Research On The Tax Administrative Punishment Discretion Standard

The tax administrative punishment discretion standard(TAPDS)is an administrative self-control rule formulated by the tax authorities.Its function is to restrict,limit,and construct the discretionary power of tax administrative punishment.In recent years,the normative exercise of discretionary power has become one of the academic hotspots,but few scholars have researched from specific legal fields.However,the author believes that to achieve the optimal value of the legal system is to fit the theory and practice perfectly,and then solve the real problem.Therefore,this paper combines the discretionary standard with the tax administrative punishment,and establishes the basis for the formulation and implementation of the discretionary standard in order to give full play to the control function of the system.The aspect of theoretical foundation.From the review of TAPDS practice in China,it controls the discretionary power within a reasonable range through plot refinement and punishment formation under the framework of tax laws and regulations,and reserves the necessary space for the exercise of discretion in order to realize its functions of defining,restricting and constructing the discretionary power of tax administrative punishment.If there is no rule to control,the discretion is easy to be arbitrary;and if rules are used to replace discretion,it is difficult to take intothe particularity of the case account and not conducive to the realization of individual justice.Therefore,the institutional positioning is the balance between constraint and discretion.If the TAPDS wants to find a balance,it is necessary to grasp accurately the reasonable space for the exercise of discretion,improve the types of discretion factors,the degree of refinement of rules and punishment formation to realize the control of the system.The TAPDS arises from the practice of administrative law enforcement of tax authorities,and it conforms to the need of tax law enforcement task in China.The first problem in the process of the generation of a system is to confirm the making body.We should reasonably divide the establishment authority of different tax administrative organs,so that the discretion standard effectively exerts its binding force.The TAPDS is the unity of administrative self-control and rule doctrine,and its orientation is the balance between the constraint and the discretion.The establishment of authority should be in the provincial tax authorities below,county tax authorities above.based on the nature of administrative self-control,the establishment of authority should be tilted to the grassroots tax authorities compared to the provincial tax authorities.In addition,in order to ensure the rationality and scientific nature of the discretion standard,the up-and-down interactive generation model should be adopted.To give full play to the role of front-line law enforcement personnel in the formulation process,combing and summing up the law enforcement experience timely,on the basis of which the formation of general discretion standards for typical cases.The formulation process is open and transparent.At the same time,to solicit opinions from experts and the public.The response mechanism of the policy-making department is also indispensable.After entering the implementation link,we should pay attention to giving full play to the role of various intellectual resources in its adjustment and modification,collect and comb feedback information,evaluation opinions.through the above links,forming an optimized text.The up-and-down interactive generation model is not to separate the process of formulating,modifying andperfecting the TAPDS,but to regard them as a unified and complete process,so that the policy makers,the grassroots law enforcers and the administrative counterpart will play their respective roles to ensure the scientific and reasonable nature of the system.The aspect of the content construction.From the internal point of view,using the principle of administrative equilibrium in line with the concept of tax law as the standard to judge the rationality of the content of the discretionary base entity.The tax administrative penalty activity is essentially the balance between the public interest and the private interest.From the external point of view,as a local administrative self-control rule,the TAPDS must reflect the needs of each local tax enforcement,so it should be reasonably differentiated in the content composition.And the differentiation is not absolute,but needs to be within a reasonable range.We should take full account of the local level of economic development and the reality of tax enforcement.The realization subject of reasonable content differentiation is the primary tax law enforcement personnel,the policy makers and experts.The realization path is to transform the consideration factor into the discretion rule by the way of plot refinement.The aspect of technical structure.The technical structure of the TAPDS contains two parts,plot refinement and punishment formation.There are some defects in the technical structure,the homogenization of the discretion factors and the division technique of the penalty range are not scientific.Therefore,it is necessary to reasonably determine the classification criteria according to the legislative intent of the tax laws and regulations,and to consider the discretionary factors overall,including the behavioral agent,subjective aspects,objective aspects,and the consequences.In the refinement of the plot,enumerating and distinguishing the various main objective facts of the illegal behaviors according to the experience of law enforcement.If necessary,we can make forward-looking enumeration.In terms of punishment formation,the types of penalties should be divided into mutually connected punishment segments rather than isolated punishmentpoints,so that law-enforcement personnel can still dynamically choose the optimal results of the penalty.At the same time,there should be flexibility between the range of penalties.We should reasonably set the penalty provisions from the heavier,lighter,reduced,so that each penalty is ordered to rise and fall,becoming a smooth,reasonable and not rigid organic whole.After the establishment and publication of the TAPDS,the administrative law enforcement personnel shall be concretely applied in enforcement activities.When carrying out discretionary activities,tax law enforcement personnel regard the TAPDS as the reason for punishment in fact.Firstly,they judge the plot according to the case,and then determine the degree of punishment in the effect lattice according to the plot.The system of discretion is established to control discretionary power,not to eliminate discretionary power.In the process of control,it is also necessary to leave discretionary space for tax law enforcement personnel in order to achieve case justice.For discretionary matters not covered by the TAPDS,tax administrative law enforcement personnel still need to consider the particular circumstances in the case.The applicable rule of escape is that the administrative organ temporarily escapes the discretion in order to realize the justice of the case,which embodies the balance between the discretion and the restraint.In the process of the application of the escape rule,it is necessary to follow certain procedures to ensure the legal escape of the standard.Otherwise it will lead to the new abuse of the discretionary power.