Falsely issuing special invoices for value-added tax is used to defraud export tax refund and tax deduction invoices, which refers to the act of falsely issuing special invoices for value-added tax or other invoices that can be used to defraud export tax refund and tax deduction in violation of invoice management regulations. When determining this crime in judicial practice, we should pay attention to the following issues:
1? The key to this crime is that the actor falsely issues special VAT invoices or commits other acts that can be used to defraud export tax rebates and deduct tax invoices. There are three points to grasp here: (1) There must be a false invoice. The so-called false invoicing is a violation of the invoice management regulations and does not issue invoices according to the actual situation. The specific manifestations are: not buying or selling goods or not providing or accepting taxable services, issuing special invoices for value-added tax; Issuing special VAT invoices with false quantity or amount for buying and selling goods or providing or receiving taxable services; Conduct actual business activities, but let others issue special VAT invoices for themselves; (2) False invoicing includes four situations: false invoicing for others, false invoicing for oneself, false invoicing for others and false invoicing by introducing others; (3) False invoicing is limited to special VAT invoices and other invoices that can be used to defraud export tax rebates and tax deductions.
Falsely issuing ordinary invoices does not constitute this crime.
2? According to relevant judicial interpretations, those who falsely make out special invoices for value-added tax or other invoices used to defraud export tax rebates or tax deductions, falsely make out taxes of more than 1 10,000 yuan, or defraud state taxes of more than 5,000 yuan shall be prosecuted. Note that 654.38+00000 yuan here is the tax amount falsely invoiced, and 5000 yuan is the tax amount actually defrauded by falsely invoiced. As long as one of them is met, you can be sued.
3? According to the relevant judicial interpretation, anyone who falsely issues special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or deduct taxes shall be convicted and punished according to the crime of heavier punishment. As far as the starting point of conviction and the statutory maximum penalty are concerned, this crime is obviously heavier than the crime of defrauding export tax rebates, so in this case, it should usually be convicted and punished according to this crime.
According to the provisions of the criminal law and relevant judicial interpretations, the following points should be paid attention to when applying penalties to this crime:
1? Natural persons who commit this crime shall be punished according to the following four grades:
(1) Under normal circumstances, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan.
(2) Those who falsely make out a large amount of tax or have other serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years and fined not less than 50,000 yuan but not more than 500,000 yuan. According to the relevant judicial interpretation, a large amount means that the amount of tax falsely issued is more than 654.38+10,000 yuan. Other serious circumstances refer to one of the following circumstances: defrauding the state tax of more than 50 thousand yuan because of falsely issuing special invoices for value-added tax; Having been criminally punished for falsely issuing special invoices for value-added tax; There are other serious circumstances.
(3) Whoever falsely makes out a huge amount of tax or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated of property. Huge amount means that the amount of tax falsely made out is more than 500,000 yuan.
Other particularly serious circumstances refer to one of the following circumstances: defrauding the state tax of more than 300,000 yuan because of falsely issuing special invoices for value-added tax; The amount of falsely making out taxes is huge or there are other serious circumstances; There are other particularly serious circumstances.
(4) Whoever uses false special invoices for value-added tax to defraud the state tax is especially huge, and the circumstances are especially serious, thus causing particularly heavy losses to the interests of the state, shall be sentenced to life imprisonment or death, and his property shall also be confiscated. According to the judicial interpretation, the amount of defrauding the state tax is extremely large, which means using false special VAT invoices to actually deduct taxes or defrauding export tax rebates of more than 6,543,800 yuan. Causing particularly heavy losses to the national interests means that the national tax loss is more than 500,000 yuan, which cannot be recovered before the investigation is completed. The use of false special invoices for value-added tax to defraud the state tax is particularly huge, causing particularly heavy losses to the national interests, which is the basic content with particularly serious circumstances. The above conditions must be met at the same time in order to be sentenced to life imprisonment or death.
2? If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished according to the following three ranges: (1) Under normal circumstances, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; (2) If the amount of tax falsely made out is relatively large or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than six years; (3) If the amount of tax fraud is huge or there are other particularly serious circumstances, it shall be sentenced to fixed-term imprisonment of 10 or life imprisonment.
The serious or especially serious circumstances such as large amount and huge amount here are the same as those of the above-mentioned natural persons who commit this crime.
3? If a person is sentenced to a fine or confiscation of property for committing this crime, the tax authorities shall first recover the tax and the fraudulently obtained export tax refund before execution.
Related basis
Criminal law of the people's Republic of China
Article 205 Whoever falsely makes out special invoices or other invoices for value-added tax to defraud the export tax rebate or tax deduction shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount of tax falsely made out is relatively large or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years and fined not less than 50,000 yuan but not more than 500,000 yuan; Whoever falsely makes out a huge amount of tax or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than 10 or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated of property. Whoever commits the acts mentioned in the preceding paragraph to defraud the state of tax, if the amount is especially huge and the circumstances are especially serious, thus causing particularly heavy losses to the interests of the state, shall be sentenced to life imprisonment or death, and his property shall also be confiscated. If a unit commits the crime specified in this article, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Whoever falsely makes out a large amount of tax or has other serious circumstances shall be sentenced to fixed-term imprisonment of not less than 3 years but not more than 6 years; Whoever falsely makes out a huge amount of tax or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than five years or life imprisonment. Falsely issuing special invoices for value-added tax or other invoices for defrauding export tax rebates and tax deduction refers to one of the acts of falsely issuing invoices for others, for oneself, for others and for introducing others.
Article 212 Whoever commits the crimes specified in Articles 201 to 205 of this section and is sentenced to a fine or confiscation of property shall be subject to the tax authorities' recovery of taxes and fraudulent export tax refund before execution.