Editor's note: The repeated outbreaks of false opening cases on online freight platforms are caused by the inherent problems of the industry. That is, some shippers and individual drivers have completed transportation services, and find that individual drivers cannot issue invoices, so they find an online freight platform to issue invoices on their behalf. These illegal businesses were identified by the case-handling authorities as false openings due to the fact that the documents were supplemented after the fact and the indications of the return of funds appeared. In the past, the platform mainly relied on Fa Yan [2015] No. 58 as the basis to demonstrate that the act of truthfully acting on behalf of the company was not harmful to society. However, after the promulgation of the two high-tech judicial interpretations, the act of truthfully acting on behalf of others has fallen into a controversy over understanding. Recently, with the Supreme People's Court judges issuing the "Understanding and Application" on the interpretation of the Supreme People's Court and the Supreme People's Court, it is clear that truthfully opening on behalf of the Supreme People's Court is not a crime. In view of this, this article discusses how online freight platforms can defend themselves after the promulgation of the judicial interpretations of the Supreme People's Court and the Supreme People's Court in light of the latest cases of online freight platforms, for readers' reference.
1. Case introduction: A network freight platform and the actual controller were found to be guilty of false opening
(1) Basic facts of the case: The case-handling organ denied the business essence of Network Platform A
According to Qinzhou Daily, the basic facts of this case are: after tax inspection, the actual controller Chang Moumou and others established a network freight platform company in Fangchenggang City. However, the company has neither the traditional transportation intermediary services matched, nor the online freight operation of car-free carriers, and only uses the online freight platform to record false business information such as transportation tracks and transportation contracts, and during the period from August 2019 to May 2020, the platform falsely issued a total of 4,727 special VAT invoices, with a total price of 455 million yuan. The court ruled that A network freight platform company was guilty of falsely issuing special VAT invoices and sentenced him to a fine of 500,000 yuan, and Chang Moumou, the actual controller, was guilty of falsely issuing special VAT invoices and sentenced to 13 years in prison.
(2) Two types of services of the online freight platform: matching and transportation
Whether it is the predecessor of the car-free carrier or the current network freight platform, as a link to integrate freight resources, it plays an important role in improving the efficiency of logistics and transportation, and the State Administration of Taxation and the Ministry of Communications have repeatedly issued documents to support the development of the platform. In practice, there are two types of services offered by online freight platforms:
The first is the actual contracting business. Specifically, in accordance with Article 2 of the Interim Measures for the Administration of Road Cargo Transport on Online Platforms (Jiao Yun Gui [2019] No. 12), the carrier signs a contract of carriage with the shipper, entrusts the actual carrier to complete the road cargo transportation, and assumes the responsibilities of the carrier, such as bearing the risk of damage or loss of the cargo. At the same time, it is necessary to record service information in accordance with regulations, and record transaction information such as driving tracks, online transaction diaries, payment settlement, etc. Under this business model, the online freight platform can issue a special VAT invoice with a tax rate of 9% to the shipper, and apply to the tax authority to issue an invoice for individual drivers for input deduction.
The second is the matchmaking business. Specifically, according to the notice of the State Administration of Taxation on carrying out the pilot work of issuing special VAT invoices on behalf of road freight transport enterprises on online platforms (Shui Zong Han [2019] No. 405), the online freight platform plays a role in matchmaking, providing a bridge between individual drivers and shippers, and the platform is responsible for contacting and communicating freight business and other matters.
The above two types of services are the "matchmaking" business and "carrier" business mentioned in the case. However, in practice, the online freight platform does not strictly follow the above provisions in its business development, but there are some "deformation" and "distortion", that is, "truthfully issuing on behalf of others" and "post-invoicing" and other businesses.
(3) The shipper's use of the online freight platform to truthfully issue invoices on behalf of the consignor is identified as false issuance by most case-handling authorities
Because the online freight platform can provide these two services, shippers can rely on the online freight platform to obtain special VAT invoices for input deduction, so as to reduce the tax cost of enterprises, and to a certain extent, alleviate the problem that individual drivers cannot provide compliant invoices in the past. It is precisely because of this that in practice, many consignment companies find that individual drivers cannot issue invoices after they have actually completed the transportation business with individual drivers, and then find an online freight platform to issue invoices on their behalf, but they are often identified as false opening by the tax authorities and driver authorities because of the fact that the documents are supplemented afterwards, the time of the driver's registration is later than the time of providing the travel track, and the indication of the return of funds. In the above-mentioned cases, such a situation may also exist, and the part of the opening may also be considered false by the judicial authorities.
