The Summary of the conference speech
About structure of national legislation
First of all, please allow me to present a brief introduction about the fundamental state of tax legislation in China. According to statistics of legislative bodies of China, there are total of 4th of the tax laws enacted by the central legislatures (the Congress and the Standing Committee), there are 56 of tax administrative regulations which have been enacted by central government (The State Council), and 50th of tax administrative rules enacted by the ministries and commissions of central government (The State Administration of Taxation or Ministry of Finance of China etc.). On the other hand, there are almost 2318 of non-legislative tax regulatory documents which have been formulated by Central and local administration of taxation.
We could see from these legislative statistics that one outstanding feature in current tax system of China is so called “administrativization of legislative power” on tax matters. That means, in most cases, the Congress transferred their legislative power to administrative organs by way of so called “authorized legislation”. But because the authorized scope of legislative power is not clear and overbroad, this had made the administrative organs in fact become the subject of tax legislation. As a result, in tax law system of China, more than 80% of tax institutional norms were issued by the State Council in the form of regulations or interim regulations. It caused some problems in the interpretation and application of tax law. For example, the tax system is becoming more complicated, and it also easily caused the conflict between laws and regulations.
So I think the key point concerning to the trend of tax legislation in China is to strengthen the congress’ legislative power on tax matters, that means all kinds of tax should be enacted by law, and enacting The Basic Law of Tax in order to coordinate the relationship between the Constitution and the various tax laws.
The next, I would like to report the second issue that is concerned with the local tax legislative power. We could understand from the view of constitutionalism, China is a centralized country, so it's very hard to expect that the local self-government system will be provided in current Constitution and the high autonomous powers will be conferred by Constitution. Although local Congress have power to formulate local regulation in accordance with Constitution, but in fact, the legislative power concerning tax matters has been highly centralized in central legislative organs and Central government, local legislative organs do not have a real sense of independent tax legislative power in China. For this reason, local governments only have administration authority of tax collection and management.
But I think that with China's economic development, local governments will accomplish more and more affairs, and their financial burden is to be heavy increasingly, so the local government should be given a certain degree of autonomy, and it should be confirmed in the Constitution.
The third part is about issue of legislative evaluation on tax law. Since 2005, central and local legislative organs and governments have conducted several times of evaluation of legislative quality against their respectively promulgated laws, administrative regulations and local regulations. In addition, about 65 of laws and regulations have been enacted on the base of the practice on the evaluation of legislative quality.
The current legislative evaluation system of China can be summarized three characteristics: First, the type of legislative evaluation in China is basically the ex-post legislative evaluation, namely, the evaluation object are laws, administrative regulations and rules which were implemented for 3-5 years after promulgation; Second, the legal relationship of law or regulation which was chosen to evaluate is relatively simple; Third, evaluation subject mainly use qualitative analysis method, and rarely using quantitative analysis methods, therefor, there are many of subjective evaluation which were written in the evaluation report instead of objective quantitative indicators.
So I think It is necessary to set up a special evaluation system on tax matters, not limited to ex-post evaluation, but also should pay attention to prior evaluation which include the proceeding of discussions and hearings, interest and cost analysis etc. and also to legislation process which include drafting the tax bill, analysis of legitimacy, rationality, maneuverability and adaptability etc., from this way, it should establish a systematic evaluation system in whole process of tax legislation. In addition, it should set up a negotiation mechanism to fully promote the open consultation between legislators and relevant interest subject, making the legislative proceeding more openly and clearly.
About Quality of national tax legislation
I will introduce you some issues concerning with quality of national tax legislation. The issue of evaluation of tax legislation is a new topic in China, and I could not find some relevant materials that talking about evaluation of tax legislation.
In fact, In China's current tax law system, there are no tax legislative evaluation systems issued both at the central level or local level, meanwhile, tax laws and regulations which have been promulgated and implemented have not been evaluated by legislators and governments in the past few years.
Since it is lack of tax legislative evaluation, it often caused some problems in the process of implementation of tax systems. For example, the provision of higher-level law is oversimplified, and lower-level law (especially the Government department rules and non-legislative rules) is too bloated. But, in accordance with relevant judicial interpretation, it provided that “the judgment only cites relevant laws and legal interpretations, administrative regulations, local regulations and judicial interpretations as a ruling basis”. That means, some administrative tax rules and non-legislative tax rules is just treated as reference in judicial practice in fact, and not as compulsory norm in the application of law. So that it caused the lack of stability when apply to tax law. Other problems are also prominent, such as, (1) there is a conflict between tax laws and regulations. (2) The expression in tax legal norms is not consistent with other department law. (3) The current tax system is lack of legislative predictability, unable response to the change of social economic. For example, the criterion of pre-tax deduction of wages and salaries has been adjusted legislatively for three times in five years.
