The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Endangering Tax Collection and Management has been issued on Adopted at the 1911st Meeting of the Judicial Committee of the Supreme People's Court on January 8, 2024, and the 25th Meeting of the 14th Procuratorial Committee of the Supreme People's Procuratorate on February 22, 2024, are hereby promulgated and shall come into force as of March 20, 2024.
supreme people 's court Supreme People's Procuratorate
March 15, 2024
Legal interpretation 2024] No.4
supreme people 's court Interpretation of the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Endangering Tax Collection and Management
（ Adopted at the 1911st Meeting of the Judicial Committee of the Supreme People's Court on January 8, 2024, and the 25th Meeting of the 14th Procuratorial Committee of the Supreme People's Procuratorate on February 22, 2024, and effective as of March 20, 2024)
In order to punish the crime of endangering tax collection and administration according to law, in accordance with the relevant provisions of the Criminal Law of the People's Republic of China and the Criminal Procedure Law of the People's Republic of China, the following explanations are given on several issues concerning the application of law in handling such criminal cases:
Article 1 A taxpayer who makes a false tax declaration shall be deemed as a "means of deception and concealment" as stipulated in the first paragraph of Article 201 of the Criminal Law if it has any of the following circumstances:
（1） Forging, altering, transferring, hiding or destroying account books, accounting vouchers or other tax related materials without authorization;
（2） To sign Hiding or decomposing income and property in the name of others in the form of "Yin Yang contract";
（3） Falsely itemize expenditures, falsely offset input tax or falsely report special additional deductions;
（4） Providing false materials to defraud tax preferences;
（5） Fabricating false tax basis;
（6） Other means of deception and concealment for failing to pay or underpaying taxes.
Under any of the following circumstances, it shall be deemed as the one stipulated in the first paragraph of Article 201 of the Criminal Law "Non declaration":
（1） Taxpayers who have gone through establishment registration with the registration authority according to law fail to report and pay taxes due to taxable acts;
（2） Taxpayers who do not need to go through establishment registration with the registration authority according to law or fail to go through establishment registration according to law fail to report and pay tax after being notified by the tax authority according to law to do so due to taxable acts;
（3） Other persons who knowingly fail to report and pay taxes according to law.
If a withholding agent fails to pay or underpays the amount of tax withheld or collected by the means listed in the first or second paragraphs, and the amount is relatively large, he shall be convicted and punished in accordance with the provisions of the first paragraph of Article 201 of the Criminal Law. Where a withholding agent promises to pay tax on behalf of a taxpayer, it shall be recognized as a withholding agent when it pays after tax income to the taxpayer "Tax withheld and collected".
Article 2 Taxpayers evading to pay taxes of more than 100000 yuan and more than 500000 yuan shall be identified as "large amount" and "huge amount" respectively as stipulated in the first paragraph of Article 201 of the Criminal Law.
The withholding agent fails to pay or underpays the tax withheld or collected The identification criteria of "large amount" and "huge amount" shall be in accordance with the provisions of the preceding paragraph.
Article 3 If a taxpayer has evaded the payment of tax as prescribed in the first paragraph of Article 201 of the Criminal Law and, before filing a case with the public security organ and after the tax authority has issued a notice of recovery in accordance with the law, makes up the tax payable in full within the prescribed time limit or within the time limit for approving the postponement or installment of payment, and pays late fees, and fully fulfils the administrative penalty decision made by the tax authority, no criminal liability shall be investigated. However, the exception is those who have been subjected to criminal punishment or administrative punishment twice or more by the tax authorities for evading tax payment within five years.
If a taxpayer evades paying tax and the tax authority fails to issue a notice of recovery, criminal responsibility shall not be investigated according to law.
Article 4 The "amount of tax evaded" as stipulated in the first paragraph of Article 201 of the Criminal Law refers to the total amount of various types of taxes that the tax authorities are responsible for collecting that are not paid or underpaid during a defined tax payment period.
As stipulated in the first paragraph of Article 201 of the Criminal Law "Taxable amount" refers to the amount of tax payable in accordance with the provisions of tax laws and administrative regulations in the year when the taxable act occurs, excluding VAT, customs duties, etc. collected by the customs and the amount of tax prepaid by taxpayers according to law.
