First, the concept and its composition
The crime of tax evasion means that taxpayers and withholding agents deliberately violate tax laws and regulations, forge, alter, conceal or destroy account books and vouchers without authorization, overstay expenses or omit income in account books, and refuse to declare or make false tax returns after being notified by the tax authorities, which is a serious act.
(A) the object elements
The object of this crime is to abolish the national tax management system, which is the general name of various national taxes and tax collection methods, including the collection object, tax rate, tax payment period, tax collection management system and so on. Taxable products that do not pay taxes, do not pay taxes according to the prescribed tax rate and tax payment period, and violate the tax management system are all violations of China's tax management system. If the behavior of the actor does not violate the national tax management system, but violates the national foreign trade management system or financial foreign exchange management system, it does not constitute this crime. For example, criminal activities must have the nature of evading national tariffs, but the import and export tariffs of the country are collected under the supervision of the customs, so the direct object it infringes on is the foreign trade management system of the country, not the tax management system of the country, so it can only be defined as a crime, not as a crime of tax evasion, and it is even more impossible to impose combined punishment for several crimes for tax evasion.
(b) objective factors
Objectively, this crime is manifested in violation of national tax laws and regulations, forging, altering, concealing, destroying account books and vouchers without authorization, overstating expenditure or underreporting income in account books, refusing to declare or making false tax returns after being notified by the tax authorities, and failing to pay or underpaying tax payable, with serious circumstances.
One is to forge, alter, conceal and destroy account books and vouchers without authorization. The so-called forgery of account books and accounting vouchers means that the actor does not set up account books in accordance with the provisions of the tax law at ordinary times in order to evade taxes, and fabricates false vouchers and false account books to deceive others out of nothing in order to cope with tax inspection; The so-called "alteration" of account books and vouchers refers to the tampering, merging or deletion of existing real account books and vouchers to make up for each other, to make up for more with less or to make up for less with more, or to make off-balance sheet bookkeeping and off-balance sheet operation, which makes people misunderstand their business amount and taxable items and achieve the purpose of not paying or paying less taxes. This method is mostly adopted by individual operators, which makes it impossible for tax officials to know their operating income and expenditure.
Second, itemize expenses or omit or omit income in the account books. The actor tried to reduce the tax payable through this move to achieve the purpose of tax evasion. The main method is,
(1) the secret record of the sale;
(2) After the products are directly priced to pay off debts, they are not recorded as sales;
(3) It has been sold but has not been invoiced or arrived at the warehouse with white stripes but has not recorded the sales situation;
(4) Use fines, late fees, liquidated damages and compensation to offset sales revenue;
(5) After the exhibits or samples are priced, they are not accounted for according to the sales volume, and so on. In addition, it is also a common method for actors to hide their income by opening accounts in multiple banks and using them at the same time, but only providing one of them to tax officials.
Third, false tax returns. Tax declaration is the premise of paying taxes according to law. Taxpayers must file tax returns within the statutory time, and truthfully submit tax returns, financial and accounting statements and other tax payment materials required by tax authorities. Actors often achieve the purpose of tax evasion by making false declarations on production scale, profit and loss, income and other contents. The actor sometimes falsely reports one item, and sometimes falsely reports several items.
The above three behaviors are the generalization of the crime of tax evasion. In fact, the specific forms of tax evasion in judicial practice are varied, and each behavior often contains some specific tax evasion methods, which are common:
1. Forging or tampering with account books and vouchers is the most common way of tax evasion. This method is mostly adopted by individual operators, and generally accounts are not established or not established as required, so that tax officials cannot understand their operating income and expenditure. For example, the owner of an individual store records the income and expenditure in a self-made paper account book, uses some numbers and symbols that only he can understand, and refuses to establish accounts on the grounds of "illiteracy" and "illiteracy" after repeated inspection and supervision, which is actually an opportunity to evade taxes; State-owned and collective enterprises often evade taxes by forging or tampering with account books. Enterprises must set up account books, so in this respect, enterprises often use account books less to evade taxes. For example, a collective enterprise produces matches, and the person in charge of the enterprise "writes articles" on the account books in order to pay less taxes, recalculate the material pool, re-list the costs, raise more expenses and reduce depreciation. And evade income tax and value-added tax. For individual employees, they evade personal income adjustment tax by means of multiple interests other than wages. Through the above means, there is a huge gap between book income and actual income, book expenditure and actual expenditure. As a result, more than 500 thousand taxes were paid less.
2. Set up a "small treasury" and an off-balance-sheet account. Taxpayers set up two accounts, a real account and a fake account. The real account is practical, but the fake account is handed over to tax officials for inspection as a tax basis. Some are for-profit enterprises, that is, artificially making losses on false accounts, and some count large business amounts to real accounts and small business amounts to false accounts, resulting in the illusion of poor operating conditions, thus paying less taxes.
3. Multi-line account opening conceals income. Some taxpayers open accounts in several banks and use them at the same time, but only provide one to the tax authorities, hiding a lot of actual income. For example, an enterprise has accounts in both ICBC and China Construction Bank, but only registered ICBC accounts with the tax authorities. Within one year, I took 2 million yuan from ICBC and 6,543.8+0.5 million yuan from CCB, which shows the large proportion of tax evasion: in order to avoid inspection, the flaws were exposed.
4, under the guise of invoices, tax evasion. Invoice is not only the proof of accounting for commodity buyers, but also the tax basis for commodity sellers. Therefore, some lawless elements have made a fuss about invoices in order to evade taxes. The most typical is the "big head and small tail" invoice. In accordance with due process, the invoice shall be issued in duplicate, and the contents shall be exactly the same. One for the customer, and the other for the stub for future reference. The former is the so-called "head" and the latter is the so-called "tail". The actor only filled in the invoice truthfully, but missed the stub, forming a big head and a small tail. Of course, with the "small tail" as the tax basis, the actor can evade taxes; What's more, the damage caused by destroying or hiding the invoice stub is more serious: in addition, some actors alter the invoice to profit from it.
legal ground
People's Republic of China (PRC) tax collection management law
Article 40 If a taxpayer or withholding agent engaged in production or business operations fails to pay or remit the tax within the prescribed time limit, and the tax payment guarantor fails to pay the guaranteed tax within the prescribed time limit, the tax authorities shall order him to pay within the prescribed time limit. If it fails to pay within the time limit, the tax authorities may take the following compulsory measures with the approval of the director of the tax bureau (sub-bureau) at or above the county level:
(1) Notify its bank or other financial institution in writing to withhold taxes from its deposits;
(2) To seal up, detain, auction or sell off commodities, goods or other property whose value is equivalent to the tax payable according to law, and use the proceeds from auction or sale to offset the tax.
When the tax authorities take compulsory measures, they shall also enforce the overdue fines unpaid by the taxpayers, withholding agents and tax payment guarantors listed in the preceding paragraph.
Houses and articles necessary for individuals and their dependents to maintain their lives are not within the scope of compulsory enforcement measures.
Article 52 If the taxpayer or withholding agent fails to pay or underpays the tax due to the responsibility of the tax authorities, the tax authorities may require the taxpayer or withholding agent to pay back the tax within three years, but no late fee will be charged.
If a taxpayer or withholding agent fails to pay or underpays the tax due to miscalculation and other reasons, the tax authorities may recover the tax and overdue fine within three years; Under special circumstances, the recruitment period can be extended to five years.
For tax evasion, tax refusal or tax fraud, the tax authorities shall recover the unpaid or underpaid taxes, late payment fees or tax fraud, and shall not be limited by the time limit specified in the preceding paragraph.