According to the provisions of the Criminal Law and relevant judicial interpretations, false invoicing of VAT includes four modes of behavior: false invoicing for others, false invoicing for oneself, letting others false invoicing for oneself, and introducing others to false invoicing. However, in specific cases, are the invoicing party and the invoiced party necessarily guilty of the same crime? Why some cases in the invoicing party constitutes false opening, but the invoiced party does not constitute false opening? This article discusses the responsibility determination of different subjects in the behavior of false invoicing of VAT special purpose invoices through two corresponding cases of the invoicing party and the invoiced party, as well as how to prevent the risk of false invoicing in the daily transactions of the invoiced enterprises in practice for the readers' reference.

I. Case

(I) The invoicing party was characterized as guilty of false VAT invoicing

Brief introduction of the case: in February 2012, a certain sun coal sales limited company was registered in a county of Zhangjiakou city, and in September of the same year, defendant Zheng became a shareholder of the company and actually operated the company; from July 2013 to December 2014, Zheng also successively registered in a county of Zhangjiakou city, for the purpose of illegal profit-making, and set up a certain billion coal sales limited company, a certain long coal sales limited company, a certain up to coal Ltd. From November 2012 to February 2016, in the absence of real business, Zheng Jun, in the name of the above nine companies, directly or indirectly through Defendants Han Moujun, Wu Mouming, Zhao Mouzhen and others, falsely issued a total of 4,009 VAT invoices for others, with a face value of RMB 3,845,978,040.12 yuan, tax of RMB 6,568,370,720.84 yuan, total price tax of 450,000 yuan, and total price tax of 450,000 yuan, and total price tax of 6,000 yuan, and total price tax of 6,500 yuan. RMB 3,845,979,804.12, tax 65,683,720.84, and total price tax 450,281,524.96 RMB. The above taxes have all been declared for deduction.

The court held that: between 2013 and 2015, Zheng frequently registered new companies and canceled old companies, and the main business of the company during the operation period was the external false invoicing of VAT special invoices, therefore, the company operated by Zheng should be recognized as a tool for his personal criminal activities of false invoicing of VAT special invoices, and did not have the subject qualification of unit crime. Although according to the available evidence, the existence of individual real business (not charged) of the said company cannot be excluded, it does not affect the determination of the overall nature of the company.

The court ruled that: Defendant Zheng violated the regulations on the administration of VAT invoices, and for the purpose of illegal profit-making, falsely issued VAT invoices for others in the absence of real goods transactions with others, and the amount of tax falsely issued was huge, constituting the crime of falsely issuing VAT invoices, and sentenced Zheng to life imprisonment, deprivation of political rights for life, and confiscation of all personal property.

(II) Characterization of the offeree party for illegal purchase of VAT invoices

Brief description of the case: During the actual operation of a certain code limited company in a certain district of Tianjin City, Defendant Xu Mouhui, in order to sell the acquired coal without VAT invoices to others, from 2013 to 2015, he repeatedly purchased a total of 170 VAT invoices from a number of companies operated by Zheng Mou, with a total of 19,273,079.72 yuan in price and tax. Among them, during 2013, 18 fraudulently issued VAT special invoices were purchased from So-yi Coal Sales Co. Ltd, with goods amounting to RMB 1721228.17, tax amounting to RMB 291608.83, and the total tax and price amounting to RMB 2013837. During the period from 2013 to 2014, 124 fraudulently issued VAT special invoices were purchased from So-yi Coal Sales Co. Ltd, with goods amounting to 12,200,243.5 yuan, the tax amount of 207,4041.5 yuan, and the total tax value of 14,274,285 yuan. during 2014, purchased 11 fraudulently issued VAT special invoices from Mou Long Coal Sales Co. Ltd. with goods amounting to 898,029.89 yuan, the tax amount of 152,665.11 yuan, and the total tax value of 10,506,995 yuan. during 2015, purchased fraudulently issued VAT special invoices from Mou Da Coal Sales Co. Ltd. purchased 17 fraudulently issued VAT special invoices, with goods amounting to RMB1653215.96, tax amounting to RMB281,046.76, and tax price totaling RMB1934262.72. False VAT invoices have been fully deducted, after the defendant Xu Mouhui has paid back taxes of more than 2.59 million yuan.

