Tax cannot be refunded beyond the statutory tax refund period
Administrative Judgment of Xi’an Railway Transport Intermediate Court
(2018) Shaanxi 71 Xingzhong No. 475
The appellant (plaintiff in the original trial) Xi'an Dapeng Biotechnology Co., Ltd. is located on the 15th floor of the Hi-tech Building, No. 52 Gaoxin Road, Xi'an.
Legal representative Gao Peng, chairman of the board.
The authorized agent is Li Desong, a lawyer at Shaanxi Ling Ansong Law Firm.
The appellee (defendant in the original trial), the Local Taxation Bureau of Gaoling District, Xi'an City, has its domicile at No. 859 Huancheng East Road, Gaoling District, Xi'an City.
Legal representative Li Yin, director.
The entrusted agent is Zhang Yu, a staff member of the bureau.
The authorized agent is Li Na, a lawyer at Shaanxi Haogong Law Firm.
The appellee (defendant in the original trial) Xi'an Local Taxation Bureau, domiciled at No. 83 Xiaozhai West Road, Xi'an City.
Legal representative Xu Linzhang, director.
The authorized agent is Dong Lei, deputy director of the Regulations Department of the bureau.
The authorized agent is Wang Xiaolong, a lawyer at Shaanxi Renhe Wanguo Law Firm.
The appellant Xi’an Dapeng Biotechnology Co., Ltd. (hereinafter referred to as Dapeng Technology Company) was involved in a dispute with the appellee Gaoling District Local Taxation Bureau of Xi’an City (hereinafter referred to as the Gaoling Local Taxation Bureau) and the appellee Xi’an City In the case of other tax administrative actions of the Local Taxation Bureau (hereinafter referred to as the Municipal Local Taxation Bureau), the applicant was dissatisfied with the administrative judgment of Xi'an Railway Transport Court (2018) Shaanxi 7102 Xingchu No. 367 and appealed to this court. This court formed a collegial panel in accordance with the law and heard the case in public. Li Desong, the agent appointed by the appellant Dapeng Technology Company, Zhang Yu and Li Na, the agents appointed by the appellee Gaoling Local Taxation Bureau, Dong Lei and Wang Xiaolong, the agents appointed by the appellee Municipal Local Taxation Bureau, attended the court to participate in the lawsuit. The case has now been concluded.
The court of first instance found after trial that the plaintiff Dapeng Technology Company paid business tax, urban maintenance and construction tax, education surcharge, water conservancy construction fund, stamp duty, land value-added tax and other taxes on April 25, 2011* **Total 5533302.6 yuan. On May 16, 2017, the plaintiff Dapeng Technology Company submitted a tax refund application to the defendant Gaoling Local Taxation Bureau, applying for a tax refund of 4.1885 million yuan. On July 5, 2017, the defendant Gaoling Local Taxation Bureau issued Gaoling Taxation Tong (2017) No. 3468 "Tax Matters Notice", the main content of which is "The tax refund application submitted by your unit does not meet the tax refund conditions, and it has been decided not to grant a tax refund." On July 16, 2017, the plaintiff Dapeng Technology Company once again submitted a tax refund application to the defendant Gaoling Local Taxation Bureau, applying for a full refund of the tax paid of 5,533,026 yuan. On August 1, 2017, the defendant Gaoling Local Taxation Bureau issued "Tax Matters Notice" No. 2017 No. 3642 of Gaoling Taxation Bureau and informed of the right to sue. The main content of the notice is: "1. According to Article 51 of the "Tax Collection and Management Law of the People's Republic of China", the time limit for your unit to submit a 'tax refund application' has exceeded the legal time limit of 'within three years' stipulated in the Tax Collection and Management Law. 2. In accordance with Article 35, Paragraph 6 of the "Law of the People's Republic of China on Tax Collection and Administration", the "Interim Regulations of the People's Republic of China on Business Tax" and its implementation rules, and the "Law of the People's Republic of China on Land and Taxation" The Provisional Regulations on Value-Added Tax and its Implementation Rules regarding the basis for tax calculation, and the basis for the calculation of the amount of overpaid tax requested by your unit are obviously inconsistent with the above tax laws and tax policies. 3. The evidence provided by your unit cannot prove that you have. The price of your unit's real estate transfer transaction is obviously low and there are legitimate reasons. The tax authorities levied taxes on your unit's transfer of real estate in accordance with the law on April 25, 2011. The tax calculation basis for the tax payable complies with the law and relevant tax policies. You. The unit does not have the problem of overpaying taxes. ""After review, it is believed that the reason for your unit's request for a refund of overpaid taxes does not comply with the tax law and relevant tax policies. Your unit's real estate transfer transactions should be reviewed by the competent tax authorities. "There is no overpayment of taxes, and we have decided not to refund the amount of taxes requested by your company." The plaintiff Dapeng Technology Company was dissatisfied with the above two notices and submitted an administrative review application to the Municipal Local Taxation Bureau on October 9, 2017. , requesting to “rescind the decision of not granting a tax refund in the “Tax Matters Notice” No. 3468 (2017) and the “Tax Matters Notice” (2017) No. 3642, requested by Gaishui Shuitong and refund the tax to the applicant in accordance with the law.