As stipulated in the first paragraph of Article 201 of the Criminal Law "The percentage of the amount of tax evaded in the tax payable" refers to the ratio of the total amount of tax evaded by the actor in a tax year to the total amount of tax payable in that tax year; If the tax period is not determined according to the tax year, it shall be determined according to the proportion between the total amount of tax evasion of each tax category and the total amount of tax payable in the year before the date of the last tax evasion. If the duration of the tax liability is less than one tax year, it shall be determined according to the proportion between the total amount of tax evasion of each tax category and the total amount of tax payable during the actual tax liability period.
Tax evasion covers several tax years. As long as the amount and percentage of tax evasion in one tax year reach the standard specified in the first paragraph of Article 201 of the Criminal Law, it will constitute a crime of tax evasion. The amount of tax evasion in each tax year shall be calculated cumulatively, and the percentage of tax evasion in the amount of tax payable shall be determined according to the highest percentage in each tax evasion year.
As stipulated in the third paragraph of Article 201 of the Criminal Law "Untreated" includes administrative and criminal treatment.
Article 5 Refusal to pay taxes by means of violence or threat shall be deemed as "serious" as stipulated in Article 202 of the Criminal Law in any of the following circumstances:
（1） A ringleader who gathers people to resist taxes;
（2） Intentionally causing minor injuries;
（3） Other serious circumstances.
If the act of refusing to pay taxes causes serious injury or death to a person and complies with the provisions of Article 234 or 232 of the Criminal Law, he shall be convicted and punished for the crime of intentional injury or intentional homicide.
Article 6 If a taxpayer fails to pay the tax payable, in order to avoid the recovery of the tax authorities, it shall be recognized as "adopting the means of transferring or concealing property" as stipulated in Article 203 of the Criminal Law in any of the following circumstances:
（1） Abandoning creditor's rights due;
（2） Transferring property without compensation;
（3） Trading at an obviously unreasonable price;
（4） Concealing property;
（5） Failing to perform tax obligations and leaving the supervision of tax authorities;
（6） Transferring or hiding property by other means.
Article 7 Under any of the following circumstances, it shall be deemed as "false export declaration or other deceptive means" as stipulated in the first paragraph of Article 204 of the Criminal Law:
（1） Declaring export tax refund by using special VAT invoices or other invoices that can be used for export tax refund, which are falsely written, illegally purchased or obtained by other illegal means;
（2） Declaring an export business that has not been taxed or exempted as a taxed export business;
（3） Declaring export tax refund by falsely using other's export business;
（4） Although there is an export, but the product name, quantity, unit price and other elements of the export business that should be refunded are fabricated, and the export tax rebate is declared by falsely increasing the export tax rebate;
（5） Forging or signing false sales contracts, or obtaining export related documents and vouchers such as export declaration forms and transport documents by illegal means such as forging or altering, or fabricating export facts to declare export tax rebate;
（6） After the goods are exported, they are transferred into China or the same kind of goods from abroad are transferred into domestic circular import and export and export tax refund is declared;
（7） Falsely reporting the function and purpose of export products and declaring products that do not enjoy the tax rebate policy as tax rebate products;
（8） Defrauding export tax refund by other deceptive means.
Article 8 Those who defraud the state of export tax rebates of more than 100000 yuan, more than 500000 yuan and more than 5 million yuan shall be identified as "large amount", "huge amount" and "especially huge amount" as stipulated in the first paragraph of Article 204 of the Criminal Law.
Under any of the following circumstances, it shall be deemed as the one stipulated in the first paragraph of Article 204 of the Criminal Law "Other serious circumstances":
（1） Implementing the act of false declaration of export tax refund for more than three times within two years, and defrauding the state tax of more than 300000 yuan;
（2） Having been subjected to criminal punishment or administrative punishment for more than two times within five years for defrauding the State's export tax rebate, and having committed another act of defrauding the State's export tax rebate, the amount of which is more than 300000 yuan;
（3） Causing the State tax to be defrauded of more than 300000 yuan and cannot be recovered before the public prosecution is initiated;
（4） Other serious circumstances.
Under any of the following circumstances, it shall be deemed as the one stipulated in the first paragraph of Article 204 of the Criminal Law "Other particularly serious circumstances":
（1） Implementing the act of false declaration of export tax rebate for more than five times within two years, or taking defrauding export tax rebate as the main business, and defrauding more than 3 million yuan of state tax;
（2） Having been subjected to criminal punishment or administrative punishment twice or more for defrauding the State's export tax rebate within five years, and committing the act of defrauding the State's export tax rebate again, the amount of which is more than 3 million yuan;
（3） Causing the State tax to be defrauded of more than 3 million yuan and unable to be recovered before public prosecution is instituted;
（4） Other circumstances that are particularly serious.
