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《亚洲法律杂志》(ALB)专访刘天永:追寻税法的公平与正义

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编者按:2018年4月19日,《亚洲法律杂志》(ALB)公布了2018年JC Consulting汤森路透ALB中国法律大奖最终获奖名单,华税律师事务所再度摘得“最佳税务律师事务所”大奖桂冠。6月,华税律师事务所主任刘天永律师应邀接受《亚洲法律杂志》的专访,向ALB介绍了国内税务律师行业的发展现状、华税律师事务所的成功经验以及他在国内税法服务市场中深耕细作十余年的心得感悟。现将刊登于2018年第6期《亚洲法律杂志》的专访文章(双语版)转载于此,以飨读者。

 

追寻税法的公平与正义:

专访华税律师事务所主任刘天永律师

 

华税律师事务所成立于2006年,总部位于北京,是中国第一家专业化税法律师事务所,在2017年、2018年两度斩获汤森路透ALB中国法律大奖“最佳税务律师事务所”奖项。本土化的定位和专业化的坚守让华税在业界赢得了卓越的口碑。

华税的创始合伙人刘天永律师是税务律师行业的领军人物,不仅见证了中国税务律师行业从无到有的历程,也对税务律师在中国的发展起到了重要的推动作用。

ALB:华税是国内设立最早的专业化税法律师事务所,作为国内税务律师行业的领军人物,可否请您介绍下华税律所以及国内税务律师行业的发展情况?

刘天永: 税务律师的出现是法律服务市场细分的客观需要,也是律师专业化发展的必然结果。相较国外,税务律师行业在中国刚刚起步,尚有不少差距,但有广阔的发展前景。随着财税体制改革的深入和税收法治环境的完善,税法的刚性在不断增强,税法服务市场需求必将不断增长,涉税法律服务已经成为国内法律市场的一片新蓝海。

作为国内第一家税法专业化律师事务所,华税算得上是这一领域的拓荒者。十多年来华税秉持专业化和本土化的发展战略,在税法服务领域深耕精作,服务了一大批国内外知名企业,夯实了自身品牌和专业的核心竞争力,得到了客户和业界的一致认同。

ALB:华税在税法服务领域主要为客户提供哪些服务?您本人更侧重的服务领域是什么? 刘天永:华税提供的税法服务主要是税务争议解决和税务筹划。除律所内部管理和外部关系维持外,我本人会把更多的时间和精力投入在税务争议解决业务上,不仅仅是因其更能展现华税的专业价值,更是因为我希望以个案推动税法整体的公平与正义,实现税务律师的社会价值。

ALB:在帮助客户解决税务争议类案件上,华税的竞争优势体现在哪些方面?

刘天永:在解决税务争议方面,我们通常为客户提供的服务包括税务稽查应对、处罚听证、行政复议、行政诉讼代理以及涉税刑事案件辩护等。专业扎实和经验丰富的律师团队是华税最大的竞争优势。我们拥有一批具备法律、财税等复合知识储备和丰富实务经验的高素质税务律师队伍,在为客户解决疑难复杂的税务法律问题方面具有极大的优势和竞争力。我们的许多律师不仅是国内税务律师群体中的佼佼者,还参与了大量的官方税收立法研讨工作,是分量十足的税法专家。

此外,本土化的立足也使华税具有强大的社会资源整合能力和品牌影响力,我们有国内顶尖法学教授组成的专家咨询库,同时也与国家税务总局、财政部、国务院法制办、全国人大常委会等中央国家机关保持着密切的工作关系。

ALB:您带领团队代理众多国内重大税务争议疑难案件,帮助企业节省了巨额税负成本,实现了企业的经济价值,能否与我们分享一个最典型的案例?

刘天永:2016年某国际知名汽车品牌外资企业与北京市国税局稽查局就汽车促销销售折让有关纳税事项发生争议,企业补缴税款及滞纳金合计约8亿元。华税接受委托后,代理企业向国家税务总局提起行政复议。我们团队用了六个多月的时间进行了大量的调查取证和专业分析工作,从案件事实到税法适用层层击破税务机关,并充分、细致地向复议机关阐释了律师代理意见,解析税收规则如何公平合理的进行适用。本案历时一年多,最终国家税务总局接受了华税的观点,以较为柔和的调解方式结案,北京市国税局稽查局把查补的税款及滞纳金全部退回企业,企业合法权益得到了有效全面地维护。

ALB:华税律师团队以往代理很多涉税刑事案件,能否与我们分享一起国内涉税刑事领域的最新案例?

