Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration

The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration was adopted by the 1911th meeting of the Judicial Committee of the Supreme People's Court on January 8, 2024 and the 25th meeting of the 14th Procuratorial Committee of the Supreme People's Procuratorate on February 22, 2024. It is hereby promulgated and shall come into force on March 20, 2024.

Supreme People's Court, Supreme People's Procuratorate
March 15, 2024

Fa release [2024] No. 4

Supreme People's Court, Supreme People's Procuratorate

Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration

(Adopted at the 1911th meeting of the Judicial Committee of the Supreme People's Court on January 8, 2024 and the 25th meeting of the 14th Procuratorial Committee of the Supreme People's Procuratorate on February 22, 2024, and effective as of March 20, 2024)

In order to punish the crime of endangering tax collection and administration according to law, in accordance with the relevant provisions of the the People's Republic of China Criminal Law and the the People's Republic of China Criminal Procedure Law, several issues concerning the application of law in handling such criminal cases are hereby interpreted as follows:

Article 1 A taxpayer who makes a false tax declaration under any of the following circumstances shall be deemed as a "means of deception or concealment" as stipulated in the first paragraph of Article 201 of the Criminal Law ":

(I) forges, alters, transfers, conceals or destroys account books, accounting vouchers or other tax-related materials without authorization;

(II) concealing income or property in the form of signing a "yin-yang contract" or decomposing it in the name of another person;

(III) falsely expending, falsely crediting input tax or falsely reporting special additional deductions;

(IV) providing false materials to defraud tax preferences;

(V) fabricating false tax bases;

Other means of deception and concealment used by (VI) for non-payment or underpayment of taxes.

Under any of the following circumstances, it shall be deemed as "non-declaration" as stipulated in the first paragraph of Article 201 of the Criminal Law ":

(I) a taxpayer who has gone through the establishment registration with the registration authority in accordance with the law has committed a taxable act but fails to declare and pay tax;

(II) taxpayers who do not need to go through the establishment registration with the registration authority in accordance with the law or fail to go through the establishment registration in accordance with the law have committed taxable acts and have been notified by the tax authority in accordance with the law to declare but do not declare and pay tax;

(III) others who knowingly should declare and pay tax according to law but fail to declare and pay tax.

If a withholding agent fails to pay or underpays the tax withheld or collected by the means listed in paragraphs 1 and 2, if the amount is relatively large, he shall be convicted and punished in accordance with the provisions of paragraph 1 of Article 201 of the Criminal Law. The withholding agent undertakes to pay the tax on behalf of the taxpayer, and when it pays the after-tax income to the taxpayer, the withholding agent shall be deemed to have "withheld and received the tax".

Article 2 Taxpayers who evade paying taxes of more than 100,000 yuan and more than 500,000 yuan shall be respectively deemed as "large amount" and "huge amount" as stipulated in the first paragraph of Article 201 of the Criminal Law ".

The criteria for determining that the withholding agent fails to pay or underpays the amount of tax withheld or collected shall be in accordance with the provisions of the preceding paragraph.

Article 3 Taxpayers who evade payment of taxes as stipulated in the first paragraph of Article 201 of the Criminal Law shall not be investigated for criminal responsibility if, before filing the case by the public security organ, the tax authorities have issued a notice of recovery in accordance with the law, the tax payable shall be paid in full within the prescribed time limit or the time limit for approving the postponement or installment of payment, and the administrative penalty decision made by the tax authorities shall be fully fulfilled. However, except for those who have received criminal penalties for evading payment of taxes within five years or have been given more than two administrative penalties by the tax authorities.

If a taxpayer has evaded paying taxes and the tax authorities have not issued a notice of recovery in accordance with the law, they shall not be investigated for criminal responsibility in accordance with the law.

Article 4 The "amount of tax evasion" stipulated in the first paragraph of Article 201 of the Criminal Law refers to the total amount of taxes collected by the tax authorities in charge of not paying or underpaying during the determined tax period.

The "tax payable" stipulated in the first paragraph of Article 201 of the Criminal Law refers to the amount of tax that should be paid in accordance with the provisions of tax laws and administrative regulations in the year in which the taxable act occurs, excluding the value-added tax, customs duties, etc. collected by the customs and the amount of tax paid in advance by taxpayers in accordance with the law.

