On Intemal Control Of Tax Administrative Discretion

In order to solve conflict of hysteretic nature and limitation between rapid development of economy and tax law and take account of need of tax administrative efficiency, the Law of the People's Republic of China on the Administration of Tax Collection (called Tax Administration Law in the following) gives lots of administrative discretion to tax authorities. However, for a variety of reasons, in actual tax collection, the phenomenon that tax authority abuses its discretion power is common. Misuse of tax administrative discretion obstructs progress of managing the tax in accordance with the law, which is very harmful. This article starts from basic theory on administrative discretion, then analyzes and summarizes meaning, feature, existing reason and applicable principle of tax administrative discretion. It centers on administrative discretion set in Tax Administration Law, sums up problems existing when tax authority exercises its discretion, refers to revelation brought by theory and practice used by main western countries to control administrative discretion. In accordance with dialectic relations between internal and external cause of materialistic dialectics and combining actual practice the author got from more than 10 years work in field of tax management and feeling gained from it, the author provided that control tax administrative discretion from internal tax authority is the root and also provided the idea of carrying out internal control from right subject and three stages before, during and after administrative discretion is exercised. The whole article is divided into 4 chapters:The first chapter starts from basic theory of administrative discretion, then analyzes and summarizes the meaning, feature, existing reason, applicable principle and necessity of control of tax administrative discretion. It briefly introduced theory and practice that main western countries controlled their administrative discretion and also summarized the revelation brought to our country. Administrative discretion gradually becomes the core of administrative power with the continuous enlargement of national administrative management function. Through analyzing definition of administrative discretion made by foreign scholars, this article thought tax administrative discretion refers to optional power owned by tax authority conferred by tax law and legislation in accordance with legislative purpose and by following certain principle on whether to carry out administrative behavior or how to carry out administrative behavior. Tax administrative discretion is a legal administrative power and a restricted option. The reason why tax administrative exists is gradual nature of legal construction of tax, continuous enlargement of tax administrative power, peculiarity and complexity of tax administrative management and requirement of highly efficient administration. Tax administrative discretion have main features such as compulsory, one side will, effect priority and procedure of running power. Its exercise should follow legal, reasonable, precedent and open principles. If tax administrative discretion is misused, exertion of tax function will be greatly weakened and construction of harmonious society will be influenced. Therefore, it is necessary to control tax administrative discretion. Through comparing with theory and practice by which main western countries control administrative discretion, it is seen that control of administrative discretion in various countries develops from focusing on entity to fair procedure, from pursuing formal justice to substantive justice.The second chapter explained classification and application of administrative discretion set in Tax Administration Law. Our tax administrative discretion is mainly shown in Tax Administration Law. If divided according to factors upon which administrative behavior is set up, tax administrative discretion could be divided into 7 types as the one based on administrative penalty range, selection of acting way, selection of acting time limit, recognition of fact nature, recognition of seriousness, selection of exercising condition and tax paid. Administrative discretion runs through the whole process of tax collection mainly focusing on those upon administrative penalty range, recognition of fact nature and seriousness. If classification is made based on business constitution of tax collection, administrative discretion applies to tax registration, tax paying declaration, tax collection, tax collection conservation or compulsory implementation, tax search and administrative penalty.The third chapter discussed meaning of misuse of administrative discretion applicable in Tax Collection Law, its classification, main expression, main reason and harm. This article thought misuse of tax administrative discretion in common meaning should be understood from its narrow sense, which refers to reasonability of administrative behavior in violation of law under prerequisite that tax authority complies with administrative legitimacy principle. Under the condition that there is no clear provision in tax law and regulation, improper administrative behavior in violation of legislative purpose of tax law or the behavior not improper within power scope authorized by tax collection law and regulation is done. Seeing from our current tax administrative practice, main expression of misusing tax administrative is: intention and purpose are improper, irrelevant factor is considered, relevant factor is not considered, assume subjectively, law enforcement is obviously unjust, misuse tax law to interpret and put off transacting time limit, etc. The phenomenon that our current tax system is not sound, system of controlling administrative discretion is missing and tax officials'quality is not high enough which result in misuse of tax administrative discretion is common. Misuse of tax administrative discretion obstructed progress of managing the tax in according with the law, weakened the function of tax as lever, generated tax corruption and destroyed harmonious collecting and paying relationship, which is very harmful.As to Chapter 4, in accordance with dialectic relations between internal and external cause of materialistic dialectics and combining actual practice the author got from more than 10 years work in field of tax management and feeling gained from it, the author provided that control tax administrative discretion from internal tax authority is the root and also provided the idea of carrying out internal control from right subject and three stages before, during and after administrative discretion is exercised. Materialistic dialectics thinks that internal cause is the base of development and change, which regulated basic trend and direction of development. There are many reasons resulting in misuse of tax administrative discretion. This article thought that seizing internal cause of development and change and implementing effective control to tax administrative discretion is the root of preventing misuse of tax administrative discretion.To truly realize internal control of tax administrative discretion, firstly must implement control to power subject. One is to establish scientific organizational structure in tax authority and allocate and distribute power in a reasonable way. This article thought organizational structure of tax authority should be flat based on information to reduce management levels and compress functional organization; the other is to strengthen building tax official team and increase quality of administrative officials.Regarding internal control before acting tax administrative discretion, one is to regulate administrative discretion standard in tax authority to guarantee unity of administrative discretion behavior; second is to improve tax administrative procedure in tax authority to restrain power through regulating procedure; third is to strengthen building taxation information to realize scientific and regularized management on running of tax administrative discretion.Regarding internal control during execution tax administrative discretion, one is to guarantee right of tax payer to curb misuse of administrative discretion; second is to follow precedent principle to keep continuity and unity of administrative discretion; third is to carry out sunshine operation to effectively monitor execution of tax administrative discretion.Regarding internal control after tax administrative discretion, one is to improve tax administrative reconsideration system, correct and remedy; second is to fully exert effect of tax enforcement accountability to guarantee reasonable execution of administrative through holding responsibility; third is to establish and perfect monitoring restraint system in tax authority, strengthen daily check and monitoring on use of tax administrative discretion and effectively restrain and control administrative discretion behavior.