企业破产税收债权问题研究

发布时间：2018-04-25 20:21

本文选题：破产 + 税收债权　；参考：《华东政法大学》2015年硕士论文

【摘要】：税收优先权是研究破产清算中税收债权实现问题的非常重要的问题,税收优先权的基础是税收债权具有较强的公益性。国家维护公共利益、维系政权机构、国防力量等国家机器的正常运作,要为社会全体成员提供公共产品和公共服务,这都是需要雄厚的资金的,而税收无疑是提供该资金的最重要的来源,所以税收具有强烈的公益性。这也是税收优先权存在的最重要的原因。另一点是基于税收债权承担的风险性。普通债权的偿还风险由特定债权人承担,而税收债权一旦得不到偿还首先由作为债权人的国家承担,但是,政府最终会通过增加税率或税额等方式将在特定破产案中所遭受的损失转嫁给其他纳税人,这意味着由其他无辜的纳税人分摊了本应由破产人承担的债务。相比于普通债权具有对待给付的特点,其风险性体现为,税收债权缺乏对待给付,税务机关与纳税人之间信息不对称,税收的保障手段受到很大限制,并且我国目前的状况是纳税人的纳税意识不强,所以税收债权的实现比其他普通债权更加困难。因此,赋予税收债权优先权有助于税款的征收,维护国家的利益。但是最近几年,越来越多的学者开始质疑税收优先权的合理性,越来越多的学者提出公益价值不等于绝对价值,税收债权虽然是含有公益性,但是凌驾于普通债权之上也并不是那么合理、公平;尤其是在企业破产时,往往面对资不抵债的情形,普通债权人的利益往往得不到保障,这时候税务机关还凭借着税收优先权优先受偿,未免有与民争利之嫌。本文分为四部分,第一部分主要论述税收债权的概述、税收债权在破产法中的地位;第二部分主要论述我国税收优先权制度,从其概念、范围、存废之争等方面展开,并基于目前我国的国情,税法领域的法律法规还不是很健全,纳税人的纳税意识不高,欠缴税款,甚至偷漏税的现象都很严重。而我国立法中也一贯赋予了税收债权以优先权予以特别保护,如果突然之间将税收的一般优先权全面取消,可能会让人一时无法接受。所以,笔者建议,保留一部分满足一定条件的税收债权的一般优先权,也可以换一种表达,即将税收优先权的范围进行进一步的限定与明确。第三部分从几个案例入手,具体分析税收债权在破产清算中实现时所存在的问题,然后从破产中税收债权数额的确定、申报机关、以及申报期限等方面介绍税收债权在破产清算中的实现,并结合税收优先权制度分析不同税收债权是否均享有优先性,税收征管法与破产法对税收债权与担保债权优先性的冲突着手,提出问题,并给出合理解决方案;第四部分结合美国和德国的税收债权在破产法中的地位,借鉴其好的方面从防止税收流失角度与保护普通债权人利益角度分别提出建议以完善我国破产法中相关税收债权的制度,并结合文章前三章的论述,对重新构建我国《企业破产法》中破产债权的受偿顺位提出了自己的建议。笔者建议,从防止税收流失角度:1.在《企业破产法》中明确不同税收债权的申报机关。笔者建议采用“统一确定破产企业所在地的市级国家税务机关为税收破产债权的申报主体,内部专设机构和人员负责征缴破产企业的税收,相关征税机关协助其确认税收债权,债务清偿所得比例和预算级次分别缴入国库。”的观点。2.在《企业破产法》中明确规定法院有通知税务机关进行债权申报的义务,并给予根据实际情况合理延长申报期限的权利。3.在《企业破产法》中明确规定剔除关联企业破产中不正当关联担保债权的特殊优先性。4.在《企业破产法》中明确规定破产新生税收的性质为破产费用,应随时清偿。5.在《企业破产法》中明确规定,税务机关有义务及时准确进行债权申报,逾期未申报的债权不视为自动放弃债权,适用破产法第五十四条的规定;对未尽到勤勉义务导致税收债权逾期未申报的税务机关相关人员进行处罚,构成犯罪的追究其刑事责任,不构成犯罪的追究其行政责任。6.在破产法中明确规定税务机关作为债权人会议成员参加债权人会议时享有表决权,有权审查有关债权的证明材料,确定债权有无财产担保及其数额,讨论通过和解协议草案,讨论通过破产财产的处理和分配方案。从保护普通债权人利益角度:1.在《企业破产法》中明确规定享有优先权的税收债权的时间限制与条件限制,例如,规定企业破产前的一年时间或半年时间内已经被做出追缴通知书的税收债权享有优先权。2.在《企业破产法》中规定除上述规定外的未超过诉讼时效的税收债权均作为普通债权受偿,其中,因企业逃避税收征管所欠税款不能清偿部分,破产债务人的主要责任人员承担连带责任。3.在《企业破产法》中规定基于具体破产案件的实际情况,考虑到普通债权人利益的保护,破产中的新生税收债权,征得税务机关的同意可以免除。
[Abstract]:Tax priority is a very important issue in the study of the realization of tax claims in bankruptcy liquidation. The basis of tax priority is that tax claims have strong public interest. The state maintains public interests and maintains the normal operation of state machinery, such as power institutions and national defense forces, and provides public and public services for all members of the society. This is the most important source of the money, and the tax is undoubtedly the most important source of the fund, so the tax has a strong public interest. This is the most important reason for the existence of tax priority. Non repayments are first undertaken by the country as a creditor, but the government will eventually transfer losses to other taxpayers in a particular case of bankruptcy by increasing the tax rate or tax, which means that the other innocent taxpayers share the debts that should be borne by the bankrupt. The characteristics of payment are that the tax debt is lack of treatment, the information asymmetry between the tax authorities and the taxpayers, the means of tax protection are greatly restricted, and the current situation in our country is that the taxpayer's tax consciousness is not strong, so the realization of tax credit is more difficult than other ordinary claims. Therefore, tax debt is given to tax debt. The right priority is helpful to the Levy of tax and safeguard the interests of the state. But in recent years, more and more scholars have begun to question the rationality of tax priority. More and more scholars have proposed that the value of public welfare is not equal to absolute value. Although the tax claims are public welfare, it is not so reasonable as to override the ordinary creditor's rights. In the case of enterprise bankruptcy, especially in the case of insolvency, the interests of the ordinary creditors are often not guaranteed. At this time, the tax authorities also rely on the priority of tax, which is not inevitable. This article is divided into four parts. The first part mainly discusses the summary of the tax creditor's right and the tax creditor's right in the bankruptcy law. Status; the second part mainly discusses the system of tax priority in our country, from its concept, scope, the dispute of existing and abolishing, and based on the current national conditions of our country, the laws and regulations in the field of tax law are not very sound, the taxpayers' consciousness of tax payment is not high, the tax payment is not paid, even the phenomenon of tax evasion is very serious. Tax claims are specially protected by priority, and if the general priority of tax is cancelled suddenly, it may not be acceptable for a moment. Therefore, I