Measures of Shanghai for the Implementation of Reconciliation and Mediation in Tax Administrative Reconsideration (2017)

 2018-06-07  7


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 Reconciliation and Mediation in Tax Administrative Reconsideration

· Document Number:Announcement No. 5 [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:11-21-2017

· Effective Date:11-21-2017

· 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 Reconciliation and Mediation in Tax Administrative Reconsideration
(Announcement No. 5 [2017] of the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation)
For the purposes of effectively regulating the reconciliation and mediation procedures in tax administrative reconsideration in this municipality, resolving tax disputes, protecting the lawful rights and interests of citizens, legal persons and other organizations, and supervising the implementation of reconciliation and mediation of tax administrative reconsideration by the tax authorities according to law, 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 Reconciliation and Mediation in Tax Administrative Reconsideration, which shall come into force on the date of issuance.

Annex:
Measures of the Shanghai Municipality for the Implementation of Reconciliation and Mediation in Tax Administrative Reconsideration 
Shanghai Municipal Office of the State Administration of Taxation
Shanghai Municipal Bureau of Local Taxation
November 21, 2017
Annex:
Measures of the Shanghai Municipality for the Implementation of Reconciliation and Mediation in Tax Administrative Reconsideration 
Chapter I General Provisions
Article 1 (Purpose and Basis)
For the purposes of effectively protecting the lawful rights and interests of taxpayers, further improving the work efficiency of administrative reconsideration, and appropriately resolving administrative disputes on taxation, these Measures are developed according to the Regulation on the Implementation of the Administrative Reconsideration Law of the People's Republic of China, the Rules for Tax Administrative Reconsideration (Order No. 39, SAT) and the Opinions of the State Administration of Taxation on Comprehensively Strengthening the Work of Tax Administrative Reconsideration (Order No. 28[2007], SAT).
Article 2 (Scope of Application)
These Measures shall apply to the reconciliation and mediation conducted by the tax authorities at all levels in this municipality during the process of handling the administrative reconsideration cases.
Article 3 (Definition)
For the purpose of these Measures, “reconciliation in administrative reconsideration” means the handling procedures before an administrative reconsideration authority makes a decision of administrative reconsideration, a citizen, legal person or another organization (hereinafter referred to as the “applicant”) voluntarily conducts consultation on relevant specific administrative behavior in an application for reconsideration with a tax authority (hereinafter referred to as the “respondent”) and voluntarily reaches an accommodation, to eliminate disputes.
For the purpose of these Measures, “mediation of administrative reconsideration” means the handling procedures through which an administrative reconsideration authority actively conducts coordination, direct all parties in dispute to conduct exchange and communication, balance interests, and reach an mediation agreement on the relevant disputes in an application for reconsideration, to eliminate disputes, during the process of hearing an administrative reconsideration case for effective resolving of administrative disputes.
Article 4 (Establishment of the Reconciliation and Mediation Mechanism)
The tax authorities at all levels shall, during the process of handling administrative reconsideration cases, actively establish and improve the work mechanism combining administrative reconsideration ruling with reconciliation and mediation.
Article 5 (Implementation Departments of Reconciliation and Mediation)
The municipal bureaus, tax sub-bureaus of all districts, and sub-bureaus directly under the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation shall be responsible for the management and direction of the reconciliation in tax administrative reconsideration, and the relevant mediation work in tax administrative reconsideration. The relevant business departments shall actively cooperate with them, and provide specific business guidance, and if necessary, assign their personnel to participate in the whole process.
Article 6 (Basic Principles)
The reconciliation and mediation in administrative reconsideration shall be conducted under the following principles:
(1) Principle of legitimacy and rationality. The reconciliation and mediation of administrative reconsideration shall comply with the mandatory provisions of laws, regulations and rules, and shall not damage the national interests, the public interests or the lawful rights and interests of other people. Reconciliation and mediation in administrative reconsideration shall be appropriate.
