For transportation and logistics enterprises, invoices for road, bridge and gate tolls are important VAT input credits and cost deductions. However, for individual drivers who undertake and carry out transportation business all over the country, they don't need input invoices. As a result, the phenomena of "missing invoices for transportation fees" and "surplus invoices for road tolls" have appeared at the same time in the actual carrier side of the road transportation industry, which has become an emerging feature of false invoicing in the road transportation industry. In this way, the phenomenon of "missing transportation fee invoice" and "surplus road toll invoice" appears at the same time in the actual carrier side of the road transportation industry, which becomes the emerging feature of false invoicing in the road transportation industry. This paper analyzes this phenomenon through the practice of the latest cases of tax law for the reference of the majority of enterprises.

Ⅰ. Case observation: ETC electronic toll invoice has become an emerging object of false opening

(Ⅰ) Chenzhou broke out the first case of ETC electronic toll invoice false opening in the country, with 171 billed parties

Recently, according to Hunan TV news report, a company in Yizhang, Chenzhou is suspected of fraudulently opening ETC toll electronic ordinary invoices for VAT, with a total of 345 million yuan in price and tax, involving more than 20 provinces and municipalities and 171 ticketholders across the country, which is extremely extensive.

In this case, the suspects and the company involved in the case opened the so-called "ETC handling office" at the service station on the highway, acquired the personal and vehicle information of truck drivers and invoice information at a very low price, and changed the invoice header by logging into the ticket stubs network to falsely issue electronic invoices of tolls to the outside world.

The public security organs ascertained that the enterprise sold the falsely opened ETC toll VAT electronic invoices to the recipient enterprises for accounting, so as to achieve the purpose of false offsetting of inputs or false increase of costs, seriously disturbing the national tax order and causing the loss of national tax revenue. After investigation, the company was suspected of helping various enterprises to evade enterprise income tax of 86.25 million yuan.

The case was opened for investigation on June 10, 2022 by the Chenzhou public security authorities. Under the full cooperation and investigation of the Ministry of Public Security and the four levels of public security investigation departments of the province, city and county, the suspect Shi Mouliang and other six people have been arrested. At present, the case is being further investigated.

(Ⅱ) Utilizing the surplus of ETC electronic invoices of individual drivers, the phenomenon of false invoicing began to appear

According to the understanding of Hwuason lawyers in the course of handling cases, a false invoicing case involving ETC invoices has also occurred recently. The basic situation is that a truck ETC operation platform, through cooperation with several provinces and cities, provides truck drivers with the whole process of ETC processing, card opening, payment and summary invoicing services, and in order to solicit customers, the platform provides a 15% discount on tolls.

The transportation enterprise involved in the case, after discovering this platform, through their own personal driver information, while opening ETC promotion service stores in highway service areas, to toll discounts as a bait, so that individual drivers to provide him with identity information, and then the transportation enterprise borrowed the discounts of the platform, access to the identity of the individual driver, and to purchase toll electronic invoices at a low price to their own enterprises to falsely open them, used to solve the problem of their own enterprise The problem of insufficient input credit and cost deduction vouchers.

(Ⅲ) The risk of false opening of ETC toll electronic invoices is extremely high, and all parties have legal responsibilities

There are various forms of toll invoices, in addition to the traditional paper tickets, electronic tickets are divided into electronic general invoices and fiscal notes. Among them, if the electronic general invoice is labeled with the "toll" logo in the upper left corner, according to the "Circular of the Ministry of Finance and the State Administration of Taxation on the Value-added Tax Policies on Input Tax Deduction for Leased Fixed Assets" (Cai Shui [2017] No. 90), taxpayers who have obtained this type of electronic invoice of the toll can actually carry out the input tax deduction. Therefore, although the face amount of the toll electronic invoice is not high, and it is named as "electronic ordinary invoice", it has the function of deduction in essence, and if it is suspected of false invoicing, the criminal liability is comparable to that of false opening of VAT special invoices.

In addition, one of the important purposes for a large number of transportation enterprises or other ticketed enterprises to obtain the electronic general invoices for tolls is to deduct the cost of enterprise income tax, thus reducing the tax burden of enterprises. Such behavior constitutes the crime of tax evasion and tax evasion, and criminal liability also exists.

In terms of subject matter, the person who sells the toll invoices and the enterprise that accepts the falsely issued toll invoices are criminally liable. In addition, individual drivers who sell their own personal information and invoices to the outside world are also at high risk of constituting aiding and abetting the offender or illegally selling invoices. Next, this article is in accordance with the different subjects, inventory analysis of the legal risks of all parties.

