Rules for Tax Administrative Reconsideration 2

Chapter 8 Evidences for Tax Administrative Reconsideration

article 52 Evidences for administrative reconsideration include the following types:

(1) Documented evidences;

(2) Material evidences;

(3) Audiovisual materials;

(4) Witness’s testimony;

(5) Statements of the party concerned;

(6) Conclusion of evaluation; and

(7) Notes of investigation and notes made on the scene.

article 53 In the administrative reconsideration, the respondent shall bear the burden of proof for its specific administrative action.

article 54 The administrative reconsideration agency shall fully examine the relevant evidences according to law. The review of the administrative reconsideration case by the administrative reconsideration agency shall be based on the facts proved by evidences. The evidences that could be used to determine the case shall be of legitimacy, authenticity and relevancy.

article 55 The administrative reconsideration agency shall examine the legitimacy of the evidences in the following respects according to the specific situations of a case:

(1) Whether the evidences conform to the legal form;

(2) Whether the obtaining of evidences conforms to the provisions of laws, regulations and judicial interpretations; and

(3) Whether there are other circumstances in violation of laws which may affect the force of evidences.

article 56 The administrative reconsideration agency shall examine the authenticity of the evidences in the following respects according to the specific situations of a case:

(1) The causes for the formation of those evidences;

(2) The circumstances where the evidences are discovered;

(3) Whether the evidences are originals or whether the copies or duplicates are consistent with the originals;

(4) For participators of the administrative reconsideration, whether the evidence providers or witnesses are interested persons; and

(5) Other factors that may affect the authenticity of evidences.

article 57 The administrative reconsideration agency shall examine the relevancy of the evidences in the following respects according to the specific situations of a case:

(1) Whether the evidences can used to prove the facts to be proved;

(2) The relevancy between the evidences and the facts to be proved; and

(3) Other factors that may affect the relevancy of evidences.

article 58 The following evidentiary materials shall not be used as the basis for determination of a case:

(1) Any evidentiary material collected by any means in violation of legal procedures;

(2) Any evidentiary material obtained by means of covert photographing and recording and wire tapping which may infringe upon the legitimate rights and interests of others;

(3) Any evidentiary material obtained by wrongful means such as lure, fraud, menace and violence;

(4) Any evidentiary material provided beyond the period for producing of evidences without due reasons;

(5) The copies or duplicates of any originals which the provider refuses to produce without due reasons, which cannot be verified by other evidences and the other party refuses to acknowledge;

(6) Any evidentiary material whose authenticity cannot be identified;

(7) Any testimony provided by any witness who is not able to truly express his/her will; and

(8) Other evidentiary materials without legitimacy and authenticity.

The relevant materials obtained by the administrative reconsideration agency through its functions as prescribed in article 11 (2) herein shall not be used as the evidences for support of the specific administrative action of the respondent.

article 59 The respondent shall not separately collect evidences from the applicant and other relevant organization or individual by itself in the process of administrative reconsideration.

article 60 The administrative reconsideration agency may make investigations and collect evidences when it thinks it is necessary.

When making investigations and collecting evidences, the staff for administrative reconsideration may consult, copy and take the relevant documents and materials and inquire the relevant persons. In this process, the staff members for administrative reconsideration shall be no less than two and all of them shall produce their certificates to the parties concerned and the relevant persons. The units and individuals under investigation shall give assistances to the staff for administrative reconsideration and shall not make any refusal or obstacle.

If onsite inspection is required, the time used for such onsite inspection shall not be included in the period for administrative reconsideration.

article 61 An applicant and a third party may refer to the written replies and the evidences, bases and other relevant materials for making of the specific administrative action provided by the respondent, and unless those documents relates to state secrets, business secrets or privacy, the administrative reconsideration agency shall not refuse.

Chapter 9 Review and Decision of Tax Administrative Reconsideration

article 62 The administrative reconsideration organ shall deliver the duplicate of the application for administrative reconsideration or the copy of the notes of the application for administrative reconsideration to the respondent within 7 days upon acceptance of the application for administrative reconsideration. The respondent shall provide a written reply as well as the evidences and bases for making of the specific administrative action and other relevant materials within 10 days after receiving the duplicate of the application or the copy of the notes of the application.

