Viewpoint... Thinking about tax claims arising from the debtor's "good faith acquisition of false VAT invoices" in insolvency proceedings.
Published:
2023-12-08
Most of the tax claims declared by the Inland Revenue Department in bankruptcy cases are tax claims arising from the debtor's declared unpaid taxes or the undeclared taxes that should be declared, and are less likely to encounter tax claims audited by the Tax Inspection Bureau. By the tax bureau to declare the existence of the debtor in good faith to obtain a false special VAT invoice and to check the tax claims, the creditor's rights administrator how to determine, the author has the following thinking.
Question raised
Most of the tax claims declared by the Inland Revenue Department in bankruptcy cases are tax claims arising from the debtor's declared unpaid taxes or the undeclared taxes that should be declared, and are less likely to encounter tax claims audited by the Tax Inspection Bureau. By the tax bureau to declare the existence of the debtor in good faith to obtain a false special VAT invoice and to check the tax claims, the creditor's rights administrator how to determine, the author has the following thinking:
1. Distinguish between False VAT Invoices and Obtained False VAT Invoices
(I) falsely issue special VAT invoices
Article 205 of the "the People's Republic of China Criminal Law" stipulates the crime of falsely issuing special value-added tax invoices. The focus of criminal law punishment is whether it violates the state's management system for special value-added tax invoices and infringes on the state's property interests. There are three main situations in the crime of falsely issuing special VAT invoices:
The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Decision of the Standing Committee of the National People's Congress on Punishing the Crimes of Falsely Issuing, Forging and Illegally Selling Special Value-added Tax Invoices has made clear provisions on false issuance and the amount of false tax payment, as shown in the following table:
The Announcement of the State Administration of Taxation on the Issue of Taxpayers' Falsely Issuing Special Value-added Tax Invoices for Tax Compensation clearly stipulates that taxpayers who falsely issue special value-added tax invoices shall be punished in accordance with the relevant provisions of the the People's Republic of China Law on the Administration of Tax Collection and the measures for the Administration of the People's Republic of China Invoices.
(II) to obtain false special VAT invoices
Obtain false value-added tax special invoice belongs to one of the acts of false value-added tax special invoice, but it constitutes the crime of false value-added tax special invoice only when it has illegal economic interests, infringes on the state's management system for value-added tax special invoice and causes losses to the state. The act of obtaining special VAT invoices in good faith is not subject to the punishment provisions of the Criminal Law, and shall be stipulated and punished in accordance with the "the People's Republic of China Tax Collection and Administration Law" and the "the People's Republic of China Invoice Management Measures" and relevant regulations promulgated by the State Administration of Taxation.
According to the National Tax Letter [2007] No. 1240 "The State Administration of Taxation's Reply on the Issue of Taxpayers' Bona Fide Acquisition of Falsely Issued Special VAT Invoices for Tax Deducted and Late Payment", if legal and valid special invoices can be obtained again, they are allowed to deduct input tax; if legal and valid special invoices cannot be obtained again, they are not allowed to deduct input tax or recover the input tax that has been deducted.
Special attention should be paid to the provisions that the late fees arising from the bona fide acquisition of falsely issued special VAT invoices shall not be applied to the late fees stipulated in Article 32 of the the People's Republic of China Tax Collection and Administration Law (hereinafter referred to as the "Tax Collection and Administration Law.
2. what is "goodwill"?
How is it judged as goodwill to obtain special VAT invoices in good faith?
In civil law, the system of good faith acquisition is stipulated, which means that the property possessor who has no right to dispose of the property of another person transfers the property in his possession to a third party, and the transferee acquires the property in good faith, that is, acquires the ownership of the property in accordance with the law, and the original property owner may not require the transferee to return the property. For details, see article 3111 of the Civil Code.
In terms of tax law, the Notice of the State Administration of Taxation on the Handling of Falsely Issued Special VAT Invoices Obtained by Taxpayers in Good Faith (Guo Shui Fa [2000] No. 187) stipulates the specific legal requirements for obtaining falsely issued special VAT invoices in good faith:
(1) There is a real transaction between the purchaser and the seller;
(2) The seller uses the special invoice of the province where it is located (autonomous region, municipality directly under the Central Government and city under separate state planning);
(3) The name of the seller, seal, quantity of goods, amount and tax amount indicated in the special invoice are consistent with the actual situation;
(4) There is no evidence that the purchaser knew that the special invoice provided by the seller was obtained by illegal means.
