What Is Consumer Discretionary?

Discretionary power means that the tax authority or other administrative organs and their staff can determine the behavioral conditions, choose the behavioral methods, and the behavioral methods based on the legislative purpose and the principles of fairness and reasonableness within the scope of legal authorization when the legal facts are determined The power to make administrative decisions freely is, in essence, a process by which administrative agencies make behavior choices based on certain system standards and value orientations. ^[1]

Discretionary power means that the tax authority or other administrative organs and their staff can determine the behavioral conditions, choose the behavioral methods, and the behavioral methods based on the legislative purpose and the principles of fairness and reasonableness within the scope of legal authorization when the legal facts are determined The power to make administrative decisions freely is, in essence, a process by which administrative agencies make behavior choices based on certain system standards and value orientations. ^[1]

Discretion is generally combined with administrative actions. It is a state-given administrative agency that has the power to choose within the scope and scope prescribed by laws and regulations. Due to the vast size of our country and the wide variety of situations in different regions, the provisions of laws and regulations cannot exhaust everything possible. Therefore, the discretion of administrative agencies exists objectively, and any administrative department has more or less discretion.

On July 4, 2009, the Guangzhou Municipal Government issued

According to incomplete statistics, there are currently more than 1,200 laws and administrative regulations in force in China, and about 21,000 local laws, regulations and departmental regulations in force. In this huge system, more than 95% of the provisions on administrative penalty are involved, and more than 90% of the provisions on sanctions imposed on administrative organs. Discretionary power is an indispensable condition for administrative organs to perform administrative management. However, improper exercise of discretionary power has also caused a negative side of administrative law enforcement.

In fact, compared with illegal exercise of discretion, in reality, there are more problems with unreasonable exercise of discretion, and supervision is more difficult.

Looking at the enforcement system of China's tax discretion, it can be found that the creation of administrative discretion in China's tax laws is mainly reflected in the "collection law", which focuses on discretion in law enforcement procedures, rather than tax administrative freedom at the stage of facts Discretion. The main reasons are:

First, if the capacity and level of China's tax administrative law enforcement cannot fully meet the requirements for tax administration according to law, the provision of arbitration of factual elements may undermine the uniformity and fairness of tax law;

Second, when the tax administrative relief means and channels are blocked, the rights and interests of counterparties may be more infringed, and it is difficult to ensure the balance of public and personal interests;

Third, the "uncertain concepts" in tax law and new problems found in the practice of tax administrative law enforcement can be resolved through legislative or judicial interpretations, and cannot be "discretionary" by tax administration agencies;

Fourth, in accordance with the principle of inversion of the burden of proof in administrative law enforcement, the discretion of factual elements will increase the burden of proof of the tax administration and increase the workload of the tax authority.

Therefore, the system of tax discretion is mainly aimed at the establishment of tax administrative procedures, which mainly includes the following three aspects:

(1) Institutional guarantee of legislative procedures. In the legislative process, provide taxpayers with the opportunity to participate in the opinion, and extend this procedure to the formulation of various tax systems, including tax administrative regulations, to ensure that taxpayers restrict the discretion of tax authorities from the source.

(2) Institutional control of law enforcement procedures. The tax law enforcement procedures directly related to the taxpayer's legitimate rights and interests, such as tax collection procedures, tax inspection procedures, tax punishment procedures, and tax administrative enforcement procedures, are incorporated into the scope of legal regulation and control to achieve procedural control of tax discretion.

(3) Ex-post remedies for administrative actions. After the tax authorities 'own supervision, internal tax administrative reconsideration, and external (mainly legislative and judicial) supervision and review, ex post relief for damages caused to taxpayers' rights and interests due to improper discretion and illegal investigations through liability investigation Be alert and controlled.

Regulating discretion, we should avoid sports norms. If you come up with detailed standards in the movement, you may be distanced from law enforcement practice after a period of time. Therefore, you need to consider establishing a long-term system, and administrative agencies need to have the consciousness of constantly adjusting the detailed standards.

In practice, cities and counties set their own discretionary standards, and there has been a problem of inconsistencies between cities and cities, and counties and counties, and the scope of punishment for the same illegal act varies from region to region. Some contradictions between public interest and environmental protection violations and local economic development can easily lead to excessive or difficult implementation of administrative penalties; moreover, before the higher law has not been modified, the lower limit of penalties is set higher It is disproportionate to the tolerance of the administrative fault and management counterparty, which often makes it difficult to implement the discretionary standards.

Regulating discretion is the self-restriction and self-restriction of administrative organs. Although China has made a lot of discussions and made great determination, the law on the implementation of supervision and restriction is still blank. As far as the discretion of administrative punishment is concerned, the law does not provide a supervisory and safeguard mechanism to avoid missteps or omissions. National and provincial steering committees should be set up. By formulating clear guidelines for punishment, regulating the enforcement of punishments related to punishment, establishing a guiding case system, and forming a relatively unified statistical network system for punishment, etc. Penalty activities.