On February 28th, 2009, the Seventh Session of the 11th the National People's Congress Standing Committee (NPCSC) deliberated and adopted the Criminal Law Amendment (VII). The amendment made a major amendment to the crime of tax evasion in Article 201 of the Criminal Law. The revised content reads: "Taxpayers who make false tax returns or fail to declare by deception or concealment, and evade paying a large amount of tax, accounting for more than 10% of the tax payable, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and fined; If the amount is huge and accounts for more than 30% of the tax payable, it shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and fined. " If the withholding agent fails to pay or underpays the tax by the means listed in the preceding paragraph, and the amount is relatively large, it shall be punished in accordance with the provisions of the preceding paragraph. "If the acts mentioned in the preceding two paragraphs have been repeatedly implemented without treatment, it shall be calculated according to the accumulated amount." "Whoever commits the act mentioned in the first paragraph, after the tax authorities have issued a notice of recovery in accordance with the law, pays the tax payable and the overdue fine, and is subject to administrative punishment, shall not be investigated for criminal responsibility; However, unless you have received criminal punishment for tax evasion within five years or have been given administrative punishment by the tax authorities for more than two times. "
This revision will have an important and far-reaching impact on cracking down on tax evasion, maintaining the order of tax collection and management, safeguarding national tax revenue, and urging taxpayers to actively fulfill their tax obligations according to law. The following further introduces the legislative background and main contents of the relevant provisions of the Seventh Amendment to the Criminal Law.
Why should we amend the crime of tax evasion?
1997 the first paragraph of article 201 of the criminal law stipulates the moral elements and punishment of the crime of tax evasion: "if a taxpayer falsifies, alters, conceals or destroys account books and vouchers without authorization, and refuses to declare after being notified by the tax authorities, or makes false tax returns, and fails to pay or underpays the tax payable, the amount of tax evasion accounts for more than 10% and less than 30% of the tax payable. If the amount of tax evasion is more than 10,000 yuan but less than 100,000 yuan, or the tax authorities give tax evasion a second administrative punishment for tax evasion, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined not less than one time but not more than five times the amount of tax evasion; If the amount of tax evasion accounts for more than 30% of the tax payable, and the amount of tax evasion is more than 100,000 yuan, it shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and a fine of not less than one time but not more than five times the amount of tax evasion. " In the process of legislative investigation, People's Republic of China (PRC) public security organs, procuratorial organs, legal organs and State Taxation Administration of The People's Republic of China reported that the provisions of the criminal law on tax evasion encountered the following problems in practice:
The expression of tax evasion is too complicated, resulting in different understanding in law enforcement practice. In practice, whether it is necessary to meet all the above conditions or only one of them can constitute the crime of tax evasion, especially whether "refusing to declare after being notified by the tax authorities" is an independent act or a necessary condition of tax evasion, there are often different understandings in theory and practice. In addition, questions such as whether the means of tax evasion listed in the provisions are complete and whether the taxpayer's tax evasion by means not listed in the provisions constitutes a crime are often raised.
The amount standard of the crime of tax evasion stipulated in Article 20 1 is too low. With the development of economy, the income of taxpayers is increasing day by day. If we strictly follow the tax evasion standards stipulated in the criminal law, the blow will be greater and greater. In view of the above situation, on June 4, 2002, the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Tax Evasion and Refusal to Pay Taxes raised the starting penalty for tax evasion to 50,000 yuan, clearly stipulating that "if the amount of tax evasion is less than 50,000 yuan, taxpayers and withholding agents have paid the tax payable and late fees in full before the public security organs put on file for investigation, and if the crime is minor and no punishment is needed, they can be exempted from criminal punishment". It is understood that some provincial and municipal public security organs, procuratorial organs and legal organs jointly stipulate that those who have paid the tax payable and late payment fees in full before the public security organs put on record for investigation may not be convicted.
