Measures of Shanghai for the Implementation of the Hearing Procedures for Tax Administrative Punishment

 2018-06-07  41


Announcement of the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation on Issuing the Measures of the Shanghai Municipality for the Implementation of the Hearing Procedures for Tax Administrative Punishment


· Document Number:Announcement No. 6 [2017] of the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation

· Area of Law: Government Affairs

· Level of Authority: Local Regulatory Documents

· Date issued:11-22-2017

· Effective Date:11-22-2017

· Status: Effective

· Issuing Authority: Shanghai Municipal Office, State Administration of Taxation Shanghai Local Taxation Bureau

 

Announcement of the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation on Issuing the Measures of the Shanghai Municipality for the Implementation of the Hearing Procedures for Tax Administrative Punishment
(Announcement No. 6 [2017] of the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation)
For the purposes of regulating the procedure of hearing for tax administrative penalties in this municipality, guaranteeing and supervising the lawful implementation of administrative penalties by tax authorities, and protecting the lawful rights and interests of citizens, legal persons and other organizations, the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation have decided to issue the Measures of the Shanghai Municipality for the Implementation of the Hearing Procedures for Tax Administrative Punishment, which shall come into force on the date of issuance.

Shanghai Municipal Office of the State Administration of Taxation
Shanghai Municipal Bureau of Local Taxation
November 22, 2017
Measures of the Shanghai Municipality for the Implementation of the Hearing Procedures for Tax Administrative Punishment
Chapter I General Provisions
Article 1 (Purpose and Basis)
For the purposes of regulating the hearing procedures for tax administrative punishment in this municipality, guaranteeing and supervising the lawful implementation of administrative punishment by tax authorities, and protecting the lawful rights and interests of citizens, legal persons and other organizations, these Measures are developed in accordance with the Law of The People's Republic of China on Administrative Penalty, the Provisions of the Shanghai Municipality on the Hearing Procedures for Administrative Punishment (Order No. 35 of the Shanghai Municipal People's Government) and the Measures of the State Administration of Taxation for the Implementation of the Hearing Procedures for Tax Administrative Punishment (for Trial Implementation, No. 190 [1996], SAT) and other relevant provisions and in consideration of the tax work reality of this municipality.
Article 2 (Basic Principles)
The hearing procedures shall follow the principles of legality, openness, impartiality, timeliness and facilitating people.
Hearings shall be held publicly unless when state secrets, trade secrets or personal privacy are involved.
Article 3 (Basic Rights of the Parties)
Notification and disqualification shall be adopted in hearing procedures, and the parties shall enjoy the right to state, the right to defense and the right to cross-examine.
Article 4 (Scope of Application)
The tax authorities at all levels of this municipality (hereinafter referred to as the “tax authorities”) shall, before imposing a fine of not less than 2,000 yuan (including the number) upon any citizen or imposing a fine of not less than 10,000 yuan (including the number) upon a legal person or any other organization, serve a Notification on Tax Administrative Punishment Matters on the party concerned, notify the party of the illegal facts that have been ascertained, the evidence, legal basis of the administrative punishments and administrative punishments to be granted, and notify the party of the rights to request for holding a hearing.
Article 5 (Petitions and Complaints)
A citizen, legal person or another organization shall have the right to file a petition or complaint with the tax authority at a higher level for a tax authority's acts in violation of these Measures. The tax authority at a higher level shall handle the petition or complaint in accordance with the law.
Chapter II Organs Arranging Hearing and Hearing Personnel
Article 6 (Organs Arranging Hearing)
Where the tax authority plans to impose administrative punishment to which the hearing procedures apply, the tax authority shall organize a hearing on administrative punishment.
Article 7 (Designation of Hearing Presider)
A hearing shall be presided over by a person appointed by a tax authority to be responsible for the legal affairs.
Article 8 (Scope of Hearing Officers)
A hearing system shall be implemented for the hearing of administrative punishment. A hearing shall consist of a presiding hearer and hearing officers. The number of members of a hearing shall be an odd number.
The hearing presider and hearing officers shall be designated by the tax authority in charge of a hearing. A tax authority organizing a hearing may hire persons other than its employees as specially invited hearing officers to attend the hearing.
