Rules for Tax Administrative Reconsideration 1

Chapter 1 General Provisions

article 1 For the purpose of further giving play to the role of administrative reconsideration in respect of settlement of disputes concerning tax administration, protecting the legitimate rights and interests of citizens, legal persons and other institutions, and regulating and guaranteeing the performance of functions by tax agencies, the Rules herein has been formulated in accordance with the Administrative Reconsideration Law of the People’s Republic of China (hereinafter referred to as the Administrative Reconsideration Law), the Law of the People’s Republic of China on Administration of Tax Collection and the Detailed Rules for the Implementation of the Administrative Reconsideration Law of the People’s Republic of China (hereinafter referred to as the Detailed Rules for the Implementation of the Administrative Reconsideration Law) by combining reality of tax works.

article 2 The Rules herein shall be applied to the administrative reconsideration issues handled by the tax administrative reconsideration agency when any citizen, legal person or other institution (hereinafter referred to as the applicant) holds that any specific administrative action of the taxation agency infringe upon it/his legitimate rights and interests and applies for administrative reconsideration with the taxation agency.

article 3 The tax administrative reconsideration agency herein (hereinafter referred to as the administrative reconsideration agency) refers to the tax agency responsible for accepting the applications for administrative reconsideration, investigating specific administrative actions and making administrative reconsideration decisions.

article 4 Administrative reconsiderations shall be complied with the principles of being legitimate, fair, open, timely and convenient for citizens.

The administrative reconsideration agency shall bear the concept of administration by law, enhance its sense of responsibility and service, diligently perform its functions of administrative reconsideration and correct errors so as to ensure proper implementation of laws.

article 5 The administrative reconsideration agency may not make any administrative reconsideration decision worse to the applicant within the scope of administrative reconsideration request by the applicant.

article 6 An applicant who refuses to accept the administrative reconsideration decision may file administrative proceedings with the People’s court.

article 7 The administrative reconsideration agency that accepts an application for administrative reconsideration shall not collect any fee from the applicant.

article 8 The administrative heads of taxation agencies at all levels shall take the primary responsibility for administrative reconsideration works and shall diligently perform their duties and functions and enhance organization and leadership of the said works.

article 9 The administrative reconsideration agency shall provide specific places and other necessary conditions for consulting of case documents by applicants and a third party, inquiry, mediation and hearings.

article 10 Taxation agencies at all levels shall increase inputs in infrastructure for administrative reconsideration, promote application of information technologies in administrative reconsideration works, provide equipment necessary for investigation and evidence collection including cameras, recorders and video cameras and for case handling including computers, scanners, projectors, facsimile apparatuses and duplicating machines, and ensure supply of transportation vehicles for case handling and corresponding expenditure.

Chapter 2 Tax Administrative Reconsideration Organ and Its Staff

article 11 The organs under administrative reconsideration agencies at all levels responsible for law works (hereinafter referred to as the administrative reconsideration organs) shall handle administrative reconsideration issues according to law and perform the following functions and duties:

(1) Accepting applications for administrative reconsideration;

(2) Making investigations and collecting evidences from the relevant organizations and persons and referring to relevant documents and materials;

(3) Inspecting the legality and appropriateness of any of specific administrative actions being applied for administrative reconsideration and drafting an administrative reconsideration decision;

(4) Dealing with or forwarding an application for review of the relevant provisions as listed in article 15 herein;

(5) Giving proposals on disposal of any action in violation of the provisions of the Administrative Reconsideration Law and its Detailed Rules for the Implementation and the Rules herein to the relevant departments in accordance with statutory authorities and procedures;

(6) Studying issues arising from administrative reconsideration works and timely giving proposals on improvement to the relevant agencies or departments; and reporting to the administrative reconsideration agency any material issue in a timely way;

(7) Guiding and supervising the administrative reconsideration works of the taxation agencies at lower levels;

(8) Handling or organizing the disposal of issues concerning response to administrative proceedings;

(9) Handling compensation issues relating to administrative reconsideration cases;

(10)Handling works on statistics, report and filing of cases concerning administrative reconsideration, proceedings and compensation and filing of major administrative reconsideration decisions; and

(11)Other issues related to administrative reconsideration works.

article 12 Administrative reconsideration agencies at all levels may set up administrative reconsideration committees to study major cases difficult to handle and give reasonable suggestions.

The administrative reconsideration committee may invite persons with relevant expertise from the outside to join.

article 13 The staff for administrative reconsideration shall have certain moral character, expertise and capacity that qualified for performance of the functions of administrative reconsideration and obtain the qualifications required by the Detailed Rules for the Implementation of the Administrative Reconsideration Law.

