As China's road transportation is mainly carried out by individual carriers, the transportation costs incurred in the purchase and sale of coal cannot obtain sufficient deduction invoices, and in the long run, coal trading enterprises and coal-using enterprises cannot bear the burden of enterprise income tax and value-added tax brought about by this. In order to solve the invoice problem brought by the above situation, most of the coal trading enterprises and coal-using enterprises choose to obtain VAT invoices through a third party, which in turn leads to the risk of false invoicing. Recently, a coal transportation enterprise represented by Huatax lawyers was suspected of the crime of false invoicing of VAT, and the public prosecutor accused the party involved in the case of false invoicing of price and tax amounting to RMB 110 million, and prosecuted the party for the crime of false invoicing of VAT, and the party faced a penalty of more than ten years. Huatax lawyers intervened in the case after the public prosecution authority transferred the case to the court for trial, and provided first instance defense services for the case. After many communications with the court, by elaborating the defense views on the industry characteristics of coal transportation business, the constitutive elements of the crime of false VAT invoice and the crime of illegal purchase of VAT invoice, the transaction substance of coal transportation case, etc., the court finally accepted the defense opinions of the lawyers, and changed the verdict to the defendant constituting the crime of illegal purchase of VAT invoice, and sentenced the first defendant to two years of fixed-term imprisonment. The decision of this case is another benign exploration of judicial practice on the constituent elements of the crime of false invoicing, and the result is of great significance for the similar cases being heard in the coal industry.

I. Basic facts of the case

Companies A, B and H are mainly engaged in the business of purchase, sale and transportation of coal. A is the actual controller of the two companies, and B is the partner of A A. In the coal purchase and sale transactions, A and B are mainly responsible for expanding and contacting coal mines and downstream coal-using enterprises, and at the same time, actually organizing and contacting individual operating vehicles in the place where the coal is purchased, and transporting coal from the coal mines to the coal-using enterprises according to the agreement. As the individual transportation capacity could not issue VAT invoices to A, B and H, A decided to issue VAT invoices to A, B and H through C and D in the name of 25 transportation companies such as C, D and E after summarizing the information of the individual transportation vehicles that were actually responsible for the transportation work and the transportation routes of the cargo information. In accordance with the practice of the transportation industry service provision and payment of remuneration, A, B, H company in the individual operating vehicles to complete the transportation tasks need to be immediately settled remuneration, A, B, H company through the A, B and other personal accounts to the transport fleet or personal advance payment of remuneration (bank transfers or cash settlement). The upstream transportation company collects freight, deducts the corresponding administrative expenses (6.2%-6.8%) and issues invoices according to the occurrence of the actual transportation business, and then returns the sums advanced by Company A, B, and H to the personal accounts of Company A, B, and other individuals who actually settle the payment with the individual operating vehicles through the personal accounts of their employees, etc. On August 12, 2019, the Public Security Bureau of H found that Company A, B, and H were suspected of accepting payment from Company C, D, and other individuals without any actual business transactions. The Public Prosecution Bureau found that Company A, B and H were suspected of accepting the VAT invoices falsely issued by Company C, D and E without actual business dealings and filed a case for investigation.On July 10, 2020, the Public Prosecution Bureau filed an indictment to the People's Court of H. The indictment alleged that Company A had accepted 909 VAT invoices falsely issued by Company C, D and E, and 25 other companies, with a tax amount of more than 10 million yuan, and the price and tax amounted to a total of more than 110 million yuan. B accepted 139 VAT invoices falsely issued by 7 companies such as C, D, E, etc., with a tax amount of more than RMB 2.9 million and a total value of more than RMB 29.2 million. In addition, B was also suspected of forging the seals of other companies in the course of A's operation. In the court trial stage, Huatax lawyers were entrusted by the family to act as the defenders of A and B. After detailed examination of all the case materials, Huatax actively organized and carried out the expert argumentation meeting, assisted the judicial authorities in investigating the facts of the case, supplemented the relevant business materials, and communicated with the court for many times about the facts of the case and the constitutive elements of the crime of false invoicing. After the unremitting efforts of Huatax lawyers, the court finally accepted the view that real coal transportation services occurred in A, B and H and the business involved was illegal purchase of VAT invoices, and sentenced the first defendant A to constitute the crime of illegal purchase of VAT invoices, and sentenced him to two years' imprisonment; sentenced the fourth defendant B not to constitute the crime of false issuance of VAT invoices, nor to constitute the crime of illegal purchase of VAT invoices, and Convicted for the crime of forging company seal and sentenced to one year and seven months' imprisonment. Through active and effective criminal defense work, Huatax lawyers obtained better adjudication results for their clients.

