for the disclosure of tax offenses.
- Notifications by the tax department to the exit control department to stop taxpayers from leaving China.
- Other specified tax administrative acts by the tax department.
Stipulations by State Organs
Where taxpayers or other concerned parties believe that stipulations made by the following State organs do not conform to prevailing laws, and where tax administrative acts have been carried out by the tax department based on these stipulations, the taxpayers or other concerned parties may apply for examination of these stipulations at the same time that they apply to the review departments for reviews of the corresponding administrative acts:
- The SAT.
- Other departments under the State Council.
- Tax departments at various levels.
- Local People's Governments and their departments. Rules formulated by these organs are excluded from this form of examination.
This section discusses which State organs have jurisdiction to conduct reviews.
In general, where taxpayers object to administrative acts by a tax department at a particular level, they may apply to a tax department at a higher level for review.
Acts by Provincial-Level Tax Departments
Applications for the review of acts by tax departments at the provincial level should be submitted to the SAT.
Applications may also be submitted to the People's Government at the provincial level.
Acts by the SAT
Applications for the review of acts by the SAT may be submitted to the SAT.
Where an applicant disagrees with the review ruling, he may initiate a tax administrative appeal with the People's Court, or apply to the State Council for a ruling. After the State Council makes a ruling, no further appeal can be sought.
Acts by Other Organs/Organizations
Applications for the review of acts by other tax organs or organizations shall be made in accordance with the following rules:
- Specially listed cities: Where an applicant disagrees with an act by a tax department in a specially listed city, he should submit an application to the tax department at the provincial level.
- Tax stations, tax audit bureaus: Where an applicant disagrees with an act by a tax station or a tax audit bureau at any level, he should submit his application to the competent tax department.
- Withholding agents: Where an applicant disagrees with a withholding act by a withholding agent, he should submit his application to a tax department at a level higher than that of the department overseeing the withholding agent.
- Entrusted units: Where an applicant disagrees with a collection act by a collection unit entrusted by the tax department, he should submit his application to a tax department at a level higher than that of the department that has entrusted the collection to the unit.
Acts Under Joint Investigation
For the tax-related cases jointly investigated by the SAT offices (tax audit bureaus, tax stations) and the local tax bureaus (tax audit bureaus, tax stations), those jointly investigated by the tax department and other administrative departments, they should make separate specific administrative acts after consultation and coordination on basis of their own statutory responsibility and should not work out the common specific administrative acts.
Where applicants disagree with acts carried out in unison by the SAT offices (tax audit bureaus, tax stations) and the local tax bureaus (tax audit bureaus, tax stations), they should submit their applications to the SAT.
Where applicants disagree with acts carried out in unison by the tax department and other administrative departments, they should submit their applications to their common administrative department at a higher level.
Acts by Removed Departments
Where an applicant disagrees with an act by a tax department that has since been removed, he should submit his application to a tax department at a level higher than that of the department that has assumed the duties of the removed tax department.
In all of the cases described above, except for acts by provincial-level tax departments, applications may be submitted instead to the People's Government at the county level, in the county where the acts took place.
The People's Government accepting the application shall hand over the case in accordance with prevailing laws.
This section discusses the entities that are party to a tax administrative review.
Where taxpayers or other concerned parties initiate tax administrative reviews, they become the review applicants. Taxpayers, withholding agents, tax guarantors, and other concerned parties may all act as applicants.
Applicants on Behalf
For various reasons, the entity that is entitled to apply for a review may be unable to do so. In such cases, other entities may apply on their behalf.
- Where the entitled citizen is deceased, a close relative may apply instead.
- Where the entitled citizen is unable to conduct or is restricted for conduct, his legally appointed agent may apply instead.
- Where a legal entity has merged with another entity, split up, or terminated operations, the legal entity that assumes its rights may apply instead. The legal entities may be individuals, groups or bodies of individuals, or organizations.
Other citizens, legal persons, or organizations that have an interest in the acts under review may participate in the review as third parties.