Chapter 3 Scope of Tax Administration Reconsideration

article 14 The administrative reconsideration agency may accept the applications for administrative reconsideration of any of the following specific administrative actions of tax agencies:

(1) Tax collection, including specific administrative actions such as determination of subject, object and scope of taxation, tax reduction, exemption and reimbursement, credit tax, applicable tax rate, tax calculation bases, intermediate links of taxation, tax payment deadline and place and means of tax collection, and collection of tax, additional collection of overdue fines, and withholding and tax collection actions conducted by any withholding agent and withholding unit and individual entrusted by taxation agencies;

(2) Administrative licensing and administrative examination and approval;

(3) Administration of invoices, including sale, confiscation and commissioned issuance of invoices;

(4) Tax protective measures and mandatory execution measures;

(5) Administrative punishments:

① Fine;

② Confiscation of property and illegal gains; or

③ Termination of the right of export rebates;

(6) Failure to performance of any of the following functions and duties:

① Issuance of tax registration certificate;

② Issuance and producing of tax payment vouchers and certificates for administration of tax on outbound business activities;

③ Administrative compensation;

④ Administrative award; and

⑤ Other actions failing to perform duly functions and duties;

(7) Recognition of any qualification;

(8) Failure to determine the security of tax payment according to law;

(9) Specific administrative actions in publicity of government information;

(10)Assessment of credit rating concerning tax payment;

(11)Notifying the entry and exit administration to check exit; and

(12)Other specific administrative actions.

article 15 Where an applicant holds any of the following provisions on which the specific administrative actions of tax agencies are based is illegitimate and applies for administrative reconsideration of any specific administrative action, it/he may file and application for review of the relevant provisions with the administrative reconsideration agency. If the applicant does not know which provisions are the specific administrative actions based on when filing the administrative reconsideration application, it/he may request for review of those provisions before the administrative reconsideration agency makes any administrative reconsideration decision:

(1) The provisions promulgated by the SAT and other departments under the State Council;

(2) The provisions promulgated by the tax agencies at other levels;

(3) The provisions promulgated by local People’s governments at all levels; and

(4) The provisions promulgated by relevant departments under local People’s governments.

The aforesaid provisions shall not include regulations.

Chapter 4 Jurisdiction of Tax Administrative Reconsideration

article 16 An applicant who refuses to accept any specific administrative action of an office of the SAT at any level may apply to the office of the SAT at a higher level for administrative reconsideration.

article 17 An applicant who refuses to accept any specific administrative action of a local tax bureau at any level may apply to the local tax bureau at a higher level or the People’s government at the same level for administrative reconsideration.

If any People’s Congress and its standing committee and People’s government of provinces, autonomous regions and municipalities directly under the Central Government have other provisions on local tax bureau’s jurisdiction of administrative reconsideration, those provisions shall prevail.

article 18 An applicant who refuses to accept any specific administrative action of the SAT may file an application for administrative reconsideration with the SAT. In case it/he refuses to accept the administrative reconsideration decision, the applicant may file administrative proceedings with the People’s court or apply to the State Council for decision. The decision of the State Council shall be final.

article 19 An applicant who refuses to accept any specific administrative action of any of the following tax agencies may apply for administrative reconsideration according to the following provisions:

(1) An applicant who refuses to accept any specific administrative action of the tax bureau of a separately planning city may apply to the provincial tax bureau for administrative reconsideration.

(2) An applicant who refuses to accept any specific administrative action of the tax office (sub-bureau) and the inspection bureau under tax bureaus at any level may apply to the said tax bureau for administrative reconsideration.

(3) An applicant who refuses to accept any specific administrative action jointly made by more than two tax agencies may file an application for administrative reconsideration with their common tax agency at a higher level; if it/he refuses to accept any specific administrative action jointly made by the tax agency and other administrative agency, the applicant may file an application for administrative reconsideration with their common administrative agency at a higher level.

(4) An applicant who refuses to accept any specific administrative action made by a cancelled tax agency before its cancellation may file an application for administrative reconsideration with the tax agency at a higher level that has still executed its functions.

(5) An applicant who refuses to accept the decision of the tax agency on addition of fines for failure to pay fines within the time limit may apply to the tax agency which has made the said administrative punishment for administrative reconsideration. If the applicant refuses to accept both decisions on fines and addition of fines, it/he may apply to the tax agency at the level higher than the said tax agency for administrative reconsideration.

In any of the circumstances as listed in the preceding paragraph (2), (3), (4) and (5), an applicant may submit an administrative reconsideration application to local People’s government at the county level in the place where the specific administrative action occurs and the latter may forward the application it accepts according to law.

