huashui huashui


2022 Tax-related criminal risk report in the coal industry

Release Time: 2023-10-04

Release Time:2022-01-24
Coal, as the basic energy of my country's national economy, has important strategic significance. Due to the particularity of coal resources, the state has a greater degree of administrative dominance over the management of the coal industry. Coal companies of different natures have a right to speak in the industrial chain. Insufficient control and other reasons make private coal enterprises more prone to tax-related risks and criminal risks. Tax-related criminal cases have a low threshold for criminal convictions and heavy criminal responsibilities. If you are not careful, entrepreneurs will be imprisoned. However, for the tax-related criminal cases that broke out in coal enterprises in practice, the facts of the cases are not the same. Some of them use the name of coal enterprises to violently open tax fraud, and some are fraudulent by employees and customers due to management loopholes in the operation process of enterprises. Some are due to the imperfect management system of the enterprise, which leads to tax-related risks, and some are based on the particularity of the coal industry to open and operate on behalf of the company. Special attention should be paid to enterprises and entrepreneurs who have been investigated for criminal responsibility under these circumstances. , combined with the provisions of the tax law and the criminal law, and do our best to avoid tax-related criminal responsibility.
The "Report on Tax-related Criminal Risks in the Coal Industry (2022)" is Huashui's in-depth observation of the coal industry and a summary of its successful experience in representing coal enterprises in tax-related criminal cases. It aims to sort out the latest tax policies of the coal industry and analyze the judicial practice of coal enterprises. tax-related criminal risks, and put forward targeted countermeasures, in order to provide reference for coal enterprises to prevent tax-related criminal risks to the greatest extent.
Table of Contents
A. Analysis of tax-related criminal cases in the coal industry in 2021
B. The main tax-related criminal risks faced by coal enterprises
C. Coal industry is the key area of investigation and punishment, and tax-related criminal risks are on the verge.
D. Criminal Judicial Practice and Typical Case Analysis of Coal Enterprises' Tax-related
E. Analysis of successful defense points of coal-related criminal cases in enterprises
F. Suggestions on compliance of tax-related criminal risks of coal enterprises
A. Analysis of tax-related criminal cases in the coal industry in 2021
1. The distribution of crimes
With coal as the key word and the crime of endangering tax collection and management as the condition, a search was carried out on the Chinese Judgment Documents Online. In 2021, a total of 118 criminal cases involving the crime of endangering tax collection and management in the coal industry were published, including the crime of falsely issuing special VAT invoices. The number of cases reached 113, accounting for 95.76%. The number of cases of false invoicing, illegal sale of special value-added tax invoices, illegal purchase of special value-added tax invoices, crime of purchasing forged special value-added tax invoices, and crime of possession of forged invoices were 2, 1, and 4 respectively ( A small number of cases were double-counted due to the presence of two charges). Compared with 2020, the total number of cases has decreased.
2. Geographical distribution of cases
China is rich in coal resources, which are mainly distributed in Shanxi, Shaanxi, Inner Mongolia, Hebei, Henan, Sichuan and other provinces. The distribution of tax-related criminal cases of coal enterprises is highly correlated with the coal origin. In 2021, Shandong, Sichuan, Shaanxi, Shanxi and Inner Mongolia will become provinces with high incidence of tax-related cases of coal enterprises.
3. Sentencing of the case
Since coal trading is a bulk commodity trade, the number of transactions and the amount of transactions are relatively large. Therefore, the amount of false claims in tax-related criminal cases in the coal industry is also relatively large, often involving millions or tens of millions of yuan in taxes, resulting in severe penalties for coal enterprises and their responsible persons. Among the falsely opened cases involving the coal industry in 2021, 2 cases were sentenced to life imprisonment, accounting for about 2%. There were 40 cases where people were sentenced to fixed-term imprisonment of more than 10 years, accounting for about 34%. 29 cases were sentenced to three to ten years in prison, accounting for about 24%. There were 47 cases where people were sentenced to fixed-term imprisonment of less than three years, accounting for about 40%.
