Customs import payment books, transportation invoices, waste materials invoices, agricultural products acquisition vouchers as VAT special invoices can be used for VAT deduction outside of the voucher was once active on the stage of history. With the tax reform, transportation invoice, waste materials invoice was abolished, "four small tickets" now left "two small tickets". With the comprehensive on-line of Golden Tax III, the supervision of VAT invoices has reached a new height, but due to the fact that the customs and the tax bureau belong to two systems, information sharing has not yet been formed in the early stage of on-line, which leads to the use of Customs Import Payment Letter by some unscrupulous elements to carry out false invoicing and tax cheating.In June 2017, the Customs Payment Letter in the tax bureau to realize the network verification of the voucher audit and checking management information system; in February 2020, the information audit of the payment letter will be carried out. In February, the auditing and comparison of the information of the payment book was changed from manual uploading to selecting the confirmation platform for confirmation, and the customs data was finally docked with the comprehensive service platform for VAT invoices. At one stage, there are still some phenomena of using the customs import payment book for false opening, in this year's tax authorities in conjunction with public security, customs, the People's Bank of China and other departments to jointly combat the "three false" activities exposed, and implicated many downstream coal, steel trading enterprises, it is worthwhile for entrepreneurs to learn from the warning.

I. Incoming and outgoing discrepancies: false opening of customs payment books frequently appear in the fight against the "three fake" activities

Since August 2018, the State Administration of Taxation (SAT), in conjunction with the Ministry of Public Security, the General Administration of Customs, and the People's Bank of China (PBoC), has organized and carried out a special action to combat the illegal and criminal activities of fraudulent tax invoicing, and cracked down on false invoicing by "fake enterprises", and fraudulent tax refunds by "fake exports", "On March 29, 2021, the State Council held a press conference at the State Council Information Office, in which Rao Lixin, the chief auditor of the State Administration of Taxation (SAT), introduced that as of the end of February this year, a total of 360,000 enterprises had been investigated and dealt with for the "three falsehoods" and tax losses of 87.5 billion yuan had been recovered, while the loss of tax had been recovered. As of the end of February this year, 360,000 enterprises had been investigated and dealt with for the "three counterfeits", recovering tax losses of 87.5 billion yuan, and 29.2 billion yuan of losses in export tax refunds. Combined with the typical cases released by the State Administration of Taxation, it can be found that the criminal act of fraudulently obtaining national taxes by means of fraudulent opening of Customs Import Demand Drafts has "resurfaced".

(I) change the name of the forged customs import payment book to disguise the discrepancy between import and sales

In May 2020, Zhoushan City Taxation Bureau Inspection Bureau received a letter of investigation from the Foreign and Local Taxation Bureau, after investigation, found that during the period from July 2019 to April 2020, engaged in the coal import business Zhoushan energy company and other three companies in the absence of real imports of coal, and an international trading company and other three agents of import and export enterprises in collusion with each other, by the three agents of the import and export enterprises to the Customs first reported to the Customs contain the case of false import and export invoices. Zhoushan 3 companies, then, the agent import and export enterprises and Zhoushan 3 companies jointly forged the name of the customs import payment for coal, Zhoushan 3 companies to carry out false tax declarations. At the same time, the three Zhoushan companies involved in the case in the absence of real coal transactions, to Shandong, Liaoning, Jiangsu, Sichuan and other 12 provinces and cities downstream of the enterprise 62 false VAT invoices for coal more than 15,000, a total of 1.511 billion yuan, 211 million yuan in taxes.

It was reported that the three agent import and export enterprises applied a large number of other companies' customs declaration information, modified the imported durian and other fruits as coal, and replaced the information of other agent import companies with their own information, thus forging a large number of Customs Import Payment Letters to provide space for the three Zhoushan companies involved in the case to make profit from further external false invoicing.

(II) False tax credit by applying the information of the payment certificate for import of epidemic prevention materials

In May 2020, the Shenzhen Tax Bureau, while investigating the risk of epidemic-related taxes, found that Enterprise A, after offsetting the customs import payment certificate for supplies named epidemic prevention materials, issued invoices for electronic products, steel and other items, and then formed a task force with the public security authorities to use big data to accurately analyze and discover a number of allegedly fraudulent invoices issued by using false customs import payment certificates to offset taxes, after successive waves of crackdowns. After successive waves of crackdowns, a total of 8 criminal gangs were destroyed, 115 suspects were arrested, and the amount of false invoicing was billions of dollars.

