Is it the first time that tax evasion is not investigated for criminal responsibility?

For first-time offenders who evade taxes, there are special provisions not to pursue criminal responsibility. According to the provisions of the amendment, if the tax evasion has reached the prescribed amount and proportion standard, which has constituted a first offence, if it meets the following three preconditions, it may not be investigated for criminal responsibility: First, after the tax authorities issue a notice of recovery according to law, they will pay back the tax payable; The second is to pay late fees. Third, it is subject to administrative punishment by tax authorities. Here it is necessary to make some special explanations on the meaning of the third condition. The amendment stipulates that the first offender of the crime of tax evasion shall be given "administrative punishment" by the tax authorities after paying taxes and late fees, and shall not be investigated for criminal responsibility. Article 3 of the Criminal Law Amendment (VII) has significantly revised Article 20 1 of the Criminal Law. Article 20 1 of the revised criminal law stipulates the crime of tax evasion and legal punishment. The fourth paragraph stipulates: "Whoever commits the act mentioned in the first paragraph, after the tax authorities have issued a notice of recovery according to law, paid back the tax payable and the late payment fee, and was subjected to administrative punishment, shall not be investigated for criminal responsibility; However, except for those who have been criminally punished for tax evasion within five years or have been given more than two administrative punishments by the tax authorities. " This article (referred to as this article before the proviso) stipulates the condition of "not being investigated for criminal responsibility", but the proviso limits the situation of "not being investigated for criminal responsibility". In order to correctly apply this article and the proviso of the fourth paragraph of Article 20 1 of the Criminal Law, we must correctly understand the nature of this article. The author expresses his superficial views on this. Whether there is a reason for punishment for tax evasion depends on the understanding of the first item of the fourth paragraph of Article 20 1 of the Criminal Law. The author makes the following comments on this. (1) Any tax evasion case must be handled by the tax authorities first. If the tax authorities refuse to deal with it, the judicial organs will not directly investigate the criminal responsibility of the actor. If the tax authorities know that the perpetrator has tax evasion but do not issue any notice, the judicial organs cannot directly investigate the criminal responsibility of tax evaders. In other words, the inaction of the tax authorities cannot be the basis for investigating the criminal responsibility of tax evaders. Even if the tax evaders collude with the relevant personnel of the tax authorities, the tax authorities cannot issue a notice of recovery according to law, nor can they directly investigate the criminal responsibility of tax evaders. In this case, the correct way is to make a decision by the tax authorities according to law, and then decide whether to pursue criminal responsibility according to whether the actor pays the tax payable, pays the late payment fee, accepts the administrative punishment, etc. In this sense, the fourth paragraph of Article 20 1 of the Criminal Law also contains the content of positive and objective punishment conditions. Paragraph 4 of Article 20 1 of the Criminal Law clearly stipulates that the tax authorities shall issue a notice of recovery according to law. Therefore, the notice of recovery issued by the tax authorities is illegal, and the actor fails to pay the tax payable, pay the late payment fee and accept the administrative punishment according to the notice, which cannot be the basis for denying the reasons for punishment. (2) Generally speaking, criminal responsibility will not be investigated only after the tax authorities have issued a notice of recovery according to law, the actor has paid the tax payable and the late payment fee, and has been subject to administrative punishment. The term "subject to administrative punishment" not only means that the administrative organ has made a punishment decision, but also further requires the actor to perform or execute the punishment decision. According to the provisions of the Law on the Administration of Tax Collection, the administrative punishment here actually refers to a fine. Therefore, after the tax authorities make a fine decision, if the actor fails to pay the fine, it cannot be regarded as "being subjected to administrative punishment". Only when the actor pays the fine according to the fine decision of the tax authorities can he be regarded as "subject to administrative punishment". It should be noted that if the tax authorities do not handle it comprehensively and only issue a notice asking the actor to accept one or two of them, as long as the actor accepts the handling by the tax authorities, he should not be investigated for criminal responsibility. In other words, whether the tax authorities comprehensively deal with it does not affect