ESSENCE OF CONCEPT “DISCRETION” IN TAX LAW
Journal Title: Юридичний бюлетень - Year 2018, Vol 7, Issue 1
Abstract
The article analyzes the meaning of the concept of “discretion” in the tax law. It is noted that such categories as “discretion” and “discretion” are considered in the law as categories that are materially identical. The doctrinal approaches to the definition of the very definition of “discretion” (“discretion”) are analyzed and the main features of discretion as general theoretical phenomenon are defined. The author of the article states that the realization of discretion is a complex thought-analytical act (intellectual component), the realization of which is possible through the active and conscious actions of the subject of law enforcement (volitional component). At the same time, the author confirmed the idea that implementation of discretion is often associated with the exercise of discretionary powers. In the context of understanding the term “power” it is more appropriate to say that discretion is related precisely to such an element as the right of a state authority. The author draws attention to the wording of the normatively-defined definitions of the concept of “discretionary powers”. It is noted that the concept of “discretionary powers” was formalized within the framework of the provisions of the Recommendation of the Committee of Ministers of the Council of Europe No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities of 11.03.1980. Within the framework of national legislation, such a concept as “discretionary powers” also received its formalization as part of the requirements of clause 1.6 of the Methodology of Anticorruption Expertise, approved by the Order of the Ministry of Justice of Ukraine dated April 24, 2017, No. 1395/5. The author of the article outlines the features of the concept of “discretionary powers” and outlines a number of requirements that should be consistent with the discretion of the state authority. It is noted that the term “discretionary powers” contains a logical error, since the implementation of discretion is the right of the subject, but has nothing to do with the second component of the concept of “authority” – the responsibilities, therefore, in the author’s opinion, it would be more appropriate to speak about the notion of “discretionary rights”, and not about “discretionary powers”, or in some way to outline the notion of the use of the term “powers” in this term.
Authors and Affiliations
Надія Олександрівна Ханова
Keywords
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