Rules on Taxation Administrative Reconsideration
Order of the State Administration of Taxation No. 21
February 10, 2010
The Rules on Taxation Administrative Reconsideration, which were adopted at the second executive meeting of the State Administration of Taxation on December 15, 2009, are hereby promulgated and shall come into force as of April 1, 2010.
Rules on Taxation Administrative Reconsideration
Chapter I General Provisions
Article 1 In order to give a full play of the role of administrative reconsideration in settling taxation administrative disputes, protect legitimate rights and interests of citizens, legal persons and other organizations, and supervise and ensure the lawful performance of official duties by the tax authorities, these Rules are hereby formulated in accordance with the Law of the People's Republic of China on Administrative Reconsideration ("Administrative Reconsideration Law"), the Law of the People's Republic of China on the Administration of Tax Levying and the Implementing Regulations on the Law of the People's Republic of China on Administrative Reconsideration ("Implementing Regulations ") and in the light of the tax collection work.
Article 2 Where citizens, legal persons and other organizations ("Petitioner") believe that any specific administrative act of tax authorities has infringed on their legitimate rights and interests and file a petition for administrative reconsideration, these Rules apply to administrative reconsideration conducted by the taxation administrative reconsideration organs.
Article 3 For the purpose of these Rules, taxation administrative reconsideration organs ("Administrative Reconsideration Organs") mean tax authorities that accept and handle the petitions for administrative reconsideration, conduct investigations on specific administrative acts and make a decision on administrative reconsideration in accordance with the law.
Article 4 Administrative reconsideration shall be conducted according to the principles of legitimacy, fairness, openness, promptness and convenience.
Administrative Reconsideration Organs shall exercise administration according to law, heighten the awareness of responsibility and service, earnestly perform their official duties of administrative reconsideration, rectify errors and ensure law enforcement.
Article 5 Administrative Reconsideration Organs shall not make decisions on administrative reconsideration that may prejudice the petitioner more severely within the scope of its petitions for administrative reconsideration.
Article 6 The petitioner may bring an administrative lawsuit to the people's courts if it challenges decisions on administrative reconsideration.
Article 7 Administrative Reconsideration Organs shall not charge the petitioner on their processing petitions for administrative reconsideration.
Article 8 As the first responsible person for the administrative reconsideration work, the leaders of tax authorities of all levels shall perform official duties and take on the leadership of administrative reconsideration.
Article 9 Administrative Reconsideration Organs shall provide the petitioner and third parties with venues and other necessary conditions for access to case files, conducting questioning, accepting mediation and attending hearing.
Article 10 Tax authorities of all levels shall expand their input in infrastructure of administrative reconsideration work, upgrade the construction of information technology in relation to administrative reconsideration, install equipment and facilities for investigation and evidence collection such as computers, scanners, projectors, faxes and duplicators, and procure vehicles for investigating and handling cases and secure related funds.
Chapter II Taxation Administrative Reconsideration Agencies and Functionaries
Article 11 The agencies responsible for legal affairs within Administrative Reconsideration Organs of all levels ("Administrative Reconsideration Agencies") may handle administrative reconsideration matters in accordance with the law and perform the following official duties:
1. processing the petitions for administrative reconsideration;
2. obtaining evidence from the organizations and persons concerned, and access to files and documents;
3. reviewing the legitimacy and reasonableness of petitions for administrative reconsideration, and drafting decisions on administrative reconsideration;
4. processing or referring petitions for administrative reconsideration specified in Article 15 hereof;
5. putting forward proposals to the authorities concerned, subject to prescribed authority and procedures, for dealing with the respondents' violation of the provisions of the Administrative Reconsideration Law and its Implementing Regulations and these Rules;
6.examining problems identified in the process of administrative reconsideration and offer suggestions for improvement to the authorities or departments concerned, and reporting major problems (if any) to administrative reconsideration organs in a timely manner;
7. guiding and supervising the administrative reconsideration work of the tax authorities at lower level;
8. responding or organizing to respond to administrative litigation;
9. awarding compensation in administrative reconsideration cases;
10. undertaking the statistics, report and filling of administrative reconsideration ,action, and compensation cases and filing the major decisions on administrative reconsideration cases on record; and
11. other matters relevant to the administrative reconsideration work.
Article 12 Administrative Reconsideration Organs of all levels may establish administrative reconsideration councils to examine major or extreme cases and put forward proposals for settlement.
Administrative reconsideration councils may invite persons with relevant expertise outside the administrative reconsideration organs to participate in such examinations.
Article 13 Administrative reconsideration functionaries shall have good character, expertise and business capacity to perform duties of administrative reconsideration and have acquired the qualification stipulated in the Implementing Regulations.