Where third parties are deprived of their rights, where their rights are restricted, or where they are given obligations directly by the acts under review, they may, even though they are not the counterparts of the acts under review, apply separately for a review if the counterparts of the administration fail to apply for a review.
Where a tax administrative act comes under review, the tax department that carried out the act shall be the applied entity.
Applicants and third parties can entrust agents to participate in the review on their behalf. The applied entity does not have this option.
This section discusses various procedures that applicants must follow when applying for a tax administrative review.
Applications may be submitted in written or oral form.
Where applications are made orally, the review departments should record on the spot the following details:
- The personal details of the applicants.
- The request to file an application.
- The salient facts of the case.
- The reason for the application.
- The time of application.
Procedural Pre-Requisites for Certain Reviews
Where an applicant objects to the following administrative acts, he should first apply to the review department for an administrative review of the act, and then file an appeal with the People's Court if he does not accept the ruling of the review department. He cannot appeal directly to the People's Court.
- Tax collection.
- Refusal to approve tax reductions, tax exemptions, or export tax refunds.
- Refusal to credit tax.
- Refusal to return taxes.
An applicant subject to this procedural rule must first do either of the following, within the time limits specified by the tax department, in accordance with prevailing laws and administrative regulations:
- Settle any tax arrears and/or interest charged on late payment interest.
- Provide a tax guaranty as assessed by the tax department.
He shall then submit his application within 60 days of either of the following dates, whichever is applicable:
- The date that he settles tax arrears and/or interest charged on late payments.
- The date that the tax guaranty is confirmed by the tax department.
A guaranty provided by an applicant shall include the following items:
- A letter pledging the guaranty.
- A mortgage.
- A pawn.
The tax department shall examine the status and reputation of the guarantor. It has the right to refuse if the guarantor is not legally qualified or is unable to keep the pledge.
The tax department shall also examine the mortgage and pawn provided. It shall not accept the guaranty if they do not conform to prevailing laws.
Where an applicant wishes to initiate a review of acts other than those discussed above, he may submit his application, or directly lodge an administrative appeal with the People's Court.
Applicants shall file their applications within 60 days of the date that they become aware of the administrative acts being brought under review.
Where days are lost for acceptable reasons, such as force majeure or other obstacles created by the applied entities, the days lost shall be reinstated starting from the date that the obstacles are cleared.
Counterproductive Reviews, Appeals
Where an applicant has applied to the review department for an administrative review, and the review department has accepted the application, the applicant shall not appeal to the People's Court during the statutory period of the review.
Conversely, where an applicant has filed an appeal with the People's Court, and the People's Court has accepted the case, the applicant shall not apply for an administrative review.
This section discusses various procedures that the review department must follow when processing an application or an administrative review, and when it decides to accept or reject the application.
The review department shall examine the case within 5 days of receiving the application for administrative review.
Where an application satisfies the criteria for acceptance and it is accepted, the date of acceptance shall be the date that the application is received by the legal affairs division.
The litigants should be notified in writing by the legal affairs division.
When accepting the application, the review department should not charge the applicants any fees.
Acceptance by Default
If the review department fails to examine or reject an application within the specified time limit, the application shall be deemed to be accepted.
Acceptance by Order of a Higher Jurisdiction
Where the review department rejects an application, but can offer no acceptable reasons, and where the applicants do not appeal to the People's Court, a higher tax department shall order the review department to accept the application.
Where necessary, the higher tax department may directly accept the application.
Where applications are rejected, the applicants shall be notified in writing.
Cause for Rejection
Under any of the following circumstances, the review department shall not accept the application:
- The application does not fall within the scope of administrative reviews.
- The statutory deadline for filing the application has been exceeded.
- There is no explicit applied entity or object that can be brought under administrative review.
- The applicant has already filed an application with another statutory review department, and that department has already accepted the application.
- The applicant has already filed an appeal with the People's Court, and the People's Court has already accepted the case.
