The article argues that there are differences in the principles for determining the crime of tax evasion and tax evasion. For the determination of the crime of tax evasion, it is necessary for the judicial authorities to collect and fix evidence that the suspect has subjective intent to "not pay or underpay taxes". According to the requirements of the Administrative Penalty Law and other laws, it is not appropriate for the tax authorities to collect evidence of the subjective fault of the fixed administrative counterpart in the determination of illegal tax evasion.
Recently, the author has combed through typical tax-related judicial cases that have occurred in recent years, and found that there are still points worth discussing in the determination of tax evasion in practice, such as whether to prove the subjective intent of the administrative counterpart. In the following, the author analyzes the relevant issues of law application based on case studies.
A tax case that has been heard by multiple courts
The circumstances of this case are as follows: the Inspection Bureau of the former Local Taxation Bureau of H City (hereinafter referred to as the Inspection Bureau) determined that Company G had two problems: first, nearly 48% of the pre-receivables received from the sale of houses between January and October 2013 failed to declare and pay business tax and surcharges in accordance with the regulations; Second, in May 2011, the land use right of a plot of land in a town was obtained, but the urban land use tax from June 2011 to 2012 was not declared and paid in accordance with the regulations.
In accordance with the first paragraph of Article 63 of the Tax Collection and Administration Law and the original Interim Regulations on Business Tax and the Interim Regulations on Urban Land Use Tax, the Inspection Bureau determined that Company G's failure to declare and pay business tax and urban land use tax in accordance with the provisions constituted tax evasion, and made a tax treatment decision and a tax administrative penalty decision, requiring it to pay back the business tax, urban maintenance and construction tax, urban land use tax, etc., as well as late fees, and imposed a fine.
Company G did not believe that it had the intention to underpay the tax and should not be found to have evaded the tax. After handling the tax payment guarantee in accordance with the regulations, Company G applied to the H Municipal People's Government for administrative reconsideration. The result of the reconsideration is to uphold the original decision.
Dissatisfied, Company G filed a lawsuit with the People's Court of a district in H City, requesting the revocation of the relevant tax treatment decision and administrative reconsideration decision, but the court did not support it. Company G appealed, and the court of second instance upheld the original judgment.
Company G applied to the High People's Court of Province Z for a retrial. The High People's Court of Province Z held that the tax authorities shall investigate and determine the subjective intention of the parties in failing to pay or underpaying the tax payable in the determination and handling of illegal tax evasion, and bear the burden of proof in the administrative litigation procedure. Specifically, in this case, the evidence provided by the inspection bureau could only prove that Company G had failed to declare and pay the relevant taxes in full and on time as required, but failed to prove that the purpose of Company G's actions was not to pay or underpay taxes. In the case of failing to provide sufficient evidence to prove that Company G had the intention to evade the taxes involved in the case, the Inspection Bureau applied the provisions of Article 63, Paragraph 1 of the Tax Administration Law to make a decision on the tax treatment of the defendant, and determined that Company G's failure to declare and pay the relevant taxes in full and on time as required was tax evasion and was dealt with, and the basis was insufficient, and it should be revoked in accordance with the law.
Whether the relevant acts of the enterprise constitute tax evasion
Obviously, whether Company G's failure to declare and pay business tax and additional and urban land use tax in accordance with the regulations constituted tax evasion was the focus of the dispute, and the key points were whether Company G's underpayment of tax was subjectively intentional, and whether the tax authorities should collect and fix evidence to prove that Company G had subjective intention.
In this regard, different courts have made different judgments. While this has caused people to think about the relevant issues, it has also caused confusion to some tax law enforcement officers. So, whether the relevant acts of Company G constitute tax evasion?
In the author's opinion, to clarify this issue, it is necessary to decompose Company G's failure to declare and pay business tax in accordance with the regulations into two acts: "failure to declare in accordance with the regulations" and "failure to pay in accordance with the regulations" for legal analysis.
Articles 62 and 63 of the Tax Administration Law provide clear penalties for "failure to declare in accordance with regulations".
Article 62 stipulates that if a taxpayer fails to file a tax return and submit tax payment materials within the prescribed time limit, or if a withholding agent fails to submit to the tax authorities the tax withholding and remitting, collection and remittance tax report and relevant materials within the prescribed time limit, the tax authorities shall order the taxpayer to make corrections within a time limit and may impose a fine of not more than RMB 2,000; where the circumstances are serious, a fine of between 2,000 and 10,000 RMB may be given. It can be seen that this article mainly targets the taxpayer's failure to file tax returns and submit tax information within the prescribed time limit, and does not involve the fact of underpayment of taxes. For such acts, the in-charge taxation authorities shall order them to make corrections within a time limit.