The court held that: the defendant Xu Mouhui was unable to obtain invoices for the acquisition of bulk coal, in order to make up for the inputs, before contacting Zheng Mou, through the payment of fees to buy VAT invoices, his subjective malignancy is small, and after the crime, timely payment of taxes, can be applied to the defendant Xu Mouhui lighter punishment.

The court ruled that: defendant Xu Mouhui illegally purchased VAT invoices from others, his behavior has constituted the crime of illegally purchasing VAT invoices, in view of the defendant Xu Mouhui has the circumstances of self-surrender, meritorious performance, and has paid all the tax, can be a lighter penalty for him. In conclusion, Xu Mouhui was sentenced to two years' imprisonment, two years' probation, and a fine of RMB 30,000, with community corrections to be carried out within the probationary period in accordance with the law.

(III) Summary

Through the two corresponding cases of the invoicing and the recipient party show, it can be seen that, although the recipient enterprise obtains the false invoices from the invoicing enterprise, the invoicing and the recipient enterprise are different in many aspects: the invoicing party is to make illegal gains for the false invoices to the outside world, which belongs to the malice of the invoicing, and the recipient party is only to make up for the inputs, has no subjective purpose of cheating the state tax, and makes up for the tax in a timely manner after the occurrence of the case, which also does not objectively The recipient of the invoice only to make up for the inputs, has no subjective purpose of cheating the state tax, and after the crime, pays the tax in a timely manner, and objectively does not cause the loss of the state tax, which belongs to the good faith. Based on the subjective and objective differences between the two, the convictions and penalties of the invoicing enterprise and the invoiced enterprise are also different.

II. How to recognize the crime of false VAT invoice? The criminal liability of the issuing and receiving parties should be judged independently

According to Article 205 of the Criminal Law, false invoicing of VAT special purpose invoices includes four kinds of ways: for others, for oneself, letting others do it for oneself, and introducing others to do it. The traditional view is that, among the four ways of false invoicing, "letting others falsely invoicing for oneself" is dependent on the existence of "false invoicing of others", so the crime of false invoicing is usually recognized as a pair crime, i.e., the crime of false invoicing is committed with the existence of more than two persons. Behavior of two or more people to each other for the elements of the crime. However, with the continuous development of theory and judicial practice, we should realize that it is not rigorous in both theory and practice to qualify the false invoicing crime as an accomplice crime, i.e., as long as the invoicing enterprise is qualified as the crime of false invoicing of VAT special invoices, the invoiced enterprise is bound to constitute the crime of false invoicing of VAT special invoices.

Theoretically speaking, Article 205 of the Criminal Law belongs to felonious crimes, which can be sentenced to a maximum of life imprisonment, so the criminal acts evaluated should have extremely high social harm in order to comply with the principle of appropriateness of crime and punishment. If the perpetrator does not subjectively have the purpose of cheating the national VAT tax, but commits the act of "false invoicing" for some other purposes, due to the small subjective viciousness of the perpetrator, it will be contrary to the principle of the appropriateness of punishment and crime to pursue his criminal liability for this crime.

In the above case of the crime of illegally purchasing VAT invoices, the court of jurisdiction of the invoiced enterprise ascertained that the Defendant Xu Mouhui was unable to obtain invoices for the acquisition of bulk coal and illegally purchased VAT invoices from others, and that his purpose was different from that of the invoicing enterprise and he did not engage in "false invoicing" for the purpose of fraudulently offsetting the national VAT tax, and he promptly made up for the invoice after the crime. Its own purpose is different from the invoicing enterprise, and it is not "false invoicing" for the purpose of cheating VAT of the country, and it paid the tax in time after the crime was committed, which only disturbed the invoice management order of the country but did not cause infringement to the tax revenue of the country, and it does not meet the object element of false invoicing and should not be subjected to the criminal punishment of false invoicing.

