Discussion On Regulations For Tax Administrative Discretion

Administrative discretion is a right for the administrative subject making rational choice on doing behavior or not and what behavior should be done to the behavior conditions and behavior procedures within the limits of the legal authority, which is one of the key subjects in the study of administrative law, and also is of practical character obviously.For the field of tax administration, tax administrative discretion refers to the rights of tax authority making a certain specific tax administrative behavior in a fair and proper means by free judgment and independent choice within the authorization of state laws based on the purpose of tax. For its existence, it is of historical inevitability and necessity. However, the individual contradiction between common crimes and tax-related crimes in tax legislation is a principal factor except common reasons for the existence of tax administrative discretion.Meanwhile, there are many representations on the improper exercise of discretion exist in practice of tax administrative enforcement of law. Since the universality, popularity of application, as well as characteristic of being unmanageable and uncontrollable existed in tax revenue work of discretion, many problems on the exercise of discretion appear in the tax administrative enforcement of law have been caused. At present, there exist many unsatisfactory places in the exercise state of tax administrative discretion, just because this, lawful rights and interests of the taxpayer are usually aggrieved, which not only goes against the formation of harmonious relations between levy officers and payers and the cultivating of fair competition in the market economic order, but also brings plenty of law enforcement risks to tax authorities and tax law enforcement officials at the same time, and which has been proved by the keeping up of the rate of losing lawsuits of tax authorities in tax administrative appeal at present. Therefore, it is of great significance to regulate and control the correct exercise of tax administrative discretion, which is no time to delay.This paper is divided into five parts in structure. The meaning, nature and component of administrative discretion are discussed inPart I. It is believed that administrative discretion in China refers to the right for the administrative subject making rational choice on doing behavior or not and what behavior should be done to the behavior conditions and behavior procedures within the limits of the legal authority, i.e. the process and right to excise the right of choice for administrative subject under the legal standard in accordance with its rationality understanding. It is the legal executive power, the delegated right of choice, and the right of choice being restricted and relative to free. It is composed by the right of choice, standard and rationality the three elements, and grows, conflicts and attached to each other among of which. This part is mainly to lay the theoretical basis for study on tax administrative discretion in the following text.In Part II, the meaning and necessity of its existence of tax administrative discretion are mainly discussed. It is believed that the tax administrative discretion refers to the rights of tax authority making a certain specific tax administrative behavior in a fair and proper means by free judgment and independent choice within the authorization of state laws based on the purpose of tax. Since reasons that limitations of human's understanding, complexity of reality, fuzziness of law expression, stability and technicality of laws, and requirements of satisfy government administration, etc., it is an indisputable fact that tax administrative discretion should be existed.In Part III, discussion on the classification and representation of tax administrative discretion is made. According to practical work experiences and learning study of the author, it is regarded that tax administrative discretion can be divided by procedural meaning and entity sense, of which, tax administrative discretion in procedural meaning can also be divided into discretion of set-up procedure or not, different procedures can be selected and how to execute processes; and tax administrative discretion in entity sense can be divided into discretion existed in specific administrative behavior and abstract administrative behavior. Representations of tax administrative discretion are mainly embodied in the sort and extent of tax administrative penalty, law enforcement behavior, time limit of law enforcement, affirmation to nature of facts and seriousness of cases, and processing and execution mode.The main representations on the abuse of tax administrative discretion at present are concluded, and the cause coming into being is analyzed in Part IV. In this paper, main representations on the abuse of tax administrative discretion are concluded as misuse of authority, excess of authority, obvious unjustness and administrative omission. For the moment, legislation is not perfect, legal authority is too broad, business capability and moral integrity of part of tax law enforcement officials are lower, system of tax administrative procedures is not perfect enough, and internal and external supervision and relief mechanism are unsound and imperfect, etc., which is regarded as the key reason of tax administrative discretion being abused at present.In Part V, regulations for the execution of tax administrative discretion is discussed. And this is also the core part of this paper. Discussion on the standard and control to execution of tax administrative discretion is made from aspects of strengthening legislation control, establishing tax precedent system, building internal control mechanism, enhancing overall judicial review, and counterbalancing the rights and social public will and so on. Concept and theory of internal control is introduced in this paper, and it is believed that it is an extremely important way and method of making specifications on the correct exercise of tax administrative discretion to establish internal control mechanism in line with characteristics of tax administration in China and promote tax authorities at all levels to generate endogenous restraining forces.