The State Administration of Taxation, Tianjin XX District Taxation Bureau, Tianjin XX Textile Co., Ltd., ordinary bankruptcy creditor's rights confirmation dispute civil judgment of the second instance
Subject matter: Dispute over confirmation of ordinary bankruptcy claims
Case No.: (2023) Jin 02 Min Zhong No. 10624
Published: 2024-01-24
Core viewpoint: The focus of the dispute in this case is whether all the late payment penalties involved in the case should be regarded as ordinary creditor's rights. Article 45 of the Administrative Compulsion Law of the People's Republic of China stipulates that: "If an administrative organ makes an administrative decision on the obligation to pay money in accordance with the law, and the party fails to perform it within the time limit, the administrative organ may impose a fine or late payment penalty in accordance with the law." The parties shall be informed of the standards for imposing additional fines or late fees. The amount of the additional fine or late payment penalty shall not exceed the amount of the monetary obligation". In this case, the XX Taxation Bureau, as an administrative agency, has the statutory duty to collect taxes and impose additional tax late fees, and XX Company owes RMB 777,683.85 in taxes and fails to perform within the time limit, according to the above-mentioned legal provisions, the amount of late payment penalties imposed by the XX Tax Bureau should not exceed the amount of overdue taxes, so it is not improper for the court of first instance to confirm that the part of the late payment penalty confirmed by the administrator that does not exceed the principal, i.e., RMB 777,683.85, as ordinary claims, and the appeal request of the XX Tax Bureau to confirm all the late fees as ordinary claims is not based on sufficient basis and is not supported by this court.
Tianjin No. 2 Intermediate People's Court
Civil Judgments
(2023) Jin 02 Min Zhong No. 10624
The appellant, the Tianjin XX District Taxation Bureau of the State Administration of Taxation (hereinafter referred to as the XX Taxation Bureau), appealed to this court against the civil judgment of the Tianjin Hedong District People's Court (2023) Jin 0102 Min Chu No. 7612 due to a dispute over the confirmation of ordinary bankruptcy claims with the appellee, Tianjin XX Textile Co., Ltd. (hereinafter referred to as XX Company). After the case was filed on November 1, 2023, this court formed a collegial panel in accordance with the law, and after reading the case file and questioning the parties, the trial was conducted without holding court in accordance with the law. The case is now closed.
XX Taxation Bureau's appeal request: revoke the (2023) Jin 0102 Min Chu No. 7612 Civil Judgment made by the Tianjin Hedong District People's Court in accordance with the law, remand the case for retrial or change the judgment in accordance with the law, and change the judgment to support the first-instance litigation request of the XX Taxation Bureau. Facts and reasons: 1. The court of first instance had an expanded interpretation and misunderstanding of the scope of application of the Administrative Coercion Law of the People's Republic of China. The applicable object of "additional fines or late fees" in the Administrative Compulsion Law of the People's Republic of China is "the administrative decision of the administrative organ on the obligation to pay money in accordance with the law", while the object of application of "late payment fee" in the Law of the People's Republic of China on the Administration of Tax Collection is a liability for breach of contract, and the late payment penalty imposed by the tax is not applicable to the Administrative Penalty Law of the People's Republic of China. 2. Even if it is considered that the provisions of the Administrative Compulsion Law of the People's Republic of China should apply to tax collection, according to the principle that special law prevails over general law, when there is an inconsistency or conflict between laws, the special law of the Law of the People's Republic of China on the Administration of Tax Collection shall apply to tax matters.
Company XX argued that it did not agree with the appeal request of the XX Tax Bureau, and requested that the appeal be dismissed and the original judgment upheld. Facts and reasons: 1. The court of first instance correctly applied the law and requested that the appeal request of the XX Tax Bureau be dismissed in accordance with the law. Late payment penalty is a measure for taxpayers who do not pay taxes within the payment deadline, and a certain percentage of the overdue tax is charged according to the number of days of late payment, which is a measure of economic sanctions imposed by the tax authorities on taxpayers who are overdue to pay taxes, and is a specific administrative act made by the administrative organs, and is not an intended liability for breach of contract between equal subjects, so the "late payment fee" in the Administrative Compulsion Law of the People's Republic of China and the Law of the People's Republic of China on the Administration of Tax Collection and Collection are the same concept, and the amount of late payment fines should be limited. 2. In accordance with the principle that the new law is superior to the old law, the Administrative Compulsion Law of the People's Republic of China was implemented later than the Law of the People's Republic of China on the Administration of Tax Collection, so the Administrative Coercion Law of the People's Republic of China should be used. 3. The restriction on the amount of late payment penalty is the embodiment of the principle of ensuring fair repayment of all creditors in the Enterprise Bankruptcy Law of the People's Republic of China. The tax principal claim has priority over other ordinary claims in accordance with the law, and if there is no restriction on the tax late payment fee, it will be more detrimental to the fair repayment of other claims, so the tax late payment penalty should be restricted in accordance with the provisions of the Administrative Compulsion Law of the People's Republic of China.