From the practical point of view, the State Administration of Taxation has issued the Circular on Issues Concerning the Handling of VAT Special Invoices Obtained by Taxpayers in Good Faith (Guo Shui Fa [2000] No. 187), which stipulates that the recipient of the invoice who has obtained the false invoice in good faith to fulfill the conditions shall not be punished for tax evasion or fraudulent export tax refund. This document provides a basis for dealing with the case of "the invoiced party obtains the false invoice in good faith" in practice, that is, in judicial practice, if the invoiced party has no knowledge of the invoicing party's malicious invoicing, it does not constitute the false invoicing in the administrative law, and an act that does not constitute a violation of the law necessarily does not constitute a crime, so the invoiced enterprise does not constitute the false invoicing crime in the criminal law either.

The case of the crime of illegal purchase of VAT invoices characterized by the aforementioned invoiced party also confirms that the crime of false invoicing of VAT invoices is not based on the behavior of the invoicing party and the invoiced party towards each other as an element. In this case, the trial authority also affirmed the judgment that the invoiced party does not constitute the crime of false invoicing in the case of "invoicing in bad faith and accepting the invoice in good faith". Therefore, it is inappropriate to recognize the crime of false invoicing of VAT as a joint crime, and the invoicing party and the invoiced party should be viewed independently and characterized separately.

III. The issuing and receiving parties shall be convicted and sentenced respectively, on the basis of clarifying the facts of the case

(I) The recipient enterprise obtains false invoicing, which does not necessarily constitute the crime of false invoicing of VAT special purpose invoices

As in the previously cited case, when the judicial authorities investigated the invoicing party, they ascertained that the defendant Zheng Mou frequently registered a number of companies, whose purpose was to issue invoices for a number of downstream invoiced enterprises and obtain illegal gains, and this kind of behavior of falsely issuing VAT invoices for others for the purpose of illegal profit-making without real goods transactions with others, the amount of tax falsely issued was huge, which constituted the crime of falsely issuing VAT invoices. However, during the investigation of the invoiced party, the judicial authorities ascertained that the invoiced party, Xu Mouhui, had real transactions and did not have the behavior of falsely issuing VAT invoices without real goods transactions, and the accepted VAT invoices were issued according to the real amount of freight charges, and the purpose of its acceptance of the invoices was for the purpose of settling the freight charges with the receiving unit instead of offsetting the tax. Defendant Xu Mouhui subjectively did not have the criminal intent of fraudulent tax deduction, and objectively did not cause the loss of national tax, and did not constitute the crime of false VAT invoices.

To sum up, the author believes that even if the invoicing party has no actual production and operation, the corresponding part of real goods transaction for the invoiced party should be combined with whether the invoiced party examines the corresponding vouchers and other evidences, and should be comprehensively determined from the perspective of subjectivity, objectivity, and other criminal composition, and should not characterize the accepted invoices as false invoicing in an undifferentiated manner. That is to say, in the case of false invoicing, regardless of whether the invoicing and receiving parties are handled together or separately, and regardless of whether they are handled by the same judicial organ in the same region, the facts of the case should be clarified, and sufficient evidence should be obtained on the premise of whether the invoicing party and the receiving party are constituted as false invoicing respectively. At the factual level, the judicial authorities should verify the upstream and downstream purchase and sale transactions, and each transaction involved in the case of contracts, invoices, bank water, flow of goods and other information one by one to restore the facts of the transaction; at the level of evidence, it is necessary to form a complete and closed chain of evidence to corroborate the existence of facts involved in the case, and to remove reasonable doubt. For cases with insufficient evidence and unclear facts, the judicial authorities should adhere to the principle of "benefit of the doubt" and should not make a guilty finding. At the same time, "this crime and the other crime" in the case of the crime of false VAT invoices should be characterized comprehensively by combining the principles of tax law, facts of the case and legal provisions. For some real enterprises that have committed crimes that are less harmful to society and can actively plead guilty and pay back taxes, appropriate consideration can be given to applying the system of non-prosecution for criminal compliance.

