Editor's Note: In the wave of digitization, the flexible labor industry is developing rapidly, but tax compliance risks are also following. Recently, a flexible labor platform's tax financing business has been transferred to the public security for suspected false VAT invoices. This article takes this as an example and discusses whether the platform enterprise constitutes "issuing invoices in good faith and accepting invoices in bad faith", as well as the definition of the responsibility of sales staff, aiming to provide professional legal analysis and advice for flexible labor platforms and their employees when they face tax risks. The purpose of this article is to provide professional legal analysis and suggestions for flexible labor platforms and their employees when they face tax risks.

01 Alleged false VAT invoicing on a flexible labor platform, salesperson charged with crime

Company A is a flexible labor platform set up in a tax depression and enjoys tax incentives such as local fiscal rebates. The company mainly focuses on flexible labor business, supplemented by some tax-financed business.Company A has several salespersons, who are responsible for developing customer resources according to the requirements of the company's Sales Manual, and their main work is to be responsible for contract signing, while the follow-up work is carried out by personnel from other departments such as operation and maintenance, technology, housekeeping, etc. Most of the business of Company A's flexible labor business is real and legal, and it acts as a flexible labor platform to provide information on the supply and demand of services to labor-using enterprises and flexible workers, settlement of service funds, and invoicing. As a flexible labor platform, it provides information on the supply and demand of services, settlement of service funds, and invoicing for labor-using enterprises and flexible laborers. Under the pressure of social security and new business models in recent years, flexible labor has brought a win-win situation to individuals and enterprises.

At the same time, a few tax-financing businesses of Company A, such as "sales with gold" of pharmaceutical enterprises and payroll for executives, were recognized by the tax authorities as suspected of fraudulent VAT invoicing and referred to the public security authorities, who also charged the sales staff of Company A with the crime of fraudulent VAT invoicing and recovered 800,000 yuan of their illegal proceeds. In this kind of tax financing business, the platform adjusts the behavior of the enterprise by rationalizing the pharmaceutical settlement relationship and changing the nature of income, and the enterprise then obtains the VAT invoice from the platform for pre-tax deduction and input credit. The question is whether Company A's business necessarily constitutes false VAT invoicing? Can the sales staff be held criminally liable for false VAT invoices? Should the salespersons be recovered the remuneration based on the unknowingly illegal business? The answers are clearly in the negative.

02 Definition of the platform's liability should take into account "invoicing in good faith and accepting invoices in bad faith" scenarios

To answer the above questions, it is first necessary to discuss the definition of Company A's liability. As mentioned above, Company A mainly carries out flexible labor business, which is the company's main product and its business model is real and legal, therefore, although there is a risk of false VAT invoices being issued in a few of the company's tax-financed businesses, it cannot be generalized to consider Company A as a shell company and to fight against it as a false invoicing criminal gang. On the contrary, Company A has a large number of real flexible labor business, which is a real and practical entity. After removing the "big hat" of false VAT invoices issued by a shell company, it is necessary to further discuss whether the company has the situation of "issuing invoices in good faith and accepting invoices in bad faith".

According to the invoicing party, accept the invoice party's different subjective state, can distinguish the following four situations: (1) good faith invoicing, good faith accept the invoice; (2) good faith invoicing, bad faith accept the invoice; (3) bad faith invoicing, good faith accept the invoice; (4) bad faith invoicing, bad faith accept the invoice. In this case, company A whether there is "good faith invoicing, bad faith acceptance of invoices" situation? Frankly speaking, the practice of the subjective state of the direct examination is difficult, the subjective state of the perpetrator is often presented through the objective behavior, that is, "subjective in the objective". Therefore, it is necessary to analyze whether Company A fulfills the audit obligation of ensuring the truth of the business in the process of business development. The problem is that, in the case of false VAT invoices issued by platform enterprises, the two subjects of "one head and one tail" are not controlled and mastered by the platform, and it is objectively difficult for the platform to ensure that the business is true at the front and back ends, and the most primitive situation of doing business and the transaction information need to be provided by the customer enterprises, which will inevitably result in the platform being used by the customer enterprises or the platform staff to obtain invoices by fraud and malpractice. The phenomenon of invoices being seized by fraudulent platform staff. At this point, it is necessary to examine whether the company establishes, operates and implements fraud prevention mechanism to presume its subjective good faith or not. For example, in the process of carrying out its business, does Company A allow its salespersons to sign an undertaking of good faith, an undertaking of truthfulness in business, an undertaking of risk segregation, and even the need to supervise funds.

