Recently, the Procuratorate Daily reported a case in which the real controller of a coal-using enterprise purchased coal from a small coal kiln without a ticket, and then found a third party to issue an invoice on his behalf, and the real controller was eventually convicted and sentenced for the crime of illegally issuing VAT invoices. However, in judicial practice, many judicial authorities have convicted and sentenced the person for the crime of illegally purchasing VAT invoices in the same case. The maximum penalty for the crime of false invoicing is life imprisonment, while the maximum penalty for the crime of illegal purchase is five years. The difference in the characterization of the two crimes is so great that "different sentences for the same case" undermines the fairness and authority of the judiciary and damages the legitimate rights and interests of the defendants. After the two high judicial interpretation, for the behavior of truthfulness on behalf of the characterization, the supreme law and the supreme prosecutor successively issued "understanding and application" of the viewpoints and there are different. Based on this, this paper intends to start from the two cases, in the two high judicial interpretation of the background, and strive to clarify the truth on behalf of the act of crime and non-crime, the crime and the crime, with a view to make the criminal law of the basic principle of criminal responsibility and criminal punishment in the tax-related crimes can be truly realized.

I. Different judgments in the same case: the purchase of coal from a small coal kiln was falsely invoiced, and the other case was judged to have been illegally purchased.

(I) Case 1: False invoicing, the recipient and other relevant persons were sentenced to 3 to 12 years' imprisonment.

1. Basic facts of the case

According to the Procuratorate Daily, on July 21, 2022, the prosecutor Wei found that there was a 1 million fund flow abnormality between Company A and Company B in the case, so he investigated and collected evidence. Eventually, it was found that from October 2020 to December 2021, Zhang Mou, the actual controller of Company B, accepted others to falsely open VAT invoices for coal and asphalt totaling 572.8 million yuan, resulting in a loss of 65.9 million yuan in state taxes.

At the stage of review and prosecution, in response to the defense's suggestion that Zhang's "false invoicing with goods" behavior was based on real coal transactions, without the subjective intention of tax fraud, and there was no loss of national tax, which did not constitute the crime of false invoicing, the procuratorial authorities argued on the one hand that Zhang and others received coal from small coal kilns, and knew that small coal kilns were unable to issue VAT invoices, but still had dealings with them, and in fact, in the real transaction, he had accepted a total of 572.8 million yuan of VAT invoices. The prosecuting authority argued that Zhang and others collected coal from the small coal kiln, knew that the small coal kiln could not issue VAT invoices and still traded with it, in fact, they did not pay VAT in the real transaction, and the state did not collect VAT based on the real transaction, and Zhang and others still used VAT input invoices purchased from other places to make input deductions, which resulted in tax losses to the state. At the same time, there was no dependency relationship between Zhang and the invoicing company, and there was no real transaction of coal goods, and the falsely issued VAT invoices were not purely for the purpose of improving the company's performance or displaying the company's strength, but were all used for certifying and offsetting taxes, and they subjectively had the intention of fraudulently obtaining the offsetting taxes, and objectively caused the loss of a large amount of national taxes, and the case should be deemed to constitute the crime of falsely issuing VAT invoices.

Eventually, on March 9, 2023, Kaijiang County Procuratorate prosecuted Zhang and 12 others for the crime of suspected false invoicing of VAT.

2. Judgment Result

On January 20, 2024, the Kailiang County Court adopted all the criminal facts alleged by the procuratorate and the sentencing suggestions put forward, and sentenced the defendant Zhang and 12 others to fixed-term imprisonment of three to twelve years, and each of them was also punished with a fine.

(II) Case 2: Truthful opening on behalf of the convicted illegal purchase, the ticketed party was sentenced to five months of detention

1.Basic Case

Yang Mou is the de facto controller of a Hunan petrochemical company, whose company could not issue VAT invoices because the other party purchased coal from a small coal kiln, so in March 2018, through intermediaries such as Sun Mou, he purchased 223 VAT invoices from Yiyang County, a company that sells coal and other companies, at a cost of 8.8 points on the face amount of the invoices, with a total of price and tax of more than 25,870,000 yuan, and Yang Mou certified in the state tax department to offset the taxes More than 3.75 million yuan. in November 2018, the public security organs criminally detained Yang on suspicion of the crime of false VAT invoices. on December 1, 2020, the People's Procuratorate of Yiyang County, Jiangxi Province, filed a public prosecution with the People's Court of Yiyang County, Jiangxi Province, for the crime of Yang's unlawful purchase of VAT invoices, and put forward the sentencing recommendation that Yang should be sentenced to three years' fixed-term imprisonment, four years' probation, and a penalty of 100,000 yuan.

