In judicial practice, in order to save trouble, sometimes the judicial authorities directly use the Tax Inspection Report as evidence to determine the false issuance, and directly follow the Tax Inspection Report to characterize the false opening and determine the amount of false tax issued. We believe that if the "Tax Inspection Report" can be used as evidence to determine the facts, then the "Indictment Opinion" and the "Public Prosecution" are more effective evidence, and the court will not need to hear it in the future, and the lawyer will not need to defend it, and the "Indictment Opinion" and the "Public Prosecution Statement" will be used as evidence to determine the facts.
1. Whether the facts of the "Tax Inspection Report" are clear, whether the procedures are legal, and whether the evidence is sufficient are yet to be confirmed by the trial department (if the product needs to be accepted but has not yet been accepted)
According to the relevant provisions of Articles 43, 46, 47, 48, 54 and 55 of the Tax Inspection Work Regulations, the facts identified in the Tax Inspection Work Regulations need to be confirmed by the trial department whether the facts are clear, whether the evidence is sufficient, and whether the procedures are lawful.
How can an administrative document that needs to be confirmed by other departments in accordance with the law to "whether the facts are clear, whether the documents are legal, and whether the evidence is sufficient" but has not yet been confirmed be used as evidence for the determination of facts in a criminal case?
2. The Tax Inspection Report does not have the authority to make a conclusive opinion on the determination of false facts
(1) According to the relevant provisions of the "Tax Inspection Work Regulations", the "Tax Inspection Report" is not a concluding opinion
According to Articles 42 to 60 of the Procedures for Tax Inspection, the Tax Inspection Report is a preliminary opinion, not a formal conclusive opinion, and should not have the effect of confirming facts. The conclusive determination of false issuance shall be submitted to the trial department in accordance with the relevant provisions of the Tax Inspection Work Regulations, and the trial department shall issue the Tax Inspection Trial Report, and make the following treatments according to the Tax Inspection Trial Report:
(1) If it is found that there is a tax violation and tax treatment should be carried out, it shall prepare a """;
(2) If it is considered that there is a tax violation and a tax administrative penalty shall be imposed, a "Tax Administrative Penalty Decision" shall be drafted;
(3) If it is considered that the tax violation is minor and the tax administrative penalty can be waived in accordance with the law, the "Decision on Not Granting Tax Administrative Punishment" shall be drafted;
(4) If it is considered that there is no tax violation, the "Tax Inspection Conclusion" shall be prepared.
In other words, even if the act is identified as false opening by the Tax Inspection Report, the act may be determined by the trial department to be a minor tax violation or no tax violation. For example, in many cases of suspected false issuance of special VAT invoices, the Tax Inspection Report still determined that the enterprise had made false invoices, but the reconsideration authority had already revoked the determination of the false issuance of the enterprise, and the Tax Inspection Report had not been revoked. In other words, all the "tax inspection reports" that have been rejected by the trial and determined to have been falsely issued have not been revoked.
(2) According to the provisions of the Measures for the Trial of Major Tax Cases, the final determination of the false opening of a criminal case must be made by the Major Case Trial Committee, and the Tax Inspection Report has no authority to make a false opening determination of the case without the Major Case Trial Committee
1. The provisions of Article 11, Items (3) and (4) of the Measures for the Trial of Major Tax Cases
"Article 11 The major tax cases referred to in these Measures include: ......
(3) Cases in which a determination opinion is issued at the request of the judicial or supervision organs;
(4) Cases to be transferred to the public security organs for handling;
……”
According to the above-mentioned provisions, the tax authorities shall not make a false determination of the case to be transferred to the public security organ for handling without the major case adjudication committee, let alone the inspection bureau?
Obviously, if the inspection bureau wants to issue a conclusive opinion on the determination of false opening of a case to be transferred to the public security organ for handling, it can only determine the false opening in the form of a "Tax Handling Decision" and "Tax Administrative Penalty Decision" in accordance with the decision of the Major Cases Committee.
3. If the "Tax Inspection Report" cannot be used as evidence for determining the facts of false opening in administrative reconsideration or administrative litigation, how can it be used as evidence for determining false opening in criminal proceedings that directly affect the life and freedom of the parties?
(1) There is a "Tax Inspection Report" in the "Tax Treatment Decision" and the "Tax Administrative Penalty Decision" made by all tax inspections
According to the "Tax Inspection Regulations", all tax inspection cases have a "Tax Inspection Report", therefore, all the "Tax Treatment Decision" and "Tax Administrative Penalty Decision" made after tax inspection have a corresponding "Tax Inspection Report".
(2) The "Tax Inspection Report" and "Tax Trial Report" are not used by the tax bureau itself and have never been used as evidence for determining facts, nor have they dared to be used as evidence for determining facts in administrative reconsideration and administrative reconsideration
In all the administrative reconsideration and administrative litigation of the Tax Treatment Decision and the Tax Administrative Penalty Decision, the Tax Inspection Report and the Tax Trial Report have never been used as evidence to determine the facts, because in this way, it is equivalent to substantially depriving the administrative counterpart of the right of administrative reconsideration and administrative litigation.