A hearing presider shall be an employee of a tax authority that has been engaged in the legal affairs work for not less than two years or that has been engaged in the administrative law enforcement work for not less than three years.
There shall be one hearing presider and generally two hearing officers, and the hearing officers shall assist the hearing presider in organizing a hearing.
There shall be a clerk in a hearing to be responsible for the development of the hearing transcripts and other hearing affairs.
Article 9 (Functions of A Hearing Presider)
A hearing presider shall fulfill the following functions:
(1) decide the time and venue of hearing and notify those participating in the hearing;
(2) examine the qualifications of the hearing participants;
(3) preside over the hearing, inquire about the facts and evidence of the case or the relevant laws, and request the hearing participants to provide or supplement evidence;
(4) maintain the hearing order, warn those who violate the hearing disciplines or take necessary measures to stop them;
(5) review the hearing transcript and put forward the examination opinions;
(6) shall decide on the suspension, termination or postponement of hearing and announce the ending of the hearing; and
(7) fulfill other functions as prescribed in the laws, regulations and rules.
Article 10 (Disqualification)
A hearing presider, hearing officer or clerk shall offer to disqualify him- or herself, and the parties and their agents shall have the right to apply for their disqualification, if he or she:
(1) is an investigator of the case;
(2) is a close relative of the party or an investigator of the case;
(3) has served as a witness of this case; or
(4) has direct relations of interest with the handling results of this case;
The provisions of the preceding paragraph shall apply to interpreters, authentication experts and inspectors.
Where a party applies for the disqualification of a hearing officer, clerk, interpreter, authentication expert or inspector, the decision shall be made by the hearing presider; and where a party applies for the disqualification of the hearing presider, the decision shall be made by the person in charge of the taxation authority that organizes the hearing. For a decision of rejecting an application for disqualification, a party may apply to the tax authority organizing the hearing for a review.
Article 11 (Records of the Whole Process of Hearing)
A qualified tax authority may set up a hearing room, and may assist in recording hearings by audio and video recordings.
Chapter III Hearing Participants
Article 12 (Scope of the Hearing Participants)
Hearing participants include:
(1) the case investigators;
(2) the parties and their agents;
(3) the third party that has direct interest in the handling result of the case and the agent thereof;
(4) the witness, authentication expert, inspector and interpreter; and
(5) other relevant personnel.
Where a third party wishes to attend a hearing, the decision shall be made by the hearing presider.
Article 13 (Obligations of the Hearing Participants)
A hearing participant shall attend a hearing at the designated place on time, comply with the hearing disciplines, and truthfully answer the inquiries of the hearing presider's and hearing officers' inquiries.
Article 14 (Rights of the Parties)
The parties shall enjoy the rights:
(1) to require or give up a hearing;
(2) to apply for disqualification in accordance with these Measures;
(3) to attend a hearing or entrust one or two representatives to attend a hearing, and issue a power of attorney to specify the power of the agent;
(4) to make statements, defend themselves, and conduct cross-examination; and
(5) to verify the hearing transcript.
A statutory agent of a person without civil capacity or with limited civil capacity that attends a hearing on behalf of the person in accordance with the relevant laws and provisions shall enjoy the rights as prescribed in the preceding paragraph.
Article 15 (Inquiry of Case Files by Parties)
The parties and their agents may consult the case materials relevant to the hearing in accordance with the law.
Chapter IV Evidence
Article 16 (Evidence of Hearing)
The evidence for a hearing includes documentary evidence, physical evidence, testimony of witnesses, expert opinions, transcripts of investigation, on-site transcripts, audiovisual materials, electronic data and statements of the parties, among others.
Article 17 (Producing Evidence)
Evidence shall be produced, read out, and identified at a hearing, and shall be cross-examined. Evidence that has not been cross-examined shall not be used as evidence for deciding a case. Evidence involving state secret, trade secret, or personal privacy shall be kept confidential and be verified at the hearing, and shall not be produced at a public hearing.
Chapter V Notification, Submission and Acceptance of Hearing
Article 18 (Development and Contents of the Notification on the Administrative Penalty Matters)
The tax authority shall, before making a decision on imposing administrative punishments to which the hearing procedures apply, issue a Notification on Tax Administrative Punishment Matters to notify the parties of the rights to request for holding a hearing.
A Notification on Tax Administrative Punishment Matters shall include:
(1) the violations of the party and evidence thereupon;
