As an emerging road transportation model, the network freight platform has been around tax-related risks since its birth. Recently, a province announced a major network freight case that is still in the review stage, involving a total price of more than 20 billion yuan, affecting nearly 30 provinces and municipalities across the country, involving more than 500 ticket recipients. The case is huge and wide-ranging, and if the above accusations are confirmed, the platform faces extremely heavy criminal liability. However, through the analysis of the news and the cases related to the transportation industry handled in the past, the author believes that there are still three doubts in the handling of suspected false invoice-issued cases in the transportation industry, especially in the network freight industry. This article takes the above case as an example, analyzes and discusses it from the perspective of theory and practice, and talks about some of the author's personal superficial views.

I. In terms of the determination of the “money return”: In individual cases, the whole case is presumed to be based on partial return

(I) Practical observation: The “money return” is the main basis for the verdict, and there is a suspicion of excessive abuse

The “money return” is an important feature of the illegal and criminal act of false issuance of special VAT invoices. When issuing special VAT invoices, the invoicing enterprise needs to actually receive the funds consistent with the invoice amount, but the invoicing enterprise does not provide real goods and services, so it needs to transfer the received funds back to the invoice-receiving enterprise, thus constituting a return. In this sense, if the invoice recipient enterprise truthfully paid the funds for the services and goods involved in the case, then it means that there is a reasonable suspicion that the goods and services are genuine, and it should not be regarded as a false invoice-issued.

However, in practice, the author has seen that there is a very fragmented phenomenon in some cases: on the one hand, it is necessary to use the existence of capital repatriation to prove that the invoice is falsely issued; on the other hand, the repatriation of funds is not clear, or only part of the business is suspected of having a repatriation of funds, and the rest of the business has no repatriation of funds, and still characterizes the business without the repatriation of funds as a false invoice-issued. For example, in the case exposed this time, the news disclosed that among the more than 70 invoiced enterprises in the province, about 50 enterprises are suspected of capital return. However, the remaining 20 or so companies have not been removed from the false accusations.

(II) The absence of capital repatriation does not belong to false invoice-issued, and the repatriation of funds does not necessarily mean false invoice-issued

The use of "capital return" to prove the crime of false issuance is actually not direct evidence, and a logical deduction process is required in the middle: that is, the core of false VAT special invoices is that there is no real business, and one of the characteristics of no real business is that there is no real fund payment, and one of the manifestations of no real fund payment is the return of funds. However, this logic cannot be completely reversed, i.e., the return of funds must indicate that there is no real payment of funds. In fact, in practice, there is a large number of "repatriation of funds" with real fund payments.

For example, the return of deposits, which is common in practice, is a manifestation of the return of funds, or the return of advances by salesmen is also a return of funds. However, this repatriation of funds does not actually affect the actual payment of funds. In other words, in addition to the deposit, there must be a record of principal payment, and after the advance payment is returned to the salesman, the enterprise must pay another amount of funds from public to common. However, in some cases, the entire flow of funds was not ascertained or deliberately not ascertained, and only the part of the repatriation was intercepted.

(III) Special circumstances of the transportation industry: the funds entrusted to the driver are recognized as return

In the transportation industry, there is also a so-called "capital return", in which the flow of funds is: the shipper pays the freight to the network freight platform, and the network freight platform pays the driver's private account. In some cases, the undertaker alleged that because these drivers were brought or found by the shipper, they were related to the shipper, so the funds paid to the driver were considered to be repatriated.

The author disagrees with the above view. Shippers choose the network freight platform to conduct business, of course, they can choose the driver users of the platform, or they can introduce their own drivers to the platform, and then establish a transportation relationship on the platform. In particular, the network freight platform operates in the country, and it is inevitable that there are no drivers in some areas, so shippers can only find drivers by themselves and then establish transportation relationships on the platform. As long as the shipper, the platform and the driver establish a legal transportation relationship, and the driver carries out the transportation business, the shipper must of course pay the funds to the platform, and then the platform will transfer the funds to the driver. In this case, the author believes that it is not a return of funds, but a normal business model.