"The defendant Municipal Local Taxation Bureau issued the "Tax Administrative Reconsideration Decision" No. ﹝2017﹞001 on December 26, 2017, deciding "1. To uphold the decision not to grant a tax refund made by the Gaoling District Local Taxation Bureau; 2. To reject the application. person’s application for reconsideration. ”
After trial, the court of first instance held that Article 51 of the “Tax Collection and Administration Law of the People’s Republic of China” stipulates that “if a taxpayer pays more than the tax payable, the tax authorities shall upon discovery Immediate refund; if taxpayers find out within three years from the date of settlement and payment of taxes, they can request the tax authorities to refund the overpaid taxes plus bank deposit interest for the same period. The tax authorities shall promptly refund after verification; it involves withdrawal from the national treasury. , shall be returned in accordance with the provisions of laws and administrative regulations on treasury management. "The above-mentioned law stipulates two situations for refunding overpaid taxes. One is that if the tax authorities discover it, it should be refunded immediately; the other is that if the taxpayer discovers it within three years from the date of settlement and payment of taxes, the taxpayer can file a refund with the tax authority. Request for refund. The plaintiff Dapeng Technology Company settled the tax of 5,533,302.6 yuan on April 25, 2011. If it believes that it has overpaid tax, it should submit an application for tax refund to the Gaoling Local Taxation Bureau within three years. The application for tax refund was submitted to Gaoling Local Taxation Bureau as late as May 16 and July 16, 2017, which was far beyond the three-year period and did not meet the legal conditions for applying for tax refund. "Notice" procedures are appropriate and the applicable laws and regulations are correct, and whether the tax paid by the plaintiff on April 25, 2011 was overpaid and whether it should be refunded is within the scope of investigation and discretion of the tax authorities and is not a matter that the people's court can directly decide. Therefore, the plaintiff’s request to cancel the “Notice of Tax Matters” and refund the plaintiff’s overpaid taxes cannot be established and should be dismissed.
The defendant Municipal Local Taxation Bureau received the plaintiff’s reconsideration on October 9, 2017. The application was issued on December 26, 2017, with the "Tax Administrative Reconsideration Decision" No. ﹝2017﹞001. The procedures of review, notification to the respondent, hearing, and review decision were completed, but it exceeded the requirements of the People's Republic of China*. **The statutory period stipulated in Article 31 of the Administrative Reconsideration Act of the People's Republic of China. Although the defendant Municipal Local Taxation Bureau argued in court that it had made an extension decision, it did not submit evidence to prove that it made and served the extension decision within the time limit for producing evidence. , according to the provisions of Article 34 of the Administrative Procedure Law of the People's Republic of China, it is deemed that there is no corresponding evidence. It must also be pointed out to the defendant that administrative review should also follow the basic principle of one-case-one review. The acts should be tried separately. In summary, the administrative reconsideration decision made by the defendant Municipal Local Taxation Bureau is slightly illegal, but it has no actual impact on the plaintiff’s rights. Therefore, it should be confirmed that the procedure is illegal in accordance with the Administrative Litigation of the People’s Republic of China. According to the provisions of Article 69, Article 74, Paragraph 1 (2), and Article 79 of the Law, the judgment: 1. Confirm the decision made by the defendant Xi’an Local Taxation Bureau on December 26, 2017 The procedures of the "Tax Administrative Reconsideration Decision" No. 2017 [2017] are illegal; 2. The lawsuit request of the plaintiff Xi'an Dapeng Biotechnology Co., Ltd. is dismissed. The case acceptance fee is 50 yuan and shall be paid by the plaintiff Xi'an Dapeng Biotechnology Co., Ltd. The company is responsible.