(2) the grounds and basis of the administrative punishment, and the decision of administrative punishment to be made; and
(3) the period of the right to request for a hearing and for requesting a hearing.
Article 19 (Submission of Hearing Requirements)
Where a party requests for a hearing of the administrative penalty to which the hearing procedure applies, the party shall file an application with the competent tax authority in writing within three days of receipt of the Notification on Tax Administrative Punishment Matters. Where the party requests for a hearing by registered mail, the date of mailing indicated by the postmark shall prevail.
Where the conditions for a hearing are met, the tax authority shall organize a hearing; and where the conditions for hearing are not met, the tax authority shall notify the party in writing of not organizing a hearing. A party failing to file an application for hearing within the prescribed time limit due to force majeure or any other special circumstance may, within 5 days after the elimination of the obstacles, apply for extending the time limit. The tax authority requested to arrange a hearing shall make a decision on whether to approve the application or not. Where the party fails to file a request for a hearing within the prescribed time limit without justifiable reasons, it shall be deemed to have waived the right to request for a hearing and no request for a hearing shall be filed any longer.
Article 20 (Acceptance and Notification of Hearing)
The tax authority shall carry out the following work after accepting the request for hearing:
(1) The institution in charge of handling the case shall, within 3 days, transfer to the institution in charge of hearing the photocopies and photos of the major facts of violation and evidence ascertained for tax administrative punishment, a catalogue of evidence and list of witnesses, among others.
(2) The institution in charge of hearing shall, after receiving the case materials transferred, determine the members of the hearing within three days.
(3) The hearing presider shall, 7 days prior to the hearing, serve a Notification on Hearing for Tax Administrative Punishment on the parties concerned, and notify other participants of the time and place of the hearing.
(4) For a case for which a public hearing is held, the cause of the case, names or titles of the parties, and time and place of hearing shall be announced seven days before the hearing is held.
A Notification on Hearing for Tax Administrative Punishment shall include:
(1) the time and venue of the hearing;
(2) the names of the members of the hearing;
(3) notifying the parties of the right to apply for disqualification; and
(4) notifying the parties of preparing for evidence, informing witnesses and other matters.
Chapter VI Holding of Hearing
Article 21 (Preparation for Hearing)
Before a hearing is held, the clerk shall find out whether the parties and other participants are present and announce the hearing disciplines.
At the beginning of a hearing, the hearing presider shall verify the identities of the parties, announce the cause of the case, and announce the name list of the members and clerk of the hearing; and notify the parties of their rights, and inquire about whether an application for disqualification has been filed by a party.
Article 22 (Hearing Investigation)
At the investigation stage of a hearing, the case investigators shall present the facts and evidence of the party's violation of law and the proposed administrative penalty suggestion; and the parties shall make statements, defend themselves and conduct cross-examination; and the case investigators may raise questions to the parties.
The parties may question the investigators of a case.
With the consent of the hearing presider, an agent of the party may raise questions to the case investigators and parties.
Members of the hearing may raise questions to the investigators of and the parties to the case.
Article 23 (Cross-Examination of Evidence for Hearing)
The case investigators shall produce physical evidence to the hearing and read out the documentary evidence, for recognition by the parties and cross-examination; and read out the testimonies of absent witnesses, conclusions of authentication, transcripts of investigation and other documents as evidence.
Article 24 (Verifications of Evidence for Hearing)
Where a member of the hearing has any doubt about the evidence, the hearing may be suspended, and after investigating the evidence, the hearing may be resumed.
Article 25 (Application Matters during the Process of Hearing)
The case investigators and parties and their agents shall have the right to apply for bringing new witnesses to appear in court, collecting and consulting new evidence, and conducting re-authentication or investigation.
The presiding hearer shall make a decision on whether to approve the aforesaid application or not.
Article 26 (Defense at Hearing)
At the stage of debate at the hearing, the case investigators, parties and their agents may, under the organization of the presiding hearer, express their opinions on the evidence and case information, and debate against each other.
After the presiding hearer announces the termination of debate, the party shall have the right to make a final statement.
Article 27 (Hearing Transcript)