2.Referee results

On December 24, 2020 Yiyang County Court made a decision on the case. The court held that the defendant Yang violated the state regulations on the management of VAT invoices and illegally purchased VAT invoices, and his behavior constituted the crime of illegally purchasing VAT invoices. The court supported the charges of the public prosecution, but did not adopt the sentencing suggestions put forward by the public prosecution, and finally sentenced Yang to five months' detention and a fine of 40,000 RMB for the crime of illegally purchasing VAT invoices.

(iii) Doubt: the reason of "different judgment in the same case" for truthful invoicing

From the two cases, it can be seen that the company controlled by the perpetrator are because of the small coal kiln to buy coal, but the small coal kiln failed to issue VAT invoices to them, so they found other companies to open VAT invoices for input deduction. The same kind of behavior, the same kind of case, the prosecution authorities of the two places to bring the charges and the court's decision why the results are so different?

From the timeline point of view, the decision results of the two cases occurred before the two high judicial interpretations. The main reason is that the Supreme Court's "Interpretation on Several Issues Concerning the Application of the Decision of the Standing Committee of the National People's Congress on Punishing the Crimes of False, Counterfeit and Illegal Sale of Value-added Tax Specialized Invoices" (Fa Fa [1996] No. 30) explicitly stipulates that "opening on behalf of a false invoice is a false invoice".

Although the Reply Letter of the Research Office of the Supreme People's Court (Law Research [2015] No. 58) seeking opinions on how to determine the nature of the act of carrying out business activities in the name of the company concerned by "relying on" it and having the company concerned falsely issue VAT invoices on its own behalf, it is clear that "even if there is no relationship of relying between the perpetrator and that other person, the perpetrator shall not be liable to pay VAT on behalf of that other person, but he shall not be liable for the VAT. there is no affiliation relationship between the actor and the other person, but if the actor carries out actual business activities, subjectively does not have the intention of fraudulently obtaining tax deduction, and objectively does not cause loss of the state VAT payment, it is not appropriate to recognize it as 'falsely issuing VAT invoices' as stipulated in Article 205 of the Criminal Law; and if it meets the conditions for the formation of other crimes such as the crime of tax evasion, it can be If the conditions for other crimes such as tax evasion are met, the case can be dealt with as other crimes."

However, in practice, there are differences in the knowledge and understanding of the judicial organs around the world, and the results of the discretionary judgment are inconsistent, which leads to the emergence of the dilemma of "different judgments for the same case".

(iv) the two high judicial interpretation to solve the above controversy?

The judicial interpretation of the two high courts repealed the full text of Fa Fa [1996] No. 30, "carried out actual business activities, but let others open VAT invoices for themselves" of the opening behavior according to the crime of fraudulent opening of VAT invoices was repealed with the clear provisions of the crime. However, according to the existing viewpoints, "proxy invoicing" has not been completely taken out of the circle of false invoicing crime.

According to the article of the Supreme Court, the provision of Article 10(1)(2) that "there is actual business subject to deduction, but the VAT special invoices issued exceed the tax corresponding to the actual business subject to deduction" encompasses the business of issuing invoices on behalf of others, which means "although there is a real transaction, but the deductible tax on the invoices exceeds the tax that should be deducted, including the tax in the form of exemptions, the tax in the form of exemptions, and the tax in the form of exemptions.

According to the article of the Supreme Prosecutor's Office, "issuing VAT special invoices through fictitious transaction subjects for businesses that are not tax-deductible according to law" as stipulated in Article 10(1)(c) encompasses the business of issuing invoices on behalf of others and even the business of issuing invoices on behalf of others in a truthful manner.

Accordingly, the articles of the Supreme Court and the Supreme Prosecutor's Office on the judicial interpretations of the two high courts on the analysis of truthful invoicing are controversial and have not solved the above remaining problems. Although the Supreme Court and the Supreme Prosecutor's article on the truthfulness of the behavior of the views of the differences, but the author believes that too much criticism of the legislation to maintain the legal rights and interests of the truthfulness of the behavior of the opening without too much substance, how the two high judicial interpretation, the Supreme Court and the Supreme Prosecutor's article of the understanding and application of the truthfulness of the opening of the behavior of the behavior of the search for an exit of the crime and responsibility of the punishment is appropriate to the judicial practice in order to achieve substantive justice, is the important task of the judicial practice. The important task of judicial practice. Therefore, the author combines the understanding of the two articles to discuss the behavior of the truthful opening.