4. Case Appeal Rate and Outcome
According to the search, among the 118 cases involving the crime of endangering tax collection and administration in the coal sector in 2021, there will be 79 first-instance proceedings, 38 second-instance proceedings, and 1 retrial case. Of the 38 second-instance cases, 4 were revised and 34 were upheld, with a revision rate of 10.52%, which was still relatively low. 1 case was sent back for retrial, and the retrial result has not yet been released. Another public retrial application case was rejected by the retrial court that it did not meet the conditions for retrial.
5. Summary
From the above statistics, it can be seen that the criminal responsibility of coal enterprises in tax-related cases is relatively heavy, especially the crime of falsely issuing special value-added tax invoices. Compared with other economic crimes, it is more difficult to appeal and retrial, and the success rate is low. In this regard, it also reminds coal enterprises to make full preparations and properly deal with tax-related criminal cases in the first instance stage.
B. The main tax-related criminal risks faced by coal enterprises
1. Risks of criminal fraud faced by coal enterprises
(1) The risk of false-issuing in the purchase and sale business of coal enterprises
① The affiliated business of buying and selling is recognized as false business
Before September 1, 2014, the state implemented the coal business qualification examination system. Only enterprises with corresponding qualifications can engage in coal business, and individuals cannot engage in such business. Small-scale coal mines engaged in coal mining have to adopt the method of anchoring to carry out business. Small-scale coal mines seek regular large-scale coal mines, so that small-scale coal mines are anchored in the name of a third party who is qualified to issue special VAT invoices, and the affiliated party will issue special VAT invoices to coal enterprises according to the actual situation of coal purchase and sale transactions. In the affiliated business, "separation of tickets and goods" is particularly easy to occur. In addition, there is often no written contract in the affiliated business model, and there are both payment for goods and various kinds of capital exchanges such as advance payment and loan in terms of fund collection and payment, which leads tax authorities and public security organs to identify the existence of capital backflow, doubt the authenticity of affiliated business, identify that there is no real goods transaction between the two parties, and then identify the existence of false issuing, and pursue criminal responsibility.
② Truthful purchase and sale on behalf of business is deemed as false purchase.
Some enterprises have purchased coal, but because the seller is a small and medium-sized coal mine, it is impossible to issue special VAT invoices to coal enterprises. In order to solve the problem of insufficient input invoices and realize VAT input deduction rights and interests, some coal enterprises often adopt third-party other coal enterprises to purchase invoices to solve the problem of excessive tax burden. Although the type, quantity and amount of goods in the invoice issued by the third party are consistent with the actual transaction situation, during the period, the tax authorities still tend to make false statements or even transfer them to the public security to enter the criminal procedure.
(2) Risk of false issuing in coal cargo transportation in enterprises
① Traditional false risk of transportation
Road transportation plays an important role in the coal industry, and road transportation is the main way for medium and short distance coal transportation. However, at present, the proportion of personal vehicle transportation in China is relatively large. Due to the characteristics of coal transportation industry and the limited capacity of coal producing areas, coal enterprises have to entrust personal vehicles to provide transportation services. However, due to these individuals' inability or unwillingness to issue special VAT invoices, coal enterprises lack input invoices, and cannot deduct VAT input and corporate income tax before tax. In order to solve this problem, coal enterprises usually cooperate with third-party transportation companies by means of "calling" or "opening on behalf of others". However, due to the imperfect management system of coal enterprises, the neglect of keeping business authenticity information, and the different criminal identification of such acts in judicial practice, it is easy for coal enterprises to be investigated for false criminal responsibility.
② Risk of false issuing of new network freight.
With the development of Internet and information technology, as well as the industry characteristics and pain points of traditional logistics transportation, a large number of car-free transportation platforms (network freight platforms) between cargo shippers and actual carriers have appeared in the logistics industry, gradually becoming a very important part of China's cargo transportation services, and gradually becoming a new transportation mode that coal enterprises are willing to try.
However, in practice, there is a phenomenon that shippers (coal enterprises) organize their own fleets, then provide fleet vehicle information and transportation information to car-free carrier enterprises (network freight platform), and then car-free carrier enterprises (network freight platform) issue special VAT invoices to them, accompanied by the advance payment of individual fleet transportation remuneration. This flexible mode is easy to cause the public security organs to recognize that there is "capital return", which in turn leads to the risk of false criminal liability.
