China's foreign trade and export industry has continued to grow in recent years, in terms of taxation, export tax rebates have been increasingly strengthened. At the same time, the country's illegal behavior of fraudulent export tax refunds continue to combat high-pressure, in order to curb foreign trade and export tax-related crimes, to ensure that the tax policy is put into practice. In recent years, fraudulent export tax rebate cases occur frequently, and there is no lack of criminal cases. However, in the agency practice, I found that the judicial authorities in the investigation and handling of criminal cases of tax fraud, there are also omissions. In this paper, we analyze the crimes and misdemeanors of tax fraud through three cases, explore the core elements and links that constitute the crime of tax fraud, and at the same time, make an inventory of the corresponding defense strategies for readers' reference.

I. foreign trade supervision continues to strengthen, the risk of tax fraud concentrated outbreaks

(I) China's foreign trade and exports maintain growth, and tax rebates are continuously strengthened

Since 2022, China's foreign trade and export has always maintained a good growth trend. According to the statistics, from January to May 2022, China's foreign trade exports totaled up to 1,402.57 billion U.S. dollars, a year-on-year increase of 13.5%. The encouraging results of foreign trade exports can not be separated from the help and support of tax policies.In the first half of this year, China's export tax rebates totaled about 1.1 trillion yuan, up 21.2% year-on-year.Meanwhile, the speed and strength of export tax refunds continue to be strengthened.On April 20, the State Administration of Taxation and other ten departments jointly issued a "Notice on Further Increasing the Support of Export Tax Refunds to Promote the Stable Development of Foreign Trade," which called for improving the quality and efficiency of export tax refund processing, improving tax rebates, and improving the quality and efficiency of tax refund processing. tax rebates to improve the quality and efficiency of tax refunds, and improve the efficiency of tax refunds, showing the country's determination to protect foreign trade.

(II) Six Departments Jointly Crack Down on Tax Fraud, High Criminal Risk of Foreign Trade Taxes

The state has continued the tax support policy for foreign trade, and at the same time, to ensure that the export tax refund support measures are put into practice and to crack down on lawless elements adopting illegal means to cheat export tax refunds, the state has continued to crack down on illegal and criminal behaviors of cheating export tax refunds in a resolute manner. An article in Guangming Daily pointed out that as of the end of March this year, the tax authorities had recovered 34.6 billion yuan of national tax losses by investigating and dealing with illegal acts of obtaining export tax refunds by fraudulent means. On June 16 this year, the six departments of taxation, public security, procuratorate, customs, central bank and foreign exchange held the "National Six Departments Jointly Crack Down on Tax Retention Fraud and Export Tax Fraud Work Exchange and Promotion Meeting", pointing out that the high-pressure situation for tax fraud should be maintained, the joint collaboration of the departments be strengthened, the high-risk matters in the export tax rebate be precisely identified, and a three-dimensional and full-chain approach be carried out to prevent the tax fraud. It also pointed out that for tax fraud, we should still maintain the high-pressure situation of fierce and strict investigation, strengthen the joint collaboration of departments, and accurately identify the high-risk matters in export tax rebate, and carry out the three-dimensional and full-chain combat. Therefore, the tax-related criminal risk of the foreign trade enterprise industry remains high.

(III) Successive outbreaks of fraudulent export tax rebate cases, involving multiple fields and regions

Since 2022, the State Administration of Taxation (SAT) has made public on its official website for several times in a row eleven cases of foreign trade involving tax fraud, involving a wide range of areas and large amounts, indicating that the current supervision of foreign trade-related tax fraudulent export tax rebate crimes has been strengthened as never before.

1. Jiujiang, Jiangxi, waste and second-hand equipment fraudulent opening, low value and high tax fraud case.

2. Fuxin, Liaoning Province, false invoicing of agricultural products and tax fraud case

3. Sichuan "7-15" false invoicing, money laundering, tax fraud case

4. Fujian gangs of false invoicing, purchase order matching tax fraud case

5 Henan, Hunan leather and mushroom industry export tax fraud case

6. Shenzhen, Guangdong Province, the use of electronic special ticket fraudulent export tax rebate case

7. Guangxi smuggling, illegal sale of invoices, false invoicing, fraudulent tax rebate case of retained tax credits

8. Anhui gang fraudulent tax rebate and export tax refund case

9. Guangdong fraudulently obtaining tax rebates and export tax refunds by false invoicing case

10. Hebei fur enterprises with single fraudulent export tax rebate case

11. Qingdao agricultural products fraudulent export tax rebate case

In this situation, it is necessary to combine the existing legal provisions, judicial practice, the crime of obtaining export tax refunds on the constitutive elements of the defense strategy for a careful review, in order to better distinguish between crime and non-crime, in order to better strengthen the field of foreign trade and export tax supervision and inspection.