The "percentage of tax evasion in the amount of tax payable" stipulated in the first paragraph of Article 201 of the Criminal Law refers to the ratio of the total amount of tax evasion of each tax type in a tax year to the total amount of tax payable in that tax year; If the tax period is not determined according to the tax year, it shall be determined according to the ratio of the total amount of tax evasion of each tax type to the total amount of tax payable in that year before the last tax evasion. If the duration of the tax obligation is less than one tax year, it shall be determined according to the ratio of the total amount of tax evasion of each tax to the total amount of tax payable during the period when the tax obligation actually occurs.

Tax evasion spans several tax years, and as long as the amount and percentage of tax evasion in one of the tax years meet the standards set out in the first paragraph of Article 201 of the Criminal Law, it constitutes the crime of tax evasion. The amount of tax evasion in each tax year shall be calculated cumulatively, and the percentage of the amount of tax evaded in the amount of tax payable shall be determined in accordance with the highest value of the percentage in each tax year.

"Unprocessed" as stipulated in the third paragraph of Article 201 of the Criminal Law includes unauthorized administrative and criminal treatment.

Article 5 A person who refuses to pay taxes by means of violence or threat under any of the following circumstances shall be deemed as "serious circumstances" as stipulated in Article 202 of the Criminal Law ":

(I) the ringleaders who muster to resist the tax;

(II) intentional injury causing minor injuries;

(III) other serious circumstances.

If an act of resisting tax causes serious injury or death to a person and conforms to the provisions of Article 234 or Article 232 of the Criminal Law, he shall be convicted and punished for the crime of intentional injury or intentional homicide.

Article 6 Where a taxpayer fails to pay the tax payable, in order to avoid recovery by the tax authorities, under any of the following circumstances, it shall be deemed as "taking the means of transferring or concealing property" as stipulated in Article 203 of the Criminal Law ":

(I) waiver of due claims;

(II) the transfer of property without compensation;

(III) trading at obviously unreasonable prices;

(IV) concealed property;

The (V) fails to perform its tax obligations and breaks away from the supervision of the tax authorities;

(VI) transfer or conceal property by other means.

Article 7 Under any of the following circumstances, it shall be deemed as "false export reports or other deceptive means" as stipulated in the first paragraph of Article 204 of the Criminal Law ":

(I) using the special invoices for value-added tax or other invoices that can be used for export tax refund, which are falsely issued, illegally purchased or obtained by other illegal means, to declare export tax refund;

(II) declare the export business that has not been taxed or exempted as taxed export business;

(III) fraudulent use of the export business of others to declare export tax rebates;

Although the (IV) has exports, but the name, quantity, unit price and other factors of the export business subject to tax refund are fictitious, and the export tax refund is declared by falsely increasing the amount of export tax refund;

(V) forging or signing false sales contracts, or obtaining export customs declarations, transport documents and other export business-related documents and vouchers by forging, altering or other illegal means, or falsifying export facts to declare export tax rebates;

After the goods are exported, the (VI) is transferred to the territory or the same kind of goods from abroad are transferred to the territory for circular import and export and the export tax refund is declared;

(VII) falsely reporting the functions and uses of export products, and declaring products that do not enjoy the tax refund policy as tax refund products;

(VIII) defrauding export tax rebates by other deceptive means.

Article 8 Those who defraud the state of export tax rebates of more than 100,000 yuan, more than 500,000 yuan and more than 5 million yuan shall be respectively deemed as "relatively large amount", "huge amount" and "especially huge amount" as stipulated in the first paragraph of Article 204 of the Criminal Law ".

Any of the following circumstances shall be deemed as "other serious circumstances" as stipulated in the first paragraph of Article 204 of the Criminal Law ":

(I) falsely declare export tax rebates more than three times within two years, and defraud the state of more than 300,000 yuan in taxes;

(II) has received criminal punishment or twice or more administrative punishment for defrauding state export tax rebates within five years, and has also defrauded state export tax rebates in an amount of 300,000 yuan or more;

(III) causes the state tax to be defrauded of more than 300,000 yuan and cannot be recovered before public prosecution is filed;

(IV) other serious circumstances.

Any of the following circumstances shall be deemed as "other particularly serious circumstances" as stipulated in the first paragraph of Article 204 of the Criminal Law ":

(I) carrying out false declaration of export tax rebates more than five times within two years, or taking fraudulent export tax rebates as its main business and defrauding the state of more than 3 million yuan in taxes;

(II) has received criminal punishment or twice or more administrative punishment for defrauding state export tax rebates within five years, and has also defrauded state export tax rebates in an amount of more than 3 million yuan;

(III) causes the state tax to be defrauded of more than 3 million yuan and cannot be recovered before public prosecution is filed;

(IV) other particularly serious circumstances.