(3) False risk in coal processing business of enterprises
There are loopholes in the new business model of individual coal enterprises in our country, which leads to a series of tax-related problems, which deserves enterprises' vigilance.
Take a case published in October 2020 as an example. A coal processing and production enterprise purchased low-priced coal and a large number of chemical products xylene, and processed them to produce "high-tech environmental protection coal" for high-priced sales. After investigation by tax authorities and public security organs, it was found that the company not only involved in the traditional false issuing behavior in the coal industry, but also participated in the "ticket change" transaction of petrochemical enterprises. The upstream petrochemical enterprises change the product name of the "refined oil" that will not be invoiced for sale to "xylene" and other chemical raw materials, and falsely invoice the A coal enterprise to avoid paying the refined oil consumption tax; The upstream coal mines exceed the target number, and privately mined coal mines are sold to A coal enterprises at a low price without tickets, so as to avoid paying resource tax and other related taxes and fees; The purchase of privately-collected coal by downstream coal enterprises has no accounting credentials, so the invoice of "high-tech and environmentally-friendly coal" is falsely issued by A coal enterprise as input. This new business model leads to the outbreak of criminal liability risk of A coal enterprise.
2. Risk of criminal tax evasion faced by coal enterprises
(1) Criminal Tax Evasion Risk of Coal Enterprises Selling without invoices
Because of the quota system of coal mining in China, coal enterprises can't sell normally if the quota is exceeded. In order to solve the problem of overproduction, some coal enterprises often sell the coal mined beyond the quota without tickets, but the sales revenue is not recorded. In this case, the coal mining enterprises realized the sales income, but it was not listed as income in the financial books, thus evading the enterprise income tax. When selling coal, it fails to declare and pay value-added tax and resource tax, and evades value-added tax and additional tax and resource tax.
The above-mentioned behavior of coal enterprises, in violation of the provisions of the tax law, is tax evasion. After the tax authorities discover it, they will start tax procedures, recover the underpaid taxes and late payment fees of the enterprises, and impose a fine on them. If there are many tax evasion behaviors in coal enterprises, the public security organs will directly file a case for investigation, start the criminal procedure on suspicion of tax evasion, and investigate the criminal responsibility of tax evasion of coal enterprises.
(2) Risk of Criminal Tax Evasion in the Process of Coal Enterprise Equity Transfer
In the process of special rectification of coal field in Inner Mongolia, it is easy to involve tax risks in the process of equity transfer of coal enterprises. In the process of investigation, when the relevant departments find that there are tax illegal clues in the process of equity transfer of coal enterprises, they will hand them over to the tax authorities for filing and inspection.
In the process of investigation, tax authorities usually pay more attention to equity transfer transactions among shareholders of coal enterprises. Often, financial, tax and business information such as enterprise account books, accounting vouchers, contracts, etc. will be retrieved, and the business activities of enterprises will be comprehensively inspected, which will lead to the full-scale outbreak of tax risks.
If the transfer of mining rights is disguised by equity transfer, the tax authorities may determine it according to the essence of the transaction. When the equity transfer price is low and there is no proper and reasonable reason, the tax authorities will often increase the equity transfer price, and impose a fine on the shareholders and coal enterprises for tax evasion.
In the process of equity transfer of shareholders in some coal enterprises, the transferor and the transferee agreed that the transferee should bear all taxes and fees in the transfer process, and the transferor used this as an excuse to fail to make tax returns after the equity transfer. If the equity transfer fails to be taxed, the tax authorities will ask the shareholders to file tax returns, and ask them to pay taxes and late fees, and impose a fine. If the transferor refuses to declare or pay, the tax authorities will transfer it to the public security organ for investigation on the grounds of tax evasion.
(3) Risk of Criminal Tax Evasion Caused by the Absence of Small Tax Management in Coal Enterprises
Because the coal mines owned by small coal enterprises are often located in remote areas, and the local government's administrative supervision is weak, small coal enterprises often occupy illegal land, build houses, and use water in the course of operation. Once faced with tax inspection, it may easily lead to large-scale pursuit of small taxes.
