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抵税财物拍卖、变卖试行办法 Auction and Sale of Property to Offset Tax Trial Procedures

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财税[2005]35号

(Promulgated by the State Administration of Taxation on 24 May 2005 and effective as of 1 July 2005.)

颁布日期:20050328  实施日期:20050701  颁布单位:财政部、 国家税务总局

  PART ONE GENERAL PROVISIONS

  Article 1 These Procedures are formulated in accordance with the provisions of the PRC, Administration of the Levy and Collection of Taxes Law and its Implementing Rules as well as the relevant laws and regulations in order to regulate the auction and sale of property to offset tax in tax enforcement, ensure tax revenue of the State and protect the lawful rights and interests of taxpayers.

  Article 2 These Procedures shall apply to the auction and sale of tax-offsetting property, and the use of the proceeds therefrom to offset tax payment and overdue penalty by the tax authority.

  The term “auction” shall refer to the purchase and sale method whereby the tax authority entrusts an auction house according to law to transfer a specific property to the highest bidder by means of public bidding.

  The term “sell off” shall refer to the purchase and sale method whereby the tax authority entrusts a commercial enterprise to sell the tax-offsetting property, or orders the taxpayer to dispose of the property within a time limit, or the authority disposes of the tax-offsetting property at the going rate.

  The term “tax-offsetting property” shall refer to commodities, goods, other property or right to property that are withheld or seized by the tax authority in tax enforcement according to law, or that are subject to tax enforcement according to provisions and encumbered by tax payment security interests.

  The term “persons subject to enforcement” shall refer to the parties subject to tax administration such as taxpayer, withholding agent and providers of tax payment security that engage in production or business operations.

  Article 3 Auction or sale of tax-offsetting property shall be conducted according to law and follow the principles of openness, fairness, equity and efficiency.

  Article 4 In any of the following circumstances, the tax authority shall auction or sell off tax-offsetting properties according to law:

  (1) failure to pay tax within the time limit after tax-related preservation measures have been adopted;

  (2) failure to pay the secured tax amount within a time limit after tax payment guarantee is in place;

  (3) failure to perform according to the taxation handling decision within a time limit as stipulated;

  (4) failure to perform according to the review decision within a time limit as stipulated;

  (5) failure to perform according to the taxation administrative penalty decision within the time limit as stipulated; or

  (6) other circumstances of failure to pay tax within the time limit as ordered.

  When enforcement is carried out in the circumstances set forth in Items (3) to (6) in the preceding paragraph, the tax authority shall seize or seal up the property before (or at the time of) auction or sale, and handle the procedures for seizure or sealing.

  Article 5 The tax authority shall determine the sequence of auction and sale of tax-offsetting properties according to the principle of priority to auction:

  (1) entrust an auction house established according to law to conduct auction;

  (2) commission a local commercial enterprise to sell the tax-offsetting property where entrustment of auction is not feasible or inappropriate, or order the person subject to enforcement to dispose of the tax-offsetting property within a time limit; and

  (3) dispose of the tax-offsetting property at the going rate where it is not feasible to entrust a commercial enterprise to sell such property and the person subject to enforcement is unable to dispose of such property.

  Commodities, goods and other property that are prohibited from free trading by the State shall be handed over for purchase by the relevant authority according to the price stipulated by the State.

  Article 6 Auction and sale of tax-offsetting property by tax authorities shall be carried out according to the following procedures:

  (1) Formulate a written decision on the auction (sale) of tax-offsetting property, which shall be delivered to the person subject to enforcement upon approval of the director of the taxation bureau (branch) at county level or higher.

  Articles or property rights that, according to stipulated by laws and regulations, may only be transferred after examination and approval shall undergo examination and approval procedures according to law before they are auctioned or sold off.

