Lead
In the daily operation of many individual industrial and commercial households, due to the small scale of operation, they cannot meet the standards for setting up account books stipulated by relevant laws and regulations, so the tax authorities adopt the method of regular and fixed amount collection when administering the tax of these individual industrial and commercial enterprises. Specifically, it is a collection method in which the tax authorities verify the taxable business amount (including the number of operations) or income (hereinafter referred to as the fixed amount) of individual industrial and commercial households in a certain business location, a certain business period and a certain business scope in accordance with the provisions of relevant laws and regulations, and use this as the basis for tax calculation to determine the tax payable.
However, there is a problem that needs to be noted here, that is, according to the provisions of relevant laws and regulations, the turnover and income of individual industrial and commercial households that adopt the regular quota collection method must be within the scope of the quota approved by the tax authorities.
So, what will happen if the actual turnover and income of an individual industrial and commercial household exceed the quota approved by the tax authorities, but it does not declare and pay taxes according to the actual turnover and income? Next, let's take a look at it through a case.
Case review
The case originated from (2018) Chuan 1181 Xingchu No. 47, and the name was a pseudonym.
Mr. A operates two shopping malls in Leshan City, Sichuan Province, both of which are self-employed and pay taxes on a regular basis.
After a period of operation, A's actual operating income has far exceeded the approved quota, but A has not declared and paid taxes according to the actual operating income. After the tax bureau found out, it interviewed Mr. A, but Mr. A did not take the matter to heart and still paid the tax according to the original fixed amount.
After that, the tax bureau conducted a tax inspection on two self-employed individuals of A, and after the inspection, it was believed that A refused to declare after being notified by the tax authorities to declare, and made false tax declarations, and in the five years from January 2*08 to December 2*12, a total of 720,000 yuan was evaded in taxes, and a fine of 3 times the amount of tax evasion was imposed on A, totaling 2.16 million.
A was dissatisfied with the penalty imposed by the tax bureau and filed a reconsideration, and the result of the reconsideration was to maintain the original disposition, after which A filed an administrative lawsuit. During the trial, the tax authorities were unable to produce a clear record of the time of the interview and notification of A's declaration, nor could they produce other evidence to prove it. As a result of the lawsuit, the tax bureau lost the lawsuit, and Mr. A finally won the lawsuit.
Case Study
In this case, Mr. A's actual business income exceeded the quota approved by the tax authorities, and he failed to declare and pay taxes in a timely manner according to the actual business income, so he was determined by the tax authorities to have evaded taxes and imposed penalties. According to Article 15 of the Interim Measures for the Administration of Regular Quotas for Individually-owned Industrial and Commercial Households (GSF [1997] No. 101), if the actual business turnover of a fixed-term quota household during the verification period is 20% to 30% higher than the quota approved by the tax authorities (the specific range shall be determined by the State Taxation Bureaus and local taxation bureaus of all provinces, autonomous regions, municipalities directly under the Central Government and cities specifically designated in the state plan according to local conditions) and fails to timely and truthfully declare the adjustment of the quota to the competent tax authorities, it shall be treated as tax evasion. If this provision is followed, then the treatment of the tax authorities is accurate.
However, the statute was repealed in its entirety on 1 January 2007. At present, the effective regulation is the Administrative Measures for the Regular and Quota Collection of Taxes for Individually-owned Industrial and Commercial Households (Decree No. 16 of the State Administration of Taxation), which clearly stipulates that if the tax authorities have found that the business turnover and income of the regular quota account in the previous quota implementation period exceed the quota, or the business turnover and income incurred in the current period exceed the quota by a certain range and fail to file tax returns and settle the tax payable to the tax authorities, the tax authorities shall recover the tax, impose a late payment penalty, and deal with it in accordance with the provisions of laws and administrative regulations.
The laws and administrative regulations mentioned here mainly refer to the "Law of the People's Republic of China on the Administration of Tax Collection", which defines tax evasion as follows: taxpayers forge, alter, conceal, or destroy account books and accounting vouchers without authorization, or overlist expenses or omit or underlist income in account books, or refuse to declare or make false tax declarations after being notified by the tax authorities, and fail to pay or underpay the tax payable. Let's analyze whether A has tax evasion in combination with this regulation.
