Legal thinking on the introduction of property tax in China
Published:
2010-07-01
Summary:China's real estate market has developed rapidly in recent years and has become one of the important pillar industries of China's national economy. However, China's current real estate tax system still basically follows the old economic system and the system under the background of the times, which has exposed various problems. Levying property tax on real estate ownership is a common practice in developed countries in the world, and it is also the general trend of the development of my country's real estate market. Property tax reform is a systematic project, which needs to be deeply analyzed.
Key words:Property tax Property tax reform Legal thinking
At the end of the last century and the beginning of this century, China's real estate market is booming. In recent years, the real estate industry has developed rapidly and has become one of the important pillar industries of China's national economy. However, China's current real estate tax system is still basically the old economic system and the system under the background of the times, has exposed a variety of drawbacks. In October 2003, the "Decision of the Central Committee of the Communist Party of China on Several Issues Concerning the Improvement of the Socialist Market Economic System" passed by the Third Plenary Session of the 16th Central Committee of the Communist Party of China pointed out: "Implement the reform of urban construction taxes and fees, and levy a unified and standardized property on real estate when conditions are met. Tax, cancel the relevant fees accordingly." This decision is the first time that China has clearly put forward the idea of levying property tax on real estate. Looking at the legislative status of the real estate tax system in various countries in the world, combined with the rapid development of China's real estate market, we can conclude that the introduction of property tax is the inevitable product of economic development and market reform, and it is the general trend of China's real estate tax reform.
In October 2005, the Fifth Plenary Session of the 16th Central Committee of the Communist Party of China once again put forward the development idea of "steadily implementing property tax" in the "Proposal on Formulating the Eleventh Five-Year Plan for National Economic and Social Development". In addition, with the sharp rise in house prices in recent years, the proportion of speculative house purchases has been continuously increased, and property tax has aroused a new round of heated discussion. Chinese government departments and news media have once again focused on property tax, the issue of property tax collection is frequently discussed and reported in the major media. The reform of property tax will not only change the existing pattern of the operation of the whole real estate industry, but also affect the fundamental interests of the broad masses of the people. Therefore, the reform of property tax is of great significance. On the basis of clarifying the concept of property tax, this paper discusses and analyzes whether property tax should be levied, how to levy, explore the international experience and practice of property tax and how to construct the legal system of property tax in China.
The basic concept of 1. property tax.
The basic premise of correctly carrying out the reform of the legal system of property tax and levying property tax scientifically and effectively is to analyze the property tax in depth theoretically.
The term "property" originated in Hong Kong and some countries in Southeast Asia. The meaning of property, Hong Kong scholar Mr. Li Zong-e explained in his book "Hong Kong Real Estate Law": property is unit real estate, a residential unit is a property, a building is a property, and a farm is also a property. Properties can be large or small, and large properties can be divided into small properties.[1]The formulation of property tax is also different in different countries and regions. It is called "real estate tax" in Japan; it is called "municipal tax" in Britain; it is called "residential tax" in France; and the so-called "property tax" in the United States is a kind of "property tax. However, no matter how much the specific name of the property tax varies from country to country, the basic meaning it outlines is not fundamentally different, that is, a tax levied on the owner or user of real estate on the premise of ownership or control of real estate and on the basis of the assessed value of real estate.
Through the above basic understanding of property tax, we can define the concept of property tax as: based on the value assessment of real estate such as land and houses, the tax burden levied on land users and house owners, and the tax burden varies with the market value of land and houses. Property tax is a tax levied on the property ownership link, and the realization of its collection will also lead to the merger of the current property tax, land value-added tax and urban land use tax.
International Experience of 2. Property Tax
Although the object of property tax in countries and regions around the world is land and housing, but from the practice of countries and regions around the world, the legislative model of property tax is not the same, the subject of collection, the scope of collection, collection methods, tax methods are very different. Through the introduction and thinking of the representative legislative model, the author hopes to have reference significance for the construction of the property tax system in line with China's national conditions and economic development. Looking at the legislative models of countries around the world, there are three main types:
(I) general property tax model
The general property tax model is a property tax levied on the taxpayer's entire property. The general property tax is levied on all property of the subject being taxed, including movable and immovable property, and is not limited to the scope of immovable property (land and housing). Therefore, there is a big difference between the legislative concept and the management of the general property tax and the pure real estate tax. The tax collection and management system is relatively complete and advanced countries and regions generally adopt the general property tax model, and its supporting system is also more mature. The main countries that adopt the general property tax model are the United States, Canada and so on.
