Editor's Note: Recently, the case of falsely issuing special invoices for value-added tax on the online freight platform of "Shen Shi Sheng Xin logistics platform", which has attracted much attention, ushered in the judgment of the second instance. The court of second instance changed the original crime of falsely issuing special invoices for value-added tax to the crime of illegally selling special invoices for value-added tax, which triggered many thoughts on the handling of tax-related cases on the online freight platform. This paper holds that the behavior of "paying invoices later" on the network freight platform does not constitute tax loss under the background of real transportation business, and should not be regarded as the crime of falsely issuing special VAT invoices, but it should not be punished as the crime of illegally selling special VAT invoices. If criminal responsibility needs to be investigated, the "late compensation" behavior of the platform is more suitable for the crime of false invoicing, which is more in line with the legislative purpose and legal interest protection principle of the crime.

I. Reflections on a tax-related criminal case of online freight platform

Recently, on appeal, the court of second instance changed the judicial nature of the case from "the crime of falsely issuing special VAT invoices" to "the crime of illegally selling special VAT invoices", and reduced the sentencing as appropriate, but the sentencing of the principal offender was still more Sheng Xin years.

Although the sentencing of the crime of illegally selling special invoices for value-added tax is similar to that of falsely issuing special invoices for value-added tax, that is, if the defendant illegally sells a large number of special invoices, he still faces criminal responsibility of more than 10 years' imprisonment or life imprisonment. However, the qualitative change of this case still reflects many problems and disputes in handling new tax-related cases such as online freight platform in current judicial practice, specifically:

First of all, whether there is a problem of tax loss when the platform "reissues invoices" and obtains financial awards;

Secondly, whether this case constitutes the crime of falsely issuing special invoices for value-added tax, the crime of illegally selling special invoices for value-added tax or the crime of falsely issuing invoices.

In order to clarify the above problems, this paper analyzes the above problems one by one from the perspective of tax law principle and business practice, and finally puts forward some suggestions on compliance construction of online freight platform.

II The question of tax loss: Is there any tax loss in the "reissued" invoice of the online freight platform?

(I)Network freight business is easy to fall into the trap of issuing invoices afterwards

In the business operation of online freight platform, it is often the case that "invoices are reissued afterwards", which is also the main risk of causing the platform to falsely open special VAT invoices. This usually refers to the fact that after the transportation service has been completed, the shipping enterprise can't obtain the qualified special VAT invoice from the driver or fleet of the actual transportation business, so it registers as a false driver and provides false transportation information on the online freight platform through various means, so that the online freight platform can make up and issue the special VAT invoice on behalf of the actual business situation.

In this business model, tax authorities, public security organs and other investigators usually think that the business must take place after the establishment of the contractual relationship of online freight, and all parties (especially the actual carrier drivers) must form the agreement of online freight business. However, in the case of post-invoicing, the business has been completed, the online freight platform has not participated in the business development, and the driver may not know the existence of the online freight platform. Therefore, the relevant business does not belong to the legal and compliant online freight business, but is a business of issuing invoices on behalf of others, which is considered as a false issuance without real transportation business.

(II) If the actual carrier provides transportation, it shall be deemed that there is real business

According to the Interim Measures for the Management of Road Freight Transportation on Internet Platform (Transportation Regulation [2019] No.12), the online freight business refers to the road freight transportation business activities in which operators rely on the Internet platform to integrate and allocate transportation resources, sign a transportation contract with the shipper as a carrier, entrust the actual carrier to complete the road freight transportation, and assume the responsibility of the carrier.

As can be seen from the above provisions, the main body that really provides transportation business can only be the actual carrier, and in practice it is mainly the retail driver. The online freight platform only provides an Internet platform, and has entered into a transportation contract and assumed the transportation responsibility. However, the platform itself does not own vehicles and does not actually provide transportation services, but it does not affect the authenticity of the business. The authenticity of the whole business depends on whether the actual carrier provides transportation services. Therefore, it is obviously wrong for some case-handling organs to think that similar cases belong to false opening without real business.

(III) In the case of real transportation business, there is no tax loss only after the invoice is made up

First of all, the premise of the post-invoice is that the actual transportation service has occurred, there is a real transportation business between the shipper and the driver, and the platform has completed the service matching and fee settlement as an intermediary. This means that there are real logistics services and capital flows, which match the contents reflected in the invoice, and there is no fictitious transaction.

Even if the invoice is reissued afterwards, as long as the funds are paid according to the actual transportation costs, that is, the fees paid by the shipper to the platform are consistent with the service value actually provided by the driver, and the platform deducts the service fee and then transfers it to the driver, which shows that the whole capital link is clear and true, and there is no capital backflow. When the shipper's capital payment is true and the actual transportation service is true, it has paid the service consideration including tax truthfully and obtained the substantial rights and interests of input deduction.

