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How to distinguish between the crime of tax evasion and the crime of evading the collection of debts

Legal analysis:

1. Different criminal subjects. The subjects of the crime of tax evasion and the crime of evading the recovery of tax arrears are special subjects, that is, taxpayers. According to the provisions of Article 4 of the Tax Collection and Administration Law, taxpayers refer to entities and individuals that have tax obligations under laws and administrative regulations. However, the subjects of tax evasion crimes include not only taxpayers, but also withholding agents, that is, entities and individuals with the obligation to withhold and remit taxes, collect and remit taxes as stipulated in laws and administrative regulations are withholding agents. The subject of the crime of evading the recovery of tax arrears is limited to taxpayers. 2. Different criminal means. According to Article 1 of the Supreme People’s Court’s “Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Tax Evasion and Resistance” (Fa Shi [2002] No. 33), the acts of tax evasion include: First, forgery, alteration, Create, conceal, or destroy account books and accounting vouchers without authorization; second, over-list expenses or fail to list or under-list income in account books; third, refuse to declare taxes after being notified by the tax authorities; fourth, make false tax returns; fifth, After paying the tax, they defraud the tax paid by making false export declarations or other deceptive means. The crime of evading the recovery of tax arrears is when a taxpayer resorts to means of transferring or concealing property under the premise of arrears of taxes, so that the tax authorities cannot recover the arrears of taxes. 3. Different prosecution standards. The prosecution standards for tax evasion crimes take the form of amount plus proportion, that is, not only the amount standard must be met, but also the amount of tax evaded must account for more than 10% of the tax payable. According to Article 57 of the "Regulations on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)" by the Supreme People's Procuratorate and the Ministry of Public Security (hereinafter referred to as "Standards for Filing and Prosecution (II)"): "Evading the payment of taxes is suspected of Under any of the following circumstances, a case shall be filed for prosecution: (1) The taxpayer uses deception or concealment methods to make false tax returns or fails to declare taxes to avoid paying taxes, and the amount is more than 50,000 yuan and accounts for 10% of the total tax payable for each tax type. More than 10 years ago, after the tax authorities issued a recovery notice in accordance with the law, they failed to pay back the tax due, failed to pay late payment fees, or did not accept administrative penalties; (2) The taxpayer has been criminally punished for evading tax payment within five years or has been given a two-year tax penalty by the tax authorities. or more than one administrative penalty, and evades the payment of taxes, the amount of which is more than 50,000 yuan and accounts for more than 10% of the total tax payable for each type of tax; (3) the withholding agent uses deception or concealment methods to fail to pay or underpay already The amount of tax deducted or collected is more than 50,000 yuan." The crime of evading the recovery of tax arrears only needs to meet the amount standard. According to Article 59 of the "Standards for Filing and Prosecution (2)": "Taxpayers owe money. If the amount of tax owed exceeds RMB 10,000 by means of transferring or concealing property so that the tax authorities are unable to recover it, a case shall be filed for prosecution. "Legal basis:

Objective elements. The object of the crime, like the crime of tax evasion and tax resistance, is the country's tax management system. If the infringement is not the country's tax management system, it does not constitute this crime. Objective Elements: The objective aspect of this crime is that the perpetrator must have violated tax laws and regulations, defaulted on the tax payable, and resorted to means of transferring or concealing property, causing the tax authorities to be unable to recover the tax arrears, and the amount was relatively large. 1. There must be facts of tax arrears. The fact of tax arrears is a prerequisite for the establishment of this crime. If the perpetrator does not owe taxes, there will be no recovery. Without recovery, there will be no evasion of recovery. Tax arrears refer to the behavior of taxpayers or individuals who exceed the tax payment deadline approved by the tax authorities, fail to pay taxes on time, and default on taxes. When determining whether a behavior is "tax arrears", it must be ascertained whether the tax arrears have passed the statutory time limit. Only if the tax arrears exceed the statutory tax payment period, the tax arrears are the "tax arrears" facts required for the crime of evading the recovery of tax arrears. . As for the specific legal period, the regulations for each tax category are not consistent and should be determined based on specific tax regulations. When considering the fact of tax arrears, one must consider the reason for the arrears, whether the perpetrator is financially incompetent, short of funds, or has the ability to pay taxes and deliberately defaults on the arrears. In the case of the former, Article 20 of the Tax Collection and Administration Law stipulates: The taxpayer has special difficulties. If the tax cannot be paid in the near future, the payment can be deferred with the approval of the tax authorities at or above the county level, but the maximum period shall not exceed three months. This means it is permissible to owe taxes for legitimate reasons.

