Cheng Xueyang: Improvement of land tax system under the background of collective commercial construction land entering the market
2022-08-07: [Article Link] Collective construction land entry
Land tax system
Summary: The distribution of land value-added gains through tax reform is not only in line with the central goal of the “first allocation based on property rights and markets, second allocation based on taxation” reform, but is also constitutional. In the context of the third amended Land Management Act, which came into effect in 2020, there is a need for a systematic review of the existing land tax structure and land administration system, in line with the concept of integrated urban-rural development and shared wealth, and for the establishment of new legal mechanisms for the sound sharing of land value-added gains by the State, collectively and individually, through the optimization and improvement of the relevant taxes, bases and rates. Specifically, in the transfer of land for collective construction, improvements in taxes such as land value added tax, corporate income tax and personal income tax should be integrated to accommodate changes in the system for the distribution of land value added gains resulting from the system of land entry for collective operations; in the acquisition of land for collective operations, the financing of local public services and infrastructure investments should be addressed through the improvement of the property tax system and the containment of land idleness should be addressed; and in the design of the tax rate system, the combined tax rates for tax items designed to distribute land value added gains should be subject to the “half-centre principle” and should not infringe on the essence of land property rights. Pursuant to article 63, paragraph 1, of the Land Management Act, as amended in 2019, land-use master plans, urban and rural planning are defined as operational uses such as industry, commerce, etc., and are legally registered as collective construction land, which landowners may submit to units or individuals for use by way of concession, lease, etc., and shall enter into a written contract setting out the land boundary, size, duration of work, duration of use, land use, planning conditions and other rights and obligations of both parties. This institutional arrangement, which allows collective construction without the Government collecting direct access to the built-up land market, not only provides the biggest bright spot of the current round of land management law changes  (P1), but also meets the requirements of the modernization of the national governance system and capacity, and can provide broader institutional access and physical space to accelerate the construction of a unified national market. As a result of the reform objectives set out in the 2019 decision of the Central China Communist Party on the maintenance and improvement of the socialist system of Chinese identity and on a number of major issues in the modernization of the system of State governance and its capacity to govern, under the conditions of the socialist market economy, the social wealth should establish a three-tier mechanism for the distribution of benefits, i.e., at the time of the initial distribution, the production elements of labour, capital, land, knowledge, technology, management and data should be evaluated by the market and remunerated on the basis of their contribution; at the time of the second allocation, the principal means of taxation, social security, transfer of payments, etc.; and at the time of the third allocation, mainly through the development of social public goods such as charity . The majority opinion in the academic community supports a sound system for the distribution of land value added gains “initial allocation based on property rights and markets, and secondary allocation based on taxation”. For example, scholars have called for the urgent need to study tax-regulating mechanisms for the distribution of land gains in order to promote a reasonable distribution of land value-added gains, such as improving land value-added tax (VAT) practices and introducing property or real estate taxes as soon as possible (P8). It has been argued by scholars that the secondary distribution of land value-added social return and social wealth through a tax on land value-added is purposeful and democratic, that the rights of citizens are the least infringed and that the cost of implementation of the system is the least  (P90). However, existing research generally suggests only a direction or framework for reform and does not provide a systematic and detailed reform programme that makes it difficult to move the reform forward effectively or to convince opponents. In view of this, it is proposed that the question of how to rationalize the distribution of land value added gains through the improvement of the land tax system after the establishment of the system of territorial entry for collective construction, taking into account the requirements of integrated urban-rural development, be systematically reviewed. To this end, the paper will begin with an analysis of the constitutionality of the distribution of land value added gains through the reform of the tax system. It will then focus on the reform and improvement of specific taxes related to the introduction of land for collective construction in the city from the point of view of the systematization of tax laws. It will conclude with a discussion of the limits of tax rates for land-related taxes. I. Constitutionality of the distribution of land value added gains through tax reform