(II) Criminal liability for false invoicing should be investigated whether the invoice corresponds to a real goods transaction.

In practice, for the behavior of dependent invoicing, due to the State Administration of Taxation issued the "Announcement on Issues Related to the External Issuance of VAT Special Invoice by Taxpayers" (State Administration of Taxation Announcement No. 39 of 2014), dependent invoicing does not constitute an administrative violation of false invoicing, an act does not constitute an administrative violation necessarily does not constitute a criminal offense, therefore, dependent invoicing does not constitute a criminal false invoicing. This point has been recognized by the vast majority of judicial organs. But for the truth on behalf of open whether constitute false opening, the judicial organs around the viewpoints remain divergent, and there is the phenomenon of different judgments in the same case. In the author's view, in the case of false opening, the judicial authorities should firstly investigate whether the business of the public prosecutor's allegation of suspected false opening is true, and then on the basis of fact-finding, and then convicted and sentenced the party who issued and received the invoices respectively.

Whether the corresponding goods were supplied; (4) whether the quantity and amount of invoices issued by Xu Mouhui from the invoicing party matched the quantity and amount of the purchases; (5) whether Xu Mouhui had falsely increased the tonnage and amount of the goods and over-invoiced the goods. In this case, Xu Mou will find others to invoice for the purpose of settlement of freight, rather than tax deduction. There is no tax fraud purpose to find other people invoicing behavior and tax fraud for the purpose of the social harm of the criminal act of false invoicing is not comparable, therefore, if only to find other companies invoicing behavior that constitute the crime of false invoicing is not only contrary to the legislative intent, but also does not comply with the subjective-objective consistency principle and the principle of criminal responsibility and punishment are compatible with the principle.

IV. Enterprises should be compliant in daily transactions, pay attention to prevent the risk of fraudulent invoicing

(I) to do a good job of prevention and screening, from the source to do a good job of risk prevention and control

Obtaining invoices must originate from the real transaction, and the real transaction business should also ensure that all aspects of the procedures are complete. First, the invoice information should be corresponding; second, the transportation of goods should be traceable; third, the collection unit should be consistent. Before the transaction, enterprises should improve the awareness of prevention, pay attention to the problem of false invoicing in the mind, and do a good job of risk prevention beforehand. It is recommended that the invoiced enterprise to do the necessary understanding of the counterparty before the transaction, through the counterparty's business scope, scale of operation, business qualifications and other relevant circumstances of the investigation, to assess the corresponding risks. During the transaction, the payment for goods should be transferred through the bank account, and it is necessary to verify whether the bank account matches the information stated on the invoice. Upon receipt of an invoice, the enterprise is required to request the relevant information provided by the invoicing enterprise and carefully compare the information related to the invoice. If there is any doubt about the invoices obtained, they should suspend the payment and declaration of input tax deduction and seek help from the tax authorities in time to verify the invoices. Especially for large purchases of goods, or long-term supply of units, should be more focused on the review.

(II) Standardize the invoice clauses in the contract and keep relevant evidence to avoid losses.

According to the tax administration and invoice management laws and regulations, "the payee shall issue invoices to the payer", because the laws and regulations have been clearly defined, so in the process of business activities in the enterprise when signing the contract will rarely be included in the invoice terms of the contract. From the view of judicial practice, some regional courts believe that invoice obligation belongs to the obligation of public law, does not belong to the scope of civil law adjustment, so once the enterprise encounters disputes arising from the invoice problem will fall into the dilemma of public remedy. In order to minimize the enterprise invoice disputes, the following suggestions are made here: firstly, to clarify the invoicing obligation of the payee, and to give priority to the suppliers who can provide the prescribed invoices; secondly, the enterprise should specify the settlement method in the contract and the time for the payee to provide the invoices; thirdly, to specify the type of invoices to be provided by the payee; and fourthly, to specify the liability resulting from the failure to issue invoices in time and the issuance of noncompliant invoices. Civil contract to take the meaning of autonomy, as long as the agreement on liability does not violate the relevant provisions of laws and regulations, are legally effective and binding on all parties to the contract, in the contract terms and conditions of liability can play a role in settling disputes and stopping disputes.