Therefore, evading the collection of tax arrears obviously refers to the second situation, that is, intentional default. 2. The perpetrator must have actual evasive behavior. This is the key to whether the crime can be established. According to the law, evasion refers specifically to the transfer of property and the concealment of property, such as transferring the account bank, withdrawing deposits, transporting goods, concealing inventory, etc. If the property is not transferred or concealed, , but if the tax debtor himself escapes and hides, it does not constitute this crime. It must be made clear here that there must be an inevitable causal connection between the "evasion" behavior carried out by the perpetrator and the "tax arrears" behavior. That is, "escape" is to "owe taxes". As for which one comes first, it doesn't really matter. In practice, some actors perform "evasion" behavior after the legal tax deadline has expired, that is, after meeting the conditions for "tax arrears" stipulated by law; some actors first transfer assets and then owe taxes. In these two situations, It does not affect the conviction of this crime. If the perpetrator can be confirmed in time during the tax period to transfer or conceal property in an attempt to evade tax arrears, how should we deal with it? In accordance with the provisions of the Tax Collection and Administration Law, the tax department can order the perpetrator to provide a tax guarantee; if the perpetrator refuses, tax preservation measures can be taken against the perpetrator. 3. Making it impossible for the tax authorities to recover the tax, which is the criminal purpose of the perpetrator and the objective result required by this crime. Tax arrears often occur in tax practice. For those who have the ability to pay taxes and intentionally owe taxes, according to Article 27 of the "Tax Collection and Administration Law", the tax authorities can take coercive measures, such as withholding taxes from their accounts through banks. or seize, seal, or auction their property to pay taxes. Therefore, as long as the taxpayer has a considerable amount of funds and properties, the taxes owed can be recovered; but if the perpetrator transfers or conceals the funds and properties, the taxes owed will be difficult to recover and cause losses to the country. Therefore, the crime of evading the recovery of tax arrears is a consequential crime. Only the fact that "the arrears of tax arrears cannot be recovered" can be established. If the perpetrator takes evasive behavior, the transferred or concealed property is eventually seized by the tax authorities. Recovering and making up for the tax amount constitutes an attempted crime. 4. The amount of personal tax that cannot be recovered must reach the legal sentencing standard, which is more than 10,000 yuan. This crime is a consequential crime. If it is less than 10,000 yuan, even if the above-mentioned elements are met, it does not constitute a crime. The amount here refers to the amount of tax arrears that cannot be recovered by the tax authorities, that is, the amount of national tax losses, and is not transferred by the perpetrator. Or the amount of hidden property is not the actual amount of tax owed by the perpetrator. Sometimes these three amounts are the same, sometimes they are not the same, and they must be accurately grasped. If the uncollectible tax arrears does not reach the statutory amount, the tax department will impose administrative penalties in accordance with the law. The above four elements are mutually unified and are all necessary conditions for the establishment of the crime of evading and recovering tax arrears. They are also the key to distinguishing them from tax evasion, tax resistance and general tax arrears. Subject Requirements The subject of this crime is a special subject, that is, the units and individuals who have tax obligations under the law. Units and individuals without tax liability cannot constitute the subject of this crime. According to Article 4, paragraph 1, of the Tax Collection and Administration Law, taxpayers are entities and individuals that have tax obligations under laws and administrative regulations. Each entity tax law and regulation has specific and clear provisions on the scope of taxpayers for this tax type. Different tax types have different scopes of taxpayers. For example, according to Article 1 of the "Interim Regulations on Value-Added Tax", taxpayers of value-added tax are "units and individuals that sell goods or provide processing, repair and replacement services, and import goods within the territory of the People's Republic of China"; and According to Article 1 of the "Interim Regulations on Consumption Tax", taxpayers of consumption tax are "units and individuals that produce, entrust processing and import consumer goods specified in these regulations within the territory of the People's Republic of China." According to the provisions of Article 211 of this section, enterprises and institutions with tax obligations may also become the subject of this crime. If a unit commits a crime, a two-punishment system will be implemented. The persons in charge and other persons directly responsible shall be understood as the legal representatives, persons in charge and other persons directly involved in the unit that are directly responsible for the crime of obstructing the recovery of tax arrears.

Subjective elements: This crime is subjectively intentional, and has the purpose of evading the payment of dues and making illegal profits. The intentionality of the perpetrator is not only manifested in the fact that he is aware of the fact that the tax is owed, but also manifested in the intentionality of the perpetrator. Deliberately transferring or concealing property for the ultimate purpose of evading tax payments, making it impossible for the tax authorities to recover the taxes owed. The motivations of the perpetrators may be diverse, some are to enable employees to receive more bonuses, some are to turn losses into profits or expand reproduction of the unit, and some are to seek personal gain, but the motivations do not affect the conviction of this crime.