Policy provisions on tax recovery period

Policy provisions on tax recovery period

The tax collection period is three or five years, and there are also indefinite taxes. Details are as follows:

First, due to the responsibility of the tax authorities, taxes were underpaid.

According to the first paragraph of Article 52 of the Law on the Administration of Tax Collection in People's Republic of China (PRC): "If a taxpayer or withholding agent fails to pay or underpays the tax due to the responsibility of the tax authorities, the tax authorities may require the taxpayer or withholding agent to pay the tax within three years, but no late fee will be charged."

It can be seen here that if the taxpayer or withholding agent fails to pay or underpays the tax due to the responsibility of the tax authorities, the recovery period is three years. The accountability shall not exceed three years, and no late fee shall be charged during the three-year accountability period.

Under what circumstances can this clause be applied?

According to the interpretation of Article 80 of the Law of People's Republic of China (PRC) on Tax Collection and Management, the responsibility of tax authorities refers to improper application of tax laws and administrative regulations by tax authorities, or illegal law enforcement.

Two, due to calculation errors and other mistakes, less tax.

According to the second paragraph of Article 52 of the Law of People's Republic of China (PRC) on the Administration of Tax Collection: "If a taxpayer or withholding agent fails to pay or underpays the tax due to calculation errors, the tax authorities may recover the tax and late payment fees within three years; If there are special circumstances, the recovery period can be extended to 5 years. "

What are "calculation errors and other errors"? Article 81 of the Law of People's Republic of China (PRC) on the Administration of Tax Collection stipulates: "The calculation errors of taxpayers and withholding agents mentioned in Article 52 of the Law on the Administration of Tax Collection refer to the unintentional and intentional application of calculation formula errors and obvious clerical errors."

What is a "special case"? Article 82 of the Law of People's Republic of China (PRC) Municipality on the Administration of Tax Collection stipulates: "The special circumstances mentioned in Article 52 of the Law on the Administration of Tax Collection mean that taxpayers and withholding agents fail to pay or underpay, fail to deduct or underpay, fail to collect or underpay taxes, and the accumulated amount is more than 654.38 million yuan." In other words, if the accumulated amount exceeds 6,543,800 yuan, the tax authorities can pursue the levy within five years.

It can be seen here that if taxpayers and withholding agents fail to pay or underpay taxes due to subjective and intentional calculation formula errors and obvious clerical errors, and the accumulated tax payable is within 654.38+10,000 yuan, the tax authorities can recover taxes and late fees within 3 years; If the accumulated tax payment exceeds 6,543,800 yuan, the recovery period can be extended to 5 years.

Three, tax evasion, resulting in less tax.

According to the third paragraph of Article 52 of the Law of People's Republic of China (PRC) on the Administration of Tax Collection: "Those who evade taxes, refuse to pay taxes or cheat taxes shall be pursued by the tax authorities, and those who fail to pay or underpay taxes, late fees or cheat taxes shall not be subject to the time limit specified in the preceding paragraph."

In other words, if tax evasion, refusal to pay taxes or tax fraud lead to unpaid or underpaid taxes, the tax authorities can recover the taxes indefinitely.

What is tax evasion?

According to the first paragraph of Article 63 of the Law of People's Republic of China (PRC) on Tax Collection and Administration, "A taxpayer who forges, alters, conceals or destroys account books and vouchers without authorization, or overstates expenditure, omits reporting and underreports income in account books, or refuses to declare or file false tax returns after being notified by the tax authorities, and fails to pay or underpays the tax payable is considered as tax evasion".

Tax evasion involves four kinds of behaviors:

1. Taxpayers forge, alter, conceal or destroy account books and vouchers without authorization;

2. A number of expenditures are listed in the account book;

3. Don't falsely report or underreport income;

4. Refusing to declare or declare false tax payment after being notified by the tax authorities.

What is "notification and refusal to declare"?