II. Focus of Dispute

The focus of dispute in this case is:

How should the behavior of A, B and H in accepting individual capacity to provide road transport services and obtaining special VAT invoices issued by the transport enterprises be characterized?

Whether A and B had the intention to obtain tax fraudulently and whether the acts of A, B and H of using the VAT invoices issued by the transportation enterprises to offset the tax would result in the loss of national VAT tax?

Whether A and B constituted the crime of falsely issuing VAT special invoices?

III. Defense Opinions

(I) It is not appropriate to recognize the VAT invoices obtained by A, B and H based on real transportation services as false invoicing.

(1) Company A, B and H had real coal transportation service.

According to the evidence materials in the case, Company A, B and H had real coal purchase and sale services, and there were real and effective purchase and sale contracts, payment, collection bank water, coal goods out of the upstream mining plant and other materials in the case file, based on the real coal purchase and sale business, Company A, B and H organized the individual capacity to provide coal transportation services, and after loading in the mining plant, they obtained transportation documents which recorded the information of the goods, and then transported the goods to the mining plant. After loading the individual vehicle at the mine, the individual vehicle obtains the transportation document that records the information of the goods, and after delivering the goods to the destination and verifying that the information in the transportation document is correct, Company A, B, H pays the freight fee to the individual driver through the personal account of its employee. At the same time, the situation of transportation services occurring over a period of time, including vehicle information, driver information, cargo information, origin and destination, etc., is passed to the upstream transportation company. The upstream transportation company issues VAT invoices based on the transportation information provided by Companies A, B and H. It can be seen that Companies A, B and H obtained the corresponding transportation invoices on the basis that real coal transportation services had occurred.

2. Individual vehicles and upstream transportation companies constitute a de facto dependency relationship, and the acquisition of invoices by companies A, B and H does not constitute false invoicing.

The crime of false invoicing of VAT is an administrative crime, for the case of false invoicing of coal invoices and transportation invoices in the coal industry, if it meets the conditions of dependent invoicing stipulated in the State Administration of Taxation Announcement No. 39 of 2014 and its official interpretation, it does not belong to false invoicing in tax law, and of course, it does not constitute the crime of false invoicing of VAT in the criminal law. At the same time, it should be noted that the civil law does not require the existence of dependency relationship to be based on a written contract, and according to the "Comprehensively Pushing Forward the Pilot Business Tax to Value-added Tax Policy Training Reference Materials" issued by the Department of Goods and Services of the State Administration of Taxation, the main features of dependency include: (1) a borrowing behavior; (2) an independent accounting behavior; (3) a temporary behavior. If the above characteristics are met between civil subjects, it can be recognized as constituting a de facto dependency relationship.

As mentioned above, all the VAT invoices issued by 25 logistics companies, including A, B and H, C, D and E, corresponded to the coal transportation business that really happened and objectively existed. These transportation businesses took place in the course of the coal purchasing and selling business of the companies involved, which involved three business subjects, namely, the upstream transportation enterprises, i.e., the invoicing party, the purchaser of the road transportation services, i.e., the invoiced party, and the provider of the road transportation services, i.e., the individual carriers. According to the provisions of No. 39 of 2014, although no formal affiliation agreement has been signed between the individual carrier and the transportation enterprise, according to the characteristics of affiliation, the two constitute a de facto affiliation. Individual transportation capacity was dependent on the name of the transportation enterprise to actually provide coal transportation services to A, B and H. The transportation enterprise collected transportation expenses in its own name and issued special VAT invoices. Upon completion of the transportation services, in accordance with the practice of immediate settlement in the transportation industry, Companies A, B and H advance the remuneration (bank transfer or cash) to the transportation fleet or individuals through the personal accounts of A and B in the first instance. After collecting the freight according to the actual transportation business occurrence, the transport enterprise being attached will return the money advanced by A, B, H to the personal account of A, B and other individuals who actually settle with the individual transportation fleet through the personal account of its employees. The entire business process and the chain of receipt and payment of funds was clear and unambiguous, and there was no closed loop of funds, which ultimately were not under the control of A, B, etc., and did not stop at the point where A, B, etc., paid outward. Therefore, the behavior of Company A, B and H in obtaining invoices based on the above factual affiliation does not constitute false invoicing.