Secondly, in the design of the value-added tax system, the service provider is allowed to issue a special VAT invoice to the service recipient, and the recipient can deduct the input tax accordingly. In the scenario of online freight platform issuing invoices, if the platform has paid the corresponding value-added tax according to the actual business, the invoices issued will have the legal right of deduction. The tax deducted by the shipper is exactly the part of tax actually paid to the platform and the platform and actually paid to the tax bureau, and there is no loss of national tax.

In fact, online freight platforms have basically paid the value-added tax of this link truthfully, and there is no evasion of paying taxes. The value-added tax paid by the platform in this link is precisely the value-added tax borne by the downstream shipper, which can also show that the shipper has actually obtained the rights and interests of input deduction.

Finally, although the platform and the shipper are involved in irregular invoice management, if the platform can provide relevant evidence to prove the authenticity of the business, such as transportation contract, waybill and payment voucher, indicating that the invoice is based on the actual business, this behavior may be punished in tax administrative law, but because the online freight platform has paid the value-added tax truthfully, the downstream shipper will deduct the input tax, which will not cause national tax losses, and should not be guilty of falsely issuing special VAT invoices.

III Criminal characterization: the crime of falsely issuing special VAT invoices or the crime of illegally selling invoices?

(I) No tax loss, which does not constitute the crime of falsely issuing special VAT invoices

As mentioned above, the online freight platform may be deceived by false materials provided by downstream enterprises due to non-compliance in business development, or let downstream enterprises provide non-compliant materials to supplement or issue special VAT invoices. However, in the case of real transportation business, this behavior will not cause national tax losses. According to the second paragraph of Article 10 of "Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Tax Collection and Management" (Fa Shi [2024] No.4), "Those who do not cheat to offset taxes for the purpose of inflated performance, financing, loans, etc., and do not cause tax fraud losses due to deduction, shall not be punished for this crime, and those who constitute other crimes shall be investigated for criminal responsibility according to law", which also clarifies this view.

Of course, it is controversial whether the loss of state tax is a constituent element of the crime of falsely issuing special invoices for value-added tax. However, even if only according to the provisions of the second paragraph of Article 10 of the judicial interpretation of the two courts, at least one "crime clause" can be interpreted, that is, if the defendant can prove that his behavior is not aimed at defrauding the tax, and there is no tax fraud loss caused by deduction, he should be guilty according to this article.

In addition, the above-mentioned behavior of "paying back invoices" can also be considered as "issuing invoices according to the facts". According to the 2015 Reply of the Supreme People's Court Research Office on How to Identify the Nature of the Behavior of "Affiliating" with the Company and Letting the Company Falsely Issue Special VAT Invoices for itself (Fa Yan [2015] No.58), if the act of agency opening is based on real transactions and will not cause national tax losses, it is also considered that it should not be treated as this crime. The essence of the judicial interpretation of the two high schools is the continuation of the spirit of the legal research approval in 2015.

(II)The platform invoicing does not meet the crime of illegally selling special VAT invoices.

Then, some judicial organs believe that the online freight platform has the behavior of "replenishing" and "issuing" invoices. Although it has not caused national tax losses, it can be punished according to the crime of illegally selling special invoices for value-added tax in Article 207 of the Criminal Law. According to the provisions of the judicial interpretation of the two courts, illegal sale of special VAT invoices with a face tax of more than 5 million yuan, or illegal sale of more than 500 copies with a face tax of more than 3 million yuan, is a "huge quantity" and can be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, with a fine of more than 50,000 yuan but less than 500,000 yuan or confiscation of property. In this way, the judicial organs have avoided the problem of national tax loss under the condition of consistent sentencing.

However, this paper holds that the crime of falsely issuing special invoices for value-added tax is obviously different from that of illegally selling special invoices for value-added tax. According to the principle of a legally prescribed punishment for a specified crime, the act of falsely issuing "no tax loss" is punished as an illegal sale, which violates the provisions of the criminal law and does not conform to the basic principle of adapting crime to punishment.

First of all, the crime of illegally selling special VAT invoices originated from the 1995 Decision of the NPC Standing Committee on Punishing the Crime of Falsely Issuing, Forging and Illegally Selling Special VAT Invoices. Under the circumstances at that time, there were still cases where taxpayers received blank paper special VAT invoices on a monthly basis, and there might be cases where taxpayers sold blank special VAT invoices to the outside world. This kind of situation is obviously different from false issuance, that is, false issuance must be completed by the drawer, while sales only require the sale of blank invoices.

