Administrative judgment of the second instance of tax administration (taxation) between a company in Lijiang and a bureau of the Lijiang Taxation Bureau of the State Administration of Taxation and the Lijiang Taxation Bureau of the State Administration of Taxation
Subject matter: Tax administration (taxation)
Case No.: (2023) Yun 07 Xing Zhong No. 47
Published: 2024-03-21
Intermediate People's Court of Lijiang City, Yunnan Province
Administrative Judgments
(2023) Yun 07 Xingzhong No. 47
The appellant (plaintiff in the original trial) is Lijiang XX Automobile Maintenance Co., Ltd.
Residence: Gucheng District, Lijiang City.
Person in charge: Tan Mouchun.
Entrusted agent (specially authorized) Yang Yun, lawyer of Beijing Dacheng (Kunming) Law Firm.
The appellee (defendant in the original trial) is a bureau of the Lijiang Municipal Taxation Bureau of the State Administration of Taxation.
Residence: Gucheng District, Lijiang City, Yunnan Province.
The legal representative is Qu Moubin.
Authorized agent (specially authorized) Yang Mouyuan.
Entrusted agent (specially authorized) Liu Zhenfei, lawyer of Yunnan Lingyun (Lijiang) Law Firm.
The appellee (defendant in the original trial) is the Lijiang Municipal Taxation Bureau of the State Administration of Taxation.
Residence: Gucheng District, Lijiang City, Yunnan Province.
The legal representative is Dong Moutai.
The person in charge of the court appearance, Zhao Moudong, deputy director of the bureau.
Entrusted agent (specially authorized) Li Moushuang is an employee of the bureau.
Entrusted agent (specially authorized) Liu Zhenfei, lawyer of Yunnan Lingyun (Lijiang) Law Firm.
In the case of the appellant Lijiang XX Automobile Maintenance Co., Ltd. (hereinafter referred to as Company A) and the appellees Lijiang Municipal Taxation Bureau of the State Administration of Taxation (hereinafter referred to as the XX Bureau) and the Lijiang Municipal Taxation Bureau of the State Administration of Taxation (hereinafter referred to as the Taxation Bureau), the appellant appealed to this court against the (2023) Yun 0702 Xingchu No. 11 administrative judgment rendered by the Gucheng District People's Court. After the case was filed on December 25, 2023, this court formed a collegial panel in accordance with the law, and conducted a trial in open court on January 18, 2024, with Yang Yun, the entrusted agent of the appellant company A, Qu Moubin, the legal representative of the appellee's bureau, Yang Mouyuan and Liu Zhenfei, the person in charge of the appellee's tax bureau, Zhao Moudong, and the entrusted agents Li Moushuang and Liu Zhenfei attended the court to participate in the litigation. The case is now closed.
The plaintiff in the original trial, a company A, filed a lawsuit with the court of first instance: 1. Revoke the "Tax Treatment Decision of a Certain Bureau of the Lijiang Municipal Taxation Bureau of the State Administration of Taxation" (Lishui Yi Ji Ji [2023] No. 4) made by the Inspection Bureau; 2. Revoke the Administrative Reconsideration Decision of the Lijiang Taxation Bureau of the State Administration of Taxation (Lishui Fu Du Zi [2023] No. 1) issued by the State Taxation Bureau; 3. The litigation costs of this case shall be borne by the two defendants.
