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, destroy account books and vouchers without authorization, overstay expenses or omit income in account books, refuse to declare after being notified by tax authorities or make false tax returns, and the circumstances are serious.
(A) the object elements
The object of this crime is the abolition of the state's tax management system, which is the general name of various national tax and tax collection methods, including the collection object, tax rate, tax payment period, tax collection management system, etc. Any taxable product that does not pay taxes, fails to pay taxes according to the prescribed tax rate and tax payment period, and violates the tax management system are all violations of China's tax management system. If the actor's behavior does not violate the national tax management system, but violates the national foreign trade management system or the financial and foreign exchange management system, it does not constitute this crime. For example, criminal activities are bound to have the nature of evading national tariffs, but the import and export tariffs of the country are supervised and collected by the customs, so the direct object it infringes upon 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 combine several crimes with tax evasion.
(B) objective elements
Objectively speaking, this crime is manifested in violation of national tax laws and regulations, by forging, altering, concealing, destroying account books and vouchers without authorization, overstating expenditure or omitting 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 the tax payable, which is a serious act.
First, forge, alter, conceal or destroy account books and vouchers without authorization. The so-called forged account books and accounting vouchers refer to the fact that the actor did not set up account books in accordance with the tax law at ordinary times in order to evade taxes, and fabricated false vouchers, false account books, made things out of nothing and deceived others in order to cope with tax inspection; The so-called "alteration" of account books and vouchers means that the existing real account books and vouchers are tampered with, merged or deleted, so as to make up for one another, to make up for more with less or to make up for less with more, or to make off-balance-sheet accounts, off-balance-sheet operations, and the truth and falsehood coexist, thus making people misunderstand their business amount and taxable items, and achieving the purpose of not paying or paying less taxes. This method is mostly adopted by individual operators, so that tax officials can't know their operating income and expenditure.
Second, itemize expenses or omit or omit income in the account books. The actor tried to reduce the taxable amount and achieve the purpose of tax evasion through this move. The main methods are,
(1) Ming pin secret record;
(2) After the products are directly priced to pay off debts, they are not recorded as sales;
(3) It has been sold without invoicing or arrived in the warehouse with white stripes without recording sales;
(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 sales, and so on. In addition, it is also a common method for the actor to hide the income by opening accounts in multiple lines and using them at the same time, but only providing one of them to the tax staff.
Third, make false tax returns. Tax declaration is the premise of paying taxes according to law. Taxpayers must apply for tax declaration within the statutory time and truthfully submit tax declaration forms, 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 ways of behavior are a general summary of tax evasion crime. In fact, the specific forms of tax evasion in judicial practice are varied, and each behavior often contains a number of specific tax evasion methods, the common ones are:
1, forging or altering account books and accounting vouchers, which 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 know their operating income and expenditure. For example, the owner of an individual store records the income and expenditure on a self-made paper 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 inspections and supervision, which is actually an opportunity to evade taxes; State-owned and collective enterprises often evade taxes by forging or altering account books. Enterprises must set up account books, so in this regard, enterprises often use less account books to evade taxes. For example, if a collective enterprise is a manufacturer of matches, the person in charge of the enterprise "writes articles" in the account books in order to pay less taxes, recalculate the material pool, re-list the costs, raise more fees and less depreciation, etc., and evade income tax and value-added tax. For individual employees, the personal income adjustment tax is evaded by means of multiple interests other than wages. Through the above means, there is a huge gap between book income and actual income, and book expenditure and actual expenditure. As a result, various taxes are underpaid by more than 500,000 yuan.
2. Set up a "small treasury" and set up an off-balance-sheet account. Taxpayers set up two accounts, true and false, and the real account is practical, but the false account is taken as the real account and handed over to tax officials for inspection as a tax basis. Some of them are profit-making enterprises, that is, they artificially create losses on false accounts, and some count large-scale business amounts to real accounts, while recording small-scale business amounts to false accounts, resulting in the illusion of poor business conditions, thus paying less taxes.
3. Multi-line account opening and concealing income. Some taxpayers open accounts in multiple banks and use them at the same time, but only provide one to the tax authorities, hiding a large amount of actual income. For example, an enterprise has an account in ICBC and China Construction Bank, but only registered the account number of ICBC with the tax authorities. Within one year, it took 2 million yuan in ICBC and 0/500,000 yuan in China Construction Bank, which shows that its tax evasion ratio is large: in order to avoid inspection, it revealed flaws.
4, under the guise of invoices, tax evasion. Invoice is not only the accounting voucher of commodity buyers, but also the tax basis of commodity sellers, so some lawless elements use their brains and write articles on invoices in order to evade taxes. The most typical is the "big head and small tail" invoice. According to due process, the invoice shall be issued in duplicate, and its contents shall be completely consistent. One copy is given to the customer and the other copy is kept as a stub for future reference. The former is the so-called "head" and the latter is the so-called "tail". The actor only fills in the invoice truthfully, but omits the stub, which forms 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 is even more serious by destroying or hiding the invoice stub: in addition, some actors alter the invoice to profit from it.
legal ground
Law of the People's Republic of China on the Administration of Tax Collection
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 he fails to pay within the time limit, the tax authorities may take the following enforcement 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) Seizing, sealing up, auctioning or selling commodities, goods or other property whose value is equivalent to the tax payable according to law, and using the proceeds from the auction or sale to offset the tax.
When the tax authorities take enforcement measures, they shall also enforce the overdue fines unpaid by the taxpayers, withholding agents and tax payment guarantors listed in the preceding paragraph.
Housing 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 payment fee shall be added.
If the taxpayer or withholding agent fails to pay or underpays the tax due to miscalculation and other mistakes, the tax authorities may pursue the tax payment and overdue fine within three years; Under special circumstances, the period of conscription can be extended to five years.
For tax evasion, tax refusal and tax fraud, the tax authorities shall pursue the unpaid or underpaid taxes, late fees or tax fraud, and shall not be limited by the time limit specified in the preceding paragraph.