So far, can be summarized to determine the invoice issued by company A subjective state of good faith or not the path is: if the company did not perform to ensure that the business is true audit obligations, then the company's subjective state is presumed to be bad faith; if the company to perform to ensure that the business is true audit obligations, but there is still the phenomenon of fraudulent customer fraud to obtain invoices, and the company's ignorance of this fraudulent behavior, no complicity, no participation, then the company's subjective state should be presumed to be good faith. Once the invoice problem occurs, the platform company should be the first time to provide the fraud prevention mechanism information to the tax authorities to avoid being recognized as indirect intent. Whoever commits fraud or malpractice should bear the corresponding responsibility. If "providing services in good faith" and "maliciously obtaining invoices" are subject to the same criminal law evaluation, it is obviously contrary to the basic principles of criminal law of subject-object consistency and self-responsibility.

03 Analyzing the culpability of salespersons in terms of the principle of punishment for unit crimes

Since company A may constitute a "good faith invoicing, bad faith acceptance of invoices" situation, or may not constitute the situation, then how to define the responsibility of the sales staff of the two cases of judgment? This needs to return to the unit crime theory system to answer. China's "Criminal Law" Article 31 provides that "unit crime, the unit sentenced to a fine, and its directly responsible for the competent person and other directly responsible persons sentenced to imprisonment." This means that China's criminal law implements a dual-penalty system for unit crimes, i.e., for unit crimes, both the unit itself and the persons directly responsible for it are penalized. What has been made clear is that Company A is not a shell company set up specifically for the purpose of issuing VAT invoices falsely, so its act of issuing VAT invoices falsely is a unit crime rather than a crime committed by a natural person, even though it constitutes a crime.

The question is, what is a directly responsible officer? What is meant by other directly responsible persons? Are salespersons among the first two categories? The Supreme Court on January 21, 2001 in the "national courts to hear financial crime cases work forum summary" (Law [2001] No. 8) "on the issue of unit crime," the second article, "directly responsible for the competent personnel, is in the unit to implement the crime to play the role of decision, approval, authorization, connivance, command, etc., generally is the competent person in charge of the unit, including the legal representative. The persons directly responsible are those who decide, approve, authorize, connive at, or direct the commission of crimes by the unit, and are generally the persons in charge of the unit, including the legal representative. Other directly responsible persons are the persons who specifically implement the crime and play a greater role in the crime committed by the unit, which can be the business management personnel of the unit or the employees of the unit, including the hired and employed personnel. It should be noted that in unit crimes, it is generally inappropriate to hold criminally liable as directly responsible persons those who have been assigned or ordered by the unit leader to participate in the commission of certain criminal acts."

In addition, the Supreme Court, the Supreme Prosecutor, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Ecology and Environment issued the "Summary of the Symposium on Issues Related to the Handling of Criminal Cases of Environmental Pollution" on February 20, 2019, which stipulates that "the 'directly responsible supervisory personnel' in the case of a unit crime generally refers to the supervisory personnel who played a Decision, approval, organization, planning, command, authorization, connivance and other roles of the competent personnel, including the actual controller of the unit, the main person in charge or authorized sub-responsible person in charge, senior management personnel, etc.; 'other directly responsible personnel', generally refers to the directly responsible for the competent personnel under the command, authorization, and actively participate in the implementation of the unit crime or those who play a greater role in the concrete implementation of the unit crime.

In Guiding Case No. 1284 of Criminal Trial Reference (Suzhou A Precision Electronics Co., Ltd., Pang Mou and Luo Mou Case of False VAT Invoice), the court pointed out that, "False VAT invoices are often accompanied by the movement of funds to and from the accounts, and in general, the unit is required to fulfill the internal approval procedures before paying out a large amount of money to the outside world, for example, by the purchasing department to fill in the payment requisition form. Then report to the head of the purchasing department for approval and consent, and then report to the business manager in charge for approval and consent, and finally to the chairman of the board of directors for approval and consent after payment. If the chairman of the board of directors to convene a meeting of all aspects of management personnel, research and decision to purchase invoices to offset taxes, and urge all aspects of management personnel in the contract signing, funds to go to the account and back to the flow of goods into the warehouse, the production of documents and other aspects of the approval of the facilitation, then it can be considered that all aspects of the management personnel to exist in the communication of the intention to commit a crime, are the unit of crime for the successful implementation of the corresponding guarantee, all aspects of management personnel should be the unit of crime The managers of each link should be directly responsible for the unit crime and bear the corresponding criminal liability.

