Foreword:After the merger of national and local taxes in 2018, colleagues and friends often ask about the problem of false invoices, especially the false issuance of special VAT invoices. Since I used to work in the local taxation department, I paid less attention to the problem of false opening. After encountering problems, while inquiring about the documents, I also asked a lot of advice from the comrades of the former national taxation. After accumulating some experience, I thought about writing it, but I didn't dare to write it for a long time. I have been thinking about this for more than two years, but I have repeatedly started writing but stopped, and it is not until September 2023 that I decided to write about my experience. A total of 6 articles have been written about false invoicing, namely: "Under what circumstances will it be recognized as false invoicing?" ", the "third rate" is inconsistent, will it be recognized as a false opening? Is it worth it to falsely invoice others? Will obtaining false invoices be recognized as "false invoicing"? ", bona fide acquisition of "false invoicing in the past and present life", "false invoice" in invoice crimes". Today's first issue is the first article "Under what circumstances will it be recognized as false invoicing?" and five others will be sent out one after another. I would like to express my heartfelt thanks to my friends for their consistent support and tolerance.
The constitutive elements of administrative violations are not clearly stipulated in the administrative law, and theoretically there are "three elements" and "four elements", and we use the term "three elements" here, that is, the main element, the subjective element and the objective element. This paper attempts to analyze the internal logic of false invoicing from the constituent elements of false invoicing, so as to provide a reference for the identification of false invoicing.
OneFalse openInvoicesofCompositionRequirements
According to the relevant provisions of the "Measures of the People's Republic of China for the Administration of Invoices" (hereinafter referred to as the "Measures for the Administration of Invoices") and its implementation rules, we can determine the three elements of false invoicing as follows:
OneSubjectRequirements。The subject of false invoicing includes both units and individuals; It includes not only the issuer of the invoice, but also the party receiving the invoice and the introducer who issues false invoices.
b).SubjectiveRequirements。Whether it is a criminal offense or an administrative violation, the perpetrator's fault is the subjective elementNo penalty for no fault。Subjective fault includes negligence and willfulness. According to the second paragraph of Article 33 of the Administrative Punishment Law of the People's Republic of China, the subjective state of mind of an administrative violation is presumed to be subjectively at fault, and the administrative organ has no burden of proof. If the parties can prove that they are not subjectively at fault, they will not be subject to administrative punishment. False invoicing is generally considered to belongSubjective intentionality
c).ObjectivityRequirements。In order to punish the perpetrator of false invoicing, the tax authorities must have the objective fact of false invoicing, and this objective fact is the objective element of false invoicing.
b).False openInvoicesThe main elements of the
According to Article 18 of the Measures for the Administration of Invoices, "if a unit or individual sells goods, provides services or engages in other business activities collects money for external business operations, the payee shall issue an invoice to the payer; In special cases, the payer will issue an invoice to the payee. "In general, onlySeller(Including.)Sales of goods and taxable serviceswithservices, the same below) can be invoiced. In special cases, it can only be expressly authorized by the tax law (tax law in the broad sense, including tax normative documents, the same below).Purchaserinvoices can be issued to the seller, for example, the purchaser of agricultural products can issue invoices for the purchase of agricultural products to the producers of agricultural products. It can be seen from this that the specific implementer of false invoicing can only be the issuer of the invoice. However, according to the second paragraph of Article 21 of the Measures for the Administration of Invoices, the subject of false invoicing includes not only the issuer (for others and for oneself), but also the recipient of the invoice (allowing others to issue false invoices for themselves) and the introducer of false invoicing (introducing others to issue false invoices). Not only the issuer of false invoices is punished, but also the recipient of the invoice and the introducer. In criminal law theory, this is called the criminalization of aiders or abettors, but there is no analogy in administrative law theory.
c).False invoicingSubjective element
The second paragraph of Article 21 of the Measures for the Administration of Invoices stipulates: "No unit or individual shall have the following false invoicing behaviors:
1) Issuing invoices for others and for oneself that are inconsistent with the actual business situation;
2) Allowing others to issue invoices for themselves that are inconsistent with the actual business situation;
3) Introduce others to issue invoices that are inconsistent with the actual business situation. ”
Judging from the above language expressions, "for others, for yourself", "let others", and "introduce others", it is generally believed that the subjective mentality of false invoicing belongs to subjective intention. However, the Measures for the Administration of Invoices and its implementation rules do not clearly stipulate whether the subjective state of mind is negligence or intentionality, as is the case in the Criminal Law. Due to the subjective mentality of administrative violationsThe presumption of subjective fault in law is presumedTherefore, as long as the subject of false invoicing has the objective elements of false invoicing, it is presumed that it has subjective intent, and the tax authorities do not need to prove it. If the perpetrator can prove that he did not have subjective intent, the administrative punishment is not to be given.