(II) individual property tax model
Individual property taxes are levied on certain specific property owned or controlled by the subject of the tax, such as property and land, and the taxpayer is generally the owner or right-of-use person of the specific property (land or house). The individual property tax model has lower requirements for the tax management system than the general property tax model, so it is more common for developing countries to adopt the individual property tax model.
(III) regular real estate value-added tax model.
Regular real estate value-added tax is a property tax levied on owners who occupy land and houses for more than a certain period of time. A tax levied on the value of land and houses that have exceeded a certain period of time to determine their market value. Looking at countries that adopt a fixed-term real estate value-added tax model, the model generally includes two specific methods of collection: 10-year value-added tax and 5-year value-added tax. The 10-year value-added tax is mainly the tax levied by the state on the land value-added part driven by the urban economic development; the 5-year value-added tax is mainly the tax levied by the state on the land value-added part driven by the improvement of municipal supporting projects. The real estate value-added tax currently levied by Ruyi Italy is a tax on the land value-added part of the land owner driven by the development of the urban economy. The current land excess profits tax in South Korea is a tax levied on the land owners due to the increase in land prices driven by the improvement of municipal supporting projects. With the development of economy and society, most countries that have adopted the regular real estate value-added tax model have abandoned this legislative model and adopted the general property tax model or the individual property tax model.
3. the construction of the legal system of property tax in China.
Property tax, as a tax levied at the stage of real estate ownership, plays a very important role in restraining the irrational rise of real estate prices in China, promoting the health and prosperity of the real estate secondary market, and vigorously promoting the development of land-intensive economy. The "the People's Republic of China Property Law" promulgated and implemented in 2007 provides a legal basis for the legislation and collection of property tax, and clears the institutional obstacles to property tax legislation.
(I) Choice of Legislative Model of Property Tax in China
Through the above introduction to the legislative model of property tax, it can be seen that there are two legislative models that are more common in the world, namely, the general property tax model and the individual property tax model. Different countries have different levels of economic development and land resources, so they have chosen different legislative models. Generally speaking, countries and regions with more developed economic level, more perfect tax management system and strong tax awareness of taxpayers usually adopt the legislative model of general property tax. The general property tax legislation model taxes the property owned by the taxpayer, including movable and immovable property, and the taxpayer corresponds to different tax rates depending on the amount of property and the different structure of the property. The tax collection and administration authorities need to have a full grasp of all the property and the structure of the property owned by the taxpayer in order to calculate the taxable amount according to the different tax rates according to the taxpayer's property situation. As a result, the general property tax model has higher requirements for tax supporting systems (e. g., property assessment systems). In addition, the general property tax legislation model also requires taxpayers to have a strong sense of tax.
The individual property tax model is taxed on the taxpayer's specific property (generally land and housing), and the taxpayer is generally the owner or user of the specific property (land or housing). Compared with the general property tax model, the individual property tax model has lower requirements for tax collection and management technology and supporting systems for tax collection and management, and lower requirements for taxpayers' tax awareness. The effective implementation of the individual property tax system needs to be combined with an effective real estate registration system, which is taxed on the basis of registered land and houses. Individual property tax models are mostly used by developing countries because of the above characteristics.
The author thinks that the ideal model of property tax legislation in China is to adopt the individual property tax model. The reasons are as follows: First of all, the tax collection and management technology and tax collection and management supporting system of tax authorities in our country at this stage are not very perfect, and the taxpayer's tax consciousness is not strong enough. The general property tax model is based on different tax rates for all taxpayers' property, including movable and immovable property. Although this tax system is more advanced, it can maximize the balance between the interests of the state and the interests of taxpayers and the interests of taxpayers. However, it is a very severe test for the establishment of tax collection and management technology and supporting systems and taxpayers' tax awareness in China. According to the current situation of China's economic development, combined with the actual situation of China's real estate market, the author believes that the use of individual property tax model is an ideal choice for our country at this stage. Secondly, from the perspective of the composition of household property of Chinese residents, the proportion of major household durable consumer goods is relatively small, and most of them are necessities of life. my country does not have the conditions for taxation of such movable property; housing assets account for the proportion of household property Larger, and the implementation of my country's housing registration system is relatively strict, so the ideal model of my country's current property tax legislation should be to adopt an individual property tax model. Moreover, in the scope of taxation, China's property tax should also be limited to land and housing, land, housing combined to collect real estate tax, that is, property tax.