- The applicant has failed to settle tax arrears and interest charges on late payments, or he has failed to provide a tax guaranty, or the guaranty is invalid during the dispute between the applicant and the tax department.
- The applicant does not possess the status of applicant.
Where an application is filed with the wrong department, the review department should notify the applicant to apply to the relevant review department.
Where a review application must first be submitted to the review department before an appeal can be filed with the People's Court, and where the review department decides not to accept the application, or fails to respond within the time limit for review, the applicant may appeal to the People's Court within 15 days of the date that he receives the rejection notification, or on the expiration of the time limit for the review.
Where the time limit for review is extended in accordance with prevailing rules, the last day of the extension shall be deemed to be the expiration date of the review.
During the review period, an act that is being reviewed shall continue to be executed, unless any of the following circumstances applies:
- The applied entity considers cessation is necessary.
- The review department considers cessation is necessary.
- The applicant requests cessation, and the review department considers the request reasonable, and decides to cease execution.
- Cessation is stipulated by prevailing laws and regulations.
For various reasons, an administrative review may be suspended temporarily or terminated altogether.
Reviews may be suspended under any of the following circumstances:
- The applicant dies, and it is necessary to wait for the heir to decide whether he will participate in the review.
- The applicant becomes mentally and physically incapacitated and the legal agent has not been finalized.
- One of the parties concerned ceases to exist as a legal entity, and the entity that will assume that party's rights and obligations is not yet available to participate in the review.
- Force majeure makes it impossible for the review department to investigate the case.
- Handle the basis of the specific administrative act by law.
- The ruling is dependent on the ruling in another case that has not been finalized.
- The applicant requests the applied entity to perform a statutory duty, and the applied entity is in the midst of performing that duty.
- Other justifiable circumstances.
Litigants should be notified in writing of the suspension.
The review should resume as soon as the circumstances behind the suspension are resolved.
Reviews may be terminated under any of the following circumstances:
- The applicant withdraws the application in accordance with prevailing rules.
- After the application is accepted, it is discovered that another review department or court has already accepted the case.
- The applicant dies, and there is no heir, or the heir gives up his rights to the review.
- The legal entity that is the applicant terminates, and the entity that assumes its rights and obligations gives up its rights to the review.
- The applicant dies, the review is suspended because it is necessary to wait for the heir to decide whether he will participate in the review, there is still no applicant to continue the review within 60 days of the suspension, and there is no justifiable reason to resume the review.
- The applicant becomes mentally and physically incapacitated without appointing a legal agent, the review is suspended, there is still no applicant to continue the review within 60 days of the suspension, and there is no justifiable reason to resume the review.
- After the application is accepted, it is discovered that the application does not satisfy the criteria for acceptance.
Litigants should be notified in writing of the suspension.
This section discusses what materials and information can be submitted as evidence in a tax administrative review, and how evidence should be assessed for legality and veracity.
When examining a review case, the review department should base its ruling on the facts, as supported by the available evidence.
For the purpose of the review, the burden of proof is on the applied entity (i.e., it rests on the applied entity to prove that the acts under review were carried out in accordance with the prevailing laws and regulations, and in a manner appropriate to the circumstances.
Relevant materials obtained by the legal affairs division in its efforts to seek evidence from the relevant organizations and individuals, and checking up documents and materials should not be used as evidence by the applied entity in support of the acts under review.
During the review, the applied entity should not arbitrarily collect evidence from the applicants, or other relevant organizations or individuals.
Applicants and third parties may verify the following matters related to the acts under review. Unless the matters may compromise State secrets, commercial secrets, or confidentiality, the review department shall not refuse them access to the materials or obstruct them in any other way.
- The written replies of the applied entity.
- Any evidence related to the acts under review.
- The legal basis on which the acts were carried out.
- Other relevant materials related to the acts under review.
Evidence that can be admitted for the review include the following items and materials:
- Paper evidence.
- Physical evidence.
- Video and audio materials.
- Oral statements by witnesses.
- Written statements by litigants.
- Appraisal conclusions.