According to Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Tax Evasion and Refusal to Pay Taxes: "In any of the following circumstances, it shall be deemed as" notified and declared by the tax authorities "as stipulated in the first paragraph of Article 201 of the Criminal Law:

(1) Taxpayers and withholding agents have gone through tax registration or tax withholding registration according to law;

(2) A taxpayer who does not need to apply for tax registration according to law has been declared by the tax authorities in writing;

(3) A taxpayer or withholding agent who fails to register for withholding according to law is declared by the tax authorities in writing.

As can be seen from item (1) of the Interpretation, taxpayers who have gone through the tax registration according to law are directly identified as "declared by the tax authorities" in the Interpretation, and there is no need to take the written notice of the tax authorities as the premise. This provision is worthy of taxpayers' attention in practice, because if a taxpayer has gone through the tax registration and failed to declare, it may be considered as "failing to declare after being notified by the tax authorities" and there is a risk of being characterized as tax evasion.

Iv. unpaid taxes

There are two kinds of tax arrears, one is the tax arrears that taxpayers have declared but failed to pay, and the other is the tax arrears that taxpayers have failed to pay within the prescribed time limit after the tax authorities have made tax treatment opinions through daily inspection, tax assessment and tax inspection.

According to the Reply of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Issues Concerning the Time Limit for Recovering Tax Arrears (Guo [2005] No.813): "If the taxpayer fails to pay the tax, the tax authorities shall recover it according to law until it is collected and put into storage, and no unit or individual may be exempted. There is no time limit for tax authorities to recover taxes ..... They should recover taxes indefinitely according to law ". It should be noted that according to the provisions of Article 52 of the Law on the Administration of Tax Collection, if the tax is underpaid due to the responsibility of the tax authorities or the calculation errors of taxpayers and withholding agents, the tax authorities may pursue the tax collection for more than three years and less than five years. However, if the taxpayer is ordered to pay the tax within three or five years, but the taxpayer fails to pay the tax, it is a tax arrears and can recover the tax indefinitely.

To sum up, if a taxpayer owes taxes, the tax authorities shall recover them indefinitely according to law.

Five, the taxpayer fails to declare tax payment, and fails to pay or underpays the tax payable.

According to the second paragraph of Article 64 of the Law of People's Republic of China (PRC) on Tax Collection and Administration: "If a taxpayer fails to file a tax return and fails to pay or underpays the tax payable, the tax authorities shall recover the tax and late fees that he has failed to pay or underpays.

According to "Reply of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Unreported Recovery Period" (Guo [2009] No.326): "The situation that taxpayers fail to file tax returns as stipulated in the second paragraph of Article 64 of the Tax Administration Law, resulting in non-payment or underpayment of tax payable, does not belong to tax evasion, tax resistance or tax fraud. According to the spirit stipulated in Article 52 of the Tax Administration Law, the recovery period is generally three years, and can be extended to five years under special circumstances."

"Failure to file tax returns leads to non-payment or underpayment of tax payable" in Article 64 of People's Republic of China (PRC) Tax Collection and Management Law should be distinguished from "refusal to file tax returns after being notified by the tax authorities" in Article 63 of the tax evasion clause. The former is a non-subjective intentional behavior that leads to non-payment or underpayment of taxes, that is, taxpayers maliciously and intentionally fail to declare taxes. The latter is subjective and intentional not paying taxes or paying less taxes.

To sum up, if the taxpayer fails to file a tax return, resulting in non-payment or underpayment of the tax payable, and the accumulated tax amount is less than 6,543,800 yuan, the tax authorities can recover the tax and late fees within 3 years; If the accumulated tax payment exceeds 6,543,800 yuan, the recovery period can be extended to 5 years.

Six, does not belong to the above five cases of underpayment of taxes.

"People's Republic of China (PRC) tax collection and management law" and its detailed rules for implementation only stipulate:

1. The responsibilities, calculation errors and other errors of the tax authorities shall be subject to the provisions of the three-year and five-year recovery periods;

2. Tax evasion, tax refusal and tax fraud are not limited by the retrospective period and can be pursued indefinitely.

The tax law has no specific provisions on underpayment of taxes beyond the above circumstances, for example, misunderstanding of policies leads to underpayment of taxes.

