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BONING CASE

Complaint against the tax authorities for not performing legal duties

Ⅰ. Case basic Information collection

Case Type:Cases of lawyers ' lawsuits

Business Type:  Administrative proceedings                               

Time of court decision:   June 29, 2015                     

Name of court:     Ningbo Zhenhai District People's Court                 

Name of defence counsel:          Mao Diqun                      

Name of law Firm:     Zhejiang boning Law Firm           

Provide by(real name, Unit + names)                              

Peer review (real name, progressive)                                  

Retrieving keywords:   Whistleblower The subject qualification of administrative litigation Legal Stakes   

  Ⅱ.Case Body Collection

  Complaint against the tax authorities for not performing legal duties

  【Case Briefs】

  January 20, 2015, a company to the District local Tax bureau to investigate the application, the application contains: The informer reported in accordance with the law to conceal rent income evasion tax payment behavior. Accordingly, the tax Department shall perform its duties according to law, investigate the tax evasion behavior of the informer, recover the corresponding tax and hold the administrative responsibility and legal responsibility of the related persons.

  January 22, 2015, a district local tax bureau received a report letter from the informer, timely contact with the informer, and asked the informer to further provide relevant clues and materials. The informant provided further evidence to the District local Taxation bureau on January 27. The District Inland Revenue Bureau was examined on January 28 for inspection, and on February 2 to the informer to serve the notice of tax inspection. It is found that there is a tax evasion act by the informant. March 31, the District local Tax bureau in accordance with the law of the "tax administrative penalty matters" service to the informant.

  March 14, 2015, the informer to the People's Court to bring administrative proceedings, that the district local tax authorities did not investigate the third person's tax evasion, nor to the organizers to make any reply, its behavior has constituted an administrative omission, violated the legitimate rights and interests of informants, Therefore, the people's Court is requested to confirm that the local tax bureau does not perform the duties of the law, and ordered it to the third person's tax evasion behavior.

  【Defence comments】

  In our opinion, in this case, the informant does not enjoy the plaintiff's qualification in administrative proceedings and shall dismiss the plaintiff's prosecution.

  The right to report is a procedural right, including the right of the informant to report the reply, the right of the informant to investigate and punish the illegal Act, the right to reward, etc., the report organ did not reply or did not carry out the investigation and punishment, infringed the right of the informant to report, and asked to investigate the However, the right of the informant to report is a constitutional right. The protection of constitutional rights in our country's constitution does not determine the remedy way of lawsuit. And the right of the informer to obtain the reward, according to the relevant laws and regulations of our country, is only a kind of expectant right. Whether a whistleblower has the main qualification of an administrative lawsuit is the key to whether there is a legal interest in the plaintiff and the administrative action, that is, whether the lawful rights and interests are infringed by the administrative action, and whether there is a direct causal relationship between the right and the administrative action, And this causal relationship is a relationship that has occurred or is bound to occur, and does not include possible effects or indirect causal relationships that may exist. It should be pointed out that the "legal interest standard" referred to in the Administrative Procedure Law of the People's Republic of China is different in the way of expression, although it is in the form of the (2000)8, but the two are in fact compatible two standards. The "legal interest" should be understood as the interest or interest which the law should protect, which is basically close to the category of "lawful rights and interests". But the informer is not affected by the report, but there is no direct causal relationship between the rewards that are expected to be received on the basis of the real name reporting the illegal acts, and the omission of the administrative organs to report matters.

  In summary, there is no legal interest, that is, the omission of the local taxation bureau, which does not have the actual influence on the rights and obligations of the informer, and thus does not have the plaintiff qualification in the administrative lawsuit.

  【Verdict Results】

  Dismiss the plaintiff's prosecution.

  【Referee Documents】

  According to the provisions of article 25th of the Administrative Procedure Law of the People's Republic of China, the relative persons of administrative acts and other citizens, legal persons or other organizations having an interest in the administrative act shall have the right to bring a lawsuit. And in accordance with the provisions of article 27th (a) of the Supreme People's Court's interpretation of the implementation of the administrative Procedure Law of the PRC, the plaintiff shall bear the burden of proof on the following matters: (i) to prove that the prosecution complies with the statutory conditions, but the defendant considers that the plaintiff's prosecution exceeds the In this case, the plaintiff should bear the burden of proof in relation to the administrative act of being sued. The main basis for the plaintiff to prove that it is not fulfilling the tax levy and the legal duty to punish the government rent is latent and predictable, and the potential and expectant possibility is the interest. But the stakes should be protected by law, real or inevitable, immediate and immediate interest, if the interest is extended to the plaintiff's perceived potential, the possibility of expectation, that is, any complaint of the citizens, legal persons or other organizations are entitled to the Plaintiff, can sue, That would make it meaningless for the law to qualify for the plaintiff.