In daily operation, coal enterprises often pay more attention to the enterprise income tax and value-added tax, but lack the necessary management system for small taxes, which leads to the neglect of declaration and unpaid payment of small taxes, and the late payment fees accumulated all the year round may exceed the taxes themselves. In some extreme cases, it is not excluded that the public security organ will directly initiate a case investigation, initiate a criminal procedure, and investigate the responsibility of the enterprise for the crime of tax evasion without tax treatment by the tax authorities.
C. Coal industry is the key area of investigation and punishment, and tax-related criminal risks are on the verge.
1. China and the State Council issued opinions on deep tax reform, and the tax-related issues in the coal industry became the focus of attention.
In March, 2021, the Central Office and the State Council issued the Opinions on Further Deepening the Reform of Tax Collection and Management (hereinafter referred to as the Opinions), making comprehensive arrangements for deepening the reform of tax collection and management, and further promoting precise law enforcement, fine service, precise supervision and sincere co-governance.
First, focus on key areas. Focusing on public opinion and people's concerns, we will focus on investigating and dealing with false invoices (and accepting false invoices), concealing income, falsifying costs, making use of "tax depressions" and related party transactions in industries and fields such as the production and processing of agricultural and sideline products, the purchase and utilization of waste materials, the purchase and sale of bulk commodities (such as coal, steel, electrolytic copper and gold), for-profit educational institutions, medical cosmetology, live broadcast platforms, intermediaries and equity transfer of high-income people.
Based on the current situation of coal industry, tax-related risks are more likely to break out under the background that opinions clearly focus on coal industry and investigate and deal with it.
2. Four ministries and commissions have been upgraded to six departments, and the efforts to crack down on tax-related crimes in the coal industry will continue to be strengthened.
In August 2018, the State Administration of Taxation, together with the Ministry of Public Security, the General Administration of Customs and the People's Bank of China, launched a special campaign to combat "three holidays". By the end of September 2021, 444,800 enterprises suspected of falsely making out tax fraud were investigated and dealt with according to law, and the loss of export tax rebate was recovered by 34.549 billion yuan. 43,459 suspects were arrested, and 5,841 suspects surrendered themselves voluntarily, fearing the high pressure situation, thus effectively maintaining the economic and tax order.
On October 28th, 2021, the four ministries and commissions, the Supreme People's Procuratorate and the State Administration of Foreign Exchange jointly held a national special action summary and normalization crackdown deployment meeting to crack down on illegal crimes such as "fake enterprises", "fake exports" and "false declarations", defrauding tax rebates and tax concessions, and made new arrangements for strengthening tax supervision and tax inspection. Six departments to crack down on "three false" normalization, crackdown efforts and means to further strengthen, the coal industry tax-related criminal risks to further expand.
3. In the past 20 years, many provinces and cities have carried out self-examination and self-help in the coal field, and the tax-related risks of coal enterprises have further intensified.
Inner Mongolia Autonomous Region is the largest open-pit coal mine in the world and an important energy guarantee base in China. On February 28th, 2020, the Inner Mongolia Autonomous Region Party Committee and government held a mobilization and deployment meeting for the special rectification work in view of the illegal problems in the coal resources field exposed by the corruption cases of relevant officials. Since then, the investigation of the special rectification in the coal field in Inner Mongolia has started for 20 years. Subsequently, Shanxi, Yunnan, Sichuan, Xinjiang and other provinces carried out self-examination and self-correction of coal. In view of economic matters such as coal trading, mineral trading, coal mine equity transfer, coal resource integration and merger and reorganization, multi-departments established linkage mechanisms, and successively investigated and dealt with a number of cases of tax violations of coal enterprises, and recovered huge taxes and fees in coal-related fields.
4. Tax and police jointly investigated and dealt with major cases of false issuing of coal, and the situation of case investigation became more severe.
(1) Dalian police tax cracked the "1.02" false VAT invoice in coal industry.
(2) Qingdao tax police jointly cracked the "11.05" false VAT invoice case in coal industry.
(3) Yangquan tax police jointly cracked the "July 26" false VAT invoice case in coal industry.