First of all, Mr. A belongs to an individual industrial and commercial household, and does not meet the standards for setting up account books stipulated by relevant laws and regulations, and does not set up account books, so there is no forgery, alteration, concealment, or unauthorized destruction of account books, let alone multiple expenditures or omissions in the account books. As for the refusal to declare after being notified by the tax authorities, in this case, Mr. A did objectively have such an act, and could have been found to have evaded taxes according to this article, but the tax authorities did not clearly record the time of the interview and notification of Mr. A's declaration, nor could they produce other evidence to prove it; The amount of income has been verified and the amount of tax payable has been determined, and Mr. A has also paid the tax payable previously determined by the tax authorities on a monthly basis, so Mr. A does not have the situation of false declaration, let alone the subjective intention of tax evasion. Based on the above facts, the court upheld A's claim and found that there was no tax evasion. However, it is true that A's actual operating income has far exceeded the approved quota, so in accordance with the relevant provisions of the Administrative Measures for the Regular and Quota Collection of Taxes for Individual Industrial and Commercial Households (Decree No. 16 of the State Administration of Taxation), it is still necessary to pay back taxes and impose late fees.
Extension of knowledge
1. What are the procedures for the tax authorities to verify the quota for individual industrial and commercial households that adopt the method of regular quota collection?
According to Article 7 of the Administrative Measures for the Regular and Fixed Collection of Tax for Individual Industrial and Commercial Households (Order No. 16 of the State Administration of Taxation):
(1) Self-declaration. Fixed-term quota accounts shall report to the in-charge tax authorities in accordance with the declaration deadline and declaration content stipulated by the tax authorities, and fill in the relevant declaration documents. The content of the declaration shall include the business industry, business area, number of employees, monthly business income, income and other declaration items required by the tax authorities. The business revenue and income mentioned in this item are estimates.
(2) Approved quotas. The in-charge taxation authorities shall adopt the verification method specified in Article 6 of these Measures to verify the quota and calculate the tax payable according to the self-declaration of the regular quota account and with reference to the typical survey results.
(3) Quota publicity. The in-charge taxation authorities shall publicize the preliminary results of the approved quota within five working days.
The location, scope and form of publicity shall be determined by the in-charge taxation authorities in accordance with the principle of facilitating the understanding and supervision of regular quota households and all sectors of society.
(4) Approval by superiors. The in-charge taxation authorities shall revise the quota according to the results of the public opinion, and report the verification situation to the tax authorities at or above the county level for review and approval, and then fill in the Notice of Verification and Quota.
(5) Issuing quotas. The Notice of Approved Quota shall be delivered to the regular quota account for implementation.
(6) Publish quotas. The in-charge taxation authorities will announce the final fixed amount and tax payable within the scope of the original publicity.
2. What are the methods for the tax authorities to verify the quota for individual industrial and commercial households that adopt the method of regular quota collection?
According to Article 6 of the Administrative Measures for the Regular and Fixed Collection of Tax for Individual Industrial and Commercial Households (Decree No. 16 of the State Administration of Taxation):
The tax authorities shall determine the quota according to the business scale, business area, business content, industry characteristics, management level and other factors of the regular quota account, and may adopt one or more of the following methods to verify the quota
(1) Estimate or calculate and approve according to the raw materials, fuel, power, etc. consumed; (2) Estimate and verify according to the method of adding reasonable expenses and profits to the cost; (3) Estimate or calculate and approve according to the inventory situation; (4) Calculate and verify according to invoices and relevant vouchers; (5) Calculate and verify according to the capital flow of bank operating accounts; (6) Verify and verify with reference to the production and operation of taxpayers of the same scale and in the same region in the same industry or similar industry; (7) Verify and verify according to other reasonable methods.
epilogue
In this case, an important reason why A was able to win the case was that the tax authorities had some flaws in their work, and they did not clearly record the time of the interview and notification of A's declaration, nor could they produce other evidence to prove it, not that they really did not have tax evasion as stipulated in the relevant laws and regulations. Therefore, for individual industrial and commercial households that adopt the method of regular and fixed amount collection, if the actual operating income exceeds the quota approved by the tax authorities, they should still declare to the tax authorities in time and pay the corresponding taxes on time and in full. Don't expect the tax authorities to be negligent and fail to find you, because the tax authorities' inspections are very rigorous and meticulous, and flaws like this one are very rare.