Dapeng Technology Company appealed against the first-instance judgment, saying: 1. The basic facts of this case were that in 2011, when the appellant and the counterparty entered into a real estate transaction, the contract agreed on a comprehensive price of 77.8 million yuan, including: suspension of production. losses, equipment losses, relocation expenses, etc., of which the agreed real estate transaction amount was 19.6 million yuan. However, the Gaoling Local Taxation Bureau required that the tax be calculated based on the real estate appraisal value. After the appellant entrusted the appraisal as required, the Gaoling Local Taxation Bureau finally calculated the tax based on the real estate appraisal value of 3,126 yuan. More than 10,000 yuan was calculated in taxes (including 17,151,963 yuan for land and 14,113,582 yuan for real estate), and a total of 5,533,302,600 yuan was collected from the appellant. On September 29, 2015, the Shaanxi Provincial Higher People’s Court (2015) Shaan Min Yi Zhong Zi No. 00143 Final Judgment adjusted the comprehensive contract price (including production stoppage losses, equipment losses, relocation costs, etc.) from 78.8 million yuan to 33.77 million yuan , calculated based on the ratio of the original contract comprehensive price to the real estate price, the real estate transaction income was only 13.4 million yuan, and the land was about 7.32 million yuan. The cost of acquiring the land was more than 4 million yuan, but more than 5.53 million yuan was paid in value-added tax. The effective judgment must be fulfilled, which should be a "justifiable reason" not to calculate taxes based on the assessed value. Therefore, the appellant requested that taxes be calculated based on actual income and the overcharged tax be refunded.
2. The respondent should refund taxes to the appellant, and the three-year period does not apply. The first-instance judgment applied a legal error. The first-instance judgment also held that the tax refunds provided by the tax authorities in Article 51 of the Tax Collection and Administration Law are divided into two situations: one is discovered by the tax authorities and should be refunded immediately; the other is discovered by the taxpayer within three years after paying the tax. A refund can be requested from the tax authorities. The first-instance judgment held that the appellant fell into the second situation and the three-year time limit should be applied. The appellant believed that the first-instance judgment was wrong in applying the law. Because, the second situation applies to the situation "discovered by the taxpayer within three years after paying the tax", and the basic fact of this case (the undisputed fact) is that the appellant paid the tax in 2011, but the appellant's transaction dispute did not occur until In September 2015, the Shaanxi Provincial Higher People's Court issued an effective judgment. After the appellant's appeal to the Supreme People's Court was completed on June 24, 2016, the actual transaction amount was truly determined and the real estate was delivered. At this time, it had already passed Three years. In other words, the appellant could not have "discovered" within three years of paying the tax because it had not "happened" yet. Therefore, the appellant’s request for a tax refund from the tax authorities was not due to “discovery” within three years but failure to apply, but rather an application for a tax refund immediately after the cause of the tax refund “occurred.” Therefore, the second situation mentioned in the judgment does not apply. If the appellant reports (applies for) the tax refund to the tax authorities three years later, the tax authorities should have "discovered" the situation that warrants a tax refund, and the first scenario should apply. That is, after the tax authorities discover that taxpayers have paid excessive taxes, they should immediately refund them. 3. The first-instance judgment held that "whether taxes are overpaid" and "whether taxes should be refunded" are the scope of investigation and discretion of the tax authorities. They are not matters that the court can directly decide and are inconsistent with legal regulations. According to Article 88 of the Tax Collection and Administration Law: “When a taxpayer, withholding agent, or tax guarantor has a tax dispute with the tax authority, the tax must first be paid or released in accordance with the tax authority’s tax payment decision. and late payment fees or provide corresponding guarantees, and then you can apply for administrative reconsideration in accordance with the law; if you are dissatisfied with the administrative reconsideration decision, you can file a lawsuit in the People's Court in accordance with the law. "Obviously, tax disputes fall within the scope of the court, and