II. by the partner blind, does not have tax fraud intention, does not constitute the crime of fraudulent export tax rebates

(I) The case of tax cheating by Deran Company and Xu Zhanywei: no tax cheating intention does not constitute a crime.

In this case, the company is a foreign trade enterprise, Xu Zhanyi is the actual person in charge of the company. 2013 October to November 2014, outsiders Lin Moukun, Zhang Moumeng dependent on the company engaged in clothing export business, the mode of: the company provides a blank seal of the company's purchasing contracts, customs declarations, Lin, Zhang, the two people to organize their own sources of supply and customs clearance for export. After exporting, Lin and Zhang provided the contract, customs declaration and invoice to DELEVISION, and DELEVISION applied for a tax refund. The company through the above way total tax refund 10,256,301.61 yuan, after deducting the handling fee, are remitted to Lin Moukun designated account. Later found that Lin Moukun, Zhang Moumeng's business is false export.

The court held that: DELVAN utilized its own qualification of export tax rebate to provide dependent service for others, which was an illegal behavior. However, there was no evidence in this case to confirm that DELVAN subjectively knew that the dependents had the intention of obtaining export tax rebate fraudulently, and it could not be excluded that DELVAN was indeed deceived by the reasonable doubt of the dependents. Therefore, the verdict is that DELEVISION and XU Zhanwei are not guilty.

(II) Fraudulent export tax rebate must have the intention of tax fraud

The crime of obtaining export tax rebates by deception, Article 204 of the Criminal Law stipulates the crime of "falsely declaring exports or other deceptive means, and obtaining national export tax rebates by deception", which makes it clear that deception shall be the constitutive element. In the Interpretation on Several Issues Concerning the Specific Application of Laws in Trial of Criminal Cases of Fraudulent Export Tax Refunds (hereinafter referred to as the Interpretation on Cases of Fraudulent Export Tax Refunds) issued by the Supreme People's Court, "false declaration of export" and "other deceptive means" are clearly explained, which also indicates that the crime of fraudulent export tax refunds is only a crime of fraudulent export tax refunds. It also indicates that the crime of cheating export tax rebate is only constituted by intent, and the perpetrator must subjectively have the intention of cheating tax, or the perpetrator (mainly enterprises with import and export operation rights) knows that others want to cheat export tax rebate, and still handles the tax rebate for them.

In the case of dependence, agent customs declaration tax rebate, if it fails to identify the agent customs declaration, the dependence of whether the enterprise is aware of the perpetrator with tax fraud, that is, failed to prove that the enterprise has the intention to cheat the tax, it does not constitute the crime of fraudulent export tax rebate.

(III) "Four from three missing" does not necessarily constitute the crime of tax cheating.

The "four from three see" refers to the "State Administration of Taxation on the export enterprises to "four from three see" mode of transaction of export products will not refund the notice" (State Taxation [1992] No. 156), the export enterprise allows others to "bring their own customers, bring their own sources of goods, bring their own bills of exchange, their own customs clearance", but "do not see the exported goods", "do not see the owner of the supply", "do not see the The situation of "not seeing the export goods", "not seeing the supplier of goods", "not seeing the foreign businessman". This situation is obviously illegal and unlawful, no tax rebate. However, it is not the case that "four from the three do not see" constitute the crime of tax fraud.

According to Article 6 of the Interpretation of Cases of Fraudulent Export Tax Refunds, only if the exporting enterprise knows that the perpetrator is cheating the state export tax refunds, it constitutes the crime of tax fraud. In the present case, although the company constitutes the crime of tax cheating because there is no evidence to prove that it has subjective intention and it is impossible to exclude the reasonable doubt that it has been deceived by others, so it does not constitute the crime of tax cheating.

III. "False export declaration": unclear fact-finding, insufficient evidence, no guilt beyond a reasonable doubt

(I) Tax Fraud Case of Zhao Moumou and Others: Insufficient Evidence and Failure to Exclude Reasonable Doubt

At the end of 2021, the court of first instance in the tax fraud case of Zhao Moumou, which was represented by Huatax, rendered an acquittal judgment on the grounds of unclear facts and insufficient evidence.

In this case, Zhao and a foreign trade enterprise under his control were located in a border city in China. Procuratorial authorities alleged that: Zhao Moumou will be others transported out of the tax-free non-refundable goods, disguised as its own export goods export customs clearance a total of 180 single, declared export tax rebates, defrauded the state export tax rebates of about 20 million yuan.