(4) Zhoushan Procurator filed a public prosecution against a major case involving coal violence and a new type of false issuing.
D. Criminal Judicial Practice and Typical Case Analysis of Coal Enterprises' Tax-related
1. In the practice of tax-related criminal justice in coal industry, the same case is judged differently and the judgment is not uniform.
For the frequent false invoices of coal and waste enterprises, enterprises often choose to obtain special invoices for value-added tax by means of issuing or calling. However, there have been disputes and different precedents in judicial practice as to whether the act of issuing or accepting tickets under the condition of calling or acting as an agent constitutes false issuing.
2. The Supreme People's Court issued a unified law application work method, and the situation of different judgments in the same case will be alleviated.
In view of some problems existing in trial practice, such as non-uniform application of law and non-standard exercise of discretion, on the basis of full investigation and demonstration, the Supreme People's Court issued the Implementation Measures for Uniform Application of Law of the Supreme People's Court (hereinafter referred to as the Implementation Measures), which will come into force on December 1, 2021. For tax-related criminal cases in the coal industry, local courts should refer to them in judicial practice to ensure the uniform application of laws and realize the same judgment for similar cases.
3. Analysis of One typical criminal case related to tax in coal industry
Chen Zuqi falsely pleaded not guilty: the agreement is not a necessary condition for the establishment of an affiliation.
From 2012 to 2014, Chen Zuqi, the defendant, operated the coal business, purchased coal from small coal mines and sold it to Jilin Qifeng Company. As the small coal mines failed to provide invoices, Chen Zuqi failed to obtain invoices from the tax authorities, so he issued a special VAT invoice from Zhang of linkou county Meifeng Company, and agreed to pay "tax money" according to 8% of the total fare tax, and give Zhang a "rebate" according to the sales tonnage recorded in the invoice. Chen Zuqi signed a coal purchase and sale contract with Jilin Qifeng Company in the name of linkou county Meifeng Company. From June to October, 2013, linkou county Meifeng Company issued a total of 161 special VAT invoices to Jilin Qifeng Company, with a total price and tax of 151,413,381.50 yuan and a total tax amount of 22,436,132.37 yuan.
The public prosecutor held that Chen Zuqi and linkou county Meifeng Company did not sign any affiliation agreement, so Chen Zuqi and linkou county Meifeng Company did not constitute affiliation.
The court held that there are three main characteristics of affiliated operation: first, borrowing behavior; Second, independent accounting behavior; The third is temporary behavior. The relationship between Chen Zuqi and Meifeng Company conforms to the above three characteristics of affiliated operation, and should be recognized as affiliated relationship. According to State Taxation Administration of The People's Republic of China Announcement No.39, 2014 and its official interpretation, as well as the provisions of Law Research [2015] No.58 of the Research Office of the Supreme People's Court, if goods are actually sold to the drawee in the form of an anchor, and the anchor issues a special VAT invoice to the drawee, it should not be regarded as a crime of falsely issuing a special VAT invoice, and Chen Zuqi's behavior does not constitute a crime of falsely issuing a special VAT invoice.
The significance of this case lies in the fact that the court has made it clear that judging whether the affiliated relationship is constituted should not only be based on whether the two parties have signed a written "affiliated agreement", but should be judged from the essence of the legal relationship between the two parties. Even if the two parties have not signed a written Affiliation Agreement, the existence of affiliation can be recognized if the legal relationship between the two parties meets the characteristics of borrowing, independent accounting and temporary.
E. Analysis of successful defense points of coal-related criminal cases in enterprises
1. The defense strategy for judicial organs to investigate the criminal responsibility of coal enterprises with false accusation.
(1) The subjective purpose and objective result should be taken as the constitutive elements to determine the crime of falsely making false promises.
Article 205 of the Criminal Law for a long period of time, the crime of false pretence has been recognized as the crime of behavior.
According to the relevant documents issued by the Supreme People's Court and the Supreme People's Procuratorate, the false issuance of special VAT invoices by enterprises with actual production and business activities for non-tax fraud purposes such as inflated performance, financing, loans, etc., without causing tax losses, should not be dealt with qualitatively as the crime of false issuance of special VAT invoices, and should be transferred to the tax authorities for corresponding tax treatment and punishment. The above-mentioned views of the supreme judicial organ have clarified the criteria for judging the crime and non-crime of false pretence, and also unified the criteria for the application of law and conviction and sentencing of such cases.