There are two gaps between the two sentencing grades. According to the provisions of Article 201, in practice, if the amount of tax evasion accounts for more than 10% but less than 30% of the taxable amount, but exceeds 100,000 yuan, or if the amount of tax evasion accounts for more than 30% of the taxable amount but less than 100,000 yuan, how should the judicial organ handle this behavior, whether it should be convicted and how should it be punished if convicted? It is often controversial.
The overlapping work of public security and tax inspection departments in investigating tax evasion cases has adversely affected the normal operation of enterprises. Before the revision of the crime of tax evasion, the tax inspection department and the public security economic investigation department have the right to investigate cases of suspected tax evasion by enterprises. The traditional view of China people is that if the police go to any enterprise to investigate crimes, I'm afraid there is something really wrong with this enterprise. Without knowing whether the reported tax evasion exists or constitutes a crime, the public security organs' involvement in the investigation of enterprises or individual operators will inevitably have a negative impact on their reputation, production and business activities.
The negative effects of the crime of tax evasion are enormous. According to the regulations, if an enterprise evades taxes to a certain amount and proportion, once it is discovered, it will be convicted regardless of whether the enterprise voluntarily pays taxes and late fees or accepts fines. This may lead to bankruptcy of enterprises, laid-off workers need to be resettled, and business owners are sentenced for tax evasion. Obviously, this kind of treatment is not good for the country, society, enterprises and myself, and it is not conducive to building a harmonious society.
Learn from foreign experience and re-recognize the crime of tax evasion.
The word "tax evasion" in China's criminal law is called "tax evasion" in foreign criminal law, and it is Tax escape in English, which refers to the behavior of citizens to avoid fulfilling their tax obligations. We are used to calling this behavior "tax evasion", mainly because it is traditionally believed that if a company or individual evades paying less taxes to the state, it is as hateful as a thief stealing from the state treasury. But this is not the case. It is obviously inappropriate to say that a person evaded taxes and paid less than 1000 yuan to the state, and that he stole 1000 yuan from the state treasury. Tax evasion has nothing to do with stealing. Paying taxes means that taxpayers hand over part of their legitimate income to the state and fulfill their tax obligations. In fact, this involves the distribution of interests between individuals and countries, and cannot be simply described as theft. Compared with other illegal and criminal acts, tax evasion is a common behavior in all countries. The concept of crime in China's criminal law is very different from that in most foreign countries: it is also an act prohibited by criminal law, and only when China requires economic crimes and property crimes to reach a certain amount can it constitute a crime, otherwise it is just an illegal act; In foreign countries, there is no requirement for a specific amount. As long as the behavior prohibited by the criminal law is carried out, no matter how much it is, it theoretically constitutes a crime. Even so, for tax evasion, most countries don't convict tax evasion as soon as they find it, but mostly take special measures to deal with tax evasion, which is different from other ordinary crimes: tax evasion is often strictly investigated, civil fines are very high, and few people are really convicted. The annual tax loss caused by tax evasion in the United States is about $300 billion. In 2007, there were nearly 25 million cases of civil punishment (fines) involving tax evasion, and only112 people were actually sentenced.
Tax practice at home and abroad has proved that the deterrence of conviction and punishment alone can not effectively solve the problem of tax evasion, but strengthening tax supervision and establishing credit records of units and individuals for public inquiry can more effectively urge citizens to consciously fulfill their tax obligations. In the social environment that pays attention to honesty and credit records, enterprises and individuals who do not seriously fulfill their tax obligations are bound to be at a disadvantage in economic and social activities such as obtaining bank loans, participating in bidding and signing performance contracts. Because of their poor credit record, sometimes they even push the enterprise to the wall. This invisible deterrent is far more important than conviction and punishment in prompting enterprises and individuals to fulfill their tax obligations according to law.
Comparison between the old and new contents of tax evasion crime
Drawing on the useful experience and practices of foreign countries, considering that the main purpose of cracking down on tax evasion is to maintain the order of tax collection and management, ensure the national tax revenue, and at the same time help urge taxpayers to actively fulfill their tax obligations according to law, the Criminal Law Amendment (VII) has made the following amendments to the crime of tax evasion:
1. The expression of the charge was revised, and the charge was changed from "tax evasion" to "tax evasion", and the word "tax evasion" was changed to "tax evasion".