Hearing transcripts shall be made for the whole process of a hearing. The hearing transcripts shall be regarded as the basis for making a decision of administrative penalty by the tax authority.
The hearing transcripts shall specify the following matters:
(1) the cause of the case;
(2) the names or designations and addresses of the hearing participants;
(3) the names of the hearing presider, hearing officers and clerk;
(4) the time, venue and method of holding the hearing;
(5) the facts and evidence produced by the case investigators and the recommendations for administrative punishment to which the hearing procedures apply;
(6) the contents of the parties' statements, defense and cross-examination; and
(7) other matters relating to the hearing.
Signatures or seals of the parties and other participants shall be affixed to the hearing transcripts after verification. Where the parties refuse to affix their signatures or seals, it shall be clearly stated in the hearing transcripts.
After the hearing transcripts have been reviewed by the presiding hearer, the members of the hearing and the clerk shall affix their signatures or seals to the transcripts.
Article 28 (Development and Validity of the Report on the Hearing for Tax Administrative Penalty)
After the hearing ends, the presiding hearer shall organize the members of the hearing to make independent, objective and impartial judgments on the case according to the law, develop a Report on the Hearing for Tax Administrative Penalty, and submit it along with the hearing transcripts to the person in charge of the tax authority. Members of the hearing that have different opinions shall truthfully report them.
The contents of a Report on the Hearing for Tax Administrative Penalty shall include:
(1) the cause of a hearing;
(2) the profile of the hearing presider and participants;
(3) the time, venue and methods for holding the hearing;
(4) the profile of the hearing; and
(5) the handling opinions and suggestions.
The tax authority shall regard the opinions of the Report on the Hearing for Tax Administrative Penalty and the hearing transcripts as an important basis for making a decision of granting administrative punishment or not according to the law.
Article 29 (Extension of Hearing)
Except when the tax authority decides to extend a hearing due to force majeure or special circumstances, hearings shall be held as scheduled. Where a party applies for postponement, the tax authority shall decide whether to grant an approval.
Article 30 (Suspension of Hearing)
Under one of the following circumstances, the presiding hearer shall suspend the hearing:
(1) A party dies or is dissolved and it is necessary to wait for the successor to its rights and obligations.
(2) A party or case investigator is unable to attend a hearing due to a force majeure event.
(3) In the course of hearing, the relevant evidence needs to be authenticated or examined again.
(4) There is other circumstance under which the hearing needs to be suspended.
After the circumstances for suspending the hearing are eliminated, the presiding hearer shall resume the hearing.
Article 31 (Termination of Hearing)
Under one of the following circumstances, the tax authority shall terminate the hearing:
(1) The successor of the rights and obligations has not been determined three months after the death or dissolution of the party.
(2) The party fails to appear at the hearing twice upon notification without justifiable reasons.
(3) There is other circumstance under which the hearing needs to be terminated.
Article 32 (Time Limit for Holding a Hearing)
Except under the circumstances of postponing or suspending a hearing, a hearing shall be held within 15 days upon receipt of the request of a party for holding a hearing.
Chapter VII Supplementary Provisions
Article 33 (Definition of the Parties and Case Investigators)
For the purpose of these Measures, “parties” means the citizens, legal persons or other organizations that are notified in advance that they will be subject to administrative punishment to which the hearing procedures apply.
For the purpose of these Measures, “case investigators” means the personnel of the tax authorities that undertake the specific work of investigation and obtaining evidence for cases of administrative punishment.
Article 34 (Expenses of Hearing)
The parties shall not assume any expense for the organization of hearing by the tax authority.
Article 35 (Definition of Period)
For the purpose of these Measures, “three days,” “five days” and “seven days” means working days, excluding statutory holidays.
Article 36 (Effective Date)
This Announcement shall come into force on the date of issuance. The Announcement of the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation on Issuing the Interim Measures of the Shanghai Tax Authorities for the Hearing Procedures for Administrative Penalties (Announcement No. 2 [2013], Shanghai Municipal Office of the State Administration of Taxation) and the Announcement of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation on Revising the Interim Measures of the Shanghai Tax Authorities for the Hearing Procedures for Administrative Penalties (Announcement No. 1 [2016], Shanghai Municipal Office of the State Administration of Taxation) shall be concurrently repealed.