The question of “constitutionality of the distribution of land value added gains through tax reform” was first examined because of the constitutionality of this approach to reform raised by scholars. For example, it has been suggested by scholars that trying to achieve secondary distribution justice for land value-added benefits through the tax system would be neither efficient nor compatible with our socialist land tenure system and other basic requirements of the Constitution of the People's Republic of China. The reason is that the redistributive capacity of the tax on the value-added gains of land can only be applied to the private social environment of the land, and that the socialist land tenure system and its exclusive expression of rights cannot be applied to this mechanism for the distribution of the value-added gains of land  (P104). In an era of full compliance with the rule of law, where the rule of law is first and foremost constitutional, the question of the constitutionality of any reform must first be resolved, both at the theoretical level and at the practical level. First, under planned economic conditions, “the `national monopoly' (P104), which legally realizes the value-added benefits of land for construction through the technical exercise of revenue-empowerment alternative taxation mechanisms”, is both necessary and feasible, and even constitutional. However, with provisions such as “the socialist market economy of the State”, “the State respects and guarantees human rights”, and following the entry into the current Constitution in 1993 and 2004, our understanding and interpretation of the provisions of the land system (i.e., article 10) and related provisions (e.g., article 6, paragraph 1, which states that “the socialist economic system of the People's Republic of China is based on the socialist public system of productive resources, i.e. the system of popular ownership and collective ownership of the working masses”) must be subject to the requirements of the overall constitutional framework “respect for collective land ownership and the property rights of citizens (e.g. the right to land use) and the rational use of land resources, mainly through the market economy”  (P57). Under the overall framework established by the current Constitution, first, the land owned and collectively owned by the State is an integral part of the socialist public system and its land ownership cannot be transferred through the market to owners of property other than the communal economy; second, the right to use State land and collective land can be developed into stable usufruct rights through a system of property rights and can be transferred to society through market mechanisms, thereby achieving a rational use of land resources; and third, based on the objectives of raising public funds, macro-regulation and so on, the added value of land in the circulation of land rights in the market, which can be distributed by the State through a variety of tax systems. On the basis of the above-mentioned framework set out in the current Constitution, the socialist system of public ownership is integrated into the socialist market economy and has been widely proven to be in line with the country's national circumstances and to contribute significantly to economic development and social prosperity  (P19). In this historical context, the principle of “initial allocation is based on property rights and markets, and secondary allocation is based on taxation” cannot be regarded as a patent that belongs only to the private system of land or to the capitalist society, nor as a necessary or necessary requirement of the socialist land system for the State's monopoly of the land-level market. Secondly, there are scholars who believe that the “collective ownership/ownership of land” provided for in our Constitution is only a transitional or temporary measure in the process of achieving socialism/communism, and that ownership of civil law under market economy conditions cannot be legalized because “the ownership of the State is not an equal legal relationship with collective ownership, but an integral and partial political relationship”  (P56). This view is in clear contradiction with the provisions of the current Constitution and the Civil Code, as the preamble to the current Constitution made it clear in 1982 that, “After the establishment of the People's Republic of China, our society has gradually made the transition from neo-democraticism to socialism. The socialist transformation of the private system of production of materials has been completed, the system of exploitation of human beings has been eliminated, and the socialist system has been established.” This means that, after 1982, our Constitution did not create a legal obligation for the State to continue with the transformation of the ownership of productive resources. In addition, the Second Part of the Civil Code, adopted in 2020, continues the provisions of the Law on In rems, which continue to recognize State ownership, collective ownership and private ownership as property rights under civil law, and in article 207 expressly provides that the property rights of the State, collective, private and other entitled persons are equally protected by the law and that no organization or individual may infringe them. Thirdly, because of its special history, circumstances and stages of development, the country's economic modernization can only follow the path of “development of cities first, then of rural areas, and ultimately of urban-rural integration”. On the basis of this particular development path, in the early stages of the development of the market economy, the country was forced to establish a land management system with a national monopoly on land-level markets, which did provide a one-time concession of 40-70 years of land for urban governments and credit certificates for local governments and various investment entities to obtain bank loans, thus contributing to the rapid development of urbanization and industrialization in China over the past 40 years. However, the land tenure system under this model of land management brings with it many social problems: first, the Government's one-time concession of land from 40 to 70 years of State-owned