this case is also subject to the decision not to grant a tax refund. Tax disputes over whether it is legal and whether the tax should be refunded. According to Article 77 of the "Administrative Litigation Law": "If the administrative penalty is obviously inappropriate, or if other administrative actions involve the determination or determination of the amount, the people's court may make a change in the judgment." Therefore, if the administrative action involves the determination or determination of the amount, If there is an error in the determination, the court can make a ruling directly. The first-instance judgment also did not clarify the basis for the exception that it believed could not be followed. To take a step back, even if the amount of tax payable is not a matter for the court to decide directly, whether the tax is overpaid and whether the tax should be refunded is also the key to reviewing the legality of the respondent’s specific administrative action of not granting a tax refund. The court should determine how to determine the tax calculation. Based on the fact that there is an overpayment of taxes, we can judge the legality of the administrative action of not granting a tax refund and make a ruling. 4. The effective judgment of the court is a legitimate reason for calculating tax based on the actual transaction amount. The tax payable shall be calculated based on the actual transaction amount determined in the effective judgment. According to Article 3 of the "Interim Regulations of the People's Republic of China on Land Value-Added Tax": "Land value-added tax is calculated and levied based on the added value of the taxpayer's transfer of real estate and the tax rate stipulated in Article 7 of these Regulations." Obviously, The original intention of the legislation is to calculate land value-added tax based on the actual transaction proceeds from the transfer of real estate. The appellant paid taxes based on the assessed value, but the contract price was finally adjusted by the court five years later. The appellant could only implement the court's decision. The court's decision should also be a valid reason for not paying taxes based on the assessed value. Obviously, the "" Article 9 of the Interim Regulations on Land Value-Added Tax stipulates that tax is calculated based on the assessed value. According to law, the respondent should calculate tax based on the actual transaction amount and refund the excess tax. The court should review how to determine the basis for tax calculation and whether there is an overpayment of taxes, so as to determine the legality of the administrative action of not granting a tax refund and make a ruling. 5. The first instance found that the reconsideration procedure was illegal, but not revoking it was contrary to law. The first instance found that the appellee's review procedure violated two laws: 1. The review period was exceeded; 2. It violated the principle of "one matter, one discussion". The first-instance judgment held that the procedure was illegal but had no actual impact on the plaintiff's rights, which was obviously wrong. Because the review authority violated the principle of "one matter, one discussion", the appellant could only prosecute one case in administrative prosecution, but had to give up his request for one of the matters in court, which obviously affected the plaintiff's rights. In addition, the review authority conducted a written review of this typical and complex case, resulting in no clear handling of matters that should be reviewed, which is obviously inappropriate.
In summary, the appellant is not satisfied with the first-instance administrative judgment, so the appeal requests: 1. To revoke the (2018) Shaanxi 7102 Xingchu No. 367 Administrative Judgment; 2. To change the judgment in accordance with the law to the appellee to refund 4.1885 million yuan in taxes to the appellant.
The respondent, Gaoling Local Taxation Bureau, argued that: 1. The Gaoling Taxation Tong (2017) No. 3642 "Tax Matters Notice" issued by the respondent had clear facts, correct application basis, and legal procedures. 2. The appellant’s claim that the tax calculation basis has changed due to the court’s judgment that the contract price has been adjusted, and that the tax should be calculated based on the transaction price finally decided by law and the overpaid tax be refunded, has no basis in law. 3. The court of first instance confirmed that the administrative review decision procedure made by the Municipal Local Taxation Bureau was illegal, but it had no actual impact on the rights of Dapeng Technology Company and complied with legal regulations. To sum up, the respondent believes that the court of first instance clearly found the facts and applied the law correctly, and it should be upheld in accordance with the law.
