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中华人民共和国税收征收管理法实施细则(二)

2006-05-17 10:21   我要纠错 | 打印 | 收藏 | | |

  Article 39 If, in the case of a loan between a taxpayer and an affiliated enterprise, the amount of interest paid or received exceeds or is less than the amount that would be agreeable between non-affiliated parties or exceeds or is less than the normal interest rates of similar loan services, the responsible taxation authority may make adjustments based on normal interest rates.

  Article 40 If labour service fees for labour services provided between a taxpayer and an affiliated enterprise are not charged or paid for pursuant to provisions for business transactions between independent enterprises, the responsible taxation authority may make adjustments based on normal fee standards for similar types of labour service activities.

  Article 41 In the case of business transactions, such as the assigning of assets or provision of property rights, between a taxpayer and an affiliated enterprise, if usage fees are not priced, charged or paid for pursuant to provisions for business transactions between independent enterprises, the responsible taxation authority may make adjustments based on an amount that would be agreeable to non- affiliated enterprises.

  Article 42 If a unit or individual engages in contracting for engineering projects or providing labour services without obtaining a business licence, the taxation authority may order it to pay a tax payment security deposit. The said unit or individual shall settle tax payments with the taxation authority within the stipulated period. Should it fail to do so, the tax payment security deposit shall be used to offset the amount of tax payable.

  Article 43 If a unit or individual engages in business operations without obtaining a business licence and the taxation authority confiscates commodities or goods and materials pursuant to the provisions of Article 25 of the Tax Administration Law, the party concerned shall pay its taxes within 15 days of the date of confiscation. In the case of confiscated commodities or goods and materials which are fresh, live, perishable or easily lose their efficacy, the taxation authority may first auction them during their quality guarantee period and then use the proceeds to offset the amount of tax payable.

  Article 44 The “tax payment guarantee” as stated in Article 26 and Article 28 of the Tax Administration Law shall include a tax payment guarantor proposed by the taxpayer and approved by the taxation authority, as well as property owned by the taxpayer which is not connected with a mortgage.

  A tax payment guarantor shall refer to any citizen, legal person or other economic entity within Chinese territory able to provide a tax payment guarantee. Government agencies shall not be permitted to act as a tax payment guarantor.

  Article 45 A tax payment guarantor agreeing to provide a tax payment guarantee for a taxpayer shall complete a tax payment guarantee statement which specifies the target, scope of the guarantee, duration of guarantee period, guarantee obligations and other relevant matters. A guarantee statement shall only be deemed to be valid after the taxpayer, tax payment guarantor and taxation authority have signed it and affixed their seals.

  If using owned property not subject to a mortgage as a tax payment guarantee, a taxpayer shall make a detailed list of the property to be used as a guarantee and specify the value of the property and other relevant matters. A tax payment guarantee property inventory shall only be deemed to be valid after the taxpayer and taxation authority have signed it and affixed their seals.

  Article 46. The confiscation and sealing up of commodities goods and materials or other property by a taxation authority must be executed by two or more taxation personnel and the owner of the said items must be notified. If a citizen, the owner or an adult member of his household shall be notified to be present. If a legal person or economic entity, the legal representative or person in charge shall be notified to be present. If the principal refuses to be present. This shall not affect the carrying out of procedures.

  Article 47. If intending to offset the proceeds of confiscated commodities, goods and materials or other property against payable taxes, the taxation authority shall engage an auction organisation established pursuant to the law to auction the goods or organise a commercial enterprise to buy the goods at market prices. If free trading in the said goods is prohibited by the State, the relevant units shall be engaged to purchase the goods at State listed prices.

  Article 48. The term “liability for compensation” as stated in paragraph three of Article 26 of the Tax Administration Law shall refer to a case where the taxation authority's adoption of inappropriate tax payment guarantee measures causes the legal rights and interests of a taxpayer to sustain real economic losses.

  Article 49. The term “other financial institutions” as stated in Article 26 and Article 27 of the Tax Administration Law shall refer to trust and investment corporations, rural credit cooperatives, urban credit cooperatives and other financial organisations whose establishment was approved by the People's Bank of China.

  Article 50. The term “bank savings” as stated in Article 26 and Article 27 of the Tax Administration Law shall include the savings deposits of individual industrial and commercial undertakings engaging in production and business operations.

  Article 51. If a taxpayer or tax withholding agent engaging in production or business operations fails to pay tax of fulfil tax withholding or collection obligations within the stipulated period or if the tax payment guarantor fails to make a guaranteed tax payment within the stipulated period. The taxation authority shall issue a tax payment call notice imposing a time limit for payment which shall be a maximum of 15 days.

  Article 52. If a taxpayer with outstanding tax payments fails to settle, the amount or provide a tax payment guarantee before attempting to leave Chinese territory, the taxation authority may notify the border control authority to prevent the said party's departure. Detailed measures on exit prevention procedures shall be determined by the State Administration of Taxation in conjunction with the Ministry of Public Security.