Paragraph 1 of Article 63 stipulates that 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 file 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.
It can be seen that in the case of refusal to declare, if it results in "non-payment or underpayment of tax payable", it may constitute tax evasion. If it does not result in "non-payment or underpayment of tax payable", it cannot be recognized as tax evasion. An important condition for tax evasion in the case of refusal to declare is the result of "non-payment or underpayment of tax payable".
How to determine whether the refusal to file a declaration results in the result of "non-payment or underpayment of tax payable"? The author believes that measures can be taken in accordance with Article 35 of the Tax Administration Law. This article clarifies the circumstances under which the tax authorities have the right to verify the amount of tax payable by taxpayers, including the situation of "failing to file tax returns within the prescribed time limit when tax liabilities arise, and failing to file tax returns within the time limit after being ordered by the tax authorities". The tax authorities may, on this basis, verify the tax payable of the taxpayer who refuses to declare, and if there is a tax payable, the taxpayer may be deemed to have committed tax evasion, and the approved tax amount may be used as the amount of tax evasion by the taxpayer to deal with and punish the taxpayer.
The act of "non-payment or underpayment of tax payable" can be divided into three situations, and the Tax Administration Law also gives different administrative measures to the tax authorities.
The first situation is that the taxpayer has declared on time or has been notified to declare, and the declaration is true, but the act of "not paying or underpaying the tax payable" has occurred, and the taxpayer has been ordered to pay within a time limit, but the payment has not been made within the time limit. In such a case, Articles 40 and 68 of the Tax Administration Law clearly stipulate that the tax authorities may take compulsory enforcement measures against the taxpayer to recover the tax not paid or underpaid, and may impose a fine of not less than 50% but not more than five times the amount of the tax not paid or underpaid.
The second situation is that the declaration is made on time or after being notified, but the declaration is false and the tax payable is not paid or underpaid. This may constitute a situation of "tax evasion if a person makes a false tax declaration and fails to pay or underpays the tax payable" as mentioned in Article 63 of the Tax Administration Law, and shall be punished as tax evasion.
The third situation is the refusal to declare or the failure to declare or pay the tax payable after being notified. This is a situation of "refusing to declare, failing to pay or underpaying the tax payable after being notified by the tax authorities" as referred to in Article 63 of the Tax Administration Law, and should be deemed to be tax evasion. or they may be punished in accordance with the provisions of Article 64 of the Tax Administration Law. This article stipulates that if a taxpayer fails to file a tax declaration and fails to pay or underpays the tax payable, the tax authorities shall recover the tax not paid or underpaid, and impose a fine of not less than 50% but not more than five times the amount of the tax not paid or underpaid. The tax evasion provided for in Article 63 of the Tax Administration Law and the non-payment or underpayment of tax under Article 64 are generally considered to be aimed at normal taxpayers, while the latter are aimed at households that have not been subject to tax registration or tax appraisal or have not been declared and have not been notified by the tax authorities. In this case, if Company G failed to declare and pay urban land use tax in accordance with the regulations, it should be punished in accordance with Article 64 of the Tax Collection and Administration Law. Because Company G did not conduct tax appraisal in accordance with the regulations and never made a tax declaration after acquiring the land involved in the case, the tax authorities had no way of knowing, and there was no way to talk about the "notification declaration", which was equivalent to the tax type that was omitted to be collected and managed.
In summary, Company G's failure to declare and pay business tax and additional duties in accordance with the regulations should be deemed to be tax evasion. The courts of first instance and second instance also agreed with the tax authorities' opinions on the determination and punishment of tax evasion by Company G. However, the retrial court made a different judgment, holding that there was insufficient evidence for the tax treatment decision to determine tax evasion.
There are differences in the principles of attribution of liability for tax evasion and tax evasion violations
In the author's view, the retrial judgment of this case has led to reflections on the difference between the principles of criminal justice and administrative law enforcement in dealing with tax-related violations, and the view that the relevant tax authorities should prove that the administrative counterpart has subjective intent in not paying or underpaying the tax payable is worth exploring.
