introduction
Fa Fa [1996] No. 30, which has become invalid, has classified the criminal acts of false issuance of special VAT invoices into three categories, namely, false issuance of goods without goods, false issuance of goods with goods that do not match the quantity or amount, and truthful issuance on behalf of others. The first paragraph of Article 10 of the Judicial Interpretations of the Supreme People's Court and the Supreme People's Court on Taxation, which came into effect on March 20 this year, reconstructs the different circumstances of false opening in the form of "enumeration + exhaustion", and clearly lists four types of criminal acts: false opening of goods, false opening of goods, false opening of fictitious entities, and false opening of tampering with electronic information. It can be said that the understanding and application of the "false opening" in the first paragraph of Article 10 of the judicial interpretations of the Supreme People's Court and the Supreme People's Court is the key to accurate conviction.
According to the author's observation, the lawyers generally believe that the literal understanding and application of the interpretations of the Supreme People's Court and the Supreme People's Court are quite difficult and controversial. Fortunately, in April this year, the Supreme People's Court and the Supreme People's Procuratorate respectively released official articles to interpret the new four types of false opening crimes. This article will analyze the differences and deficiencies based on the views of the Supreme People's Court and the Supreme People's Procuratorate, and try to accurately grasp the original intent of the rules of false opening of criminal conduct, find out the entry and exit standards of false opening crimes, and explore the influence of the interpretations of the Supreme People's Court and the Supreme People's Procuratorate on the judicial trial practice of false opening cases.
The first type of behavior: the two supreme courts have the same view on "no goods and false opening".
Article 10, Paragraph 1 (1) of the Supreme People's Court and the Supreme People's Court's Interpretation:
With regard to the first type of false opening, the Supreme People's Court and the Supreme People's Procuratorate have the same views in their interpretation articles, and both summarize it as "false opening without goods". The Supreme People's Procuratorate article pointed out that "false opening without goods" without actual business is a typical act of false opening, and the SPC article did not give any special explanation or explanation for "false opening without goods". However, in judicial practice, there is a lack of unified understanding and effective standards for judging whether there is actual business. In some specific industries and fields and innovative business models, market players are often easily accused of having no actual business, such as in the renewable resources industry, the car-free transportation industry, the flexible employment industry, the sales and purchase business in the field of bulk commerce, the transfer of goods rights without logistics and transportation, the affiliated business, the private account advance payment and then the public account settlement, etc. The articles of the Supreme People's Court and the Supreme People's Procuratorate do not focus on the question of how to judge the existence of actual business, and there are certain gaps in regulating and guiding judicial practice.
The second type of behavior: false opening of goods, false opening of excess tax amount, which statement is more accurate?
Article 10, Paragraph 1 (2) of the Interpretations of the Supreme People's Court and the Supreme People's Procuratorate: For the second type of false opening behavior, the views of the Supreme People's Court and the Supreme People's Procuratorate in the interpretation of the article show a tendency to fight, specifically:
Interpretation of the Supreme People's Procuratorate's article: Item 2 stipulates that there is actual business but exceeds the actual deductible business corresponding to the tax "false opening of goods", and the excess part is also false in essence.
Interpretation of the SPC article: "False opening of goods" refers to the fact that although there is a real transaction, the deductible tax amount on the invoice exceeds the actual tax deductible amount, including the false opening of the invoice from a third party to offset the cost of purchasing goods at a tax-exclusive price.
First of all, it needs to be affirmed that, compared with the expression of "issuing special VAT invoices with false quantities or amounts" in Fa Fa [1996] No. 30, the definition of the second type of false issuance in the interpretations of the Supreme People's Court and the Supreme People's Court is more accurate as "issuing the corresponding tax in excess of the actual deductible business", which highlights that the legislative purpose of this crime is to ensure the national tax revenue, rather than whether the invoice is recorded accurately or not. That is to say, the false opening of goods is not the same as the staggered opening of goods, and the former contains the consequences of being defrauded of taxes. For example, if there is an actual transaction of RMB 1 million between the parties, and the invoices issued for the amount of RMB 1.2 million or RMB 800,000 are false, but the issuance of the invoice for the amount of RMB 800,000 does not cause the consequence of tax losses and does not constitute the crime of false issuance. Therefore, the author believes that it is not accurate enough to refer to the second type of criminal conduct as "false issuance of goods" and cannot reflect the original intent of the rules, and it is more appropriate to refer to it as "false issuance of excess tax amount", which can more accurately reflect the constituent elements of this crime.
Second, it is inappropriate for the SPC to define the subject of false invoicing as a third-party invoice, which is inappropriate. The Supreme People's Court does not break through the logic of merging the trader and the biller, and interprets the second type of false opening behavior as the subject has not deviated from the multiple opening of goods, and the Supreme Law includes the third-party invoicing situation into the regulatory object of the second type of behavior, and believes that the second type of false opening behavior includes the multi-opening of goods and the third-party invoicing of transactions excluding tax that the subject has not deviated from, and the SPC's view is easy to cause confusion in the interpretation of the law, and the separation of the trader and the drawer should not be included in the regulation of the second type of false issuance.