Chapter III Scope of Taxation Administrative Reconsideration
Article 14 Administrative Reconsideration Organs shall accept and process the petitions for administrative reconsideration filed by the petitioners against the following specific administrative acts of tax authorities:
1. tax collection, including confirmation of taxpayers, objects of taxation, scope of tax collection, tax incentive, tax exemption, tax rebate, tax deduction, applicable tax rate, tax base, taxation process, tax payment deadline, taxation location and tax collection methods and other administrative acts, tax collection, imposition of overdue fines, and tax withdrawal, collection and imposition by withholders on behalf of entities and individuals, which is entrusted by tax authorities;
2. Administrative licensing and administrative examination and approval;
3. invoice management, including issuing, recovering and revoking invoices and issuing invoices on behalf of others, etc.;
4. tax preservation and enforcement measures;
5. administrative penalties:
(1) fines;
(2) confiscating properties and illicit gains; and
(3) abolishing export tax rebate rights.
6. failure to perform the following official duties:
(1) issuing a tax registration certificate;
(2) issuing or providing tax payment vouchers or tax administration certificates for business operation outside of the localities;
(3) administrative compensation;
(4) administrative rewards; and
(5) other acts involving failure to perform official duties in accordance with law;
7. certifying qualification;
8. confirming tax payment guarantee in violation of law;
9. specific administrative acts as stated in government information publicized;
10. assessing tax credit rating;
11. notifying entry-exit administration authorities of preventing leaving the country; and
12. other specific administrative acts.
Article 15 Where the petitioner deems that any of the following provisions, which forms the basis for the specific administrative act of the tax authorities, is illegal, it may file a petition for administrative reconsideration as well as for reviewing the said provisions with Administrative Reconsideration Organs at the same time. If it is unware of such provisions when filing a petition for administrative reconsideration, it may file a petition for reviewing such provisions before Administrative Reconsideration Organs make a decision on administrative reconsideration:
1. provisions stipulated by the State Administration of Taxation and other departments of the State Council;
2. provisions stipulated by other tax authorities of all levels;
3. provisions stipulated by the local people's governments of all levels; and
4. provisions stipulated by the departments of the local people's governments of all levels.
The aforesaid provisions set forth in the preceding paragraph shall not include rules and regulations.
Chapter IV Jurisdiction over Taxation Administrative Reconsideration
Article 16 Where it challenges any of the specific administrative acts of state tax authorities of all levels, the petitioner may file a petition for administrative reconsideration with the state tax authority at a higher level.
Article 17 Where it objects to any of the specific administrative acts of local tax authorities of all levels, the petitioner may elect to file a petition for administrative reconsideration with the local tax authority at a higher level or the people's governments at the same level.
Where the people's congresses, the standing committees of the people's congresses and the people's governments of all provinces, autonomous regions and municipalities directly under the Central Government stipulate otherwise provisions for jurisdiction over administration reconsideration of the local tax authorities, such provisions shall prevail.
Article 18 Where it has objections to any of the specific administrative acts of the State Administration of Taxation, the petitioner may file a petition for administrative reconsideration with the State Administration of Taxation. If it appeals against decisions on administrative reconsideration, it may bring an administrative action to a people's court, or file a petition for a ruling with the State Council. The ruling issued by the State Council shall be final and binding.
Article 19 Where it challenges any of the specific administrative acts of the following tax authorities, the petitioner may file a petition for administrative reconsideration in accordance with the following provisions:
1.If it challenges any of the specific administrative acts of the tax bureaus in cities specifically designated in the state plan, the petitioner may file a petition for administrative reconsideration with the provincial-level tax bureaus.
2. If it challenges any of the specific administrative acts of tax offices (branches) or the auditing bureaus of tax bureaus of all levels, the petitioner may file a petition for administrative reconsideration with the tax bureaus which the aforesaid tax offices and bureaus are subordinate to.
3. If it challenges any of the joint specific administrative acts of two or more tax authorities, the petitioner may file a petition for administrative reconsideration with the tax authority at a higher level; if it challenges any of the joint specific administrative act of the tax authorities and other administrations, the petitioner may file a petition for administrative reconsideration with the administration at a higher level.
4. If it challenges any of the specific administrative acts of the tax authorities that have been dissolved prior to dissolution, the petitioner may file a petition for administrative reconsideration with the tax authority at a higher level which their successors are subordinate to.
5. If it challenges the decisions on the fines and additional fines for overdue payment arrived at by the tax authorities, the petitioner my file a petition for administrative reconsideration with the tax authorities imposing such administrative penalties. In case that it has objections to fines and additional fines imposed, it may file a petition for administrative reconsideration with the tax authority at a higher level where the tax authorities imposing administrative penalties are subordinate to.
