According to the ruling, the author sorts out the facts and reasons for the prosecution by the Inland Revenue Department as follows:
1.2018121Xinxiang Intermediate People's Court accepted the bankruptcy case of Henan Lixin Heavy Industry Technology Co., Ltd. and appointed Yanjin County Court to hear it;
2.2065438+On May 5, 2009 15, Yanjin Court appointed Henan Yuhua Public Lawyer Affairs as the administrator;
3. On September 4th, 2020, the administrator auctioned the property of bankrupt enterprises, with a transaction price of 48 million yuan;
On June 4, 2020165438+1October 1 1 day, Yanjin County Taxation Bureau urged the administrator to pay taxes within a time limit in writing;
5. The manager fails to pay taxes on behalf of the bankrupt enterprise, claiming that the property has been distributed after the auction and there is no fund to pay taxes;
6.212165438+1On October 28th, Yanjin County Taxation Bureau filed a civil lawsuit with the Hongqi District Court of Xinxiang City, demanding compensation for tax and overdue fine of 2,393,840.64 yuan.
The items claimed by the tax bureau include value-added tax, urban construction tax, surcharge for education, surcharge for local education, stamp duty and corresponding late payment fees generated from the rental income of Lixin Company after the bankruptcy case was accepted by the court. Urban land use tax, property tax and corresponding late fees.
The court's trial opinion is that the civil law adjusts the personal relationship and property relationship between natural persons, legal persons and unincorporated organizations with equal subjects. This case does not fall within the scope of civil litigation accepted by the people's court and is ruled inadmissible.
Almost every bankruptcy case will have tax claims, and the author wants to discuss the following issues around this case:
First, does the administrator have the obligation to declare and pay taxes on behalf of bankrupt enterprises?
Second, can the tax authorities sue the administrator for civil compensation?
Third, what responsibility may the administrator bear if he does not declare and pay taxes on his behalf?
1. Does the administrator have the obligation to declare and pay taxes on behalf of bankrupt enterprises?
Before the cancellation of bankrupt enterprises, their capacity for civil rights and civil conduct did not disappear. The administrator plays a key role in the enterprise bankruptcy procedure, and the enterprise bankruptcy law gives the administrator great power and responsibility.
According to the above-mentioned laws and regulations, after entering the bankruptcy procedure, the enterprise shall be taken over by the administrator, and the civil rights capacity and civil conduct capacity of the bankrupt enterprise shall be exercised by the administrator.
Article 25 of the Tax Administration Law stipulates that taxpayers must truthfully declare and pay taxes in accordance with the regulations. Bankrupt enterprises, as taxpayers stipulated by law, can only be performed by managers during the period when managers take over the property and affairs of bankrupt enterprises.
2. Can the tax authorities sue the administrator for civil compensation?
Tax legal relationship belongs to administrative legal relationship and is not subject to the adjustment of civil legal relationship. However, in order to ensure the collection of taxes, Article 50 of the Tax Administration Law implants the means of private law protection into the field of public law, stipulating that tax authorities can exercise subrogation and cancellation rights in accordance with the provisions of the contract law, breaking through the legal relationship between tax authorities and taxpayers and exercising rights against third parties.
Then, can we expand the interpretation of Article 50 of the Tax Administration Law? Can the tax authorities recover the tax that cannot be recovered from the taxpayer from the responsible person? For example, in this case, does the tax authority have the right to ask the administrator for compensation?
Let's look at two similar cases.
(1) Civil Ruling of Yongqiao District Court, Suzhou City, Anhui Province (20 15) Su Yongmin-Zi Chu No.05972 (dispute between Lucheng Branch of Wenzhou Local Taxation Bureau and shareholders of Wang Aimin and Wang Xiaoxia over the liability for damages to the interests of creditors of the company).
20 13 Wenzhou Lucheng district court accepted the bankruptcy liquidation case of Wenzhou Guo Qian shoes co., ltd, with Wang Aimin and Wang Xiaoxia as shareholders. Lucheng Branch declared tax claims and was confirmed. In July of 20 13, Lucheng District Court made a ruling, declared the company bankrupt and ended the bankruptcy procedure, and found that the manager could not find out the company's property and conduct liquidation because the shareholders did not provide true and complete financial books. Creditors may require shareholders to bear corresponding civil liabilities according to relevant laws and regulations.
The tax claims declared by Lucheng Branch were not paid off, so they filed a lawsuit in court, demanding that Wang Aimin and Wang Xiaoxia jointly pay off the taxes owed by bankrupt enterprises and the corresponding late fees.