According to the spirit of "Reply of State Taxation Administration of The People's Republic of China on the Time of Undeclared Recovery" (Guo [2009] No.326) and the principle of "it is not expressly stipulated that law enforcement agencies should not act" and "it is beneficial to the administrative counterpart", the author thinks that as long as it cannot be characterized as "tax evasion, tax refusal and tax fraud", the People's Republic of China (PRC) Tax Law should be applied.

To sum up, there are two situations in which a levy is pursued indefinitely: one is tax evasion, tax refusal and tax fraud, and the other is tax arrears. The remaining underpaid or unpaid taxes are subject to the recovery period, that is, if the accumulated unpaid or underpaid taxes are within 654.38+10,000 yuan, the tax authorities can recover the taxes and late fees within 3 years; If the accumulated tax payment exceeds 6,543,800 yuan, the recovery period can be extended to 5 years.

How to determine the start and end time of tax collection period?

1. Starting point of recovery period: According to Article 83 of the Detailed Rules for the Implementation of the Administration of Tax Collection in People's Republic of China (PRC): "The recovery period of taxes and late fees stipulated in Article 52 of the Tax Administration Law shall be calculated from the date when taxpayers and withholding agents pay unpaid or underpaid taxes". The General Office of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) will send a letter to clarify the annual tax declaration period as follows:

Notice of the General Office of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Defining the Time Limit for Tax Declaration in 20021year

No.242, 2020 of the State Administration of Taxation

According to the provisions of Article 109 of the Detailed Rules for the Implementation of the Law on the Administration of Tax Collection in People's Republic of China (PRC), and in combination with the requirements of the Notice of the General Office of the State Council on Some Holiday Arrangements in 20021Year (Guo Ban Power Generation [2020] No.27), all taxes in 20021Year are now declared and paid within 15 days after the end of each quarter.

1 month, March, July, September,165438+1month and 65438+February ended in 15 of that month respectively.

Second, 65438+1 October1day to 3 days, and the tax return period of 65438+1October was extended to 65438+1October 20th.

3. There will be a 7-day holiday from February 1 1 to February 17, and the tax return period in February will be extended to February 23rd.

There will be a three-day holiday from April 3 to 5, and the tax return period in April will be extended to April 20.

There will be a five-day holiday from May 1 day to May 5, and the tax declaration period in May will be extended to May 2 1 day.

Six, June 12 to 14 holiday for 3 days, June tax declaration period extended to June 18.

7. August 15 is a Sunday, and the tax return period in August is extended to August 16.

8. 10 1 7 was postponed, and the tax declaration period of 10 was extended to 10 26.

In case of special circumstances, if it is necessary to adjust the time limit for tax declaration, it shall be reported to State Taxation Administration of The People's Republic of China (Science and Technology Administration Department) for the record.

People's Republic of China (PRC) State Taxation Administration of The People's Republic of China general office

65438+February 9, 2020

supplement

1. Final settlement of enterprise income tax: the deadline for filing is May 3 1.

2. Final settlement of individual income tax comprehensive income: the deadline for filing is June 30th.

For example, if the taxpayer fails to pay the tax during the period of 65438+1October1-65438+1October 3 1 in 2020, February 24th of 20021should be taken as the starting point for calculating the recovery period.

2. Deadline for tax collection: The provisions of the Law of People's Republic of China (PRC) on Tax Collection and Management and its detailed rules for implementation are not clear, which leads to disputes in practice, especially the deadline for tax inspection or inspection cases. At present, there are three views:

First, the delivery time of the tax inspection notice shall prevail. Because this time is earlier, it is most beneficial to the tax authorities. However, when the Notice of Tax Inspection was delivered, the inspection procedure had just started, and it was still impossible to identify the fact that enterprises paid less taxes.

Second, the signing time of tax inspection working papers shall prevail. Article 40 of the Inspection Rules (Guo Shui Fa [2009]157) stipulates: "During the inspection, inspectors shall make working papers on tax inspection, record the facts of the case, collect relevant evidence materials, and sign and date them." At this point, the inspector found that the taxpayer underpaid the tax.