Ⅱ. ETC toll electronic invoice false opening, the legal risk of all parties geometric?

(Ⅰ) Transportation companies, network freight platform deduction of VAT input risk

In the past, the practice often focuses on the tax compliance and false invoicing risk of the transportation company, which is due to the transportation company in the process of carrying out business, often subcontracting the transportation business to the individual driver actual transportation, the transportation company will be the vast majority of the transportation costs paid to the individual driver, but can not obtain the invoice, it can not be VAT input deduction and cost deduction. A similar problem exists with online freight transportation platforms.

In order to reduce the VAT burden on transportation companies, the provisions of the Circular of the Ministry of Finance and the State Administration of Taxation on VAT Policies on Input Tax Credits for Leased Fixed Assets and Other VAT Policies (Cai Shui [2017] No. 90) stipulate that taxpayers who obtain electronic invoices for tolls can make input credits on a case-by-case basis. At the same time, these credits also distinguish between two types of cases:

1、the transportation company against the toll invoice of its own vehicles

Transportation company's own vehicles, the vehicle passes after the transportation company as a recipient of electronic invoices, or claim deductible paper toll invoices, offset by the transportation company in line with the law, this is because these vehicles belong to the transportation company, the driver is the transportation company's employees.

2、 The transportation company outsources the transportation business, but actually bears the toll fees

According to the Provisional Regulations on Value-added Tax, the issuance and acceptance of invoices follow the principle of real business, i.e., the invoices can only be issued by the party who actually provides the service and offset by the party who actually accepts the business, and are generally not transferable to a third party. However, Article 2 of the Announcement of the State Administration of Taxation on Tax-Exempt Filing of Cross-Border Taxable Acts and Other Value-Added Tax Issues (Announcement of the State Administration of Taxation No. 30 of 2017) stipulates that, when a taxpayer (generally a transportation company) enters into a transportation service contract with a shipper in the capacity as a carrier, collects the freight charges and bears the responsibility of the carrier, and then entrusts the actual carrier with the completion of the transportation service, the actual carrier's road, bridge and gate If the tolls are borne by the taxpayer, the taxpayer can deduct the input tax.

This mode of outsourcing transportation services is called non-transportation carrier business, which is generally due to the insufficient capacity of the transportation company's own vehicles or the lack of relevant qualifications, resulting in the outsourcing of business. In this kind of business, as long as the tolls are truly used in the transportation business and the transportation company bears the tolls for individual drivers, they can be deducted.

3、network freight platform to obtain toll invoice deduction

Network freight transportation platform is essentially the development of tool-less transportation business, and also applies the provisions of General Administration No. 30 of 2017.

In addition to the above three types of situations, the management of the toll invoice is consistent with the general invoice, that is, the requirements of the business is true and the four streams are consistent. In practice, as some individual drivers will undertake a large number of businesses on their own, resulting in the accumulation of a large number of toll invoices. At this time, transportation enterprises may take some illegal means to obtain these invoices and use them for deduction:

1、Transportation enterprises directly purchase transportation fee e-tickets for deduction;

2、Transportation enterprises and online freight platforms that carry out "no means of transportation business" obtain transportation fee invoices, but do not actually bear the toll fees of individual drivers, but only obtain toll fee invoices at a low price and use them for deduction. This does not comply with the relevant provisions of Announcement No. 30 of 2017 on offsetting.

According to Article 205 of the Criminal Law, the crime of "falsely issuing other invoices used for tax deduction", as long as the invoice has the function of tax deduction, it belongs to the punishment of this crime. The criminal liability of obtaining a falsely issued toll invoice is equivalent to that of falsely issuing a VAT invoice, and the risk is extremely high.
It should be noted here that although the behavior is similar to the illegal purchase of invoices, the "crime of illegal purchase of VAT invoices" stipulated in Article 208 of the Criminal Law is limited to special invoices, and it is difficult to achieve the result of lowering the criminal liability by applying the crime of Article 208 to the illegal purchase of the electronic ordinary invoices of the toll fee.

(Ⅱ) Risk of Cost Deduction by Transportation Company in Accounts

Although the road toll invoice is small in amount per time, it is still a very objective figure if a large number of road toll invoices are summarized. At the same time, among the existing road toll electronic invoices, in addition to the electronic general invoices that can be deducted as inputs, there are also electronic general invoices labeled as "exempted from taxation" and fiscal notes that do not have the function of deduction. These non-deductible VAT input vouchers can still be used for deduction before EIT. In order to reduce the tax burden and cost of enterprises, some transportation enterprises purchase a large number of such invoices to offset the cost.