Facts ascertained in the first-instance judgment: On December 31, 2021, the Inspection Bureau of the Yunnan Provincial Taxation Bureau of the State Administration of Taxation handed over the "Letter on the Reporting Matters of Lijiang XX Automobile Maintenance Co., Ltd." to the Lijiang Tax Inspection Bureau of the State Administration of Taxation. On January 10, 2022, the Lijiang Tax Inspection Bureau of the State Administration of Taxation decided to file the case, and on the same day, handed over the case to the inspection bureau of the defendant in this case, requesting the inspection bureau to investigate and deal with it as soon as possible. In the tax inspection case source approval form, the type of case source information is recorded as the source of the reported case and the source of the case handed over. The content of the source information of the case states: "Today, I received a letter from the Inspection Bureau of the Yunnan Provincial Taxation Bureau to handle the letter Yun Shui Ju Jiao [2021] No. 205, the whistleblower said that Lijiang XX Automobile Maintenance Co., Ltd. 1. Evasion of enterprise income tax and value-added tax: After part of the company's operating income was collected in a private account, no maintenance invoice was issued, resulting in a decrease in taxable income, less profit of the company, and evasion of enterprise income tax and value-added tax; 2. Violation of the "Tax Collection and Administration Law" Illegal establishment of internal accounts: The company set up internal accounts mainly to account for the income of uninvoiced and the reasonable expenses for obtaining invoices. After analysis and judgment, it is recommended to file a case for inspection of the above reported matters involved in the company from January 1, 2019 to December 31, 2021. "On January 12, 2022, the defendant's inspection bureau issued a tax inspection notice to the plaintiff and began an investigation into the case. The inspectors inspected the plaintiff's tax related and invoice usage from January 1, 2019 to December 31, 2021 at the plaintiff's production and business premises by reading and copying them. During the inspection, the inspection bureau found that the plaintiff had committed the following tax violations: first, the company set up two sets of accounts, the internal account and the external account, and when the sales recorded in the external account were less than the sales recorded in the internal account, the tax declaration was made with the external account with the smaller sales, concealing the income and making false declarations, resulting in underpayment of taxes, which was tax evasion; Second, the company purchased tires from the Shunxin Tire Business Department in Gucheng District, Lijiang City, but the invoice was issued by 12 Kunming suppliers who supplied the Shunxin Tire Business Department in Gucheng District, Lijiang City, which belonged to the invoice obtained from a third party, and the seller of the goods recorded in the invoice was wrong, and the company knew that the invoice was inconsistent with the seller, and the actual tire purchase price paid to the Shunxin Tire Business Department in Gucheng District, Lijiang City was less than the amount of the invoice, and still used the invoice obtained from the third party to deduct the input tax and the enterprise income tax before deduction, resulting in underpayment of tax. tax offences that are tax evasion; Thirdly, the company did not take the documents with the nature of the contract as taxable vouchers, and did not understand the specific tax items of stamp duty, resulting in the underpayment of stamp duty of 4046.35 yuan, in view of the underpayment of the behavior is mainly due to the financial personnel do not understand the tax policy, there is no subjective intention, characterized as the illegal act of underpaying tax; Fourth, after the company pays wages and labor remuneration, the individual income tax of 15746.18 yuan should be deducted, which is characterized as the individual income tax that should be deducted and not deducted. On July 18, 2022, the defendant's Inspection Bureau issued the Tax Treatment Decision [2022] No. 20 of the Li Shui Yi Ji Office, and the handling opinions were: 1. Order the underpaid value-added tax of 542,093.32 yuan, urban maintenance and construction tax of 37,946.53 yuan, and enterprise income tax of 29,351.43 yuan within a time limit. The stamp duty is 4,046.35 yuan, totaling 613,437.63 yuan, and a company B has prepaid the underpaid tax of 613,432.68 yuan during the inspection period, and ordered to pay the enterprise income tax of 4.95 yuan within a time limit, and from the date of the overdue tax payment to the date of tax release, a late fee of 5/10,000 will be charged on a daily basis for the underpaid tax of 613,437.63 yuan;2, ordered to pay an additional 15,796.28 yuan for education fees within a time limit, and a company B had already prepaid an additional 15,796.28 yuan for education fees during the inspection period, and it will not be processed; 3. It is ordered to pay the local education surcharge of 10,530.86 yuan within a time limit, and a company B has prepaid an additional 10,530.86 yuan of education fees during the inspection period, which will not be processed;4. Company C has withheld 15,746.18 yuan of individual income tax, and company B has prepaid 15,746.18 yuan of individual income tax during the inspection period, which will not be processed;5, A certain company paid