With respect to the cases where the applicant refuses to accept any specific administrative action made by the SAT and files an application for administrative reconsideration, the relevant organ which has made the specific administrative action shall provide a written reply as well as the evidences and bases for making of the specific administrative action and other relevant materials to the administrative reconsideration agency.

article 63 When trying the administrative reconsideration cases, the administrative reconsideration organ shall arrange more than 2 staff members to attend the administrative reconsideration.

article 64 In principle, the method of written review shall be adopted in administrative reconsideration, but when the applicant makes a request or the administrative reconsideration organ holds it is necessary, the organ shall take into consideration of the opinions of the applicant, the respondent and a third party, and may conduct an investigation and know information from the relevant organizations and persons.

article 65 For any material and complicated case, when the applicant makes a request or the administrative reconsideration organ thinks it is necessary, hearings may be held for the case.

article 66 When the administrative reconsideration organ decides to hold a hearing, it shall notify the applicant, the respondent and a third party of the time, venue and specific requirements of the hearing.

The non-participation of a third party in the hearing may not impact the hearing.

article 67 A hearing shall be open unless it relates to state secrets, business secrets or privacy.

article 68 The staff members serving an administrative reconsideration hearing shall be no less than two and the president of the hearing shall be designated by the administrative reconsideration organ.

article 69 A hearing shall be noted. The applicant, the respondent and a third party shall confirm the contents of the notes.

The notes of the administrative reconsideration hearing shall be attached to the case documents as one of bases for trial of the case by the administrative reconsideration organ.

article 70 The administrative reconsideration agency shall fully examine the legitimacy and appropriateness of the factual proofs, legal procedures, legal basis and rights and obligations on which the specific administrative action of the respondent is based.

article 71 If an applicant intends to withdraw its/his application for administrative reconsideration before the administrative reconsideration decision is made, it/he may withdraw the application upon consent of the administrative reconsideration organ.

If the applicant withdraws its/his application for administrative reconsideration, it/he shall not file an application for administrative reconsideration for the same matter with the same grounds again, unless the applicant can prove its/his withdrawal of the former application goes against its/his true will.

article 72 The change of the former specific administrative action by the respondent during the process of administrative reconsideration may not impact the trial of the administrative reconsideration case, unless the respondent withdraws its/his application for administrative reconsideration according to law.

article 73 Where an applicant applies to review the relevant provisions in accordance with article 15 herein when filing an application for administrative reconsideration, if the administrative reconsideration agency has the authority to deal with the provisions, it shall handle the application within 30 days according to law; if not, it shall forward the application to the administrative agency which has the authority for handling according to legal procedures within 7 days and the latter shall handle the application within 60 days. During this process, the examination of the specific administrative action shall be suspended.

article 74 When examining the specific administrative action of the respondent and holding the basis for such action is illegal, the administrative reconsideration agency shall handle the case within 30 days if it has the authority for handling; if not, it shall forward the case to the state agency which has the authority for handling according to legal procedures within 7 days. During this process, the examination of the specific administrative action shall be suspended.

article 75 The administrative reconsideration organ shall give the opinions of reviewer on the specific administrative action of the respondent and make the administrative reconsideration decision upon approval of the principal of the administrative reconsideration agency according to the following provisions:

(1) If the facts concerning the specific administrative action are clear, the original decision is made on a proper basis with proper contents through legal procedures, and evidences are authentic, the original decision shall be maintained.

(2) If the respondent fails to perform its/his statutory functions and duties, it shall be ordered to perform those functions and duties within certain time limit.

(3) In any of the following circumstances, the decision on the specific administrative action shall be canceled or changed or the specific administrative action shall be deemed as illegal. When the original decision is cancelled or the specific administrative action is confirmed as illegal, the respondent shall be ordered to remake the specific administrative action within certain time limit:

① Where the major facts are unclear and evidences are not sufficient;

② Where the basis for the action is unsound;

③ Where the legal procedures are not followed;

④ Where the respondent acts beyond its authority or abuses its authority; or

⑤ Where the specific administrative action is obviously improper.