Distribution of (II) Property Tax Power
Generally speaking, the power of property tax is divided into three basic aspects: the legislative power of property tax, the right of property tax income and the right of property tax collection and management. The following are discussed separately:
① Distribution of legislative power over property tax
The tax legislative power is the most core tax power of the state, and it is also the key to the rational and effective distribution of central and local tax power. Therefore, the first problem that needs to be solved in the reform of property tax is: what subject has the tax legislative power and how to exercise the tax legislative power. According to the analysis of the relevant legal provisions of the the People's Republic of China Legislation Law and the the People's Republic of China Tax Collection and Administration Law, the legislative authority on property tax should be all concentrated in the National People's Congress and the relevant government departments of the State Council, and must be promulgated in the form of laws or administrative regulations. However, my country has a vast territory and economic development is very uneven. The housing conditions and income of residents in various regions are quite different. Therefore, it is difficult to achieve unified legislation on property tax and cannot be based on the actual conditions of various regions. Do overall planning. Therefore, the author believes that under the premise of formulating basic laws and administrative regulations on property tax, the National People's Congress and relevant departments of the State Council can give due consideration to authorizing local people's congresses and government departments to formulate detailed rules for the implementation of property tax collection in accordance with the economic conditions and actual conditions of the region. Such distribution of property tax legislative power can not only realize that local people's congresses and government departments can choose relatively reasonable tax rates and specific collection and management measures according to local conditions within the scope of authorization of basic laws and administrative regulations, but also conform to the common practice of legislative power distribution in our country.
② Distribution of property tax revenue rights
The tax revenue rights of the local government and the central government are mostly divided in the form of laws enacted by the highest authority, which is a constraint on the central government and a protection for the local government.[2]According to the current international practice, property tax is regarded as a kind of local tax, and the local government has the right to the income of property tax. The author believes that compared with the developed countries in the world, my country still has certain particularities, because the economic development of my country's eastern and western regions is very unbalanced, and the regional differences are very large. If the income right of property tax is completely under the control of the local government, it will It is very likely to cause the situation of widening the regional economic gap, which is not conducive to the realization of the central government's adjustment of the development gap between regions, and the central government to support the central government. Therefore, the author believes that according to the actual situation of our country, the income right of property tax can be shared by the central government and the local government. The income right of the local government accounts for a larger proportion, and the income right of the central government accounts for a smaller proportion, which can not only mobilize the local government. The enthusiasm of China can also take into account the current situation of unbalanced economic development in China.
③ Property tax collection and management rights
As mentioned above, property taxes should be divided into local taxes, which should be collected and administered by the local tax authorities. The author believes that China's local tax authorities can exercise the right to collect and manage property tax in accordance with the law for the following reasons: first, property tax, as a tax levied on real estate insurance, is closely related to local governments. Real estate is located within the administrative jurisdiction of the local government, and the real estate registration is controlled by the real estate administration of the local government. Therefore, the local tax authorities have a natural advantage in the collection and management of property tax. Second, the property tax is levied on the basis of the value of the real estate holding stage, and due to the different conditions such as the location of the real estate, it is necessary to evaluate the value of the real estate, so the need for supporting assessment methods and assessment agencies. Therefore, the collection cost of property tax is high and the management is difficult. The central government departments do not have the corresponding conditions to uniformly exercise the power of property tax collection and management. If the power of property tax collection and management is handed over to the local government, it can mobilize the enthusiasm of the local government, effectively monitor the tax source, and timely and full tax collection and storage. Third, local tax revenue is mainly used to provide taxpayers with excellent public goods and services, such as municipal construction, maintenance of public order and so on. Property tax belongs to the local tax, which is collected and managed by the local tax authorities in a unified way, and the income tax is taken from the people and used by the people, which fully embodies the principle of benefit taxation.
