Recently, a staff member of a flexible labor platform was found by the court to have committed the crimes of false VAT invoicing and false invoicing and was held criminally liable for accepting the instructions and arrangements of the platform and being responsible for docking with downstream companies and enterprises with invoicing needs to facilitate the business of false invoicing. With the development of flexible labor business in recent years, the urgency of tax compliance has become increasingly prominent. In practice, flexible labor platforms are often used as a tool for enterprises to make false invoices and evade taxes, with increasing risks. In view of this, this article takes this case as a guide and discusses issues such as insufficient inputs and common risky business of flexible labor platform for the benefit of readers.

Ⅰ. Brief description of the case: the use of gold stamps to increase the entry after the external false openings

(Ⅰ) Basic facts of the case

From 2020 to July 2022, Company A, Company B, Company C and other relevant companies of Group L, in order to achieve the purpose of obtaining relevant benefits through false VAT invoicing, "after fraudulently obtaining input VAT invoices by issuing VAT invoices through the purchase of gold from China Gold Corporation and immediately conducting lock-up repurchase without physical transactions" It also fraudulently issued VAT invoices for downstream companies in need of such invoices through the use of flexible labor platforms for fictitious employment and false transactions.

From May 2020 to April 2022, during the period when Defendant Shan Moumou served as a salesman of Company A, in accordance with the instructions and arrangements of the Company, he docked with downstream companies and enterprises with invoicing needs, and after facilitating the intention of cooperation, he cooperated with the Company's fulfillment department, finance department and other departments, and falsely issued VAT invoices for the downstream companies and enterprises by adopting the method of fund return in the name of fictitious promotion fees, technical service fees, human resources service fees, etc. . Among them, the amount of tax involved in the false invoicing of VAT special invoices by Shan was more than 6,940,000 yuan; and the amount of false invoicing of ordinary VAT invoices was more than 1,380,000 yuan. Through these two acts of false invoicing, Defendant Shan Moumou obtained illegal income of more than 130,000 yuan during his employment.

(Ⅱ) Court Opinion

The court firstly held that the "promotion fee, technical service fee and human resource service fee" of the flexible labor platform did not have any real business and belonged to false invoicing. Defendant Shan Moumou, knowing that the company he worked for had no actual transactions with the outside world or provided false services, still acted according to the requirements to carry out the behaviors of falsely opening VAT special invoices and falsely opening ordinary VAT invoices for others, which constituted the crimes of falsely opening VAT special invoices and falsely opening invoices, and should be punished together with the several offenses.

Immediately after that, the court held, with regard to the identity of the defendant's company employee, that he played a secondary and auxiliary role in the joint crime and was an accessory, and that he confessed the facts of the crime truthfully after arriving at the case, surrendered the illegal proceeds and voluntarily pleaded guilty and admitted the punishment, so he should be given a lighter and mitigated punishment according to the law. Therefore, Shan Moumou, despite the false VAT amount of nearly 7 million yuan for external contacts, still achieved the result of three years' imprisonment and five years' probation.

(Ⅲ) Summary

Comprehensively analyzing this case, the tax-related risk points of the flexible labor platform business have undergone new changes. In the past, the business dilemma of the lack of input invoices for flexible labor platforms has existed for a long time, and therefore particularly relied on the financial rebates from local governments or the commissioned qualification of tax authorities to collect and issue invoices on behalf of local governments. However, as the central government cleans up the illegal financial rebates and local tax policies, the business model of flexible labor is unsustainable, and the cost of the platform is rising. Therefore, many platforms began to find ways to solve the problem of input. In this case, the spiritual labor platform in question is associated with the traditional "golden ticket", which further complicates the business.

In order to sort out the common risks of the spiritual work platform, this paper starts from the means of the false promotion of the spiritual work platform in the case, and further sorts out the common spiritual industrial business mode in practice and analyzes the risks.

Ⅱ. Why can "golden ticket" help the flexible labor platform to improve the project?

(Ⅰ) The death of the input of flexible labor platforms

Since its inception, the flexible labor platform has been responsible for improving the efficiency of human resource allocation, reducing the cost of employment of labor enterprises and protecting the tax compliance of labor enterprises and other multiple functions. From the intermediary position of Lingong Platform in the business model, the transaction between flexible workers and labor-using enterprises is built on the basis of its "matchmaking": flexible workers and labor-using enterprises register on the platform as natural person members and enterprise members respectively, enterprise members release labor demand on the platform, and flexible workers take orders on their own, and reach a transaction agreement with enterprise members. Flexible workers will take orders and reach a trading agreement with the enterprise members and provide labor and services to them. In this process, the Lingong Platform collects labor service fees from the labor-using enterprises and pays the flexible laborers on their behalf, and on the other hand, it collects agency service fees from the labor-using enterprises, which are included in the platform's revenue.