Chapter 5 Applicant and Respondent for Tax Administrative Reconsideration

article 20 Where a partnership enterprise applies for administrative reconsideration, the enterprise whose registration is approved by the administration for industry and commerce shall be the applicant and the partner who executes partnership affairs shall participate in the administrative reconsideration on behalf of the enterprise. Where other partnership organizations apply for administrative reconsideration, the administrative reconsideration shall be jointly applied by partners.

Where any other organization without corporate capacity beyond the cases as prescribed in the preceding paragraph applies for administrative reconsideration, the major principal of the organization shall participate in the administrative reconsideration on behalf of the organization; in case there is no major principal, other elected member may participate in the administrative reconsideration on behalf of the organization.

article 21 Where the general meeting of shareholders, the shareholders’ representative meeting or the board of directors of a joint-stock enterprise holds any specific administrative action of the tax agency infringe upon the legitimate rights and interests of the enterprise, it may apply for administrative reconsideration in the name of the enterprise.

article 22 In case of death of the citizen who has the right to apply for administrative reconsideration, his/her near relatives may apply for administrative reconsideration. If the citizen who has the right to apply for administrative reconsideration is a person without or with limited civil capacity, his/her legal proxy may apply for administrative reconsideration.

In case of merger, splitting or termination of the legal person or other organization that has the right to apply for administrative reconsideration, the legal person or other organization that take over its rights and obligations may apply for administrative reconsideration.

article 23 During the process of administrative reconsideration, when the administrative reconsideration agency holds that any citizen, legal person or other organization besides the applicant is an interested party in the case relating to the specific administrative action under review, it may notify it/he to participate in the administrative reconsideration as a third party.

During the process of administrative reconsideration, any citizen, legal person or other organization besides the applicant that is an interested party in the case relating to the specific administrative action under review may apply to the administrative reconsideration agency to participate in the administrative reconsideration as a third party.

The non-participation of a third party in the administrative reconsideration may not affect the handling of the administrative reconsideration cases.

article 24 Where any citizen, legal person or other organization is not the relative person subject to administration with specific administrative actions, while their rights have been deprived or restricted or any obligation has been imposed on it/him due to the specific administrative action directly, it/he may separately apply for administrative reconsideration when the relative person subject to administration does not apply for administrative reconsideration.

article 25 Where the applicants of the same administrative reconsideration case exceed five, one to five representatives shall be elected to participate in the administrative reconsideration.

article 26 Where an applicant refuses to accept a specific administrative action and applies for administrative reconsideration, the tax agency which has conducted the said specific administrative action shall be the respondent.

article 27 Where an applicant refuses to accept the tax withholding action of a withholding agent, the tax agency administrating the withholding agent shall be the respondent. Where an applicant refuses to accept the action of tax collection by a unit or individual entrusted by the tax agency, the tax agency that conducts the entrustment shall be the respondent.

article 28 Where the specific administrative action is jointly made by the tax agency and the organizations authorized by laws and regulations, the tax agency and the said organizations shall be the joint respondents.

Where the tax agency and other organizations jointly conduct a specific administrative action, the tax agency shall be the respondent.

article 29 Where a tax agency makes a specific administrative action upon the approval of the tax agency at a higher level in according with laws, regulations and provisions, the agency that gives the approval shall be the respondent.

Where an applicant refuses to accept the decision made according to the procedures for trial of material tax cases, the tax agency where the trial committee is located shall be the respondent.

article 30 Where the delegated agency, the inside agency or other organization set up by a tax agency makes any specific administrative action in its own name without authorization of laws and regulations, the tax agency shall be the respondent.

article 31 An applicant and a third party may entrust one or two proxies to participate in administrative reconsideration. The applicant and a third party who entrust proxies shall submit the power of attorney to the administrative reconsideration organ. The power of attorney shall indicate the matters entrusted, the power conferred and the term. The citizen who cannot make entrustment in written form in special conditions may make an oral entrustment. In case of oral entrustment, the administrative reconsideration organ shall check the case and note it down. If the applicant or a third party cancels or changes the entrustment, it/he shall notify the administrative reconsideration organ in written form.

The respondent shall not entrust any person other than the staff of the agency to participate in administrative reconsideration.

Chapter 6 Application for Tax Administrative Reconsideration

article 32 An applicant may file an application for administrative reconsideration within 60 days since it/he knows the tax agency makes the specific administrative action.

