Tax administrative discretion is a kind of "mobile" power for tax authorities to freely judge administrative behavior conditions, choose administrative behavior methods and make tax-related decisions under the condition of legal facts, within the scope and scope stipulated by laws and regulations, according to legislative purposes and the principle of fairness and reasonableness. The scope and types of tax administrative discretion The Tax Administration Law (hereinafter referred to as the Tax Administration Law) and its detailed rules for implementation (hereinafter referred to as the Detailed Rules), the Measures for the Administration of Invoices, the Administrative Licensing Law, the Administrative Punishment Law, the Administrative Reconsideration Law, the Administrative Compensation Law and other laws and regulations all give the tax authorities administrative discretion. According to the provisions of these laws and regulations, the current tax administrative discretion can be divided into the following five categories: [1]1,tax-related amount verification discretion. The discretionary power of tax-related amount verification refers to the process or power of exercising the right of choice when the tax authorities verify and adjust the tax-related amount according to the provisions of the tax law and certain standards, procedures and methods, or when taxpayers with imperfect financial systems or taxpayers or affiliated enterprises that fail to register according to regulations fail to collect or pay the price and expenses according to the business dealings between independent enterprises. This discretion is embodied in Articles 35, 36 and 37 of the Tax Administration Law and Articles 47 and 55 of the Detailed Rules. For taxpayers, they fail to establish accounts according to regulations, or fail to establish accounts according to regulations, or refuse to provide tax payment information, or the declaration is obviously low without justifiable reasons, or taxpayers have business dealings with their affiliated enterprises such as buying and selling business, financing, providing labor services, transferring property, providing property use rights, etc. The above provisions only require the tax authorities to adopt reasonable methods of verification and adjustment, and do not list all the specific methods of verification and adjustment, nor do they specify the specific procedures of verification and adjustment. Therefore, in practice, the tax authorities can either choose the verification and adjustment methods listed in the Detailed Rules or freely choose other reasonable methods to verify and adjust the tax payable of taxpayers. 2. Discretion of the types and extent of tax administrative punishment. The discretionary power of tax administrative punishment refers to the discretionary power exercised by tax authorities when imposing certain sanctions on taxpayers who violate the order of tax collection and management and have not yet constituted a crime and should bear administrative legal responsibility according to law. The types of tax administrative punishment mainly include: warning; Fines; Confiscation of illegal gains and property; Stop the right to apply for export tax refund, collect or stop selling invoices. Penalty discretion is embodied in Articles 60 to 73 of the Tax Administration Law, Articles 90 to 98 of the Detailed Rules, Articles 36 to 39 of the Measures for the Administration of Invoices, and Articles 44 and 45 of the Measures for the Administration of Tax Registration Certificates, all of which clearly stipulate the scope of tax administrative punishment. This scope can be divided into two categories: one is that taxpayers who violate the regulations, in addition to being ordered by the tax authorities to make corrections within a time limit, can also be punished or not punished according to a certain amount standard. Article 60 stipulates that if a taxpayer fails to go through tax registration, establish account books or install or use tax control devices in accordance with the regulations, the tax authorities shall order it to make corrections within a time limit and may impose a fine of less than 2,000 yuan; If the circumstances are serious, a fine of two thousand yuan or more and ten thousand yuan or less may be imposed; Article 72 stipulates that if a taxpayer violates the tax law and refuses to be dealt with by the tax authorities, the tax authorities may collect its invoices or stop selling them. The other is that taxpayers who violate the regulations will be punished by a certain amount in addition to being ordered by the tax authorities to make corrections within a time limit. For example, if a taxpayer or withholding agent fabricates a false tax basis, the tax authorities will order it to make corrections within a time limit and impose a fine of less than 50,000 yuan. As can be seen from the above, taxpayers who violate the regulations can be punished, or they can not be punished, or they must be punished, but the standard of specific punishment is decided by the tax authorities themselves. 3. Discretionary power to determine the facts of tax violations. The discretion to determine the facts of tax violations refers to the power of the tax authorities to determine the nature or seriousness of the behavior of the tax administrative counterpart in the process of exercising their functions and powers, and the tax authorities can freely judge and decide according to the specific circumstances and their own will. On such issues, the discretionary power given to tax authorities by the Tax Administration Law can be divided into two categories: one is factual discretionary power. For example, as stipulated in Articles 38 and 55 of the Tax Administration Law, tax authorities may take administrative measures such as ordering taxpayers to pay taxes within a time limit if they have reason to believe that taxpayers are evading their tax obligations. The other is the measurement of environment. Many clauses in the legal responsibility part of the Tax Administration Law stipulate how to deal with "serious circumstances". However, apart from the individual acts listed in the detailed rules, there is no clear boundary on what constitutes "serious circumstances". Therefore, it can only be determined by the tax authorities at their discretion. 4, tax administrative behavior choice discretion. The right to choose tax administrative acts refers to the right of tax authorities to choose and exercise different specific administrative acts according to the provisions of tax laws and administrative regulations. There are mainly: the discretion of preservation and enforcement, that is, the discretion of whether to take tax preservation and enforcement measures and the way and time limit in the process of tax preservation and enforcement; In the discretion of tax relief, that is, whether to give policy relief and the amount of relief in the process of tax relief; Discretion in tax inspection, that is, discretion in the time, measures and scope of inspection in the process of tax inspection; Time limit for accepting other tax matters. For example, Article 38 of the Tax Administration Law stipulates that when taking preservation measures, the tax authorities may choose to freeze the taxpayer's deposits according to the circumstances, or seal up, detain or seal up the taxpayer's taxable goods, commodities or other property within the scope equivalent to the taxable amount, or both. Article 40 (1) (2) of the Tax Administration Law stipulates that when compulsory measures are taken, you can choose to auction or sell the sealed-up and detained commodities and goods according to law, and use the proceeds from the auction to offset the tax; Article 54 of the Tax Administration Law stipulates that when conducting tax inspection, the tax authorities may decide to inspect the taxpayer's account books by themselves according to the situation; To inspect taxable commodities, goods and other property at the taxpayer's production and business premises and goods storage sites; You can also instruct taxpayers to provide corresponding tax information. 5, the tax administrative period of discretion. The time limit discretion of tax administrative acts refers to the power of tax authorities to make administrative decisions within the time limit stipulated by tax laws and administrative regulations. For example, Article 42 of the Administrative Punishment Law stipulates that the administrative organ shall notify the parties of the time and place of the hearing 7 days before the hearing; Article 31 of the Administrative Reconsideration Law stipulates that the administrative reconsideration organ shall make an administrative reconsideration decision within 60 days from the date of accepting the application; Article 13 of the Administrative Compensation Law stipulates that the organ liable for compensation shall make compensation according to law within two months from the date of receiving the application; Article 42 of the Administrative Licensing Law stipulates that the administrative organ shall make an administrative licensing decision within 20 days from the date of accepting the application for administrative licensing, except that it can make an administrative licensing decision on the spot. It is not difficult to see the above provisions. If there is a time limit for tax administration, as long as it meets the "XX day", the tax authorities can decide the specific day.

Legal objectivity:

Administrative Punishment Law of the People's Republic of China

Article 32

In any of the following circumstances, the administrative punishment for the party concerned shall be given a lighter or mitigated:

(a) take the initiative to eliminate or mitigate the harmful consequences of illegal acts;

(2) Being coerced or tricked into committing an illegal act by others;

(3) voluntarily confessing the illegal acts that the administrative organ has not yet mastered;

(four) with the administrative organs to investigate and deal with illegal acts with meritorious service;

(five) other laws, regulations and rules shall be given a lighter or mitigated administrative punishment.