land-use rights has generated considerable fiscal gains for the Government, but this resource-consumptive fiscal acquisition and development model of “food-free” resources has also led to serious social problems such as blind investment, waste of resources and overdrafting of the future; and, second, when State-owned land-use rights have been capitalized, they have gradually become the main collateral of the country's financial system in the process of development, leading to excessive reliance by urban governments and other investors on such assets and credit documents, leading to high urban housing prices, squeezed development space for the real economy, and may induce social problems such as financial and even economic risks (under the land management model of the “State-monopolized land-level market”, the bank's non-performing lending rate will rise significantly in the event of a decline in market prices for State-owned land-use rights, leading to financial and even economic crises). However, in order to ensure the credibility of “credit certificates”, the price of “credit certificates”, such as land rights for State-owned construction, must be maintained “only up and down”, which inevitably leads to high urban housing prices and to price bubbles in the real estate market, leading to the paradox that the country's economic security is “kidnapping” by the real estate industry; and, thirdly, since rural land can only be collected passively by the Government and cannot be effectively exploited in accordance with market demands, collective land rights holders cannot effectively share the fruits of China's reforms and economic development on the basis of their own assets, nor can rural land resources be used rationally. In addition, the system of compensation for the collection of land “at a low price, sold at a high price” also has serious implications for the harmonious stability of society and the level of civilization, and the preamble to our current Constitution stipulates that the task of the State and the entire population is “to implement the concept of new development... to make our country a modern and harmonious socialist and modern State with a strong democratic civilization and to achieve the great revival of the Chinese nation”. In accordance with the requirements of this fundamental norm, it is essential that reforms gradually establish a more harmonious development of society, a more civilized model of economic development and a system of government financial access. In modern market-economy countries, this new development model leads local governments to secure stable tax revenues by providing a better business environment in order to achieve sustainable and healthy local fiscal development (and, of course, the goal of “developing local finance away from land finance and land finance” requires a series of institutions or policies. For example, the party's central and State Council's “household-in-the-house” policy, implemented in recent years, which allocates to the tax authorities representing the State the revenues derived from State land tenure previously collected by local natural resources authorities on behalf of local governments, has some binding effect on changing expectations of the various sectors of society about the production of real estate and curbing local governments' excessive reliance on “land finance”. In these systems or policies, however, it is the most fundamental system that changes the main source of local government revenue through the reform of the land system and the related improvement of the tax system. Finally, in order to prevent potential financial risks in the field of land, achieve integrated urban and rural development and better respect and protect the land property rights of collective land rights holders, the Land Management Act, as amended in 2019, establishes a system of collective land entry for the purpose of construction. But the system primarily addresses the issue of “the initial distribution of social wealth according to property rights and the market.” Reforms should be systematic and coordinated. This is, of course, not an abstract argument that “the existence of a market transaction necessarily carries with it a tax obligation”, but rather that the secondary distribution function of taxes should be considered, given that land value added is indeed affected by factors such as the availability of public facilities and services by Governments and the scarcity of land resources as a result of population concentration. Specifically, the State has the right to share part of the value-added gains from the land in order to achieve the socialist system's quest for social justice and shared wealth (P30), in order to avoid the monopoly of a small number of landholders on the benefits of public investment, to continue to finance public facilities and public services, and to avoid the division between rich and poor as a result of unequal distribution of value-added gains from land. Although, in our current tax system, collective land rights holders do not constitute essentially “the subjects of tax obligations”, the current Civil Code also defines collective economic organizations and grass-roots self-governing organizations as “special legal persons”, as has been pointed out by scholars, “as the rural reform process continues, the community of farmers, which has been dominated by the concept of property security, will continue to grow in the future” (10] (P16). In such cases, collective economic and economic organizations, grass-roots self-governing organizations and their members are required to pay taxes to the State in accordance with reasonable tax bases and rates when disposing of land property through market mechanisms, in conformity with the “duty to pay taxes in accordance with the law” established for citizens in article 56 of the current Constitution, and are therefore constitutional. II. Review of the system for the rational allocation of land value added gains through tax reform
