税务稽查证据研究
本站原创 论文中文摘要：对于税务稽查证据问题,税法中白勺规定可谓凤毛麟角,并且都非常笼统,在理论界对此问题白勺研究也很少,对其进行系统研究白勺就更少了。本文试图在探讨税务稽查证据白勺概念、特征以及与审计证据白勺区别白勺基础上,对税务稽查证据白勺研究范围;税务稽查证据白勺种类、各个证据种类白勺内容、分类、特征、证明力以及要求;税务稽查证据白勺对象、标准和排除规则进行了界定,并且对税务稽查证据收集和审查中遇到白勺问题以及应如何解决进行了探讨
Abstract（英文摘要）：www.328tibet.cn In the process of tax administrative litigation, the rate of the tax authorities’defeat suit is high. Engaging in a lawsuit is engaging in the evidence, and actually the tax authorities fail in the evidence. At present, theoretically the systematic research on evidence of tax inspection is still a gap; practically the regulations on evidence of the tax inspection are not only little but general as well. Besides, the tax inspectors lack the evidence awareness. Therefore, the systematic research on evidence of tax inspection is of practical significance. The whole thesis is divided into four parts: Chapter one deals with the overview of the tax inspection evidence. This part first defines the concept of evidence. The evidence of the tax inspection refers to the case-related materials, which has the legal form and can be used to testify the objective existence of the taxpayers and the withholding agents’illegal facts, and these materials are collected by the tax authorities or provided by the taxpayer, withholding agents, and the third party to the tax authorities according to the legal procedures in the process of tax inspection. Secondly, there is a description on the characteristics of the tax inspection evidence. As one kind of the evidence, tax inspection evidence has not only the common features of all the other evidences but its own peculiar features as well. The common features of tax inspection evidence are as follows: objectivity, relevance, and legality. The peculiar features of tax inspection evidence are as follows: economy, complexity and tax expertise. Finally, a distinction between the tax inspection evidence and the certified public accountant evidence is made: (1) The different purpose on evidence collecting; (2) the different nature of the evidence; (3) the different premises of evidence collecting. Chapter two deals with the kind and request of the tax inspection evidence. This chapter is divided into six parts: the first part introduces the concept, feature, sort and requirement of written proof. (1) The concept of written proof: written proof refers to the written documents or other things used to prove the case facts by the way of characters, signs and pictures. (2) Features of the written proof: the first is that it is a kind of thing that records and reflects certain thoughts of people through characters, signs and pictures, and the content recorded and reflected in it can be perceived and understood by people and then can be used to discover message. The second is that written proof is generally formed when the illegal acts happens and beyond the tax inspection. This is the character that set it apart from the statement, notes, testimony and appraisal conclusions. (3) The classification of the written proof: generally it can be classified as follows: documental written proof and non-documental written proof, punishing written proof and reporting written proof, ordinary written proof and special written proof, character written proof, sign written proof and picture written proof; in tax inspection the written proof is classified as follows: basic condition evidence and accountant and relevant data evidence, which is subdivided into external evidence and internal evidence. (4) The significance of the division of external evidence and internal evidence: the first is that we must collect the evidence of high proving quality in the tax inspection. The second is that when the strong-proving evidence and the weak-proving evidence conflict with each other, we should depend on the strong one. The third is that the internal evidence, which is not on the move and permitted, cannot be use as evidence alone and needs the confirmation of other evidence. The fourth is the different degrees of importance of the tax collector in the process of tax inspection. (5) Writ rules of the written proof in tax inspection: primitive material first. In specific situations, tax authorities may collect the duplicates, copies or inscriptions as evidence. The second part is about the physical evidence, expert’s conclusion and records made on the scene. The physical evidence refers to the entities and traces whose existing form; exterior features and internal nature can prove the true conditions or the other facts, which are to be testified. Expert’s conclusion refers to the conclusive opinions made by the appraisers, who after accepting the entrustment and invitation analyze and judge some professional problems through their professional knowledge and skills. Record made on the scene is the comprehensive and objective record of the process of the examine activitiesand discoveries on the scene. The third part is about the audiovisual reference material. The audiovisual reference material refers to the pictures and sounds reflected by means of video or tape or the data or materials stored by the electronic computers, used for proving case facts. Tax authorities should obey the following requests when they collect the computer data or tapes, videos and other audiovisual materials: (1) in general situations, the primitive carrier should be collected, if the primitive carrier is hard to obtain, and then collect the duplicate. (2) When the party concerned provides the audiovisual reference material, the making method, making time, and maker should be given clear indication of. Besides, the object that the audiovisual reference material will prove should be enclosed with it as an affix. The fourth part is about the testimony. The so-called testimony refers to statements, made by the informants to the tax authorities, which could prove the true conditions of the case. The testimony should accord with the following requirements: first, it should include basic information, such as the name, age, sex, occupation and the address of the witness. Second, it should include the signature of the witness. Without signature, a sealed signature is required. Third, it