On April 1, the Inspection Bureau of Zhengzhou Municipal Taxation Bureau of the State Administration of Taxation (SAT) made public a "Notice of Taxation Administrative Penalty Matters" and the announcement of the delivery of the document to attract social attention. The instrument contains, due to the seller's invoice list of goods recorded in the purchase and sale of goods in the inventory system are not queried, and found that part of the funds back to the clues, so that the seller is recognized as a malicious false open without goods, to be punished. So, "funds back" that "no goods false opening" is what kind of relationship? Whether there are other reasonable doubt that the false opening failed to exclude? In this paper, we will analyze with the reader to "funds back" that "no goods false opening" of the wrong logic.

I. the inconsistency between the records of the purchase and sale of goods can not be presumed "no real goods transactions".

The Notice of Penalty states that Zhengzhou Medicine's inventory of goods does not have a warehouse physical ledger, the tax authorities can not obtain from Zhengzhou Medicine's internal information on the quantity of goods, in and out of the warehouse, unit price and other detailed information, so the tax authorities access to Zhengzhou Medicine's downstream company, Jingxin Medicine's purchase and sale of data, and found that the invoice attached to the list of drugs is not in the Jingxin Pharmaceuticals purchase and sale of inventory data, which is used as a basis for the determination of the The investigation of the case of false invoicing on the seller's side was conducted in the following manner. In the practice of investigating and handling cases of false invoicing by the seller, if it is impossible to find out whether there are real goods from the seller, the tax authorities often look for breakthroughs from the downstream buyer, comparing the purchase and sale data of the purchase and sale parties, collecting the transcripts of the downstream personnel, and deducing that the seller does not have real goods by the inconsistency of the purchase and sale data of the purchase and sale parties and the downstream recognition of the "lack of goods". Goods. The author believes that the logic of such a determination is obviously wrong.

(I) invoice list and the receipt of goods does not match the sales side should not become the basis for the determination of false billing

According to the Civil Code on the relevant provisions of the contract of sale, the buyer shall bear the subject matter of the inspection obligations; in the buyer signed delivery note, confirmation of documents, the seller has the right to presume that the buyer of the goods for inspection, but there is evidence sufficient to override the exception. Articles 21 and 22 of the Measures for the Administration of Invoices stipulate that all units and individuals engaged in production and business activities shall obtain invoices from the payee when they make payments for the purchase of goods, the acceptance of services and other business activities. When obtaining an invoice, no change in name or amount shall be requested. Invoices that do not comply with the regulations shall not be used as financial reimbursement vouchers, and any unit or individual shall have the right to refuse to accept them. In other words, when the purchaser finds that the invoice list does not conform to the actual goods, he has the right to refuse to accept and request to exchange the invoice with the actual conformity. However, if the buyer receives the goods and the invoice list and does not raise objections, the seller can be presumed that the list is consistent with the supply. In other words, the seller of the goods itself has no obligation to monitor the downstream to keep the incoming information consistent with the invoice list. There are many possible reasons for the lack of downstream inventory information, for example, there may be the buyer's failure to enter, false entries, and omissions in the inventory. Therefore, only based on the downstream enterprise invoice list and receipt of goods inconsistent with the judgment that the seller did not actually sell the goods, is very likely to lead to the sales side of the "innocent lying".

In addition, the purchase and sale of goods in the pharmaceutical industry is characterized by a large volume and continuity, and there may be discrepancies between the list and the downstream warehousing information each time the goods are supplied. Therefore, in the relevant investigation, should be from the seller and the buyer of the entire business chain to judge, rather than only stand in a fixed, stop the time node to see. In the purchase and sale of goods transactions, the vast majority of business with continuity and time, rather than stop at one or several transactions. In the goods purchase and sale transactions in a period of time showing continuity, there may be supply and list inconsistent situation, and this invoicing behavior does not necessarily constitute false invoicing, because from the supply of the overall interval, the supply of the number of varieties is consistent with the list.

(II) The relevant personnel's "no goods statement" cannot directly prove "no goods false opening".

In the case of false invoicing, the relevant personnel of the "no goods statement" often become the key evidence of the tax authorities to determine the false invoicing behavior, but only based on the no goods statement can not be directly identified as "no goods false invoicing". "No goods false opening" refers to the invoice listed items and the actual transaction does not match, so if the actual transaction mode is to "no goods" form exists, there is no possibility of false opening. For example, the waste materials recycling industry, there is a business model of dependency, the supply of retailers will provide goods directly to the invoiced party, but the invoicing party did not handle the goods. However, this transaction mode and invoicing behavior is fully consistent with the State Administration of Taxation Announcement No. 39 of 2014 and its official interpretation of the "dependency on behalf of the opening" behavior, which belongs to the real transaction of goods, should not be defined as false invoicing behavior.