II. the "demand" to promote "market", coal, iron and steel industry, the lack of input as an important factor

Through the analysis of recent cases of fraudulent opening of customs import payment books, we found that "masks", "disinfectant", "durian" and so on have become the frequent objects of fraudulent use. The reason is very simple, these epidemic prevention materials, fruits are often sold as consumer goods to individuals, and individuals do not have a need for VAT input deduction, so they often do not ask for invoices from merchants, and importers can "lend" their balances of inputs in exchange for a small amount of economic benefits. This information has become a "steamed bun" in the hands of false invoicing molecules, providing space for them to carry out false invoicing to the outside world. The downstream party mainly concentrated in coal, iron and steel enterprises, enough to reflect the existence of these industries, the problem of insufficient input deduction has even given birth to the criminal circle of false customs import payment book.

(I) coal mine over-selling without a ticket leads to coal enterprises with insufficient inputs

Since 2010, the National Development and Reform Commission issued "on accelerating the merger and reorganization of coal mining enterprises and a number of opinions" to start the work of coal overcapacity, the coal industry has turned into a seller's market, the coal enterprises can be purchased from the regular large-scale coal mines in the amount of coal quota more and more tense, so that many coal enterprises have to purchase from the small coal mines to over-mining coal. Due to the quota system, many small coal mines are unable to sell the coal mined in excess of the quota in their own name and provide VAT invoices. This paradoxical phenomenon has created the industry problem of insufficient input credit for coal enterprises.

In order to realize their own input deduction rights and interests, some coal enterprises are not allowed to seek the cooperation of third parties to obtain VAT invoices for pre-tax cost deduction and VAT input deduction, and these third parties are very likely to offset the tax through the form of fictitious coal import business and forged customs import payment books, which in turn implicate the downstream coal enterprises.

(II) the abolition of tax incentives for waste materials leading to the lack of input steel enterprises

With the development of energy conservation and environmental protection, iron and steel scrap has become an important raw material for the modern iron and steel industry, research shows that each use of 1 ton of iron and steel scrap can reduce 4.3 tons of raw ore mining, reduce 1 ton of raw coal and 1.7 tons of new water consumption, emission reduction of 1.6 tons of carbon dioxide, so the recycling of scrap has become the focus of the development of iron and steel production enterprises. 2008, the state finance and taxation departments to CaiShui [2008] 157th In 2008, the national finance and taxation department with CaiShui [2008] No. 157 canceled the important tax incentives for the waste materials industry and stopped using the invoice for waste materials, which caused the vibration of the waste materials recycling industry and had a great impact on the steel enterprises. As most of the scrap iron and steel purchased by scrap material recycling enterprises come from social retailers, they cannot obtain formal invoices, so the invoices that the scrap material recycling enterprises can provide to the steel enterprises are limited, and the scrap material recycling enterprises and the steel enterprises are facing the problem of insufficient inputs. In order to realize its deduction rights, waste materials recycling enterprises, iron and steel enterprises shall not obtain invoices from a third party, and the risk lies precisely in the third party is very likely to use other people's customs declaration information to forge the customs import payment book deduction tax.

III. customs and tax data have been shared, false customs payment book false opening still need to be vigilant

As early as June 2017, the General Administration of Taxation and the General Administration of Customs jointly carried out the information management of customs payment book network verification, and added the function of customs payment book network verification in the management information system of deduction voucher audit and inspection, and the tax authorities relied on the verification system to carry out customs payment book network verification. However, at this time, the system is still not perfect, customs and tax data have not been fully shared, taxpayers apply for data verification, need to upload their own customs payment book, which gives room for forged customs payment book. The real data interoperability began in February 2020, taxpayers who obtain a customs payment letter that only indicates the information of a payment unit should log in to the province's VAT invoice selection confirmation platform to query and select the information of the customs payment letter that can be used to declare credits or export tax refunds, marking the formal access to customs data.