3. Company A, B and H obtain invoices based on real transportation services, which meets the conditions of truthful invoicing.

In judicial practice, for the identification of dependent relationship, usually require the parties to produce the corresponding dependent agreement, authorization agreement, memorandum and other written materials to prove the existence of dependent relationship, but according to the provisions of the Civil Code, the parties to enter into a contract, there are written, oral and other forms. Laws and administrative regulations provide for the use of written form, shall be used in written form. If the parties agree to use the written form, the written form shall be used. The civil law does not mandatory provisions of the establishment of dependency relationship need to sign a written agreement, the two sides can reach an agreement. And according to the above characteristics of the dependency relationship, also did not require the establishment of the dependency relationship need to sign a written agreement, so the author believes that the dependency agreement is not the establishment of the dependency relationship of the necessary elements. For the determination of the dependency relationship, should be based on the business situation, for the three conditions of the dependency relationship business should be recognized as dependency. But in the court insisted on a written agreement to prove the existence of dependency relationship, we need to emphasize on the one hand, the determination of dependency relationship should be grasped from the substance of the business, constitute the fact that the dependency relationship can not be recognized as a fictitious. On the other hand, there are real transactions, even if the behavior of the invoice does not constitute a dependency relationship, in line with the truth on behalf of the invoice can not be recognized as false invoicing.

According to the Reply Letter to the Opinions of the Research Office of the Supreme People's Court on How to Determine the Nature of the Act of Implementing Business Activities in the Name of the "Dependent" Company and Letting the Company Conduct False Issuance of VAT Invoice for Itself (Law Research [2015] No. 58), the essence of the crime of false issuance of VAT invoice lies in the fact that it is a crime of fraudulent issuance and deduction of tax. offsetting tax, and for the act of opening on behalf of a person with the existence of actual transactions, if the perpetrator subjectively does not have the intention of cheating offsetting tax and objectively does not cause the loss of the national VAT amount, it is not appropriate to deal with the crime of false opening of VAT special invoices.

As a result, as mentioned before, in this case, Company A, B and H have incurred real coal transportation services and paid the transportation expenses, and the existence of their real business has been recognized by the court, and the quantity and amount of the invoices obtained by them are in line with the real transaction, then their acts of obtaining the invoices are in line with the conditions of truthful invoicing, and they should be dealt with in accordance with the provisions of the truthful invoicing, i.e., it is not possible to conclude that Company A, B and H have constituted false invoicing.

(II) A and B do not have the intent to fraudulently offset taxes by false invoicing, and objectively do not commit the criminal act of false invoicing, which does not result in the loss of national taxes.

In judicial practice, there has been controversy over whether the crime of false opening of VAT invoices is a purpose crime or a behavioral crime. From the reply letter to the Law Research [2015] No. 58 on how to determine the nature of the act of carrying out business activities in the name of the company concerned by "relying on" the company concerned and having the company concerned falsely issue VAT invoices for itself to the December 2018 release by the Supreme Court of the Typical Cases on Protecting the Legitimate Rights and Interests of Private Entrepreneurs (the second batch), Zhang Mouqiang The case of Zhang Mouqiang was acquitted in the retrial of false invoicing, and then in July 2020, the Supreme People's Procuratorate issued the Opinions on Giving Full Play to Procuratorial Functions to Serve and Safeguard the Six Stabilizations and Six Safeguards, which basically concluded this controversial issue, and at present, the two High Committees have already clarified the criminal elements of the crime. At present, the two high courts have clarified the elements of this crime, i.e., the establishment of the crime of falsely opening VAT invoices shall be subjectively based on the subjective intent and purpose of the perpetrator to fraudulently offset the tax, and objectively based on the result of causing the loss of value-added tax as a necessary condition. The judicial practice in the last five years is also deeply practicing the above theory of the constituent elements of the crime of false invoicing, such as the case of Chen Mulan of Heilongjiang Mulan, who was not prosecuted for false invoicing ([2018] Hei 0127刑初99号), Chen Mou of Jiangxi Dexing, who was not prosecuted for false invoicing (De Prosecutor's Public Prosecution of Criminal Not Prosecution [2015] No. 5), and the case of Bao Mou of Jilin Dongliao, who was not prosecuted for false invoicing ([2016] Chuan 15 Criminal No. 110), etc., just to mention a few.