more VAT tax of 16013.42 yuan, overpaid 1915.88 yuan of additional value-added tax, and suggested to apply for tax refund to the competent tax authorities on its own;6, the company prepaid 2344.8 yuan more value-added tax in the prepayment of tax, prepaid more education surcharge and local education surcharge 777.55 yuan, and paid more personal income tax of 1005,60 yuan, and a company E applied for tax refund to the competent tax authorities on its own. On October 26, 2022, the defendant tax bureau made a reconsideration decision, holding that the defendant's inspection bureau mentioned the issue of internal and external accounts in the trial report, audit report, working papers and reconsideration reply, but there was no complete evidence of internal and external account books and related vouchers in its evidentiary materials, and it could not be determined that there was subjective intent to evade tax from the perspective of evidence. Article 69 of the Law of the People's Republic of China on the Administration of Tax Collection and Collection ordered the plaintiff to deduct the individual income tax of RMB 15,746.18, which is an error in the basis of application. Based on the above reasons, the defendant tax bureau revoked the tax treatment decision issued by the defendant inspection bureau [2022] No. 20, and ordered the defendant inspection bureau to make a new specific administrative act within the statutory time limit. On November 3, 2022, the defendant's inspection bureau issued a tax inspection notice to a company A to conduct a supplementary investigation into the plaintiff's establishment of internal and external accounts. The inspectors inspected the plaintiff's tax-related taxes and the use of invoices during the period from January 1, 2019 to December 31, 2021 at the production and business premises of a company A and A by reading and copying them. On January 9, 2023, the defendant's inspection bureau made a decision, finding that the plaintiff had the following tax violations: a certain Geng company underpaid VAT of 515,220.86 yuan, urban maintenance and construction tax of 36,065.46 yuan, and enterprise income tax of 13,468.78 yuan by concealing income, using invoices obtained from third parties to offset input tax, inflating costs, etc., which is tax evasion; As a result, the stamp duty was underpaid by 4,046.35 yuan, due to the underpayment of waste sales revenue of 10,763.06 yuan, the underrecording of rental vehicle income of 169,911.51 yuan, and the input tax transferred out of collective welfare of 3,324.14 yuan, the underpayment of value-added tax of 26,872.46 yuan and urban construction and maintenance tax of 1,881.07 yuan, due to the underrecording of waste sales revenue of 8,931.20 yuan in 2019 and 2020, and the unadjusted collective welfare of employees of 66,348.00 yuan. The three expenses were 296,742.94 yuan, resulting in an underpayment of enterprise income tax of 15,882.65 yuan, in view of the fact that the underpayment was caused by the financial personnel's unfamiliarity with the tax policy, which was characterized as a tax violation of underpayment;3, after the company paid wages and labor remuneration, the individual income tax should be deducted and not withheld 15,746.18 yuan, which was characterized as the individual income tax that should be deducted and not deducted. The handling opinions are: a Xin company paid the underpaid value-added tax of 542,093.32 yuan, urban maintenance and construction tax of 37,946.53 yuan, enterprise income tax of 29,351.43 yuan, and stamp duty of 4,046.35 yuan, totaling 613,437.63 yuan, and from the date of overdue tax payment to the date of tax payment, the company will be charged a late fee of 5/10,000 of the overdue tax on a daily basis. Company B has prepaid the underpaid tax of 613,432.68 yuan during the inspection period, paid the unpaid enterprise income tax of 4.95 yuan on August 15, 2022, and has paid a late fee of 222,679.40 yuan as of August 29, 2022, which will not be processed;2. Company B should be ordered to pay the education fee surcharge of 15,796.28 yuan within a time limit, and company B has taken the initiative to prepay the education fee surcharge of 15,796.28 yuan during the inspection period, and will not be processed;3. It should be ordered to pay the local education surcharge of 10,530.86 yuan within a time limit, and company B has taken the initiative to prepay the local education surcharge of 10,530.86 yuan during the inspection periodand no longer processed; A company has withheld 15,746.18 yuan of individual income tax that should be withheld and not withheld, and company B has prepaid individual income tax of 15,746.18 yuan during the inspection period, and it will not be processed; a company has overpaid a total of 16,013.42 yuan of value-added tax and overpaid additional value-added tax of 1,915.88 yuan, and company B has gone to the competent tax authority to refund (credit) the above-mentioned overpaid taxes and fees, and will not be processed;6, the company has paid 23,418 yuan of overpaid value-added tax in the prepayment of tax, The additional prepayment of education fees and local education surcharges is 777.55 yuan, and the overpayment of individual income tax is 1005.60 yuan. The plaintiff filed an administrative reconsideration with the defendant tax bureau against the decision, and the defendant tax bureau made a reconsideration decision on May 4, 2023, upholding the decision made by the defendant's inspection bureau.