  (2) Verify commodities, goods and other property that need to be auctioned or sold off. Before an auction or sale, examine the special receipt for seized commodities, goods and other property and the list of the commodities, goods and other property sealed up; verify the right of the person subject to enforcement in the tax-offsetting property; and make an inventory of the commodities, goods or other property that need to be auctioned or sold off and verify if it is consistent with the receipt or list.

  (3) According to the sequence and procedure stipulated herein, entrust an auction or sale, fill in a list of property for auction (sale), conclude an auction entrustment contract with the auction house and a sale entrustment contract with the entrusted commercial enterprise, issue a taxation notice to the person subject to enforcement, and settle the proceeds according to provisions.

  (4) Use the proceeds from the auction and sale to pay the expenses incurred in the process of, seizure, sealing, safekeeping, auction and sale that shall be borne by the person subject to enforcement according to law.

  (5) After paying the relevant expenses, the proceeds from the auction and selling off shall be offset against any unpaid tax and overdue penalty, and fines according to provisions.

  (6) After paying the expenses for seizure, sealing, safekeeping, auction and sale and offsetting the tax and overdue penalty, the remaining portion of the proceeds from the auction and sale shall be returned to the person subject to enforcement within three working days.

  (7) The tax authority shall notify the person subject to enforcement to include all the revenue from the auction and sale in its sales revenue for the relevant period, and file and pay various payable taxes for the same period.

  Where the proceeds from the auction and sale are inadequate to offset tax and overdue penalty, the tax authority shall continue to seek tax payment.

  Article 7 Auction and sale of tax-offsetting property shall be organized and conducted by the taxation bureau (branch) at county level or higher. When selling off commodities and goods that are live, perishable or apt to lose efficacy, tax authorities below county level may organize and conduct the sale with the approval of the director of the taxation bureau (branch) at county level or higher.

  Article 8 When a tax-offsetting property is being auctioned or sold off, the person subject to enforcement shall be notified to be present at the site. However, failure of the person subject to enforcement to attend shall not affect the enforcement.

  Article 9 The tax authorities and their working staff may not take part in the bidding or purchase of the commodities, goods or other property that are auctioned or sold off, or entrust others to do so on their behalf.

  PART TWO AUCTION

  Article 10 An auction shall be conducted by an auction house designated by the people‘s government of the province, autonomous region, municipality directly under the central government and municipalities divided into several districts where the property to be auctioned is located.

  Article 11 Except where the tax-offsetting property has a market price or its price can be determined by the conventional method, the tax authority shall entrust an evaluation and appraisal institution established according to law and with corresponding qualifications to appraise the quality and evaluate the price of the property, and notify the person subject to enforcement of the appraisal and evaluation result.

  A reserved price shall be set for tax-offsetting properties to be auctioned. Such price shall be determined by the tax authority and the person subject to enforcement through mutual consultation. Where consultation fails, the tax authority shall determine the reserved price based on market price, factory price or evaluation price.

  Article 12 Before cultural relics are commissioned for auction, they shall be subject to appraisal and permission of the administrative department in charge of cultural relics.

  Article 13 The person subject to enforcement shall explain to the tax authority any defect in its commodities, goods and other property. The tax authority shall explain to the auction house the source of the article for auction and any defect to its knowledge.

  Article 14 After accepting entrustment, an auction house may not entrust other auction houses to conduct the auction without permission of the tax authority.

  Article 15 Tax authorities shall entrust an auction house to conduct the auction within 10 days of making a decision to auction.

  Article 16 Tax authorities shall provide the following materials to the auction house:

  (1) the official proof document and authorized letter of attorney for entrusted auction of the tax authority;

  (2) written decision on the auction (sale) of tax-offsetting property;

  (3) list of property for auction (sale);

  (4) tax-offsetting property quality appraisal and price evaluation results; and

  (5) other materials related to the auction activity.

