Penalty basis for defrauding tax refund

The crime of illegally selling invoices for defrauding export tax rebates and tax deductions refers to the act of illegally selling invoices other than special VAT invoices that can be used for export tax rebates and tax deductions in violation of the provisions on invoice management. (a) the objective elements of the crime of illegally selling invoices used to defraud export tax rebates and tax deductions; The crime of illegally selling invoices used to defraud export tax rebates and tax deductions is manifested in the specific behavior of illegally selling invoices other than special VAT invoices that can be used for export tax rebates and tax deductions. According to the "Measures for the Administration of Invoices in People's Republic of China (PRC)", the issuance of invoices is limited to sales of goods, provision of services, and business and collection of money by units and individuals engaged in other business activities. Usually, the payee issues an invoice to the payer; Under special circumstances, the payer will issue an invoice to the payee. No unit or individual may lend, transfer or invoice; It is forbidden to buy and resell invoices. Enterprises, institutions or individuals engaged in production and operation that need to use invoices can only apply to the competent tax authorities for purchase according to law. Therefore, except that the tax authorities can sell various invoices according to law, other acts of selling invoices are illegal. For sale, it should be understood in a narrow sense, excluding the act of lending invoices without making profits from them. If it is lent in name but actually sold illegally, it shall be deemed as illegal sale according to its actual nature. Illegal purchase of invoices that cannot be used for export tax rebate or tax deduction shall be determined according to the purpose and purpose of the actor's purchase of invoices. The purpose of the actor's purchase of invoices is to resell, and a certain purchase behavior is a link of the crime of reselling invoices, which should be considered as illegal sale (attempted); The actor buys invoices for his own use for other illegal purposes, which does not constitute the crime of illegally selling invoices to defraud export tax rebates and tax deduction, but it can constitute other administrative illegal acts or crimes, such as using purchased invoices to make false reports and misappropriate public funds. Invoices other than special VAT invoices can be used for export tax refund and tax deduction. They refer to invoices for purchasing waste commodities, transport invoice and agricultural products. They do not belong to special VAT invoices, but have the same functions as special VAT invoices, and can be used for export tax refund and tax deduction. Since this section also specifically stipulates the crime of illegally selling special VAT invoices and the crime of illegally selling invoices, the crime of illegally selling special VAT invoices and the crime of illegally selling invoices that cannot be used for export tax refund or tax deduction constitute the crime of illegally selling special VAT invoices and the crime of illegally selling invoices, but not the crime of illegally selling invoices used for defrauding export tax refund or tax deduction. Because this section also stipulates the crime of illegally manufacturing or selling invoices that can be used for export tax rebate and tax deduction except for the illegally manufactured special VAT invoices, the invoices here only refer to the invoices purchased from the tax authorities by units or individuals who have gone through tax registration according to law after obtaining the tax registration certificate. All invoices not purchased from tax authorities are forged and manufactured without authorization. Selling forged and unapproved VAT invoices that can be used for export tax rebate and tax deduction constitutes the crime of selling illegally manufactured invoices for defrauding export tax rebate and tax deduction, but it does not constitute the crime of illegally selling invoices for defrauding export tax rebate and tax deduction. (II) The main elements of the crime of illegally selling invoices for defrauding export tax rebates and tax deduction. The subject of this Law is the general subject. The first illegal sale of invoices other than the special VAT invoices that can be used for export tax refund and tax deduction can only be carried out by units or individuals who purchase such invoices from tax authorities according to law and tax officials who are responsible for selling such invoices; Any person who further resells such invoices can be any natural person who has reached the age of criminal responsibility and has criminal responsibility ability. According to Article 2 1 1 of this section, a unit may constitute the subject of the crime of illegally selling invoices for defrauding export tax rebates and deducting taxes. If a unit commits the crime of illegally selling invoices used to defraud export tax rebates or deduct taxes, it shall implement the two-penalty system. (III) Subjective elements of the crime of illegally selling invoices for defrauding export tax rebates and tax deductions The crime of illegally selling invoices for defrauding export tax rebates and tax deductions is a deliberate crime, which can only constitute direct intention and intent. The actor must have the criminal intention of illegally selling invoices other than special VAT invoices that can be used for export tax refund and tax deduction. Since it is illegal sales, it must mean that it has a profitable purpose.