II. Determination of the scope of the invoicing enterprise: Individual cases are characterized by some invoicing units

(I) Practical observation: All the enterprises receiving the ticket are distributed over country, and the part that has not been investigated is decided by confession

Because the network freight platform relies on Internet information technology to carry out network transportation business nationwide, the invoice-receiving enterprises are inevitably scattered in various provinces and municipalities, which also brings difficulties to the investigation agency to find out the business of this case. Specifically, the investigative organs may be able to carry out on-the-spot visits and investigations in their own province or several neighboring provinces and cities, but due to the limitation of the period of detention for investigation, it is impossible to find out all the circumstances of the unit receiving the ticket. For example, in this case, there are more than 5,000 units receiving tickets, and it is even more impossible to visit and investigate them one by one, but to concentrate on a few neighboring provinces and regions.

Judging from the author's handling of cases in practice, a common practice is to decide a case based on the confession of the person who has been brought into the case. That is, the criminal suspect who was brought into the case was asked to confess: "I have issued false invoices for the following dozens or hundreds, and I admit that these invoices are false. Then, the part of the invoice-receiving enterprises is characterized as false invoice-issued, regardless of whether real business has occurred, and no evidence is collected about the business occurrence of the invoice-receiving unit, the receipt and payment of funds, the communication of personnel, and the transmission of contracts.

(II) Legal analysis: The validity of the evidence in a verdict based on verbal evidence alone is insufficient, and reasonable doubt cannot be excluded

Criminal proceedings have the highest requirements for evidence, not only requiring evidence to be legal, relevant and authentic, but also requiring evidence to form a chain of evidence that can eliminate reasonable doubt. Article 63 of the Rules of Criminal Procedure of the People's Procuratorate stipulates that "in cases where the People's Procuratorate has concluded its investigation or initiated a public prosecution, the evidence shall be credible and sufficient. The evidence is credible and sufficient, and shall meet the following requirements...... (3) Summarizing all the evidence in the case, reasonable doubt has been eliminated as to the facts ascertained. ”

To achieve beyond a reasonable doubt, it is not possible to rely solely on verbal evidence. Article 55 of the Criminal Procedure Law stipulates: "In all cases, emphasis should be placed on evidence, investigation and research, and confessions should not be easily believed." Where there is only a confession by the defendant and there is no other evidence, the defendant cannot be found guilty and punished." This is to draw on the experience of the past period of time in which heavy confessions and light evidence led to unjust and wrongly decided cases.

(III) If the network freight is suspected of false invoice-issued, it shall be ascertained whether there is a real transportation business

The difference between the network freight platform and the traditional transportation business is that it is a tripartite structure, after the legal relationship between the shipper, the actual carrier driver and the platform is established, the driver provides transportation services to the shipper, and then the transportation materials are sent to the platform, and the platform settles the cost and issues an invoice. Therefore, as long as there is a transportation business between the shipper and the driver, the relationship of network freight should be regarded as satisfied and has occurred, and the obligations of the platform should not be overly harsh.

The role and function of the platform in the whole business is mainly to assume the transportation responsibility for the driver personally. This is also very clear in the regulations of the General Administration and the Ministry of Transport, and the platform actually bears the responsibility for transportation. In other words, the consignment contract between the network freight platform and the shipper is true and valid, and the shipper has the right to hold the platform accountable if the driver has any problems in transportation and what damage has occurred. It is not, as some case-handling authorities believe, that the platform only issues invoices and does not have commercial rationality, thus denying the entire business model.

III. The core question that is avoided and discussed: whether and how much tax loss is?

(I) The loss of state value-added tax is an objective consequence element of the false issuance of special value-added tax invoices

Since the criminal liability for the crime of false issuance of special VAT invoices is extremely heavy, if the determination of whether a crime is constituted only based on the amount of the invoice issued, it is not in line with the criminal law principle that the crime is proportionate to the crime. In order to "patch" the crime of false issuance of special VAT invoices, the Supreme People's Court and the Supreme People's Procuratorate have repeatedly emphasized on different occasions that the crime of false issuance of special VAT invoices requires objective false issuance and subjective intention to defraud the state of tax payments, resulting in the loss of state tax revenue. Those behaviors that objectively have false invoice-issueds, but will not cause losses to the state's tax revenues, do not belong to false invoice-issueds. The most typical is the behavior of inflating performance in folio and loop. No matter how long the chain of invoices is, as long as each link pays VAT truthfully, the state tax will not only not be lost, but may even be overcharged.