  Article 17 The tax authority shall conclude a written contract for auction entrustment with the auction house. The said contract shall set forth the following:

  (1) the names, domiciles of the tax authority and the auction house, and the names of the legal representatives;

  (2) the name, specification, quantity, quality, place of storage or location, degree of use and service life of the subject of auction;

  (3) time and venue of auction, time and method of delivery or transfer of the subject of auction, form of public announcement of auction, and settlement of expenses;

  (4) method of settlement and term of payment of the auction price;

  (5) commission rate, and method and term of payment of commission fees;

  (6) liability for breach of contract; and

  (7) other matters agreed upon by both parties.

  Article 18 Where the first auction has failed, the tax authority may, upon consultation with and consent by the person subject to enforcement, sell off the relevant tax-offsetting property. Where the person subject to enforcement does not agree to a sale, a second auction shall be conducted. A second auction shall be conducted on immovable property and cultural relics.

  Where the second auction still fails, the tax authority shall sell off the tax-offsetting property to offset tax payment, overdue penalty or fines.

  Where tax-offsetting property is put to auction again after an auction has failed, the reserved price shall not be lower than two-thirds of the reserved price in the previous auction.

  Article 19 The procedure for auction entrustment may be handled by tax authorities independently or by the tax authority at higher level on its behalf.

  PART THREE SALE

  Article 20 The following tax-offsetting property, which may not be entrusted for auction or are unsuitable for auction, may be consigned to a local commercial enterprise for sale, or the tax authority may order the person subject to enforcement to dispose of the property by sale within a time limit:

  (1) commodities and goods that are live, perishable or apt to lose efficacy;

  (2) tax-offsetting property that fail to be auctioned off in the first or second auction; and

  (3) tax-offsetting property that are not accepted by auction houses for auction.

  Article 21 The price of tax-offsetting property for sale shall be determined with reference to the market price and factory price of commodities of the same kind and abide by the principles of fairness, reasonableness and lawfulness. The tax authority shall consult with the person subject to enforcement on whether an evaluation institution shall be appointed to conduct price evaluation. Where the person subject to enforcement deems it necessary, the tax authority shall entrust an evaluation institution to conduct an evaluation and determine the sales price according to the evaluation price.

  In regard to commodities, goods or other property with government fixed prices, the government department in charge of pricing shall determine the price according to its pricing authority and scope. In regard to commodities, goods or other property that are subject to government guided prices, the price shall be determined on the basis of the base price and its floating range in accordance with the pricing authority and scope.

  The sales price of tax-offsetting property that fail to be auctioned off shall not be lower than two-thirds of the reserved price set in the last auction.

  Article 22 Where the sale is entrusted to a commercial enterprise, the entrusted commercial enterprise shall be subject to confirmation by the tax authority at county level or higher, and a sale entrustment contract shall be concluded. The sales price shall be agreed according to the price verification method stipulated in Article 21 hereof. The sale entrustment contract shall set forth the following:

  (1) the names, domiciles of the tax authority and the commercial enterprise and the names of the legal representatives;

  (2) the names, specification, quantity, quality, place of storage or location, degree of use and service life of commodities, goods or other property for sale;

  (3) the time and venue of the sale of commodities, goods or other property for sale and settlement of expenses;

  (4) method of settlement and term of payment of the sales price;

  (5) liability for breach of contract; and

  (6) other matters agreed upon by both parties.

  Article 23 Where the tax-offsetting property cannot be sold within 15 days after being entrusted to a commercial enterprise for sale, the tax authority shall appraise and fix the sales price for a second time and the commercial enterprise shall continue to sell the property. The price set at the second time shall not be lower than two-thirds of the price set at the first time.

  Article 24 Where the tax-offsetting property can neither be entrusted to commercial enterprises for sale nor disposed of by the person subject to enforcement, the tax authority shall dispose of such property at the going rate.

  In any of the following circumstances, it shall be deemed that the tax-offsetting property is unable to be entrusted for sale by commercial enterprises:

  (1) The tax authority has contacted and consulted with two or more commercial enterprises, but fails to reach an agreement on entrustment of sale;

  (2) The tax authority has solicited in the media for consignment sale entity but there is no response from any entity or individual within 10 days of the issue of the public announcement, or, although there has been response, no agreement on entrustment of sale can be reached with the respondent.