(3) What is more serious is that if the "Tax Inspection Report" and "Tax Trial Report" can be used as evidence to determine the facts, it is equivalent to reversing the allocation of the burden of proof
In this way, the tax authorities can arbitrarily make false determinations, make the determination of the "Tax Treatment Decision" and "Tax Administrative Penalty Decision", without the need for corresponding evidence support, only need to get a "Tax Inspection Report" and "Tax Trial Report", and then form an extremely bad situation:
The tax authorities use the "Tax Inspection Report" and "Tax Inspection Trial Report" instead of collecting evidence, and then the taxpayer cannot prove that he has not made a false statement, and he will be falsely opened. Suffice it to say: how difficult is it for a person to prove that he has not broken the law? Furthermore, for example, if I stayed at a hotel five years ago and obtained the corresponding invoices, what if the tax bureau can use the "Tax Inspection Report" and "Tax Inspection Trial Report" as the basis for determining the facts to determine that my act of obtaining the invoices issued by the hotel was falsely issued by others? How can I prove that I stayed at that hotel on that day five years ago?
(4) Since neither the Tax Inspection Report nor the Tax Trial Report can be used as evidence of the facts ascertained in the Tax Treatment Decision and the Tax Administrative Penalty Decision and their corresponding administrative reconsideration and administrative litigation, how can they be used in criminal proceedings that directly affect the life and freedom of the parties?
Even what cannot be used as evidence for determining the facts of a case in the "Tax Handling Decision" and the "Tax Administrative Penalty Decision" and their corresponding administrative reconsideration and administrative litigation can be used as evidence for determining the facts of a case in criminal proceedings where the requirements for proof are higher and more prudent should be used?
Moreover, if such evidence can be used as evidence to determine the facts of the case, it is tantamount to depriving the parties of their right to defend and reversing the burden of proof in criminal proceedings. In the future, the public security organs do not need to investigate and collect evidence when investigating and dealing with false openings, and directly ask the tax authorities to issue a "tax inspection report".
In the future, when the evidence is not enough to determine the false opening, it only needs to issue a "tax inspection report" to the judicial authority, and the judicial authority will determine the false opening, and after the judicial authority determines the false opening, the tax bureau will then identify the false opening with the false opening identified by the judicial authority. Isn't it ridiculous to have such a circular argument: that is, the judicial authorities have determined that they are false because the tax authorities have determined that they are falsely opened; However, the tax authorities determined that the judicial authorities had made false openings.
If this is feasible, will the public security organs not have to solve the case in the future, just make a "Public Security Investigation Report" and forget it, and then the court will directly convict and sentence according to the "Public Security Investigation Report".
(5) Using the "Tax Inspection Report" as the facts of a criminal case will produce a very ridiculous situation
In the future, the tax authorities do not need to work hard to collect evidence, and directly issue a "tax inspection report" to replace the hard work of collecting evidence, and also replace the hard work of the public security organs, so that the taxpayers themselves can prove the false opening, and everything that cannot prove their false opening must be determined as false opening according to this logic.
Using the Tax Inspection Report as evidence to determine the facts is that we believe that it is reasonable to conclude that other evidence other than the documents of the tax bureau is not sufficient to determine the false opening, but only the documents of the tax bureau are used to determine the false opening. Or it can be expressed in this way: the court or the procuratorate believes that the evidence is not enough to determine the false opening, so they ask the tax bureau to help them determine the false opening.
If this is feasible, when the court's evidence is insufficient to determine the false opening in the future, is it enough to ask the tax bureau to issue a "tax inspection report"? If this is feasible, can the customs issue a report when the evidence of smuggling is insufficient in the future? If this is feasible, if there is insufficient evidence for the crime of organizing and leading pyramid schemes in the future, can the industrial and commercial bureau also issue a report? ......
According to this logic, in the future, whether it is an administrative organ or a public procuratorate, there is no need to investigate and collect evidence, only a "xxxx report" can be made, if it is too little, you can get a few more.
4. According to the provisions of Article 60 of the "Tax Inspection Work Regulations", if the inspection bureau believes that there is no problem in determining the false issuance, it may issue a "Tax Treatment Decision" in accordance with the legal procedures, and the inspection bureau of the case transferred to the judiciary may issue a "Tax Treatment Decision" in accordance with the legal procedures
Article 60 of the Procedures for Tax Inspection:
Article 60 Where a tax violation is suspected of being a crime, the applicant shall fill in the "Transfer Form for Suspected Criminal Cases", and after approval by the director of the tax bureau to which he belongs, transfer it to the public security organ in accordance with the law, and attach the following materials:
(1) "Investigation Report on the Circumstances of Suspected Criminal Cases";
(2) A copy of the "Tax Treatment Decision" and "Tax Administrative Penalty Decision";
(3) Copies of the main evidentiary materials of the suspected crime;
(4) A detailed list of the circumstances of the payment of the tax payable, the payment of late fees, and the administrative penalties already subject to and copies of the vouchers.
In fact, the "Tax Inspection Report" is only a procedural opinion, not a conclusive opinion, whether the opinion is correct, still needs to be reviewed by the trial department and make the "Tax Treatment Decision" or/or "Tax Administrative Penalty Decision", "Decision on Not Taxing Administrative Penalty", "Tax Inspection Conclusion", instead of using the "Tax Inspection Report" as evidence to determine the facts of the case, it is better to use the "Prosecution Opinion" or "Public Prosecution" as evidence to determine the facts, the effect is the same, and the judge does not need to hear itAlthough the defendant is substantially deprived of the right to defense, at least the defendant can defend himself in the "Indictment Opinion" or "Public Prosecution Statement", and the defendant does not know the process of making the "Tax Inspection Report" at all.