Finally, the SPC's view that "invoices taken from a third party to offset costs for the purchase of goods without tax are incorrect" is itself erroneous. This view can be traced back to the article "On the Characterization of the False Issuance of VAT Special Invoices by the "Goods" Type" published by Judge Yao Longbing of the Supreme People's Court in the People's Court Daily in 2019, which pointed out that:
"The fact that the actor has paid the tax is a prerequisite for him to apply for tax deduction. It can only be deducted if it is paid, and it is impossible to deduct the tax if it is not paid. Take, for example, physical transactions in practice. In practice, when purchasing goods, some units or individuals agree with the seller that no invoice is required as a transaction condition, and the goods are purchased at a so-called low price excluding tax, and then the buyer obtains the input invoice from a third party and declares the deduction to the tax authorities to "reduce costs". In this case, because the purchaser did not pay tax in the purchase process, it cannot enjoy the right to deduct, and it applies to the state for tax deduction with the invoices obtained from a third party, most of which are purchase invoices, which is essentially to reduce its own costs by arbitraging the national value-added tax, and it is the act of partially transferring its own transaction costs to the state, which is essentially no different from the act of using special VAT invoices to obtain state taxes without goods. Of course, this kind of behavior should be determined to be the act of falsely issuing special VAT invoices to defraud the state of taxes. ”
In the author's opinion, the above view is a misunderstanding of "tax-exclusive price". Taking the gas station tax evasion case as an example, the gas station collects sales revenue through private households without invoicing the low price, and the tax bureau calculates the amount collected by the private account after investigating and dealing with the gas station, and when collecting taxes, the amount collected will be recognized as tax-included income, and the tax-free income will be converted into tax-free income with "tax-included price = tax-excluded price * (1 + value-added tax rate)", and then the tax will be calculated. The following tax documents of a gas station tax evasion case can prove the author's above view, and then confirm the error of the SPC's so-called tax-free transaction view.
Based on this, the author believes that the following conclusions can be drawn: First, under the taxation logic of the tax authorities and the regulatory perspective of the VAT Law, as long as taxable behavior occurs, tax liability arises, and all transaction prices are tax-inclusive prices. Second, the tax-exclusive price agreed between the parties does not have any significance in the calculation of VAT tax, that is, the agreement between the parties on the tax-exclusive price cannot exempt the seller from tax liability. Third, the buyer has the corresponding right to deduct as long as the payment is made, and if the invoice obtained from a third party in order to realize the right of deduction does not exceed the actual deductible tax amount, it shall not be deemed to have caused a loss of state tax. Therefore, it is agreed that the transaction settlement shall not include tax, but the purchaser shall still bear the tax-inclusive price and still enjoy the legitimate deduction rights.
It should be emphasized here that the realization of deductible rights and interests under criminal law is not the same as the realization of deductible rights and interests under tax law. According to the "Provisional Regulations on Value-Added Tax" and other provisions, four conditions need to be met for tax deduction, one is that the purchaser is a general taxpayer, the second is the procurement of taxable items, the third is the payment of input tax, and the fourth is to obtain invoices from the seller. For those who do not meet one of the above four conditions, it is a business that cannot be deducted according to law. In the sense of tax law, the realization of deductible rights and interests requires tax payment and the issuance of deductible invoices; The judgment from the perspective of criminal law should start from the substance, for the buyer as long as the payment is tax-included, whether there is tax payment involves when the seller makes a tax declaration, which is a matter beyond the control of the buyer, if the realization of the deductible rights and interests is based on the actual tax payment as the premise is unfair to the buyer, the buyer can deduct the business according to the law, because the other party can not issue invoices and find a third party to issue invoices to deduct the tax, as long as it has the actual purchase to obtain the deductible rights, and does not exceed the scope of the deductible rights obtained, It is not determined that it has caused the loss of state taxes, which is a deduction with the right to deduct under the criminal law, and the perpetrator does not have the purpose of defrauding the tax deduction, nor does it directly cause the loss of state taxes.
Is it not possible to be held accountable for any acts that have deductible rights and interests under criminal law? Apparently not. The article of the Supreme People's Court pointed out that "if a taxpayer underpays tax by deducting the tax through false deductions within the scope of the taxable liability, even if the means of false deduction are adopted, it is still subjectively not paying or underpaying the tax, and according to the principle of unity of subjectivity and objectivity, it should be punished as the crime of tax evasion." This is also a consideration in Article 1, Paragraph 1, Item 3 of the Interpretation, which stipulates that "false deduction of input tax" is one of the "means of deception and concealment" for the crime of tax evasion. It can be seen that the act of false tax deduction that does not have a tax law but has the right to deduct under the criminal law should be defined as tax evasion. For example, the opening of the opening and the ring do not constitute false opening, but constitute tax evasion. The distinction between the crime of false issuance of special VAT invoices and the crime of tax evasion is worthy of affirmation by the Supreme People's Court, but the "scope of taxable liability" is not clear, and it is more accurate to interpret it as "scope of tax deduction" or "scope of tax deduction".