The full implementation of the central goal of the “secondary allocation based on taxation” reform in the area of the distribution of land value-added gains requires a comprehensive review of the relevant taxes in this area from the point of view of the systematization of tax laws, rather than just one or more of them, since “it is not part of a just order if the tax laws lack an intrinsic system and the principles of legal ethics”  (P27). In view of the fact that collective construction land consists mainly of trading and retention links, the following will be discussed separately in relation to such tax arrangements as land value added tax, enterprise income tax, personal income tax, real estate tax, title tax, stamp tax, etc. (i) Review of the tax system for the distribution of value-added gains on land in the municipal chain for collective construction
Whether land resources generate asset changes or even value addition, market transaction prices are the most direct and visible observation point, as prices are the concrete expression of value. When collective construction land is entered on the market, we can calculate the value of the land by using the formula of “land value added = income earned by the transfer of real estate — amount paid for the acquisition of land rights — cost of land development — cost of new housing and accompanying facilities, cost or assessment price of old houses and buildings — other statutory deductions”. This tax on value added is legitimate and constitutional for the reasons already discussed above, but there are many different views as to what is specifically designed to achieve a reasonable distribution of value added gains from land. In the Land Value Added Tax Law (Advised Draft), published to society in July 2019, the Ministry of Finance and the State Tax Administration recommended that “transfers, transfers of State and collective land use rights, on-land buildings and their attachments” be included in the taxation of land added value tax. Article 2 of the Customary Tax Law, adopted on 11 August 2020, and the stamp tax law, adopted on 10 June 2021 (in particular the stamp duty list, which is attached to the Law), also eliminate the distinction between State and collective land and provide uniformly that “in the territory of the People's Republic of China, with the exception of the transfer of land contract and land ownership rights, the concession, transfer of land use rights shall be paid in accordance with the law, and the stamp tax shall be taxed”. This solution of paying land value-added tax, deed tax and stamp tax through the integration of State-owned and collective lands is justified and effectively implements the reform objective of “integrated urban-rural development with equal land rights and responsibilities”. This view points to the very nature of the land value added tax, which is income tax rather than “trading tax on the value added of each production link”, according to scholars. (P243). However, within the context of income tax, it is still necessary to rationalize different taxes according to the different functions of society. For example, personal income tax and corporate income tax need to be separate. In general, the primary principles of tax design are simplicity, transparency and efficiency, but at the same time the effective functioning of the tax function needs to be taken into account. Specifically, in addition to raising financial resources for the Government, personal and corporate income taxes are primarily responsible for optimizing the social function of wealth distribution, while land value added tax (VAT) is primarily intended to cover government expenditure on value-added gains from particular land development and assumes the function of a tax system dedicated to clearing land value added  (P177) and should therefore not be eliminated. In addition, under article 3 of the current Personal Income Tax Act and article 4 of the Enterprise Income Tax Act, a flat rate of 20 per cent applies to proceeds from the transfer of property and 25 per cent to the enterprise income tax (the rate applicable in the case of non-resident enterprises is 20 per cent) and the excess progressive tax rate is not applied. Such tariff arrangements do not effectively regulate the proportion of land value added allocated, nor do they provide incentives for local governments to become more active in the provision of public goods and services, which also justify the current inadvisability of the direct elimination of land value added tax. However, when the value added tax on land is not able to perform its social function effectively, the argument does not oppose a gap-filling of income tax in a particular land value-added income allocation. Taking as an example the current reform of collective construction land entry, when collective construction land enters the construction land market for the first time, it is difficult to calculate its value added scientifically because of the absence of “amounts paid to acquire land rights” and hence the difficulty of applying the land value added tax (VAT) tax methodology. To this end, the Ministry of Finance and the State Tax Administration introduced an alternative land value-added tax (VAT) programme in the Land Value Tax (Application Draft) Act, whereby a land value-added tax may be levied in proportion to the transfer of real estate income if it cannot be determined that the amount of the project could not be deducted and the value added could not be determined during the process of entering the market for collective business construction. The specific method of collection is proposed by the people's governments of the provinces, autonomous regions and municipalities directly under the Central Government and decided by the Standing Committee of the People's Congress at the same level (art. 10). This “transfer of real estate revenues