Research On The Discretionary Power In Taxation Administrative Enforcement

The fourth of 18 th plenary session proposed to promote the rule of law comprehensively and set the total target of building the rule of law system with Chinese characteristics and a socialist country under the rule of law. On the legal level, our country belongs to the legal system countries. No matter in which level or route, it should obey some rules, which are the available law to obey, the strict administrator to conduct and the severe punishment for violators. But with the rapid development of economy, social relation is becoming more and more complex, the rule of the legal control is no longer adapt to China’s basic condition, even if the laws and regulations are constantly adjusted. Because of the shortcomings of legislative technology, the legal lag appears to be so serious that legal control always cannot keep pace with the development of the society. Tax, as the main source of financial revenue, plays an important role in the social economy. In the condition that the country contributes to the development of administrating tax by law powerfully in each aspect and tax laws become complicated, discretion in the tax law enforcement appears to be extremely important.Based on the the rule of law strategy, new amendment of the tax administration law promotes the tax legal system. Other tax-related laws and regulations, also give tax authorities more discretion so that they can be more flexiable in the process of tax administration, and then improve the efficiency of the tax law enforcement effectively. However, the tax law enforcement discretion is the double-edged sword. On the one hand, its existence has the legal basis and has positive influence. On the other hand, the negative impacts it brings are increasingly prominent. Based on the assumption of rational agent, tax law enforcement discretion is mastered by law enforcers, and elastic decision-making right neglects the original reason which is required by law of law enforcers. As a result, they will transfer their rights into a kind of tool to seek personal benefits, to deprive the whole country and other people’s interest. Finally, the tax authorities’ public image and the authority of law are destroyed which brings great negative impact on society. Of course, the reason that causing improper using of the tax law enforcement discretion is not only subjective factors, there are still a lot of objective factors that contribute to this phenomenon.The author summarized three forms of inappropriate using of tax law enforcement discretion in the article, the first is the improper purpose and motivation of conducting rights(advance), the second is opaque procedure(in the process), the last is just results shown by government(later). Working out how to take effective control of enforcement discretion is the priority. With frequent using of tax discretion, it attracts many scholars’ attention, including those from other countries, they began to do some researches in this problem and then tried to explore an effective method to control the tax law enforcement discretion. Based on the theory of modern administrative discretion, the author gives analyses to the typical cases that happened in society which relate to tax law enforcement discretion. By analyzing its causes and negative impacts to the society, the author sums up key elements to control the use of the tax law enforcement discretion. In addition, combining the theory with practice, a control system which includes four patterns is established in order to control the use of the tax law enforcement discretion as well as to promote the tax legal system construction.