Audit case: Obtaining false invoices is not punished as tax evasion

Announcement on the delivery of the "Tax Treatment Decision" of the Third Inspection Bureau of the State Administration of Taxation and the Third Inspection Bureau

Tax Audit No. 3 [2024] ***

Network Technology Co., Ltd. (unified social credit code: 9***5):

In accordance with the provisions of Article 106 (2) of the Detailed Rules for the Implementation of the Law of the People's Republic of China on the Administration of Tax Collection (Order No. 362 of the State Council of the People's Republic of China), the "Tax Treatment Decision" is hereby announced to your unit. 30 days from the date of the announcement shall be deemed to have been served. After seeing this announcement, your unit should go to the Third Inspection Bureau of the State Administration of Taxation (Location: ***) to collect the documents. The main contents of the instrument are as follows:

Since August 6, 2020, our bureau has inspected the tax-related situation of your unit (address: No. 256, second floor, ***) from January 1, 2017 to December 31, 2017.

1. Facts of violation

Your company is currently in an abnormal state, and you cannot contact the relevant responsible personnel of the enterprise through various methods, and you cannot obtain financial information.

The existing evidence proves that your company has obtained the special VAT invoice involved in the case, certified the deduction and deducted it before tax. The relevant information of the invoice is consistent with the original information list provided by the entrusting party, such as bill type, invoice code, invoice number, amount, tax rate, tax amount, total price and tax, and invoice date. From the information provided by the entrusting party and the evidence currently available, it cannot be proved that your unit knows or should know that the invoice provided by the seller is obtained by illegal means, and there is no subjective intentionality.

2. Handling decision and basis

(1) Value-added tax

According to the announcement of the State Administration of Taxation on the issue of taxpayers issuing false VAT invoices to levy and make up taxes (Announcement No. 33 of 2012 of the State Administration of Taxation), "taxpayers who obtain falsely issued VAT special invoices shall not be used as legal and valid VAT deduction vouchers to deduct their input tax." According to Article 52 of the Law of the People's Republic of China on the Administration of Tax Collection, "if a taxpayer or withholding agent fails to pay or underpays the tax due to miscalculation or other mistakes, the tax authorities may recover the tax and late payment penalty within three years." "The value-added tax should be paid 59,430.39 yuan.

(2) Urban maintenance and construction tax, education surcharge, and local education surcharge

According to Article 1 of the Law of the People's Republic of China on Urban Maintenance and Construction Tax, "Units and individuals who pay value-added tax and consumption tax within the territory of the People's Republic of China shall pay urban maintenance and construction tax in accordance with the provisions of this Law", Article 2, Paragraph 1 "Urban maintenance and construction tax shall be calculated on the basis of the value-added tax and consumption tax actually paid by taxpayers in accordance with the law", and Article 4 "The tax rate of urban maintenance and construction tax is as follows: (1) If the taxpayer is located in an urban area, the tax rate shall be 7%" The location of the taxpayer mentioned in the preceding paragraph refers to the place of the taxpayer's domicile or other places related to the taxpayer's production and business activities, and the specific location shall be determined by the province, autonomous region or municipality directly under the Central Government", and your unit shall pay the urban maintenance and construction tax of 4,160.12 yuan.

According to the first paragraph of Article 3 of the Interim Provisions on the Collection of Education Fee Surcharge, "the education fee surcharge shall be calculated and levied on the basis of the actual amount of product tax, value-added tax and business tax paid by each unit and individual, and the education fee surcharge rate shall be 2%, which shall be paid at the same time as the product tax, value-added tax and business tax and the "Amendment of the State Council<征收教育费附加的暂行规定>." "The additional amount of education fees shall be calculated and levied on the basis of the actual amount of value-added tax, business tax and consumption tax paid by each unit and individual, and the surcharge rate of education fees shall be 3%, which shall be paid at the same time as value-added tax, business tax and consumption tax", and your unit shall pay an additional 1782.91 yuan for education fees.

According to Article 2 of the Interim Measures for the Administration of Local Education Surcharge Collection (***[***]***) and the "Notice of the People's Government of *** on Adjusting the Local Education Surcharge Standards" (*** Fa [***] *** No.), your unit shall pay 1188.6 yuan for local education surcharge.

(3) Enterprise income tax

According to Article 12 of the Administrative Measures for Pre-tax Deduction Vouchers for Enterprise Income Tax (Announcement No. 28 of 2018 of the State Administration of Taxation), "invoices that do not comply with the provisions such as privately printed, forged, altered, invalidated, illegally obtained, falsely issued, or filled in irregularly by the issuing party, as well as other external vouchers that do not comply with relevant provisions of national laws, regulations, etc., shall not be used as pre-tax deduction vouchers." According to Article 3 of the Measures for the Verification and Collection of Enterprise Income Tax (Trial) (Guo Shui Fa [2008] No. 30), "if a taxpayer has one of the following circumstances, the enterprise income tax shall be assessed and levied: (3) Destroying account books without authorization or refusing to provide tax payment information. "According to Article 35 of the Law of the People's Republic of China on the Administration of Tax Collection and Collection (Order No. 49 of the President of the People's Republic of China)" If a taxpayer has any of the following circumstances, the tax authorities have the right to verify the amount of tax payable: (3) destroying account books without authorization or refusing to provide tax payment information. "According to the notice of the Ministry of Finance and the State Administration of Taxation on expanding the scope of preferential income tax policies for small and low-profit enterprises (CS [2017] No. 43), your enterprise enjoys tax incentives for small and micro enterprises. Your unit should pay the enterprise income tax of 4458.94 yuan.

(4) Late fees

According to Article 32 of the Law of the People's Republic of China on the Administration of Tax Collection, "if a taxpayer fails to pay the tax within the prescribed time limit, and the withholding agent fails to release the tax within the prescribed time limit, the tax authorities shall impose a late payment penalty of 5/10,000 of the overdue tax amount on a daily basis from the date of the overdue tax payment" and Article 75 of the Detailed Rules for the Implementation of the Law of the People's Republic of China on the Administration of Tax Collection and Collection, which states that "the starting and ending time of the additional late payment penalty stipulated in Article 32 of the Tax Collection and Administration Law shall be the law, From the day after the expiration of the tax payment period determined by the tax authorities in accordance with the provisions of the administrative regulations or the provisions of the laws and administrative regulations to the date on which the taxpayer or withholding agent actually pays or releases the tax", the value-added tax, urban maintenance and construction tax and enterprise income tax that your unit fails to declare and pay within the prescribed time limit shall be subject to a late payment penalty of 5/10,000 of the overdue tax amount on a daily basis from the date of late payment of the tax to the date of actual payment.

The Third Inspection Bureau of the State Administration of Taxation *** Taxation Bureau

April 24, 2024

Source: Tax.com. The content of this article is for general information purposes only and is not intended as formal auditor, accounting, tax or other advice, and we cannot guarantee that such information will remain accurate in the future. No person should act on the basis of the information contained herein without having due regard to the relevant circumstances and obtaining appropriate professional advice. The articles reproduced in this issue are for academic exchange purposes only. The original copyright of the article or material belongs to the original author or original copyright owner, and we respect copyright protection. If you have any questions, please contact us, thank you!