2. The means of tax evasion are not listed in detail, but expressed in general terms. "Taxpayers use deception or concealment to make false tax returns or not to declare" to adapt to various complicated situations that may occur in practice and avoid paying taxes.
The amendment mainly classifies tax evasion into two categories:
The first category is "taxpayers make false tax returns by deception, concealment and other means", which is well understood and not much different from the specific means of tax evasion before the revision of the criminal law. Common ones are: setting false account books and accounting vouchers; Tampering with account books, accounting vouchers, etc. ; Destroying or disposing of accounting books and vouchers that are in use or have not expired without the approval of the competent tax authorities; In the account book, the expenditure is listed more or the income is listed less or not.
The second kind of behavior is "non-declaration", which refers to the behavior of not reporting taxes to the tax authorities. This is also a common way for taxpayers to evade their tax obligations, and the situation is more complicated than the previous one. The main performance is that the legal entity that has obtained the industrial and commercial business license has not gone through the tax registration with the tax authorities, or the legal entity that has gone through the tax registration has business activities, but refuses to declare to the tax authorities or refuses to declare after being notified by the tax authorities.
3. The amendment does not stipulate the specific amount standard of tax evasion accounting for more than 10% of the taxable amount, and the specific amount standard of tax evasion accounting for more than 30% of the taxable amount constitutes a huge amount. This is mainly because in economic life, the situation of tax evasion is very complicated, and the same amount of tax evasion has different harm to society in different periods. The law does not stipulate the amount, so it is more appropriate to leave it to the judicial organs for judicial interpretation and adjust it according to the actual situation.
There are special provisions not to pursue criminal responsibility for first-time offenders of tax evasion. According to the provisions of the amendment, if the tax evasion has reached the prescribed amount and proportion standard, which has constituted a first offence, if it meets the following three preconditions, it may not be investigated for criminal responsibility: First, after the tax authorities issue a notice of recovery according to law, they will pay back the tax payable; The second is to pay late fees. Third, it is subject to administrative punishment by tax authorities. Here it is necessary to make some special explanations on the meaning of the third condition. The amendment stipulates that the first offender of the crime of tax evasion shall be given "administrative punishment" by the tax authorities after paying taxes and late fees, and shall not be investigated for criminal responsibility. During the deliberation and revision of the draft, the Law Committee conducted a special study on whether the parties involved in tax evasion can file an administrative lawsuit against the "administrative punishment" (punishment decision) of the tax authorities, and agreed that since the fourth paragraph of the amendment is a special provision for lenient treatment of tax evaders who have constituted a crime and should be investigated for criminal responsibility, there is no question that tax evaders should pay taxes and late fees first, and then file an administrative lawsuit with the tax authorities on whether the so-called administrative punishment is necessary or reasonable. Therefore, changing the final legal provision to "subject to administrative punishment" not only means that the tax evader has received the decision of administrative punishment (mainly administrative fine) from the tax authorities, but more importantly, whether the tax evader has actively paid the fine is an important criterion to judge whether the tax evader has repented of his behavior that has constituted a crime. If a taxpayer who has constituted the crime of tax evasion refuses to actively cooperate with the tax authorities and meets the three conditions of not being investigated for criminal responsibility as stipulated in the fourth paragraph of this article, the tax authorities shall transfer the case to the public security organ for investigation and criminal judicial procedures, and investigate the criminal responsibility of the parties concerned.
5. Provisions are also made for cases where the amount and proportion of tax evasion crimes are not exempted from criminal responsibility. The fourth paragraph "except those who have received criminal punishment for tax evasion or have been given a second administrative punishment by the tax authorities within five years" embodies the legislative idea of dealing with those who refuse to reform after repeated education. However, it should be pointed out that the term "except those who have been given administrative punishment by tax authorities for more than two times" does not mean that those who have been given administrative punishment for tax evasion for two times should be convicted when they are given administrative punishment for tax evasion for the third time, and it is no longer necessary to meet the requirements of the amount and proportion of tax evasion crimes. This understanding is incorrect. The special clause of not investigating criminal responsibility in the fourth paragraph of this article is aimed at tax evaders who meet the standard of tax evasion amount and proportion stipulated in the first paragraph. Therefore, a person who has been given more than two administrative punishments by the tax authorities for tax evasion must meet the amount and proportion standards stipulated in the first paragraph before he can be investigated for criminal responsibility.