The court of first instance held that the focus of the dispute in this case was as follows: 1. Does the failure of the defendant's inspection bureau to be present when the plaintiff was collecting evidence from a certain company A and A constitute a procedural violation? 2. Does the plaintiff have the subjective intention to evade taxes? The court of first instance held that, in accordance with the relevant laws and regulations, the defendant inspection bureau had the statutory authority to organize the investigation and supervision of tax violation cases, and the defendant tax bureau had the statutory authority to accept the counterparty's application for reconsideration against the administrative act of the inspection bureau and make an administrative reconsideration decision after examination in accordance with the law, and the plaintiff had no objection to the qualification of the two defendants, and the two defendants had the legal qualifications. The two defendants carried out the decision on the handling of the case and the reconsideration decision in accordance with laws and regulations, so that they were notified in advance and served afterwards, ensuring the parties' rights to make statements and defenses, reconsideration, and litigation, and the administrative procedures were lawful. In response to the first point of dispute, the plaintiff argued that the plaintiff was not present when the defendant inspection bureau collected evidence from a certain company A and A, and that there was an error in the object of the collection, and that the part of the account books and voucher statements belonged to the plaintiff and should be collected from the plaintiff rather than from a third party outside the case. According to Article 57 of the Law of the People's Republic of China on the Administration of Tax Collection and Collection, "the tax authorities shall have the right to investigate with the relevant units and individuals the circumstances of taxpayers, withholding agents and other parties related to the payment of taxes or withholding and remitting, collecting and remitting taxes, and the relevant units and individuals shall have the obligation to truthfully provide relevant information and supporting materials to the tax authorities", and Article 58 stipulates that "when the tax authorities investigate cases of tax violations, they may record, record, record, and record the circumstances and materials related to the case. video, photographing and reproduction", the inspectors of the defendant's inspection bureau conducted an investigation and evidence collection and data copying of the plaintiff's account book and data storage unit, a company A and A, in accordance with the relevant regulations, and the investigation and evidence collection was a way for the defendant to take an administrative act, and the plaintiff's presence was not required, and the plaintiff's view was not established, and the court of first instance did not accept it. In response to the second point of dispute, the plaintiff admitted the objective fact that there was underpayment of tax, but argued that there was no subjective intention to evade tax. According to Article 63 of the Law of the People's Republic of China on the Administration of Tax Collection, "a taxpayer who forges, alters, conceals, or destroys account books or accounting vouchers without authorization, or over-lists expenses or omits or under-lists income in the account books, or refuses to declare or makes false tax declarations after being notified by the tax authorities, and fails to pay or underpays the tax payable, shall be guilty of tax evasion." If a taxpayer evades taxes, the tax authorities shall recover the taxes not paid or underpaid, and impose a fine of not less than 50% but not more than five times the amount of taxes not paid or underpaid; where a crime is constituted, criminal responsibility is pursued in accordance with law. "The court found that the plaintiff set up two sets of accounts between January 1, 2019 and December 31, 2021, and declared taxes with an external account with low sales, which had the subjective intention of tax evasion, and the two defendants clearly determined this fact. According to Article 2 of the Notice of the State Administration of Taxation on Issues Concerning the Handling of Taxpayers Obtaining Falsely Issued VAT Invoices (GSF [1997] No. 134), "In the transaction of goods, if the purchaser obtains a special invoice issued by a third party from the seller, or obtains a special invoice from a region other than the place of sale, and declares the mortgage tax or applies for export tax rebate to the tax authorities, it shall be treated as tax evasion or fraudulent export tax rebate, and the tax shall be recovered in accordance with the Law of the People's Republic of China on the Administration of Tax Collection and Collection and relevant provisions. A fine of not more than five times the amount of tax evasion or fraud shall be imposed. "The court found that during the period from January 1, 2019 to December 31, 2021, the plaintiff purchased tires from the Shunxin Business Department, but the invoices obtained were issued by 12 Kunming suppliers who supplied the Shunxin Business Department, and the actual tire purchase price paid by the plaintiff to the Shunxin Business Department was less than the amount contained in the invoices, but the invoices obtained from the 12 Kunming suppliers were still used to deduct the VAT input and deduct the enterprise income tax, and the plaintiff's behavior was in line with the circumstances stipulated in the normative documents of the above-mentioned departments. There is a subjective intent to evade taxes. To sum up, the two defendants made the Tax Treatment Decision [2023] No. 4 of the Li Shui Yi Ji Ji The case acceptance fee of 50 yuan shall be borne by the plaintiff Lijiang XX Automobile Maintenance Co., Ltd.