However, in judicial practice, not every case belongs to the typical situation described above, in which the managers of the various parts of the approval process communicate their criminal intent and perform their respective duties, all of which are involved in the decision-making of the unit's crime. Unit managers in the premeditation of crime, for the purpose of blocking the news, to avoid punishment, often will limit the scope of personnel involved in the crime, may be manifested in the approval process of the higher management personnel to choose the approval process of the important aspects of the person in charge of the participation of the person in charge of the secondary aspects of the concealment of the truth, and only by way of administrative orders to require them to carry out the decisions of their superiors; may also be manifested in the lower management personnel to conceal from the superiors, to forged It may also be manifested in the case of subordinate managers deceiving their superiors, obtaining the consent and approval of their superiors by means of forged contracts, delivery notes, warehousing lists and other formalities, and making decisions in the name of the unit to commit crimes.

In the above-mentioned cases, there is a difference in the nature of the responsibility of managers at various stages of the approval process for the commission of the unit crime. Among them, managers who are clearly aware of the intention of the unit to commit a crime, actively participate in the decision-making and organization of the unit's crime and provide functional facilities for the implementation of the crime in the upper and lower segments should be directly responsible for the unit's crime; whereas managers who improperly carry out their work duties as a result of being hoodwinked or who, although aware of the intention of another person to commit a crime, do not actually participate in the important work of deciding on, approving, authorizing, conniving at or directing the crime, but do so only out of obedience from their subordinates to their superiors. Managers who are assigned by their superiors or ordered to complete their work, due to the lack of criminal intent or initiative, and whose authority usually involves only procedural matters, it is difficult to have a substantial impact on the final decision-making of the unit's crime, and it is generally inappropriate to identify them as directly responsible persons, in order to avoid not only expanding the scope of the crackdown."

It can be seen that whether or not a crime is constituted is not necessarily related to the level of position, status and power, but depends on whether or not the degree of participation of the manager in the unit's crime plays an important role in "deciding, approving, authorizing, conniving at, directing, etc.". This means that, if only the titular legal person, but not actually control the management of the company, of course, is not responsible for direct supervisors. At the same time, in the case of general staff members, it is also necessary to consider the question of whether or not there is a criminal liaison, and it is clear that they should not be convicted if they are merely carrying out the decisions of their superiors and completing their own work, which is difficult to have a substantial impact on the commission of the crime.

Returning to the question of the culpability of the salesperson in this case, he or she did not satisfy the requirements of "directly responsible supervisors" or "other directly responsible persons". In this case, the sales staff of Company A only based on the "Sales Manual" to carry out business, such as the manual will provide for certain types of circumstances of the customer can be picked up, the role played by the sales staff is to follow the company's rules in accordance with the instructions and training to act, but only to promote the company's products and services, is responsible for seeing the customer signing the contract, and the subsequent work of the business landing by the operations, maintenance, technology, housekeepers, and other compliance departments and the business sector to carry out the work of the personnel. It can be seen that the sales staff obviously did not play a decision, approval, authorization, connivance, command role, and its role is single, programmed, non-core, not to mention the possible existence of funds back to the link.

Therefore, according to the role of sales personnel of Company A in the process of business development, even if Company A fails to fulfill the business authenticity audit business is determined to be false VAT invoices, the company should be held accountable rather than the responsibility of the sales personnel; even if Company A is provided with false information by the customer or other business department personnel to be fraudulent fraud to obtain invoices, should be held accountable for the implementation of the fraud and fraud related to the responsibility of the main body rather than the responsibility of the sales personnel. Personnel responsibility. Sales personnel should be positioned as witnesses because they are not involved in the implementation of specific business operations and have no criminal contact, and if they are not differentiated in the above cases, they should be held criminally liable for fraudulent VAT invoices, which will result in undue enlargement of the blow.