In practice, there may be the phenomenon of "separation of tickets and goods" in coal enterprises, which is essentially different from the pure false issuing without goods. It is not only against the fairness principle of the criminal law, but also unable to realize the original intention of this crime to protect the national tax security if we do not distinguish whether it has the purpose of defrauding tax and whether it causes the loss of national tax.
For the handling of false invoices in the coal field, it should be determined strictly from the subjective purpose, false behaviors, loss results, causal relationship and other elements of crime. For false behaviors that do not cheat taxes and do not cause tax losses, they should not be dealt with qualitatively by the crime of false invoices for value-added tax, and should not be investigated for criminal responsibility.
(2) "Affiliate operation" conforms to the provisions of the tax law, and does not constitute false statements in the tax law, nor does it constitute a false statement crime.
It is common in social and economic life to carry out business activities by means of affiliation. Whether affiliation is false or not has been made clear in Announcement No.39, 2014: If the affiliated party sells goods or provides labor services or services to the drawee in the name of the affiliated party, the affiliated party should be the taxpayer. As the seller of goods or the provider of labor and services, the affiliated party issues a special VAT invoice to the drawee in accordance with the relevant regulations, which is not false. As for the behavior of falsely making out invoices that does not belong to the tax law, it naturally cannot constitute the crime of falsely making out special invoices for value-added tax in criminal law.
In addition, the tax law does not require the existence of affiliation to be based on a written contract. According to the "Training Reference Materials for the Pilot Policy of Changing Business Tax to Value-added Tax in an All-round Way" issued by the Department of Goods and Services of State Taxation Administration of The People's Republic of China, the main features of affiliated business include: (1) borrowing; (2) It is an independent accounting behavior; (3) It is a temporary behavior. If the civil subjects meet the above-mentioned characteristics, they can be deemed to constitute a de facto affiliation. This view is also recognized in judicial practice.
Coal mining enterprises cannot issue special VAT invoices when selling over-exploited coal, so coal trading enterprises reshape the transaction process and introduce third-party cooperation to obtain invoices in order to solve the problem that the input can not be deducted. This transaction mode is easy to cause judicial organs to identify false invoices, but we think this mode is in line with the characteristics of affiliated operation and should not be identified as false invoices.
In addition, even if the affiliated relationship has not been recognized by the judicial authorities, the act of "truthfully opening on behalf of others" by coal enterprises also does not have the purpose of defrauding the state value-added tax, and has not caused the state value-added tax losses. It should not be evaluated as a crime according to the provisions of Document No.58 of Law Research [2015], but should be dealt with according to general administrative violations, and the drawer and the drawee should be dealt with and punished according to law.
(3) The act of "truthfully substituting for false confession" does not meet the constitutive requirements of false confession crime and should not be punished as false confession crime.
In the act of "truthfully issuing invoices on behalf of others", after the third party truthfully issues special VAT invoices to the drawee according to the actual transaction quantity and amount of both parties, and truthfully declares the VAT tax, the drawee obtains the deductible rights according to law, and the drawee obtains the special VAT invoices to deduct the input tax, which will not actually cause the loss of the national VAT tax.
For the act of truthfully issuing invoices with actual transactions, although it violates the invoice management system, it can't be simply equated with false invoicing without goods, and its social harm is significantly lighter. The crime of falsely making out special invoices for value-added tax should not be taken as the act of honestly making out invoices without the intention of defrauding tax subjectively and objectively causing the loss of national value-added tax.
It should be noted that, because there is no clear legal basis, some areas still deal with false promises as crimes. For such cases, we should consider the legislative purpose and protection interests of false promises, that is, to protect the loss of state taxes, and consider the application of a comparable crime, such as the crime of illegally buying special invoices for value-added tax. This is not only in line with the criminal law's principle of adapting guilt to punishment, but also with the criminal policy of the Supreme Court to protect the legitimate rights and interests of private entrepreneurs, and it is also the highest-level procuratorial service on giving full play to procuratorial functions.