should include the specific date of the testimony. Fourth, the document proving the witness identity, including the duplicate of the identity card is required. The fifth part is about the statements of the party concerned. The statements of the party concerned refers to the narration and acknowledge, made by the party concerned to the tax authorities and its workmen, which could prove the true conditions of the case. The sixth part is about the investigating notes of inquiry. Inquiry is the important method of obtaining the testimony and statements of the party concerned. The investigating notes of inquiry are the exterior representation of the testimony and statements of the party concerned. It is not a kind of independent evidence. Chapter three deals with the basic problems of the tax inspection evidence. This part discusses the problems in three aspects: the first is the object of proof of tax inspection evidence. According to the author, the object of proof of tax inspection evidence should include entity facts and procedural facts. Because without taking the procedural implement as the object of proof, it is not in accordance with the procedural justice; If we also take theevidence facts as the object of proof, and then it will produce the effect of not gaining the evidence through cycling proving. The second is the proving standard of the inspection evidence. According to the author, generally speaking, the proving standard of the inspection evidence should above the advantageous proof and under the reasonable suspect standard, viz. clear and convincing standard, but in the scope of the clear and convincing suspect, different inspection case should be treated differently according to the three above factors. The third is the excluding rules of inspection evidence. In the opinion of the author, the excluding rules should include the following sorts: (1) illegal exclusion; (2) the exclusion of not original copy; (3) the exclusion of the informal raising evidence materials; (4) degree exclusion; (5) the exclusion according to the national and public interest. Chapter four deals with the problems existing in the process of collecting and checking the tax inspection evidence and the solving of these problems can be divided into two stages of raising problem and solving problem. The problems existing in the process of collecting and checking the tax inspection evidence he two aspects: the law environmental problems and the internal evidence. The law environmental problems include: the first is that the law system in our country lacks mother laws, which regulate the common elements in the single law, and this situation reduces the comprehensive force of law. The second is that the law in our country confers little authority to tax authorities. The third is that the tax law regulates the obligation of the taxpayer while does not regulate the responsibility or vice verse. In solving the problems, the author recommends the following schemes: first, perfecting the legislation; second, widening the limit of authority of tax authorities in collecting the evidence; third, strengthening the internal law construction in the tax authorities.
论文关键词： 税务稽查；税务稽查证据；审计证据；
Abstract（英文摘要）：www.328tibet.cn In the process of tax administrative litigation, the rate of the tax authorities’defeat suit is high. Engaging in a lawsuit is engaging in the evidence, and actually the tax authorities fail in the evidence. At present, theoretically the systematic research on evidence of tax inspection is still a gap; practically the regulations on evidence of the tax inspection are not only little but general as well. Besides, the tax inspectors lack the evidence awareness. Therefore, the systematic research on evidence of tax inspection is of practical significance. The whole thesis is divided into four parts: Chapter one deals with the overview of the tax inspection evidence. This part first defines the concept of evidence. The evidence of the tax inspection refers to the case-related materials, which has the legal form and can be used to testify the objective existence of the taxpayers and the withholding agents’illegal facts, and these materials are collected by the tax authorities or provided by the taxpayer, withholding agents, and the third party to the tax authorities according to the legal procedures in the process of tax inspection. Secondly, there is a description on the characteristics of the tax inspection evidence. As one kind of the evidence, tax inspection evidence has not only the common features of all the other evidences but its own peculiar features as well. The common features of tax inspection evidence are as follows: objectivity, relevance, and legality. The peculiar features of tax inspection evidence are as follows: economy, complexity and tax expertise. Finally, a distinction between the tax inspection evidence and the certified public accountant evidence is made: (1) The different purpose on evidence collecting; (2) the different nature of the evidence; (3) the different premises of evidence collecting. Chapter two deals with the kind and request of the tax inspection evidence. This chapter is divided into six parts: the first part introduces the concept, feature, sort and requirement of written proof. (1) The concept of written proof: written proof refers to the written documents or other things used to prove the case facts by the way of characters, signs and pictures. (2) Features of the written proof: the first is that it is a kind of thing that records and reflects certain thoughts of people through characters, signs and pictures, and the content recorded and reflected in it can be perceived and understood by people and then can be used to discover message. The second is that written proof is generally formed when the illegal acts happens and beyond the tax inspection. This is the character that set it apart from the statement, notes, testimony and appraisal conclusions. (3) The classification of the written proof: generally it can be classified as follows: documental written proof and non-documental written proof, punishing written proof and reporting written proof, ordinary written proof