After the lawyer comprehensive review of the evidence in the case, the court finally concluded that the facts of this case is unclear evidence is insufficient.

The court firstly considered that: to determine the fraudulent export tax rebates and the corresponding amount of tax fraud, in addition to the evidence based on rhetoric, should be combined with the following objective evidence: VAT invoices, customs declaration, domestic trade procurement contract, foreign trade export contract, the flow of goods, the flow of funds.

1. The part of "goods allocation": this case only has the verbal evidence of the defendants and witnesses in the transportation link and customs declaration link, which are all inferential testimonies, lacking the testimony of the real owner of the goods, and failing to find out the owner of the goods who was "borrowing goods". In addition, due to the lack of evidence of the flow of goods, it is difficult to distinguish between Zhao Moumou's enterprise real goods transactions and "distribution" part.

2, "buy a single" part: this case that the customs declaration is false, is indirectly identified through the provision of goods information of the defendant's confession, insufficient probative power. That is, the logic of the prosecution is: the goods information is purchased, so the export of goods is false, so the customs declaration is naturally false. But the lack of evidence of the flow of goods, capital flow, Zhao Moumou in the export, from time to time mixed with its real export goods, so can not distinguish between a customs declaration of real goods and "matching" part.

3, value-added tax invoices: on the case of customs declaration corresponding to the value-added tax invoices constitutes a false invoicing, the lack of capital flow, the flow of goods to support the evidence, only the defendant, the witnesses of the verbal evidence. The false invoices recognized by the tax authorities also lacked evidence of the flow of goods and funds.

4, domestic trade procurement contract: domestic trade contract is a false contract, lack of evidence of capital flow, flow of goods.

5, foreign trade export contract: the lack of contractual counterparty that is the testimony of the foreign buyer, the evidence of payment of funds.

6, foreign exchange: the foreign exchange involved in the case of Zhao Moumou violation of the purchase, but can not be sufficient to confirm the case of fraudulent export tax rebates, and can not be sufficient to prove the amount of fraudulent tax in this case.

Accordingly, the court with unclear facts and insufficient evidence, the verdict of the defendant is not guilty.

(II) The core facts of the constituent elements of the tax fraud offense

According to the Interpretation of Cases of Fraudulent Export Tax Refunds, the means element that constitutes fraudulent export tax refunds is the optional element, namely:

Accordingly, as long as one of the above means is met, combined with the subjective intent to cheat taxes and the objective loss of tax refunds, it can be prosecuted for the crime of cheating export tax refunds. However, to confirm the above means, but also combined with the actual flow of funds, goods and other objective evidence, can not be determined by verbal evidence alone.

1, false contract: should be combined with the verbal evidence of the other party to the contract, the actual source of the subject matter of the contract and transportation, the contract agreed to pay the consideration, whether there is a return of funds and other circumstances to be determined. For foreign trade contracts, but also to determine whether the foreign exchange is false.

2, false customs declaration documents, should be combined with the real owner of the exported goods, the real buyer of the goods, the transportation of goods to be determined.

3、False invoicing, the same as the determination of the crime of false VAT invoices, with the real goods transaction as the core, combined with the contract flow, capital flow, goods flow, invoice flow to be determined.

4, goods: in the tax-free non-refundable goods as general trade export declaration, should be recognized in conjunction with the real seller of goods.

(III) fully sort out the evidence of foreign trade export links information

Foreign trade links are numerous and intricate. In terms of export tax rebate declaration, to involve the domestic procurement of goods, customs clearance for export, collection and settlement of foreign exchange, export tax rebate declaration and a series of links. In each link, there are corresponding risk points.

In the domestic procurement of goods, the main review of the contract and invoice is whether they are false, the most important of which is whether the VAT invoice is falsely issued. Customs clearance and export links, the main review of customs declarations, freight bills and other documents obtained. Collection and settlement of foreign exchange links, mainly to review the bank record documents, the actual source of foreign exchange. Declaration of export tax rebate link, review the actual amount of tax rebates into the reservoir. Therefore, the case-handling authorities must be one by one detailed investigation, or may not be able to form the completion of the chain, can not rule out the reasonable doubt that the real export of goods.

IV.tax fraud shall cause the actual tax refund loss, the part of non-refundable tax is not recognized as tax fraud

(I) Liu Moubo and other tax fraud case: the part of the actual tax refund is not recognized as a crime.

In this case, the Public Prosecution Bureau alleged that the Defendants registered and controlled 11 enterprises and obtained 1,184 fraudulently issued invoices for the purchase of agricultural and sideline products, with a total amount of 170,784,863 RMB, and the Public Prosecution Bureau directly multiplied the amount of the invoices for the purchase of agricultural products by the 10% tax rebate rate, and determined that the Defendants had fraudulently obtained a total tax rebate of 17,896,075 RMB by utilizing fraudulently issued invoices.