(2) Principle of free will and equality. In the reconciliation and mediation of an administrative reconsideration case, the will of all parties in dispute shall be fully respected and all parties in dispute shall not be forced to accept the reconciliation or mediation plan or conditions; and during the process of reconciliation and mediation, all parties in dispute shall conduct consultation on an equal footing and exchange opinions honestly.
(3) Principle of impartiality and fairness. The reconciliation and mediation of administrative reconsideration shall be objective, fair and impartial.
(4) Principle of facilitating people in a timely manner. The reconciliation and mediation of an administrative reconsideration case shall follow the principle of timeliness and facilitating people, and create favorable conditions for both parties, especially the applicants.
(5) Principle of honesty and good faith. The parties in dispute shall, in an honest and faithful manner, consciously fulfill the settlement and mediation results of administrative reconsideration.
Article 7 (Scope of Reconciliation and Mediation)
Reconciliation and mediation may be applied to an administrative reconsideration case if it involves:
(1) the specific administrative behavior of a respondent by exercising discretion, such as administrative punishment, verification of tax amount and determination of taxable income rate, among others;
(2) administrative compensation;
(3) rewards for tax-related a tip-off;
(4) a case in which the superordinate law is unspecific and the tax authority makes a decision mainly according to the policy adjustments; or
(5) other administrative reconsideration cases that may be reconciled and mediated according to the law.
For a specific administrative act which is obviously illegal, the administrative reconsideration authority may only render a ruling, other than handling it by reconciliation and mediation, except when the taxation authority makes self-correction in a timely manner.
Chapter II Reconciliation in Tax Administrative Reconsideration
Article 8 (Applying for Reconciliation)
Before an administrative reconsideration authority makes a reconsideration decision, an applicant or respondent may request for reconciliation for administrative reconsideration cases in compliance with the provisions of Article 7 of these Measures. After reaching a reconciliation agreement, an applicant and a respondent shall notify the administrative reconsideration authority in a timely manner.
For an administrative reconsideration case in compliance with the provisions of Article 7 of these Measures, the administrative reconsideration authority may actively develop a Proposal for Reconciliation in Tax Administrative Reconsideration and issue it to the applicant and respondent, and seek agreement through reconciliation. The applicant and respondent shall, within 3 days of the receipt of a Proposal for Reconciliation in Tax Administrative Reconsideration, notify the administrative reconsideration authority of the reconciliation agreement in writing or verbally. Where the reconciliation agreement is reached orally, the administrative reconsideration authority shall record it and confirm it with the signature of the parties. An applicant's and respondent's failure to make a reply within the prescribed time limit shall not affect the hearing of the case by the administrative reconsideration authority.
Article 9 (Parties to a Reconciliation Case)
The parties to a reconciliation case shall be the applicant and the tax authorities at all levels in this municipality that have conducted specific administrative behaviors.
The person in charge of the tax authority having conducted specific administrative behaviors shall participate in the reconciliation negotiations.
Article 10 (Reconciliation Agreement)
Where an applicant and a respondent reach a reconciliation, both parties shall sign an Agreement on Reconciliation in Tax Administrative Reconsideration. An Agreement on Reconciliation shall specify the request for administrative reconsideration, basic case information and results of reaching reconciliation, and the applicant and respondent shall affix signatures or seals thereto.
Where the contents of a reconciliation agreement do not damage the national interests, public interests or lawful rights and interests of others, the administrative reconsideration authority shall grant approval, and the Reconciliation Agreement shall come into force.
Article 11 (Termination of Reconsideration after Reconciliation)
After a Reconciliation Agreement comes into force, the administrative reconsideration authority shall develop and serve the Decision on Terminating Tax Administrative Reconsideration in accordance with the law, and the administrative reconsideration shall be terminated.
Article 12 (Re-application for Reconsideration after Reconciliation)
Where after a Reconciliation Agreement is concluded and administrative reconsideration is terminated according to law, an applicant re-applies for administrative reconsideration on the ground of a same fact and cause, the administrative reconsideration authority shall not accept it, unless the applicant provides evidence to prove that the Reconciliation Agreement has violated Article 6 of these Measures.
