论《税收征收管理法》中重大突发事件应急授权立法条款的增设

Adding the Authorization Legislative Provision in Response to Emergency in the Law of Tax Collection and Management

财税主管部门为应对新冠疫情颁布的特殊税收政策,虽均以减免税措施为主要内容,但并非皆为税收优惠;虽欠缺形式上的立法授权,但从信赖保护原则和合法预期保护原则的一般法理着眼,具备有效性。为妥善解决应对重大突发事件特殊税收政策的应急立法授权问题,应当首先在《立法法》《突发事件应对法》中增设有关应急授权立法的一般性规定,再于事实上扮演税法体系“母法”角色的《税收征收管理法》中增设应急授权条款,将非紧急情况下特殊税收政策的立法权授予国务院,时间性要求紧急情况下的立法权则授予财税主管部门,同时辅之以追认和备案等立法监督制度,以及从简适用有关立法程序性规定。

The special tax measures dealing with COVID-19 issued by the finance and tax au-thority focus on the tax reduction and exemption,while which are not all tax preferences.From the perspective of Principle of Protection of the Reliance and Legitimate Expectation,the spe-cial tax measures can be deemed valid although lacking of the legitimate authorization.In order to authorize the legislative power to issue the special tax measures mentioned above,the follow-ing steps should be taken into consideration:First,supplementing the general rules of authori-zation concerning about emergency to the Law of Legislation and the Law of Emergency Re-sponse;Second,supplementing the authorization legislative provision dealing with serious e-mergency to the Law of Tax Collection and Management which is the basic law of the tax law system.In the latter,the provision should authorize the legislative power of special tax meas-ures to the State Council under the non-critical situation,and to the finance and tax authority while the time is urgent in which case the supervision of legislation such as subsequent endorse-ment and legal filing is necessary,as well as the simplified application of legislative procedural provisions.