1、 Audit Risks of Large Amounts of Passage Expenses

With the improvement of electronic and informatization procedures, the ability of tax big data aggregation and analysis has been strengthened, and the tax authorities can screen the tax risk by analyzing and judging some abnormal indicators. As the amount of toll fee is too low, if the percentage of toll fee is unreasonably high, it will attract the attention of tax authorities.

2、 Liability for tax evasion and avoidance of tax for unlawfully expensing tolls

Article 63 of the Tax Collection and Management Law explicitly characterizes the act of "over-listing expenses in the books of accounts" as tax evasion. If it constitutes tax evasion, in addition to the recovery of tax, there are also late payment fees and fines. In addition, according to Article 201 of the Criminal Law, if a taxpayer fails to pay the tax, late payment fees and fines in accordance with the requirements of the tax authorities after constituting tax evasion, the taxpayer constitutes the crime of tax evasion and may be held criminally liable.

(Ⅲ) Tax law risks of selling invoices and personal information by individual drivers

1、Criminal liability for helping tax evasion

First of all, according to the theory of criminal law to help offenders, the individual driver sells invoices and personal information, although subjectively is not clearly aware of their invoices will be specifically used by which enterprise for tax evasion, but their invoices for their own invoices will be used for the enterprise cost of the criminal results of expensing, there is a generalized intent, so if the recipient enterprise is held accountable for the crime of tax evasion, the individual driver may constitute a helper offender.

2、The risk of the crime of helping to falsely issue other invoices used for tax credits

The crime of false opening of other invoices used for tax deduction is the same crime as the crime of false opening of VAT invoices, and the criminal liability is extremely high. The individual driver is neither the issuer nor the recipient of the invoice in this offense. Specifically, the individual driver was supposed to be the legitimate recipient of the invoice, but he waived his acceptance of the invoice. At the same time, he did not operate the toll electronic invoice management system himself to change the invoicee's letterhead, but let the other operations, so the individual driver is not the party who introduced the false invoice either. According to the theory of criminal law, the individual driver belongs to the facilitating conditions for providing the crime, and belongs to the helpers of false invoicing with certain risks.

(Ⅳ) Risk of intermediaries illegally selling toll electronic invoices

The intermediary illegally sells toll electronic invoices by collecting personal information of individual drivers and then logging into the toll electronic invoice management platform to change the invoiced party. The intermediary is not the invoicing party or the invoiced party, but since it organizes the source of the invoice and contacts the enterprises with the demand for the invoice, it is an introduction of false invoicing. The specific circumstances should be analyzed according to the specific case. Since this type of behavior is relatively new, if there are four types of behavior that do not fall into the category of false invoicing, they should be dealt with as aiding and abetting offenders of false invoicing.

In addition, similar to individual drivers, selling toll electronic general invoices may constitute an aiding and abetting offense of tax evasion.

Ⅲ. Case Insight: Transportation Enterprises Should Strengthen Compliance Construction

China's road transportation industry is currently a key area for the regulation of false invoicing. Due to the existence of a large number of individual drivers undertaking transportation, the lack of input and cost invoices by transportation enterprises is difficult to be solved in the short term.

In terms of VAT inputs, both transportation companies and network freight platforms are facing difficulties. Although the network freight platform can collect payments and issue invoices on behalf of the government, it is usually a 3% invoice, which cannot make up for the 9% output tax. Therefore, in addition to obtaining financial incentives from the local government, it will solve the input problem by accepting toll invoices. At this point, we remind enterprises that they must insist on the authenticity of the business and actually bear the tolls, otherwise there is a risk of being denied the right of deduction by the tax authorities.

In terms of enterprise income tax cost deduction, the network freight transportation platform can currently be solved through the policy of collecting tax on behalf of the tax and invoicing on behalf of the tax. However, other transportation enterprises do not have the authority to delegate the collection of taxes on behalf of the taxpayer, so there is a risk. We believe that firstly, the bottom line of business authenticity should be adhered to, and the acquisition of invoices must correspond to real business. For example, at this stage, transportation enterprises can obtain invoices by joining the network freight platform into the chain, but we should pay attention to the following issues: firstly, we should put an end to the behavior of "post-invoicing", and we should join the platform first, and then rely on the platform to issue the business; secondly, we should avoid the phenomenon of capital reflux to avoid the direct settlement of freight charges, and always go through the platform process; thirdly, transportation enterprises should keep the invoices for the real business. Third, the transportation enterprise should keep the driver's identity, vehicle information, contact information for verification.

If the transportation enterprise needs to obtain refined oil invoices and road toll invoices from individual drivers, it should explain to them in advance about the form of invoicing and ensure its authenticity.