suggest that the general priority of a part of the tax claim which satisfies certain conditions can be retained, and a kind of expression can be changed, and the scope of tax priority will be further extended. The third part, starting with several cases, analyzes the problems existing in the realization of tax claims in bankruptcy liquidation, and then introduces the realization of tax claims in bankruptcy liquidation from the determination of the amount of tax claims in bankruptcy, the declaration organs, and the period of declaration, and analyzes different taxes in combination with the tax priority system. Whether the creditor's right has priority, the tax collection and management law and the bankruptcy law set about the conflict between the tax claims and the priority of the secured creditor's right, put forward the problems and give a reasonable solution. The fourth part combines the status of the tax claims in the bankruptcy law in the United States and Germany, and draws on the good aspects of the tax loss angle and the protection of the ordinary creditor's right. In the perspective of human interests, suggestions are put forward to improve the system of related tax claims in the bankruptcy law of our country. And with the discussion of the first three chapters of the article, the author puts forward some suggestions on reconstructing the repaid position of the bankrupt creditor's right in the enterprise bankruptcy law of China. The author suggests that from the angle of tax loss prevention: 1. clear different taxes in the enterprise bankruptcy law. The author recommends that the state tax authorities at the municipal level of the bankrupt enterprise be used to make the declaration subject of the tax bankruptcy claims, and the internal institutions and personnel are responsible for the collection of the tax of the bankrupt enterprises, and the relevant tax authorities assist them to confirm the tax claims, the proportion of the debts paid and the budgetary grades respectively. "State treasury.".2. in the enterprise bankruptcy law clearly stipulates that the court has the obligation to notify the tax authorities to declare the creditor's rights, and gives the right to prolong the period of the declaration according to the actual situation,.3. clearly stipulates in the enterprise bankruptcy law that the special priority of eliminating the undue associated guarantee claims in the bankrupt of the affiliated enterprise.4. is broken by the enterprise. The property law clearly stipulates the nature of the tax of the bankruptcy freshman as the bankruptcy cost, and it should be paid at any time to clear the.5. in the enterprise bankruptcy law. The tax authorities have the obligation to declare the creditor's rights in time and accurately. The undeclared claims are not regarded as the automatic waiver of the creditor's right, and the fifty-fourth provisions of the bankruptcy law are applicable. The relevant personnel of the tax authorities who have not declared at the time of time are punished, constitute the criminal responsibility, and do not constitute the administrative responsibility of the criminal investigation..6. clearly stipulates in the bankruptcy law that the tax authorities have the right to vote when they participate in the meeting of creditors as a member of the creditors' meeting, and have the right to examine the proof of the creditor's rights and determine the creditor's rights. If there is a property guarantee and its amount, it is discussed through the draft settlement agreement to discuss the treatment and distribution of the bankruptcy property. From the point of view of the protection of the interests of ordinary creditors, 1. in the enterprise bankruptcy law clearly stipulate the time limits and conditions for tax claims with priority, for example, one year or half a year before the bankruptcy of the enterprise. The tax claim that has been made in time has been given priority.2. in the enterprise bankruptcy law, which stipulates that all the tax claims which are not exceeding the limitation of action except the above provisions are paid as ordinary claims. Among them, the main responsible personnel of the insolvency debtor are jointly and severally responsible for the enterprise escaping tax collection and management. Liability.3. stipulates in the enterprise bankruptcy law the actual situation on the basis of specific bankruptcy cases, taking into account the protection of the interests of the ordinary creditors, the new tax claims in the bankruptcy, and exempted from the consent of the tax authorities.

【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.92

【参考文献】