- Surveying notes.
- Spot notes.
Assessment of the Evidence
Determination of Legality
The review department shall, based on the specifics of each case, examine the legality of the evidence from the following aspects:
- Whether the evidence satisfies legal criteria for admissibility.
- Whether evidence is obtained in accordance with the strictures of laws, regulations, rules, or judicial interpretation.
- Whether there are other offensive situations that may compromise the legality of the evidence.
Determination of Veracity
The review department shall, based on the specifics of each case, examine the veracity of the evidence from the following aspects:
- The reason for forming the evidence.
- The objective environment for finding the evidence.
- Whether the evidence is from original source material, and if a copy is used, whether the copy matches the original.
- Whether the individuals providing the evidence or the witnesses are related in any way to the litigants that may create a conflict of interests.
- Other aspects that might affect the veracity of the evidence.
The following materials cannot be used as the basis for finalizing the case:
- Evidential materials collected in violation of legal procedures.
- Evidential materials obtained through secret filmings, recordings, or wire taps that may infringe upon the legal rights or interests of others.
- Materials obtained through inducements, deception, threats, or violence.
- Evidential materials provided by litigants after the expiration of the proof time, where the litigants can offer no acceptable reasons for the delay.
- Copies of evidential materials, where the litigants refuse to provide the originals but can offer no acceptable reason, where there is no other evidence to prove the validity of the copies, and where the opposing parties refuse to accept.
- Evidential materials whose veracity cannot be conclusively determined.
- Words by witnesses that cannot express rightly its will and ideas.
- Other evidential materials that do not satisfy the criteria for legality and veracity.
This section discusses how the review proceedings should be conducted, and rulings made.
In principle, tax administrative reviews conduct examinations in writing (i.e., all communications relevant to the examinations are made in writing. Where the applicants request to be heard, or where the legal affairs division considers necessary, opinions may be heard from the applicants, the applied entity and third parties, and information may be gleaned from other relevant organizations and persons.
The review department shall examine fully the factual evidence that led the applied entity to execute the acts under review, the legal basis on which it made its determination, and the legal procedures it followed in the course of execution, as well as the legality and appropriateness of the rights and obligations the applied entity has set.
Within 7 days of accepting the review application, the legal affairs division shall send copies of the application or duplicates of the review records to the applied entity.
The applied entity should, within 10 days of receiving these materials, reply in writing, and provide the evidence, the basis and other materials or information relevant to the determination of the acts under review.
Withdrawal of Applications
Before a ruling is made, the application may be withdrawn if the applicant requests such a withdrawal.
However, the applicant may not re-initiate the application, unless he can base his case on other facts or arguments.
Examination of Rules
Where the applicant requests that relevant rules be examined during the review, in accordance with the rules governing tax administrative reviews, and where the review department has the authority to rectify the rules, it shall make treatment within 30 days, in accordance with prevailing laws.
Where the review department has no power to treat the case, it shall within 7 days turn the case over to the administrative department that does have the power of treatment, in accordance with statutory procedures.
During the treatment period, the examination of the acts under review shall be suspended.
Discovery of Unlawful Grounds
Where the review department discovers, after examining the acts under review, that the grounds on which the acts were executed are unlawful, and where it has the authority to prevent such grounds from being used in future to justify such acts, they shall exercise their authority within 30 days of discovery, in accordance with prevailing laws.
Where the review department has no authority to act, it shall within 7 days turn the case over to the administrative department that does have the authority to act, in accordance with statutory procedures.
During the rectification period, the examination of the acts under review shall be suspended.
The legal affairs division shall examine the legality and appropriateness of the tax administrative act under review, and offer suggestions. Where the head of the review department agrees with its suggestions, the legal affairs division may rule on the case in accordance with the following rules:
- Where the original act was executed based on clear facts, reliable evidence, correct grounds, legal procedures, and appropriate content, the act under review shall be maintained.
- Where the applied entity has failed to perform its legal duties, it shall be to perform those duties.