II. the supreme law article point of view: "to buy goods at a price that does not include tax and obtain invoices from a third party" behavior, belongs to the "false invoicing with goods".

(i) How to understand the behavior of "purchasing goods at non-tax inclusive price and obtaining invoices from a third party".

The so-called truthful invoicing actually refers to the consistency between the tax-inclusive price paid by the party receiving the invoice for the purchase of taxable items and the total amount of price and tax on the invoice obtained from the invoicing party. However, according to the viewpoint of "false invoicing with goods" in the article of the Supreme Court, if the perpetrator "purchases goods at a price excluding tax and obtains invoices from a third party in order to offset the cost", it still belongs to "false invoicing with goods". ". Considering that readers may have misunderstanding of the above provisions, this article quotes Judge Yao Longbing's article "On the Characterization of "With Goods" Type of False VAT Invoice Behavior" to explain the above viewpoints.

According to Judge Yao Longbing's viewpoint, the premise for the invoicee to exercise the right of deduction is that the price paid by the invoicee to the seller is tax-inclusive. If the two parties to the transaction agreed on the so-called "tax-exclusive price", "this situation because the buyer did not pay tax in the purchase process, so it can not enjoy the right of deduction". At this point, even if the invoiced party obtains the amount of invoices and the actual price of goods, but because the invoiced party did not pay VAT to the state in the real transaction, based on the principle that no payment is not entitled to apply for credit, it still constitutes false invoicing.

In order to better understand the image, for example: company A and company B agreed, company A to 100 yuan "tax-free price" to buy the goods, did not get the invoice. Company A then 6% of the invoicing fee, from Company C to obtain the total price of 100 yuan of invoices, the value-added tax rate of 13%, of which the amount of 88.49 yuan, the tax amount of 11.51 yuan. According to the above point of view, because company A paid the "tax-free price", do not enjoy the deduction rights, and therefore belongs to the "false invoicing".

Specifically to the case of this article, the procuratorial authorities believe that "Zhang and others received coal from small coal kilns, knowing that the small coal kilns could not issue VAT invoices, but still with the transaction, in fact, in the real transaction did not pay VAT, the state has not been based on the real transaction to the VAT, and Zhang and others are still using the VAT invoices purchased from elsewhere to make input credit, causing tax losses to the country. State a loss of tax revenue." In fact a replica of Judge Yao Longbing's view.

(ii) Tax collection practice: there is no so-called "tax-exclusive price".

In the author's opinion, the above viewpoint of "tax-exclusive price" is a misinterpretation of the principle of VAT. From the perspective of tax administration practice, the author believes that the "tax-exclusive price" can only be a calculated and proposed price, which does not actually exist in real life. In other words, all sales prices are tax-inclusive prices. Specifically:

First of all, whether the seller issues invoices or not, it has tax obligations, in other words, the tax obligations of the seller are statutory and do not change because of whether it issues invoices or not. According to the requirements of value-added tax collection and management, if the taxpayer has not issued invoice, the whole uninvoiced income will be regarded as the tax-inclusive price, calculate and pay value-added tax, and fill in the column of "uninvoiced invoice" with the sales and output tax, and then make the tax declaration; Secondly, no matter whether the purchaser and seller agree on the "tax-free price" or not, the tax authority does not have the obligation to pay the tax. Secondly, regardless of whether the purchase and sale parties agreed on "excluding tax price", the tax authorities will not give up the responsibility of recovering non-payment and underpayment of value-added tax from the seller, and it is inevitable that the actual amount of money between the purchase and sale parties will be regarded as the price inclusive of tax, and the amount of value-added tax will be calculated accordingly.

