Identification and Disposition of Newly Arising Tax Claims in Bankruptcy Proceedings

서지정보

· 발행기관 : 한국채무자회생법학회
· 수록지 정보 : 회생법학 / 26호 / 379 ~ 406페이지
· 저자명 : 徐丽霞, 罗苑

초록

Tax law, based on the national interest, serves as the primary source of national revenue. Bankruptcy law, on the other hand, focuses on societal interests, rooted in equitable treatment of creditors and debtors, and the enhancement of the economic order of market exit mechanisms. The former pertains to the management and regulation of taxpaying entities operating under normal conditions, while the latter encompasses specific regulatory provisions for entities operating under abnormal circumstances. Inevitably, there exist discrepancies between these two legal domains, both in terms of legislation and implementation, resulting in contentious issues surrounding the treatment of tax claims in bankruptcy proceedings. The disposition of tax claims in bankruptcy proceedings is important, impacting crucial matters such as the market economy and societal interests. Therefore, it is imperative to seek a balance in addressing the treatment of newly arising tax claims in bankruptcy proceedings.
The first part of the article employs case studies to elucidate the challenges and dilemmas associated with the treatment of taxes generated after the registration of bankruptcy. On the one hand, at the substantive level, it pertains to the characterization of the newly generated taxes (that is, taxes generated after the date of bankruptcy acceptance) from the date of bankruptcy acceptance, specifically whether they should be categorized as "bankruptcy expenses and common debts." On the other hand, at the procedural level, it involves the question of whether the tax authority is allowed to forcibly withhold and collect taxes generated by the bankrupt entity during the bankruptcy process before the distribution of the bankruptcy estate.
The second part of the article discusses the reasons for the above-mentioned disputes through the conflict of provisions between the tax law and the bankruptcy law.
The third part discusses the identification of the nature of the new tax from the level of substantive law. This article argues that legislation should establish different provisions regarding the nature of new tax claims generated by debtor companies after entering bankruptcy proceedings, depending on the type of the newly generated taxes. First, taxes generated from the disposal of the debtor company’s assets by the administrator, such as value-added tax and stamp duty, should be classified as bankruptcy expenses.Second, taxes generated from the administrator's decision to continue performing contracts should be classified as public interest debts. Third, a distinction needs to be made regarding property tax and urban land use tax automatically generated from debtor companies' real estate holdings based on whether the bankrupt company continues its operations. If the company is still operating, these taxes should be classified as public interest debts. Fourth, for property tax and urban land use tax, in the case of companies that have ceased operations, the tax authorities should provide exemptions or non-payment options for these taxes.
The fourth part discusses from the level of procedural law and puts forward legislative suggestions and optimization measures. Firstly, it proposes clarifying the exceptions to compulsory withholding in Article 40 of the "Law of the PRC on the Administration of Tax Collection" by explicitly excluding bankrupt assets from its scope. Secondly, it suggests incorporating the tax authorities' compulsory measures into the system of suspending preservation measures and enforcement procedures in the "Enterprise Bankruptcy Law." The last part summarizes the whole article and eiterates the purpose of this article which is providing some insights into addressing the challenges posed by new tax claims in bankruptcy proceedings of Chinese enterprises.

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