刘天永:近年来国内石化行业全面爆发了变名销售虚开发票的风险。在国家税务总局和公安部联合督办下,全国各地已有千余家石化贸易企业涉案并进入刑事司法程序,大量当事人均以虚开增值税专用发票罪被追究刑事责任,且刑罚极重。

我们近期代理了十余起此类案件,从增值税征税原理和犯罪构成要件理论两个核心点入手为刑事被告人作无罪辩护,取得了较为理想的效果。例如,在2018年2月刚刚结案的安徽某企业涉嫌虚开犯罪案中,法院最终采纳了我们律师的辩护意见,判决认定企业变名开票的行为不构成犯罪,被告人当庭获释、重获人身自由。

ALB:您在十多年的税法服务执业经历中,参与并见证了国内税收法制的变化与完善。针对国内税法和税收执法环境可否谈谈您的体会?

刘天永:尽管我国的税法在不断完善,但税收法制化仍任重道远,税法的许多具体规则仍有违公平和正义原则,在充分保障和维护纳税人权益方面仍需要不断改进。值得肯定的是,我国的税收执法环境逐渐向规范化、制度化方向迈进,尤其是涉税争议解决的主要路径逐渐从关系协调转变为法律救济。在这一背景环境下,税务律师将有更加广阔的空间实现其专业价值。

ALB:请您谈谈华税律所未来的发展规划?

刘天永: 华税将一如既往地坚持走税法专业化发展道路,根据税法服务市场的需求变化,为客户提供更优质、高效的法律服务。同时我们还探索将税法业务再细分化,更精准地对接客户需求。为更好地向地域纵深布局,2018年初我们在深圳设立了第一家分所,未来将考虑在上海等地设立分所,以整合国内最优质的税务律师资源,充分拓展国内税法服务市场。

同时,华税会持续发挥对税务律师行业发展的引领作用。在连续多年承办“中国税法论坛”、“中国税务律师暑期学院”后,2017年底“华税学院(edu.huashui.com)”正式上线,它是国内第一个专门针对税法职业人士的在线培训平台,目的是通过培养一大批税务律师等新型税法职业人士,加快中国税法职业共同体的形成,促进税法的公平和正义。

 

Relentless Pursuit of Fairness and Justice in Tax Law:

Interview with Liu Tianyong, Director of Hwuason Law Firm

 

Founded in 2006 and headquartered in Beijing, Hwuason Law Firm is China’s first ever specialized tax law firm, having been twice crowned as the Tax Law Firm of the Year in 2017 and 2018 by the China Law Award presented by Thomson Reuters ALB. Having its roots firmly in the Chinese market and sticking to its tax specialization have won the firm an excellent reputation in the industry.

Liu Tianyong, Hwuason’s founding partner, is a leading tax lawyer in China who has not only witnessed the development of the Chinese tax lawyer profession from scratch, but also played a vital role in promoting its growth in China.

ALB: Hwuason is the first ever specialized tax law firm in China. As a leading domestic tax lawyer, could you share more about Hwuason and the development of China’s tax lawyer profession?

Liu: The emergence of tax lawyers stems from an objective need for further segmentation of the legal service market, and is also an inevitable development after lawyers find their specialized fields of practice. China’s tax lawyer profession, which has just started out, still lags behind their foreign colleagues, but enjoys broad prospects for development. With fiscal and tax reforms deepening and the legal environment for taxation improving, the enforceability of tax laws is constantly being reinforced, and the demand for tax law services is bound to rise continuously. It can be said that tax-related legal services have now become a new blue ocean on the domestic legal market.

As the first specialized local tax law firm, Hwuason takes pride in being the pioneer in this field. For over a decade, our firm has been intensively working in the field of tax law services based on our development strategy of specialization and local focus, and has served a large number of well-known domestic and foreign companies, solidifying our core competitiveness in terms of our brand and professionalism, and earning consistent recognition from clients and industry peers alike.

ALB: What are some of the key tax law services Hwuason provides for its clients? What are the areas of service that you personally focus on?

Liu: The tax law services provided by Hwuason are mainly tax dispute resolution and tax planning. Apart from internal firm management and external relationship building, I devote more time and energy to tax dispute resolution practice, not only because this service better showcases the professional value of our firm, but also because I hope to capitalize on individual cases to drive forward fairness and justice of tax laws as a whole to realize the social value of tax lawyers.

ALB: What are Hwuason’s competitive edges when it comes to helping clients resolve tax disputes?