Legal objectivity:

Object elements The object of this crime is the national export tax rebate management system and national property rights. The export tax rebate system refers to the system that the state allows export commodities to enter the international market at a price excluding tax to improve the competitiveness of export commodities in the international market, and refunds the tax levied on products that have been subject to value-added tax, business tax and consumption tax in China (except products that the state clearly stipulates will not be refunded) when exporting. It is the product of China's tax policy. At the beginning of 1985, the State Council made major adjustments to China's tax policy and foreign trade policy, and decided to fully implement the tax rebate policy for the export products of all enterprises and institutions engaged in foreign trade from 1 April, 9851day, so as to enhance the competitiveness of their export products in the international market and support export to earn foreign exchange. At the same time, it also promulgated the Administrative Measures for the Examination and Approval of Export Product Tax Refund and other corresponding laws and regulations. Since then, export tax rebate has become. 1988 1 month began to implement a comprehensive and thorough tax refund. For products that fall within the scope of product tax and value-added tax collection, the tax refund shall be calculated according to the approved comprehensive tax refund rate, and all the export tax refund shall be returned by the state budget revenue. 199 1 Reform the foreign trade system and reaffirm that the export tax rebate policy will remain unchanged, but the central and local governments will jointly bear the export tax rebate. So far, China has established a complete export tax rebate system. Practice has proved that the implementation of export tax rebate system is of great significance for encouraging exports, expanding and occupying the international market, participating in international competition and developing export-oriented economy. However, a few enterprises and institutions took the opportunity to defraud the state export tax rebate by falsely reporting exports. It not only seriously damaged the national export tax rebate management system, interfered with the smooth implementation of the national export tax rebate policy, but also caused serious losses to the national finance. Objectively speaking, this crime is manifested in the act of defrauding the country's export tax rebate by fraudulent means such as false export. Tax fraud is based on tax refund. At present, there are two basic forms of tax rebate in China, one is general tax rebate and the other is export tax rebate. General tax refund refers to the tax refund caused by misuse of tax rate by tax authorities or taxpayer's wrong declaration, or adjustment of national tax policy. , resulting in multiple certificates or false tax, in accordance with the provisions of the multiple certificates or false tax returned to the original taxpayer, and in accordance with the provisions of the collection and payment of tax fees, market tax sharing and in accordance with the provisions of the tax management system approved by the tax reduction and exemption. This kind of tax refund belongs to normal tax refund, and if the actor cheats this kind of tax refund by means of deception or concealment, it belongs to general tax fraud. Because the tax authorities can effectively supervise and manage the general tax refund according to the original tax vouchers, general tax fraud can only be treated as tax evasion, and the large amount can be treated as tax evasion. Export tax rebate is different from general tax rebate. This kind of tax rebate is a preferential treatment given by the state to encourage people to go out and enhance the competitiveness of products in the international market, rather than a tax rebate caused by over-certification, false taxation or tax reduction. Therefore, defrauding export tax rebates is more harmful than general tax fraud. L. The perpetrator adopted fraudulent means such as false export. According to the judicial practice, the common deception means mainly include: (1) colluding with enterprises with the right to export, illegally obtaining export documents, and acting as an export agent. In this link, criminals usually take the initiative to find relevant foreign trade enterprises, use "kickbacks" as bait, offer various conditions, organize domestic "sources" on their behalf, find foreign customers' agents, and act as agents for export declaration. After foreign companies make promises, criminals place orders in the name of foreign businessmen, and some criminals even carry forged seals of foreign companies with them and directly sign export agreements with foreign trade enterprises as foreign agents. At the same time, criminals collude with domestic illegal production and sales enterprises to sign domestic trade contracts with foreign trade companies in the name of organizing domestic "supply"; Some lawless elements even sign domestic trade contracts directly with foreign trade companies, and at the same time provide false VAT invoices to foreign trade enterprises, obtain export customs declarations and other documents provided by foreign trade enterprises, and act as agents for foreign trade enterprises to carry out the so-called "export customs declaration" business. (2) colluding with domestic illegal production and sales enterprises to illegally obtain false special VAT invoices. In this link, criminals usually travel around the country, bribing enterprise staff and "preferential" invoicing price (generally calculated according to the proportion of invoiced amount) to obtain false special VAT invoices issued by these lawless enterprises. The name of the goods invoiced is usually leather products, clothing, electrical components and other daily-use goods without foreign trade export restrictions, and the invoiced unit price is usually ten times or even dozens of times the actual commodity price. Some lawless elements directly or indirectly establish contact with domestic illegal production and sales enterprises, obtain blank special VAT invoices from enterprises, fill them out by themselves, or sit on the ground and buy special VAT invoices falsely issued by illegal enterprises. (3) colluding with illegal businessmen at home and abroad to illegally transfer foreign exchange with foreign trade enterprises to obtain illegal benefits. The export receipt issued by the bank is an important document to mark the completion of the export of goods by foreign trade enterprises, so it is a necessary step for criminals to implement a