Value-added tax is a turnover tax levied on the value-added amount generated in the process of circulation of goods and services as the basis for tax calculation. The author thinks that bona fide acquisition can be considered from the following aspects: first, it should have a real purchase and sale subject, and both parties have real transactions; Second, it has a complete set of transaction data such as contract (specifying the quantity, amount, tax amount and names of both parties), bank flow, goods, goods, goods transportation documents, shipment and purchase documents, it is best to be able to achieve the "three-in-one", that is, the evidence between logistics, capital flow and bill flow, and the form of invoices should be based on the aforementioned requirements of Guo Shui Fa [2000] No. 187; third, there is no other evidence that the special invoices obtained were obtained by illegal means.
Determination of 3. tax claims
Recognition of (I) general tax claims
Under normal circumstances, the determination of tax creditor's rights shall be confirmed after checking the debtor's financial account books and the declaration materials of the tax collection and administration authorities according to the declaration materials of the tax authorities where the debtor's enterprises are located. According to the provisions of the enterprise bankruptcy law, the tax collection and administration law and the reply of the State Administration of Taxation on tax priority including overdue fine, The corresponding overdue fine and fine are identified as ordinary creditor's rights.
When reviewing the tax claims declared by the tax authorities, the bankruptcy administrator shall review the recovery period of the claims in accordance with the provisions of Article 52 of the Tax Collection and Administration Law and the approval of the Guoshuihan [2009] No. 326 Document. If the corresponding tax is still within the statutory recovery period, it shall be reviewed and confirmed, but the part beyond the statutory recovery period shall not be confirmed. The specific situation is as follows:
1. If it is found that the bankrupt enterprise fails to pay or underpays the tax because of the responsibility of the tax authorities, the recovery period shall be three years. In this case, the late fee will not be confirmed.
2. If it is found that the bankrupt enterprise has miscalculated or failed to file tax returns, resulting in unpaid or underpaid tax, the recovery period is generally three years, and in special circumstances, such as if the amount exceeds 100000, the recovery period can be extended to five years. In this case, the late fee shall be recognized as an ordinary claim in accordance with the law.
3. If the bankrupt enterprise is found to have tax evasion, tax resistance or tax fraud, the tax claim is not subject to the period of collection.
Confirmation of tax claims when the (II) obtains special VAT invoices in good faith.
For the tax claims declared by the Tax Inspection Bureau, which are roughly the same as the tax claims determined under normal circumstances, they are confirmed according to the penalty decision issued by the Tax Inspection Bureau and the relevant information of the debtor, combined with the relevant legal provisions. However, due to the collection of falsely issued special VAT invoices and the tax claims declared by the Inspection Bureau of the Tax Bureau, the administrator should pay special attention to whether there are "bona fide acquisition" of falsely issued special VAT invoices.
If it is determined to be acquired in good faith, the administrator shall prudently confirm the tax claim. According to the National Tax Letter [2007] No. 1240 of the State Administration of Taxation on the taxpayer's bona fide acquisition of false special value-added tax invoices has been deducted tax plus late fees "provisions to consider whether the future debtor to re-obtain legal and valid invoices, confirm the tax claims. The Administrator shall consider whether the Obligor may again obtain a new legally valid invoice:
First, if the debtor can obtain a legal and valid invoice again, the tax claim may be recognized as zero in the future, and the administrator shall postpone the confirmation when examining the claim; after obtaining a legal and valid invoice, the tax claim declared by the Inland Revenue Department may not exist;
Second, if the debtor cannot obtain a legal and valid invoice again, the administrator shall not confirm the ordinary creditor's rights in accordance with the provisions of the State Administration of Taxation on the issue of taxpayer's good faith obtaining false VAT special invoice for tax deduction plus late payment fee.
To sum up, when examining and determining the tax creditor's rights, the bankruptcy administrator should pay special attention to the tax creditor's rights arising from the debtor's bona fide acquisition of the special VAT invoice declared by the tax authorities. Tax-related data is a systematic project. For each single tax-related matter, it is necessary to communicate with multiple parties to form basic data for verification, and legally and reasonably confirm the tax creditor's rights and ordinary creditor's rights.
Legal Links:
1. Reply of the State Administration of Taxation on the Issue of Taxpayers' Bona Fide Acquisition of Falsely Issued Special VAT Invoices for Tax Deducted and Late Payment (Guoshuihan [2007] No. 1240);
2. Supplementary Notice of the State Administration of Taxation on the Notice of the State Administration of Taxation on the Handling of False VAT Special Invoices Obtained by Taxpayers (Guo Shui Fa [2000] No. 182);
3. Announcement of the State Administration of Taxation on the Issue of Taxpayers Falsely Issuing Special VAT Invoices to Levy and Supplement Taxes (Announcement of the State Administration of Taxation No. 33 of 2012)
4. Notice of the State Administration of Taxation on the Handling of False VAT Special Invoices Obposed by Taxpayers in Good Faith (Guo Shui Fa [2000] No. 187)
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