(III) if the invoice is suspected of false invoicing, the authenticity of the transaction should be defended from the point of view

If the invoice issued by the upstream invoicing party is recognized by the tax authorities for false invoicing, the invoice cannot be ruled out that the invoices obtained by the invoicee enterprise is also recognized as false invoicing, and may be transformed to the risk of criminal liability. At this time, the invoiced enterprise must firstly clearly grasp the criteria for the tax authorities to recognize the VAT invoice as "false invoicing", and only by clearly knowing the evaluation criteria can the enterprise defend its legal rights and interests in a targeted manner and avoid suffering unnecessary losses.

Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Decision of the Standing Committee of the National People's Congress on Punishing the Crimes of Falsely Issuing, Counterfeiting and Illegally Selling VAT Invoices (Fa Fa [1996] No. 30) stipulates that the criminal act of falsely issuing VAT invoices consists of the following three categories: ① no purchase or sale of goods or no provision or acceptance of taxable labor services, but issuance of VAT invoices for other people, for oneself, for others, for oneself, for others, for others, for others, or for others. (i) no purchase or sale of goods or no provision or acceptance of taxable services for others, for themselves, so that others for themselves, introduced others to issue VAT invoices for themselves, the amount of VAT invoices issued by an inaccurate quantity or amount; (ii) the purchase or sale of goods or provision or acceptance of taxable services for others, for themselves, for others for themselves, introduced others to issue VAT invoices; (iii) the actual business activities, but to let others to open VAT invoices on behalf of their own. The above provisions set out that the crime of false VAT invoicing in criminal law involves three types of false invoicing behaviors: non-existence of transactions, issuance of VAT invoices that do not correspond to the actual quantity or amount, and allowing others to issue invoices on behalf of others.

Against the above provisions, when the invoiced enterprise is suspected of the crime of false invoicing of VAT, if there are real transactions and payments by the invoiced enterprise and the VAT invoices obtained by the invoiced party are in full conformity with the real business, and it does not belong to one of the three types of false invoicing behaviors mentioned above: non-existence of the transaction, non-conformity of the issued VAT invoices with the actual quantity or amount, and letting other people to issue invoices on behalf of the invoiced party, the invoiced enterprise does not constitute the crime of false invoicing of VAT. VAT invoice crime.

V.Summary

False invoicing crime is one of the more common types of tax-related crimes, and it is also the type of crime that the tax authorities as well as the judicial authorities focus on fighting. In reality, the diversification of transaction forms and the complexity of delivery and payment forms have increased the difficulty of the identification of false invoicing, which has caused some disputes in judicial practice. And the false invoicing crime belongs to felon in economic crimes, and it should be more cautious in the characterization. It should be clear that the crime is not a pair of crime, and it can not be only based on the fact that the invoicing enterprise is characterized as the crime of false invoicing of VAT, and then it is roughly determined that the invoiced enterprise is also inevitably constituted the crime of false invoicing of VAT, and the responsibility of invoiced and invoiced parties are independent of each other, and the judicial authorities should determine the responsibility on the basis of the investigation of invoices corresponding to the transaction situation, and determine whether each party constitutes the crime of false invoicing in accordance with the specific circumstances. The judicial authorities should determine the responsibility on the basis of checking the corresponding transactions of invoices, and make separate determinations as to whether each party constitutes false invoicing according to the specific circumstances. Meanwhile, the author believes that, for the "truthful invoicing" behaviors that do not aim at tax cheating and that there is a real transaction of goods, the crime of false invoicing shall not be determined, and the determination of the specific crime shall be combined with the principles of tax law, the facts of the case, and the legal provisions for the comprehensive characterization.