During the drafting, revision and deliberation of the draft, some people suggested that the draft stipulated the conviction and sentencing standards for tax evasion, that is, it must reach a certain amount and a certain proportion. There is no need to stipulate that both conditions must be met. It is suggested that as long as it reaches a certain amount or a certain proportion, it can constitute a crime. After studying and listening to the opinions of the Supreme People's Court, the Supreme People's Procuratorate, State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) and other relevant departments, the Law Committee believes that the situation of taxpayers' failure to fulfill their tax obligations is more complicated, and the scale and tax payable of different tax-paying enterprises are quite different, so it is more appropriate to take the amount of tax evasion and the proportion of tax evasion to the tax payable as the conviction standard. This has been in judicial practice for many years and should not be revised. The Standing Committee adopted this opinion.
Retroactivity of the revised crime of tax evasion
Although the crime of tax evasion was changed into the crime of tax evasion in the seventh amendment to the Criminal Law, the specific acts and scope of cases under its jurisdiction are basically the same as the original crime of tax evasion, and the biggest difference lies in the addition of special provisions not to investigate the criminal responsibility of tax evasion. According to the provisions of Article 12 of the General Principles of Criminal Law, the principle of non-retroactivity and lenient punishment shall be applied to acts that occurred before the formulation of the Seventh Amendment of Criminal Law. That is to say, 1997 criminal law considers it a crime, and amendment (7) of the criminal law also considers it a crime. If it should be prosecuted according to the provisions of section 8 of Chapter IV of the General Principles of Criminal Law, criminal responsibility shall be investigated according to 1997 criminal law; If the criminal law amendment (7) does not consider it a crime or the prescribed punishment is relatively light, the provisions of the criminal law amendment (7) shall apply. Specifically, the crime of tax evasion before the promulgation of the Criminal Law Amendment (VII) should also be investigated, but there are two points to pay attention to when deciding whether to investigate criminal responsibility: First, it depends on whether the actor meets the three conditions of not investigating criminal responsibility stipulated in the Criminal Law Amendment (VII). Those who meet the conditions may not be investigated for criminal responsibility; Do not meet the requirements, shall be investigated for criminal responsibility; The second is to see whether the amount of tax evasion by the actor reaches the standard and prescribed proportion of "large amount". The specific standard of "large amount" shall be determined according to the provisions of relevant judicial interpretations.
The revision of the crime of tax evasion will change the way of division of labor and cooperation between tax inspection organs and public security economic investigation departments in handling tax evasion cases in the future. The fourth paragraph of Article 201 of the amendment stipulates a special clause that tax evasion shall not be investigated for criminal responsibility, and whether to pay back taxes and late fees and accept administrative punishment from tax authorities is a prerequisite for whether to investigate criminal responsibility for first-time tax evasion offenders. This provision will definitely change the way of division of labor and cooperation between tax inspection organs and public security economic investigation departments in handling tax evasion cases in the future. Obviously, it is no longer appropriate for the public security economic investigation department to take the initiative to intervene in the investigation of tax evasion cases in the future. This is because, according to the special provisions of the amendment, whether tax evasion can be investigated for criminal responsibility mainly depends on whether the tax evader meets the three preconditions stipulated by law, and these three conditions mainly depend on whether the tax evader can actively cooperate with the work of the tax authorities, pay back taxes and late fees, and accept administrative penalties from the tax authorities. Therefore, it is a logical choice for the public security economic investigation department to wait for the tax authorities to transfer tax evasion cases that need to be investigated for criminal responsibility. Of course, in addition to tax evasion cases and other tax-related criminal cases, the public security economic investigation department should take the initiative to intervene in the investigation.