Chapter III Mediation of Tax Administrative Reconsideration
Article 13 (Application for Mediation)
An applicant or respondent may, before a reconsideration decision is made, file an application for mediation with the administrative reconsideration authority in writing or verbally for an administrative reconsideration case in compliance with Article 7 of these Measures. Where an application is filed verbally, the administrative reconsideration authority shall record it and confirm it with the signature of the parties.
For an administrative reconsideration case in compliance with the provisions of Article 7 of these Measures, an administrative reconsideration authority may actively develop a Proposal for Mediation of Tax Administrative Reconsideration and issue it to the applicant and respondent, and ask them if they are interested in mediation. The applicant and respondent shall, within 3 days of the receipt of a Proposal for Mediation of Tax Administrative Reconsideration, notify the administrative reconsideration authority of the intention to have mediation in writing or verbally. Where the intention of mediation is expressed orally, the administrative reconsideration authority shall record it and confirm it with the signature of the parties. An applicant's and respondent's failure to make a reply within the prescribed time limit shall not affect the hearing of the case by the administrative reconsideration authority.
Article 14 (Mediation in Reconsideration)
Where both the applicant and the respondent wish to settle their disputes through mediation, the administrative reconsideration authority shall conduct mediation. In the course of mediation, the administrative reconsideration authority may put forward a mediation motion for consultation and reference for both parties, or the parties may offer a mediation motion.
The mediation of an administrative reconsideration case which is relatively complicated or has a relatively large impact on the society may be conducted in the form of interview and hearing, among others, and experts may also be invited to participate in the mediation.
Article 15 (Participation and Agency of Mediation Personnel)
The mediation of administrative reconsideration shall be presided over by a case handling person designated by the administrative reconsideration authority.
The respondent shall appoint its primary person in charge or its authorized agent and the handling personnel to participate in the mediation. Where the mediation case is relatively complicated, the relevant business department of the respondent shall also assign representatives to participate in the mediation.
Where an applicant is a natural person, the applicant or his or her agent shall participate in the mediation; and where the applicant is a legal person or any other organization, its legal representative, person in charge, or agent shall participate in the mediation.
Article 16 (Application for Disqualification)
An applicant or respondent believing that the person presiding over the mediation is a direct interested party to the case may apply for disqualification. An application for disqualification shall be filed with the administrative reconsideration authority before a mediation agreement is reached and the reasons therefor shall be specified.
The disqualification of a person presiding over the mediation shall be decided by the person in charge of the administrative reconsideration authority; and the disqualification of the person in charge of the administrative reconsideration authority shall be decided by the legal representative of the administrative reconsideration authority.
Article 17 (Mediation Procedures)
An administrative reconsideration authority shall preside over mediation according to the following procedures:
(1) requesting the comments of the applicant and the respondent on whether to conduct mediation, and conducting mediation only after reaching consensus;
(2) requesting the statements and comments of the applicant and the respondent;
(3) putting forward a motion of mediation plan; and
(4) conducting sufficient communication and coordination and reaching a mediation agreement.
Article 18 (Termination of Mediation)
Under one of the following circumstances, the mediation of reconsideration shall be terminated:
(1) The applicant or respondent refuses to be present without any justifiable reason within the time limit determined by the mediation.
(2) The applicant or respondent requests termination of mediation during the process of mediation.
(3) Other circumstances under which the administrative reconsideration authority deems it necessary to terminate the mediation.
Article 19 (Development of Administrative Reconsideration Mediation Documents)
Where an applicant and respondent reach a mediation agreement after mediation by the administrative reconsideration authority, the administrative reconsideration authority shall develop an Administrative Reconsideration Mediation Decision.
An Administrative Reconsideration Mediation Decision shall specify the following contents:
(1) the names of the applicant and respondent, names of their legal representatives, positions and other basic information;
(2) the claims, facts and grounds of the applicant's administrative reconsideration;
(3) the facts and evidence ascertained and confirmed;
(4) the results of mediation;
(5) other matters that need to be agreed on or explained; and
(6) signature, seal and date.