(4) If the respondent fails to provide a written reply and submit the evidences, basis and other materials relevant to its decision on the specific administrative action in accordance with the provisions of article 62 herein, the specific administrative action shall be deemed as proofless and groundless and such action shall be canceled.

article 76 Where the administrative reconsideration agency orders the respondent to remake a specific administrative action, the respondent shall not make any specific administrative action similar or basically similar to the original specific administrative action with the same facts and grounds, except for the situation when the administrative reconsideration agency cancels the original specific administrative action for the reason of violation of legal procedures and orders the respondent to remake the specific administrative action.

When the administrative reconsideration agency orders the respondent to remake any specific administrative action, the respondent shall not make any decision worse to the applicant, except for the situation when the administrative reconsideration agency cancels the action for the reason of unclarity of major facts, insufficiency of evidences or improperness of bases and orders the respondent to remake the specific administrative action.

article 77 In any of the following circumstances, the administrative reconsideration agency may make a decision on change:

(1) Where the agency finds that facts are clear, evidences are sufficient and procedures are legal, while the action is obviously improper or the basis is wrong; or

(2) Where the agency finds that facts are unclear and evidences are insufficient, while the facts become clear and evidences become authentic after trial by the administrative reconsideration agency.

article 78 In any of the following circumstances, the administrative reconsideration agency shall turn down an application for administrative reconsideration:

(1) Where the applicant files the administrative reconsideration application for the reason of failure of performance of statutory functions and duties by the tax agency and the administrative reconsideration agency finds that the said tax agency does not have the corresponding statutory functions or duties after accepting the application or that the said agency has performed its statutory functions and duties before accepting the application; or

(2) Where the administrative reconsideration agency finds out that the application for administrative reconsideration does not conform to the Administrative Reconsideration Law and the Detailed Rules for the Implementation thereof as well as conditions for acceptance herein after accepting the application for administrative reconsideration.

If the tax agency at a higher level holds that the turndown of the administrative reconsideration application by the administrative reconsideration agency is unfounded, it shall order the latter to accept the application within a time limit. The time wasted due to turndown of the application shall be deducted in calculation of the period for handling of the application for administrative reconsideration by the administrative reconsideration agency.

article 79 During the process of administrative reconsideration, in any of the following circumstances, the administrative reconsideration shall be suspended:

(1) Where the citizen as the applicant dies and his/her near relatives have not decided whether to participate in the administrative reconsideration;

(2) Where the citizen as the applicant has lost his/her capacity for participating in the administrative reconsideration and has not decided who shall be his/her legal representative to participate in the administrative reconsideration;

(3) Where the legal person or other organization as the applicant has terminated and the successor to its rights and obligations has not been determined yet;

(4) Where the whereabouts of the citizen as the applicant is unknown or the citizen is announced missing;

(5) Where the applicant and respondent cannot participate in the administrative reconsideration due to force majeure;

(6) Where the administrative reconsideration agency cannot perform its functions and duties for a time due to force majeure;

(7) Where the case involves application of laws, which shall be interpreted or confirmed by the competent authority;

(8) Where the trial of the case shall be based on the results of other cases while the said cases have not been decided yet; or

(9) Other circumstances where the administrative reconsideration needs to be suspended.

After the causes for suspension of the administrative reconsideration have been eliminated, the trial of the administrative reconsideration cases shall be resumed as soon as possible.

The applicant, the respondent and a third party shall be notified of the suspension or resumption of the trial of any administrative reconsideration case by the administrative reconsideration organ.

article 80 During the process of administrative reconsideration, in any of the following circumstances, the administrative reconsideration shall be terminated:

(1) Where the applicant requests for withdrawal of the application for administrative reconsideration and the administrative reconsideration organ approves the request;

(2) Where the citizen as the applicant dies and has no near relative or his/her near relative waives the right for administrative reconsideration;

(3) Where the legal person or other organization as the applicant terminates and the successor to its rights and obligations waives the right for administrative reconsideration;

(4) Where the applicant and the respondent have reached a conciliation upon approval of the administrative reconsideration organ in accordance with article 87 herein; or

(5) Where after accepting the application for administrative reconsideration, the administrative reconsideration agency finds out that other administrative reconsideration agency has accepted this application ahead of it or the People’s court has accepted the case.

