Editor's Note:Fraudulent export tax rebate refers to the administrative offenses stipulated in Article 66 of the Tax Collection and Administration Law. Unlike the determination of tax fraud, which is subject to the constraints of modesty of criminal law, there is a hidden tendency to expand the determination of tax fraud due to the broad discretion of administrative authorities to determine the offense and the low standard of proof. According to the author's observation in practice, the common dispute lies in the fact that although the tax authorities do not have a preponderance of evidence to prove that the goods are falsely exported, they still qualify the tax fraud by the inconsistency of the filing documents, customs declaration and other documents. In view of this, this paper combines the filing of documents, customs declarations, tax fraud results in three issues to be studied in order to clarify the controversy over the elements of tax fraud for the general reader's reference.

I. Can fraudulent export tax refunds be denied only by identifying inconsistent or false documents on file?

(I) Case: the enterprise was characterized as fraudulently obtaining export tax rebates due to the uncertainty of the authenticity of the bill of lading for ocean transportation

Company A is a foreign trade enterprise located in a coastal province.In 2019, Company A entered into a cooperation agreement with Company B located in Hong Kong, whereby Company A purchased furniture, shoes, socks, garments and other goods in China and exported them for sale to Company B. Company B proposed that Company B was actually the agent of a large retail enterprise group in the U.S., and that the relevant goods were to be transported to the U.S. In order to avoid the risk of picking up the goods as well as the risk of ocean transportation, Company B had to designate the customs broker and the freight forwarder as well as the shipping company. In order to avoid the risk of cargo pick-up and sea transportation, Company B has to designate the customs broker, freight forwarder and shipping company, and Company A does not have the right to obtain the bill of lading before picking up the goods. After the transaction is completed, Company B transmits the electronic copy of customs declaration, bill of lading, manifest, photos and other information to Company A by e-mail, and Company A declares and files the tax refund.

The Municipal Inspection Bureau carried out inspection of Company A due to the rapid growth of its export volume. During the inspection, it was found that the bill of lading filed by Company A was different in format from the sample bill of lading provided by the shipping company. It then retrieved the bottom sheet of the bill of lading of the shipping company and found that the bottom sheet of the bill of lading of Company A and the bottom sheet of the bill of lading of the shipping company were different in terms of the consignor, the quantity of goods and other elements.

Accordingly, the Inspection Bureau considered that Company A belonged to "exporting with borrowed goods", and characterized it as cheating export tax rebate and punished Company A. Company A disagreed and applied for administrative reconsideration.

(II) Dispute over factual findings: what facts can be proved by the Municipal Inspectorate's evidence?

The Municipal Bureau of Inspection, with the shipping company's bill of lading, pointed out that the consignor on the bill of lading was not company A. At the same time, the Municipal Bureau of Inspection found the consignor on the bill of lading, Company C, by Company C issued a "situation statement", stating that "the bill of lading is the whole case exported by Company C, and has nothing to do with Company A". Accordingly, it considered that Company A's export facts were false.

Company A argued that the facts were unclear and there was insufficient evidence, and also argued that subjectively it did not have the intention to cheat tax; objectively, it did not exclude the reasonable suspicion of exporting goods in a consolidated container, and could not disprove the fact of exporting goods from Company A. Company A submitted purchase invoices, purchase contracts, invoices of domestic transportation freight for the transportation of the goods to the port, sales contracts, manifests, and legal foreign exchange settlement information issued by the Bank of China.

(III) Dispute over the application of law: Does the judicial interpretation of the Supreme Law include the filing of documents?

The Municipal Inspection Bureau mainly relies on the Notice of the State Administration of Taxation on Publicizing and Implementing the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Fraudulently Obtaining Export Tax Refunds (GuoShuiFa 〔2002〕 No.125), Article 1, Item (2): "Obtaining the Customs Declaration for Exported Goods (hereinafter referred to as the Declaration), Export Collection and Cancellation Order (hereinafter referred to as the Cancellation Order), Special Payment Letter for Exported Goods and other relevant export tax refund documents and vouchers through forgeries, falsification or other illegal means ), export collection and remittance check (hereinafter referred to as the check), special payment book for exported goods and other relevant documents and vouchers for export tax rebate". Company A considers that "relevant export tax refund documents and certificates" in this Article is not limited to the above three documents, but includes all export documents and certificates.