If the statutory application period is delayed due to force majeure or obstacles set up by the respondent, the time wasted shall be deducted in calculation of the application period.

article 33 Where an applicant refuses to accept any of the actions as prescribed in article 14 (1) herein, it/he shall firstly apply to the administrative reconsideration agency for administrative reconsideration. If it/he refuses to accept any administrative reconsideration decision, it/he may file administrative proceedings with the People’s Court.

When applying for administrative reconsideration according to the preceding provisions herein, the applicant may, after paying the tax and overdue fines or submitting the withholding tax and overdue fines in advance according to the amount and time limit prescribed in laws and regulations or providing corresponding security, apply for administrative reconsideration within 60 days upon the date when the tax and overdue fines has been paid or the security provided has been confirmed by the tax agency which has made the specific administrative action.

The means of security provided by the applicant includes guarantee, mortgage and pledge. The tax agency which has made the specific administrative action shall review the qualification and credit standing of the guarantor and is entitled to refuse the guarantor without the qualifications required by law or without the capacity for security. The tax agency which has made the specific administrative action shall review the mortgage guarantee or pledge guarantee provided by the mortgagor or pledger and may refuse the mortgage guarantee or pledge guarantee that does not meet the requirements of laws.

article 34 The applicant who refuses to accept other specific administrative actions beyond those prescribed in article 14 (1) herein may apply for administrative reconsideration or directly file administrative proceedings with the People’s court.

The applicant who refuses to accept the decision of the tax agency on addition of fines for failure to pay fines within the time limit shall pay fines and the additional fines before applying for administrative reconsideration.

article 35 The application period for administrative reconsideration as prescribed in Paragraph 1 of article 32 herein shall be calculated according to the following provisions:

(1) If the specific administrative action is conducted onsite, the period shall be calculated from the conduction of the said action.

(2) If the legal document stating the specific administrative action is directly delivered, the period shall be calculated from the date of acceptance by the recipient.

(3) If the legal document stating the specific administrative action is delivered by mail, the period shall be calculated from the date of signature on the proof of delivery by the recipient; if there is no proof of delivery, it shall be calculated from the date of signature on the return receipt by the recipient.

(4) If the receipt is notified the specific administrative action by means of announcement according to law, the period shall be calculated from the date of expiry of the term as prescribed in the announcement.

(5) If the tax agency fails to notify the applicant when making the specific administrative action and makes a supplementary notice later, the period shall be calculated from the date of acceptance of the said supplementary notice by the recipient.

(6) If the respondent is able to prove the applicant knows the specific administrative action, the period shall be calculated from the date when the applicant knows the specific administrative action as shown by the evidence.

If the tax agency has made a specific administrative action and shall deliver a legal document to the applicant according to law while not, it shall be deemed that the applicant does not know the specific administrative action.

article 36 Where an applicant applies for performance of statutory functions and duties by the tax agency in accordance with article 6 (8), (9) and (10) of the Administrative Reconsideration Law, while the tax agency fails to perform, the application period for administrative reconsideration shall be calculated according to the following provisions:

(1) If there is any provision on the term for performance, the period shall be calculated from the date of expiry of the said term.

(2) If there is no provision on the term for performance, the period shall be calculated after 60 days since the tax agency receives the application.

article 37 Where the tax agency makes any specific administrative action that may be adverse to the rights or obligations of the applicant, it shall notify the applicant of its/his right to apply for administrative reconsideration, the administrative reconsideration agency and the application period for administrative reconsideration.

article 38 The applicant who files a written application for administrative reconsideration may submit the application by means of delivery in person, mail or fax.

The administrative reconsideration agency equipped with certain devices may accept the administrative reconsideration applications in forms of e-mail.

For the administrative reconsideration applications submitted in forms of fax and e-mail, the administrative reconsideration agency shall verify the identity of the applicant and matter for reconsideration.

article 39 The applicant who files a written application for administrative reconsideration shall state the following issues in its/his application:

(1) The basics of the applicant, including his/her name, sex, date of birth, ID No., unit, domicile, zip code and telephone; the name, domicile, zip code and telephone of the legal person or other organization as well as the name and position of its legal representative or principal;

(2) The name of the respondent;

(3) The request for administrative reconsideration and the major facts and grounds for application for administrative reconsideration;

(4) The signature or seal of the applicant; and

(5) The date of the application for administrative reconsideration.

article 40 Where an applicant makes an oral application for administrative reconsideration, the administrative reconsideration agency shall note down the said application onsite according to the issues required in article 39 and let the applicant check the document or read it to the applicant and obtain his/her confirmation.

article 41 In any of the following circumstances, an applicant shall provide evidentiary materials:

(1) The applicant who holds the respondent fails to perform its statutory functions and duties shall provide the materials proving it/he has request the respondent to perform its statutory functions and duties while the latter does not do.

