Is it reasonable for Chen Youxi, Shanghai and Chongqing to levy property tax illegally?

First, the procedure of collecting property tax violates the provisions of the Constitution.

Article 56 of the Constitution stipulates that the people and citizens of China have the obligation to pay taxes according to law. Please note that the provisions here refer to "according to law", not according to administrative regulations, not even the orders of State Taxation Administration of The People's Republic of China, or even the documents of Shanghai and Chongqing tax bureaus. According to government documents, China citizens have no obligation to pay taxes. Because it is unconstitutional.

What is the national law? Article 58 of the Constitution: The National People's Congress and the NPC Standing Committee exercise state legislative power. Article 62 The National People's Congress exercises the following functions and powers: (3) To enact and amend criminal, civil, state organs and other basic laws; Article 67 The NPC Standing Committee shall exercise the following functions and powers: (1) To interpret the Constitution and supervise its implementation; (2) To enact and amend laws other than those that should be enacted by the National People's Congress; (4) Explain the law; (seven) to revoke the administrative regulations, decisions and orders formulated by the State Council that contravene the Constitution and laws;

Article 13 The lawful private property of citizens is inviolable. The state protects citizens' private property rights and inheritance rights according to law. Article 5 People's Republic of China (PRC) shall govern the country according to law and build a socialist country ruled by law. All laws, administrative regulations and local regulations shall not contravene the Constitution.

Therefore, these constitutional provisions clearly stipulate that citizens have the obligation to pay taxes only in accordance with the law, but not in accordance with administrative orders. If the decision of an administrative organ conflicts with the law, it shall be examined and revoked by the National People's Congress and its Standing Committee.

Two, the procedure of levying property tax violates the provisions of the Legislative Law.

Paragraph 2 of Article 7 of the Legislative Law stipulates that the National People's Congress shall enact and amend basic criminal, civil, state and other laws, and paragraph 3 stipulates that the NPC Standing Committee shall enact and amend other laws except those that should be enacted by the National People's Congress. Only the decrees promulgated by the National People's Congress and its Standing Committee in accordance with legal procedures belong to the "laws" explicitly stipulated in the Constitution.

Article 8 "Laws can only be enacted on the following matters: (8) Basic economic system and basic systems of finance, taxation, customs, finance and foreign trade". Article 9 "The National People's Congress and its Standing Committee have the right to decide and authorize the State Council to enact administrative regulations on some of the matters that have not been formulated in Article 8 of this Law, except those related to crimes and penalties, compulsory measures and penalties that deprive citizens of political rights and restrict personal freedom, and judicial system." Tenth "authorization decision shall specify the purpose and scope of authorization. The authorized organ shall exercise this power in strict accordance with the purpose and scope of authorization. "

Therefore, the tax law clearly stipulates in the constitution that only laws can be made. The National People's Congress Standing Committee (NPCSC) has no right to authorize the State Council to exercise it, let alone the Ministry of Finance of the State Council, State Taxation Administration of The People's Republic of China and other provinces. If authorized, or left unchecked, it is not only illegal, but also constitutes a serious dereliction of duty. On the tax system, the State Council has no legislative power, only executive power. State Taxation Administration of The People's Republic of China and the provincial and municipal governments are only the departments and subordinate institutions of the State Council, and have no legislative power. Only the tax laws already enacted by the National People's Congress can be strictly enforced. The reality in our country is that the tax power has been controlled by the executive power for 60 years, so that habit becomes nature. In fact, since the Constitution, especially after China promulgated the Legislation Law in 2003, the legislative power of this tax system has never belonged to the State Council and other administrative organs. But this is illegal and ultra vires.

Third, the introduction of property tax actually violates the reality that GDP and fiscal revenue are upside down and increases the burden on the people.

Has China reached the point where it has a fiscal deficit and must raise taxes on the people? No, our fiscal revenue has grown rapidly in recent years, and our foreign exchange reserves are so high that we buy high-risk international bonds indiscriminately. We have invested a lot of national reserves to buy the national debt of the first-class developed countries and become the largest creditors of the United States and Japan. In the "Fannie and Freddie Crisis" in the United States, China suffered heavy losses in foreign debt investment. At the same time, China's per capita national income is at the middle and lower level in the world. The people are not rich. Not rich enough to contribute more to the country.