Merging of (III) property tax and related taxes
The reform of China's property tax collection system is not simply a new tax levied by merging the various taxes and fees levied in the real estate field in China, but a series of reforms aimed at the tax system of the real estate retention link. The Third Plenary Session of the 16th Central Committee of the Communist Party of China proposed to "levy property tax" and also proposed to "cancel relevant taxes and fees accordingly". It can be seen that the collection of property tax involves the merger of relevant taxes and fees. However, the Third Plenary Session of the 16th Central Committee of the Communist Party of China did not clarify which taxes and fees in the real estate field of our country should be incorporated into the property tax and which taxes and fees should continue to be retained. At present, China's academic circles for which taxes and fees should be incorporated into the property tax, which taxes and fees should continue to retain also did not form a consensus. Therefore, the author believes that it is necessary to be clear about the merger of relevant taxes and fees in the real estate field.
① Land value-added tax shall be incorporated into property tax.
Land value-added tax refers to units and individuals that transfer state-owned land use rights, buildings on the ground and their attachments and obtain income, and pay a tax to the state on the basis of the income obtained from the transfer, including monetary income, in-kind income and other income, excluding the act of transferring real estate free of charge by way of inheritance or gift.[3]Land value-added tax is based on the value-added part of the real estate transfer, which belongs to a kind of capital gains tax. Therefore, the author believes that the collection of land value-added tax should be incorporated into the property tax. The reasons are as follows:
First of all, land value-added tax and property tax are both taxes levied by the government on land and real estate. They are of the same nature, except that land value-added tax is levied on the value-added of land and real estate transactions, while property tax is levied on the retention of land and real estate. The collection conditions of the two taxation methods are different. Land value-added tax focuses on the transfer of land and real estate; while property tax focuses on the retention. Property tax and land value-added tax can only choose one levy, otherwise it will cause the phenomenon of double taxation.
Secondly, China's land value-added tax is the implementation of the excess progressive tax rate form, its tax burden is relatively high. From the practice of China's real estate market, in order to avoid the burden of higher land value-added tax, taxpayers either do not easily transfer land use rights and buildings on the ground, resulting in the unfavorable situation that land and real estate can not be effectively used; or dispose of land and real estate unreasonably with a lower value-added amount to avoid high tax burden. Therefore, the collection of land value-added tax is not conducive to guiding the owners and users of land and real estate to make effective and reasonable use of land and real estate, resulting in unnecessary waste and idleness. Property tax is levied on the retention of land and property, which can effectively avoid the above-mentioned adverse situation.
Thirdly, as an important carrier form of family property and business property, the increase of land use right and house ownership has a very important relationship with the development of the whole social economy and the improvement of the city's related supporting facilities. The appreciation of real estate is a gradual process, which is constantly changing with the different conditions. Therefore, the government's taxation of land and real estate should also be a gradual process, that is, taxation should be levied on the retention link, and should not be The final transaction of land and real estate will realize the national taxation. At present, my country mainly collects land value-added tax, and does not tax non-transactional real estate that has also realized value-added, which obviously forms an unequal phenomenon in economic benefits.
Finally, according to the international practice, after the land value-added tax is incorporated into the property tax, the part of the land value-added can be incorporated into the general income items for income tax. Therefore, income tax can be levied on the transfer of real estate as the general income of enterprises or individuals, including corporate income tax and personal income tax.
② Property tax shall be incorporated into property tax
The property tax is based on the house..[4]It can be seen that the property tax takes the house as the tax object, and it is also a tax levied on the housing ownership link, which coincides with the property tax in nature. Property tax covers a wider range than property tax. Property tax is a tax levied on land and housing tenure. It includes not only the taxation of housing tenure, but also the taxation of land tenure. Therefore, the property tax should be incorporated into the property tax.Property tax, a levy on the owner of the property.
③ Urban land use tax should be incorporated into property tax.
Urban land use tax is a tax levied on units and individuals with urban land use rights according to their use area, and its tax object is urban land use rights. Urban land use tax is a tax levied on the tenure of land use rights, which coincides with the collection of property tax in nature. Property tax covers a wider range than urban land use tax. Property tax is a tax levied on land and housing tenure. It includes not only the taxation of housing tenure, but also the taxation of land tenure. Therefore, the urban land use tax should be incorporated into the property tax.