The respondent Municipal Local Taxation Bureau argued that: 1. Dapeng Technology Company’s request for a tax refund exceeded the three-year legal limit, and the facts found in the first instance were clear and the basis was accurate. 2. The tax authorities’ calculation of the tax payable based on the assessed price instead of determining the amount based on the effective court judgment is correct and complies with the provisions of laws and regulations. The appellant’s reason for appeal has no legal basis. 3. Regarding the issue of the first instance finding that the respondent's procedure was slightly illegal. During the court inquiry session during the first-instance trial, Dapeng Technology Company clearly recognized the respondent’s decision to postpone and stated in court that it had received the postponement decision mailed by the respondent. The respondent had already submitted an extension decision to the first-instance court during the pre-trial evidence submission session. Relevant evidence for the decision, taking into account the outcome of the first instance judgment, the respondent did not appeal. In summary, the first-instance judgment clearly established the facts and applied the law correctly. We sincerely request the second-instance court to reject the appellant’s appeal.
The facts found in the second instance are consistent with the facts found in the first instance judgment, and this court confirms them.
This court believes that the focus of the dispute in this case is the Gaoling Taxation Notice (2017) No. 3642 issued by the appellee Gaoling Local Taxation Bureau and the tax reply issued by the appellee Municipal Local Taxation Bureau. Whether the "Tax Administrative Reconsideration Decision" No. ﹝2017﹞001 is legal.
Regarding whether the "Tax Matters Notice" No. 3642 issued by the Gaoling Local Taxation Bureau, the respondent Gaoling Local Taxation Bureau, is legal. The "Notice on Tax Matters" issued by the Gaoling Local Taxation Bureau, the respondent, held that the reason for the request of the appellant Dapeng Technology Company to refund the overpaid taxes was inconsistent with the tax law and relevant tax policies. After review, its real estate transfer transactions were taxable. There is no overpayment of taxes on the payment, and it is decided not to refund the amount of tax refund requested. The first reason why the Gaoling Local Taxation Bureau decided not to grant a tax refund was based on Article 51 of the "Tax Collection and Administration Law of the People's Republic of China" and it believed that the time limit for Dapeng Technology Company's tax refund application had exceeded three years. Legal deadlines. According to Article 51 of the "Tax Collection and Administration Law of the People's Republic of China": "If a taxpayer pays more than the tax payable, the tax authority shall immediately refund it upon discovery; the taxpayer shall settle the tax as of the date of payment. If discovered within three years, the tax authorities may request a refund of the overpaid taxes plus bank deposit interest for the same period. The tax authorities shall promptly refund the tax after timely verification; if it involves withdrawal from the national treasury, the tax authorities shall comply with the provisions of laws and administrative regulations on treasury management. "Refund." The law stipulates two situations for refunding overpaid taxes. One is that if the tax authority discovers it, it should be refunded immediately; the other is that if the taxpayer discovers it within three years from the date of settlement and payment of taxes, it can be refunded to the tax authorities. The tax authorities requested a refund. In this case, the appellant Dapeng Technology Company believed that its company paid too much tax and filed a tax refund application with the appellee Gaoling Local Taxation Bureau. The application period specified in the second situation should apply. In this case, the appellant Dapeng Technology Company paid and settled taxes to the appellee Gaoling Local Taxation Bureau on April 25, 2011. If Dapeng Technology Company believes that it has paid more taxes, according to the above-mentioned legal provisions, it should He applied for a tax refund to the Gaoling Local Taxation Bureau within three years from the date he settled and paid the tax. However, he did not submit an application for a tax refund to the Gaoling Local Taxation Bureau until May 16 and July 16, 2017. Therefore, the Gaoling Local Taxation Bureau The first reason of the Bureau is in compliance with the legal provisions. The court of first instance’s finding that Dapeng Technology Company’s application for tax refund has exceeded the three-year period and does not meet the statutory conditions for applying for tax refund is well-founded in law, and this court recognizes it.