In this case, the subjective purpose of A to obtain the invoice in question is based on the actual business of A, B, H Company to bear the objectively true transportation costs, improve and standardize the company's account processing, obtain legal and effective pre-tax deduction vouchers for income tax, rather than in the knowledge that there is no real transaction in the case of fraudulent offsetting of value-added tax, so it is clear that it does not have the purpose of fraudulent offsetting of false invoicing. As for B, since B was only responsible for the purchase and sale of coal of Company A, he did not participate in the negotiation, contact and docking of business cooperation between Company A and the transportation enterprise, and the existing evidence in this case could not prove that B was related to Company A's obtaining the transportation invoice in question.

As mentioned before , Company A, B and H had real coal transportation business, assumed the VAT tax before the procurement of coal transportation service, and obtained the legal right of input credit according to the law, then the purpose of Company A obtaining the VAT invoice through the upstream transportation company and using it for offsetting was to realize its offsetting interest, not to cheat the state VAT tax. In the case that the upstream transportation company issues the invoices and truthfully declares the tax on schedule, the acts of A, B and H in offsetting the tax will not result in the loss of the State tax.

(III) transportation enterprises to collect 6.2% -6.8% "invoicing fee" is the essence of the dependency management costs

Coal transportation, waste materials and other industries are suspected of false opening, there will be the so-called "tax points", "invoicing fees" and other practices that may cause suspicion of false opening. This case also exists in this situation, the public prosecution alleges that A, B, H company to transport enterprises to pay the face amount of 6.2% -6.8% of the "tax points", but in essence the fee is the transportation enterprise management fees. The management fee was calculated and decided by the transportation enterprise according to its own operating costs, tax burden level and other factors, and was the corresponding consideration for the services provided by the transportation enterprise for individual vehicles, the effect of which was to transfer the VAT tax burden and related costs and expenses incurred in the coal transportation business to downstream Companies A, B and H, and to be actually borne by Companies A, B and H. The outward manifestation of which was the so-called "tax point" and "tax point". The external manifestation of this is the so-called "tax point", "tax", "invoicing fee", etc.

VAT is a tax on the value-added portion of goods and services at each stage of circulation, i.e., taxable amount = output - input, not income directly multiplied by the tax rate. Therefore, the amount of tax deducted by A, B and H as the invoiced party is necessarily higher than the amount of tax actually paid by the upstream invoicing party. However, if the amount of tax paid by the transportation company is added to the amount of tax paid by its upstream, the upstream of the upstream of the upstream of all the transaction links, etc., the amount of tax deducted by A, B and H will be equal to the amount of tax deducted by A, B and H, i.e., the tax deducted by A will necessarily be equal to the sum of tax paid by each subject in each of the transaction links of the forehand.

In this case, the transportation enterprise in the process of operation through the financial rebate, own input retention, etc. makes its actual tax burden is lower than the statutory tax burden, so the transportation enterprise charges the ticket amount of 6.2% -6.8% of the management fee can cover the entire business of the tax burden, management and other comprehensive costs, to achieve corporate profitability. Therefore, the so-called "tax points" and "invoicing fees" are the objective requirements of the transportation enterprises as rational economic beings in carrying out their business activities, which are justified, autonomous and reasonable, and are not related to the national tax.

(IV) The behavior of Companies A, B and H in obtaining invoices and offsetting them will not result in loss of national tax revenue.

(1) If the upstream transportation company declares tax in full and on time, the offsetting behavior of Companies A, B and H will not result in the loss of state tax.