Article 9 Whoever commits an act of defrauding the State of export tax rebates without actually obtaining export tax rebates may be given a lighter or mitigated punishment by comparison with the accomplished offender.

Intermediary organizations and their personnel engaged in cargo transportation agency, customs declaration, accounting, taxation, foreign trade comprehensive services, etc., in violation of the relevant import and export business regulations of the state, provide false certification documents for others, and cause others to defraud the state export tax refund, if the circumstances are serious, they shall be in accordance with Article 229 of the Criminal Law. Criminal responsibility shall be investigated.

Article 10 Under any of the following circumstances, it shall be deemed as "falsely issuing special invoices for value-added tax or falsely issuing other invoices used to defraud export tax rebates or tax deductions" as stipulated in the first paragraph of Article 205 of the Criminal Law ":

The (I) has no actual business and issues special invoices for value-added tax or other invoices used to defraud export tax rebates or offset taxes;

(II) there are actual deductible businesses, but issue special invoices for value-added tax exceeding the corresponding taxes of the actual deductible businesses, or other invoices used to defraud export tax rebates and tax deductions;

For businesses that cannot be deducted according to law, the (III) issues special invoices for value-added tax or other invoices used to defraud export tax rebates and offset tax through fictitious transaction entities;

(IV) illegally tampering with special invoices for value-added tax or other electronic information related to invoices used to defraud export tax rebates and tax deductions;

(V) open by other means in violation of the regulations.

For the purpose of falsely increasing performance, financing, loans, etc., not for the purpose of defrauding tax, and no loss of tax fraud caused by deduction, the crime shall not be punished for this crime, and if it constitutes other crimes, criminal responsibility shall be investigated for other crimes in accordance with the law.

Article 11 Falsely issuing special invoices for value-added tax and other invoices used to defraud export tax rebates and offset taxes, if the amount of tax is more than 100,000 yuan, shall be convicted and punished in accordance with the provisions of Article 205 of the Criminal Law. If the amount of false tax is more than 500,000 yuan or more than 5 million yuan, it shall be deemed as "large amount" and "huge amount" as stipulated in the first paragraph of Article 205 of the Criminal Law ".

Any of the following circumstances shall be deemed as "other serious circumstances" as stipulated in the first paragraph of Article 205 of the Criminal Law ":

(I) the amount of tax that cannot be recovered before public prosecution is initiated reaches 300,000 yuan or more;

(II) having been subjected to criminal punishment or administrative punishment twice or more for falsely issuing invoices within five years, and falsely issuing special invoices for value-added tax or other invoices used to defraud export tax rebates or offset tax, the amount of falsely issuing tax is more than 300,000 yuan;

(III) other serious circumstances.

Any of the following circumstances shall be deemed as "other particularly serious circumstances" as stipulated in the first paragraph of Article 205 of the Criminal Law ":

(I) the amount of tax that cannot be recovered before public prosecution is initiated is more than 3 million yuan;

(II) having received a criminal penalty or an administrative penalty of more than two times for falsely issuing invoices within five years, and falsely issuing special invoices for value-added tax or other invoices used to defraud export tax rebates or offset taxes, the amount of falsely issued taxes is more than 3 million yuan;

(III) other particularly serious circumstances.

If, in the name of the same purchase and sale business, both the special invoices for input value-added tax, other invoices used to defraud export tax rebates and tax deductions, and the false billing items, the larger amount shall be calculated.

If a forged special VAT invoice is falsely issued and the standard specified in this article is reached, criminal responsibility shall be investigated for the crime of falsely issuing special VAT invoices.

Article 12 Under any of the following circumstances, it shall be deemed as "falsely issuing invoices other than those stipulated in Article 205 of the Criminal Law" as stipulated in the first paragraph of Article 205 of the Criminal Law ":

(I) issuing invoices for others, for himself, for others, or for others to introduce others without actual business;

(II) there is actual business, but for others, for themselves, let others for themselves, introduce others to issue invoices that do not match the name of goods, service name, quantity of goods, amount of money, etc. of the actual business;

(III) illegally tampering with invoice-related electronic information;

(IV) open by other means in violation of the regulations.