In Case 1 of this paper, the procuratorate, based on "presumption", directly determined that Zhang "knew that the small coal kiln could not issue VAT invoices but still traded with it", that is to say, the procuratorate directly believed that Zhang paid the so-called "price excluding VAT", and thus presumed that he did not pay VAT. That is to say, the procuratorial authorities directly considered that Zhang paid the so-called "tax-free price", and thus presumed that he did not pay the VAT, which, in the author's opinion, was a wrong approach. As mentioned before, according to the provisions of the Provisional Regulations on Value-added Tax, the seller is a VAT taxpayer, and the seller obtains income, even if no invoice is issued to the buyer, and should pay VAT to the state in accordance with the invoice-less income when making tax declaration, and it is a tax evasion to hide the income if no declaration is made. Moreover, if the said small coal kiln is audited by the tax authority, the tax authority is afraid that it will not recognize the viewpoint of "excluding tax price" put forward by the procuratorate, and thus will not recover the VAT of the small coal kiln. Therefore, the author believes that even if there is a loss of VAT in this case, it is not caused by Zhang Mou, but caused by the small coal kiln to hide the income, and it should be investigated for the responsibility of tax evasion, and should not be incorrectly determined that Zhang Mou is the false opening of the crime.

(iii) Summary: As long as the total amount of invoice price and tax is the same as the actual transaction amount, it belongs to the truthful invoicing.

In summary, the author believes that there is a real transaction, if the price paid by the invoicee to the seller and the total amount of invoice price and tax is the same, it belongs to the truthful invoicing. If the invoice belongs to more than one, only for the "false invoicing with goods".

III. the supreme procuratorate article point of view: fictitious and transaction unrelated to the third party to obtain invoices belong to the false opening, including the truth on behalf of the opening behavior

(i) "Businesses that cannot deduct taxes according to law" is expanded to "the recipient party does not meet the conditions for deduction".

The article of the Supreme Prosecutor's Office interpreted the second behavior as "false invoicing with goods" which has actual business but exceeds the tax corresponding to the actual business to be deducted, and the exceeding part is also false invoicing in essence". Accordingly, the Supreme Prosecutor did not categorize the act of truthful invoicing, but interpreted the second act as multiple invoicing in which the subject of the transaction was the same as the party issuing the invoice. Therefore, the author believes that under the interpretation of the Supreme Prosecutor, the act of truthful proxy opening does not belong to the act of false opening under Article 10(1)(b).

The Supreme Prosecutor's article argues that "Item 3 refers to the recommendations of the Ministry of Public Security and the State Administration of Taxation, and addresses the fact that in practice, the invoicee of the actual transaction does not meet the conditions for offsetting, but obtains invoices through a fictitious third party that has nothing to do with the transaction and then offsets them, which is also an act of false invoicing." Obviously, the article of the Supreme Prosecutor interpreted the "business that cannot deduct tax according to law" in the judicial interpretation of the two high courts as "the invoiced party does not meet the conditions for deduction", which led to the broadening of the scope.

The core point of "business which cannot deduct tax according to law" is "business", and it lies in whether the business belongs to the business which can deduct tax in substance in the relevant provisions of the VAT, rather than whether its formal conditions are in line with the conditions for deduction. In other words, if the recipient of the invoice does not meet the conditions for deduction due to non-compliance of the invoice, failure to issue the invoice and other formal conditions, it does not affect the substance of the business, and still belongs to the business that can be deducted.

(ii) The viewpoint of the Supreme Prosecutor's Office may be contrary to the core of "limiting the criminal circle of false invoicing".

The article of the Supreme Prosecutor's interpretation of the "invoiced party does not meet the conditions for deduction", obviously will not obtain invoices, obtain non-compliant invoices and other formal conditions, but also into the scope of the tax can not be deducted. Because the seller does not invoice, the invoiced party of course does not meet the conditions of deduction, but the invoiced party in order to realize its essence of the deduction of the rights and interests of the third party to obtain invoices and deductions, in the Supreme Prosecutor's point of view, the behavior also belongs to the false invoicing. The author believes that this point of view directly back to the law [1996] No. 30 on behalf of the opening behavior is false opening position, or contrary to the two high judicial interpretations aimed at narrowing the circle of false opening of the core of the crime.

In addition, there is also the view that even the Law Research [2015] No. 58 does not directly determine that truthful opening is not false opening, but truthful opening "subjectively does not have the intention of fraudulently deducting tax, and objectively does not cause loss of national VAT", and it is not appropriate to recognize it as a false-opening crime. In other words, even though the article of the Supreme Prosecutor's Office considers that truthful issuance is false issuance, truthful issuance can be subject to the "exculpatory clause" of Article 10(2), and thus does not constitute a crime. But the crime clause has the burden of proof to the perpetrator of suspicion, in practice, the defendant if you want to prove that they "did not cause the loss of national tax", can be said to be more difficult. As in Case 1, the public prosecutor directly "with the subject who can not issue VAT invoices for transactions" behavior to presume the existence of tax losses, for the perpetrator, how to prove that the truthful opening did not cause tax losses?