Article 9 If a person commits an act of defrauding the State for export tax refund and does not actually obtain the export tax refund, he may be given a lighter or mitigated punishment in comparison with the accomplished offender.
If intermediary organizations and their personnel engaged in cargo transportation agency, customs declaration, accounting, taxation, comprehensive foreign trade services violate the relevant provisions of the State on import and export operations and provide false certification documents to others, causing others to defraud the State of export tax refunds, if the circumstances are serious, they shall be investigated for criminal responsibility in accordance with the provisions of Article 229 of the Criminal Law.
Article 10 Under any of the following circumstances, it shall be identified as "falsely issuing special invoices for value-added tax or other invoices used to defraud export tax rebates and offset taxes" as stipulated in the first paragraph of Article 205 of the Criminal Law:
（1） Without actual business, issuing special VAT invoices or other invoices used to defraud export tax rebates or offset taxes;
（2） Having actual deductible business, but issuing special VAT invoices that exceed the corresponding taxes of the actual deductible business, or other invoices used to defraud export tax rebates or offset taxes;
（3） For businesses that cannot deduct tax according to law, issuing special VAT invoices through fictitious transaction entities, or other invoices used to defraud export tax rebates or deduct tax;
（4） Illegally tampering with special VAT invoices or other electronic information related to invoices used to defraud export tax rebates and tax credits;
（5） Violating regulations by other means.
If the purpose of falsely increasing performance, financing, loans, etc. is not to defraud tax, and no tax losses are defrauded due to deduction, they shall not be punished for this crime, and if they constitute other crimes, they shall be investigated for criminal responsibility according to law for other crimes.
Article 11 Whoever falsely writes special invoices for value-added tax or other invoices used to defraud export tax rebates or to offset tax, if the amount of tax is more than 100000 yuan, shall be convicted and punished in accordance with the provisions of Article 205 of the Criminal Law; If the amount of false tax is more than 500000 yuan and more than 5 million yuan, it shall be identified as "large amount" and "huge amount" as stipulated in the first paragraph of Article 205 of the Criminal Law.
Under any of the following circumstances, it shall be deemed as the one stipulated in the first paragraph of Article 205 of the Criminal Law "Other serious circumstances":
（1） The amount of tax that cannot be recovered reaches more than 300000 yuan before the public prosecution is initiated;
（2） Having been subjected to criminal punishment or more than two administrative penalties for falsely making invoices within five years, and falsely making out special invoices for value-added tax or other invoices used to defraud export tax rebates or offset taxes, and falsely making out taxes of more than 300000 yuan;
（3） Other serious circumstances.
Under any of the following circumstances, it shall be deemed as the one stipulated in the first paragraph of Article 205 of the Criminal Law "Other particularly serious circumstances":
（1） The amount of tax that cannot be recovered reaches more than 3 million yuan before the public prosecution is initiated;
（2） Having been subjected to criminal punishment or more than two administrative penalties for falsely making invoices within five years, and falsely making out special invoices for value-added tax or other invoices used to defraud export tax rebates or offset taxes, and falsely making out taxes of more than three million yuan;
（3） Other circumstances that are particularly serious.
In the name of the same purchase and sales business, if a special invoice for input VAT is falsely issued, other invoices used to defraud export tax rebates and offset taxes are falsely issued, and an output item is falsely issued, the larger amount shall be calculated.
Those who falsely make out forged special invoices for value-added tax and meet the standards specified in this article shall be investigated for criminal responsibility for the crime of falsely making out special invoices for value-added tax.
Article 12 Under any of the following circumstances, it shall be deemed as "falsely making out invoices other than those specified in Article 205 of the Criminal Law" as stipulated in the first paragraph of Article 205-1 of the Criminal Law:
（1） Issuing invoices for others, for themselves, for others or for others without actual business;
（2） Having actual business, but issuing invoices for others, for themselves, for others, or introducing others that are inconsistent with the actual business in terms of goods name, service name, quantity of goods, amount, etc;
（3） Illegally tampering with electronic information related to invoices;
（4） Violating regulations by other means.
Article 13 Under any of the following circumstances, it shall be deemed as "serious" as stipulated in the first paragraph of Article 205-1 of the Criminal Law:
（1） False invoice with face value of more than 500000 yuan;
（2） Falsely issuing more than one hundred copies of invoices with a face value of more than 300000 yuan;
（3） He has been subject to criminal punishment or more than two administrative punishments for making false invoices within five years, and has made false invoices again, and the face value of the invoices has reached the standards specified in Items 1 and 2 More than 60%.