From the tax point of view, the Lingong platform has effectively alleviated the difficulties in the traditional mode of labor employment, and by obtaining the qualification of entrusted levy and invoicing, it has also brought the collection of personal tax of flexible workers into the regulatory field. However, the problem of the difficulty of obtaining input invoices for labor-using enterprises under the traditional labor-using mode has been transferred to the Lingong platform. Previously, flexible workers were unwilling to issue invoices for labor-using enterprises, and now they are also unwilling or unable to issue invoices for the Lingong platform.

Against this background, some of the spiritual work platforms take the opportunity to apply to the competent tax authorities on behalf of the flexible workers to issue VAT invoices for themselves, or issue VAT invoices for themselves by virtue of the qualification of entrusted levy and invoicing, and may even choose to illegally purchase invoices for transportation fees, labor fees, postal and telegraphic charges to offset inputs and cost deductions as a means of solving the invoicing dilemma. However, there is still a large portion of spiritual labor platforms relieving invoice dilemma and alleviating excessive tax burden by relying on local fiscal rebates. What's more, some of them use the financial rebate as a tool to make profit by false invoicing, and falsely issue VAT invoices for others without real transactions, which triggers criminal liability.

(Ⅱ) "Gap" and "Threshold" of "Gold Ticket" Supplementary Platform Inputs

In October 2002, the Shanghai Gold Exchange (referred to as "on the gold") officially run, immediately became China's only legitimate national gold trading venues. The SGSE implements a member-based organization, and in accordance with the current VAT tax policy for gold trading, the member units of the SGSE sell standard gold through the SGSE (with the "Gold Trading Settlement Voucher" issued by the SGSE), and are exempted from VAT if no physical delivery occurs; if a physical delivery occurs, the tax authorities will issue VAT invoices in accordance with the actual price of the transaction and implement the policy of "instant VAT refund", as well as exempting the city from the VAT. The VAT refund policy is also implemented, while the urban maintenance and construction tax and education surcharge are exempted.

Under this favorable policy, the liquidity of gold is greatly improved, and the sales of gold through the Gold Exchange will be legally issued invoices, and the gold distribution industry does not have the problem of insufficient inputs. As the downstream of gold distribution enterprises is gold retailers, the downstream customers of gold retailers are individual consumers, who do not have the habit or need to ask for VAT invoices, so the incentive for gold retailers to obtain input invoices is greatly weakened, resulting in a large number of "surplus votes" accumulated by gold distribution enterprises in their operations. These "surplus invoices" became the source of the inputs of the Lingong platform in this case.

In the past, "gold ticket" false opening is often used to solve the problem of waste materials recycling business enterprises, electrolytic copper enterprises and alloy enterprises can not obtain input invoices, but even if the same "metal", these enterprises on behalf of the opening "gold However, even if they belong to the same "metal", these enterprises open "gold invoices" on behalf of the actual sales of processed copper or copper alloys, and it is easy to be tax audited due to the inconsistency of the name of the goods imported and sold. Therefore, it is often necessary to graft a ticket-changing enterprise between the gold distribution enterprise and the ticket-using enterprise, and change the gold ticket into an alloy and electrolytic copper invoice. In this case, the business scope of the spiritual industry platform is obviously lack of connection with the production, processing and sales of gold, its "gold ticket" as input, to the offset link is also difficult to make a reasonable explanation of the phenomenon of deviation from the input and sales, more likely to trigger tax audits.

Ⅲ. The high risk of spiritual industry business model

Relying on the development of Internet technology, the rapid development of the spiritual labor platform, the market scale is steadily increasing, the development space is very broad. At the same time, regulation in the field of taxation has been gradually strengthened, and a large number of cases of fraudulent opening of spiritual labor platforms have surfaced, so the tax risk of spiritual labor platforms has risen steeply, and there is an urgent need to strengthen tax compliance.

(Ⅰ) "Salary planning" for employees by converting the nature of income

In this case, the Lingong platform in question invoiced downstream enterprises in the name of technical service fees and human resource service fees, and the corresponding economic behavior is likely to be the "remuneration" of the enterprises that use the labor. According to the provisions of the Individual Income Tax Law and its implementing regulations, wages and salaries and remuneration for labor services belong to comprehensive income, and the applicable tax rate is up to 45%, which makes the tax burden of high-income groups quite heavy. While the maximum applicable tax rate for business income is only 35%, and it is possible to deduct business costs, expenses and losses before tax, coupled with the fact that in the past, some regions have provided extremely favorable approved levy policies or financial rebates for locally incorporated sole proprietorships and individual businesses in order to attract investment and encourage development, so that by converting the wages, salaries and remuneration for labor services of high-income individuals into business income, the comprehensive tax burden can be realized. income, the effect of greatly reducing the comprehensive tax burden rate can be realized.

