财税与公共管理学院知识库

在网络司法拍卖不动产的过程中，税费征缴问题关乎着拍卖行为能否顺利完成。但由于我国税法对网络司法拍卖不动产税收征管规定的缺失，法院常常在网拍公告中直接规定一种“包税条款”，即由参与竞拍的买受人直接承担此次不动产拍卖行为的全部应缴税费。因此，拍卖中买受人实际承担出卖人税负成为法拍实务中一种很常见的现象，换言之即税法上的非纳税义务人承担了法定纳税义务人的应缴税款，并且即使买受人代出卖方缴纳税款后，买受人的后续权利保障也难以实现，这也进一步导致近些年由于网络司法拍卖不动产而引起的涉税争议案件频发。

本文梳理了网络司法拍卖不动产税费承担问题在实务当中三种主要的做法：一是由买受人缴纳全部税费；二是由买受人“先行缴纳、事后追偿”；三是买受人“先行垫付、事后退还”。并且各地各级法院因缺乏对包税条款属性、效力的统一认识，判决呈现出认定包税条款有效、认定包税条款无效以及认定包税条款部分有效的三种不同裁判路径。因为买受人并非税法上不动产税费承担的法定义务人，此种税费承担方式不可避免的会导致一些实际问题，具体反映为：一是网络司法拍卖税费承担规定不细化；二是网络司法拍卖对拍卖物品的计税依据规定不明确；三是网络司法拍卖中税收优先权与破产税收债权规定不明确；四是网络司法拍卖中买受人权利受损。针对上述问题，笔者提出针对性的完善建议：一是完善网络司法拍卖税费承担的规定；二是明确网络司法拍卖不动产的计税依据；三是完善税收优先权及破产债权的相关规定；四是完善网络司法拍卖中买受人的权利保护机制。

In the process of online judicial auction of immovable property, the issue of tax collection is related to whether the auction can be successfully completed. However, due to the lack of provisions on the tax collection and administration of immovable property in online judicial auctions in China's tax law, courts often directly stipulate a "tax clause" in online auction announcements, that is, the buyer participating in the auction directly bears all the taxes payable for the real estate auction. Therefore, it has become a very common phenomenon in foreclosure practice that the buyer actually bears the seller's tax burden in the auction, in other words, the non-taxpayer in the tax law bears the tax payable by the statutory taxpayer, and even after the buyer pays the tax on behalf of the seller, it is difficult to realize the subsequent rights protection of the buyer, which has further led to frequent tax-related disputes caused by online judicial auctions of immovable property in recent years.

This article sorts out the three main practices in practice on the bearing of taxes on immovable property in online judicial auctions: first, the buyer pays all taxes; second, the buyer "pays in advance and recovers later"; Third, the buyer "pays in advance and returns it afterwards". Moreover, due to the lack of a unified understanding of the nature and effect of tax clauses, courts at all levels in various regions have presented three different adjudication paths for determining the validity of tax clauses, finding tax clauses invalid, and finding partial validity of tax clauses. Because the buyer is not the legal obligor to bear the taxes and fees on immovable property under the tax law, this method of bearing taxes will inevitably lead to some practical problems, which are specifically reflected in: first, the provisions on the bearing of taxes and fees for online judicial auctions are not detailed; Second, the provisions on the basis for calculating taxes on auctioned items in online judicial auctions are not clear; Third, the provisions on tax priority and bankruptcy tax claims in online judicial auctions are not clear; Fourth, the rights of buyers in online judicial auctions are damaged. In view of the above problems, the author puts forward targeted suggestions for improvement: first, improve the provisions on the bearing of taxes and fees for online judicial auctions; The second is to clarify the tax basis for online judicial auction of immovable property; The third is to improve the relevant provisions on tax priority and bankruptcy claims; The fourth is to improve the mechanism for protecting the rights of buyers in online judicial auctions.