The root cause of VAT loss lies in the tax subject's failure to declare tax in accordance with the provisions of the tax law, and in the case that the tax subject has already declared and paid the tax truthfully, there is no question of causing loss of state tax.Company A, B and H obtain corresponding transportation invoices in accordance with the provisions of the tax law, and the issuance of these invoices has not been detached from the actual business, and there exists no situation of over-issuance, reissuance or false invoicing, and Company A, B and H obtain corresponding transportation invoices on time after issuing the invoices, and then offset them. After issuing the invoices, the upstream transportation company declared tax in full on schedule, so the behavior of A, B and H companies in offsetting tax through the authentication of tax-control system would not cause loss of national tax. For the issue of false enhancement and false tax credit by a few upstream transportation enterprises in the case, according to the provisions of Announcement No. 39 of 2014, the subjective state and objective behavior of the invoicing party and the invoiced party should be evaluated separately, and if the invoicing party maliciously makes false enhancement and false tax credit and the invoiced party has no knowledge of it, the invoicing party should independently bear the legal responsibility for the false enhancement.

Judicial appraisal opinion has no right to make determination on tax loss.

As a result crime, the crime of false invoicing of VAT must have tax loss in order to constitute a crime. In judicial practice, the subject of tax loss determination has been controversial, and there are usually tax authorities and judicial appraisal practices. In this case, the judicial appraisal organization expressly stated in the Judicial Appraisal Opinion that the subject of tax loss is the tax authority, and thus did not appraise the amount of tax loss. In fact, this is also required by the scope of judicial appraisal. According to Article 9 of the Circular of the Ministry of Justice on the Issuance of Regulations on Classification of Judicial Appraisal Practice (for Trial Implementation) (Sifatong [2000] No. 159), judicial accounting appraisal refers to the appraisal of the financial status of accounting certificates, accounting books, accounting statements and other accounting information through the use of the principles and methods of judicial accounting and through the checking, calculating, verifying and forensic appraisal. Thus, the judicial appraisal can only be on a certain period of time the bank account flow for the settlement of the balance of income and expenditure, as well as the number of invoices, invoices, and other objective data, and will be used as a result of the appraisal. This result only reflects the economic and financial situation of the subject in a certain period of time, and does not reflect the amount of money involved in the case.

3. If the persons involved in the case pay back the tax before the effective date of the judgment, the punishment shall be lighter or mitigated

Referring to the spirit 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 the Crimes of False, Counterfeit and Illegal Sale of Value-added Tax Specialized Invoices, the so-called amount of loss caused to the State tax is in fact the portion of the fraudulently obtained State tax that could not be recovered prior to the finalization of the investigation. Therefore, it is not the amount of fraudulently obtained State tax that is the loss caused to the State. The portion of the tax amount that has been recovered and can be recovered should be excluded when determining the loss. In judicial practice, the part of the tax amount that "can be recovered" should be correctly handled. For the invoiced units that are still in normal operation, if the tax authorities or investigating authorities are able to recover the fraudulently obtained taxes from them, this part should not be included in the calculation as the amount of loss. Only in cases where the invoiced unit has ceased to exist, or exists but is unable to recover the loss due to lack of capital and debt can it be included in the calculation of the tax loss caused to the State.

In addition, in determining the loss caused to the national interest, the amount refunded by the perpetrator or his family members, as well as the portion of tax collected in advance by the tax authorities when applying for VAT invoices from the invoicing unit, shall be excluded from the calculation.

At the same time, according to the opinions of the "Overview of the Trial Work Symposium on Economic Crime Cases of National Courts (2004)" and the "Notice of the Second Criminal Division of the Zhejiang Higher People's Court on Issuing the <Summary of the Seminar on Difficult Problems of Economic Crimes of the Provincial Courts>" (Zhejian Higher People's Court Criminal No. 2 [2005] No. 1), the calculation of the amount of the loss of national tax in the crime of falsely issuing VAT invoices can generally be made at the time of the occurrence of the crime, the filing of a case or the finalization of the investigation. At the end of investigation, due to the heavy statutory penalty for the crime of false VAT invoicing, the trial authority shall take a pragmatic attitude and start from the principle of favoring the defendant, and the cut-off time for the calculation of the loss can be appropriately extended, based on which, for the fraudulent tax recovered before the court judgment, the sentence shall be deducted from the amount of loss, which shall in turn result in a lighter or less severe punishment for the persons involved in the case.

(V) If the constituent elements of the crime of false VAT invoicing are not sufficient, it is appropriate to apply the crime of illegal purchase of VAT invoices if convicted.