The appellant, Company A, appealed against the first-instance judgment, stating that: 1. The Administrative Judgment of Yun 07** Xingchu No. 11 of the People's Court of Gucheng District, Lijiang City was revoked, and the judgment was changed to support all the appellant's first-instance litigation claims; 2. The Appellee shall bear the litigation costs of the first and second instance. Facts and reasons: 1. The Appellee's XX Bureau made a decision on tax treatment, and the Appellee's Taxation Bureau made an administrative act of administrative reconsideration, finding that the Appellant had the subjective intention to evade taxes, which constituted an illegal act of tax evasion. The first-instance judgment erred in determining whether the appellant had committed an illegal act of tax evasion. 1. In this case, on March 1, 2022, the Appellee's XX Bureau issued a Notice of Correction within a Time Limit to the Appellant "Lishui Yiji Limit Reform [2022] No. 1", and the Appellant entrusted Lijiang XX Management Consulting Co., Ltd. to reorganize and set up the account books. According to the document and the Notice of Tax Matters of "Li Shui Yi Ji Tong [2022] No. 43", the Appellee's order to restrict the correction and reorganize the account books was based on the fact that "there was an error in the collection of the main business income, and a large number of current accounts were also included in the account...... Such an erroneous aggregation led to an inflated increase in revenue and costs, and the data deviation of the main business income accounts occurred, so it could not be directly adopted", and the solution was that after the issuance of the notice of restriction of correction, the appellant entrusted Lijiang XX Management Consulting Co., Ltd. to remake the set of accounts, and the inspectors did not find any errors in bookkeeping, so the inspectors used the account book data produced by a certain Jiading company. The audit document clearly shows that the reason why a third party was entrusted to reset the account books was that the financial accounts could not be directly adopted due to serious errors caused by the aggregation of accounting data, and that the appellant's tax evasion was caused by the error of the account book account data or the resulting underdeclaration of taxes. 2. The main basis for the tax treatment decision of the XX bureau to determine that the appellant had the subjective intention to evade tax was that the appellant set up two sets of accounts and underdeclared the tax. The evidence supporting its determination was mainly the account book information obtained from Lijiang XX Management Consulting Co., Ltd. In this regard, the Appellant argued that it could not be determined whether the information in the account books obtained belonged to the information handed over by the Appellant to Company A, and the source and attribution of the information in the account books were doubtful without the Appellant confirming the information on the spot. 3. Even if, as held in the first-instance judgment, the appellant purchased tires from the Shunxin Business Department, but the invoices obtained were issued by 12 Kunming suppliers supplied by the Shunxin Business Department, and the actual purchase price of the tires paid by the Appellant to the Shunxin Business Department was less than the amount contained in the invoices, the appellant still used the invoices obtained to deduct the input tax and deduct the enterprise income tax before tax, which had the subjective intention of tax evasion. The input tax deducted by the 12 invoices and the amount of enterprise income tax payable affected by the invoice are also far less than the amount of tax to be checked and paid by the tax treatment decision of a certain bureau. This shows that, in addition to the 12 invoices, when the bureau made the tax treatment decision, there was still insufficient evidence to prove the appellant's subjective intent for the other underpaid taxes. 2. The administrative act of XX Bureau seriously violated the legal procedures, and the evidence obtained by the Bureau in the illegal procedures cannot be used as the factual basis for determining that the appellant has violated the tax law. The bureau held that the appellant had set up two sets of internal and external accounts, and that the main business income confirmed by the two sets of accounts was inconsistent, and that the tax declaration was made with the data of the set of accounts with a small amount in the account, which constituted tax evasion. Therefore, the necessary prerequisite for determining whether a taxpayer has set up two sets of accounts to conceal income and underdeclare tax is to verify that the taxpayer does have two sets of account books, and the declaration data is inconsistent with the actual account book data. The evidence found that the appellant had two sets of accounts was the relevant materials obtained from a certain company in Lijiang, and the evidence of the relevant account books copied by the appellant was signed by the staff of a company B in Lijiang. In the collection of this evidence, the Appellant believed that the object of the adjustment was wrong, that it had obtained a notice of collection of account books without approval in accordance with the law, and that it had not notified the Appellant to appear at the scene to sign and confirm the copied account books in accordance with the law, and that the account books copied by the Appellant could not be proved to be the accounting books of the Appellant, and that the entire account adjustment procedure violated the Provisions on Procedures for Handling Tax Inspection Cases and could not be used as evidence in the case. 3. In this case, the tax treatment decision made by a certain bureau was a new administrative act made at the request of the reconsideration organ after the first administrative act was revoked, but the specific administrative act made by a certain bureau based on the same facts and reasons was basically the same as the original specific administrative act that was revoked, which violated the provisions of the law. Fourth, the application of law in the "Tax Treatment Decision" made by a certain bureau is wrong. In the Tax Treatment Decision, the bureau determined that the appellant should deduct the undeducted individual income tax of 15,746.18 yuan after paying