For the purchase and sale of goods between the two parties "no goods" form of transaction, should restore its complete transaction chain, the dependence of the supply of retailers in the transaction chain, based on the overall transaction for the existence of real goods transaction judgment. The downstream personnel often only based on the purchase and sale of whether the actual delivery of goods to determine the existence of real goods transactions, the tax authorities in the inquiry also deliberately avoid the fact that the retailer supply, so as to obtain the downstream personnel of the "no goods transcripts" is clearly contrary to the facts.

II. Financial transactions based on other legal relationships should not be recognized as "repatriation of funds".

(I) the mere exchange of funds is not enough to prove the existence of "capital flow back".

The case of false invoicing "funds back" refers to the fact that in order to cover up the transaction without goods, to achieve the purpose of false invoicing, the buyer pays the price of the contract to the public after the sale of the funds returned through the private sector behavior. Therefore, it should be emphasized that, for the "money back" discussion must be based on the purchase and sale of goods without real transactions. However, in practice, some tax authorities are used to "funds back" as a clue to disprove the "no goods", obviously the logic of deduction is wrong.

"Funds flow back" is only a clue to investigate and deal with false opening, and "no goods false opening" relationship is neither sufficient nor necessary, in other words, no goods false opening may not exist in the case of the return of funds, and the return of funds may not be a false opening, it may be borrowing other legal relationships caused by the reflux of funds. It is also possible that the return of funds may be caused by other legal relationships such as borrowing and lending. Therefore, if it cannot be proved that there is no real transaction of goods between the buyer and seller, it does not make any sense to discuss the issue of "capital reflux" alone, and even less can be proved that there is no real transaction of goods between enterprises through the existence of "capital reflux".

Previously discussed, the tax authorities through the buyer's inventory data did not check the invoice list of drugs and deduce that the seller is not real shipments are obviously factually incorrect, then the "Notice of Penalties" that "funds flow back" has lost the prerequisite. And analyze the evidence provided by the tax authorities, its determination of "capital flow back" fact itself is open to question.

(II) the tax authorities to make their own "funds flow back" form of non-statutory evidence

In the "Notice of Penalty", many times with "funds schedule" to prove the flow of funds, but the instrument does not specify the "funds schedule" source of information, belonging to the tax authorities of the homemade vouchers. According to the administrative penalty law of the People's Republic of China, article 46 of the provisions of the evidence, including: (a) documentary evidence; (b) physical evidence; (c) audio-visual materials; (d) electronic data; (e) witness testimony; (f) statement of the parties; (g) appraisal opinions; (h) investigation transcripts, scene transcripts. The homemade vouchers of the tax authorities do not belong to the statutory types of evidence, and they cannot be used alone as evidence to prove the existence of the phenomenon of "capital flow back".

In some cases of criminal prosecution of false opening, the public prosecution also exists in the use of tax authorities of homemade materials, tax documents as evidence of the situation. In this regard, the author believes that the tax authorities' self-made materials and tax audit report and other tax documents only represent the tax authorities' evaluation of tax behavior in the sense of administrative law, on the one hand, there may be violations of legal procedures, unclear facts, insufficient evidence and other problems, on the other hand, it is also non-statutory criminal procedure evidence, does not have the qualification of criminal procedure evidence, and is not suitable for replacing the judiciary's responsibility of evidence collection.

(III) to return the amount of presumption of part of the false opening or all the false opening are unreasonable

Usually in the crime of false invoicing, the invoicing party will charge a certain amount of invoicing fees as a reward for false invoicing, so the invoicing party will deduct a certain percentage of the invoicing fees after receiving the payment, and then the remaining amount will flow back to the related account of the invoiced party. Therefore, the amount of money in the process of "invoicee - invoicing party - invoicee" will be reduced. In the "Notice of Penalty", the tax authority determined that the total amount of funds flowed back from Zhengzhou Pharmaceutical and Jingxin Pharmaceutical was RMB 124,651,000, which corresponded to a total of RMB 124,650,424 in invoices, and the difference between the two amounts was not a reasonable explanation for the existence of false invoicing. In addition, when calculating the total amount of fund return, the tax authority retrieved the data of 2014, and when listing the invoices matching the fund return, it narrowed the interval of invoicing to the period from March 2014 to December 2014, and this limitation of the investigation interval is suspected of deliberately selecting invoices of similar amounts in order to match the amount of fund return. Undoubtedly, this method of determining the existence of the phenomenon of "return of funds" should not be used as evidence of the existence of false invoicing.

In addition, the evidence used in the Notice of Penalty to prove the "flow of funds" between Zhengzhou Pharmaceutical and the other five companies only listed that Zhengzhou Pharmaceutical had obtained VAT invoices totaling RMB 36,018,080 from the five companies and paid a total of RMB 31,326,051, and that only RMB 13,933,143 was paid afterward. 933,143 dollars flowed back into the related accounts of the five companies. It is clear that even if the amounts cited were indeed the funds that flowed back from the false openings, the large difference in the three values does not fit the pattern of false openings and does not reasonably argue for the existence of false openings.