Firstly, the purpose of the crime is different. From the provisions of the criminal law, it is required to constitute the crime of false invoicing of VAT with the subjective purpose of cheating tax, while from the viewpoint of the legal interests protected by the crime of illegally purchasing VAT invoices, it is not necessary to find that the crime has other purposes. The crime infringes upon China's strict system of purchasing special VAT invoices, which can only be purchased by general VAT taxpayers to the designated tax authorities with the corresponding vouchers in the form of trade-in of old invoices for new invoices, and no other units or individuals are allowed to buy or sell special VAT invoices. Subjectively, the crime only requires the perpetrator to have cognition of the act of illegal purchase, and there is no need to attach other subjective purposes.

Secondly, from the unity of the interpretation of criminal law, sales and purchase crimes are all behavioral crimes, so long as the perpetrator is subjectively aware of the object of sale or purchase and objectively commits the act of illegal sale or purchase, it can constitute this type of crime. Therefore, as long as the perpetrator knows that the sale or purchase is of VAT invoices and still buys and sells them, it may constitute the crime of illegal sale or purchase of VAT invoices. With other specific purposes, it may also constitute other crimes. As for the crime of false VAT invoice, it is a result crime, in addition to the act of false invoicing, it also needs to have the intention of cheating the state tax and cause the result of loss of state tax.

Finally, there is a result requirement for the crime of false VAT invoicing. According to the provisions of the criminal law, the crime of illegal purchase of VAT invoices only requires that the purchased VAT invoices reach a certain quantity, and does not need to cause certain harmful consequences. The consequences caused are not a necessary element to constitute the crime, but can be taken into account as a circumstance in sentencing. The crime of falsely issuing VAT invoices and the crime of illegally selling or buying VAT invoices may constitute an imaginative competing relationship. If the recipient of the invoice does not subjectively have the purpose of obtaining tax fraudulently and has not caused any loss of tax, it is appropriate to apply the crime of illegally purchasing VAT invoices to the conviction.

In this case, the relevant evidence is sufficient to confirm that the subjective purpose of A obtaining the invoice in question is to improve and standardize the company's account processing and obtain legal and effective pre-tax deduction vouchers for income tax based on the actual business of bearing objectively real transportation costs, not to cheat VAT tax in the knowledge that there is no real transaction, so it is obvious that it does not have the purpose of fraudulently obtaining VAT tax. However, A's behavior objectively violated the state's prohibition on VAT special invoices, and carried out the act of purchasing VAT special invoices by paying invoicing fees from the subject who was not authorized to sell VAT special invoices.

IV. Suggestions for judicial treatment of the crime of false opening in the coal industry

(I) constitute a "dependent" relationship does not constitute false opening

The tax law has expressly stipulated that the formation of a "dependent" relationship does not constitute false invoicing. Therefore, for enterprises, you can require the dependent party to sign a written agreement with the dependent party and keep it on file. When the signing of the agreement is difficult, the enterprise to determine the dependent party to know the invoicing party and the dependent party, clear operation mode of the dependent business. The identification of dependent business is a major difficulty in judicial practice in the case of false invoicing, therefore, the enterprise in the beginning of the business, the need to establish a standardized business relationship of dependent business, so as to avoid administrative risks and criminal risks.

For the judicial authorities, in determining the "dependence" relationship, not only from the form of dependency agreement, in line with the dependence on temporary, borrowing, independent accounting and other characteristics of the transaction, even if the two sides of the main body did not sign a written agreement, etc., should be sure that in fact the objective existence of dependency relationship.

(II) "truthfully" on behalf of open behavior does not constitute false openings

In the behavior of "truthful invoicing", the third party issues VAT invoices to the invoiced party according to the transaction quantity and amount of both parties of the actual transaction and declares the VAT tax truthfully, and the invoiced party obtains the rights and interests of deduction according to the law, and the VAT invoice obtained by the invoiced party for deduction of input tax will not result in loss of the national VAT tax in essence. As a result, although the act of "truthful issuance" violates the invoice management system, it cannot be simply equated with false invoicing, and the act of "truthful issuance" shall not be recognized as the crime of false invoicing of VAT special invoices.

It should be noted that, for the case of "truthful invoicing", since there is no clear legal basis, some regions still deal with the crime of false invoicing. For this kind of cases, consideration should be given to the legislative purpose of the crime of false invoicing and the protection of legal benefits, i.e., the protection of the loss of national tax, and consideration should be given to the application of a comparable crime, such as the crime of unlawful purchase of VAT invoices. This is not only in line with the principle of the criminal law of criminal responsibility and punishment, but also in line with the criminal policy of the Supreme Court to protect the legitimate rights and interests of private entrepreneurs, and it is also the subject matter of the Opinions of the Supreme Prosecutor's Office on Giving Full Play to the Procuratorial Functions to Serve and Guarantee the Six Stabilizations and Six Guarantees.