  Article 53. The period for commencing and finishing payment of overdue payment fines as provided in paragraph two of Article 20 of the Tax Administration Law shall commence on the day following the end of the tax payment period as prescribed by the law and administrative legislation or as stipulated by taxation authorities pursuant to the law and administrative legislation and shall continue to the day when the taxpayer or tax withholding agent actually settles or fulfils its taxation obligations.

  Article 54. The term “special circumstances” as stated in paragraph two of Article 31 of the Tax Administration Law shall refer to a case where a taxpayer or tax withholding agent fails to pay tax or pays less than the amount payable or fails to withhold or withholds an insufficient amount or fails to collect or collects an insufficient amount due to incorrect calculations or other such errors where the amount involved exceeds 100.000 yuan.

  Article 55. A taxation authority may pursue tax payments over an unlimited period in a case where a taxpayer, tax withholding agent or other parties concerned use tax evasion means to not pay taxes or to pay an insufficient amount or to fraudulently obtain a tax rebate.

  Article 56. The period of time for supplementary payment or pursued payment of taxes as stated in Article 31 of the Tax Administration Law shall be calculated from the due date when the taxpayer or tax withholding agent failed to pay or paid less than the amount payable.

  CHAPTER VI-TAX INVESTIGATIONS

  Article 57. A taxation authority exercising its powers of office provided under the provisions of item (1) of Article 31 of the Tax Administration Law may do so at the business premises of a taxpayer or tax withholding agent. If deemed necessary and subject to approval by the head of a taxation authority at county level or above. The taxation authority may also demand that the taxpayer's or tax withholding agent's account books, accounting documentation, statements and other relevant materials of the previous accounting year be submitted for examination. When doing so, however, the taxation authority must provide the taxpayer or tax withholding agent with a detailed list of the items taken and shall return them within three months.

  Article 58. A taxation authority exercising its powers of office provided under the provisions of item (6) of Article 32 of the Tax Administration Law shall designate responsible personnel and conduct procedures based on the nationally uniform permit to examine bank savings accounts, while being obliged to maintain confidentiality in relation to the party under investigation.

  The format of the permit to examine bank savings accounts shall be determined by the State Administration of Taxation.

  Article 59. On discovering that the content of a taxpayer's tax registration does not conform with reality, a taxation authority may order the matter to be rectified and shall collect taxes pursuant to the actual circumstances.

  Article 60. Taxation authorities and taxation personnel must exercise their tax payment inspection powers in accordance with the provisions of the Tax Administration Law and these Detailed Rules. Taxation personnel must show their tax payment inspection certificates when carrying out such work.

  Taxpayers, tax withholding agents and other parties concerned shall have the right to refuse an inspection if no such certificate is produced.

  The format of the tax payment inspection certificate shall be determined by the State Administration of Taxation.

  CHAPTER VII-LEGAL LIABILITY

  Article 61. If a taxpayer fails to carry out procedures for tax registration, amendment or cancellation of registration on schedule, the taxation authority shall issue the taxpayer with notice of a prescribed period rectification order. A taxpayer failing to comply with the rectification order within the prescribed period shall be penalised in accordance with the provisions of Article 37 of the Tax Administration Law.

  Article 62. If a taxpayer fails to establish an account book pursuant to regulations, the taxation authority shall, within three days of the date of inspection, issue the taxpayer with notice of a prescribed period rectification order. A taxpayer failing to comply with the rectification order within the prescribed period shall be penalised in accordance with the provisions of Article 37 of the Tax Administration Law.

  If a taxpayer violates the provisions of the Tax Administration Law and these Detailed Rules through its unauthorised destruction of account books, accounting documentation or other relevant material before the end of the prescribed period of safekeeping, the taxation authority may impose a fine of between RMB 2000 yuan and RMB 10000 yuan. If a case is serious enough to constitute a crime, it shall be transferred to a judicial organ to pursue criminal liability in accordance with the law.

  Article 63. If a tax registration certificate is not used in accordance with regulations or is lent, altered, destroyed, sold or forged, the matter shall be handled pursuant to the provisions of Article 37 of the Tax Administration Law.

  Article 64. If a taxpayer or tax withholding agent violates the law by providing its bank account, invoices, certificates or other convenience to others, resulting in the non-payment or insufficient payment of taxes or the fraudulent gain of a State export rebate, the taxation authority, in addition to confiscating the illegal proceeds, may also impose a fine equal to one times the amount not paid, insufficiently paid or defrauded.

  Article 65. If a taxpayer or tax withholding agent is guilty of two or more acts as stated in Article 37 or Article 38 of the Tax Administration Law accordingly, the taxation authority may impose separate penalties.

  Article 66. If a tax agent exceeds its terms of reference and violates tax laws and administrative legislation, resulting in a taxpayer's non- payment or insufficient payment of taxes, in addition to the taxpayer paying or making a supplementary payment of the tax payable and overdue payment fines, the tax agent shall also be fined up to RMB 2000 yuan.