(4) In the case of false promises with real goods transactions, the part that does not exceed the actual transaction amount does not constitute a false promise crime.
The essence of "false invoicing in stock" means that the invoiced amount exceeds the actual transaction amount. For enterprises that have real business activities, but can't get the special VAT invoices in full, many enterprises choose to get the special VAT invoices by linking them up or issuing them on behalf of others. In this process, some enterprises have the situation that the invoices they get are mostly traded with the actual ones.
Because the enterprises involved in such cases obtain invoices for the purpose of realizing the VAT deduction rights they enjoy when carrying out real business, rather than defrauding the state VAT tax. For the handling of such cases, the whole business should be examined, and the part of the real transaction and the part beyond the actual transaction should be defined and distinguished, and on this basis, the behavior of the enterprise should be dealt with qualitatively.
In the case of false invoicing in coal enterprises, in the process of real coal purchase and sale transactions, both parties falsely increase the transaction quantity and amount in order to obtain special VAT invoices and overpayment of taxes that exceed the actual transaction situation, we should focus on three points: (1) Check whether the transaction has been completed, and whether there is a situation of pre-invoicing due to incomplete supply of continuous transactions. Pre-invoicing should not be treated as false invoicing. (2) Examine whether there is complicity in multiple invoicing between both parties. If the drawer makes more invoices because of being cheated by the drawee, the drawer should not be treated as a false invoice. (3) Examine whether the judicial organs have accurately distinguished and calculated the real goods trading part from the inflated trading part, and the part with real goods in the transaction should be removed from the recognized inflated amount.
2. The defense strategy for the judicial organs to pursue the criminal responsibility of coal enterprises for tax evasion.
(1) "Subjective Intention" is the essential factor in determining "tax evasion" in coal enterprises.
In the merger and reorganization transactions of some coal enterprises, due to the complex characteristics of the enterprise equity, related assets and mining rights as the transaction targets, as well as the staged and gambling characteristics of the transaction arrangement itself, the income tax basis of the target transfer link cannot be determined at the first time, and even the tax obligation of some transactions is difficult to determine. Therefore, some coal enterprises will have the behavior of underestimating income or delaying the confirmation of income in their daily tax returns. While adjusting the enterprise income tax, individual tax authorities define this behavior of enterprises as tax evasion and impose fines, which has legal defects.
Article 63 of the Tax Collection Administration Law stipulates that a taxpayer who forges, alters, conceals or destroys account books and vouchers without authorization, or lists more expenses or fails to list or understates income in account books, or refuses to declare or makes false tax returns after being notified by the tax authorities, and fails to pay or underpays the tax payable, is tax evasion. This article clearly stipulates the objective means of tax evasion and the consequences of behavior. However, it is not clear whether "subjective intention" is the essential element of tax evasion.
We believe that whether the above four behaviors have "subjective intention" should be treated separately. For the first kind of behavior, "forging, altering, concealing or destroying account books and vouchers without authorization", "subjective intention" has actually been internalized, so there is no need to consider it. However, if the taxpayer's account books and accounting vouchers are true, his income and expenditure are true, and he has made tax returns within the prescribed time limit, only because of the deviation of his understanding of tax policies, he has "listed more expenditures or omitted or omitted income" in the account books, or he thinks that he has refused to declare after being notified by the tax authorities, or has made a "false" tax return in the opinion of the tax authorities, he should not be considered as "tax evasion".
At the same time, although the "subjective intention" of tax evasion is not defined in the Tax Collection Administration Law, in the process of handling specific cases, the letters issued by State Taxation Administration of The People's Republic of China have already indicated his positive attitude towards the constituent elements of tax evasion including "subjective intention". For example, the Reply of the General Office of State Taxation Administration of The People's Republic of China on the Qualitative Issues Concerning Tax-related Acts of Hohhot Changlong Food Co., Ltd. (Guo Shui Ban Han [2007] No.513), the Reply of State Taxation Administration of The People's Republic of China on the Relevant Issues Concerning whether the tax evasion behavior is affected by the correction of the tax declaration and payment during tax inspection (Tax General Letter [2013] No.196), and the Reply of State Taxation Administration of The People's Republic of China on the Review Opinions of Tax Evasion Cases of Beijing Poly Ling Yan Plastic Co., Ltd. (Tax General Letter [2013] In addition, the tax authorities should bear the burden of proof for taxpayers' subjective intention.