An Administrative Reconsideration Mediation Decision shall be confirmed by signatures or seals of both parties, and shall come into force after the administrative reconsideration authority affixes a seal thereto.
Article 20 (Termination of Reconsideration after Mediation)
After an Administrative Reconsideration Mediation Decision comes into force, the administrative reconsideration authority shall develop a Decision on Terminating Administrative Reconsideration in a timely manner, and terminate the administrative reconsideration.
Chapter IV Other Relevant Issues concerning the Reconciliation and Mediation of Tax Administrative Reconsideration
Article 21 (Time Limit for Reconciliation and Mediation)
The reconciliation or mediation of an administrative reconsideration case shall be conducted within the statutory time limit for the review of administrative reconsideration. Where the parties to administrative reconsideration fail to reach an agreement on reconciliation and mediation within the statutory time limit, the administrative reconsideration authority shall make a decision of administrative reconsideration according to law.
Article 22 (Handling of Failure in Reconciliation or Mediation)
Where no agreement is reached through reconciliation or mediation or either party pulls back before the Taxation Administrative Reconsideration Mediation Decision comes into force, the administrative reconsideration authority shall make an administrative reconsideration decision in a timely manner according to the relevant provisions.
When the administrative reconsideration authority makes an administrative reconsideration decision, it shall not adopt any recognition or commitment made by an applicant in the course of mediation or reconciliation for reaching a mediation agreement as evidence unfavorable.
Article 23 (Prohibition on Conversion between Reconciliation and Mediation Agreements)
Where the parties request to develop a Written Decision on Tax Administrative Reconsideration according to the contents of the agreements on reconciliation or mediation, the administrative reconsideration authority shall not accept it.
Article 24 (Implementation of the Reconciliation and Mediation Agreements)
The agreement on reconciliation and mediation shall have legal effect, and both parties shall implement the agreement. Relevant adjustments involving the original case shall not be amended.
The respondent shall, according to the effective agreement, perform the relevant matters in a timely manner according to the prescribed procedures, refund the overpaid taxes (including late fees and fines), and impose administrative compensation, administrative compensation or rewards for tax-related tip-off in accordance with the law.
Article 25 (Handling after the Implementation of the Agreements on Reconciliation and Mediation)
The administrative reconsideration authority shall bind and archive the reconciliation agreements, mediation transcripts, mediation agreements, performance information and other materials.
The respondent shall effectively conduct transition of the case files on the reconciliation and mediation cases and the original cases of specific administrative behaviors.
Chapter V Supplementary Provisions
Article 26 (Inspection, Guidance, Supervision and Administration)
The tax authorities at higher levels shall strengthen the inspection, guidance, supervision and administration of the reconciliation and mediation of tax administrative reconsideration by the tax authorities at lower levels.
Article 27 (Proposals and Written Opinions for Administrative Reconsideration)
During the process of reconsideration and mediation of a case, an administrative reconsideration authority finding any problem of an administrative authority during the process of administrative management or administrative law enforcement shall make a motion and written opinions for administrative reconsideration to the relevant departments in a timely manner.
Article 28 (Definition of Time Limit)
For the purpose of these Measures, “three days” and “five days” means working days, excluding statutory holidays.
Article 29 (Interpretation of Documents)
The power to interpret these Measures shall remain with the Shanghai Municipal Office of the State Administration of Taxation and the Shanghai Municipal Bureau of Local Taxation.
Article 30 (Effective Date)
These Measures 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 Measures of the Shanghai Municipality for the Implementation of Reconciliation and Mediation in Tax Administrative Reconsideration (Announcement No. 3 [2014], 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 Measures of the Shanghai Municipality for the Implementation of Reconciliation and Mediation in Tax Administrative Reconsideration (Announcement No. 6 [2015], Shanghai Municipal Office of the State Administration of Taxation) shall be concurrently repealed.