Company A thinks that the word "etc." in this article only means "the list is completed", which belongs to "etc. within etc.". The Municipal Inspection Bureau, as an administrative body, could not interpret the provisions of the Supreme Court's judicial interpretation in an expansive manner.

(IV)Our view: according to the current provisions of the State Administration of Taxation, the filing of documents that do not match or are false can not be directly characterized as tax fraud

First of all, to solve a problem at the factual level. Municipal Inspection Bureau relies on the "situation statement" of this kind of documentary evidence, can not prove the fact of false export, can only prove the fact that the bill of lading is false. Company A's goods procurement process information is complete, the goods are real tax paid, the invoice is legal, there is no motive to borrow goods export. At the same time, A company's foreign exchange information is also legal compliance, if the goods are not really exported, and how to obtain foreign exchange?

Secondly, the State Administration of Taxation issued [2002] No. 125 and its citation of the Supreme Court judicial interpretation, the time is long, and the current State Administration of Taxation norms are in conflict. Should follow the General Administration of the new policy documents.

First, Article 5(9) of the Announcement of the State Administration of Taxation on the Relevant Issues of the <Methods for the Administration of Value-added Tax and Consumption Tax on Exported Goods and Labor Services> (Announcement of the State Administration of Taxation No. 12 of 2013) stipulates that, "the filed documents such as bill of lading or waybill of the exported goods are forged or false", and that VAT levy policy applies, and if it is found to be If it is found to be tax evasion, it shall be dealt with according to the corresponding provisions. It can be seen that the General Administration believes that only the filing documents are false, which is not a tax fraud.

Secondly, Item (3) of Article 13 of the Announcement of the State Administration of Taxation on the Issuance of <Measures for the Administration of Value-added Tax and Consumption Tax on Exported Goods and Labor Services> (Announcement of the State Administration of Taxation No. 24 of 2012) stipulates that: "Where an export enterprise provides false filing documents, the competent tax authorities shall impose penalties in accordance with the provisions of Article 70 of the Law of the People's Republic of China on the Administration of Collection of Taxes. " This article clearly stipulates that the false filing documents can only be punished according to the provisions of Article 70 of the "Tax Collection and Management Law" to "evade, refuse or otherwise obstruct the inspection of the tax authorities" to be punished, not to fraudulent export tax rebates.

Third, the State Taxation Development [2002] No. 125 cited in the judicial interpretation only lists three: customs declaration, cancellation orders, export goods special payment book. These three export documents have a commonality: they are tax rebate application documents, rather than filing documents. Even if the tax authorities to expand the interpretation, can only have the same legal effect of the tax rebate application documents into it, can not be expanded to the record documents. If unrestricted arbitrary expansion, and export tax rebates related to so many documents, as long as there is false is fraudulent export tax rebates?

Therefore, the author believes that just because the bill of lading and other documents for the record does not match, it is taken for granted to infer that it must be "borrowed goods export", the fact that there is a huge loophole in the determination, lack of legal basis. 

II. The goods are actually exported, but the customs declaration is inconsistent or false, can be characterized as tax fraud?

(I) The above case of extension thinking: whether the existence of customs declaration does not match, it must constitute tax fraud?

The author above from the case into, sorting out the status and role of the record documents and its legal effect in the determination of fraudulent export tax rebates. On this basis to further discuss the customs declaration does not match or false situation. There is a view that the false customs declaration as a judicial interpretation of the "false export" one of the circumstances, that the parties have the objective behavior of tax fraud, there should be no doubt. But is it really so? We still need to think about the normative system from the General Administration of Taxation.