FourthFalse invoicingObjective elements
As long as the act carried out by the actor (minor premise) meets the requirements of false invoicing as stipulated in the tax law (major premise), it constitutes false invoicing (conclusion). The act of false invoicing by the actor is an objective element of false invoicing. According to Article 21 of the Measures for the Administration of Invoices, when an actor issues an invoice in the event of a transaction, it shall issue it truthfully. In other words, the content of the invoice must be consistent with the actual business situation (hereinafter referred to as the transaction). "Truthful issuance" is not only the basic requirement for invoice issuance, but also the core requirement.
What is "fictitious invoicing"? To put it simply, it refers to the act of issuing invoices without transaction behavior between actors, or the act of issuing invoices without transaction behavior. However, according to the provisions of the "Detailed Rules for the Implementation of the Measures of the People's Republic of China for the Administration of Invoices" (hereinafter referred to as the "Detailed Rules for the Implementation of the Measures for the Administration of Invoices"), there are many contents that need to be filled in for invoices. From the "Measures for the Administration of Invoices", "Detailed Rules for the Implementation of the Measures for the Administration of Invoices" and related documents, it can be concluded that if one of the three items of "transaction subject, product name and amount" is inconsistent, it is characterized as false issuance. The name of the goods is the name of the goods, taxable services or services.
For the determination of false invoices, the false opening caliber determined by the tax authorities is larger than that of the criminal identification. Judging from some current judicial cases, the false issuance of special bills, if it does not cause the loss of tax revenue, may not be regarded as a crime, and this area is very controversial in practice. If the tax authorities determine the false opening, they shall not take whether it has caused the loss of tax revenue as the criterion, and shall impose an administrative penalty as long as there is a false opening.
In practice, it is still difficult for the tax authorities to prove that the invoices issued by the perpetrator are inconsistent with the real transactions. Sometimes there is reality in fiction, there is fiction in reality, and it is difficult to distinguish between truth and falsehood. In particular, it is even more difficult to identify fake transactions that have been disguised.
(1) No transaction is falsely opened. There is no real transaction of false opening, the transaction subject, quantity and amount are fictitious, and the core of determining false opening isCertify that the transaction recorded in the invoice isFraudulent transactions。Logically speaking, it is impossible to prove that "what does not exist does not exist". Similarly, if you want to prove that a "transaction" did not take place, you can only determine whether there is a genuine transaction from the requisite elements or transaction practices that the same or similar transaction occurred. We call a company that has no production and business activities and is only set up for the purpose of false invoicing".Billing company
(2) There is a false opening of transactions. In terms of invoicing items,There are three situations in which a transaction is falsely opened:
1.The main body does not match. For example, Company A is the seller and Company B is the buyer, and for some reason, Company A is unable to issue an invoice to Company B, and Company C will issue an invoice to Company B. According to the provisions of the "Measures for the Administration of Invoices", the behavior of Company C is treated as false invoicing.
If Company A conducts a transaction with Company B in the name of Company C, and Company C issues an invoice to Company B, Company B sends the money to Company C, and Company C then pays the money to Company A, regardless of whether Company C obtains profits from it, Company C's conduct is generally not deemed to be false, unless Company C is an "invoicing company".
If Company A conducts a transaction with Company B in the name of Company C, and Company C issues an invoice to Company B, and Company B does not send the money to Company C, but directly to Company A, whether Company C charges a management fee to Company A will usually be deemed to be false, unless there is a reasonable commercial purpose. For example, Company A (which may be a company or an individual) does not have the qualifications required to operate, while Company C has, and the relationship between the two parties is commonly related to construction labor and vehicle transportation.
2.The amount does not match. There are three situations in which the amount does not match: first, the quantity remains unchanged, and the amount is inflated by inflating the unit price; the second is that the unit price remains unchanged, and the amount is inflated by inflating the quantity; The third is to inflate the amount by inflating the quantity and unit price at the same time.
3.The name does not match. For example, the name of the taxable goods sold at a high tax rate is opened into a taxable name with a low tax rate; What is sold is not refined oil, but what is issued is refined oil.
The above is purely a personal opinion and is for reference only. If you have different opinions, please leave a message to communicate.
February 16, 2024.
Tax Law Guidelines:
1 Measures of the People's Republic of China for the Administration of Invoices (revised in 2023).
2. Detailed Rules for the Implementation of the Measures of the People's Republic of China for the Administration of Invoices
3 Notice of the State Administration of Taxation on Several Issues Concerning Strengthening the Administration of VAT Collection (GSF 1995 No. 192).
4 Announcement of the State Administration of Taxation on Issues Concerning the Issuance of Special VAT Invoices by Taxpayers (Announcement No. 39 [2014] of the State Administration of Taxation).