A Research On Standards Of Tax Legislative Authorization

The key to implement the doctrine of tax legal lies in how to deal with the relationship between the strict tax legal and the tax legislative authorization."Authorization by decision" and "authorization by law" constitute two basic forms of legislative authorization.According to the provisions of the Legislation Law,even if the legal reservation concerning tax matters isn't an absolute legal reservation,it is necessary to restrict the "legislative discretion" concerning tax matters in order to prevent the legislature from failing to carry out its legislative duties.This means that the legislative authorization involves a question of "the limit of authorization".In order to make the legislature better grasp the limit of legislative authorization,it is necessary to establish the corresponding authorization standards.The establishment of the authorization standards not only can prevent the nonfeasance of legislation,restrict its "legislative discretion",but also can provide the basis for judging the legitimacy of administrative organs' behavior.Nowadays,under the background of strengthening tax legalism,it is impossible for the legislature to grant the power of levying new taxes to the administrative organs,therefore "authorization by law" becomes the main target regulated by the authorization criteria.The standard of necessity,the standard of importance,the standard of benefiting taxpayers and the standard of controllability are the primary authorization criteria that should be complied with in a horizontal legislative authorization for tax.The standard of necessity is mainly used to measure the necessity of the legislative authorization,determining whether the administrative organs have comparative advantages in tax matters compared to the legislature,whether it is advantageous for the administrative organs to better control the tax economy and whether it is helpful to reduce the cost of legislature.The standard of importance requires that tax matters that can be authorized by the legislature are relatively "unimportant",and the importance mainly depends on the purpose of taxes,the nature of taxes,the characteristic of elements of taxes,the degree of impacts on taxpayers' rights and tax revenue.The standard of benefiting taxpayers is a value criterion measuring whether the legislature can authorize legislation.From the perspective of the allocation of taxing rights,the legislature could delegate the legislative power concerning the matters which are beneficial for taxpayers to the administrative organ.The standard of controllability requires that the powers conferred by the legislature must be controllable.The scope of administrative legislation identified jointly by legislative and judicial organs determines the scope of legislative authorization for tax.The standards of certainty and necessity are two technical standards,whose regulation of tax legislative authorization for tax is in terms of form;the standards of importance and benefiting taxpayers are two value criteria,whose regulation of legislative authorization for tax is mainly directive.And the standard of controllability is a decisive standard of legislative authorization.China's legislative authorization cannot fully meet the requirements of standards above,and there are two aspects of this phenomenon:on the one hand,when the legislature grants legislative authority concerning the regulation of substantive elements of taxes,it neither fully considers the necessity of authorization,nor deliberately judges its importance,besides,the lack of controllability of legislative authorization deviates from the original intention of legislative authorization for tax;On the other hand,the "hidden authorization",or "invisible authorization" exist in large numbers,which not only erode the legislature's legislative right,but also threaten taxpayers' property rights.Anyhow,the legislature should strengthen self-restraint,strictly comply with the authorization standards in order to better assume its responsibilities of tax legislation,which is indispensable for protecting taxpayers' rights and implementing the rule of law in tax area.