and special written proof, character written proof, sign written proof and picture written proof; in tax inspection the written proof is classified as follows: basic condition evidence and accountant and relevant data evidence, which is subdivided into external evidence and internal evidence. (4) The significance of the division of external evidence and internal evidence: the first is that we must collect the evidence of high proving quality in the tax inspection. The second is that when the strong-proving evidence and the weak-proving evidence conflict with each other, we should depend on the strong one. The third is that the internal evidence, which is not on the move and permitted, cannot be use as evidence alone and needs the confirmation of other evidence. The fourth is the different degrees of importance of the tax collector in the process of tax inspection. (5) Writ rules of the written proof in tax inspection: primitive material first. In specific situations, tax authorities may collect the duplicates, copies or inscriptions as evidence. The second part is about the physical evidence, expert’s conclusion and records made on the scene. The physical evidence refers to the entities and traces whose existing form; exterior features and internal nature can prove the true conditions or the other facts, which are to be testified. Expert’s conclusion refers to the conclusive opinions made by the appraisers, who after accepting the entrustment and invitation analyze and judge some professional problems through their professional knowledge and skills. Record made on the scene is the comprehensive and objective record of the process of the examine activitiesand discoveries on the scene. The third part is about the audiovisual reference material. The audiovisual reference material refers to the pictures and sounds reflected by means of video or tape or the data or materials stored by the electronic computers, used for proving case facts. Tax authorities should obey the following requests when they collect the computer data or tapes, videos and other audiovisual materials: (1) in general situations, the primitive carrier should be collected, if the primitive carrier is hard to obtain, and then collect the duplicate. (2) When the party concerned provides the audiovisual reference material, the making method, making time, and maker should be given clear indication of. Besides, the object that the audiovisual reference material will prove should be enclosed with it as an affix. The fourth part is about the testimony. The so-called testimony refers to statements, made by the informants to the tax authorities, which could prove the true conditions of the case. The testimony should accord with the following requirements: first, it should include basic information, such as the name, age, sex, occupation and the address of the witness. Second, it should include the signature of the witness. Without signature, a sealed signature is required. Third, it should include the specific date of the testimony. Fourth, the document proving the witness identity, including the duplicate of the identity card is required. The fifth part is about the statements of the party concerned. The statements of the party concerned refers to the narration and acknowledge, made by the party concerned to the tax authorities and its workmen, which could prove the true conditions of the case. The sixth part is about the investigating notes of inquiry. Inquiry is the important method of obtaining the testimony and statements of the party concerned. The investigating notes of inquiry are the exterior representation of the testimony and statements of the party concerned. It is not a kind of independent evidence. Chapter three deals with the basic problems of the tax inspection evidence. This part discusses the problems in three aspects: the first is the object of proof of tax inspection evidence. According to the author, the object of proof of tax inspection evidence should include entity facts and procedural facts. Because without taking the procedural implement as the object of proof, it is not in accordance with the procedural justice; If we also take theevidence facts as the object of proof, and then it will produce the effect of not gaining the evidence through cycling proving. The second is the proving standard of the inspection evidence. According to the author, generally speaking, the proving standard of the inspection evidence should above the advantageous proof and under the reasonable suspect standard, viz. clear and convincing standard, but in the scope of the clear and convincing suspect, different inspection case should be treated differently according to the three above factors. The third is the excluding rules of inspection evidence. In the opinion of the author, the excluding rules should include the following sorts: (1) illegal exclusion; (2) the exclusion of not original copy; (3) the exclusion of the informal raising evidence materials; (4) degree exclusion; (5) the exclusion according to the national and public interest. Chapter four deals with the problems existing in the process of collecting and checking the tax inspection evidence and the solving of these problems can be divided into two stages of raising problem and solving problem. The problems existing in the process of collecting and checking the tax inspection evidence he two aspects: the law environmental problems and the internal evidence. The law environmental problems include: the first is that the law system in our country lacks mother laws, which regulate the common elements in the single law, and this situation reduces the comprehensive force of law. The second is that the law in our country confers little authority to tax authorities. The third is that the tax law regulates the obligation of the taxpayer while does not regulate the responsibility or vice verse. In solving the problems, the author recommends the following schemes: first, perfecting the legislation; second, widening the limit of authority of tax authorities in collecting the evidence; third, strengthening the internal law construction in the tax authorities.
论文关键词： 税务稽查；税务稽查证据；审计证据；