The XX Tax Bureau filed a lawsuit with the court of first instance requesting that: 1. the XX Tax Bureau should be confirmed to have an ordinary claim for all the tax overdue fees owed by XX Company;
The court of first instance found the facts: on October 27, 2022, the Tianjin No. 2 Intermediate People's Court ruled to accept the bankruptcy liquidation application of XX Company, and appointed Tianjin XX Liquidation Co., Ltd. as the administrator of XX Company on November 17, 2022. On January 5, 2023, the XX Tax Bureau declared the creditor's rights to the administrator for the tax arrears of XX Company, including 777,683.85 yuan of outstanding taxes and 2,041,031.26 yuan of late fees. On February 14, 2023, the administrator's feedback result was that the tax claim was confirmed to be 777,683.85 yuan, and the ordinary claim (inferior) amount was 777,683.85 yuan.
On February 22, 2023, the administrator made a "Reply Letter for Objection to Creditor's Rights", which shows that: now your bureau has raised objections to the adjustment of the amount of late fees, and the administrator has reviewed and reviewed the objections to your company's creditor's rights, according to Article 45 of the Administrative Compulsion Law of the People's Republic of China, "the administrative organ has made an administrative decision on the obligation to pay money in accordance with the law, and if the party fails to perform within the time limit, the administrative organ may impose a fine or late fee in accordance with the law." The parties shall be informed of the standards for imposing additional fines or late fees. The amount of the additional fine or late payment penalty shall not exceed the amount of the monetary payment obligation. "The above provisions shall apply to the upper limit of the late payment penalty imposed by the tax authorities, as administrative agencies. Therefore, the administrator will review the part of the late payment penalty declared by your bureau again and adjust it to an ordinary claim (inferior) of 777,683.85 yuan.
In addition, during the trial, both parties had no objection to the amount of taxes and late fees.
The court of first instance held that the focus of the dispute in this case was whether the part of the late payment penalty in excess of the principal should be recognized as an ordinary bankruptcy claim. According to Article 32 of the Law of the People's Republic of China on the Administration of Tax Collection, "if a taxpayer fails to pay the tax within the prescribed time limit, and the withholding agent fails to release the tax within the prescribed time limit, the tax authorities shall impose a late payment penalty of 5/10,000 of the overdue tax amount on a daily basis from the date of the overdue tax payment", and the second paragraph of Article 45 of the Administrative Compulsion Law of the People's Republic of China provides that "the amount of the additional fine or late payment penalty shall not exceed the amount of the monetary payment obligation". In this case, the tax owed by XX Company was RMB 777,683.85 and the late fee was RMB 2,041,031.26, and it was not improper for the administrator to confirm that the part of the late payment fee that did not exceed the principal, i.e., RMB 777,683.85, as an ordinary creditor's right, and the court of first instance affirmed it. Therefore, the court of first instance did not support the litigation request of the XX Tax Bureau to recognize all the late payment fees as ordinary creditor's rights.
In summary, in accordance with Article 32 of the Law of the People's Republic of China on the Administration of Tax Collection, Article 45, Paragraph 2 of the Administrative Compulsion Law of the People's Republic of China, and Article 67 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows: "All litigation claims of the Tianjin XX District Taxation Bureau of the State Administration of Taxation are rejected. The case acceptance fee of 80 yuan shall be borne by the Taxation Bureau of Tianjin XX District of the State Administration of Taxation".
In the second instance, neither party submitted new evidence. The facts ascertained in the second instance are consistent with those found in the first instance, and this court confirms the facts ascertained in the first instance.
