In practice, the enterprise in the purchase of goods, accept services completed, at that time can not obtain input invoices, obtain non-compliant invoices and other reasons, and then made up invoices, its tax risks in where? This article is intended to combine an enterprise from the flexible employment platform after the invoice and to be red-flush still be punished case, after the legality of the invoice behavior and red-flush false invoices whether to assume legal responsibility for analysis, for the reader's reference.

I.the basic facts of the case: labor has been completed by the natural person, from the flexible labor platform after the invoice was penalized

(i) the basic case

Huizhou City, a company engaged in real estate business (hereinafter referred to as "the enterprise involved") for the sale of commercial properties, and Lv Moumou, Lin Moumou, Chen Moumou signed the "Yuecheng Huating" marketing service agreement, agreed that the contractual promotion time for the period from July 1, 2019 to The contractual promotion period was from July 1, 2019 to December 31, 2020, and the service fee was 1.3% of the sales of the project "Yuecheng Hua Ting", and in March 2021, the sales of the project amounted to RMB 118.6 million. According to the contract, the enterprise should pay Lu Moumou and the other three service fees of 2.418 million yuan.

However, because the enterprise involved in the case could not spend the promotion fee in the presale supervision account, it contacted a flexible employment platform to pay the fee to for it. The specific operation was as follows:  flexible employment platform signed the Service Agreement with the enterprise involved, Lv Moumou and three others successively, after which the enterprise involved paid a total of 2.4 million yuan to the  flexible employment platform, and the  flexible employment platform issued VAT invoices for the enterprise involved.

(ii) Penalty Decision of the Tax Authorities

The tax authorities based on the agreed terms of the agreement between the enterprise involved and  flexible employment platform Platform, i.e., "If there is another service or other agreed arrangement between your company and the freelancer or its users/clients, flexible employment platform shall not assume any obligations in respect of the arrangement in which it is not involved, including, but not limited to, the payment of service fees to the freelancer, and the levy of personal income tax on behalf of the freelancer." As well as the verbal evidence of the actual controller of the enterprise in question, i.e., admitting that the  flexible employment platform was not involved in the trading arrangement between the enterprise in question and Lv Moumou and the other three, it was found that the VAT invoices that the enterprise in question had asked the  flexible employment platform to issue on its behalf were fraudulently invoiced and a fine of 50,000 yuan was imposed.

(iii) Views of both parties

First, The enterprise involved in the case believed that although the flexible employment platform was involved in the transaction arrangement between it and Lv Moumou, the occurrence of its business was authentic and had certain legitimacy and reasonableness, and it had already contacted the  flexible employment platform to red-flush the invoices in question, which was not a violation of the law and should not be penalized.

Second, the tax authorities believe that: in accordance with the "Invoice Management Measures" Article 22 of the provisions of the "invoice shall be issued in accordance with the prescribed time limit, order, columns, all the joint one-time truthfully issued, and stamped with the invoice special seal. No unit or individual shall engage in the following acts of false invoicing: ...... (ii) Letting others issue invoices for themselves that do not correspond to the actual business situation". The provisions of Article 37: "Where a false invoice is issued in violation of the provisions of Paragraph 2 of Article 22 of these Measures, the tax authorities shall confiscate the illegal income; ...... If the amount of false invoicing exceeds 10,000 yuan, a fine of 50,000 yuan or more than 500,000 yuan or less shall be imposed ......" . The platform did not play a role in facilitating the transaction arrangement between the enterprise and Lv Moumou, and the invoicing behavior of the enterprise letting the  flexible employment platform issue invoices did not conform to the actual business operation and belonged to false invoicing, and at the same time, taking into account that the enterprise did not carry out account processing and offset input tax on the aforesaid invoices and took the initiative to contact the flexible employment platform for red-letter offsetting of the aforesaid invoices, etc., the tax authorities imposed a fine of 50,000 yuan, which was a mitigating circumstance. A fine of 50,000 yuan was imposed by the tax authorities, which was a mitigated punishment.

(iv) Summary: Focus of dispute between tax enterprises

From the above, it can be seen that there are two points of dispute between the two sides: one is that the business has really happened, whether the behavior of the invoice is legal; the second is that the enterprise did not make up the invoice for the financial and tax treatment, and took the initiative to contact the invoicing party to make a red flush, did not cause loss of state taxes, whether such a situation can be exempted from legal responsibility. Next, the author will analyze the focus of the dispute in detail.

II. the business has really happened, whether the behavior of the invoice is legitimate?

The case of the spirit of the platform is in the rapid development of the Internet at the moment the product of the development of the Internet of things today, the traditional labor, logistics and other industry modes have changed, the Internet and human resources industry combined to form the spirit of flexible employment platform, the Internet and the combination of the logistics industry to give birth to the network freight transport platform and so on. As a result, in practice, there is also a supplementary invoicing behavior has the legitimacy of the issue, as the focus of the controversy of the aforementioned tax enterprises. In the author's view, for the business has occurred, after the invoice is legal, need to be divided into circumstances for discussion.