Article 13 Under any of the following circumstances, it shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 205-1 of the Criminal Law ":

(I) falsely issued invoices with a face value of more than 500,000 yuan;

(II) falsely invoicing more than 100 copies with a face value of more than 300,000 yuan;

(III) who has received criminal punishment or administrative punishment twice or more for falsely issuing invoices within five years, and falsely issuing invoices, the face value reaches more than 60% of the standards stipulated in the first and second items.

Under any of the following circumstances, it shall be deemed as "the circumstances are particularly serious" as stipulated in the first paragraph of Article 205-1 of the Criminal Law ":

(I) falsely issued invoices with a face value of more than 2.5 million yuan;

(II) falsely issuing more than 500 invoices with a face value of more than 1.5 million yuan;

(III) who has received criminal punishment or administrative punishment twice or more for falsely issuing invoices within five years, and falsely issuing invoices, the face value reaches more than 60% of the standards stipulated in the first and second items.

Whoever falsely makes out a forged invoice and reaches the standard stipulated in the first paragraph of this article shall be investigated for criminal responsibility for the crime of falsely making out an invoice.

Article 14 Whoever forges or sells forged special VAT invoices under any of the following circumstances shall be convicted and punished in accordance with the provisions of Article 206 of the Criminal Law:

(I) face tax of more than 100,000 yuan;

(II) forges or sells forged value-added tax invoices in ten or more copies with a face value of 60,000 yuan or more;

(III) illegal income of more than ten thousand yuan.

Forging or selling forged special value-added tax invoices with a face value of more than 500,000 yuan, or more than 50 copies with a face value of more than 300,000 yuan, shall be deemed as "relatively large quantity" as stipulated in the first paragraph of Article 206 of the Criminal Law ".

Within five years, he has been subject to criminal punishment or two or more administrative penalties for forging or selling forged special value-added tax invoices, and the act of forging or selling forged special value-added tax invoices, and the face tax amount reaches more than 60% of the standard specified in the second paragraph of this article, Or if the illegal income is more than 50,000 yuan, it shall be deemed as "other serious circumstances" as stipulated in the first paragraph of Article 206 of the Criminal Law ".

Forging or selling forged special VAT invoices with a face value of more than 5 million yuan, or more than 500 copies and a face value of more than 3 million yuan, shall be deemed as "huge quantity" as stipulated in the first paragraph of Article 206 of the Criminal Law ".

Within five years, he has been subject to criminal punishment or two or more administrative penalties for forging or selling forged special VAT invoices, and has committed the act of forging or selling forged special VAT invoices, and the nominal tax amount reaches more than 60% of the standard stipulated in the fourth paragraph of this article, Or if the illegal income is more than 500,000 yuan, it shall be deemed as "other particularly serious circumstances" as stipulated in the first paragraph of Article 206 of the Criminal Law ".

Whoever forges and sells the same special VAT invoice shall be punished as the crime of forgery or selling forged special VAT invoice, and the quantity shall not be counted repeatedly.

Whoever alters a special VAT invoice shall be punished as a forged special VAT invoice.

Article 15 Anyone who illegally sells special invoices for value-added tax shall be convicted and punished in accordance with the conviction and sentencing standards of Article 14 of this Interpretation.

Article 16 Whoever illegally purchases special VAT invoices or purchases forged special VAT invoices with a face tax of more than 200,000 yuan, or more than 20 copies with a face tax of more than 100,000 yuan, shall be convicted and punished in accordance with the provisions of the first paragraph of Article 208 of the Criminal Law.

Illegal purchase of real and fake special VAT invoices shall be calculated cumulatively and shall not be punished for several crimes.

Those who purchase forged special value-added tax invoices and sell them shall be convicted and punished for the crime of selling forged special value-added tax invoices; illegal purchase of special value-added tax invoices is used to defraud tax deductions or defraud export tax refunds, and at the same time constitutes illegal purchase of special value-added tax The crime of invoices, the crime of falsely issuing special VAT invoices, and the crime of defrauding export tax rebates shall be convicted and punished in accordance with heavier penalties.