wages and remuneration for labor services, and that the appellant should be ordered to make up the individual income tax in accordance with the provisions of "Guo Shui Fa [2003] No. 147". However, since the appellant had already prepaid the individual income tax, it was no longer processed. According to Article 69 of the Law of the People's Republic of China on the Administration of Tax Collection, if a withholding agent should withhold or collect but fail to collect the tax, the tax authorities shall recover the tax from the taxpayer and impose a fine of not less than 50% but not more than three times the amount of the tax that should be withheld but not withheld or receivable. "Guo Shui Fa [2003] No. 47" document is a normative document issued by the State Administration of Taxation, and its provisions are contrary to the superior law, according to Article 88 of the Legislation Law, the effect of the law is higher than that of administrative regulations, local regulations and rules. Therefore, in the event of a conflict between the provisions of Guo Shui Fa [2003] No. 47 and the Law on the Administration of Tax Collection, the provisions of the Tax Collection and Administration Law shall apply, and the tax authorities shall recover the part of the tax from the taxpayer instead of ordering the withholding agent to withhold it within a time limit. Before the appellant's first tax treatment decision was made, the prepayment of tax was the prepayment of underpaid value-added tax and additional and enterprise income tax, and the appellant never expressed his willingness to prepay the tax in advance for the individual income tax payer. In summary, the court of second instance is requested to revoke the first-instance judgment in accordance with law, change the judgment in accordance with law, and support the appellant's appeal request.
The appellee, XX Bureau, replied that the (2023) Yun 0702 Xingchu No. 11 Administrative Judgment rendered by the original trial court found that the facts were clear and the law was correctly applied, and requested the court of second instance to uphold the original judgment and reject the respondent's appeal request. 1. The "Tax Treatment Decision" (Li Shui Yi Ji Ji [2023] No. 4) issued by a certain bureau determined that the facts are clear, the evidence is sufficient, the application basis is correct, the procedures are legal, and the content is appropriate. After receiving the letter of assignment from the Inspection Bureau of the Yunnan Provincial Taxation Bureau and the relevant clues of the tax violations of a certain company, a certain bureau filed a case on January 10, 2022 in accordance with the law after the analysis and judgment of the case selection department and the approval of the director of the inspection bureau, and then inspected the tax evasion involved in the case through legal procedures such as inspection, trial, and collective deliberation. In the process, the inspection bureau clearly informed a company A of the relevant rights and obligations, and carefully listened to the opinions of all parties, issued the relevant "tax inspection notice" and "tax matters notice", and formed the relevant "tax inspection report" and "tax inspection trial report". The law enforcement procedures are in accordance with the Law on the Administration of Tax Collection and the implementation rules, the Provisions on the Procedures for Handling Tax Inspection Cases (Decree No. 52 of the State Administration of Taxation), the Regulations on Tax Inspection Work and other relevant laws. A certain bureau ascertained: (1) A company had tax evasion. (2) Company A has underpaid taxes. (3) Company A has individual income tax that should be deducted but not deducted. Combined with the above facts, in accordance with Article 32 of the Law of the People's Republic of China on the Administration of Tax Collection, Article 75 of the Detailed Rules for the Implementation of the Law of the People's Republic of China on the Administration of Tax Collection, Article 3 of the Interim Provisions on the Collection of Education Fees (Order No. 448 of the State Council in 2005), the Notice of the Yunnan Provincial Local Taxation Bureau of the Yunnan Provincial Department of Finance on Adjusting the Additional Collection Policy of Local Education Fees (Yun Cai Zong Zi [2011] No. 46), and the Notice of the State Administration of Taxation on the Implementation of the Article 2, paragraph 3 of the Law of the People's Republic of China on the Administration of Tax Collection and its Implementation Rules (Guo Shui Fa [2003] No. 47) and other relevant provisions, on January 9, 2023, and on January 11, 2023, a No. ** "Tax Treatment Decision" was made to a company A and served on January 11, 2023, requiring it to pay the tax within a time limit. The penalty decision requires him to correct tax evasion and impose fines on tax evasion and the part of individual income tax that should be deducted. To sum up, the Tax Treatment Decision No. 1 issued by the respondent's bureau found that the facts were clear, the law was correctly applied, and the content was appropriate, and there was no impropriety. 2. Company A's appeal request has no factual or legal basis. (1) There is no factual and legal basis for Company A to put forward that "according to the audit documents, the reason for entrusting a third party to reset the account books is that the data deviation of the financial accounts is due to the wrong collection of accounting data, which cannot be directly adopted", and "it is not that the appellant's account book account data is wrong due to tax evasion or thus leads to the underdeclaration of taxes". (2) The procedures for collecting evidence from a certain bureau in a certain company A and B are lawful, and the evidence can be used as a factual basis for determining that a certain company A has violated the tax law. (3) The specific administrative act involved in the case made by a certain bureau is not "based on the same facts and reasons" as the original specific administrative act. (4) The application of the law by the XX Bureau is correct, and there is no conflict of law. In summary, the court of first instance ruled that the application of laws and regulations was correct, and requested the people's court to uphold the original judgment and reject the appellant's appeal request in accordance with law.