Where any administrative reconsideration has been suspended in accordance with article 79 (1), (2) and (3) herein, if the causes for such suspension have not been eliminated within 60 days, the administrative reconsideration shall be terminated.

article 81 Where the administrative reconsideration agency orders the respondent to remake a specific administrative action, the respondent shall remake the specific administrative action within 60 days; in case situations are complicated and the specific administrative action cannot be remade within the prescribed time limit, the period may be properly extended upon approval of the administrative reconsideration agency while the extension shall not exceed 30 days.

The citizen, legal person or other organization that refuses to accept the specific administrative action remade by the respondent may file an application for administrative reconsideration according to law or file administrative proceedings.

article 82 An applicant may make the request for administrative compensation when applying for administrative reconsideration. If the compensation shall be provided in accordance with the provisions of the compensation law, the administrative reconsideration agency shall, when deciding to cancel or change the specific administrative action or confirming the specific administrative action is illegal, decide that the respondent shall make compensations according to law.

If the applicant does not make the request for administrative compensation when applying for administrative reconsideration, the administrative reconsideration agency shall, when deciding to cancel or change the tax, overdue fines and fines decided by the original specific administrative action and the mandatory measures including detention and seizure of properties, order the respondent to return the tax, overdue fines and fines and release the said mandatory measures, or make compensates equal to the corresponding price.

article 83 The administrative reconsideration agency shall make an administrative reconsideration decision within 60 days upon acceptance of an application. In case situations are complicated and the administrative reconsideration decision cannot be made within the prescribed time limit, the period may be properly extended upon approval of the principal of the administrative reconsideration agency while the extension shall not exceed 30 days. The applicant and the respondent shall be informed.

The administrative reconsideration agency which makes the administrative reconsideration decision shall prepare the document of administrative reconsideration decision and affix the official seal of the administrative reconsideration agency.

The document of the administrative reconsideration decision shall enter into force upon delivery.

article 84 The respondent shall execute the administrative reconsideration decision.

If the respondent fails to execute the administrative reconsideration decision or delays the execution without any due reason, the administrative reconsideration agency or the tax agency at the higher level shall order it to execute the decision within a time limit.

article 85 Where an applicant or a third party does not file any proceedings while does not execute the administrative reconsideration decision within the time limit, the following provisions shall be applied:

(1) The administrative reconsideration decision which has maintained the specific administrative action shall be coercively executed by the tax agency which has made the specific administrative action or applied with the People’s court for coercive execution.

(2) The administrative reconsideration decision which has changed the specific administrative action shall be coercively executed by the administrative reconsideration agency or applied with the People’s court for coercive execution.

Chapter 10 Tax Administrative Reconsideration Reconciliation and Mediation

article 86 For the following issues under administrative reconsideration, the applicant and the respondent may, according to the principle of free will and legality, reach reconciliation before the administrative reconsideration agency makes the administrative reconsideration decision and the administrative reconsideration agency may also make the reconciliation:

(1) Any specific administrative action made through exercising the right of discretion, including administrative punishment, assessment of tax and determination of the tax rate for taxable income;

(2) Administrative compensation;

(3) Administrative award; and

(4) Any specific administrative action with other issues concerning rationality.

article 87 The applicant who reaches reconciliation with the respondent shall submit the written reconciliation agreement to the administrative reconsideration organ. If the contents of the reconciliation agreement do not impair the public interests and the legitimate rights and interests of others, the administrative reconsideration organ shall give permission.

article 88 Where the administrative reconsideration has been terminated as the reconciliation has been permitted by the administrative reconsideration organ, the applicant shall not apply for administrative reconsideration for the same matter with the same grounds again.

article 89 Mediation shall comply with the following requirements:

(1) The will of the applicant and the respondent shall be respected;

(2) The mediation shall be based on finding out the facts of a case;

(3) The principle of objectiveness, justness and reasonableness shall be complied with; and

(4) The public interests and the legitimate rights and interests of others shall not be impaired.

article 90 The administrative reconsideration agency shall make mediation according to the following procedures:

(1) Obtaining the consents of the applicant and the respondent;

(2) Considering the opinions of the applicant and the respondent;

(3) Providing a mediation plan;

(4) Reaching a mediation agreement; and

(5) Preparing the documents of administrative reconsideration mediation.

article 91 The documents of administrative reconsideration mediation shall state the request for administrative reconsideration, facts, grounds and results of mediation and shall be affixed with the seal of the administrative reconsideration agency. The documents of administrative reconsideration mediation shall enter into force upon signature of both parties concerned.

