The day before yesterday, a party asked about falsely issuing special VAT invoices. In fact, the consultant is Company A (trading company), which buys goods from Company B and then sells them. Company B changed the name of the goods on the special VAT invoice when invoicing Company A ... Now Company B has disappeared, and the legal representative of Company A and other actors have been criminally filed for the crime of falsely issuing special VAT invoices.
Q: Does the legal representative of Company A constitute the crime of falsely issuing special VAT invoices?
For this problem, we still need to start with the provisions of the criminal law. First, is this change of votes a false one? Second, did Company A and Company B evade taxes? Third, did Company A intentionally defraud the tax deduction? From the perspective of administrative regulations, why did Company B "change tickets"? How much is the tax evaded after the ticket is changed?
First, does changing the ticket belong to the category of "false opening"
The so-called false issuance refers to the issuance of special VAT invoices when there is no real transaction activity or the real transaction is inconsistent with the face value. According to the criminal law, there are four kinds of false opening, namely, false opening for oneself, false opening for others, false opening for others and false opening for others. In this case, the special VAT invoice issued is inconsistent with the name of the goods actually sold, which also belongs to the category of false issuance.
To some extent, some enterprises just can't issue invoices that match the actual name of the goods and choose to issue invoices that don't match the actual name of the goods.
Second, after the ticket reform, Company B evaded the obligation to pay consumption tax.
Many times, downstream enterprises that exchange tickets or pass tickets help upstream enterprises avoid the consumption tax they should pay.
Consumption tax is an in-price tax. Although the consumption tax is ultimately borne by consumers, it is paid in the production, entrusted processing and import of taxable consumer goods. In the future wholesale and retail links, consumption tax has been included in the price. Therefore, in the case of consultant consultation, for company B, the purpose of ticket exchange may be to avoid the consumption tax that should be paid.
Thirdly, whether evading consumption tax belongs to "tax evasion" in the crime of falsely issuing special VAT invoices.
The crime of falsely issuing special invoices for value-added tax faced violence at the beginning of its establishment, so it did not mention whether it had the purpose of tax evasion. However, with the development of economy, there have been various false account opening behaviors, such as some financing and loans. This makes it necessary to discuss whether it is necessary to defraud tax deduction in judicial practice. The Supreme People's Procuratorate's Opinions on Giving Full Play to the Procuratorial Function to Ensure "Six Guarantees" (Gao Jianfa [2020]10, hereinafter referred to as "Six Guarantees Opinions") stipulates that attention should be paid to grasping the boundary between general tax-related illegal acts and tax-related crimes aimed at defrauding state taxes. For enterprises with actual production and business activities, there are no non-tax fraud purposes such as inflated performance, financing and loans.
The "Six Guarantees and Six Opinions" basically set the tone for tax fraud. However, the types of tax evasion are not clear. According to the modesty principle of criminal law, the definition of "tax fraud" should be limited, that is, "tax fraud" should be understood as value-added tax.
4. What is the crime of evading consumption tax by changing tickets?
If the ticket exchange evades the value-added tax, then the billing unit basically does not need to change the ticket, and can directly defraud the tax by violence. As mentioned above, we say that according to the principle of modesty of criminal law, it is not necessary to think that the act of changing tickets constitutes the crime of falsely issuing special VAT invoices, but it does not mean that this act does not constitute a crime. After all, this behavior violates the order of tax collection and management, and also leads to the loss of tax revenue. According to the provisions of the Criminal Law, taxpayers who make false tax returns or fail to declare by means of deception or concealment, which meet the constitutive requirements of the crime of tax evasion, shall be convicted and punished according to this crime.
Does the downstream enterprise constitute a crime?
Value-added tax belongs to turnover tax, and the transaction subject issues invoices, and has actually paid value-added tax. There is no result of value-added tax being cheated, that is, there is no national tax fraud in essence. Therefore, since the upstream company should not be identified as the crime of falsely issuing special VAT invoices, the downstream company should not be identified as the crime of falsely issuing special VAT invoices. However, upstream enterprises may constitute tax evasion.
Under normal circumstances, upstream enterprises will need the cooperation of downstream enterprises to invoice downstream enterprises. At this time, if the downstream enterprises give assistance or cooperation while knowing that the upstream enterprises have offered "ticket exchange", it may constitute a * * * joint crime, that is, it may constitute a * * * tax evasion crime.
In short, even in the case of ticket exchange, it mainly discusses the tax evasion purpose of the actor. If the perpetrator is trying to evade VAT, he should be convicted and punished according to the crime of falsely issuing special VAT invoices. On the other hand, it should not be convicted and punished according to the crime of falsely issuing special invoices for value-added tax, which conforms to the basic principle of consistency between subjective and objective.