Recently, the seminar on “Winning Strategies for Tax-related Crimes” was held in Beijing, and Ms. Liang Yali, senior partner of King&Capital Law Firm and director of King&Capital Criminal Defense Center, was invited to participate in the seminar and make a speech.
The seminar on “Winning Strategies for Defending Tax-Related Crimes” is the second professional activity of Dacheng Criminal Exchange (Beijing). The seminar is aimed at responding to the key areas of national governance, improving the quality of lawyers' work in tax-related violations and crimes, focusing on the defense of tax-related crimes and the refinement of criminal expertise, and creating a new field of “specialization, expertise, and innovation” for lawyers in tax-related dispute resolution.
Liang Yali
King&Capital Law Firm senior partner, director of King&Capital Criminal Defense Research Center, Liang Yali lawyer pointed out in the seminar speech, tax-related crimes from the behavioral level, belongs to the typical administrative crimes, its premise is often based on the premise of violating the laws and regulations on tax collection and management. This means that the legal system involved in tax-related crimes is relatively complex, and the background of the state's tax collection and administration of different kinds and industries in different periods may directly affect the judgment of crime and non-crime in a case.
“Tax-related crimes have the typical complexity of the intersection of criminal behavior.” Liang Yali lawyer said, from the perspective of criminal lawyer's defense, whether the behavior is illegal, whether the tax loss and other elements of judgment, can be the entry point for the defense of tax-related crimes, making the determination of crime and non-crime in this kind of cases there is a great space.
Liang Yali lawyer further elaborated, eight departments notification content shows that, on the one hand, 2023, China's cumulative inspection of suspected fraudulent tax enterprises amounted to 174,000, by cracking down on tax-related violations to recover 16.6 billion yuan of export tax refunds. We can find that, on the one hand, some enterprises, especially private enterprises, there is a “lack of awareness of compliance, financial and tax management,” the problem, on the other hand, the tax incentives to land, so that enterprises in the role of the tendency to reduce costs and increase efficiency of the profit-making instincts, it is very easy to misrepresentation, false invoicing and other situations. Sometimes enterprises think that they are just “avoiding tax” through the design of transaction or business model, but it is very likely that there is already a risk of tax-related crime.
Taking false VAT invoices as an example, the forms include: false invoicing for others, false invoicing for oneself, and letting others falsely invoicing for oneself. However, if the false invoicing behavior is only formal, and there is no abuse of the right of deduction in practice, and the behavior does not lead to loss of the national tax interests, it does not constitute the crime of false VAT invoicing.
Although the judgment of “crime and non-crime” of false VAT invoice is not complicated from the viewpoint of principle, the types and ways of false invoicing are endless in reality, such as “opening on behalf of goods”, “dependent invoicing ““Overbilling,”” ‘changing tickets,’ ‘buying tickets,’ ”cheating and cheating to make up for the advantages” “ring open folio” and so on, specific to different industries, different enterprises, the flow of taxes in fact will become extremely complex, to be in the complex details of the facts and evidence in the cocoon, attributed to the essence of the defendant's behavior is not easy, especially in the accusation of the logic of the formation of a large number of objective evidence and description of the facts of the prosecution, to find the point of defense is Difficult to find the defense is even more difficult.
Liang yali lawyer suggested, for tax-related crime cases, can take the logic of “substantive judgment”, according to whether the behavior caused national tax loss or danger of substantive standards, the constitutive elements of the purpose of limiting, in criminal law relatively independent judgment of illegality, rather than according to the logic of the accusation, the former statutory crime, to the number of false openings quantitative.
In addition, Ms. Liang Yali also interpreted and provided professional advice on the compliance background of tax-related criminal risks of enterprises by taking coal, oil and other energy enterprises and the energy industry as examples.
Since 2020 to date, based on a series of national policies and judicial actions such as special rectification in China's coal sector, opinions on further deepening the reform of tax collection and management, and normalized crackdown on fraudulent tax evasion, the tax-related and criminal risks of coal and other energy enterprises have received general attention and importance. At the same time, the compliance reform of the enterprises involved in the case is also in full swing during this period, which provides a new way for the enterprises involved in the case, especially the energy enterprises, to solve the criminal risk.
Mr. Liang Yali cited an example that the enterprise involved in the case actually purchased coal or corresponding raw materials, but due to the inability to obtain invoices, it could only open corresponding invoices from a third party, and the invoices issued by the third party matched the transaction amount, which belonged to the situation of “having goods to open”. Although according to the interpretation of the academia on the crime of false invoicing of VAT special invoices, it is considered that “invoicing with goods” often does not constitute the crime of false invoicing of VAT special invoices because it does not result in loss of tax, Article 205 of the Criminal Law does not explicitly stipulate the resultant element of causing the loss of tax, therefore, even though there are a large number of typical cases, opinions and replies, there are still a large number of local judicial practices that are still not in compliance with the provisions of the Criminal Law. However, since Article 205 of the Criminal Law does not expressly state the resultant condition of causing tax loss, even though there are already a large number of typical cases, opinions and replies, there are still a large number of local judicial practices that criminalize the act of invoicing on behalf of enterprises.
In the face of tax-related legal risks, energy enterprises how to better cope with and prevent it? Liang Yali lawyer suggested that, first of all, for coal, oil and other production, transportation, purchase and sale process, due to different raw materials, products involved in different taxes, different transactions in the form of flow of complexity, energy enterprises should pay more attention to the tax-related criminal compliance management, should be set up in the day-to-day operation of the compliance management system, as well as for the specific matters of the compliance program. Secondly, the compliance management system of energy enterprises in daily operation should pay attention to the full trace of business process, improve the tax management system and invoice management system, and customize professional management system to realize the dataization and integration of business process and internal management. Finally, in terms of tax-related criminal compliance management of specific matters, it is necessary to pay attention to the tax audit procedure to avoid the escalation of administrative liability to criminal liability. Once criminal liability is involved, it is necessary to pay more attention to criminal investigation to avoid the proliferation of criminal risks, and promptly introduce professional tax lawyers and criminal lawyers.
Conference Scene
A number of lawyer representatives attending the seminar also put forward their own views and insights, and reached a consensus that they would further refine their business, strengthen cooperation, and work together to make tax-related cases extremely professional, provide clients with high-quality and efficient legal services, and work together to promote the modernization of the national governance system and governance capacity for taxation, and the modernization of the rule of law in Chinese style, to make contributions to the lawyers' profession.
On February 27, 2024, 2024, a meeting of eight departments of the State Administration of Taxation, the Ministry of Public Security, the Supreme People's Court, the Supreme People's Procuratorate, the People's Bank of China, the General Administration of Customs, the General Administration of Market Supervision, and the State Administration of Foreign Exchange to jointly crack down on tax-related crimes and offences was held in Beijing. The Supreme Prosecutor's party group members, Deputy Prosecutor General Ge Xiaoyan said at the meeting, will focus on key areas, focusing on combating the use of fraudulent export tax refunds, fraudulent tax rebates by means of false openings, tax rebates, financial refunds and government subsidies, the use of shell companies, violent false openings, false openings in other places, false openings, change the ticket, and other serious tax-related crimes. Special governance of “shell companies” has been carried out, combining the analysis of tax-related crime cases with the loopholes in the regulatory system for the continuation of companies, the promotion of governance at the source, and the improvement of the mechanism for the two-way convergence of administrative law enforcement and criminal justice.
Translated with DeepL.com (free version)