IV. how should the act of truthful opening realize the attribution of responsibility under the judicial interpretations of the two high courts?

(i) Truthful opening behavior does not constitute the crime of false VAT invoicing

As mentioned above, although the author believes that the act of opening on behalf of the truth does not belong to the act of false opening, but taking into account the Supreme Court article and the Supreme Prosecutor's article on the characterization of the act of opening on behalf of the truth is still controversial, based on the consensus of taking the "largest common factor", even if there is the act of opening on behalf of the truth, it can still be criminalized according to the second paragraph of the Article 10. First of all, it needs to be clear that, as mentioned before, there is no so-called "tax-free price" in the practice of tax collection and management, and all transaction prices are tax-inclusive, so the seller does not fulfill the obligation of VAT, and fails to pay the tax according to the calculation of "uninvoiced income", and this part of the tax loss should be paid by the seller. This part of the tax loss should be borne by the seller, more importantly, if the tax authorities carry out an audit, this part of the tax can be deposited into the treasury, in this way, there is no loss of state tax.

Accordingly, in the case of truthful invoicing, the invoice amount obtained by the party receiving the invoice is consistent with the rights and interests of substantial offsetting input tax, which will not result in the loss of more than offsetting, fraudulent offsetting of tax, the subjective behavior of the perpetrator does not have the purpose of fraudulent offsetting of tax, and objectively, even if the tax authorities did not recover the tax from the seller, the loss of state tax is not due to offsetting but due to the tax evasion of the seller. Therefore, the act of opening on behalf of the truth does not constitute the crime of false opening.

However, the act of truthful billing does disturb the national tax administration order, in the protection of human rights at the same time, but also can not let go of the criminal behavior. So, how to realize the blame on behalf of the act of truthfulness?

(ii) Should the act of truthful opening be convicted and sentenced for the crime of illegally purchasing VAT invoices?

In the past judicial practice, the act of truthful opening should be punished as the crime of illegal purchase of VAT invoices. Some courts, including the Court of Case 2, held that the perpetrator, who mined coal from a small coal kiln and did not obtain VAT invoices in accordance with the law, but chose to obtain the invoice behavior of truthful opening on behalf of the invoices from other companies, subjectively had the intention and purpose of destroying the order of state invoice management, objectively violated the state's prohibitions on VAT invoices, and carried out the crime of paying the invoicing fee and other means of selling the VAT invoices from the company not authorized to sell VAT invoices. The subject's act of purchasing VAT special invoices destroyed the national administrative order on VAT special invoices, and his act met the constitutive elements of the crime of illegally purchasing VAT special invoices, and he was finally convicted for the crime of illegally purchasing VAT special invoices.

Before the judicial interpretations of the two high courts were issued, the author believes that it is not improper for the court to recognize the act of truthful opening as the crime of illegally purchasing VAT invoices, but after the interpretations were issued, it may be inappropriate to characterize the act in such a way.

According to the article of the Supreme Court, "if the party receiving the invoice illegally purchases VAT invoices and uses them for other purposes instead of fraudulently offsetting taxes, if the other purposes do not constitute a crime, the crime of illegally purchasing VAT invoices constitutes a single crime; if the other purposes constitute other crimes, the crime of illegally purchasing VAT invoices constitutes a crime of guilt by association with the crime of other purposes. " As mentioned above, the act of truthful issuance does not belong to the act of false issuance, its purpose is not to cheat the tax, and it does not cause the loss of tax, so it does not constitute the crime of false issuance of VAT invoices, and it constitutes the crime of illegal purchase of VAT invoices.

Therefore, in addition to the crime of illegal purchase, if the perpetrator truthfully issuing invoices to offset tax constitutes the crime of tax evasion, according to the provisions of guilt by association, it shall be punished by the principle of one punishment for another, and can be punished by the crime of tax evasion on the party receiving the invoice.

(iii) Does the act of truthful invoicing constitute the crime of tax evasion?

1. The act of truthful invoicing belongs to the act of false offsetting of input tax amount.

Article 1, paragraph 1, item 3 of the judicial interpretation of the two high courts stipulates that "If a taxpayer makes a false tax declaration with one of the following circumstances, it shall be recognized as the 'deception or concealment means' stipulated in Article 201, paragraph 1 of the Criminal Law: (3) false listing of expenditures, false offsetting of input tax amount or false declaration of special additional deduction. ."