However, even at this stage, the false customs invoices are still available for false opening. For example, in the case where the Customs Demand Note indicates information of two payment units (i.e. commissioning an agent company to import, the Customs Import VAT Demand Note is generally double-headed), both units have the right to declare deduction, but one party shall not be allowed to deduct if the other has deducted, and the Customs is unable to differentiate between the Customs Demand Note information and push it to the VAT Invoice Selection and Confirmation Platform of which unit, so the taxpayers need to upload the Customs Demand Note information by themselves, and these information can be uploaded to the Customs Data Center. Therefore, it is necessary for the taxpayer to upload the information of the customs demand note by himself, which includes the number of the special demand note, the code of the import port, the name of the import port, the date of filling in and issuing, and the amount of tax, while the name of the imported goods does not need to be filled in, and there is the possibility of changing "durian" to "coal" in the case mentioned above. The possibility of.

However, with the CPC Central Committee and the State Council's "Opinions on Further Deepening the Reform of Tax Collection and Administration", the CPC Central Committee and the State Council have proposed to "deepen the sharing and application of big data on taxation", "strengthen the risk prevention, control and supervision in key areas", "crack down on tax-related crimes and offenses in accordance with the law", and "strictly combat tax-related crimes and offenses". The State Council's "Opinions on Further Deepening the Reform of Tax Levy Management" proposes "deepening the application of tax big data sharing", "strengthening the risk prevention, control and supervision in key areas" and "cracking down on tax-related illegal and criminal behaviors according to law", etc., and the information-sharing mechanism of the tax police, the customs bank, etc., will be improved further, and the Golden Tax IV will make the information more interconnected and interoperable in the near future. Still serious.

IV. Upstream enterprises are suspected of false invoicing, and downstream coal and iron and steel enterprises can save themselves.

As far as the investigation and handling of false VAT invoices are concerned, the linkage of tax police and customs bank has improved the efficiency of case investigation, and at the same time, the tax authorities have improved the ability of big data tax administration, and through the Golden Tax System, they can quickly and accurately identify the tax risks, so as to accurately locate the invoicing parties involved in false invoicing. Once the upstream invoicing enterprise is recognized for false invoicing due to false enhancement of the item (Customs Import Payment Letter), the tax authority often carries out chain investigation, considering that there is no real transaction in the whole chain, and thus sends the "Notification of Confirmed False Invoicing" and "Letter of Concurrence" to the competent tax authority of the downstream invoiced enterprise, and after the intervention of the local tax authority, the invoiced enterprise will be usually required to transfer out the input tax amount, and will even be punished by fines or be sent to the public security authorities for suspected crimes. The local tax authorities will usually require the invoiced enterprise to transfer the input tax amount after intervention, or even impose a fine or be transferred to the public security organs for suspected crimes. What's more, the competent tax authority of the upstream invoicing enterprise directly transfers the case to the public security authority, which transmits the case to the cloud after filing the case, directly triggering the risk of criminal liability of the downstream invoiced enterprise. Therefore, the upstream enterprises suspected of false invoicing, downstream coal, iron and steel enterprises, whether facing tax audit procedures or criminal investigation procedures should be handled with caution and timely "self-help".

(I) There are different situations for the characterization of the invoiced behavior, and enterprises should grasp the key to the authenticity of the business.

In the invoicing party constitutes the case of false opening, the practice of the tax authorities of the invoiced party's behavior of the characterization and treatment of different situations, the following three cases of the invoiced party does not constitute false opening:

First, the invoicing party constitutes false invoicing, do not deal with the invoiced party to carry out the tax can be deducted. This situation generally exists in the real transaction of goods, only in the name of the goods and other aspects of the existence of certain defects, the invoiced party to deduct the tax will not cause the loss of state taxes.

Second, the invoicing party constitutes false invoicing, and the invoiced party constitutes good faith acquisition of false VAT invoices. The regulations on the invoiced party's good faith acquisition of falsely issued VAT invoices are mainly stipulated in the relevant provisions of the Circular of the State Administration of Taxation on the Handling of Issues Concerning Taxpayers' Good Faith Acquisition of Falsely Issued VAT Invoices (Guoshifa [2000] No. 187) and the Reply of the State Administration of Taxation on the Approval on the Issues of Taxpayers' Good Faith Acquisition of Falsely Issued VAT Invoices and the Addition of Late Fees to the Tax Deducted Amounts (Guoshuikan [2007] No. 1240). No. 1240). In this case, the invoiced party shall not be punished for tax evasion or fraudulent export tax rebate, and shall not be subject to late payment fees and fines, and shall be allowed to offset input tax if it can obtain legal and valid special invoices from the seller again.