by a certain proportion” method of taxation changes the subject of the tax from the value added to the price of total sales and changes the basic requirement that the value added tax be taxed and is therefore not acceptable to the legislature. A reasonable legal expression would be to deal with such cases where it is difficult to calculate the “land value added” by amending the Enterprise Income Tax Act, and in accordance with article 2 of the Personal Income Tax Act, as amended in 2018, which provides for the payment of personal income tax on dividends and dividends, the collective income tax would also be paid by the collective member upon entry into the city on the ground of collective business construction. Of course, in order to avoid double taxation of collective and collective members, in the case of collective corporate income taxes already paid, the individual income tax of collective members should be levied on the basis of full attribution rather than classical systems, i.e. the net profit from the deduction of corporate income tax should be calculated on the basis of the net profit of the collective income tax, and then on the basis of the individual income tax. While there is support for the proposition that “the initial entry and retransfer of land for collective business construction are subject to different taxes, respectively”, it is proposed that a new tax, known as “collective land entry municipal income tax”, be established at the level of legal expression and institutional improvement, on the grounds that “the income tax of a business is a tax shared between the central and the local level, while the income tax on the entry of land for collective business construction should be incorporated into the local tax system”  (P53). It is true that government gains from the entry of collective construction land into the city are primarily to be enjoyed by local governments (especially municipal and district governments), since the added value of collective construction land tenure depends mainly on local governments for the provision of corresponding public services, public facilities and other public goods. However, given the multiplicity of taxes and the complexity of the tax system in modern societies, the basic orientation of tax reform should be to simplify and consolidate taxes with similar functions, based on institutional stability, consistency and the effective functioning of tax functions, rather than to create new ones easily. In view of the current tax structure of the country, first of all, a reasonable increase in the proportion of local sharing, provided that the “enterprise income tax is maintained as a central-local tax sharing”, would also achieve the objective that the relevant tax should be used primarily for local public finance, and even if the central-local share of corporate income tax was maintained, the central part of the tax proceeds could be treated as local revenue (in the Circular of 26 September 2019 on the publication of a programme to promote the reform of central-local income divisions following the implementation of a larger tax reduction). The reform concept of improving the local tax system in due course, fostering the growth of local tax sources, using part of the well-established central tax as local revenue, and enhancing local capacity to respond to larger tax deductions”. Thus, from the point of view of optimizing the structure of the tax system, the creation of new collective land-to-municipal income tax should not be based solely on the fact that corporate income tax is shared between the central and local authorities. Second, according to the provisions of articles 8 and 9 of the current Legislative Act, the introduction of new taxes can only be regulated by law or administrative regulation, but legislation, whether enacted by law or by administrative regulation, to legislate separately for the income tax on collective land entry into the municipality is costly and not sufficiently necessary and feasible. It has also been argued that the feasibility of collecting funds for the construction and maintenance of public infrastructure is questionable only by means of taxes (15] (P132) in the case of collective construction land entry. While there is some justification for this view, it does not note that, with the improvement of the land tax system (including the improvement of the land tenure system for collective construction, as discussed below), the relevant land taxes received by the Government can also generate financial credit and can be financed as a financial instrument. From our current fiscal management practice, local governments can finance both through the issuance of general bonds secured by local taxes and through local government funds (e.g., State land concessions and State land revenue funds), and the current fiscal practice is operational . While the fiscal effect of the 40-70-year yield on land tenure may not differ significantly from the “land-related taxes on mortgages for a certain period of time”, the significance of social governance and rule of law-building varies, as tax mortgages can be more regulated and have a higher positive incentive for the level of local governance, thus significantly reducing the financial and social stability risks associated with the uncontrolled spread of local debt. (ii) Improved tax system for the distribution of value-added gains on land in the collective built-up land chain