④ Land transfer fees should not be incorporated into the property tax and should continue to be retained.
Property tax and land transfer fees are different in nature and should not be combined. First of all, the property tax is a property tax levied on the real estate tenure link, while the land transfer fee is the price of the land, is the land consideration paid by the transferee to the transferred land, the two belong to different economic categories. Secondly, paying taxes according to law is a legal obligation of citizens, which is legal, free and compulsory. It is a part of the government's financial revenue and has the function of regulating the economy. The land transfer fee belongs to the market category, which is the market price corresponding to the transfer of land use right within a certain period of time, and the collection of land transfer fee, it is the land use fee charged by the landowner (in our country, only state-owned and collectively-owned) to the land transferee on the basis of land ownership.
⑤ Deed tax should not be incorporated into property tax
House ExchangeWait.[5]Deed tax, yes.CovenantsDeed tax is a kind of property tax levied on the owner of the property right, which is taxed on the real estate whose ownership has changed. The scope of tax payable includes: the sale, gift and exchange of land use rights, the sale of houses, the gift of houses,The tax levied is a property transfer tax and is paid by the property bearers. The deed tax is a property transfer tax, while the property tax is a property retention tax, which is different in nature and cannot cover each other. The two taxes are levied by the government separately for the property retention stage and the property transfer stage, and the two are taxed for different purposes, so the deed tax should not be incorporated into the property tax.
In summary, property tax, as a key tax in the reform of my country's real estate taxation system, covers some of the current taxes in the real estate field, including land value-added tax, real estate tax, urban land use tax, etc., and is related to the real estate field. Effective integration. Therefore, the introduction of property tax will make the tax system in China's real estate field more reasonable and promote the healthy development of the real estate market more effectively.
The collection of property tax is an important step in the reform of tax and fee in the field of real estate in China, and it is also an inevitable trend of economic development and social progress. The introduction of property tax can not only restrain the irrational rise of the real estate market, but also achieve the goal of intensive land use in our country, and rationally allocate our real estate resources to achieve the best use of things. The reform of property tax is an extremely complex systematic project, which is not only related to the rationality of the tax system in the real estate field of our country, but also related to the overall situation of the sustainable and healthy development of the entire real estate field. Therefore, the reform of property tax should not only learn from the advanced international experience, but also start from the actual situation of our country and implement the system reform in line with our national conditions. The collection of property tax involves finance and taxation, economics, macro-control, law and other disciplines. Its theory is extensive and profound. The author is limited by academic ability. It is only a preliminary attempt to the legal thinking of levying property tax in my country, with a view to throwing bricks and attracting jade. The academic community attaches great importance to it and better provides a theoretical basis for the reform of property tax.
References
1, Zhang Qing: "Property Tax Research", China Financial and Economic Publishing House, 2006 edition;
2. Fu Boying and Yuan Xinli: "Foreign Tax System", Northeast University of Finance and Economics Press, 2007 edition;
3. Li Yanlong and Zhou Ke: Real Estate Law, Renmin University of China Press, 2005 edition;
4. Chen Zhimei, International Comparative Study of Tax System, Economic Science Press, 2000;
5. Wang Hongwei, Research on the Reform of Real Estate Rent and Tax, Shanghai University of Finance and Economics Press, 2005;
6. Liu Longheng, Property Tax Law, Peking University Press, 2006;
7. Yang Dachun: The Change and Reform of China's Real Estate Tax Legal System, Jiangsu University Press, 2007.
[1]Li Zong-e, Hong Kong Real Estate Law, Hong Kong Branch of the Commercial Press, 1988 edition, pp. 9-10.
[2]Liu Jianwen and Xiong Wei, Basic Theory of Tax Law, Peking University Press, 2004, pp. 45-52.
[3] http://baike.baidu.com/view/ 58986.htm. VisitAsk on March 22, 2010.
[4] http://baike.baidu.com/view/ 53744.htm.Visiting time on March 22, 2010.
[5] http://baike.baidu.com/view/ 30882.htm.Visiting time on March 22, 2010.
(This article won the third prize of Jinan excellent lawyer paper in 2010)
Key words:
Previous article
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
Business License