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Order of the State Administration of Taxation No. 21
February 10, 2010
The Rules on Taxation Administrative Reconsideration, which were adopted at the second executive meeting of the State Administration of Taxation on December 15, 2009, are hereby promulgated and shall come into force as of April 1, 2010.
Rules on Taxation Administrative Reconsideration
Chapter I General Provisions
Article 1 In order to give a full play of the role of administrative reconsideration in settling taxation administrative disputes, protect legitimate rights and interests of citizens, legal persons and other organizations, and supervise and ensure the lawful performance of official duties by the tax authorities, these Rules are hereby formulated in accordance with the Law of the People's Republic of China on Administrative Reconsideration ("Administrative Reconsideration Law"), the Law of the People's Republic of China on the Administration of Tax Levying and the Implementing Regulations on the Law of the People's Republic of China on Administrative Reconsideration ("Implementing Regulations ") and in the light of the tax collection work.
Article 2 Where citizens, legal persons and other organizations ("Petitioner") believe that any specific administrative act of tax authorities has infringed on their legitimate rights and interests and file a petition for administrative reconsideration, these Rules apply to administrative reconsideration conducted by the taxation administrative reconsideration organs.
Article 3 For the purpose of these Rules, taxation administrative reconsideration organs ("Administrative Reconsideration Organs") mean tax authorities that accept and handle the petitions for administrative reconsideration, conduct investigations on specific administrative acts and make a decision on administrative reconsideration in accordance with the law.
Article 4 Administrative reconsideration shall be conducted according to the principles of legitimacy, fairness, openness, promptness and convenience.
Administrative Reconsideration Organs shall exercise administration according to law, heighten the awareness of responsibility and service, earnestly perform their official duties of administrative reconsideration, rectify errors and ensure law enforcement.
Article 5 Administrative Reconsideration Organs shall not make decisions on administrative reconsideration that may prejudice the petitioner more severely within the scope of its petitions for administrative reconsideration.
Article 6 The petitioner may bring an administrative lawsuit to the people's courts if it challenges decisions on administrative reconsideration.
Article 7 Administrative Reconsideration Organs shall not charge the petitioner on their processing petitions for administrative reconsideration.
Article 8 As the first responsible person for the administrative reconsideration work, the leaders of tax authorities of all levels shall perform official duties and take on the leadership of administrative reconsideration.
Article 9 Administrative Reconsideration Organs shall provide the petitioner and third parties with venues and other necessary conditions for access to case files, conducting questioning, accepting mediation and attending hearing.
Article 10 Tax authorities of all levels shall expand their input in infrastructure of administrative reconsideration work, upgrade the construction of information technology in relation to administrative reconsideration, install equipment and facilities for investigation and evidence collection such as computers, scanners, projectors, faxes and duplicators, and procure vehicles for investigating and handling cases and secure related funds.
Chapter II Taxation Administrative Reconsideration Agencies and Functionaries
Article 11 The agencies responsible for legal affairs within Administrative Reconsideration Organs of all levels ("Administrative Reconsideration Agencies") may handle administrative reconsideration matters in accordance with the law and perform the following official duties:
1. processing the petitions for administrative reconsideration;
2. obtaining evidence from the organizations and persons concerned, and access to files and documents;
3. reviewing the legitimacy and reasonableness of petitions for administrative reconsideration, and drafting decisions on administrative reconsideration;
4. processing or referring petitions for administrative reconsideration specified in Article 15 hereof;
5. putting forward proposals to the authorities concerned, subject to prescribed authority and procedures, for dealing with the respondents' violation of the provisions of the Administrative Reconsideration Law and its Implementing Regulations and these Rules;
6.examining problems identified in the process of administrative reconsideration and offer suggestions for improvement to the authorities or departments concerned, and reporting major problems (if any) to administrative reconsideration organs in a timely manner;
7. guiding and supervising the administrative reconsideration work of the tax authorities at lower level;
8. responding or organizing to respond to administrative litigation;
9. awarding compensation in administrative reconsideration cases;
10. undertaking the statistics, report and filling of administrative reconsideration ,action, and compensation cases and filing the major decisions on administrative reconsideration cases on record; and
11. other matters relevant to the administrative reconsideration work.
Article 12 Administrative Reconsideration Organs of all levels may establish administrative reconsideration councils to examine major or extreme cases and put forward proposals for settlement.
Administrative reconsideration councils may invite persons with relevant expertise outside the administrative reconsideration organs to participate in such examinations.
Article 13 Administrative reconsideration functionaries shall have good character, expertise and business capacity to perform duties of administrative reconsideration and have acquired the qualification stipulated in the Implementing Regulations.