Values are the basis of prices under normal market conditions. Thus, land entry for collective construction is merely an explicit expression of land value-added gains in the form of market prices, and it is not land value-added per se. In life, even if there is no trading in the collective built-up land, its value added can be perceived (e.g. the rise in the prices of the surrounding land). However, the possibility of imposing a real estate holding tax in the collective build-up land tenure chain and the tax systems through which this can be achieved has not yet been fully discussed by the theoretical and practical communities. However, it is my view that, after the Land Management Act has been amended in accordance with the principle of “urban/urban unity, equal land rights and equity”, the objective of “accelerating real estate tax legislation and, in due course, advancing reform” as set out in the 2013 Central Decision of the Communist Party on Comprehensive and Deepening Reforms on Certain Key Issues does not need to be discussed separately, as it is already covered by the question of whether or not to levy real estate taxes. There is opposition to the introduction of a “real estate tax” and the argument that it is not justified in our country, on the grounds that, first, home buyers in cities have paid taxes, such as land value added tax, and non-tax revenues, such as land concessions. Of these, “land concessions” are equivalent to “property taxes”, and the imposition of a separate real estate tax increases the tax burden on real estate holders and there is a suspicion of double taxation. Second, State ownership of land belongs to the State, and buyers purchase only “State land tenure for a limited period of time”, and it is uncertain whether further land concessions will be made at the time of renewal, and therefore no re-taxation shall be imposed on such tenure  (P38-39). Third, if only the value of the land is taxed, rather than the value of the land plus its buildings, investors are encouraged to develop the land  (P62). Support was also expressed for the introduction of a “real estate tax” on the grounds, inter alia, that the real estate tax was not a tax on real estate, but rather a share of the cost of public services according to tax affordability (P6). Although the above arguments are mainly directed at State-owned land, the same problems arise when collective land rights for construction are entered into the land for construction market by way of concessions, rents and share-in-stock financing. First, the idea of combining “property and land-use taxes” into real-estate taxes is worthy of support, as housing and land are usually transferred as one if there is a house on the land. As for the issue of “separate taxation of land and property can facilitate land development”, it can be addressed by establishing “the higher the intensity of development and the lower the tax rate on real estate within the limits prescribed by law” regressive tax rates that do not have to be taxed separately to facilitate the rational development of land resources. Secondly, the belief that land ownership belongs to the State or collective and that real estate taxes may therefore not be paid is not valid, since the right to use land for State-owned and collective construction is not a claim that can be withdrawn by the owner at any time, but a right to long and stable usufruct, and that the preservation and value added of such usufruct rights depend on the continued investment of the Government in public services and infrastructure. Rights are cost-effective, freedom is tax-dependent, freedom is not guaranteed without strong State machinery and State capacity-building, and property rights are subject to tax obligations in order to guarantee the effective functioning of State machinery and the ever-increasing capacity of the State. Finally, the establishment of a real estate tax does not mean that all real estate is taxed, and that self-inhabited real estate, which is essential for the survival of citizens (e.g. the first family suite within a certain area), should be included in the tax exemption, so as to avoid the suspicion of taxation. On the basis of the above analysis, it is my view that the legislature should not upgrade the Interim Urban Land Use Tax Ordinance, the Interim Real Estate Tax Ordinance, into the Land Use Tax Act and the Real Estate Tax Act, respectively, but should introduce a Real Estate Tax Act, which applies uniformly to land used for State-owned and collective construction, in accordance with the principle of “coherent urban-rural development, equal land rights and responsibilities”. With regard to the characteristics of real estate taxes, which are mainly local taxes, it has been argued that the legislative process of the Real Estate Tax would be greatly accelerated if, in the form of a statutory authorization, the choice of real estate taxes and the adjustment of the tax elements were to be given to the local authorities, leaving it to the local trade-off to decide whether or not to raise them, the tax base and the tax rate.(P20] Such legislative and technical advice is not fully acceptable, on the grounds that the introduction of real estate taxes, the suspension of taxes, tax deductions, exemptions, tax refunds, tax recovery, etc., can indeed be done by authorizing local regulations through specific provisions of the Real Estate Tax Act. However, articles 8 and 9 of the current Legislative Act make it clear that the basic system of taxation, such as the establishment of taxes, the determination of tax rates and the administration of tax collection, can only be legislated. If the conditions for the enactment of the law are premature, the NPC and its Standing Committee may authorize the State Council to make administrative regulations on the basis of actual needs, generally for a period not exceeding five years (Decision of 23 October 2021 of the Standing Committee of the NPC authorizing the State Council to carry out pilot work on real estate tax reform in parts of the country for a period of five years, with real estate tax in the pilot areas for various types of real estate, such as residential and non-residential use, not including rural housing bases and their residential premises, which are legally owned). The pilot decision is reasonable; however, there should be no real estate tax on residential properties that are necessary for the survival of citizens in urban areas, with the exception of houses on rural housing bases. With regard to the acquisition of many properties by citizens in excess of their own-use residences, this is essentially a market investment, regulated by the imposition of real estate taxes, and a legitimate function of tax regulation. (iii) The need to address the distribution of value added gains in idle land through improved tax systems