The appellee, the tax bureau, replied that the (2023) Yun 0702 Xingchu No. 11 Administrative Judgment rendered by the court of first instance found that the facts were clear and the law was correctly applied, and requested the court of second instance to uphold the original judgment and reject the respondent's appeal request. 1. The Lijiang Municipal Taxation Bureau has made the Administrative Reconsideration Decision (Lishui Fu Du Zi [2023] No. 1) to find that the facts are clear and the law is correctly applied, and requests the court of second instance to uphold the original judgment and reject the respondent's appeal request. 2. Company A's appeal request has no factual or legal basis. (1) There is no factual and legal basis for Company A to put forward that "according to the audit documents, the reason for entrusting a third party to reset the account books is that the data deviation of the financial accounts is due to the wrong collection of accounting data, which cannot be directly adopted", and "it is not that the appellant's account book account data is wrong due to tax evasion or thus leads to the underdeclaration of taxes". (2) The procedures for collecting evidence from a certain bureau in a certain company A and B are lawful, and the evidence can be used as a factual basis for determining that a certain company A has violated the tax law. (3) The specific administrative act involved in the case made by a certain bureau is not "based on the same facts and reasons" as the original specific administrative act. (4) The application of the law by the XX Bureau is correct, and there is no conflict of law. In summary, the court of first instance ruled that the application of laws and regulations was correct, and requested the people's court to uphold the original judgment and reject the appellant's appeal request in accordance with law.
All the evidentiary materials submitted by the parties to the court of first instance have been transferred to this court for review along with the case, and the court of first instance has certified them correctly, and this court has confirmed them.
In the second instance, none of the parties submitted new evidence to this court.
The facts ascertained by this court through trial are consistent with the facts ascertained in the first-instance judgment, and this court affirms them.
After review, the trial procedures of the court of first instance were lawful, and this court affirmed it.