Secondly, the current "transformation" of the connotation of the crime of illegally selling special invoices for value-added tax leads to the incompatibility between guilt and punishment. It is suggested that the billing party collects the ticket points and billing fees, and then falsely issues invoices to the outside world, which belongs to selling invoices as "commodities", so it constitutes the crime of illegally selling special VAT invoices and the crime of falsely issuing special VAT invoices at the same time, which belongs to implicated offense. Therefore, if the drawee fails to deduct the invoice, or the business has not caused tax losses, the drawer can be held responsible for the crime of illegally selling special VAT invoices.

However, as a result, the crime of illegally selling special invoices for value-added tax is only harmful to the invoice management order, not to the national tax, and the harm is obviously light, but its sentencing standard is consistent with the crime of falsely issuing special invoices for value-added tax, leading to a heavy sentence for misdemeanor. What's more, from now on, the judicial organs will deal with invoicing enterprises without considering any tax losses, invoice deduction and other factors, and directly punish them according to the crime of illegally selling special VAT invoices. Isn't it the result that the crime of falsely issuing special VAT invoices has just got clues and the crime of illegally selling special VAT invoices has been improperly expanded?

Finally, this paper holds that even if the crime of illegally selling special invoices for value-added tax is to be reformed, it should be limited to shell enterprises making false opening to the outside world without any real business, and should not be applied to the act of opening or filling in with real business. For the online freight platform, the replacement and replacement of real business has not caused the loss of national tax, which is less harmful to society. If it is still investigated for criminal responsibility for more than ten years, the guilt and punishment do not match, which is not conducive to the protection of entity enterprises.

(III) The act of "replenishing invoices" on the platform should be punished as the crime of falsely issuing invoices.

To sum up, if there are some irregular operations in the process of issuing special VAT invoices by online freight platforms or other entities, such as post-replenishment and post-replenishment, as long as these behaviors are based on real transportation services, the funds are paid truly, and the correct payment of VAT is finally ensured, and no actual loss of national tax is caused, then from the perspective of criminal law, such behaviors do not constitute the crime of falsely issuing special VAT invoices.

This paper holds that this kind of behavior has little social harm and is caused by the current situation of the industry, so it should not be investigated for criminal responsibility, but for administrative responsibility. However, if it is really necessary to investigate the criminal responsibility of such acts, it should also be investigated according to the crime of falsely issuing invoices. First of all, the act of making up invoices later is more in line with the act of falsely making out invoices than the act of illegal sale. Secondly, this behavior did not abuse the deduction right of VAT invoices, and did not cause national tax losses, which also met the legislative purpose and legal interest protection of the crime of falsely invoicing. Therefore, this paper believes that this behavior is more in line with the composition of the crime of falsely issuing invoices, rather than the crime of illegally selling special invoices for value-added tax.

IV Compliance construction: the road to compliance of online freight platform

Although the network freight platform faces some setbacks in the development process, it still has strong vitality and development space. Therefore, in the future development process, the online freight platform needs to strengthen compliance construction, improve the authenticity and transparency of business data, ensure that every business can provide sufficient evidence support, and maintain good communication with government departments to jointly promote the healthy development of the industry. Specifically, we should do a good job in compliance construction from the following aspects:

1. Real circulation of capital flow: one of the important signs of business authenticity is the real payment of funds. In a typical network freight service, the shipper pays the freight including tax to the platform, and the platform pays the remaining money to the driver after deducting the service fee. This kind of capital flow chain is clear, reflecting real business dealings, rather than fictitious transactions. We must avoid risky behaviors such as capital return and advance payment.

2. Traceability of transportation process: The platform should keep the actual transportation trajectory and business process data, including but not limited to waybill information and driver's position information, which are direct evidence to prove the actual occurrence of transportation business. By recording and saving these data, the authenticity and integrity of the business can be effectively proved. The platform shall establish a sound evidence retention mechanism, including but not limited to contracts, payment vouchers, communication records, location information, etc., so as to form a complete evidence chain and effectively prove the authenticity and compliance of each business.

3. Compliance of invoice issuance: The platform issues special VAT invoices according to the actual transportation business, which ensures that the invoice issuance is consistent with the actual business and reflects the compliance and authenticity of the business. As the taxpayer, the platform needs to pay the corresponding value-added tax according to the actual business situation to ensure that the invoice has the right to deduct.

4. Responsibility for transportation. The network freight platform not only bears the responsibility of billing, but also bears the responsibility of transportation, providing guarantee for the transportation service between the shipper and the driver. This means that when there are any problems in the transportation process, the shipper can pursue the responsibility to the platform, which shows that the existence of the platform is commercially reasonable, not just for invoicing purposes.()