First of all, if there are data discrepancies in the customs declaration, the export tax rebate can be suspended, verified by the competent tax authorities, rather than directly characterized as tax fraud, which reflects the prudent attitude of the General Administration of Taxation. The State Administration of Taxation Announcement No. 12 of 2013, Article V (5) states: "The competent tax authorities find that the export business of the export enterprise or other unit has one of the following circumstances,...... to be verified by the tax authorities to exclude the corresponding doubts before the tax refund (exemption) or release of the guarantee. ......3. The commodity names, quantities, amounts and other contents of export documents such as customs declarations for exported goods, export invoices, sea bills of lading and other export documents are inconsistent with the import declaration data of the importing country (or region)." Then the customs declaration data inconsistency, only to start the tax department to verify or check the risk of clues.

Secondly, the State Administration of Taxation has also made it clear that the inconsistency of the customs declaration alone is treated as domestic sales for tax purposes, and only those who are found to have fraudulently obtained export tax refunds or tax evasion will be dealt with according to law. State Administration of Taxation Announcement No. 12 of 2013, Article V (IX) states: "The export of goods and services exported by export enterprises or other units, the competent tax authorities, if found to have one of the following circumstances,...... apply the VAT levy policy. If it is found to be tax evasion, it shall be dealt with in accordance with the corresponding provisions. ....... The customs declaration for exported goods is obtained by means of customs brokers and other units fictionalizing the goods exported by others as the exported goods of this enterprise." Then it is obvious that acts such as false customs declaration are not sufficient to fully support the determination of fraudulent export tax rebate, and its probative power as evidence alone fails to meet the standard.

Third, the determination of fraudulent export tax refunds should also take into account the subjective intent. For example, the same is the judicial interpretation of the behavior of false export declarations "to obtain false invoices", but the General Administration of the clear provisions of the good faith to obtain false invoices, is not recognized as fraudulent export tax refunds, only to recover the tax refund. If the taxpayer is a good faith to obtain the customs declaration, such as customs declaration is tampered with by the customs broker, the enterprise subjectively does not know, can not be recognized as fraudulent export tax rebates.

With the "National Tax Authorities Export Tax Refund (Exemption) Management Work Specification (Version 2.0)" (Taxation General Development [2018] No. 48), the tax authorities have set up different positions within the tax authorities, the provisions of the audit process of the export tax rebate declarations, focus on the audit content, etc., the documents are only one of the audit content of the tax authorities, the documents do not match or false can not be launched taxpayers do not have the real export of goods, there may be Due to filling errors, business model, business practices and other reasons lead to the single inconsistent, false.

In addition, at the time of foreign exchange reform in 2012 canceled the write-off sheet. Enterprises are not required to go through the export collection and remittance write-off procedures, and no longer provide write-offs when declaring export tax refunds. Prior to this, the checklist is also the same as the customs declaration, are applying for export refunds of the necessary documents, but with the export system is perfect, simplify the process, the checklist was canceled can also be seen in the continuous simplification of the export tax rebate process, to facilitate the convenience of taxpayers at the moment, the customs declaration of the completion of the specifications, the use of the rules and so on with the customs clearance and management reforms to promote the synchronization of the customs declaration will not be unchanged.

To sum up, the customs declaration as a declaration of export tax rebate vouchers, although in foreign trade and economic activities to play an important role, but only because the customs declaration does not match can not get the existence of tax fraud taxpayer intent or the existence of fraudulent behavior, and more can not be characterized taxpayers for tax fraud.

(II) The core and essence of export tax rebate is still the real export of goods, as long as the domestic tax is paid and the real export, it is not appropriate to recognize as tax fraud.

The essence of China's export tax rebate system mainly focuses on the real export of goods. As long as the goods are really exported, generally should not be recognized as fraudulent export tax rebates, this is because:

First, the essence of the system of export tax rebate is to allow goods to be exported outside the country at a price that does not include tax to participate in international competition. Therefore, as long as the goods are taxed domestically, their exported goods should be refunded.