series of criminal acts of defrauding export tax rebates, and it is also a key link for criminals to actually obtain illegal benefits. In this link, criminals usually collude with unscrupulous businessmen at home and abroad, borrow foreign exchange from domestic and foreign enterprises on the grounds that domestic investment needs RMB, and illegally transfer foreign exchange to foreign trade enterprises; Sometimes criminals illegally remit foreign exchange taken from China to overseas banks through various means, and then conduct illegal foreign exchange transfer transactions with domestic foreign trade enterprises in the name of foreign businessmen. The price of this illegal remittance is usually much higher than the normal remittance price, and criminals have gained huge benefits from the difference of this illegal remittance. Although domestic foreign trade enterprises have also caused losses in illegal foreign exchange transfer, in order to make up for this loss and get some "profits" from it, they have to take risks and use the false tax refund certificates provided by lawless elements to defraud the state of export tax refund. Once this illegal transaction between criminals and foreign trade enterprises is successful, both sides will gain considerable benefits from it, and finally only the country's export tax rebate will suffer huge losses. (4) illegally obtaining the declaration form of export goods stamped with the customs inspection seal by bribery or deception. In this link, criminals usually use four means: first, stamp the customs inspection seal on the export goods declaration form (export tax refund form) and fabricate the fact that the goods have been declared for export. Second, bribing customs officers to underreport and overstate, forging physical objects or stamping the customs inspection stamp on the export goods declaration form (export tax rebate form) to fabricate the fact that the goods have been declared for export when there is no export at all. Third, taking advantage of the loopholes of lax customs supervision and inspection, using fake goods or empty cars to cross the border, defrauding the customs to stamp the customs inspection seal on the declaration form of export goods (export tax rebate) and concealing the truth of export without goods. The fourth is to buy a small amount of goods or rent other people's goods for customs declaration, and then defraud the customs to stamp the customs inspection stamp on the export goods declaration form (export tax refund form) by underreporting and overstating. In particular, criminals who rent other people's goods generally declare their personal territory in the form of smuggling or low value after leaving the country. A batch of goods are reused and engaged in the "travel" of goods. This modus operandi of fabricating the export facts of goods is very concealed and deceptive, and it is a common trick used by criminals to defraud (export tax rebate) at present. It is worth mentioning that at some important ports along the coast, a small number of customs officers and other lawless elements have been found to collude with criminals who defraud export tax rebates and specialize in criminal activities of renting goods for illegal interests. Such people are usually called "shippers", and their criminal acts should also be severely cracked down according to law. 2. The actor must adopt fraudulent means, such as falsely reporting the export of the goods he produces or operates. If the goods it produces or deals in are not falsely exported, but in the name of export tax rebate, it is a crime of fraud to defraud state property out of thin air by means of forgery or bribery, which does not constitute this crime. 3, tax fraud must be implemented in the process of engaging in export business. Units and individuals who are not engaged in export business pretend to be export enterprises, falsely report exports, forge, alter or defraud tax refund vouchers to defraud tax refund, which does not constitute this crime and belongs to the crime of fraud. Those with a large amount should be convicted of fraud. 4. The amount of defrauding the national export tax rebate must reach a certain standard. According to the provisions of this article, this standard is 1 ten thousand yuan or more. Subject elements The subject of this crime is a general subject, and any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can constitute the subject of this crime. According to Article 2 1 1 of this section, a unit can also constitute this crime. Among them, the units mainly have the right to export. Because the export tax rebate is essentially a financial subsidy given by the state to encourage the export of products, it is impossible for units without export rights to enjoy this preferential treatment. According to the provisions of the current tax law, there are three kinds of units that enjoy the right of export tax refund in China: (1) central and local foreign trade enterprises, industrial trading companies and some industrial production enterprises that enjoy the right of independent export management; (2) Specific export tax rebate enterprises, such as ocean shipping supply companies and foreign contracted engineering companies; (3) Entrusting export enterprises. The first two units can directly declare the export tax rebate, which naturally constitutes the subject of this crime. In the latter case, although the entrusting party does not have the right of direct export operation, it still has the right to enjoy the benefits of export tax rebate, so it can also constitute the subject of this crime. As for the agent itself, it has the right of direct export operation, which can of course be the subject of this crime. Subjective elements This crime has direct intention subjectively and has the purpose of defrauding export tax rebates. The tax authorities overpaid the tax refund due to the mistakes of the staff of the export enterprise or because the products were returned due to the highest quality after export. Because there is no intentional crime of defrauding tax, they cannot be investigated for criminal responsibility for defrauding tax refund, and the tax authorities can only order the export enterprises to refund the overpaid tax within a time limit. If the export enterprises make mistakes, they can also collect late fees on a daily basis. The motivation of export enterprises to defraud export tax rebates is generally to achieve the task of earning foreign exchange by continuing to enjoy the right to operate import and export as required by the state, and to extract a certain percentage of export commissions from it. But the motive does not affect the establishment of this crime.