This court believes that, in accordance with Article 6 of the Administrative Litigation Law of the People's Republic of China, which stipulates that "the people's court hears an administrative case and examines the legality of the administrative act", this case is a review of the legality of the Appellee's Li Shui Yi Ji Ji Ji Chu [2023] No. 4 Tax Treatment Decision and the Appellee Tax Bureau's Li Shui Fu Du Zi [2023] No. 1 Administrative Reconsideration Decision. After the trial, it was ascertained that neither the appellant nor the appellee had any objection to the administrative law enforcement entity and the trial procedures of the court of first instance. In this case, the appellee, a certain bureau, issued the "Tax Treatment Decision" [2023] No. 4 of the Li Shui Yi Ji Office, which determined that the appellant company A had the following tax violations: a certain Geng company underpaid VAT of 515,220.86 yuan and urban maintenance and construction tax of 36,065.46 yuan by concealing income, using invoices obtained from third parties to overdeduct input tax and inflating costs. Enterprise income tax of 13,468.78 yuan, which is tax evasion;2. Failure to use the documents with the nature of a contract as taxable vouchers, resulting in an underpayment of stamp duty of 4,046.35 yuan, due to the underpayment of waste sales income of 10,763.06 yuan, the underrecording of rental vehicle income of 169,911.51 yuan, and the input tax transferred out for collective welfare of 3,324.14 yuan, the underpayment of value-added tax of 26,872.46 yuan and the urban construction and maintenance tax of 1,881.07 yuan, due to the fact that in 2019, In 2020, the sales revenue of waste products was 8931.20 yuan, the collective welfare of employees was 66348.00 yuan, and the three expenses were 296742.94 yuan, resulting in an underpayment of enterprise income tax of 15882.65 yuan. The appellant, Company A, had no objection to the above findings of fact 2 and 3 and the amount of underpayment of tax in item 1. The focus of the dispute in this case is: 1. Is it correct for the Appellee XX Bureau to make one factual determination and characterize it as tax evasion? 2. Did the appellee's bureau violate the provisions of the law in the administrative law enforcement procedures, such as the wrong object of account transfer, the failure to approve the notice of obtaining account books in accordance with law, and the fact that the copied account books were not signed by the appellant on the spot? 3. Whether the appellee's two tax treatment decisions are the same or basically the same administrative acts based on the same facts and reasons. According to Article 57 of the Law of the People's Republic of China on the Administration of Tax Collection and Collection, "when the tax authorities conduct tax inspections in accordance with the law, they have the right to investigate with the relevant units and individuals the circumstances of taxpayers, withholding agents and other parties related to the payment of taxes or withholding and remitting, collecting and remitting taxes, and the relevant units and individuals have the obligation to truthfully provide relevant materials and supporting materials to the tax authorities" and Article 58 "When the tax authorities investigate cases of tax violations, they may record, record, videotap, photograph and reproduce the circumstances and materials related to the case." In the course of investigating the case, the Appellee's Bureau obtained from Company A the account books and photocopied materials of the Appellant Company A, which were kept by it, all of which complied with the provisions of the above-mentioned relevant laws and regulations. The appellant, Company A, set up two sets of accounts from January 1, 2019 to December 31, 2021, and declared taxes with an external account with low sales, and purchased tires from the Shunxin Business Department, and obtained invoices for the suppliers of the Shunxin Business Department, rather than the Shunxin Business Department. According to Article 63 of the Law of the People's Republic of China on the Administration of Tax Collection, "a taxpayer who forges, alters, conceals, or destroys account books or accounting vouchers without authorization, or lists more expenses or omits or understates income in the account books, or refuses to declare or makes false tax declarations after being notified by the tax authorities, and fails to pay or underpays the tax payable, is tax evasion" and the Notice of the State Administration of Taxation on Issues Concerning the Handling of Taxpayers Obtaining Falsely Issued VAT Invoices (GSF [1997]) Article 2 of No. 134) stipulates that "in the transaction of goods, if the purchaser obtains a special invoice issued by a third party from the seller, or obtains a special invoice from a region other than the place of sale, and declares the mortgage tax or applies for export tax rebate to the tax authorities, it shall be treated as tax evasion or fraudulent export tax rebate", and the appellee's determination that tax evasion is clear and the law is correctly applied; The tax treatment decision [2022] No. 20 made by the appellee's XX bureau was revoked by the appellee Lijiang Municipal Taxation Bureau due to insufficient evidence and unclear facts, and then the appellee XX bureau re-investigated and collected evidence and made a new tax treatment decision involved in the case, which is not basically the same situation as the original administrative act revoked based on the same facts and reasons, and does not violate the law. In addition, the Appellee's Tax Bureau's decision on administrative reconsideration was correct. The appellant, Company A, appealed, and put forward the appeal opinions that "the facts were unclear and the evidence was insufficient, the administrative acts seriously violated legal procedures, and the two administrative acts made by the Appellee Company A were based on the same facts and reasons, violated the provisions of the law, and the decision to handle the case was wrongly applied", which this court did not accept.
In summary, the facts ascertained in the first-instance judgment are clear, the applicable laws and regulations are correct, and the trial procedures are lawful. In accordance with the provisions of Article 89, Paragraph 1 (1) of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The second-instance case acceptance fee of 50 yuan shall be borne by the appellant, Lijiang XX Automobile Maintenance Co., Ltd.
This judgment is final.
Presiding Judge: Yang Shaoshan
Judge Hu Qiangsheng
Judge: Gao Jinghong
January 29, 2024
Clerk and Huimei
Source: TaxJet