The court found that the enterprise controlled by the defendant had both a real business and a false business, and the evidence in the case showed that the export tax refunds declared on the false export documents actually totaled $1,358,387.14. The opinion that the rest of the exported goods alleged by the public prosecutor were falsely exported and successfully declared for tax refund could not meet the standard of sufficient evidence and was not recognized, and this part did not constitute a crime.

(II) The amount of tax fraud that has not been generated does not constitute the crime of tax fraud

For the composition of the crime of cheating export tax rebate, Prof. Zhang Mingkai believes that: the crime of cheating export tax rebate is a result crime, and this result is the result of the constituent element, that is, the actual cheating of the state's export tax rebate, "only when the perpetrator has cheated the state's export tax rebate, it can be recognized as the occurrence of the result of the constituent element, which in turn can be recognized as the crime has been accomplished. " (See "Analysis of the Conditions for the Establishment of the Crime of Fraudulent Export Tax Refund")

By the same token, not only for foreign trade enterprises directly applying for export tax refunds, to obtain national export tax refunds as a constituent element, for the other actors in the case to obtain the benefit for the purpose, also to ultimately cause the loss of national export tax refunds as a constituent element, rather than to obtain the benefit as a constituent element.

(III) Calculation of tax amount of tax fraud shall be limited to the actual tax refund into the treasury.

In practice, there exist some case-handling authorities to calculate the amount of tax refunded according to the tax amount of the fraudulently issued VAT invoices identified by the upstream, multiplied by the tax refund rate. This practice is obviously wrong. Fraudulent export tax rebate is a special fraud, the result of the crime, and its particularity lies in the object of fraud is the state's export tax rebate of public property. In general fraud, the actual loss of the victim to determine the amount of fraud. In the crime of tax fraud, should also be the actual fraud of the state export tax rebates to determine the amount of tax fraud.

V. Summary; foreign trade enterprises should strengthen risk response

At present, China's foreign trade and export industry is in the process of development, and the state has provided a large number of tax policy support for the foreign trade and export industry. However, the fraudulent export tax rebate behavior is also repeatedly prohibited, therefore, tax, customs, public security, foreign exchange and other multi-departmental joint efforts to crack down on tax fraud. As the conviction and sentence for tax fraud is very heavy. According to Article 55 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Criteria for Filing Criminal Cases under the Jurisdiction of the Public Security Organs (II), if the amount of the fraudulent state tax rebate is more than RMB 100,000 yuan, the case shall be filed for prosecution. According to the relevant provisions of the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Fraudulent Export Tax Refunds, if the amount of fraudulent state tax refunds is more than 500,000 yuan, it constitutes a huge amount, and shall be punished by imprisonment for five to ten years; and if the amount of fraudulent state tax refunds is more than 250 yuan, it constitutes a particularly huge amount, and shall be punished by imprisonment for more than ten years or by imprisonment for life. Therefore, foreign trade enterprises should focus on their own compliance, and actively deal with the tax-related risks in the export sector:

(I) Strengthen their own compliance construction, and adhere to the export of real goods

There are many businesses in the export sector, and enterprises should fully realize that in the process of foreign trade export, "self-supporting", "agency" and other ways of the basic mode, to avoid "false self-supporting, real agency", Avoid "fake self-management, real agency", "four from three missing" situation. In addition, it is necessary to reasonably review suppliers, bills, contracts, cargo information to ensure the authenticity of exported goods. For foreign integrated service enterprises, customs brokerage enterprises, etc., it is more important to prevent the possibility of collusion between suppliers and foreign businessmen.

At the same time, tax health check should be carried out regularly with the help of tax accountants, lawyers and other professionals.

(II) Pay attention to tax audit procedures to avoid administrative responsibility turning into criminal responsibility.

Foreign trade enterprises should pay attention to the tax inspection procedure, especially when they have been recognized as fraudulent opening and tax cheating, and actively communicate with the tax authorities to ensure that the risk is controlled in the administrative procedure to the greatest extent possible.

(III) Properly respond to criminal risks with the help of professionals

If the case is transferred to the public security, or the public security directly investigates the case, the party concerned faces the initiation of criminal procedures, the enterprise involved in the case should actively cooperate with the investigation, explain the authenticity of its business, provide the corresponding contracts, data, information, documents, etc. that prove the business compliance, and actively communicate to prove that it does not have the intention of tax fraud, and that it has the real goods exported. In addition, they should seek the help of lawyers in a timely manner to sort out the materials and files of the case and communicate with the public security and judicial authorities.