Under any of the following circumstances, it shall be deemed as the one stipulated in the first paragraph of Article 205-1 of the Criminal Law "The circumstances are particularly serious":
（1） Falsely issuing invoices with a face value of more than 2.5 million yuan;
（2） Falsely issuing more than 500 copies of invoices with a face value of more than 1.5 million yuan;
（3） He has been subject to criminal punishment or more than two administrative punishments for making false invoices within five years, and has made false invoices again, and the face value of the invoices has reached the standards specified in Items 1 and 2 More than 60%.
Those who falsely make out forged invoices and meet the standards specified in the first paragraph of this article shall be investigated for criminal responsibility for the crime of falsely making out invoices.
Article 14 Whoever forges or sells forged special invoices for value-added tax shall be convicted and punished in accordance with the provisions of Article 206 of the Criminal Law in any of the following circumstances:
（1） The nominal tax is more than 100000 yuan;
（2） Forging or selling more than ten copies of forged special invoices for value-added tax with a nominal amount of more than 60000 yuan;
（3） The illegal income is more than 10000 yuan.
Those who forge or sell forged special invoices for value-added tax with a face value of more than 500000 yuan, or 50 or more copies with a face value of more than 300000 yuan, shall be identified as those prescribed in the first paragraph of Article 206 of the Criminal Law "Large quantity".
Within five years, he has been subjected to criminal punishment or more than two administrative punishments for forging or selling forged special invoices for value-added tax, and has also committed the act of forging or selling forged special invoices for value-added tax, with the amount of face tax reaching the standard specified in the second paragraph of this article More than 60% or illegal gains of more than 50000 yuan shall be identified as "other serious circumstances" as stipulated in the first paragraph of Article 206 of the Criminal Law.
Those who forge or sell forged special invoices for value-added tax with a face value of more than 5 million yuan, or 500 or more copies with a face value of more than 3 million yuan, shall be identified as those stipulated in the first paragraph of Article 206 of the Criminal Law "Huge quantity".
Within five years, he has been subjected to criminal punishment or administrative punishment for more than two times for forging or selling forged special invoices for value-added tax, and has also committed the act of forging or selling forged special invoices for value-added tax, with the amount of face tax reaching the standard specified in the fourth paragraph of this article More than 60% or illegal gains of more than 500000 yuan shall be identified as "other particularly serious circumstances" as stipulated in the first paragraph of Article 206 of the Criminal Law.
Whoever forges and sells the same special VAT invoice shall be punished as the crime of forging or selling the forged special VAT invoice, and the quantity shall not be counted repeatedly.
Whoever alters special invoices for value-added tax shall be punished as forgery of special invoices for value-added tax.
Article 15 Whoever illegally sells special invoices for value-added tax shall be convicted and punished in accordance with the criteria for conviction and sentencing set forth in Article 14 of this Interpretation.
Article 16 Whoever illegally purchases special invoices for value-added tax or forges special invoices for value-added tax with a face value of more than 200000 yuan, or more than 20 copies with a face value of more than 100000 yuan, shall be convicted and punished in accordance with the provisions of the first paragraph of Article 208 of the Criminal Law.
In case of illegal purchase of genuine and fake special VAT invoices, the amount shall be calculated cumulatively, and no combined punishment for several crimes shall be imposed.
Whoever buys forged special invoices for value-added tax and then sells them shall be convicted and punished for the crime of selling forged special invoices for value-added tax; If the illegal purchase of special VAT invoices is used to defraud tax credits or export tax rebates, and simultaneously constitutes the crime of illegal purchase of special VAT invoices, the crime of falsifying special VAT invoices, or the crime of defrauding export tax rebates, the offender shall be convicted and punished in accordance with the provisions on heavier penalties.
Article 17 Whoever forges, manufactures without authorization, or sells other invoices that are forged or manufactured without authorization and are used to defraud export tax rebates or to offset tax shall be convicted and punished in accordance with the provisions of the first paragraph of Article 209 of the Criminal Law in any of the following circumstances:
（1） The nominal amount of tax refundable or deductible is more than 100000 yuan;
（2） Forged, made without authorization or sold more than ten copies of forged or made without authorization invoices, and the face value of which can be refunded or deducted more than 60000 yuan of tax;
（3） The illegal income is more than 10000 yuan.