In summary, in proving the existence of false invoicing violations, the mutual corroboration of various types of evidence is particularly important. For the proof of "capital flow back", the party statement, witness testimony, invoicing fee ratio, bank funds and other evidence should form a complete chain of evidence, rather than first calculate the ratio of the amount of capital flow back and invoices, and then to extract the statement, or according to the amount of capital flow back to deliberately look for the corresponding amount of invoices.

III. the Notice of Proven False Invoicing should not be an ironclad proof of false invoicing by the invoiced party

In the "penalty notice", "has been confirmed false billing notice" repeatedly as important evidence, combined with the existence of the "funds back" phenomenon, the tax authorities directly came to the conclusion of false invoicing, making it difficult to refute the enterprise in a difficult situation. But in fact, "has confirmed the false opening notice" is not absolute, and should not directly prove the existence of false opening behavior "ironclad evidence".

(I) "has confirmed the false opening notice" does not meet the requirements of the legitimacy of the evidence

Article 36 of the administrative penalty law on the administrative organs of the obligation to collect evidence to make provisions: "administrative organs found that citizens, legal persons or other organizations should be given administrative punishment in accordance with the law, must be comprehensive, objective and impartial investigation, collection of evidence; if necessary, in accordance with the provisions of laws and regulations, can be checked. "

Article 23 of the original Tax Inspection Procedures stipulates the methods of evidence collection by the tax inspection department: "When carrying out inspections, in accordance with the legal authority and procedures, methods such as on-site inspections, access to information in books and accounts, inquiries, inquiries into deposit accounts or savings deposits, and off-site co-investigations may be adopted." Article 16 of the current Provisions on Procedures for Handling Tax Inspection Cases

According to the above provisions, only the tax authority that makes the decision on tax processing and punishment is a qualified subject of evidence, and the materials it collects by adopting reasonable methods in accordance with its statutory authority can be used as evidence to prove the facts of the case. The Notice of Confirmed False Invoicing is issued by the tax authority of the location of the invoicing party enterprise, and the tax authority of the location of the invoicing party enterprise is not the tax authority that makes the processing punishment to the invoiced enterprise, and has not accepted the entrustment of the tax authority of the location of the invoiced party enterprise to conduct the investigation, and does not have the qualification of the subject of evidence in this case; therefore, the Notice of Confirmed False Invoicing does not have the legality requirement of the evidence, and can't be used to prove the facts of the case. Facts.

(II) The Notice of Confirmed False Invoicing does not meet the objective authenticity requirement of evidence.

According to the provisions of Article 15 of the Administrative Measures for Co-inspection of Invoice in Tax Violation Cases (for Trial Implementation), if the commissioning party of the invoice co-inspection has issued the Notification of Proven False Invoicing, the commissioned party shall file a case for inspection in accordance with the relevant provisions of the Tax Audit Procedures. From this, it can be seen that the upstream tax authorities issued the Notice of Proven False Invoicing, only as the source of information for the audit case, the authenticity of which is uncertain, and the downstream tax authorities should file a case for inspection and start the inspection procedure to verify the evidence and the situation, instead of directly penalizing and dealing with the case by virtue of the notice directly.

At the same time, in terms of content, the Notice of Proven False Invoicing can only prove the fact that Longxi County Yangan Pharmaceutical Co., Ltd. and other 7 enterprises falsely issued invoices to Zhengzhou Pharmaceuticals, but it cannot prove that Zhengzhou Pharmaceuticals has no knowledge of the fact of false invoicing of the above invoices of Longxi County Yangan Pharmaceutical Co., Ltd. and other 7 enterprises, whether they are false invoicing without goods, and they do not have the objective authenticity requirement of the evidence.

In practice, if the enterprise faces the situation that the tax authority directly determines the false invoicing based on the Confirmed False Invoicing Notice, it can raise objection in the reconsideration or litigation procedure, focusing on whether the Confirmed False Invoicing Notice can be used as the evidence for determining that the invoiced enterprise and the invoicing enterprise do not have the real transaction.

Summary: We can see from the analysis of the example of "Notice of Penalty", if there is no direct evidence to prove the fact of violation of the law, the tax authorities often need to indirectly through the flow of goods, funds and invoices to obtain evidence, which involves intricate and complex evidence materials, increasing the difficulty of obtaining evidence, which leads to the collection of evidence by the tax authorities in some of the penalty instruments, the emergence of "technical deformation", the existence of evidence from the conclusion of the "notice of proven false invoicing". Deformation", there is from the conclusion of the inverse results, and even "make up invoices" to prove that "funds flow back" situation. In the face of this type of penalty decision, enterprises should actively use the review and litigation procedures to defend themselves. According to Article 70(1) of the Administrative Litigation Law, if the main evidence is insufficient, the people's court shall decide to revoke or partially revoke the decision, and may decide the defendant to make a new administrative act. Therefore, the inspected taxpayers should fully access and verify all kinds of documents and evidence materials of the Inspection Bureau to discover the errors and omissions of the administrative enforcement actions; they should also take the initiative to collect evidence to prove the authenticity and legality of the transactions.