Secondly, the basic provision of the export tax refund system, i.e., Article 2(4) of the Provisional Regulations on Value-added Tax, provides that "Taxpayers exporting goods shall be subject to a tax rate of zero, except where otherwise provided by the State Council." This provision does not add other requirements for taxpayers, but only requires that "taxpayers exporting goods" shall be subject to a tax rate of zero.

Third, in line with the Supreme People's Court's judicial decisions. For example, the supreme people's court (2013) the people's mention word no. 73 case, after a first trial, second trial, retrial proceedings, the supreme people's court that "export tax rebate is our country to encourage the export of measures taken, and there is no real goods exported and fake exports, is not fraudulent state export tax rebate under the circumstances of foreign trade contract actually performed and has been Fulfillment of the foreign trade contract is actually performed and has been completed, there is a real export of goods, the export enterprise to obtain export tax rebates in line with the provisions of China's laws and administrative regulations." It can also be seen that the key point of the Supreme Court's determination of export tax rebate also lies in the authenticity of the export of goods.

To summarize, the taxpayer who has exported real goods and has made sales treatment in finance and has paid the tax payable in the previous stage in China should be entitled to the right of export tax refund.

(III) False export declaration does not necessarily have the resultant element of tax fraud, and there is no loss of national VAT payment in smuggling and other behaviors.

Article 66 of the Tax Collection and Administration Law clearly stipulates that the constitutive elements of fraudulent export tax rebate under administrative law are: one is the objective aspect, the perpetrator objectively implements the behavior of false export declaration or other deceptive means; the second is the subjective aspect, the perpetrator subjectively has the intention to cheat the tax; and the third is the objective result aspect, the perpetrator's objective behavior cheats the national tax rebate, resulting in the loss of the tax. Only by simultaneously satisfying the constituent elements of tax fraud under administrative law can the behavior of the perpetrator be characterized as tax fraud. However, the actor's objective behavior of falsely declaring exports does not necessarily cause the loss of export tax rebates, and the actor's behavior cannot be characterized as tax fraud.

For example, according to the provisions of Article 15 of the Foreign Trade Law, the state may prohibit the export of the relevant goods based on national security, social public interest or public morality, people's health or safety, protection of animal and plant life or health, protection of the environment and other reasons. The perpetrator will declare the export of gallium and germanium related items prohibited from export by the state through false means, which may be suspected of smuggling and other illegal behaviors, but it will not infringe on the legal interests of the state's export tax rebate system and will not result in the loss of the state's value-added tax.

In conclusion, the act of falsely declaring exports does not necessarily have the resultant element of loss of tax for fraudulently obtaining national tax refunds.

III. How is the objective result element of tax fraud determined, and is it tax fraud as long as a refund is obtained?

(I) The essence of export tax rebate is to refund the value-added tax and consumption tax paid in the domestic transaction of exported goods.

Export tax rebate has two meanings in tax law. First, the goods in the export process are exempted from value-added tax (VAT) and consumption tax; second, it is a refund of VAT and consumption tax that have been paid in the country in the process of production and sale of goods before export and the upper limit of the refund is the domestic VAT and consumption tax that has been borne by the goods. The calculation of the amount of VAT and consumption tax refundable depends on the VAT invoices and special payment certificates for consumption tax for the purchase of exported goods. Therefore, in practice, taking the means of "buying a single ticket" to obtain export tax refund is the most common means of tax fraud, i.e., through the behavior of false VAT invoices, the non-tax-paid goods will be falsely constituted as the tax-paid goods to obtain export tax refund. In addition, there is also the means of "low value and high report", i.e., through the behavior of falsely opening the amount of goods, the low-value goods will be forged into high-value goods, and more export tax rebates will be declared.