(III) For the case of false opening with real transaction, the part of false opening beyond the actual transaction is recognized as false opening

The essence of "false invoicing" refers to the issuance of invoices in excess of the actual transaction, for the false increase, more than the part of the false invoicing, the reason is that the recipient of the invoice for false enhancement of false credits caused by the behavior of the state tax loss. The current judicial practice increasingly supports this view.

In the current outbreak of false invoicing cases, a considerable part of the cases involved in the actual operation of the enterprise, these enterprises for different reasons can not obtain VAT invoices, and then generally face the problem of insufficient VAT input deduction, which is not only due to the current situation of the industry, but also related to China's invoice management system, tax collection and management system. For those enterprises which have real business activities but cannot obtain VAT invoices in full, the lack of VAT invoices not only leads to the inability of enterprises to make VAT input deduction in full, but also directly affects the deduction of enterprise income tax, which leads to a steep rise in the cost of tax burden of the enterprises, and makes it impossible for them to carry out normal business. In order to solve this real problem in operation, many enterprises choose to obtain VAT invoices by way of dependency and proxy opening, and in this process, some enterprises appear to obtain more invoices than actual transactions. Since the purpose of obtaining invoices in this kind of cases is to realize the VAT deduction rights and interests in carrying out real business rather than to cheat the national VAT, the treatment of such enterprises should be differentiated from the typical behavior of "false invoicing without goods", and therefore, the whole business is examined, and the part of real transaction and the part exceeding actual transaction are defined. Therefore, the whole case should be reviewed to define and differentiate the part of the business that is a real transaction from the part that exceeds the actual transaction, and to characterize the behavior of the enterprise on this basis.

V. Summary

The change of charges in this case not only safeguarded the legitimate rights and interests of the parties involved, but also provided a reliable reference for the handling of such cases. According to the relevant provisions of the Supreme People's Court to promote the mechanism of "searching for similar cases", judicial organs of different regions should make full reference to it when hearing similar cases, so as to play the role of similar cases in judicial decision-making, and avoid aggravating the "regionalization" of the judiciary. In practice, the coal industry, the risk of false opening mainly coal transportation and coal purchase and sale of two cases, the two false opening risk, enterprises in the beginning of the business, to ensure the authenticity of the coal transportation business, pay attention to the details of the business, such as transportation business to record and retain the driver of the transport vehicle information, vehicle information, the place of origin of the goods, the place of arrival, the number of goods, and so on. In the purchase and sale of coal business to retain the purchase and sale contracts, pound sheets, warehouse receipts and discharges, measurement sheets and other materials that can prove that there is a real transaction, for the conditions of coal enterprises should be customized ERP management system, the content should include procurement, weighing, production, sales, settlement, finance, OA and other aspects of the coal company to sort out, standardize the production, transportation, supply, sales, settlement, financial accounting system, to achieve the number of tables integrated management, and the data of each link to standardize and unify the data. and save the data specification of each link uniformly in the database for the company management to analyze and make decisions. At the same time, the ERP management system should realize real-time transmission, synchronous constraints and non-tampering of data to guarantee authenticity and realize effective control of the whole process of business, thus preventing the risk of false opening.

In addition, combining with the cases represented by Huatax, it is found that the judicial practice of handling cases of false invoicing in coal industry has resulted in different situations, such as withdrawal of the case by the public security, non-prosecution by the procuratorate, acquittal by the court, and re-sentencing by the court of the crime of unlawfully purchasing VAT invoices, etc., which suggests that, based on the specificity of the operation of the industry, the false invoicing cases in the coal industry have a considerable space for defense, so that for the enterprises or individuals involved in the cases of false invoicing Therefore, for enterprises or individuals involved in false invoicing cases, they should seek the intervention of professional tax lawyers as early as possible, and strive for sufficient time to communicate with the judicial authorities on the business model, industry specificity, and application of laws in terms of transaction authenticity, subjective and objective constituent elements, and loss of tax, in order to maximize the protection of the legitimate rights and interests of the parties concerned.