In fact, prior to the promulgation of the judicial interpretations of the Supreme People's Court and the Supreme People's Court, we held that although Fa Fa [1996] No. 30 listed the act of "carrying out actual business activities but allowing others to issue special VAT invoices on their behalf" as one of the criminal acts of false issuance, the Supreme People's Court had already clarified through Fa Yan [2015] No. 58 that this provision did not conform to the current Criminal Law and would no longer continue to be applied as a defense. At the same time, in the defense, it was also argued that the act of issuing VAT invoices on behalf of the company was not an administrative violation, and that the crime of false issuance of special VAT invoices must have the consequences of subjective intent and objective tax loss.
However, the level of effectiveness of Fa Yan [2015] No. 58 is insufficient after all, and in practice, for some case-handling organs, the view that false opening is a criminal offense is deeply rooted, and this defense may not be recognized by all case-handling organs.
II. After the promulgation of the judicial interpretations of the Supreme People's Court and the Supreme People's Court, how to understand whether "truthfully opening on behalf of others" constitutes the crime of false opening?
(1) According to the literal interpretation of the two supreme interpretations, truthful opening seems to be a false opening
On March 15, 2024, the Supreme People's Court and the Supreme People's Court issued judicial interpretations on tax-related crimes, Article 10 of which stipulates the crime of false issuance of special VAT invoices, and simultaneously repealed Fa Fa [1996] No. 30. The first paragraph of Article 10 provides detailed provisions on the conduct of false opening crimes, and the second paragraph stipulates the reasons for the crime of false opening.
Among them, it is difficult to understand the provisions of Item 3 of the first paragraph of Article 10 that "for businesses that cannot be deducted in accordance with the law, special VAT invoices and other invoices used to fraudulently obtain export tax rebates and tax deductions shall be issued by the transaction entity". For a time, what is a business that cannot be deducted according to law has become a hot topic of discussion. In particular, there is a view that the provisions also include the act of truthful issuance on behalf of others in the scope of false issuance, on the grounds that it is impossible to obtain compliant invoices, and the issuance of invoices through a third party on behalf of others is also in line with the situation of issuing invoices through inflated transaction entities, so this provision denies the judicial view that truthful issuance on behalf of others does not constitute a crime in the past.
In addition, the second paragraph of Article 10 clarifies the exculpatory clause for the crime of false opening, but the provision only lists the acts of "inflating performance, financing, loans, etc.", so it is still controversial whether the paragraph is "equal to the inside" or "outside the class". There is also controversy as to whether truthfully opening on behalf of others is a circumstance of exculpation in the second paragraph.
(2) Teng Wei and four other judges issued a document making it clear: Whether a crime is constituted must be comprehensively considered subjective purpose and objective results
On April 18, 2024, four judges of the Supreme People's Court, Teng Wei, Dong Baojun, Yao Longbing, and Zhang Shufen, published an article entitled "The Two Supreme People's Courts<关于办理危害税收征管刑事案件适用法律若干问题的解释>", which elaborated on the background of the drafting of Article 10. The article points out that when soliciting opinions on the Interpretation, the relevant departments all agreed that a certain degree of restrictive interpretation should be carried out for the crime of false opening to prevent the expansion of the scope of the crackdown, but how to define the scope of the restriction is very controversial. Accordingly, article 10, paragraph 2, is defined by way of an exception.
The article first pointed out that "the core function of the special VAT invoice is to deduct the tax, and only by using the core function to make false deductions, that is, to defraud the tax, can it be recognized as the crime of false issuance of special VAT invoices." This viewpoint overturns the view of "perpetrators" in the past and is of positive significance for the unification of judicial practice.
Second, the article points out that the "exculpatory clause" in the second paragraph of Article 10 is not limited to the three acts of "inflating performance, financing, loans, etc.", and as long as "the purpose is not to defraud the tax and there is no tax loss caused by the deduction", it does not constitute the crime of falsely issuing special VAT invoices. This view is also consistent with the provisions of Fa Yan [2015] No. 58.
Third, the article points out that false opening can be summarized into "false opening of no goods", "false opening of goods", "false opening of fictitious transaction subjects" and false opening by tampering with electronic information of invoices. Among them, "false opening of goods" refers to the fact that although there is an actual transaction, the deductible tax amount on the invoice exceeds the actual tax deductible amount, including the false opening of the invoice obtained from a third party to offset the cost of purchasing goods at a price excluding tax. According to the explanation, the article believes that the false opening type must be a fraud against the state tax, the price excluding tax is paid, and the tax deducted exceeds the actual tax deductible. In other words, if the enterprise has paid the tax-included price, and the invoice obtained is consistent with the tax-included price paid, it is not a "false opening of goods".