The data of fiscal revenue and expenditure for the whole year of 20 10 on June 20th recently released by the Ministry of Finance shows that the national fiscal revenue in 20 10 was 8308 billion yuan, an increase of1456.2 billion yuan or 2 1.3% over the previous year. Among them, in June 5438+February, the national fiscal revenue was 634 billion yuan, an increase of121500 million yuan, an increase of 23.7%.

According to the data released by the National Bureau of Statistics on the 20th, in 20 10, the year-on-year growth of China's GDP was only 10.3%, which was 1. 1 percentage point higher than the previous year. If calculated at current prices, GDP growth 16.7%, fiscal revenue growth rate is still much higher than GDP growth rate.

Although officials of the Ministry of Finance have made various explanations, it is an indisputable fact that China's fiscal revenue has dried up. In the current situation of high housing prices, people's livelihood difficulties and constant complaints, it is necessary to increase state taxes and increase people's burden. What exactly do our government decision makers want to do?

Four, the introduction of property tax can not be an effective measure to curb housing prices, on the contrary, it may further push up housing prices.

China property tax will be introduced in such a hurry, without the demonstration and legislative deliberation of the National People's Congress. It is better to hold a hearing to adjust the price of water, electricity and electricity, obviously out of a simple need to suppress housing prices. I think tax collection can squeeze out some real estate houses and keep house prices down. Some experts also said in an interview with CCTV that the area below 60 square meters can be collected first and then returned, as if the property tax is really a good tax that only collects the rich and helps the poor. In fact, this is just a beautiful lie. Has anyone seen the tax bureau distribute the tax collected to the people?

Property tax is a kind of property tax levied by the state, which will only increase government revenue and increase people's burden. Property tax is a kind of property tax levied on property owners according to the taxable residual value or rental income of houses. 1September 5, 1986, the State Council issued the "Provisional Regulations on People's Republic of China (PRC) Property Tax", which came into effect on1October 6 of that year, and it was no longer collected from individuals continuously. Property tax is a tax levied on the property owned and controlled by legal persons and natural persons. This tax does not have the function of transferring funds to households without houses after recovery. Legally speaking, the whole people are the object of taxation. With the expected increase in national income and improvement in housing conditions, all the people are taxpayers and cannot be beneficiaries.

Li Dao, director of the Finance Department of Tsinghua University and a member of the Monetary Policy Committee of the Central Bank, said: The international real estate tax rate is generally 5/1000 or 8/1000. After levying real estate, the government will provide residents with public services such as sweeping streets and pruning branches. Therefore, foreign real estate tax is actually more like a kind of "super property fee". It is unrealistic for China to pin its hopes of lowering domestic housing prices on levying real estate tax.

At present, the appreciation of real estate in China is actually increased on the land, and the construction cost attached to the ground has not increased much. The biggest beneficiary of land transfer is the government. The government is the direct driver of the current high housing prices in China. Moreover, the land in China is not owned by the owner. The owner only owns buildings, but no land. This land is only leased for 70 years. Therefore, the property tax in China should be handed over to the landowner-the government; Moreover, the government also took away the extremely high auction land price at one time. Now it is necessary to levy land value-added property tax on building owners who have no land ownership.

In the context of the real estate market or the seller's market, the rigid demand has not declined. The introduction of property tax does not necessarily lead to a downward trend in housing prices-the government does not want to go down, and its interest base is too dependent on high housing prices-on the contrary, it may further push up housing prices. These losses of homeowners will be passed on to second-hand housing buyers and renters. Moreover, for soaring housing prices, the loss of property tax simply cannot squeeze out the accumulation of some homeowners. Unless the rigid demand disappears, the government and banks really want real estate developers to close down. Actually this day will never come. The government, banks and real estate developers have long formed an interest alliance. And people who rent houses are basically attached to these three. The opponent is only the final consumer in the primary food chain. Therefore, relying on property tax to suppress housing prices may be counterproductive, making rigid demanders increase their burden and even more unable to afford housing.

Therefore, no matter from the legislative procedure or the choice of substantive scheme, the administrative measures to levy property tax are illegal and cannot achieve its purpose. As a result, the income of local governments has increased, people's livelihood has become more difficult to survive, social contradictions have further accumulated, and the pressure for maintaining stability has become greater. This is a rash decision without scientific analysis, which may have long-term consequences.

-the above content comes from but strengthens the lawyer's personal anthology.