Liu: The services we provide for clients in the resolution of tax disputes generally include tax audit response, hearings for tax penalties, administrative reconsideration, administrative litigation representation and defense of tax-related criminal cases. Having a team of lawyers with solid professional expertise and rich experience is the biggest competitive strength of Hwuason. Our highly competent tax lawyers have inter-disciplinary knowledge of not only law but also finance and tax, and boast extensive hands-on experience, making them highly advantageous and competitive choices for clients looking to solve difficult and complex tax-related legal issues. Many of our lawyers are not only frontrunners among domestic tax lawyers, but also have participated extensively in official tax legislation and research work. They are full-fledged tax law experts.

In addition, having a local focus has also enabled Hwuason to develop strong capabilities to integrate social resources and enjoy brand influence. We have a database of expert consultants who are top domestic law professors, and maintain close working relations with the State Administration of Taxation (“SAT”), the Ministry of Finance, the Legislative Affairs Office of the State Council, the Standing Committee of the National People’s Congress and many other central State organs.

ALB: You have led the Hwuason team in many major and difficult domestic tax dispute cases, helping enterprises save huge tax cost and achieve their economic value. Could you share with us a typical case that comes to mind?

Liu: In 2016, a dispute broke out between the foreign-invested enterprise of an internationally renowned auto brand and the Inspection Bureau of the Beijing Municipal Office of the SAT over tax payment related to discount promotion of automobile sales, and the enterprise was ordered to make good unpaid taxes and pay late fines totaling approximately RMB 800 million. After being engaged by the client, Hwuason filed for administrative reconsideration to the SAT on behalf of the client. Our team spent more than six months doing extensive investigation, evidence collection and professional analysis, managed to counter the arguments of the tax authority from the facts of the case to the application of tax laws, fully and meticulously explained to the reconsideration organ our opinions as lawyers, and analyzed how tax rules can be fairly and reasonably applied. This case, which lasted for over one year, ended up with the SAT accepting the view of Hwuason and closing the case by the softer approach of mediation. The Inspection Bureau of the Beijing Municipal Office of the SAT returned all the taxes and late fines collected to the client, and the legitimate rights and interests of our client were effectively and fully protected.

ALB: Hwuason’s teams have acted for many tax-related criminal cases in the past. Could you share with us one of the latest domestic tax-related criminal cases?

Liu: In recent years, the practice of changing the names of the products sold and issuing false value-added tax (“VAT”) invoices has been prevalent in the domestic petrochemical industry. Under the joint supervision of the SAT and the Ministry of Public Security, more than 1,000 petrochemical trading enterprises across the country have entered criminal proceedings for such cases, and most of the parties concerned have been held criminally liable for the crime of falsely issuing special VAT invoices and sentenced to harsh criminal punishments.

We have recently acted for more than a dozen of these cases, and achieved relatively satisfactory results by pleading not guilty for defendants from the two key points of the principle of VAT collection and the constitutive elements of a crime. For example, in a case just closed in February 2018 where an Anhui-based enterprise was suspected of the crime of falsely issuing VAT invoices, the court eventually agreed to the defense opinions of our lawyers, and ruled that the act of changing product names in invoicing did not constitute a crime. The defendant was released in court, and regained personal freedom.

ALB: With over a decade of experience in tax law services, you have participated in and witnessed changes and improvements to the rule of law in China’s tax regime. What are your thoughts on tax laws and the tax law enforcement environment in China?

Liu: Although China’s tax laws are constantly being fine-tuned, there is still a long way to go in rule of law in the tax regime, with many specific rules of tax laws still against the principles of fairness and justice, and many more improvements needed in fully safeguarding the rights and interests of taxpayers. What is encouraging is that China’s tax law enforcement environment is gradually moving towards standardization and institutionalization. In particular, the main channel for resolving tax-related disputes has gradually shifted from coordinating relations to seeking legal remedies. In this context, tax lawyers can expect a broader space to achieve their professional value.

ALB: What are your future development plans for Hwuason?

Liu: Hwuason will continue its focus on tax laws in development, and provide clients with even better and more efficient legal services in response to changes in demand for tax law services. At the same time, we will explore to even further divide our tax law services to more precisely meet the needs of clients. To expand our regional presence, we opened our first branch office in Shenzhen in early 2018. Going forward, we will consider setting up offices in Shanghai and other places to pool together the best tax lawyers across the country and fully expand the domestic tax law service market.

Meanwhile, Hwuason will continue to play its role in leading the development of the tax lawyer profession. After hosting the China Tax Law Forum and the China Tax Lawyer Summer Program for many years in a row, we formally launched Hwuason Institute (edu.huashui.com) at the end of 2017, China’s first online training platform for tax law professionals, with the aim of training a large number of tax lawyers and other new types of tax law professionals to speed up the formation of a tax law professional community in China and promote fairness and justice of tax laws.

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