the establishment of reasons for preventing punishment. The actor cannot bear criminal responsibility because the tax authorities have handling defects. Even if the tax authorities wrongly implement the tax law, they should make three decisions, but only one or two decisions have been made, which does not affect the establishment of the reasons for preventing punishment. Article 86 of the Law on the Administration of Tax Collection stipulates: "If an act that violates tax laws and administrative regulations and should be given administrative punishment is not discovered within five years, no administrative punishment will be given." If the amount of tax evasion is huge and accounts for more than 30% of the tax payable, the statutory penalty of "fixed-term imprisonment of not less than 3 years but not more than 7 years" should be applied, and the limitation of prosecution is 10 year. If the actor is found to have evaded taxes five years later, the tax authorities can only ask the actor to pay the tax payable and pay the late payment fee, but can't give administrative punishment. In this case, as long as the actor pays the tax payable and the late payment fee, he should not be investigated for criminal responsibility, and he cannot be investigated for criminal responsibility on the grounds that the actor does not meet the conditions of "administrative punishment". Otherwise, on the one hand, it means that the actor must take the initiative to request administrative punishment, which is obviously inappropriate; On the other hand, it means that the tax authorities have determined that the time of tax evasion has become the key factor to investigate the criminal responsibility of the perpetrator, which is obviously inappropriate. (3) Only when the actor does not accept the punishment within the time limit stipulated by the tax authorities can the judicial organs pursue criminal responsibility. In this regard, the following points need to be explained. 1. The tax authorities often set a certain time limit, such as paying the tax payable within 7 days, paying late fees or paying fines. As long as the actor has fulfilled the decision of the tax authorities within this period, he cannot be investigated for criminal responsibility. 2. If the actor refuses to accept the decision of the tax authorities to apply for reconsideration or bring an administrative lawsuit after paying the tax payable, paying the late payment fee and being subject to administrative punishment, it will not affect the establishment of the reasons for preventing punishment. In other words, just because the actor applies for reconsideration or brings an administrative lawsuit, it cannot be considered that the actor has no reason for punishment. However, after the tax authorities have made a decision to pay back the tax payable, late fees and administrative penalties according to law, if the actor refuses to accept the payment of the tax payable, late fees and administrative penalties within the prescribed time limit and applies for administrative reconsideration or brings an administrative lawsuit, there is no reason to prevent the punishment (see Articles 44 and 45 of the Administrative Punishment Law, Article 2 1 of the Administrative Reconsideration Law and the Law on Tax Administration). 3. The actor can enter the criminal judicial procedure to investigate the criminal responsibility of the actor without being dealt with by the tax authorities within the prescribed time limit. Those who pay back the tax payable, pay late fees or accept administrative punishment after entering the criminal judicial procedure shall not be punished. In a word, if the taxpayer pays the tax payable, pays the late payment fee or accepts the administrative punishment after the public security organ files the case, it will not affect the investigation of criminal responsibility. One view is: "Administrative procedure is not the pre-procedure of criminal justice. After entering the criminal justice process, taxpayers pay back taxes and accept administrative punishment. In line with the conditions, the provisions of not pursuing criminal responsibility can still be applied. If the perpetrator evades taxes and reaches the standard of crime amount, the public security organ may file a case according to law. After filing the case, the taxpayer pays back the tax, pays the overdue fine and accepts the administrative punishment. If the public security organ thinks that criminal responsibility should not be investigated, the case shall be dismissed. Similarly, according to Article 15 of the Criminal Procedure Law, in the stages of examination, prosecution and trial, as long as taxpayers pay taxes, pay late fees and accept administrative penalties, the provisions of not pursuing criminal responsibility can be applied, and the judicial organs can make decisions not to prosecute, terminate the trial or declare innocence according to different stages of litigation. " [5] However, this view is flawed. First, the fourth paragraph of Article 20 1 of the Criminal Law stipulates that "criminal responsibility shall not be investigated" if there are reasons for punishment. Filing a case, prosecution and trial are all processes of investigating criminal responsibility. Therefore, it is