In addition to the formal system of taxation, article 38 of the current Land Administration Act retains the administrative penalty system “for collection of land idle fees plus non-reimbursable recovery”, which has been in place since 1998. This means that “non-agricultural construction, which has been approved, occupies arable land and has not been built for more than one year, shall pay idle fees in accordance with the regulations of the provinces, autonomous regions and municipalities directly under the Central Government; for the second consecutive year that has not been used, with the approval of the original approving authority, the people's governments at or above the county level shall recover the land-use units free of charge”. The purpose of such a system is legitimate in that it is designed to motivate land rights holders to actively develop and utilize land and to curb market speculation in earning value-added differentials in land through idle land. However, the allocation of value-added gains from land through administrative penalties does not have a solid theoretical basis and institutional logic, as administrative penalties are not merely punitive in nature to the violation of the administrative order, but rather to the violation of the public interest and hence of the administrative order. The issue of “when it is appropriate to exploit land resources”, which is legally an act of the land tenurer in the exercise of his or her own property rights and which is related to the public interest, does not necessarily constitute a violation of the public interest and it is therefore not appropriate to apply administrative penalties to discipline. The doctrine of “abuse of fundamental rights” has been used by scholars to interpret the above-mentioned provisions of the Land Management Act and to put forward the view that, on the basis of article 10, paragraph 5, of our current Constitution, which states that “all organizations and individuals using land must make reasonable use of the land”, the land tenurer has a social obligation to make reasonable use of land resources, and that the idleness of the land violates this social obligation and reaches the level of “abuse” and therefore the right to land use should be lost. In view of the loss, the Government could recover the land and the argument that it was free of charge  (P1622). However, the argument did not provide any justification as to why the “two consecutive years of unused” had reached the level of abuse of property rights or as to why the law did not impose administrative penalties on other idle property (e.g. residential property, private aircraft). From the point of view of a well-developed tax system, the above-mentioned legal difficulties can be solved through a real estate tax system, whose legitimacy is based on the fact that the preservation and value added of real estate depends on good water and electricity networks and on public infrastructure and services, such as roads, so that it is most appropriate to raise funds for related public facilities and services through a real estate tax. As Henry George pointed out in the 19th century, “if the amount of taxes levied on land is close to the value of the lease, no one has the power to occupy land without using it, and thus the land no longer used will be open to those who wish to use it”  (P347). The collection of real estate taxes can effectively guide the population in the rational use of land resources and achieve the objectives set out in article 10, paragraph 5, of the Constitution (I do not, of course, object to an agreement by the landowner to collect idle fees by way of a land concession contract or even to recover land rights free of charge, but such a contractual agreement is based on the agreement of the parties and is not an administrative sanction and cannot therefore be dealt with by reference to administrative law such as the Law on Administrative Penalties of the Land Administration Act). Tax limits on the allocation of land value added gains through tax reform
The State may tax property rights on the basis of social obligations on property rights, but the tax obligations on property rights should be distributed equitably among all citizens, including residents, and not lead to an abnormally high and low distribution of taxes or even to the deprivation of property rights of particular citizens through taxation. To this end, tax jurists have put forward the proposition that “taxation must be universal and equitable for individuals” and have given concrete effect to the proposition that “taxors with the same tax-burdening capacity bear the same tax burden and those with a higher tax-burdening capacity bear a heavier tax burden”  (P.64). Constitutionalists, on the other hand, discuss the limits of taxation in terms of the distinction between collection and taxation, i.e. that taxation is different from collection, that it is a general social obligation of property rights rather than a “special sacrifice” on the part of a particular subject, and therefore, unlike the direct expropriation of property rights, taxation applies only to the proceeds of property rights and not to property rights per se  (P67). The above-mentioned tax laws and constitutional theories are of great importance for the distribution of land value-added gains in the process of collective construction and entry into the market, which require us to discuss in depth the institutional design of tax rates within the tax system, in addition to focusing on the optimization and