(i) Criminal legitimacy analysis: issuing invoices with retroactive data for the business that has really happened does not constitute the crime of false invoicing.

In fact, the key point of this case lies in the fact that the enterprise involved in the case will be the real labor business that occurred offline, and make up the data into flexible employment platform, and its purpose is to pay for the service cost through the invoice obtained, rather than to achieve the unlawful purpose of underpayment of value-added tax through the offsetting of tax by the fictitious input invoices. Therefore, even if the enterprise concerned fictionalized the business relationship with the flexible employment platform, Lv Moumou and other three people, and let the flexible employment platform issue invoices for it, the enterprise concerned subjectively did not have the purpose of fraudulent offsetting of tax, and acted without offsetting the invoices obtained from the flexible employment platform and made red flush, which could prove that the enterprise concerned did not have the purpose of fraudulent offsetting of tax and did not cause the loss of national tax in the view of the result, and did not conform to the constitutive elements of the crime of fraudulent invoicing. The elements of the crime of false invoicing are not met.

Therefore, the business has really happened, whether the behavior of making up invoices constitutes a crime needs to be analyzed according to the principle of subject-object consistency of criminal law, and analyze the constituent elements of the crime of false invoicing one by one, and only under the condition of meeting the constituent elements of the crime of false invoicing, it may be a crime.

(ii) administrative legitimacy analysis: the business has really happened, the third party subject after the invoice constitutes an administrative offense

As mentioned before, the behavior of the enterprise involved in the case of letting the flexible employment platform invoice for it does not constitute a crime, but it does not mean that the behavior is in line with the provisions of the tax law. Article 22 of the Measures for the Administration of Invoices stipulates the behavior of false invoicing at the administrative level. As can be seen from the law, the key point is how to recognize the "inconsistency with the actual business situation". From the point of view of textual interpretation, two situations can be distinguished: first, the invoice is issued without real business; second, real business has occurred, but the invoice issued does not match the business, including the buyer and seller, name, quantity, amount and other elements. From the perspective of the legislative purpose is to maintain the national tax order, the invoice subject in the invoice management order is of great significance, which involves the taxpayer subject and the flow of goods, services and other management order. Therefore, although the business has really happened, but the nature of the natural person to provide, in addition by the third-party subjects such as flexible employment platform back-up, belongs to the tax law and the actual operation of the invoice does not match, even if it did not cause tax losses, because it disrupts the national tax management order, still belongs to the administrative offense. Therefore, the author believes that it is not improper for the tax authorities to determine that the VAT invoices issued by the enterprise involved in the case were falsely issued by flexible employment platform.

(iii) Compliance countermeasures: the business really happened, and the act of reissuing or exchanging invoices through the counterparty was legal.

Article 13 of the Enterprise Income Tax Law stipulates that "if an enterprise should obtain but has not obtained invoices or other external documents, or has obtained non-compliant invoices or non-compliant other external documents, it shall request the counterparty to reissue or exchange the invoices or other external documents before the end of the current year's remittance period if the expenditures are real and have actually occurred. If the invoices and other external vouchers after reissuing or exchanging are in compliance with the regulations, they can be used as pre-tax deduction vouchers". It can be seen through the above law, if the business has occurred, the enterprise has not obtained the invoice or obtained the non-compliant invoice and other circumstances, you can ask the other party to make up the invoice, exchange invoices. This kind of behavior is legal and can also be used as the pre-tax deduction vouchers for enterprise income tax. From the perspective of system interpretation, based on the consideration of completeness and rationality of the tax law system, the legitimacy of reissuing and exchanging invoices as input deduction vouchers in the field of value-added tax (VAT) should also be recognized.

III. the red flush false invoices, whether it can be exempted from legal responsibility?

After discussing the legitimacy of the act of invoicing, I made an analysis of the second focus of the dispute about responsibility.

(i) red rush invoices, whether exempt from criminal penalties?

As mentioned before, the original business of the enterprise in the previous case does not constitute a crime, even if its deduction will not cause the loss of national tax. However, in practice, some enterprises through the fictitious business, to carry out foreign false invoicing criminal activities. Then, the invoiced enterprise to obtain false invoices have not yet offset, or offset after the red punch, whether it is necessary to assume criminal liability? First of all, it needs to be clear that the author believes that the false invoicing crime is a result crime. Based on this, the perpetrator in the acquisition of false invoices for offsetting, is the false invoicing crime, the behavior of the false invoicing crime to protect the interests of the law caused by the reality, urgent, direct danger. Before that, the act of issuing invoices belongs to the preparatory stage of the crime of false invoicing. Accordingly, the author of the red flush false invoicing, whether the criminal punishment can be exempted from analysis.

First,if the invoiced enterprise to obtain false invoices without deduction, if the initiative to red flush, because of its automaticity, is the preparatory stage of the crime of abortive behavior, that is, automatically give up the crime, the abortive offenders should be exempt from punishment.