In fact, this is also the intention of the legislator. Article 204, paragraph 2, of the Criminal Law provides that a taxpayer who, after paying taxes, adopts false export declarations or other deceptive means to cheat the taxes paid shall be convicted and punished in accordance with the provisions of the crime of tax evasion, which requires that the amount of taxes cheated and the amount of taxes paid in the previous session be equal; only the part of the taxes cheated that exceeds the amount of taxes paid shall be punished in accordance with the provisions of the crime of fraudulently obtaining an export tax rebate.

It can be concluded from this that the administrative offense corresponding to the crime of tax evasion is tax evasion as stipulated in Article 63 of the Tax Collection and Administration Law, then according to the systematic interpretation, the objective result of the taxpayer's fraudulent export tax rebate shall not include the value-added tax and the consumption tax that should have been paid in the previous domestic segment. After researching, the author found that there are also some scholars holding this view (although some scholars are attacking the reasonableness of the provision of the second paragraph of Article 204, they still recognize that as long as it does not exceed the portion of the tax paid, it does not constitute tax fraud.) , but unfortunately, after a public search, no judicial authority has used the provisions of the second paragraph.

In the author's opinion, the provisions of the second paragraph are reasonable, in the case of real export of goods, only when the "low value overstatement" etc. exceeds the amount of tax paid domestically to apply for export tax rebate, the over-applied portion constitutes tax fraud.

(II) According to the principle of substantive taxation, the taxpayer's acquisition of the tax actually paid is not a tax fraud and does not result in a tax loss.

As mentioned above, as long as the goods are truly exported, they are entitled to export tax refund. It should be emphasized here that if the taxpayer has paid the domestic value-added tax (VAT) and consumption tax before the export of the goods in a real and complete manner, he is entitled to obtain the tax refund in accordance with the Provisional Regulations on Value-added Tax (VAT) and the principle of export tax refund. It has not caused any loss to the national tax by obtaining the tax refund. At the same time, the author also needs to emphasize that, according to the principle of substantive taxation, the tax authorities should determine whether the elements of taxation are met according to the actual situation, economic purpose and substance, so as to determine the tax liability of the taxpayers, rather than determining whether taxation should be imposed based on the appearance and form only.

At this time, the taxpayer does have goods exported in economic substance, and should enjoy the right to export tax rebate, just because the record documents, customs declaration and other formal materials do not match, the tax authorities deprived the taxpayer of the substantive rights and interests of the tax rebate, which is in fact contrary to the principle of substantive taxation. However, this is the State Administration of Taxation to take into account the efficiency of the collection and management of the problem, in the "fight against fraudulent export tax rebates" and "protection of the rights and interests of export taxpayers" before the trade-offs made.

In this for the sake of the efficiency of the collection and management, forcing the taxpayers whose goods are really exported to refund the tax rebate, or even to treat the goods as domestic sales, has already given the taxpayers a kind of extremely serious burden. In particular, the penalty of stopping the right to export tax refunds will make many foreign trade taxpayers shut down and go bankrupt. If these taxpayers who export real goods are further characterized as fraudulent export tax rebates, the penalty is too much, excessively infringing on the rights of taxpayers.

Therefore, whether the taxpayer has the result of "fraudulent export tax rebate", can not only look at its declaration of how much national tax, but also to implement, study the Criminal Law, Article 204, paragraph 2, the connotation, the purpose of the taxpayer to obtain the part of the tax payment is not the objective result of fraudulent export tax rebate, does not constitute fraudulent export tax rebate.

IV.Summarize: the core element of fraudulent export tax rebate is still fictitious export of goods, and can not be expanded arbitrarily.

Facts as the basis, the law as the criterion is not only the requirements of the judicial organs, but also the relevant government departments in law enforcement should follow the principle. Tax authorities in law enforcement, should be adhering to the core and substantive elements of fraudulent export tax rebates, to identify the authenticity of exported goods, the strict application of fraudulent export tax refunds of the constituent elements, can not be based only on the documents do not match, defects and other formal elements of the presumption that taxpayers have fictitious export of goods, and to properly grasp the fight against fraud and to encourage the balance of foreign trade and export and the boundaries.