  Article 67. If a dispute arises between a taxpayer, tax withholding agent or tax payment guarantor and the taxation authority, the amount of tax payable or to be handed over and the overdue payment fine as determined by the taxation authority in accordance with relevant laws and administrative legislation shall first be paid.

  Article 68. A taxation authority examining and dealing with a tax-related case shall formulate a decision for handling the tax issue and send it to relevant taxpayers, tax withholding agents and other parties concerned, as well as note matters relating to administrative reviews and administrative proceedings.

  Article 69. When imposing fines or confiscating illegal proceeds from a taxpayer, tax withholding agent or other parties concerned, a taxation authority shall issue a receipt. The taxpayer, tax withholding agent or other parties concerned may refuse to comply if no receipt is given.

  Article 70. Taxation personnel who illegally divide confiscated commodities, goods and materials or any other property shall be ordered to return the items and shall receive appropriate administrative penalties. If a case is serious enough to constitute a crime, it shall be transferred to a judicial organ to pursue criminal liability in accordance with the law.

  Article 71. Tax payment violations occurring before the implementation of the Tax Administration Law shall be handled pursuant to the provisions of the laws and administrative legislation in force at the time.

  CHAPTER VIII-SERVICE OF DOCUMENTS

  Article 72. A taxation authority serving a taxation document shall deliver it directly to the principal. If the principal is a citizen, the document shall be signed and accepted directly by the principal. If the principal is not present, the document shall be signed and accepted by an adult relative with whom the principal lives. If the principal is a legal person or other entity, the legal representative of the legal person or the head of the entity or the party responsible for receiving documents shall sign and accept the document. If the principal has an agent, the agent may sign and accept the document.

  Article 73. For a document to be served, there must be an acknowledgement and the principal or other parties approved to accept such documents, as provided in Article 72 of these Detailed Rules, shall note the date of receipt of the document and affix their signature or seal to the acknowledgement.

  Article 74. If the principal or another party approved to accept such documents, as provided in Article 72 of these Detailed Rules, refuses to sign and accept a taxation document, the party serving the notice shall note the reason for refusal and the date on the acknowledgement. The party serving the notice and a witness shall then affix their signature or seal and the said taxation document shall be left at the place of the principal. The document shall then be deemed to have been served.

  Article 75. If it is difficult to directly serve a document, a relevant organ or other unit may be entrusted to serve the document or it may be posted.

  Article 76. When a taxation document is served directly or on commission, the date of service shall be the date noted by the party signing and accepting the document or the date noted by the witness on the service acknowledgement. If delivered by mail, the date of receipt noted on the registered postal article shall be considered to be the date of service and the document shall be deemed to have already been served.

  Article 77. A taxation authority may publicly serve a taxation document, and the document shall be deemed to have been served 30 days from the date of the announcement, when publicly announced in any of the following instances:

  (1) the same document needs to be served to a large number of people;

  (2) the document cannot be served through any of the other methods of service outlined in this Chapter.

  Article 78. The taxation documents for service as referred to in these Detailed Rules shall include:

  (1) notice of tax payments;

  (2) notice of a prescribed period rectification order;

  (3) tax payment call notice;

  (4) notice of tax payments withheld;

  (5) notice of suspension of payment of bank deposits;

  (6) detailed list of commodities, goods and materials and other property which has been confiscated and sealed up;

  (7) decision on the handling of tax issues;

  (8) decision on an administrative review;

  (9) other taxation documents.

  CHAPTER IX-SUPPLEMENTARY PRINCIPLES

  Article 79. The terms “…… (figure) …… and above”, “up to …… (figure) ……” “between …… (figure) …… and …… (figure) ……”, “within …… days” and “on the expiry of ……” as stated in the Tax Administration Law and these Detailed Rules shall all include in the amount the figures listed.

  Article 80. If the last day of a time limit as stipulated in the Tax Administration Law and these Detailed Rules is a Sunday or legal public holiday, the following day shall be deemed to be the last day of the stipulated time limit.

  Article 81. Taxation authorities shall maintain the confidentiality of persons who report acts which violate taxation laws and administrative legislation and shall reward them appropriately in accordance with the importance of their contribution.

  The aforesaid reward provisions shall not apply to taxation personnel or government functionaries employed in such areas as finance and auditing or procuratorial personnel.

  Reward given to persons reporting offences shall be allocated from tax payment fines.

  Article 82. The tax withholding and collection service fees paid in accordance with the provisions of paragraph three of Article 19 of the Tax Administration Law shall be allocated from tax payments withheld or collected and handed over.

  Article 83. Measures on taxation matters to be handled by tax agents commissioned by taxpayers and withholding agents shall be determined by the State Administration of Taxation.

  Article 84. Administration of the levying and collection of agricultural tax, pastoral tax, cultivated land usage tax and deed tax shall be handled with reference to the relevant provisions of the Tax Administration Law. Detailed measures for tax payment levying and collection shall be stipulated elsewhere.

  Article 85. The Ministry of Finance and the State Administration of Taxation shall be responsible for interpreting these Detailed Rules.

  Article 86. These Detailed Rules shall take effect from the date of promulgation.

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