Discretion is among the central concepts in German administrative law and, accordingly, in tax law as its section. Discretion is also not insignificant in tax law of Ukraine.

 The article has the following objectives: 1) to define the content of the concept “discretion”; 2) to analyze the criteria for appropriateness of discretion; 3) to determine the specifics of discretion exercised in the area of taxation; 4) to identify the special place of evaluative concepts in the formulation of judicial doctrines.

It is established that the concept of “discretion” should be understood as the ability of a public authority to have a certain range for independent decision-making which can be verified by a court of law within a limited scope. Discretion of holders of public powers may relate to: a) action or omission by a public authority; b) the question of “how”, i.e., the question of measures to be used by a regulatory body as a response in a particular case. It is noted that in terms of discretion, it is important to comply with the following conditions: 1) the right to exercise discretion should be clearly prescribed by law or consistently ensue from it; 2) discretion should be exercised in accordance with the purpose for which it is granted; 3) discretion should be applied within the limits established by law. Respective conditions should be determined as conditions of appropriate discretion. The author emphasizes the importance of evaluative concepts in terms of development of the discretion doctrine in the area of taxation. At the same time, it is stated that in this area, discretion receives its limited application.

Therefore, both in Germany and in Ukraine, discretion in the area of taxation is possible. At the same time, it is noted that in Germany, discretion in the tax and legal field is significantly limited.

Bibliography

Authored books

1. Arndt Hans-Wolfgang und Jenzen Holger und Fetzer Thomas, Allgemeines Steuerrecht (3 Auflage, Franz-Vahlen-Verlag 2016) (in German).

Journal articles

 2. Kobylnik D, ‘Deiaki mirkuvannia stosovno dyskretsiinykh povnovazhen orhaniv, shcho zdiisniuiut finansovu diialnist v Ukraini’ [‘Some Considerations Regarding Discretionary Powers of Financial Institutions Operating in Ukraine’] [2015] 2 (8) Teoriia i praktyka pravoznavstva <http://tlaw.nlu.edu.ua/article/ viewFile/63824/59304> (accessed: 07.02.2020) (in Ukrainian).

3. Kucheriavenko M, ‘Osoblyvosti rozsudu v podatkovo-pravovomu rehuliuvanni’ [‘Specifics of Discretion in Tax Law Regulation’] (2017) 1 ScienceRise. Juridical Science 37–41 (in Ukrainian).

Thesis

 4. Khanova N, ‘Dyskretsiini povnovazhennia kontroliuiuchykh orhaniv u sferi opodatkuvannia v Ukraini’ [‘Discretionary Powers of Regulatory Authorities in the Area of Taxation in Ukraine’] (avtoref dys kand yuryd nauk, 2019) (in Ukrainian).

Conference papers

5. Smychok Ye, ‘Dyskretsiini povnovazhennia kontroliuiuchykh orhaniv v aspekti reformuvannia podatkovoi systemy’ [‘Discretionary Powers of Regulatory Authorities in Terms of the Tax System Reform’] v Konstytutsiina reforma yak vymoha suchasnosti: zbirnyk tez dopovidei ta naukovykh povidomllen uchasnykiv naukovo-praktychnoi internetkonferentsii [Constitutional Reform as a Requirement of Modern Times: Collected Theses of Updates and Scientific Reports of Participants to the Scientific and Practical Internet Conference] (Hetman A zah Red, Nats yuryd akad Ukraïny im Yaroslava Mudroho 2014) (in Ukrainian).