After examination, Yongqiao District Court held that it is not a civil legal relationship for the tax bureau to collect taxes from bankrupt enterprises. Shareholders Wang Aimin and Wang Xiaoxia caused the bankrupt enterprise to fail to pay taxes, which did not constitute a civil debt to the tax bureau. The plaintiff's application does not meet the conditions for civil filing, and the prosecution is ruled to be dismissed.
(2) Wenzhou Longwan District Court (20 15) Civil JudgmentNo. 1047, a dispute between Lucheng Branch of Wenzhou Local Taxation Bureau and shareholders Wang Qinfeng and Wang Xiaoqing about the liability for damages to the interests of creditors of the company.
On July 30th, 20 13, Wenzhou Intermediate People's Court accepted the bankruptcy case of Wenzhou Yu Yan International Trade Co., Ltd. ... Lucheng Branch declared its tax creditor's rights, which was confirmed. Wenzhou Intermediate People's Court ruled on October 23, 2065438+2004/KLOC-0 that the bankrupt enterprise could not be fully liquidated because it did not submit any property and account books to the manager. The tax claims declared by Lucheng Branch have not been paid off.
2065438+On July 2, 2005, Lucheng Sub-branch filed a lawsuit in court, demanding that Wang Qinfeng and Wang Xiaoqing, the shareholders of the company, bear joint and several liability for repayment.
The Longwan District Court held that according to the provisions of the Interpretation of Company Law (II), the shareholders of a limited liability company and the directors and controlling shareholders of a joint stock limited company delayed their performance of their obligations, resulting in the loss of the company's main property, account books and important documents, and it was impossible to carry out liquidation. If the creditor claims to be jointly and severally liable for the debts of the company, the people's court shall support it according to law. Defendants Simomo and Wang Xiaoqing were sentenced to be jointly and severally liable for paying off taxes.
In two identical cases, the verdict was completely opposite. The author agrees with the verdict in the first case for the following reasons:
The subrogation and cancellation rights stipulated in the Tax Administration Law are based on the legal relationship between the tax authorities and taxpayers, and still belong to the tax authorities' right to levy taxes. The relationship between tax authorities and taxpayers is still managed and managed. Subrogation and revocation are only part of the private law system in the public law system. Although they are exercised through private law, they still belong to the public law system.
Except subrogation and revocation, this right cannot be expanded at will. The law does not give the tax authorities the power to collect taxes by other private means, and the tax authorities should still follow the principle that the law is not authorized.
By the same token, in the case of enterprise bankruptcy, if the tax cannot be collected due to the fault of the manager, there is no legal basis for the tax authorities to demand compensation from the manager through civil litigation.
In addition, if the tax authorities are allowed to claim compensation from the administrator through civil litigation. In practice, there are many cases in which the court appoints a liquidation group composed of relevant government departments as the administrator. If the tax cannot be collected due to the manager's reasons, who should the tax authorities sue at this time? Are all government departments listed as defendants?
Furthermore, according to the logic that the tax authorities have the right to claim compensation from the responsible person through civil litigation. Then the tax authorities should also file an incidental civil lawsuit while conducting a criminal trial of each tax evasion crime. The law also stipulates that tax authorities are not allowed to give up or transfer tax claims at will, and it will be dereliction of duty if they do not file an incidental civil lawsuit.
3. What responsibility may the administrator bear if he fails to declare and pay taxes on behalf of the bankrupt enterprise?
administrative responsibility
The administrative penalties stipulated in the Law on the Administration of Tax Collection include fines and late fees, but the administrative penalties are aimed at taxpayers and withholding agents. The law does not give the tax authorities the right to punish those responsible. Similarly, according to the principle of no right, there is no legal basis for tax authorities to impose administrative penalties on managers.
(2) Criminal responsibility
Tax evasion and the crime of tax evasion stipulated in Articles 20 1 and 203 of the Criminal Law can all constitute unit crimes. The punishment principle of unit crime stipulated in Article 3 1 of the Criminal Law is "double penalty system", that is, the unit is fined, and the directly responsible person in charge and other directly responsible personnel are punished.
In the process of enterprise bankruptcy, it is actually the administrator who controls and manages the bankrupt enterprise. At this time, the administrator belongs to the category of directly responsible person in charge and other responsible persons as stipulated in Article 3 1 of the Criminal Law. Although in reality, we haven't seen the case that the manager is investigated for criminal responsibility, theoretically, once the enterprise constitutes a crime of tax evasion during the period when the manager controls the bankrupt enterprise, the relevant responsible personnel of the manager also have the risk of criminal responsibility.
To sum up, the French Open has a long history, and there is always one for you. Managers must be diligent and conscientious when performing their duties, act in strict accordance with the law and avoid touching the legal red line.