(2) The applicant who files a request for administrative compensation in its/his application for administrative reconsideration shall provide the materials proving its/his damages or losses incurred by the specific administrative action.

(3) Other circumstances that are required applicants to provide evidentiary materials according to laws and regulations.

article 42 Where the applicant lists improper respondent in its/his application for administrative reconsideration, the administrative reconsideration agency shall notify the applicant to change the respondent. If the applicant fails to change the respondent, the administrative reconsideration agency may refuse to accept or turn down the application.

article 43 Where an applicant has filed an application for administrative reconsideration with the administrative reconsideration agency and the latter has accepted the application, the applicant shall not file administrative proceedings with the People’s court within the statutory period for administrative reconsideration. If the applicant has filed administrative proceedings with the People’s court and the latter has accepted the application, the applicant shall not apply for administrative reconsideration.

Chapter 7 Acceptance of Tax Administrative Reconsideration

article 44 Where an application for administrative reconsideration conforms to the following provisions, the tax administrative reconsideration agency shall accept the application:

(1) The application is under the jurisdiction of the provisions on administrative reconsideration herein;

(2) The application is filed within the statutory application period;

(3) There are definite applicants and proper respondents;

(4) The specific administrative action affects the interests or rights of the applicant;

(5) There are specific request and grounds for administrative reconsideration;

(6) Conditions as prescribed in article 33 and 34 herein are satisfied;

(7) The application is under the jurisdiction of the administrative reconsideration agency which receives the application; and

(8) Other administrative reconsideration agency has not accepted the same application for administrative reconsideration and the People’s court has not accepted the application for administrative proceedings filed by the same applicant for the same issue.

article 45 After receiving an application for administrative reconsideration, the administrative reconsideration agency shall make a review and decide whether to accept it or not within 5 days. The administrative reconsideration agency may not accept the application if it does not conform to the provisions herein and notify the applicant in written form.

For any application for administrative reconsideration beyond the jurisdiction of the agency that receives the application, the agency shall notify the applicant to submit the application to the relevant administrative reconsideration agency.

If the administrative reconsideration agency fails to review the application for administrative reconsideration after receiving it and make a decision on whether to accept it or not, the application shall be deemed as accepted.

article 46 The applications for administrative reconsideration conformance to provisions shall be deemed as accepted since reception by the administrative reconsideration agency. The administrative reconsideration agency shall notify the applicant in written form of the acceptance of the said application.

article 47 Where the application materials for administrative reconsideration is incomplete or unclearly expressed, the administrative reconsideration agency may notify the applicant to make supplement or correction in written form within 5 days since receiving the application for administrative reconsideration. The said notice shall state the issues to be supplemented or corrected and the reasonable time limit for such supplement and correction. The failure of the applicant to make supplement or correction within the time limit without reasonable grounds shall be deemed as abandonment of the application for administrative reconsideration by the applicant.

The time used for supplement or correction of application materials shall not be calculated into the period for administrative reconsideration.

article 48 Where the tax agency at a higher level holds that the grounds for refusal of an application for administrative reconsideration by the administrative reconsideration agency do not hold water, it may urge the latter to accept the application. If the latter still refuse to accept the application, the former may order it to accept the application within a time limit.

Where the tax agency at a higher level holds that the application for administrative reconsideration does not conform to the conditions of acceptance, it shall notify the applicant.

article 49 The tax agency at a higher level may, if necessary, directly accept or review the administrative reconsideration case under the jurisdiction of the tax agency at a lower level.

article 50 With respect to the specific administrative action for which the applicant may apply to the administrative reconsideration agency for administrative reconsideration and then file administrative proceedings with the People’s court if it/he refuses to accept the administrative reconsideration decision, while the administrative reconsideration agency has decided to refuse to accept it or failed to make any response beyond the period for administrative reconsideration after accepting it, the applicant may file administrative proceedings with the People’s court according to law since it/he receiving the decision on refusal of acceptance or within 15 days after expiry of the term for administrative reconsideration.

If the period for administrative reconsideration is extended in accordance with the provisions as prescribed in article 83 herein, the date extended shall be the date of expiry of the term for administrative reconsideration.

article 51 During the period for administrative reconsideration, the execution of specific administrative actions shall not be stopped, but such execution may be stopped in any of the following circumstances:

(1) The respondent holds such execution shall be stopped;

(2) The administrative reconsideration agency holds the execution shall be stopped;

(3) The applicant applies for stop of the execution and the administrative reconsideration agency holds such request is reasonable and decides to stop the execution; or

(4) The execution is stopped by laws.

To be continued.