obviously a violation of this provision that the perpetrator directly enters the criminal judicial procedure after reaching the tax evasion standard. Secondly, this view leads to the fact that the process of criminal judicial procedure depends entirely on the actor's after-the-fact behavior and takes the actor's will as the transfer, which damages the authority of criminal justice. That is, according to this point of view, even if the actor refuses to pay the tax payable, pay the late payment fee or accept the administrative punishment after the tax authorities issue a notice according to law, after entering the criminal justice process, he will be treated as not prosecuting, terminating the trial or declaring innocent according to different litigation stages. This is obviously inappropriate. Third, this practice wastes criminal judicial resources, leading to cases that were unnecessary and should not be filed, prosecuted and tried, and also entered the filing, prosecution and trial procedures. Fourth, this practice will inevitably encourage the actor's luck and disregard and contempt for the tax authorities' handling according to law. Because according to this practice, because the actor can avoid punishment at any stage before the judgment, if the actor can avoid paying taxes, late fees and administrative penalties before this, he will try to avoid it; If you really can't escape, it will be handled by the tax authorities without punishment. This is obviously not conducive to the implementation of the Law on the Administration of Tax Collection, to the protection of national tax revenue, and to the purpose of legislation. (4) The premise of applying the fourth paragraph of Article 20 1 of the Criminal Law is that the crime of tax evasion constitutes one of them, and the act that does not constitute the crime of tax evasion cannot be investigated for criminal responsibility, so the fourth paragraph of Article 20 1 of the Criminal Law cannot be applied. For example, if the amount of tax evasion by the actor is large, but it does not reach more than 10% of the taxable amount, the fourth paragraph of Article 20 1 of the Criminal Law should not be applied, and it can only be handled in accordance with the provisions of the tax law. Secondly, because the fourth paragraph of Article 20 1 of the Criminal Law stipulates that "the acts listed in the first paragraph shall not be investigated for criminal responsibility", the withholding agent stipulated in the second paragraph of Article 20 1 of the Criminal Law fails to pay or underpays the tax withheld or collected, and the amount is relatively large. After the tax authorities issue a notice of recovery according to law, they should pay the tax payable and pay the late payment fee, which has been subject to administrative punishment. The reason for the objection is that withholding agents who fail to pay or underpay the taxes withheld and collected are treated equally with taxpayers for tax evasion, whether in the criminal law or in the tax collection and management law. In this case, the provisions of paragraph 4 on punishment and reasons for refusal shall also apply to withholding agents. [6] However, the author believes that there is a great difference between taxpayers' tax evasion and withholding agents' failure to pay or underpay the taxes withheld or collected. On the one hand, although on the surface, taxpayers' tax evasion and withholding agents' failure to pay or underpay withholding taxes and taxes already collected all indicate that the national tax revenue has suffered losses, in the former case, taxpayers have not paid taxes, while in the latter case, taxpayers have already paid taxes. On the other hand, taxpayers need to turn over part of their legitimate income to the state, while withholding agents only need to turn over taxes that have been withheld from others to the state, so taxpayers and withholding agents have different expectations. Therefore, the reasons for punishing taxpayers should not apply to withholding agents. In the same way, although according to the provisions of Article 204 of the Criminal Law, it is also a crime of tax evasion to defraud the paid tax by false export or other deceptive means after paying the tax, but the provisions on the reasons for punishment and refusal in the fourth paragraph of Article 2065438 +0 of the Criminal Law do not apply to this situation. For other crimes of obstructing tax revenue and smuggling ordinary goods and articles stipulated in Article 153 of the Criminal Law, the provisions of Article 20 1 4 of the Criminal Law on the reasons for punishment and obstruction cannot be applied. Third, if the taxpayer has evaded taxes for many times and the accumulated amount reaches the provisions of Article 20 1 of the Criminal Law, which constitutes the crime of tax evasion, the provisions of the fourth paragraph should still be applied. For the first offenders of tax evasion, it is indeed stipulated that they can not be investigated for criminal responsibility, but the premise is that they need to pay a certain amount of late fees to be exempted from relevant criminal punishment. In view of the relevant criminal penalties, it is generally necessary to impose sentencing and punishment on criminal suspects.