  (3) The commercial enterprise with which a sale entrustment agreement has been concluded fails to sell off the commodities, goods or other property entrusted for sale by the tax authority within 15 days after fixing the sales price for the second time.

  (4) The inability of the person subject to enforcement to dispose of the property, including refusal or failure within the stipulated time limit to dispose of the property.

  Article 25 When disposing of the tax-offsetting property at the going rate, the tax authority shall follow the principles specified in Article 21 hereof and determine the price at not lower than two-thirds of the price fixed using the two selling off methods.

  Before implementing a sale, the tax authority shall make a public announcement inside the tax service premises, on its official website or in the local media, stating such items as the name, specification, quantity, quality, degree of use or service life, sales price, and date of sale. The sale shall be carried out 10 days after the publication of the public announcement.

  Where a sale is not realized within 10 days following its implementation, the tax authority may reset the price and issue a public announcement of sale and organize the sale again. The reset price shall not be lower than two-thirds of the price set at the first time.

  Where a sale is still not realized following pricing for a second time, the tax authority may sell off the property at a price acceptable to the market.

  PART FOUR REALIZATION OF TAX PAYMENT AND PAYMENT OF EXPENSES

  Article 26 When proceeds from auction and sale are used to offset unpaid tax and overdue penalty and to pay relevant expenses, the following order of priority shall apply:

  (1) Expenses for auction and sale. The person subject to enforcement shall bear the expenses that incur in the auction and sale process, including the expenses that incur in the seizure and sealing activities and auction or sale activities that are to be borne by the person subject to enforcement according to law. Specifically, these include: safekeeping fees, storage fees, freight and miscellaneous fees, evaluation fees, appraisal fees, expenses for public announcement of auction, and service charges paid to the enterprise handling the sale and other expenses to be borne by the person subject to enforcement according to law.

  Where the buyer of the auctioned articles fails to accept the auctioned articles as agreed, the buyer shall pay the safekeeping fees incurred from the due date of receipt of the auctioned goods.

  (2) Unpaid taxes and overdue penalty.

  (3) Fines. In the following circumstances, the proceeds from auction and sale may be used to offset fines:

  1. where the person subject to enforcement takes an initiative to use the proceeds from auction or sale to offset fines;

  2. where any indivisible commodities, goods or other property with a value exceeding the amount of tax payable are seized, sealed up or auctioned as a whole, and the proceeds from the auction are used to offset tax and overdue penalty, the fines shall be offset altogether; and

  3. where the person subject to enforcement that engages in production and business operation does not apply for administrative review of the penalty decision of the tax authority, institutes an action in the people‘s court or performs the decision, the tax authority that issued the penalty decision may carry out enforcement to offset the fines.

  Article 27 After an auction or sale is realized, the tax authority shall handle the procedure to transfer the tax payment, overdue penalty or fines to the State treasury within three working days of settlement and collection of the proceeds.

  Article 28 Where there is a surplus after the proceeds from auction or sale are used to offset tax, overdue penalty or fines, the tax authority shall return the surplus to the person subject to enforcement within three working days of the date of handling the procedures for transferring the relevant payments to the State treasury and notify the person subject to enforcement to include all proceeds from auction or sale in its sales revenue for the relevant period, and file and pay the relevant tax for the period.

  Article 29 After an auction or sale has concluded, the tax authority shall prepare a notice of auction and sale results and a list of the commodities, goods and property that are seized or sealed up, both in duplicate. One copy shall be kept by the tax authority and the other copy shall be given to the person subject to enforcement.

  Article 30 Where the person subject to enforcement settles all outstanding tax and overdue penalty before an auction or sale is held, the tax authority shall terminate the auction or sale activities and return the commodities, goods or other property to the person subject to enforcement. The person subject to enforcement shall bear all expenses already incurred in the process of seizure, sealing, safekeeping, auction or sale.