Regarding the appellant Dapeng Technology Company’s belief that within three years of paying taxes, as the actual transaction amount has not yet been determined, it is impossible to “discover” whether it has overpaid taxes because it has not “happened” until June 24, 2016. The actual transaction amount is not truly determined until the appeal to the Supreme People's Court is completed, so the three-year application period does not apply. After three years of reporting (application for) tax refund to the tax authorities, the tax authorities should have "discovered" the situation that warrants a tax refund. The reason for appeal that should be applied in the first situation lacks factual and legal basis, and the Gaoling Local Taxation Bureau, the respondent, does not believe that Dapeng Technology Company has paid more taxes. Therefore, this case does not fall within the scope of the tax authority’s discovery that it has paid more taxes and should immediately The first situation does not apply to this case, and this court will not support the appellant’s reason for appeal. Regarding the second and third reasons why the Gaoling Local Taxation Bureau decided not to grant a tax refund, according to Article 2 of the "Tax Collection and Management Law of the People's Republic of China": "The levy and suspension of tax collection, tax reduction, tax exemption, tax refund, Tax repayment shall be carried out in accordance with the provisions of the law; if the law authorizes the State Council to stipulate it, it shall be carried out in accordance with the provisions of the administrative regulations formulated by the State Council." At present, there are no lawsuits regarding real estate transfer transactions in the tax refund situation stipulated in the laws and regulations on tax collection management. The court decision determined that The actual transaction amount should be recalculated and the tax paid before should be refunded. Whether the tax paid by the appellant was overpaid and whether it should be refunded is within the scope of investigation and discretion of the tax authorities and is not a matter that the people's court can directly decide. Therefore, the second and third reasons of the Gaoling Local Taxation Bureau are also in compliance with the legal provisions. The first-instance court’s determination that the "Taxation Matters Notice" issued by the Gaoling Local Taxation Bureau is procedurally appropriate and the applicable laws and regulations are correct is well-founded in law, and this court also recognized it. .
Regarding whether the "Tax Administrative Reconsideration Decision" No. [2017] 001 issued by the respondent Municipal Local Taxation Bureau is legal. The respondent Municipal Local Taxation Bureau received the plaintiff's reconsideration application on October 9, 2017, and issued the Tax Administrative Reconsideration Decision No. [2017] 001 on December 26, 2017. According to the "People's Republic of China" *Article 31 of the Administrative Reconsideration Law of the People's Republic of China stipulates that the first-instance court held that it made the administrative review decision beyond the statutory time limit. The first-instance court's determination was correct. The Municipal Local Taxation Bureau argued that it had made an extension decision and sent it to Dapeng Technology Company. However, he did not submit evidence to the court of first instance to prove it within the time limit for producing evidence in the first instance. The court of first instance determined that there was no corresponding evidence in accordance with Article 34 of the Administrative Procedure Law of the People's Republic of China and also applied the law. correct. At the same time, the first-instance court held that administrative review should follow the basic principle of one case, one review, and different administrative actions should be heard separately. Based on the above two reasons, the first-instance court found that the administrative review decision procedure made by the Municipal Local Taxation Bureau was slightly illegal, but it did not affect the plaintiff’s rights. There will be no actual impact, so the confirmation procedure is illegal. According to Article 74, paragraph 1, item (2) of the Administrative Procedure Law of the People's Republic of China: "If an administrative act has any of the following circumstances, the people's The court ruled that the violation was confirmed but the administrative action was not revoked: ...(2) The administrative action procedure was slightly illegal but had no actual impact on the plaintiff’s rights.” Therefore, the above determination of the first instance court complied with the legal provisions. This court ruled against the appellant Dapeng Technology Company. The reason for appeal that the first instance found that the reconsideration procedure was illegal but that it was contrary to law to not revoke the case will not be supported.
In summary, the first-instance judgment clearly established the facts and applied the law correctly. The appeal grounds of the appellant Dapeng Technology Company cannot be established and this court will not support it. In accordance with the provisions of Article 89, Paragraph 1, Item (1) of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal is dismissed and the original judgment is upheld.
The second-instance case acceptance fee of 50 yuan shall be borne by the appellant Xi'an Dapeng Biotechnology Co., Ltd.
Co., Ltd.
This judgment is final.
Presiding Judge Hu Yan
Judge Chai Miao
Acting Judge Chen Quanchi
June 26, 2018 Day
Clerk Chen Siyu