At the same time, the Supreme Court article explains that "the tax authorities believe that, for the behavior of false offsetting of inputs, according to the Circular of the State Administration of Taxation on the Handling of Issues Relating to Taxpayers Obtaining Fraudulently Opened VAT Special Invoices (GuoShuiFa (1997) No. 134), "if the party to be invoiced utilizes other people's falsely opened special invoices and declares them for offsetting tax to the tax authorities, it shall, in accordance with the provisions of the State Administration of Taxation, evade tax. In case of tax evasion, the tax shall be recovered in accordance with the Law of the People's Republic of China on Administration of Tax Collection and the relevant regulations, and a fine of up to five times the amount of tax evasion shall be imposed", therefore, it is suggested that the above means should be enumerated. It should be particularly noted that the "false offsetting of input tax amount" here is premised on the premise that it does not constitute the crime of false issuance of special VAT invoices."

"The demarcation between the crime of false VAT invoicing and the crime of tax evasion. The most crucial difference lies in whether the subjectivity is based on the intent to cheat the state tax or on the purpose of evading the tax obligation. If, within the scope of taxable obligation, a taxpayer makes a credit by falsely raising the item in order to pay less tax, even though he has adopted the means of falsely opening a credit, he still subjectively aims at not paying less tax, and according to the principle of unity of subjectivity and objectivity, he shall be punished for the crime of tax evasion."

Accordingly, if the taxpayer's false offsetting of input tax is for the purpose of underpayment or non-payment of tax within the scope of tax payable, i.e., it is still for the purpose of tax evasion, it does not constitute the crime of false invoicing, but the crime of tax evasion.

Specific to the act of truthfully open, as mentioned above, it does not constitute the crime of false VAT invoices, in accordance with the provisions of the tax law, the perpetrator of the invoice through truthfully open the invoice is not compliant invoices, does not comply with the provisions of the State Administration of Taxation [1995] No. 192, can not be used for input credit, the perpetrator in order not to pay the tax, in order to deduct taxes, within the scope of the taxable obligation to tax, constitutes the crime of tax evasion.

2. the scope of taxable obligations should be the actual scope of tax credits should be offset

What is the scope of taxable obligation is not clear, and it has triggered a big controversy in the practical world. There is a view that the scope of taxable obligations for the actual sales of taxable items taxable items generated output tax, if in accordance with this view, if the perpetrator did not sell taxable items, output tax is 0, to obtain the truthful invoices more than the scope of taxable obligations, or constitute the crime of fraudulent invoicing, is obviously not appropriate. In the author's opinion, the scope of taxable obligation should be the actual scope of tax deduction, in this way, such as truthful invoicing behavior constitutes the logic of tax evasion crime is more rigorous.

From the point of view of the principle of value-added tax, the scope of taxable obligation should also be understood as the actual scope of tax deduction. VAT should be levied on the value-added amount generated in the process of circulation of commodities, services and taxable acts as the basis of tax calculation. Accordingly, theoretically, the value of that part of the newly created value in the process of production and operation of the enterprise should be taken as the basis of tax calculation, and then multiplied by the corresponding rate of the amount of VAT that should be paid to the state, i.e., the amount of taxable obligation, and according to this direct method, the amount of tax payable should be deducted from the actual tax. According to this direct method of calculation, there is no problem of output tax, input tax, tax retention and so on, and there is no "scope" of taxable obligation, which should be the theoretical way of calculation of VAT. However, in the countries where VAT is practiced, including our country, the legal value-added amount is determined in the VAT system in accordance with their respective national conditions, and the offset calculation method is adopted in our country, so that there is the problem of offsetting of output tax and input tax. However, no matter what kind of calculation method is adopted, under the premise that theoretical value-added amount and statutory value-added amount are equal, the result of calculating the amount of taxable obligation should be consistent.

Therefore, in the author's view, from this point of view, the scope of taxable obligation cannot be the output tax amount, but should be the actual scope of creditable deduction to offset the tax. Accordingly, the perpetrator has not offset the tax within the actual scope of deduction by falsely offsetting the inputs through truthful opening on behalf of the perpetrator, which constitutes the crime of tax evasion.

Therefore, the author believes that the behavior of the perpetrator, in order not to pay tax, obtaining invoices through truthful opening for tax deduction, belongs to the criminal means of illegally purchasing VAT invoices to achieve the purpose of non-payment of tax, which constitutes a guilt by association, and can be punished in accordance with the crime of tax evasion.