Third, the delivery time of the tax treatment decision shall prevail. This is the last time, so it is in the best interest of taxpayers. At this time, the behavior and amount of taxpayers underpaying taxes have been determined, and there is basically no objection to determining the time limit for recovery at this time.

However, there are two famous cases when determining the tax collection period in the Supreme People's Court:

One is the MUGUR PETRU CIUBANCAN case. The Supreme People's Court believes that Qingyuan Local Taxation Bureau has delivered the Notice of Tax Inspection and the Notice of Access to Account Books to Huawei Company on April 25th, 201,and the retrospective period from the beginning of inspection to the time when MUGUR PETRU CIUBANCAN Company filed its own tax declaration with Fengcheng Tax Branch of Qingyuan Qingcheng Local Taxation Bureau is less than three years. In this case, it is clear that the deadline for the collection period should be the delivery time of the tax inspection notice.

The second is the case of Germany. The Supreme People's Court believes that the First Inspection Bureau of Guangzhou Local Taxation Bureau has been inspecting tax-related activities since 2006. Although after more than three years of investigation, Defa Company found no illegal acts such as tax evasion, tax fraud, tax refusal, etc., but the time to start the investigation procedure according to law should be deducted. Therefore, the First Inspection Bureau of Guangzhou Local Taxation Bureau re-approved the payable tax in September 2009, and made a decision on the handling of the sued tax, which did not violate the provisions of the recovery period. In this case, the Supreme Law explicitly takes the delivery time of tax treatment decision minus the investigation time as the deadline of the collection period, which is essentially equivalent to taking the delivery time of tax inspection notice as the deadline of the collection period.

From the judgment results of two cases, it can be seen that the Supreme People's Court supports taking the delivery time of tax inspection notice as the deadline of the recovery period, which should be a reference standard for the confirmation of the deadline of the recovery period.

Time limit for collecting late fees

The collection period of overdue fine is basically the same as that of tax, which can be divided into indefinite collection, limited collection and no additional collection.

1. No late payment fee shall be added: no late payment fee shall be added if the tax is underpaid due to the responsibility of the tax authorities.

2. Indefinite collection of late fees: one is tax evasion, tax refusal, tax fraud, and the other is tax arrears.

There is a time limit for collecting late fees. The remaining underpaid or unpaid taxes are subject to the recovery period, that is, if the accumulated unpaid or underpaid taxes are within 654.38+10,000 yuan, the tax authorities can recover the taxes and late fees within 3 years; If the accumulated tax payment exceeds 6,543,800 yuan, the recovery period can be extended to 5 years.

4. The tax has been paid, but the late payment fee has not been paid. The goods and tax cabinet thinks we can refer to the tax arrears regulations here. Those who have paid taxes but have not paid late fees are regarded as tax arrears and can be held accountable indefinitely.

201may 5 interpretation-

The collection period of enterprise income tax should be refined

The collection and management department previously determined that the taxpayer's income tax declaration method was approved collection, but the inspection department thought that enterprises should collect overdue taxes through audit. So, how to determine the start date of tax recovery? Can the inspection department revoke the collection decision of the collection management department?

Case: The tax authorities' recovery of taxes triggered the taxpayer's administrative litigation.

The State Taxation Bureau of Area C of City B issued the Notice of Confirming Collection to Company A, clarifying that during the period from July 1 day, 2006 to February 3 1 day, 2007, the enterprise income tax was approved and collected at the taxable income rate of 10%. In 2007, Company A paid more than 802,000 yuan of enterprise income tax according to the approved collection method. The fourth quarter tax payment date of this enterprise is 65438+1October 65438+May 5, 2008, and the annual settlement was completed on May 20, 2008.