(3) Combined with Fa Yan [2015] No. 58, truthful opening still does not constitute the crime of false opening
The above understanding and application are actually consistent with the interpretation of Fa Yan [2015] No. 58. According to the Reply of the <Research Office of the Supreme People's Court on How to Determine the Nature of Carrying out Business Activities in the Name of "Affiliation" with Relevant Companies and Allowing Relevant Companies to Falsely Issue Special VAT Invoices for > Themselves (Fa Yan [2015] No. 58), "if the actor subjectively does not have the intention of deducting taxes by fraud and objectively does not cause the loss of national value-added tax, it is not appropriate to punish the crime of falsely issuing special VAT invoices" Therefore, truthfully opening on behalf of the taxpayer is precisely the objective result that there is no intention to defraud the tax and does not cause the loss of value-added tax.
Combined with the explanations of the Supreme People's Court and the Supreme People's Court, truthfully opening on behalf of the Supreme People's Court does not have the purpose of defrauding tax credits, does not cause losses to state tax revenues, and does not constitute a crime. This can be used as a basis for defense for online freight platforms and shippers. In the above-mentioned case, if the online freight platform has a situation of truthfully opening on behalf of the company, it can adopt the strategy of appeal. The following author puts forward a brief idea on how to defend the online freight platform and the shipper.
3. Online freight platforms and shippers that have truthfully opened on behalf of others can defend in this way
(1) The act of truthfully opening on behalf of others is not an act of false opening
First of all, the online freight platform and the shipper issue invoices on behalf of the real transportation business, which does not belong to the false opening of no goods. The shipper asks the online freight platform to issue a special VAT invoice with input tax that is consistent with the actual business, the same amount, and the input tax is not over-opened, and it does not belong to the "false opening of goods".
Secondly, if an individual driver can legally apply to the tax authorities for issuing invoices on behalf of the consignor, but is unwilling to issue invoices on behalf of the consignor due to his unwillingness to pay individual income tax and other reasons, resulting in the consignor letting the online cargo platform issue invoices on behalf of the consignor, it is not a business that cannot be deducted according to law, nor does it meet the constitutive elements of Paragraph 1, Paragraph 3 of Article 10.
As for the catch-all item, the four judges also explained that it was made to prevent incomplete enumeration or the emergence of new types of false opening methods in the future, and it is obvious that truthful opening is a controversial matter that has existed for a long time and has been recognized and mastered by the judicial organs, and does not belong to the catch-all item.
Accordingly, if the act of truthful issuance is not an act of false issuance, the online freight platform and the consignor shall not constitute the crime of false issuance of special VAT invoices.
(2) The online platform issues the transport invoice and the shipper obtains the transport invoice, which subjectively does not have the purpose of defrauding the tax credit
In their articles, the four judges pointed out that the second paragraph of Article 10 is "not for the purpose of defrauding tax payments" is the essence, and the listed "inflated performance, financing, and loans" are the forms of expression, and the "etc." indicate that they are not limited to the three forms listed. Specifically, for the shipper, if it purchases transportation services from the individual judiciary and pays it the transportation fee including tax, it obtains a substantial right of deduction in accordance with the provisions of the Interim Regulations on Value Added Tax, and this right should not disappear in the form of invoices, so the purpose of the shipper to find the online freight platform to issue invoices on behalf of the shipper is precisely to exercise its right of deduction in accordance with the law, not the purpose of tax fraud. For the online freight platform, the purpose of issuing invoices for shippers is to help shippers realize the deduction rights they should enjoy in accordance with the law, and they do not have the purpose of tax fraud.
(3) If the online platform issues a transportation invoice and the shipper obtains the transportation invoice, the tax loss will not be caused by the deduction
According to the principle of VAT, VAT is a chain tax, as long as the service provider in the service circulation link pays VAT on time and in full, the recipient of the transportation service obtains the special VAT invoice issued by the service party to deduct the tax, which will not cause the loss of national tax. Even if the taxpayer is inconsistent with the actual taxpayer, but for the state, the actual VAT collected is consistent with the VAT that should be collected, and the national VAT is not less than a cent, then the shipper, as the party that receives the service, pays the input tax, deducts the tax according to law, and will not be defrauded of the national tax due to the deduction。
4. Summary: Strengthening the audit of business authenticity and healthy operation is the right way
In the specific business development, the online freight platform must adhere to the authenticity of the business. Whether it is normal business or "truthfully opened", its essence is based on the authenticity of business. If it is purely a false opening without business, it will inevitably constitute a false opening, and the criminal risk is extremely high. At the same time, in the process of operation, the platform still needs to try to avoid the behavior of supplementing documents and truthfully issuing on behalf of others, so as to avoid being involved in the crime of false opening from the source.
If the online freight platform has been identified by the judicial authorities as a false opening due to the act of truthfully opening on behalf of the individual, in addition to actively defending in the application of law, it is also necessary to comprehensively and in detail sort out the business materials at the factual level, and it is necessary for the shipper to provide information on the real business with the individual driver, such as capital flows, explanations, etc., to assert that the business is true, and to put forward evidence that it does not have the purpose of defrauding the state tax and does not cause the loss of the state tax.