04 Distinction between remuneration obtained by salespersons on the basis of unknowingly illegal business as a matter of good faith acquisition

The last issue to be explored is whether the remuneration obtained by the salesperson based on the unknowingly illegal business should be surrendered if Company A constitutes the crime of false VAT invoicing? Can it be applied to goodwill acquisition? Article 64 of the Criminal Law provides that "All property obtained by criminals in violation of the law shall be recovered or ordered to be refunded." That is to say, in the case of fraudulent issuance of VAT invoices, as long as the property involved in the case is recognized as illegal proceeds, it shall be recovered. Paragraph 2 of Article 11 of the Provisions of the Supreme People's Court on the Enforcement of the Property-Related Portion of Criminal Judgments (Fa Shi [2014] No. 13) stipulates that "where a third party acquires the property involved in the case in good faith, it shall not be recovered in the enforcement proceedings." This provision affirms that the stolen money can be applied to the goodwill acquisition system. As for the present case, as a third party involved in the case, can the remuneration obtained by the salesperson based on the illegal business without his knowledge be applied to the goodwill acquisition system?

This needs to be analyzed by returning to the constituent elements of the good faith acquisition system. Goodwill acquisition is an important system in civil law, and the relevant provisions of Article 311 of the Civil Code can be interpreted that the constitutive elements of goodwill acquisition include: (1) the transferee shall be in good faith; (2) the transferee shall have paid reasonable consideration; (3) the transferee shall be in actual possession of the property; and (4) the object shall be movable or immovable property. In this case, firstly, the salesperson only promoted the products under the guidance of the company's training, did not know about the business of false VAT invoices, and the content of the work did not involve the important key links in the chain of false VAT invoices, and did not know about the illegal attributes of the business involved in the remuneration when receiving the remuneration, and the salesperson was subjectively in good faith. Secondly, the reasonable "consideration" should be understood in a broad sense, and the equivalent labor service provided by the salesperson is also the category of "consideration". In this case, it is necessary to distinguish whether the illegal income obtained by the salesperson is based on the reciprocal services provided by the salesperson to determine whether the consideration is "reasonable". For the base salary part of the salary, the salesperson should be regarded as having paid a reasonable consideration for the corresponding equivalent legal labor, but for the part of the incentive commission outside the base salary which is linked to the business of false VAT invoices, it should be the illegal income to be recovered. Third, the salesperson did actually possess the property. Fourth, currency is also a kind of movable property. Prof. Wang Liming's article "On Goodwill Acquisition of Stolen Goods--Taking Criminal-Civilian Intersection as a Perspective" published in Tsinghua Law, Issue 1, 2024 mentions that "money should be applicable to goodwill acquisition in principle, although Article 311 of the Civil Code applies to movable and immovable property in principle, but because Money is a special kind of movable property. The fundamental purpose of the system of goodwill acquisition is to protect the security of transactions, therefore, even in the case of transactions with stolen money, where the counterparty to the transaction has a higher probability of constituting goodwill, his or her reasonable reliance should be protected by the law, and there is also a need to apply the system of goodwill acquisition."

Based on the above analysis, it can be concluded that the part of the basic base salary of a salesperson of Company A who receives remuneration based on unknowingly unlawful business can be exempted from recovery by applying good faith acquisition. Professor Jiang Tao pointed out in his article "New Interpretation of "No One Profits from Unlawful Acts"" in the Procuratorate Daily (March 21, 2021) that "a third party or other interested party is allowed to claim property ownership, and if the third party or other interested party can provide sufficient evidence to the judicial authorities to prove that the property in question belongs to his or her own property, it shall be returned to the third person or other interested party." This means that if the case-handling authorities do not distinguish between the basic base salary of the salesperson and the incentive commission and recover the illegal income, the relevant subject can make the corresponding legal defense.

05 Conclusion

With the increase in the number of cases of false VAT invoices issued by platform enterprises, some of the case-handling authorities even talk about "platforms", regardless of whether the business is real or not, and whether the subjective state of the platform enterprise is well-intentioned or not, and all the invoices issued by the platform enterprises are recognized as false VAT invoices, and even the salespersons who only promote the business but not do the business are all sentenced to the penalty of criminal liability for false VAT invoices. Criminal Liability for False VAT Invoices , which is obviously expanding the application of the crime of false VAT invoices and the emergence of miscarriage of justice, and is obviously contrary to the principle of subjective-objective consistency and the appropriateness of crime and punishment. As a flexible labor platform, in order to achieve sustainable development, the construction of tax compliance organization system is the foundation, and to truly fulfill the business authenticity audit obligations and run the anti-fraud fraud mechanism, the platform staff should not be the same as the existence of a sense of chance. If the platform enterprise and its staff members are suspected of the crime of false VAT invoicing and are under investigation, it is recommended to consult professional tax lawyers and seek professional legal guidance to effectively avoid unnecessary risks and losses.