On The Judicial Determination Of Tax Evasion

On Feb 28 th, 2009 the National People’s Congress approved the 7th Amendment to the Criminal Law of People’s Republic of China whereby Article 201 of the Criminal Law was altered in such way that acts of tax evasion were formally defined as a criminal offence in lieu of the obsolete crime “tax dodge”.Presently, tax evasion has become increasingly pervasive in almost all aspects of our economic life; thus it is not uncommon for some taxpayers or withholding agents,through deception and concealment, to file fraudulent tax returns or not to file any tax returns at all in an attempt to evade taxes. Moreover, over the long course of tax enforcement, some tax officials’ entrenched stereotypical notion of the now-defunct crime "tax dodge" and inadequate understanding of the newly-defined crime "tax evasion" have led their interpretation and digestion of the latter concept to deviate from its exact legal definition. In addition, some problems hampering the judicial determination of tax evasion have also resulted in, on the part of tax officials,insufficient investigation, prosecution of the crime, and dilatory referral of offenders to relevant judicial organs, or miscomprehension of the first offender exemption clause, thereby impeding the effort to combat tax evasion. In consideration of the foregoing, it is imperative that the said issues be researched, analyzed and their causes be identified and the corresponding solutions be found to facilitate the improvement of legislation and judicial performance in regard to tackling tax evasion.The significance of studying the topic, the status quo of China’s research efforts in this field, the main research contents, the research methodologies employed, and the structure of the thesis, On identifying the eligibility of subjects of criminal tax evasion, in which endeavors will be made to discuss some points of contention regarding special subjects of criminal tax evasion like withholding agents, collecting agents, tax agents and unlicensed businessmen, and to ascertain whether the named subjects are eligible to constitute the subjects of criminal tax evasion. Based on the objective elements of criminal tax evasion, will attempt to settle some disputes surrounding the criminal conduct involved, the attendant circumstances and proportions of the tax evaded to the tax payments that are due. It will present an analysis of a special provision of the Criminal Law that defines grounds for exemption from punishment in cases of tax evasion, with a focus on some controversial issues about how to determine the extent of criminal liability for thosewhom administrative penalty has been already imposed for committing acts of tax evasion, how to establish a reasonable time limit for exempting first offenders from criminal liability, and whether the abovementioned provision is applicable to withholding agents.