The third type of behavior: the two highs have obvious differences in their views
Article 10, Paragraph 1 (3) of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate: The Supreme People's Court and the Supreme People's Procuratorate have completely suffocated the third type of false opening behavior. Let's take a look:
Interpretation of the Supreme People's Procuratorate's article: Item 3 refers to the suggestions of the Ministry of Public Security and the State Administration of Taxation, aiming at the actual transaction in practice where the drawee does not meet the deduction conditions, but deducts the invoice after obtaining the invoice through a fictitious third party unrelated to the transaction, which is also a false issuance.
Interpretation of the SPC article: "fictitious transaction subject type false opening" is mainly aimed at the drawee that cannot be deducted according to the law, through the fictitious transaction entity, the fictitious entity is used to deduct the tax, so as to realize the false opening of fraudulent tax deduction.
The Supreme People's Procuratorate's view is obviously to interpret the third type of behavior as the act of issuing invoices on behalf of others, that is, the Supreme People's Procuratorate believes that issuing invoices on behalf of the Supreme People's Procuratorate also constitutes the criminal act of false issuance. More importantly, the SPP's article explains that the source of this article is the recommendation of the Ministry of Public Security and the State Administration of Taxation, and that in practice, the public security organs and tax authorities often investigate and deal with the situation of issuing invoices on behalf of others, so the SPP's interpretation may be more accurate.
However, the author believes that the Supreme People's Procuratorate's view is suspicious of Zhang Guan Li Dai, and equates "cannot be deducted according to law" with "does not meet the conditions for deduction". The latter corresponds to the opening on behalf of the company, and the former corresponds to the special opening on behalf of the opening. The interpretations of the Supreme People's Court and the Supreme People's Court only define the special act of opening on behalf of the person as a criminal act, and do not define the ordinary act of opening on behalf of the person as a criminal act, which is more in line with the purpose of limiting the circle of crimes. For example, wages are not allowed to deduct taxes according to the law, and tax deductions are deducted through the issuance of VAT invoices by a third party, which is the third type of special opening that should be regulated. The Supreme People's Procuratorate interprets the special opening as a general act of opening on behalf of the people, which is an expanded understanding of the criminal circle. For example, the SAMR document stipulates that the issuance of invoices by affiliation is legal, and the issuance of invoices by affiliation is a general act of issuing on behalf of others, including both agreement affiliation, oral affiliation, and de facto affiliation. In addition, although special substitution constitutes a crime, there is also the possibility of exculpation, and whether or not a crime can be exonerated depends on whether the exculpatory clause can be applied in light of the specific circumstances.
The SPC's view is incomprehensible. The author has hardly seen such a situation in the defense practice of false invoicing cases, so the Supreme People's Court's view is not logical and detached from the practice of false invoicing cases, so I will not analyze too much here.
Tampering with electronic invoice information and false issuance still needs to be further tested in judicial practice
Article 10, Paragraph 1 (4) of the Supreme People's Court and the Supreme People's Court's Interpretation:
Regarding the fourth category of false issuance, the Supreme People's Procuratorate article pointed out that "item 4 is a provision for the electronic management of invoices. At present, the special VAT invoice has been electronically managed, and the special VAT invoice does not need to be deducted through paper, and the tax authorities only need to compare and confirm the electronic information of the invoice, and the deduction will be carried out if the deduction conditions are met. Therefore, the illegal tampering with electronic invoice information is equivalent in nature and harm to the false issuance of paper VAT special invoices, and it is a new type of false issuance. The SPC article believes that the fourth type of false opening behavior is in line with the construction and implementation of the "Golden Tax Phase IV" system, and the transformation of tax collection and management from controlling taxes by tickets to governing taxes by numbers. In the author's opinion, this kind of false opening crime is rare in current practice, and whether it can effectively limit the criminal circle needs to be further tested by judicial trial practice.
Conclusion: The promulgation of the judicial interpretations of the Supreme People's Court and the Supreme People's Court announced that Article 205 of the Criminal Law would not be amended for a long time to come, and at the same time announced that the interpretation of the provisions of the Criminal Law had officially entered a new period. Regardless of whether the interpretations of the two supremes are complete or not, and no matter how different their views exist, it will guide and regulate the practice of judicial adjudication in the next 10, 20, or even longer. It is worth observing whether the judicial organs in various localities can move from understanding the rules, to applying the rules, to adapting to the rules, and finally to abiding by the two supreme limits and reducing the criminal circle. The clause on false opening of criminal conduct is the most important content of the system of rules for false opening of crimes, and it will surely become the main battlefield of the prosecution, defense and trial. In the midst of such numerous and complex controversies, perhaps only by closely following the basic theories and rules of the constitutive elements of a false crime can we find a path of hope.