If no agreement has been reached through mediation or the documents of administrative reconsideration mediation cannot enter into force, the administrative reconsideration agency shall make an administrative reconsideration decision in a timely manner.

article 92 In case the applicant refuses to execute the documents of administrative reconsideration mediation, the documents shall be coercively executed by the respondent according to law or be applied with the People’s court for coercive execution.

Chapter 11 Guidance and Supervision of Tax Administrative Reconsideration

article 93 Tax reconsideration agencies at all levels shall enhance their efforts on supervision over performance of the functions and duties of administrative reconsideration. The administrative reconsideration organ shall be responsible for supervision and guidance of administrative reconsideration works.

article 94 Tax agencies at all levels shall establish a sound responsibility system for administrative reconsideration works and include administrative reconsideration works into their target-related responsibility system.

article 95 Tax agencies at all levels shall, according to their functions and authorities, examine the administrative reconsideration works done by the tax agencies at a lower level by means of regular and spot examination and shall report the results of examination to the relevant departments in a timely manner.

article 96 During the process of administrative reconsideration, if the administrative reconsideration agency finds that the relevant administrative actions of the respondent and other tax agencies at lower levels are illegal or follow-up works need to be done, it may prepare the opinions on administrative reconsideration. The relevant agency shall report to the administrative reconsideration agency about its correction of the relevant illegal administrative action or doing of the follow-up works within 60 days upon receipt of the said opinions.

During the process of administrative reconsideration, if the administrative reconsideration agency finds out any problem universally existed in enforcement of laws, regulations and provisions, it may prepare the opinions on administrative reconsideration and provide advices to the relevant agencies to improve systems and administrative enforcement of law.

article 97 Tax agencies below the provincial level shall submit the statistical table and analysis report of administrative reconsideration, response to lawsuits and compensation to the tax agencies at a higher level and shall report major administrative reconsideration decisions to the administrative reconsideration agencies at a higher level for filing in a timely manner.

article 98 The administrative reconsideration organ shall archive the documents concerning administrative reconsideration cases according to provisions.

The documents concerning administrative reconsideration cases shall be made in volumes according to administrative reconsideration applications, one case one volume with uniform serial number, clear catalogue and complete materials. The volumes shall be well classified and bound.

article 99 The administrative reconsideration organs shall organize periodical professional trainings and exchanges among staff for administrative reconsideration so as to improve their expertise.

article 100 The administrative reconsideration agency shall make a summary of the administrative reconsideration works on a regular basis. The units and individuals that have made outstanding achievements on administrative reconsideration shall be praised and awarded according to the relevant provisions.

Chapter 12 Supplementary Provisions

article 101 The administrative reconsideration agency, the staff member of the administrative reconsideration agency and the respondent that has violated the Administrative Reconsideration Law and the Detailed Rules for the Implementation thereof as well as provisions herein in activities of tax administrative reconsideration shall be punished according to law.

article 102 The Rules herein apply to the foreigner, stateless person and foreign organization that applies to the tax agency for administrative reconsideration within the People’s Republic of China.

article 103 The administrative reconsideration agency may use the special seal for administrative reconsideration in its works on administrative reconsideration. The special seal for administrative reconsideration shall be of the same force as the seal of the administrative reconsideration agency.

article 104 The calculation of the period for administrative reconsideration and the delivery of administrative reconsideration documents shall be subject to the provisions on period and delivery in the Civil Procedure Law.

The “5 days” and “7 days” related to the period for administrative reconsideration as mentioned herein refers to working days, excluding legal holidays.

article 105 The Rules herein shall enter into force on Apr.1, 2010 and the Rules for Tax Administrative Reconsideration (Interim) (No.8 SAT Decree) promulgated by the SAT on Feb.24, 2004 shall be repealed simultaneously.

The end.