- Where the salient facts were unclear, where the evidence was insufficient, where the legal basis was applied incorrectly, where the acts did not conform to legal procedures, where applied entity overstepped or abused its power, or where the original act was explicitly inappropriate, the legal affairs division may decide to revoke or amend the act under review, or verify its illegality.
Where the legal affairs division rules to revoke the act under review or to verify its illegality, it may order the applied entity to renew the act for a limited period.
The review department shall, within 60 days of accepting the review application, make a ruling on the case.
Where the case is too complex for the review department to meet the deadline, it may be extended, for no more than 30 days, after approval is granted by the head of the review department.
The applicants and the applied entity shall be notified of the extension.
For difficult cases or cases of major significance, the review department shall collectively discuss the ruling.
Resumption/Revocation of Acts Under Review
Where the review department orders the applied entity to resume the act under review, it may do so in a new case only where the facts of the case or the grounds are different.
Where the review department decides to revoke the act under review because the original act contravened statutory procedures, the applied entity shall not be restricted by the rule described above when resuming the act.
Where the applied entity fails to give a written response, or to provide the relevant evidence, the legal basis or other relevant materials, the acts under review shall be deemed to be unsupported by evidence or to be without legal basis, and shall be revoked.
When applying for an administrative review, the applicant may request administrative compensation.
Where applicants should be compensated in accordance with the Law of Compensation of the State, the review department should make the decision to grant compensation (to be made by the applied entity) to the applicants at the time that it decides to revoke or amend the acts under review, or to verify the illegality of the acts under review.
Where the applicant does not request compensation when applying for the review, but where the review department decides to revoke or amend the acts under review, and where the acts relate to the collection of taxes, interest on late payments, and fines, or to the enforcement measures of property impoundment or sealing up, the review department shall order the applied entity to return the taxes, interest or fines, or to rescind the enforcement measures, or to grant corresponding compensation.
After making its ruling, the review department shall prepare the ruling letter and set its stamp on the letter. Once the letter is delivered, the ruling shall take legal effect.
Response to the Rulings
The applied entity shall abide by the ruling. Where the applied entity fails to abide by the ruling, or delays the implementation of the ruling without any acceptable reason, the review department or a higher tax administration department shall order it to carry out the ruling in a timely manner.
Where applicants do not appeal against the ruling, but do not abide by the ruling, or fail to abide by the final ruling, the following steps shall be taken:
- The acts reviewed shall be upheld, and shall be carried out by the administrative department of the act through enforcement measures. Where necessary, applications may be made to the People's Court to implement enforcement measures.
- Rulings to amend the acts reviewed shall be implemented by the review department in accordance with prevailing laws, or by the People's Court upon request.
Where the review department or its staff, or the tax department under review acts in violation of the Law of Administrative Review or the Rules Governing Tax Administrative Review, legal responsibility shall be pursued in accordance with the relevant provisions of the Law of Administrative Review.
When tariff payers or guarantors disagree with Customs over the determination of the following matters, they should first pay the tariff as assessed by Customs, and then apply to Customs at a higher level for an administrative review in accordance with prevailing rules. If they disagree with the ruling of the review as well, they may by law appeal to the People's Court:
- Who the tariff payers should be.
- What the dutiable prices should be.
- The classification of commodities.
- The origins of the goods.
- Which tariff rates should be applied.
- Which exchange rate conversions should be used.
- Duty repayment.
- The collection of interest on late payments.
- Computation methods.
- Places for tariff payment.
When tariff payers or guarantors object to the following matters, they may apply for an administrative review by law, or appeal to the People's Court by law:
- Decisions to levy anti-dumping tariffs, make retroactive collections, refund tariffs, or levy tariffs on new exporters, that are made in accordance with the Regulations on Anti-Dumping Duty.
- Review rulings to continue levies of anti-dumping tariffs.
- Decisions to levy anti-subsidy tariffs or make retroactive collections.
- Review rulings to continue levies of anti-subsidy tariffs.