Third, the invoicing party constitutes false invoicing, and the invoiced party is obtaining non-compliant invoices. According to Article 9 of the Provisional Regulations on Value-added Tax, the Announcement of the State Administration of Taxation on the Issues of Taxpayers' Supplementary Taxes on Fraudulently Issued Value-added Tax Special Invoice (Announcement of the State Administration of Taxation No. 33 of 2012), and Article 21 of the Measures for the Administration of Invoices, the invoiced party shall not be allowed to deduct the input tax in such cases, and the invoice shall not be used as a voucher for financial reimbursement, but the invoiced party will not be fined in general.

The key to determine the existence of the above three situations lies in whether there are real transactions of coal, steel and other goods between upstream and downstream enterprises. Generally speaking, if the transactions are real and the name, quantity and amount contained in the invoices are the same as the actual ones, the downstream enterprises will not be implicated in the fraudulent input tax behaviors of the upstream enterprises, and they should fully explain to the tax authorities and provide the corresponding transaction information.

(II) Explain to the tax and public security authorities whether there are any special circumstances regarding the authenticity of the goods, such as affiliation and agency sales

The key to the determination of false opening and the difficulty lies in the judgment of the authenticity of the goods. In practice, some tax authorities, public security organs on the authenticity of the goods of the judgment standard there is a misunderstanding, habitually to cut the chain of transactions to judge, but ignored the complete chain of transactions in the existence of dependence, sales, instructions for delivery and other special circumstances.

In this regard, enterprises and lawyers should fully explain the facts and laws to the tax authorities and public security authorities, correct their misunderstanding, and provide evidence and explain the facts of dependence and proxy sales in the transaction chain and the application of the laws. The crime of false invoicing of VAT as an administrative offense, that is, the tax law that constitutes false invoicing, the criminal law only recognized as constituting a crime. The tax law is clear, dependence, sales and other special behavior, the source of goods and the invoicing party seems to be separated, in fact, the unity of the entire transaction chain is still in line with the "three streams of the same" standard, does not constitute the tax law on the false invoicing, can not be investigated for the same false criminal liability.

(III) even if the existence of false opening behavior, and does not have the subjective purpose of tax fraud, resulting in tax loss consequences should not be criminal theory

In recent years, the judicial authorities have gradually deepened their understanding of the crime of false opening, and the constitutive elements stipulated in Article 205 of the Criminal Law have been improved in some judicial explanatory documents and judgments.

On December 4, 2018, the Supreme Court issued the second batch of typical cases on the protection of the legitimate rights and interests of private entrepreneurs, in which the case of Zhang Mouqiang's false opening of VAT invoices made it clear that the behavior that does not aim at tax cheating and does not result in the loss of tax shall not be established as the crime of false opening.On July 22, 2020, the Supreme People's Procuratorate issued a report on "On the full play of procuratorial functions to serve and safeguard the "six" and the "six". The Opinions on Giving Full Play to Procuratorial Functions to Serve and Guarantee the "Six Stabilizers" and "Six Guarantees" also emphasized that: for enterprises with actual production and operation activities that do not aim at tax cheating and do not cause loss of tax money, the crime of false VAT invoicing will not be dealt with qualitatively. Qualitative treatment.

For some cases of false invoicing, the enterprises and lawyers should fully explain to the judicial authorities that false invoicing is not a behavioral crime, and that the enterprises should not be held criminally liable for the false invoicing of the upstream enterprises due to objective reasons, but subjectively do not have the purpose of defrauding the state of tax and declare tax according to law on the invoices in question, or else it will not be a great expansion of the combat surface of the criminal offenses, and will be a deviation from the CPC Central Committee, the State Council, and the two high courts in safeguarding the market mainstays. The State Council, the two high to maintain the market main body "six stable" "six guarantees", to create a good business environment of the major policy.