The court held that the focus of the dispute in this case was whether all the late fees involved in the case should be regarded as ordinary creditor's rights. Article 45 of the Administrative Compulsion Law of the People's Republic of China stipulates that: "If an administrative organ makes an administrative decision on the obligation to pay money in accordance with the law, and the party fails to perform it within the time limit, the administrative organ may impose a fine or late payment penalty in accordance with the law." The parties shall be informed of the standards for imposing additional fines or late fees. The amount of the additional fine or late payment penalty shall not exceed the amount of the monetary obligation". In this case, the XX Taxation Bureau, as an administrative agency, has the statutory duty to collect taxes and impose additional tax late fees, and XX Company owes RMB 777,683.85 in taxes and fails to perform within the time limit, according to the above-mentioned legal provisions, the amount of late payment penalties imposed by the XX Tax Bureau should not exceed the amount of overdue taxes, so it is not improper for the court of first instance to confirm that the part of the late payment penalty confirmed by the administrator that does not exceed the principal, i.e., RMB 777,683.85, as ordinary claims, and the appeal request of the XX Tax Bureau to confirm all the late fees as ordinary claims is not based on sufficient basis and is not supported by this court.
In summary, the appeal request of the XX Tax Bureau cannot be sustained and should be dismissed, and the first-instance judgment should be upheld because the facts found are clear and the law is correctly applied. In accordance with the provisions of Article 176, Paragraph 1 and Article 177, Paragraph 1 (1) of the "Civil Procedure Law of the People's Republic of China", the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The second-instance case acceptance fee of 80 yuan shall be borne by the Tianjin XX District Taxation Bureau of the State Administration of Taxation.
This judgment is final.
Presiding Judge: Zhang Yanjun
Judge: Liu Aimin
Judge Fang Lijia
December 15, 2023
Clerk: Shao Yueting
Relevant laws and regulations are attached:
Civil Procedure Law of the People's Republic of China
Article 176(1) The second-instance trial court shall hold in-court proceedings in appeal cases. Where, after reading the case file, investigating, and questioning the parties, the people's court finds that it is not necessary to hold in-court proceedings if no new facts, evidence, or reasons have been submitted, it may not hold in-court proceedings.
Article 177.1 The second-instance people's court is to handle appeal cases in accordance with the following circumstances after trial:
(1) Where the facts ascertained in the original judgment or ruling are clear and the law is correctly applied, the appeal is rejected by way of a judgment or ruling, and the original judgment or ruling is upheld;
(2) Where the original judgment or ruling was erroneously ascertained in fact or the law was applied incorrectly, the judgment or ruling was to be changed, revoked, or modified in accordance with law;
(3) Where the basic facts found in the original judgment are unclear, rule to revoke the original judgment and remand to the original people's court for new trial, or change the judgment after clarifying the facts;
(4) Where the original judgment omits parties or makes an unlawful judgment in absentia, or otherwise seriously violates legally-prescribed procedures, a ruling is made to revoke the original judgment and remand to the original people's court for new trial.
Nature of Tax Late Fee:
Whether it is "whether the late fee can exceed the principal", or "whether the late fee charged according to the standard of ten thousand five per day is too high". Hidden under these controversies is a more central question, that is, what is the nature of the tax late payment fee? Does it belong to the "administrative organ may impose a fine or late payment penalty in accordance with the law" in the Administrative Coercion Law? Is it punitive? Or is it a kind of "tax interest"?
In 2016, the Ministry of Finance replied to the National People's Congress deputies in the "Reply to the Proposal on "Optimizing Tax Collection and Administration to Support Economic Development" (Summary)", citing Article 45 of the Administrative Compulsion Law and Article 32 of the Tax Collection and Administration Law, and said, "It can be seen that the late payment metal stipulated in the Tax Collection and Administration Law is in the nature of interest, and in the process of revising the Tax Collection and Administration Law, our ministry, together with the State Administration of Taxation and other relevant departments, is studying and clarifying the relationship between tax interest and late payment fees, and reasonably determining the collection ratio." ”
Article 5 of the Notice of the State Administration of Taxation on Several Specific Issues Concerning the Implementation and Implementation Rules of the State Administration of Taxation <中华人民共和国税收征收管理法>further stipulates that: "For taxpayers who fail to pay taxes to the tax authorities within the time limit prescribed by laws and administrative regulations or within the time limit determined by the tax authorities in accordance with the provisions of laws and administrative regulations, the calculation of the late payment penalty shall be from the day after the expiration of the time limit for tax payable by the taxpayer to the date of actual payment of tax." In other words, in the Tax Administration Law, the late payment penalty is paid until the date of actual payment.
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