Those who forge, manufacture without authorization, or sell other invoices that can be used to defraud export tax rebates and tax credits with the face value of more than 500000 yuan, or more than 50 copies of invoices with the face value of more than 300000 yuan of tax rebates and tax credits, shall be identified as those specified in the first paragraph of Article 209 of the Criminal Law "Huge quantity"; Those who forge, manufacture without authorization, or sell other invoices that can be used to defraud export tax rebates and tax credits with the face value of more than 5 million yuan, or those with more than 500 copies and the face value of more than 3 million yuan of tax rebates and tax credits, shall be identified as "extremely large in quantity" as stipulated in the first paragraph of Article 209 of the Criminal Law.
Whoever forges, manufactures or sells invoices as prescribed in the second paragraph of Article 209 of the Criminal Law without authorization shall be convicted and punished in accordance with the provisions of that paragraph in any of the following circumstances:
（1） The par value is more than 500000 yuan;
（2） Forging, without authorization, manufacturing or selling more than 100 copies of forged or unauthorized invoices with a face value of more than 300000 yuan;
（3） The illegal income is more than 10000 yuan.
Whoever forges, manufactures or sells invoices as prescribed in the second paragraph of Article 209 of the Criminal Law without authorization shall be deemed as "Serious":
（1） The par value is more than 2.5 million yuan;
（2） Forging, unauthorized manufacturing or selling more than 500 forged or unauthorized manufacturing invoices with a face value of more than 1.5 million yuan;
（3） The illegal income is more than 50000 yuan.
Whoever illegally sells other invoices used to defraud a tax refund for exports or to offset tax shall be convicted and sentenced in accordance with the provisions of the first and second paragraphs of this Article.
Whoever illegally sells special invoices for value-added tax or invoices other than those used to defraud export tax rebates or to offset tax shall be convicted and sentenced in accordance with the provisions of the third and fourth paragraphs of this Article.
Article 18 Under any of the following circumstances, it shall be deemed as "relatively large quantity" as stipulated in the first paragraph of Article 210-1 of the Criminal Law:
（1） Holding forged special invoices for value-added tax or other invoices that can be used to defraud export tax rebates or to offset tax, the face value of which is more than 500000 yuan; Or more than 50 copies with a nominal tax amount of more than 250000 yuan;
（2） Holding forged invoices other than those specified in the preceding paragraph with a face value of more than 1 million yuan, or more than 100 copies with a face value of more than 500000 yuan.
If the quantity, face value tax or face value of forged invoices held reach five times or more of the standards prescribed in the preceding paragraph, they shall be deemed as those prescribed in the first paragraph of Article 210-1 of the Criminal Law "Huge quantity".
Article 19 Whoever, knowing that another person has committed a crime endangering tax collection and administration, still provides him with an account number, credit certificate or other help shall be regarded as an accomplice in the corresponding crime and punished.
Article 20 The standards for conviction and sentencing of a unit that commits a crime endangering tax collection and administration shall be implemented in accordance with the standards set forth in this Interpretation.
Article 21 If the perpetrator commits a crime endangering tax collection and administration, resulting in loss of state tax, makes up the tax payment, recovers the tax loss, and makes effective and compliant rectification, he may be given a lenient punishment; If the circumstances of the crime are minor and do not require criminal punishment, no prosecution or exemption from criminal punishment may be required; If the circumstances are obviously minor and the harm is not serious, it shall not be treated as a crime.
If the relevant act of implementing the provisions of this interpretation is not prosecuted or exempted from criminal punishment, and administrative punishment, administrative punishment or other punishment is required, it shall be transferred to the relevant competent authority for handling according to law. The competent authorities concerned shall promptly notify the People's Procuratorate and the People's Court of the results of their handling.
Article 22 This interpretation shall come into force on March 20, 2024. Interpretation of the Supreme People's Court on Some Issues Concerning the Application of the Decision of the Standing Committee of the National People's Congress on Punishing the Crime of Falsely Issuing, Forging and Illegally Selling Special Invoices for Value Added Tax (Fa Fa [1996] No. 30), Interpretation of the Supreme People's Court on Some Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Cheating Export Tax Rebates (Fa Shi [2002] No. 30) The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Tax Evasion and Refusal to Pay Tax (Fa Shi [2002] No. 33) shall be repealed at the same time; If the judicial interpretations previously issued by the Supreme People's Court and the Supreme People's Procuratorate are inconsistent with this interpretation, this interpretation shall prevail.