In practice, one of the important directions for the profitability of the Lingong Platform is to help high-income groups to carry out "salary planning". That is to say, by registering sole proprietorship enterprises and individual households on behalf of high-income individuals in places where approved levies and financial rebates are provided, helping them to forge tax information and yin-yang contracts, convert the nature of their income, and split their income, high-income individuals, who are not entitled to any tax incentives, are thus placed within the scope of tax incentives.

As a matter of fact, the behavior of high-income individuals seeking a low tax burden is highly susceptible to being recognized as tax evasion, and the spiritual work platforms that provide advice in this process are not spared and are highly susceptible to being recognized as helping to evade taxes. According to the provisions of Article 98 of the Implementation Rules of the Tax Collection and Management Law, if a tax agent violates the law and causes tax evasion, the taxpayer shall be responsible for paying back the tax and late fees, while the tax agent shall be fined at the rate of more than 50% and less than three times of the taxpayer's unpaid or underpaid tax. If the taxpayer's tax evasion is transformed into the criminal responsibility of tax evasion, the spiritual work platform constitutes aiding and abetting offense.

Not only that, in the case of (2023) Shanghai 0113 Criminal No. 729 published by the Shanghai High Court, the defendant Chang Mou, during the period of personnel work in the labor-using enterprise, in order to reduce the company's operating costs, split the salary and tax avoidance for the employees and technicians, and in the name of flexible labor, without the occurrence of the real service, to pay 6.8% of the invoicing fee, so that the Spiritual Worker Platform back to the payroll, and for the labor-using The enterprises falsely issued VAT invoices with a total of more than 7 million yuan in price and tax. Defendant Chang was sentenced to one year and three months' imprisonment and one year and three months' probation for the crime of false VAT invoicing. If the Lingong platform does not have the defense of bona fide invoicing, it may also be found to be an accomplice to the crime of false invoicing. The introduction of the case in this paper reflects this criminal risk.

(Ⅱ) "Cost planning" for enterprises through false invoicing

In practice, some labor enterprises in order to avoid the obligation to withhold wages for employees and pay social security tax, will allow employees to be attached to the spiritual platform, in the name of providing labor services to engage in the work arranged by the enterprise, and in the form of payment of labor fees to pay their remuneration. In this process, some flexible platforms, under the banner of realizing compliant accounting without invoices and reducing labor risks and labor costs for enterprises, recklessly issue false invoices without real business transactions. In this way, labor-using enterprises can obtain invoices issued by the platform for cost deduction, or even obtain special invoices for offsetting inputs. However, under the current trend of strong tax supervision of the whole chain, regardless of the motive of the spiritual labor platform for external false invoicing, even if the labor-using enterprise cheats the platform for false invoicing and maliciously receives invoices, once one party in the chain is in a thunderstorm, the risk of tax-related risks will be transmitted to the upstream and downstream enterprises.

(Ⅲ) Advance payment return business which is easy to trigger the suspicion of fund return

In this case, the spiritual labor platform involved in the external false opening link there is a return of funds. This phenomenon is also relatively common in the business model of flexible labor and is prone to tax risks.

Although the return of funds is usually associated with false invoicing, not all return of funds constitutes false invoicing in practice. In the case of flexible labor business, it is mainly due to the fact that cash or private account transfers are used to settle the employment. In some employment matters, after completing the designated labor and services, the flexible laborers requested the labor-using enterprises to settle the remuneration immediately, so the labor-using enterprises first took the private account transfer method to pay the individuals. However, when the labor-using enterprise settles with the platform, it needs to pay the corresponding amount to the platform, and in order to achieve account compliance, the platform will then pay the collected amount to the individual bank card designated by the labor-using enterprise.

Although this behavior has a real business, this kind of apparent advance payment does produce the phenomenon of "fund return" and repeated payment from the employing enterprise to the individual, and it is very easy for the tax authorities to deny the authenticity of the employment based on "fund return". If the platform does not have sufficient evidence to support the authenticity of the business, it is likely to be recognized as a platform false opening.

Ⅳ. Conclusion: Strengthening tax compliance and isolating tax-related risks

Under the current policy conditions and market environment, the platform is facing the difficulties of insufficient inputs and cost deduction in the upstream, and the risk of customer fraud in the downstream. Facing the individuals in flexible employment, the platform may also fail to make withholding and payment in accordance with the law, as well as improper application of policies that lead to overstepping the legal boundaries of the planning, which may lead to the pursuit of tax evasion and other legal liabilities.

 Based on this, the platform should abide by the bottom line of business authenticity, ensure that the identity of flexible workers is real and there is no labor relationship with the employer through strict data auditing, ensure that the remuneration is actually paid to the flexible workers themselves, and try to avoid acts such as collection, advancing and other acts, as well as settlement methods such as cash or private account transactions. In addition, in the daily business, the platform should do a good job of retaining business information, auditing and confirming that the service content, duration, price and other information on the labor contract is consistent with the actual provision of labor services, and accordingly forming a complete chain of evidence of the true nature of the business, so as to leave a trace of verification information and prevent the customer from implicating itself in the risk.