论税务和解的适用范围

On the Application Scope of Tax Reconciliation

我国现行法律法规关于税务和解的适用范围限于复议阶段,这符合税务争议纠纷解决的现实情形。税务和解的标的是法律授权下的行政处分权,法律仅将行政处分权限于行政裁量,忽略了做出行政处分前的事实认定,因为其中可能出现"事实不明"的情况,行政机关对此也有选择的余地,因此"事实不明"也可被纳入和解范围;法律运用偏向于法定职权,应当遵循职权法定原则,"法律不明"不适宜纳入税务和解;税务和解涉及对行政权的处分,须对其适用范围严格限制。

According to China^s current laws and regulations the application scope of the tax reconciliation is limited to the stage of reconsideration, which conforms with the reality of tax dispute settlement. The object of tax reconciliation is the administrative sanction right authorized by law, which restricts it to administrative discretion and neglects factfinding before making the administrative sanction. As there may be some “unclear facts” and administrative organs can have a choice,“unclear facts” can also be incorporated into the reconciliation scope; application of laws tends to legitimate authority and should follow the principle of statutory power. It is not proper for the situation that uthere is no clear laww to be included in the tax reconciliation; tax reconciliation relates to the sanction of administrative power, which must be strictly limited to the scope of its application.