Criminal justice norms and basic principles of criminal law both need to determine the subjective fault of a suspect in tax evasion, and the standard of proof is usually to achieve "beyond reasonable doubt". In other words, the criminal justice system adopts the principle of fault for the crime of tax evasion, which requires the judicial authorities to collect evidence on the subjective fault of the fixed criminal suspect. However, neither the Administrative Punishment Law, which is a general law, nor the Tax Collection and Administration Law, which is a special law, have no provisions for the determination and punishment of tax evasion in terms of the determination and punishment of the subjective fault of the administrative counterpart, let alone require the administrative law enforcement agency to collect evidence of the subjective fault of the illegal party. For example, Article 2 of the Administrative Punishment Law clearly states that "administrative punishment refers to the conduct of administrative organs to punish citizens, legal persons or other organizations that violate the order of administrative management in accordance with the law by reducing their rights and interests or increasing their obligations." This is based on factors such as the general concept and principles of administrative rule of law and the cost and efficiency of administrative law enforcement.
Normally, administrative penalties are based on the principle of "presumption of fault". That is, as long as the actor commits an illegal act and causes statutory harmful consequences, it is presumed that the actor is subjectively at fault, unless the administrative counterpart provides evidence that he is not subjectively at fault or has a statutory defense. It is based on this principle that the second paragraph of Article 33 of the Administrative Punishment Law stipulates: "Where the parties have sufficient evidence to prove that there is no subjective fault, no administrative punishment shall be imposed." Article 63 of the Tax Administration Law clearly states that "a taxpayer who forges, alters, conceals, or destroys account books or accounting vouchers without authorization, or lists more expenditures or omits or understates income in the account books, or refuses to file 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." The norm also does not stipulate the subjective fault of tax evasion, but from the perspective of the form of conduct defined by it, the actor has the subjective fault of "deception and concealment".
To sum up, the author believes that the retrial of this case requires that the determination of tax evasion must prove that the administrative counterpart has the intention of not paying or underpaying taxes, which to some extent ignores the difference in the principle of attribution of responsibility for the crime of tax evasion and tax evasion, and exceeds the requirements of administrative laws and regulations such as the Administrative Punishment Law and the Tax Collection and Administration Law on the collection of evidence for administrative law enforcement, which may increase the difficulty of administrative law enforcement, affect the efficiency of tax law enforcement, and is not conducive to the punishment of tax-related illegal and criminal acts.
In fact, from the perspective of judicial practice, the retrial opinion of this case is only a point of view on whether to prove the subjective intent of the administrative counterpart in the determination of tax evasion, and in reality, there is no shortage of final judgments that support the handling of tax authorities similar to the one in this case, that is, the determination of tax evasion does not need to consider subjective intent. For example, the judgment rendered by the People's Court of Province S in a similar case pointed out that Article 63 of the Tax Administration Law stipulates that the model of "act + consequence + penalty" is adopted for whether tax evasion is constituted, and the subjective intent is not highlighted. The High People's Court of J City also pointed out in the judgment of the retrial of a similar case that the word "stealing" and the means of tax evasion imply the nature of subjective intent, and if the taxpayer's behavior meets the above characteristics, there is naturally subjective intent, and it can be determined that it is tax evasion, and there is no need to separately determine whether there is subjective intent. At the same time, it is difficult for the administrative authorities to prove the subjective judgment in the process of law enforcement with general evidence, and it is based on presumption or behavior, so whether the taxpayer has subjective intent is not the core element for determining tax evasion.
The collision of different judicial perspectives can broaden our perspective on the problem. On the whole, the author believes that for the determination of the crime of tax evasion, it is necessary for the judicial authorities to collect and fix evidence that the suspect has the subjective intention of "not paying or underpaying taxes"; However, according to the requirements of the Administrative Punishment Law and other laws, it is not appropriate to require the tax authorities to collect evidence of the subjective fault of the fixed administrative counterpart in the determination of tax evasion.
Source: China Tax News; 16.07.2024; Edition: 07; Author: Wang Shuren; The author is the deputy director of the Inspection Bureau of the Suzhou Municipal Taxation Bureau of the State Administration of Taxation and a public lawyer. The content of this article is for general information purposes only and is not intended as formal auditor, accounting, tax or other advice, and we cannot guarantee that such information will remain accurate in the future. No person should act on the basis of the information contained herein without having due regard to the relevant circumstances and obtaining appropriate professional advice. The articles reproduced in this issue are for academic exchange purposes only. The original copyright of the article or material belongs to the original author or original copyright owner, and we respect copyright protection. If you have any questions, please contact us, thank you!