Chapter III Scope of Taxation Administrative Reconsideration
Article 14 Administrative Reconsideration Organs shall accept and process the petitions for administrative reconsideration filed by the petitioners against the following specific administrative acts of tax authorities:
1. tax collection, including confirmation of taxpayers, objects of taxation, scope of tax collection, tax incentive, tax exemption, tax rebate, tax deduction, applicable tax rate, tax base, taxation process, tax payment deadline, taxation location and tax collection methods and other administrative acts, tax collection, imposition of overdue fines, and tax withdrawal, collection and imposition by withholders on behalf of entities and individuals, which is entrusted by tax authorities;
2. Administrative licensing and administrative examination and approval;
3. invoice management, including issuing, recovering and revoking invoices and issuing invoices on behalf of others, etc.;
4. tax preservation and enforcement measures;
5. administrative penalties:
(1) fines;
(2) confiscating properties and illicit gains; and
(3) abolishing export tax rebate rights.
6. failure to perform the following official duties:
(1) issuing a tax registration certificate;
(2) issuing or providing tax payment vouchers or tax administration certificates for business operation outside of the localities;
(3) administrative compensation;
(4) administrative rewards; and
(5) other acts involving failure to perform official duties in accordance with law;
7. certifying qualification;
8. confirming tax payment guarantee in violation of law;
9. specific administrative acts as stated in government information publicized;
10. assessing tax credit rating;
11. notifying entry-exit administration authorities of preventing leaving the country; and
12. other specific administrative acts.
Article 15 Where the petitioner deems that any of the following provisions, which forms the basis for the specific administrative act of the tax authorities, is illegal, it may file a petition for administrative reconsideration as well as for reviewing the said provisions with Administrative Reconsideration Organs at the same time. If it is unware of such provisions when filing a petition for administrative reconsideration, it may file a petition for reviewing such provisions before Administrative Reconsideration Organs make a decision on administrative reconsideration:
1. provisions stipulated by the State Administration of Taxation and other departments of the State Council;
2. provisions stipulated by other tax authorities of all levels;
3. provisions stipulated by the local people's governments of all levels; and
4. provisions stipulated by the departments of the local people's governments of all levels.
The aforesaid provisions set forth in the preceding paragraph shall not include rules and regulations.
Chapter IV Jurisdiction over Taxation Administrative Reconsideration
Article 16 Where it challenges any of the specific administrative acts of state tax authorities of all levels, the petitioner may file a petition for administrative reconsideration with the state tax authority at a higher level.
Article 17 Where it objects to any of the specific administrative acts of local tax authorities of all levels, the petitioner may elect to file a petition for administrative reconsideration with the local tax authority at a higher level or the people's governments at the same level.
Where the people's congresses, the standing committees of the people's congresses and the people's governments of all provinces, autonomous regions and municipalities directly under the Central Government stipulate otherwise provisions for jurisdiction over administration reconsideration of the local tax authorities, such provisions shall prevail.
Article 18 Where it has objections to any of the specific administrative acts of the State Administration of Taxation, the petitioner may file a petition for administrative reconsideration with the State Administration of Taxation. If it appeals against decisions on administrative reconsideration, it may bring an administrative action to a people's court, or file a petition for a ruling with the State Council. The ruling issued by the State Council shall be final and binding.
Article 19 Where it challenges any of the specific administrative acts of the following tax authorities, the petitioner may file a petition for administrative reconsideration in accordance with the following provisions:
1.If it challenges any of the specific administrative acts of the tax bureaus in cities specifically designated in the state plan, the petitioner may file a petition for administrative reconsideration with the provincial-level tax bureaus.
2. If it challenges any of the specific administrative acts of tax offices (branches) or the auditing bureaus of tax bureaus of all levels, the petitioner may file a petition for administrative reconsideration with the tax bureaus which the aforesaid tax offices and bureaus are subordinate to.
3. If it challenges any of the joint specific administrative acts of two or more tax authorities, the petitioner may file a petition for administrative reconsideration with the tax authority at a higher level; if it challenges any of the joint specific administrative act of the tax authorities and other administrations, the petitioner may file a petition for administrative reconsideration with the administration at a higher level.
4. If it challenges any of the specific administrative acts of the tax authorities that have been dissolved prior to dissolution, the petitioner may file a petition for administrative reconsideration with the tax authority at a higher level which their successors are subordinate to.
5. If it challenges the decisions on the fines and additional fines for overdue payment arrived at by the tax authorities, the petitioner my file a petition for administrative reconsideration with the tax authorities imposing such administrative penalties. In case that it has objections to fines and additional fines imposed, it may file a petition for administrative reconsideration with the tax authority at a higher level where the tax authorities imposing administrative penalties are subordinate to.
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