But on the other hand, there are some general legislative evaluation rules which was enacted by Local legislators and local government, for example, Local congress of GuangZhou province enacted “the Ex-post Evaluation of Rules”, some standards were provided in this rules, such as “Evaluation Subject, Qualification of authorized evaluation, the way of public participation, Evaluation Object, Evaluation matters and criterion, Evaluation method, evaluation report and efficacy”. But these local regulations did not apply to tax evaluation, because that the local government has no tax legislative power.
With my opinion, I think in order to solute the above mentioned problems on tax legislation, It is necessary to set up a special evaluation system on tax matters, not limited to ex-post evaluation, but also should pay attention to the proceeding of drafting and deliberation of the tax bill.
About National tax legislation and international, EU and non-tax legislation
I will introduce you some issues concerning with the relationship between domestic tax law and tax treaty and agreement. By the end of January, 2013, China’s government has signed an international tax agreement with a total of 99 countries. In each international tax treaty, it has included almost the main taxes in the domestic tax system, so that the status of international tax treaty is playing an important role in tax law system.
Since joining the WTO in 2001, China has adjusted some domestic tax rules in accordance with the relevant rules of WTO. However, there is no special provision on how to deal with the relationship between domestic law and international agreement in Constitution. In practice of tax legislation, for example, “The Law of China Concerning the Administration of Tax Collection” has provided that “if the provisions of the relevant tax treaties or agreements concluded between China and foreign countries are in conflict with the provisions of this Law, the relevant matters shall be handled in accordance with the treaties or agreements”. Similar provision can also be found in the “Enterprise income tax law”. So we can see from these provisions that the provisions of international tax treaty or agreement shall apply directly in China, and is superior to the domestic tax law.
However, the existing problem shows that the tax treaty and tax agreement has been signed with foreign country without legislative approval procedures. In fact, it just becomes an administrative agreement in form. In accordance with “Law of China on the Procedure of the Conclusion of Treaties”, the State Council shall conclude treaties and agreements with foreign states, and the Standing Committee shall decide on the ratification and abrogation of treaties and important agreements that concluded with foreign states. In most case in China, a number of international tax treaties and agreements have been signed with foreign states by director of the Ministry of Finance, or of the State Administration of Taxation, and just be reported to the State Council for filing, not be required to submit it to the Standing Committee for examination and decision. So, from this point of view, it can be thought that the legal effect of international tax treaty only stay in the aspect of administrative agreement, and could not take effect to be superior to domestic tax law.
In addition, as the Chinese social economy grows and changes, domestic tax law is also constantly revised and improved. In this implementation process, revised domestic tax law will conflict with international tax treaties and agreements which were signed previously. However, the problem is that it is the lack of a conflict resolution mechanism to coordinate such confliction between new revised domestic tax law and tax treaty which has been signed previously.
Other issues relating to tax legislation
I will introduce you two important issues that we are very concerned about in China, the first one is about the “Principle of tax legalism”. In the current Constitution of China, there is only one provision related to tax matters, provided that “it is the duty of citizens of China to pay taxes in accordance with the law”. But as I know in other counties, for example in Japan and South Korea, it is also provided that “the matters concerned with the creating new tax or modifying the existing tax should be followed by law”, this is the principle that we called the “Principle of tax legalism”.
But this important principle was not provided in Chinese Constitution, in accordance with “The law of Legislation”, it is provided that “basic economic system and basic systems of finance, taxation, customs, banking and foreign trade” shall only be governed by law. Meanwhile, it also provide that “if laws have not been enacted on the tax affairs in time, the Congress or its Standing Committee has the power to make a decision to authorize the State Council, according to actual needs, to formulate administrative regulations first on part of those tax affairs. But the purpose and scope of the authorization shall be clearly defined, and the authorization organ shall exercise the power strictly in compliance with the authorized purpose and scope, it may not impart the authorized power to any other organs”. But in the existing laws，it did not make it clearly on the scope of authorized legislation, and it was often transferred their authorized legislation power from Centre government to the State Administration of Taxation, and to local government. Here, I really want to know if there is a good experience to solve this problem in European countries.
The second issue is concerning with the interpretation of tax laws. According to the Constitution, the power of legal interpretation belongs to Congress. But in fact, the State Council, Ministry of Finance, State Administration of Taxation has also the power of interpretation. The power of administrative interpretation is too large, as a result, discretion in administration is too large, this may cause the implementation of tax law depend on administrative power too much.