Article 17 Whoever forges, manufactures without authorization, or sells other invoices that are forged or manufactured without authorization for the purpose of defrauding export tax refund or tax deduction shall be convicted and punished in accordance with the provisions of paragraph 1 of Article 209 of the Criminal Law under any of the following circumstances:

The face of the (I) can be refunded or deducted from the tax amount of more than 100,000 yuan;

(II) forges, manufactures or sells, without authorization, more than ten copies of forged or manufactured invoices with a face value that can be refunded or deducted by more than 60,000 yuan;

(III) illegal income of more than ten thousand yuan.

forgery, unauthorized manufacture, or sale of forged or unauthorized manufacture of other invoices that can be used to defraud export tax rebates and tax deductions with a face value of more than 500,000 yuan, or more than 50 copies with a face value of more than 300,000 yuan, shall be deemed as "huge quantity" as stipulated in the first paragraph of article 209 of the criminal law "; forgery, unauthorized manufacture or sale of forged or unauthorized manufacture of other invoices that can be used to defraud export tax rebates and tax deductions with a face value of more than 5 million yuan, or more than 500 copies with a face value of more than 3 million yuan, shall be deemed as" extremely large "as stipulated in the first paragraph of Article 209 of the Criminal Law".

Whoever forges, manufactures or sells without authorization the invoices stipulated in the second paragraph of Article 209 of the Criminal Law shall be convicted and punished in accordance with the provisions of the said paragraph under any of the following circumstances:

The face value of the (I) is more than 500,000 yuan;

(II) forges, manufactures or sells forged or manufactured invoices with a face value of 300,000 yuan or more;

(III) illegal income of more than ten thousand yuan.

Those who forge, manufacture or sell without authorization the invoices stipulated in the second paragraph of Article 209 of the Criminal Law shall be deemed as "serious circumstances" in any of the following circumstances ":

The face value of the (I) is more than 2.5 million yuan;

(II) forges, manufactures or sells forged or manufactured invoices with a face value of more than 500 copies and a face value of more than 1.5 million yuan;

(III) illegal income of more than fifty thousand yuan.

Where other invoices used to defraud export tax rebates or offset taxes are illegally sold, the conviction and sentencing standards shall be implemented in accordance with the provisions of the first and second paragraphs of this article.

Illegally selling special invoices for value-added tax, invoices other than invoices used to defraud export tax rebates and offset taxes, the conviction and sentencing standards shall be implemented in accordance with the provisions of the third and fourth paragraphs of this article.

Article 18 Under any of the following circumstances, it shall be deemed as "a large number" as stipulated in the first paragraph of Article 210-1 of the Criminal Law ":

(I) holding forged special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or offset taxes with a face value of more than 500,000 yuan; or more than 50 copies with a face value of more than 250,000 yuan;

(II) holding forged invoices other than those specified in the preceding paragraph with a face value of more than 1 million yuan, or more than 100 copies with a face value of more than 500,000 yuan.

If the number of forged invoices, the amount of face tax or the amount of face value held reaches more than five times the standard stipulated in the preceding paragraph, it shall be deemed as "huge quantity" as stipulated in the first paragraph of Article 210-1 of the Criminal Law ".

Article 19 Whoever, knowing that another person has committed a crime endangering the administration of tax collection, still provides him with an account number, proof of credit or other assistance shall be punished as an accomplice in the corresponding crime.

Article 20 The standards for conviction and sentencing of a unit for the crime of endangering tax collection and management shall be implemented in accordance with the standards stipulated in this interpretation.

Article 21 If the crime of endangering tax collection and administration causes state tax losses, the perpetrator shall pay back the tax, recover the tax losses, and effectively comply with the rectification and reform, he may be given a lenient punishment; if the circumstances of the crime are minor and do not need to be sentenced to criminal punishment, he may not be prosecuted or exempted from criminal punishment; if the circumstances are obviously minor and the harm is not great, it shall not be treated as a crime.

If the relevant acts stipulated in this interpretation are not prosecuted or exempted from criminal punishment, and it is necessary to give administrative punishment, administrative punishment or other punishment, they shall be transferred to the relevant competent authorities for handling according to law. The relevant competent authorities shall promptly notify the people's procuratorates and the people's courts of the results of the handling.

Article 22 This Interpretation shall come into force as of March 20, 2024. 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, Forgery and Illegal Sale of Special Value-added Tax Invoices (Fa [1996] No. 30), Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Fraudulent Export Tax Refund (Fa [2002] No. 30) interpretation on Several Issues Concerning the Specific Application of Law in Criminal Cases (Fa Shi [2002] No. 33) shall be repealed at the same time; if the judicial interpretations previously issued by the Supreme People's Court and the Supreme People's Procuratorate are inconsistent with this Interpretation, this Interpretation shall prevail.

(Source: Supreme People's Court, Supreme People's Procuratorate)