improvement of taxes. Because, once tax rates are too high (e.g. 100 per cent tax on land value added gains), there is a risk that property rights themselves will be denied, after all, under modern market economic conditions the protection of property rights includes not only the use of the property itself, but also its value realization and its security of value. In order to resolve the conflict between the tax rate setting and the protection of property rights, the German Federal Constitutional Court, in its judgement, introduced a theory known as the “half-cent principle” with respect to property proceeds, namely that “after a combination of proceeds, deductible expenses and other exemptions, property taxes may be levied in addition to other taxes on property proceeds, only if the total tax on the expected proceeds of property results in a maximum of one half of the State's property proceeds”  (P54-55). This theory requires that the sum of all taxes levied on a particular property should not exceed half of the property’s due or actual proceeds. While this theory is not supported by solid data, it is consistent with the basic quest for justice, because once more than half of the value of the property is enjoyed by other subjects, one feels that “the property does not belong to him.” This perception and the loss of real benefits both violate the constitutional protection of property rights and are detrimental to the rational use of land resources, ultimately leading to the simultaneous erosion of individual interests and the general interests of society. Of particular note is the lessons from British history. In 1947, the then-ruled British Labour administration introduced a “100% government-owned land value-added” reform, which resulted in a loss of momentum for land development among social subjects, and slow progress in rebuilding Britain after the war, which was abolished in 1953. In 1974, the British Labour Government introduced an additional tax on 80 per cent of land development, but by 1979 the tax had been adjusted to 60 per cent because it was too high to mobilize social and market forces to exploit land resources, and the tax had even been cancelled in 1985  (P79-80). Thus, in order to avoid violating the essence of the right to property and thus violating the Constitution, it would not be appropriate to increase the combined tax rate of the various taxes to more than 50 per cent of the value added of the collective built-up land. Article 8 of the Land Value Added Tax (Application Draft) Act, issued by the Ministry of Finance and the State Tax Administration in July 2019, states that “the Land Value Added Tax shall be subject to a four-tier progressive rate of tax: 30 per cent if the value added does not exceed 50 per cent of the amount deducted from the project; 40 per cent if the value added exceeds 50 per cent of the amount deducted from the project, 100 per cent of the amount deducted from the project; 50 per cent if the value added exceeds 100 per cent of the amount deducted from the project and 200 per cent of the amount deducted from the project; and 60 per cent if the value added exceeds 200 per cent of the amount deducted from the project, the final rate of the land value added tax, a single tax, shall exceed 50 per cent when the value added from the land is more than five times the amount deducted. The reform of land entry for collective operations, involving the redistribution of land resources, land rights and economic benefits, is bound to have an impact on the existing legal system and even on social perceptions. As a result, the decision of the Central Chinese People's Republic to maintain and improve the socialist system of Chinese identity in order to promote the modernization of the State's system of governance and its capacity to govern proposed that, in the process of maintaining and perfecting the socialist system of Chinese identity, the State's system of governance and its capacity to modernize, both the mechanisms for the evaluation of the contribution of factors of production such as land by the market and the determination of remuneration on the basis of that contribution should be improved, as well as the mechanisms for regulating the redistribution of taxes, social security and transfers, which are the main instruments, should be strengthened, the system of direct taxation should be improved and its share gradually increased. At present, with the implementation of the third amended Land Management Act after 2020, the value added gains from land have met the reform objective of “market evaluation contribution” in the initial distribution of wealth. In this context, in order to avoid the inequitable distribution of social wealth and to better provide the necessary and stable sources of financing for the provision of public services and the construction of public facilities, the secondary distribution of land value-added gains through improved tax systems is essential. However, the improvement of specific tax systems should be based on sound legal expression and institutional design, guided by systemic thinking, in the context of the protection of the “inviolability of property rights” of collective business-building land tenure, rather than tax, base and tax-rate reforms in the form of case law or “one-size-fits-all” advances. (The writing of this paper has been discussed with our teachers, Wei Wei and Xu Xiao Xiao)
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Introduction by the author: Cheng Xueyang, Doctor of Law, Professor at Wang Jian Law School, Suzhou University, PhD student mentor, Research Fellow at the Centre for Public Law Studies, Suzhou University, China Centre for Urbanization of Characters; Jiangsu Su State, 21506.
Source: Wuhan University Journal (Social Science in Philosophy), No. 4, 2022
Collective construction land entry
Land tax system
This post is edited as follows:
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