In addition to folio and loop issuing acts, the 2015 Reply of the Research Office of the Supreme People's Court <on How to Determine the >Nature of Carrying out Business Activities in the Name of "Attached" to Relevant Companies and Allowing Relevant Companies to Issue False VAT Invoices for Themselves (Fa Yan [2015] No. 58) clearly pointed out that the issuance of VAT invoices on behalf of the State will not cause losses to the state and does not constitute the crime of false issuance of VAT invoices. After the reply was issued, there were cases in practice such as the "case of Zhang Mouqiang falsely issuing special VAT invoices" and other cases of acquittal.

(II) The network freight platform will truthfully carry out the network freight business and will not cause the loss of national taxes

In the network freight business, the core basic mode of the network freight platform is as follows: the shipper entrusts the network freight platform, and the network freight platform assumes the transportation responsibility, the network freight platform entrusts the driver and settles the freight for the driver, and the driver actually provides transportation services to the shipper. At the time of freight settlement, the freight is paid by the shipper to the platform, and the platform transfers it to the driver after deducting the platform fee. At this time, if the entire business really occurs, the payment of funds is real, and the VAT tax liability is in line with the provisions of the Provisional Regulations on Value-Added Tax, the network freight platform shall truthfully issue invoices for transportation services in accordance with the provisions of the General Administration and the Ministry of Transport.

In this link, the shipper pays the network freight platform all the freight including tax, and the platform issues a special VAT invoice with tax and pays the VAT truthfully. The invoice has the function of deducting due to the truthful payment of taxes by the platform, and the shipper deducts the input VAT paid by the platform truthfully after obtaining the invoice and does not have any tax loss.

(III) Even if there are some acts of supplementation and supplementation, as long as they are truthfully issued, there will be no tax loss

The principle of VAT deduction is that the party providing services or services shall truthfully issue a special VAT invoice based on the money received. In the behavior of some network freight platforms to issue invoices and post-invoices, the payment of funds is still issued according to the information of the transportation business and the actual transportation costs incurred. In particular, some freight payments still follow the process of shipper – platform – driver. In this process of transfer payment, it is not a return of funds, but also a guarantee that the freight is absolutely real. If the shipper overpays the funds, it is a loss for the shipper and is not commercially reasonable.

In such a case, the invoicing obligation is simply transferred. When the transportation business actually occurs, the invoicing obligation is borne by the actual carrier driver. After the transportation business occurred, the driver found that he could not issue invoices, so he transferred his invoicing obligations to the platform through civil arrangements, and the platform truthfully issued them on his behalf. In economic substance, this act does not cause a loss of tax and is therefore not a false act. As for the fact that this act may be a false invoice-issued under the tax administrative law, a fine of up to 500,000 yuan can be imposed,and it should also be dealt with by the tax authorities.

IIII. Summary: The dilemma and way out of the network transportation industry

In recent years, as the network freight business is still in the early stage of exploration and development, it is inevitable that enterprises will have certain non-compliance with the phenomenon. According to the "Basic Operation of the Network freight Industry" released by the Ministry of Transport in 2021 and 2022 for two consecutive years, in 2021, among the 1,968 network freight companies, 260 companies did not upload waybills and 431 companies did not upload driver location information as required, and in 2022, among the 2,537 network freight companies, 660 companies did not upload waybills and 372 companies did not upload driver location information as required. These behaviors are hidden concerns for the development of the platform, and may be determined to have no real business on this basis.

However, at present, China's policy is still to encourage and support the innovative development of the platform. As an emerging industry, there will inevitably be problems and deficiencies of one kind or another in the early stage, and its innovation and development should be protected and guided, and the compliance of the development of the platform should be promoted, rather than killing them all. Specifically, the platform can strengthen compliance construction from the following aspects:

1.Strengthen the construction of business model, first establish a entrusted transportation relationship and then carry out business, and put an end to the behavior of fare payment;

2.Strengthen the retention of actual transportation trajectory and business flow data to prove the authenticity of the business;

3.Strengthen the review of the authenticity of transportation materials and drivers, and investigate by telephone and on-site visits when necessary.

4.Strengthen communication with the competent taxation and transportation departments to solve problems in business in a timely manner.

In short, the network freight platform can only develop better and healthier if it strengthens the compliance construction.