Study On Several Issues About Tax Evasion Crime

With the promotion of the reform and opening to the outside world in our country and the development of socialist market economy, the proportion of tax evasion crime in crimes of damaging socialist market economy is going up. Great changes have taken place in the form and contents of tax evasion crime. This kind of act corrodes our economic foundation and people's moral values and does great harm to the society. So, crack down the tax evasion crime and protect the rights of state tax revenue has become our first imperative. Because of the prescription about tax evasion crime in New Criminal Law is over principled, and although some of them have been clarified in the Interpretation of the Supreme People's Court on Several Issues concerning Laws Applicable to the Judgment on Criminal Cases of Tax Evasion and Refusal to Pay Taxes in 2002, the problems still cannot be settled completely. Based on the current Criminal Law and prescriptions to related judicial interpretations, this article mainly studies the issues on assumption of tax evasion crime, with a purpose to benefit the judicial practice. This article includes four parts: â… . The general description of tax evasion crime. This chapter introduces tax evasion crime from two aspects. The first part is a brief introduction of the current situation of tax evasion crime. Tax evasion crime is rising steadily; serious cases are going up obviously; the value of cases is increasing; crime of evading individual income tax is rolling up; tax evasion crimes of state owned enterprises are becoming more; and tax evasion of electronic business has become a new form of tax evasion crime. The second part is a brief review on the survey of evolution of tax evasion crime law after the foundation of our country. The law of tax evasion crime in our country had experienced four stages: the stage of criminal responsibility items in administrative regulations; the beginning stage of Criminal Law; the supplement stage of Criminal Law; and the improvement stage of Criminal law. The author analyzes and summarizes the characteristic of every stage, which gives information for following parts to discuss the issues related to the application of tax evasion crime. â…¡. Thought on the issues related to the application of tax evasion crime. This chapter analyzes the issues related to the application of tax evasion crime from three aspects. The first section is the thought on the subject of tax evasion crime. The subject of tax evasion crime can be the operators who are engaged in legal operating activities but have not make tax register, and the operators who are engaged in other activities with no need to do tax register. The writer also gives analysis whether illegal operators can be the subject of tax evasion crime. The conclusion is that operators who are engaged in illegal operating activities cannot be the subject of the crime; analysis and definitions about whether authorized individuals for collecting and remitting tax can be the subject of tax evasion crime and the conclusion is that those authorized individuals cannot be the subject. Those who have committed crime should be investigated their criminal responsibility as corruption crime; analysis and definitions about whether tax deputy can be the subject of tax evasion crime and the conclusion is that tax deputy can be the subject of tax evasion under certain conditions; analysis and definitions about whether contractors and leaseholders can be the subject of tax evasion crime and the conclusion is that contractors and leaseholders who have independent operation right and can audit independently in finance can be the subject of tax evasion crime, while those who have no independent finance are beyond the subject. The second section is about the thought on the modes of tax evasion crime acts. The Criminal Law used complete enumeration for the way of tax evasion, which is significant to the principle of legality. However, defects are found. The author suggests use the advantage of empty indictments and narrating indictments, while illustrating the measures of tax evasion crime acts, giving summary prescription to "bottom items"to keep the stability and influence of criminal law. The article also analyzes and defines the ambiguity caused by expressions of tax evasion modes, advances to clarify them when amending the items, and use such expression as "who has been informed by taxation authorities but failed, or who uses false taxation declaration method"; analysis and definitions about the advice to punish those who don't make tax declaration while have been investigated reaching the amount of tax evasion with the name of tax evasion crime, no matter they make tax register or not; if they indeed have received the written notice of declaration by taxationauthorities but refuse to declare and the circumstances are serious, we should revise the indictments of refusal to pay taxes to make punishment; analysis and definitions about the act dealt with the name of tax evasion crime. In the author's opinion, whether or not the doers defraud more tax money than they have paid, such act should be defined as tax refund fraud on export; analysis and definitions about "under processed"which refers to having not been processed both by criminal law and by administrative organs. The third section is about the thought on the amount of tax evasion crime. On the issue of counting the total payable tax money, it holds that the total payable tax money should be defined as the total number of a single payable tax corresponding to tax evasion act in a full year. On the issue of counting the proportion of tax evasion, the author advises to cancel the criterion of amount and proportion in tax evasion crime, and just use the amount as criterion of setting tax evasion crime. On the issue of prescriptions to criterion of times, the author affirms the supplement regulation of item four in the Interpretation of the Supreme People's Court on Several Issues concerning Laws Applicable to the Judgment on Criminal Cases of Tax Evasion and Refusal to Pay Taxes. â…¢. Differences between tax evasion crime and other approximate crime. This part is divided into three sections. The first section: the differences between tax evasion criminal acts and the general tax evasion law-breaking acts. The second section: the differences between tax evasion criminal acts and tax evasion, tax avoidance and tax planning. The third section: the differences between tax evasion criminal acts and the avoidance of paying unpaid tax money, defrauding tax refund fraud on export and smuggling. The author gives analysis and definitions from doers'subject and object, amount criterion of tax evasion, legal consequences, purpose of behavior and other aspect. â…£. The connection of the administrative punishment and criminal punishment to tax evasion. This part is divided into two sections. The first section discusses the connection of administrative punishment and criminal punishment to tax evasion in entity law. One is for entities that have committed tax evasion crime, the tax organs can give tax administrative punishment to entities afterinvestigating the criminal responsibility of entities and direct responsible personnel; the other is for certain crimes with slight circumstances and can remit criminal punishment according to law, tax organs should give criminals corresponding administrative punishment. The second section discusses the connection of administrative punishment and criminal punishment in procedure law. The first is the connection of prescriptions on delivering tax evasion criminal cases. Judicial organs should solve doers'criminal responsibility problem according to criminal procedure first, then tax organs should solve doers'administrative responsibility problem according to administrative punishing procedure. The second is the connection of relation on concrete applied procedure. In the practice process of tax enforcement, tax administrative punishment procedure generally will happen before criminal procedure. The third is the connection after investigating and handling tax evasion cases by judicial organs. After judicial organs investigate and handle tax evasion cases delivered by tax organs or directly handled, administrative organs will make punishment according to different circumstances.