201September17 ~ 201April 1 1, the inspection bureau of the state taxation bureau of b conducted a tax inspection on the tax payment operation of company a in 2007, and found that the financial accounts of company a in 2006-2007 were sound. 20 1 1 On May 3, 2007, the Inspection Bureau of the State Taxation Bureau of City B made the Decision on Tax Treatment, and determined that the total income of Company A in 2007 was more than 6236 165000 yuan, of which the income from tax-free investment was 16 165000 yuan. After deducting the total of 6.037 million yuan, the taxable income of the enterprise is 4.065438 million yuan +0.58 million yuan, the taxable income of the enterprise is 6.023 million yuan, the enterprise has paid 802,000 yuan, and Company A paid 5.2265438 million yuan+0.08 million yuan less in 2007. According to the provisions of the first paragraph of Article 52 of the Tax Administration Law and Article 4 of the Provisional Regulations on Enterprise Income Tax, the Inspection Bureau made a decision to recover the enterprise income tax of 52,265,438+10,000 yuan from Company A, and no late payment fee was added.

Company A refused to accept the decision and applied for administrative reconsideration to the State Taxation Bureau of B city ... After the trial, the State Taxation Bureau of B city made the Decision of Tax Administrative Reconsideration and upheld the decision of the Inspection Bureau of State Taxation Bureau of B city ... Company A still refused to accept the decision and filed an administrative lawsuit with the People's Court of Area C of B city ... The Court of Area C held that the tax treatment decision made by the Inspection Bureau of State Taxation of B city had exceeded the payment deadline, so it decided to cancel the specific administrative act of the tax treatment decision made by the Inspection Bureau of State Taxation Bureau of B city ... After hearing the case, the Intermediate People's Court of B City held that the judgment of the People's Court of C District was handled correctly and the original judgment was upheld.

Q: Can the inspection department veto the collection decision? How to determine the start date?

There are two issues in this case that have aroused the discussion of relevant personnel: whether the inspection department can veto the decision of the collection management department to approve the collection; How to determine the starting date of tax underpayment?

1. Whether the inspection department can veto the collection decision approved by the collection management department.

The collection and management department decided to approve the collection of the enterprise, and the inspection department considered that the enterprise met the conditions of audit collection during the tax inspection. There are two views on whether the inspection department can veto the collection decision of the collection management department:

First of all, the inspection department can directly veto the decision of the collection and management department and ask the taxpayer to pay the underpaid tax.

This view holds that, according to the first paragraph of Article 5 of the Tax Administration Law, the State Taxation Bureau of Area C of City B is responsible for the tax collection and management of taxpayers in the administrative area of Area C, and has the right to verify the tax collection method of Company A. However, the Notice of Confirmation of Collection issued by the tax collection and management department to taxpayers is issued before the actual income, cost and expenses of the enterprise, which belongs to the pre-verification of enterprise income tax collection and has the nature of estimation. When the actual production and operation of the enterprise changes, the inspection department will pay taxes according to the actual situation of the enterprise and other evidence materials such as account books, in order to determine the taxable amount of the enterprise afterwards. The legal significance and legal consequences of these two acts are completely different, so there is no conflict in procedure.

Second, the collection management department should first implement the administrative error correction procedure and cancel the previous Notice of Granting Collection. After that, the inspection department may require the taxpayer to pay the underpaid tax according to law.

The reason for this view is that the taxpayer has declared and paid the enterprise income tax in 2007 according to the Notice of Approved Collection issued by the tax authorities, which is in line with the Provisional Regulations on Enterprise Income Tax, the Detailed Rules for the Implementation of the Provisional Regulations on Enterprise Income Tax, the Interim Measures for Approved Collection of Enterprise Income Tax and other laws and regulations, and there is no fault. Therefore, the legal and effective overdue payment request must first clarify the responsibility of the tax authorities, and then put forward after the administrative error correction procedure. Only when the tax collection management department of the tax authorities cancels the notice of approval of tax collection made before by implementing the administrative error correction procedure can the inspection department require taxpayers to pay back the tax according to the provisions of Article 52 of the Tax Administration Law.

2. How to determine the starting date of tax underpayment?

In this case, the State Taxation Bureau of City B believes that according to Article 54 of the Enterprise Income Tax Law, taxpayers should submit the annual enterprise income tax return within 5 months from the end of the year. May 3 1 is the time limit for taxpayers to pay the enterprise income tax of the previous year, during which taxpayers can declare and adjust the enterprise income tax of the previous year by themselves. Therefore, the corporate income tax period of the previous year should be calculated from June of the following year (1).