  To sum up, according to the evidence provided by the plaintiff, the plaintiff has not provided sufficient evidence to prove that it has an interest in the failure of the government rent to perform its statutory duties, the plaintiff's prosecution should be dismissed.

  【Case analysis】

  Does the informer have the subject qualification of administrative litigation?

  The plaintiff qualification in administrative litigation refers to what kind of conditions should be possessed by the administrative counterpart who enjoys the litigious right. The right to Sue is one of the basic rights granted to every citizen by the Constitution, which means that the parties choose to settle the dispute by litigation. The plaintiff qualification of administrative lawsuit is the criterion of judging what kind of plaintiff can become the accuser of administrative lawsuit, and the court can accept the lawsuit which is based on what kind of person. Whether a whistleblower has the main qualification of an administrative lawsuit is the key to whether there is a legal interest in the plaintiff and the administrative action, that is, whether the lawful rights and interests are infringed by the administrative action, and whether there is a direct causal relationship between the right and the administrative action, And this causal relationship is a relationship that has occurred or is bound to occur, and does not include possible effects or indirect causal relationships that may exist.

  Administrative Procedure Law of the People's Republic of China (April 4, 1989, 16th of the People's Republic of China) stipulates that citizens, legal persons or other organizations shall be entitled to bring a lawsuit to the people's Court in accordance with this law when they consider that the specific administrative acts of the staff of the administrative and administrative organs violate their lawful rights 41st stipulates that proceedings shall be instituted in accordance with the following conditions: (a) the plaintiff is a citizen, legal person or other organization which considers that the specific administrative act infringes its lawful rights and interests, (b) has a clear defendant; (iii) There is a specific claim and factual basis; (d) The jurisdiction of the People's Court under the scope of the case Law-(2000)8 12th stipulates that a citizen, legal person or other organization that has a legal interest in a specific administrative act may bring an administrative action in accordance with the law. The 13th article also enumerates the 4 kinds of cases in which the plaintiff in the administrative lawsuit has an interest in the legal sense with the specific administrative act: (a) The specific administrative act of being sued involves its neighboring right or the right of fair competition; (b) The (2000)8 Having a legal interest in the administrative reconsideration decision or being appended as a third person in the reconsideration proceedings; (iii) requiring the competent administrative organ to pursue the legal liability of the perpetrator according to law, and (iv) having legal interest in the revocation or alteration of specific administrative acts.

  Based on the above provisions, we can make the following statement: The legal rights and interests of plaintiff in administrative litigation are infringed by specific administrative acts, and there is a direct causal relationship between this right and the specific administrative act; This causal relationship belongs to the relationship that has occurred or is bound to occur, Excluding possible effects or possible indirect causal relationships. A whistleblower who has not been harmed by the reported matter, the right or interest to receive a report reward on the basis of a report of a real name, and between the omission of an administrative organ to respond to a report, or a failure to verify, or the verification conclusions of an administrative organ with respect to a reporting matter, there is no direct causal relationship, Therefore, the defendant's administrative action on whether to reply to the plaintiff's reporting behavior, and the plaintiff does not exist in the administrative law of interest, the plaintiff's rights and obligations do not have a practical impact.

  【Conclusion and suggestion】

  Reporting can be divided into two types, one is related to their own interests of the report, there is a public interest in the report, and the informer's own interests are not directly related to, such as the taxpayer's tax evasion action report. The report in this case belongs to the second of the above. There is a right to a remedy, without the right to redress is difficult to be called a right. So how to protect citizens ' right to report?

 

  Rule 20th of the administrative measures for the prosecution of tax offences, to the real name of the case, the Report Center received the contractor to respond to the results of the investigation, you can at the request of the Prosecutor will be related to the prosecution of the results of the investigation and prosecution of the findings of a brief prosecutor; Inform the Prosecutor of the results of the investigation, shall not be informed of the prosecution of other than the illegal tax violations, not to provide tax treatment (punishment) decision and relevant information. It can be seen that the relevant laws and regulations of our country do not stipulate the obligation of the tax authorities to inform the reporting behavior of the whistleblower. The tax authority may make "reply" or not "reply", and "reply" is not a statutory obligation which the tax authorities must act as. Since the "report reply" behavior does not have the distinctive characteristics of carrying out administrative functions and performing administrative duties, and does not have the functional requirements, there is no administrative omission of tax authorities. However, the "administrative measures for the prosecution of tax violations" has also given the complainant the right to voluntarily request the tax authorities to fulfill the obligation of informing, if the whistleblower actively requests the tax authorities to inform the results of the prosecution, the tax authorities as the reporting and processing agencies have the responsibility to fulfill the obligation to inform, such as idle in the performance of the disclosure obligation, it may constitute an administrative omission. Because the relevant laws and regulations of our country do not stipulate the duty of the tax authorities to report the reward voluntarily, the right of obtaining the reward also must be submitted by the informant to the reporting and receiving authority, pending the confirmation of the receiving organ to make a decision on whether to give the report reward.

BONING CASE