Second, if the recipient enterprise to obtain false invoices, due to the tax authorities warning reasons and other objective reasons can not be certified credit, at this time, although also in the preparatory stage of the crime of false invoicing, but the difference is that this situation is due to reasons other than will not succeed, is the preparation for the crime. Preparatory offender, can be mitigated, reduced penalties or exemption from punishment.

Third,if the recipient enterprise obtains the false invoice and offset after red, in the recipient enterprise to offset the completion of the state tax has been lost, false invoicing crime has been presented in the final state. And after the red punch, in not found by the judicial authorities to actively return the loss of national taxes, or can be recognized as a crime of minor circumstances, mitigated or exempted from criminal penalties, there are also some cases of non-prosecution in practice.

In summary, the author believes that the false invoices are not offset after the red flush, can be exempted from criminal penalties. Even if the red punch is offsetting the completion of the false invoices, there is also the possibility of exemption from criminal penalties.

(ii) red flushing false invoices, can be exempted from administrative penalties?

The revision of the Administrative Penalty Law in 2021 had a significant impact on flexible enforcement in the tax field. It establishes a system of minor impunity, first-time impunity and no-error impunity, aiming to realize the rule of law through education. Therefore, the tax sector should also fully understand the purpose of the revision of the Administrative Penalties Law, and try its best to avoid impunity where it can.

First, if the recipient enterprise does not obtain the invoice out of subjective malice such as cheating to offset the national tax, and does not offset the inputs and take the initiative to make a red flush, it does not have the subjective intention to violate the law, and will not be subject to administrative penalties. According to the provisions of Article 33(2) of the Administrative Penalty Law, "if the party concerned has sufficient evidence to prove that there is no subjective fault, no administrative penalty shall be imposed". The administrative offense of false invoicing requires the perpetrator to be subjectively intentional, and negligence does not constitute false invoicing, but only wrongful invoicing, omission, at the same time, if the perpetrator can provide evidence to prove that it is not subjectively intentional, then it can be exempted from administrative penalties.

In the aforementioned case, the enterprise involved in the case let the platform to make up the invoice after the essential reason is that the enterprise involved in the case is limited by the provisions of the pre-sale payment supervision account, can not pay the service fee to Lv and other natural persons, so through the spirit of the platform service fee paid to the natural person, rather than fraudulent offsetting the national tax. The enterprise involved in the case provided the tax authorities with the provisions of the presale payment supervision account and other materials, which could prove that it did not have the subjective purpose of fraudulently offsetting the tax, but rather to fulfill the obligation to pay the natural persons. In addition, the enterprise concerned did not offset the tax after obtaining the invoice and made a red flush, and its objective behavior also showed that the subjective purpose of the enterprise concerned at that time was not to fraudulently offset the national tax. Therefore, the author believes that the behavior of the enterprise concerned in obtaining false invoices is a minor violation of the law and can be corrected in time through the red flush without causing any damage, and the tax authorities should not impose a fine on the enterprise concerned.

Second, if the recipient enterprise in the deduction of false invoices after taking the initiative to red flush can also be mitigated or reduced penalties. According to the provisions of Article 32(1) of the Administrative Punishment Law, "if the party concerned takes the initiative to eliminate or reduce the harmful consequences of the illegal behavior, the punishment shall be mitigated or reduced". If the invoiced enterprise is unable to obtain the input ticket after carrying out the business, obtains the invoice from a third party other than the counterparty and deducts it, and then takes the initiative to carry out the red flush, eliminates the harmful consequences of the illegal behavior, and does not cause the loss of national tax, according to the provisions of this article, the punishment shall also be mitigated or reduced.

In summary, the author believes that, at the administrative level, red rush false invoices that have not been credited can be exempted from administrative penalties; red rush false invoices that have been credited, which have not resulted in national taxes, should be mitigated or reduced penalties.

IV.Inspiration: flexible employment platform should also pay attention to tax compliance

Although the case did not disclose the handling of flexible employment platform as the invoicing party, we can infer that since the invoiced enterprise was subject to a tax audit and characterized the invoice in question as false invoicing, the platform's tax-related risks will certainly be triggered through the tax co-inspection process. flexible employment platform also attach importance to tax compliance, and they serve as a bridge connecting labor-using enterprises and laborers, playing the role of aggregation. As in the aforementioned case, the key evidence for the tax authorities to determine that the invoice obtained by the enterprise in question was fraudulently issued lies in the contractual agreement between the enterprise in question and the flexible employment platform, which stipulates that flexible employment platform is not legally responsible for the business between the employing enterprise and the laborers, and that flexible employment platform does not play the role of a facilitator.

Therefore, the authenticity of the business is the bottom line of the flexible employment platform's sustainable operation, and the flexible employment platform should avoid becoming an invoicing tool between labor-using enterprises and laborers. To this end, flexible employment platform should establish a sound internal control system for the flexible employment platform, strengthen the audit of the authenticity and compliance of the business between enterprises and laborers, and effectively isolate the risk of violation of the law.