Published In

Asia Pacific Law Review

Document Type

Article

Publication Date

2011

Subjects

Rule of Law; Normative Documents; Chinese Taxation; Administrative Litigation; Judicial Review; Law-Making Procedure; Rulemaking

Abstract

In December 2009, in just weeks of proximity to the issuance of several controversial, arguably ultra vires tax circulars by the Ministry of Finance and by the State Administration of Taxation (SAT), the latter agency promulgated a seminal regulation governing informal rulemaking activities of all tax authorities in China. This regulation took effect on July 1, 2010, and promises to significantly improve the clarity, transparency, predictability, and quality of tax rulemaking. Ironically, it can also be seen as a rebuke to a cynical view that is rather prevalent among Chinese tax practitioners and reinforced by the recent problematic tax circulars. This is the view that legal order does not matter in Chinese tax administration because the government does not care about such order and taxpayers are unwilling to enforce it, and that therefore informal rules issued by the government should be given full weight even if they contradict law of higher authority and/or are inconsistent with each other. The new SAT regulation on informal rulemaking is just one illustration of the dynamic development of the rule of law in taxation in China. This essay takes the new regulation as an occasion for examining the question: what is “law” in Chinese tax administration? Three views are described: one that is embodied in the Law on Legislation; another that tends to treat all government announcements as having the force of law; and a third, embodied in the new SAT regulation, that differs from both.

Included in

Tax Law Commons

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