(2) If there is any tax evasion, the tax administrative procedure should be started first, and the criminal responsibility of tax evasion of coal enterprises should not be directly investigated without administrative pre-procedure.
In order to solve the problem of overproduction and avoid coal backlog, some coal mines will sell privately collected coal without tickets, and the income will not be recorded, so as to avoid showing the excess from the book. For this kind of behavior, some local public security organs directly file a case for tax evasion without tax treatment and punishment procedures.
Amendment (VII) of the Criminal Law changes the crime of tax evasion in Article 201 into the crime of tax evasion, and the fourth paragraph of Article 201 of the revised Criminal Law stipulates that "if the first paragraph of the act is committed, after the tax authorities have issued a notice of recovery according to law, they will pay the tax payable and the late payment fee. If they have been administratively punished, they will not be investigated for criminal responsibility". On the one hand, the purpose of this amendment to the Criminal Law is to protect the order of tax collection and management, which is conducive to the tax authorities to recover taxes; on the other hand, it also gives taxpayers the opportunity to correct their tax paying behavior, which plays an important role in maintaining the normal business development of enterprises.
According to the relevant provisions of the Tax Collection and Administration Law, after the tax authorities discover that coal enterprises may have tax evasion, they should first conduct tax inspection by the tax inspection department, and then pursue tax payment or impose administrative punishment on taxpayers according to the inspection conclusion. If an enterprise is a first-time offender, after being pointed out by the tax authorities, it actively pays taxes and late payment fees, fulfills its tax obligations, and accepts administrative punishment, and will no longer be investigated for criminal responsibility as a crime. For those who fail to perform tax treatment and punishment, the tax authorities can transfer them to the public security organs for investigation. If the criminal judicial procedure is started directly without administrative procedure, it may lead to the perpetrator not meeting the specific conditions of exemption from criminal punishment and being investigated for criminal responsibility, which will obviously deviate from the original intention of the Criminal Law Amendment.
In addition, the determination of the crime of tax evasion involves not only the amount, but also the proportion of the tax evaded amount to the tax payable. The determination of tax evasion amount and tax payable amount involves different taxes, so it needs to be confirmed by people with professional tax inspection experience, so as to accurately characterize tax evasion.
To sum up, for the case that the public security organ directly investigated the criminal responsibility for tax evasion without administrative punishment procedure, the coal enterprise should fully defend it with Article 201, paragraph 4 of the Criminal Law.
F. Suggestions on compliance of tax-related criminal risks of coal enterprises
1. Tax-related criminal compliance management in daily business process
(1) Perfect tax management system and invoice management system.
(2) Customize ERP management system to realize integration and informatization of production, transportation, supply and marketing, and settlement.
(3) Establish an internal compliance legal department, so that compliance review can run through the daily operation of the enterprise.
(4) Establish an internal compliance legal department, so that compliance review can run through the daily operation of the enterprise.
2. Tax-related criminal compliance management of specific matters
(1) Pay attention to tax inspection procedures and avoid the transformation from administrative responsibility to criminal responsibility.
(2) Properly deal with tax-related criminal investigations and avoid the spread of criminal liability risks.
3. Carry out tax-related criminal compliance with external professional forces.
(1) Cooperate with tax lawyers and tax agents to conduct regular tax health check-ups.
(2) Actively participate in compliance training of trade associations and other organizations, and obtain information from various aspects.
  • Work time: 9:00 AM-5:30 PM
  • Tel: (+86)10-64108688
  • E-mail:zixun@huashui.com
  • Fax:(+86)10-64108288
  • Address:17 / F, block B, Jiacheng Plaza, 18 Xiaguangli, Dongsanhuan North Road, Chaoyang District, Beijing
  • Postcode:100027
HuaShui WeChat official account
Copyright@2019 Aequity.ALL rights reserved.京ICP备17073992号-1