  Where the person subject to enforcement refuses to pay the aforementioned relevant expenses, the auction or sale shall continue. After the expenses for seizure, sealing, safekeeping, auction or sale are deducted from the proceeds from auction or sale, the tax authority shall return any surplus to the person subject to enforcement within three working days.

  Article 31 Where a tax-offsetting property is verified and appraised as unable to be auctioned or sold off or unsuitable for auction or sale, the tax authority shall terminate the auction or sale process and return the tax-offsetting property to the person subject to enforcement.

  Where a tax-offsetting property has undergone auction and sale procedure but fails to be successfully auctioned or sold off to offset tax, the tax authority shall return the tax-offsetting property to the person subject to enforcement.

  Where it is unable or impossible to return the tax-offsetting property to the person subject to enforcement, the tax authority shall, upon verification by a specialized appraisal institution or notarization by a professional notary public, discard the tax-offsetting property.

  The tax authority shall adopt other measures to seek payment of any tax, overdue penalty and amounts payable by the person subject to enforcement.

  PART FIVE LEGAL LIABILITY

  Article 32 In the auction and sale processes, it is strictly forbidden to give out illegal fees to or demand illegal fees from the person subject to enforcement. Where a tax official gives out illegal fees to or obtain illegal fees from the person subject to enforcement in the auction and sale processes, administrative penalty shall be imposed according to law. The tax authority and its working staff that take part in the bidding for or purchase of commodities, goods and other property for auction and sale, or entrust another person to do so on its/his behalf shall be subject to administrative penalty according to law.

  Article 33 Where a tax officer auctions or sells off tax-offsetting property in violation of relevant laws or replace an auction with a sale without authorization, and the tax-offsetting property is disposed of at the going rate by the tax authority instead of entrusting a commercial enterprise with the sale or ordering the person subject to enforcement to dispose of the property during the sale process without authorization, administrative penalty shall be imposed according to law. Where the person subject to enforcement suffers a loss, the tax authority that approves the auction or sale shall compensate the person subject to enforcement for any direct loss.

  The tax authority may recover part or all of the direct loss from the directly responsible person. Administrative penalty shall be imposed according to law on the responsible person with intentional or gross negligence.

  Article 34 Where losses are caused to the commodities, goods and other property seized or sealed up due to violation of laws by the tax authority, the tax authority causing the loss shall be liable for compensating direct losses, and part or all of the direct losses may be recovered from the directly responsible person.

  Article 35 Where the auction house or commercial enterprise entrusted by a tax authority conducts an auction or sale in violation of the stipulations in the auction or sale contract, liability for breach of contract shall be pursued according to the stipulations in the contact. Where there is no stipulation in the contract, liability for breach of contract shall be pursued according to law. Where its act is illegal, legal liability shall be pursued according to law.

  Article 36 Where the person subject to enforcement conceals the fact that the tax-offsetting property is encumbered by security interests before it is seized or sealed up, or that there are defects in or quality issues with the tax-offsetting property, the person subject to enforcement shall bear all expenses that incur in the seizure, sealing, auction and sale activities, and shall assume legal liability according to law.

  PART SIX SUPPLEMENTARY PROVISIONS

  Article 37 The provisions hereof shall apply to situations where the tax authority seeks payment of the State‘s export tax rebates fraudulently obtained by taxpayers engaging in production and business operations.

  Article 38 The documents for auction and sale under tax enforcement shall be uniformly formulated by the State Administration of Taxation.

  Article 39 These Procedures shall be effective as of 1 July 2005.

  ATTACHMENTS:

  (1) Decision on Auction or Sale of Tax-Offsetting Property

  (2) Notice of Auction or Sale Result

  (3) List of Commodities, Goods or Other Property for Auction or Sale

  (4) Notice of Returned Commodities, Goods or Other Property

  (5) List of Returned Commodities, Goods or Other Property

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