After the introduction of the overall plan for the construction of Hainan Free trade port, the relevant tax policies are extremely attractive, so that the registered economy first, many people flocked to Hainan Island, there is no business business to register a company first, here to remind, entrepreneurship is risky, registration needs to be careful, once the false open, convicted and sentenced。

In this case, two defendants through the false registration tool company, entrusted the territorial accounting company to engage in false opening and false offset and other illegal acts, and finally one was sentenced to life imprisonment, and one was sentenced to 10 years in prison。

Criminal judgment of Hainan Higher People's Court

(2019) June Death 16

The former public prosecution organ Hainan Haikou City People's Procuratorate。

Appellant (original defendant) Wu Dacheng, male, is currently detained in Haikou City No. 1 Detention Center。

The appellant (the original defendant) Wu Yinghao, male, is currently detained in the Hainan Provincial Detention Center。

Haikou Intermediate People's Court tried the case of Haikou People's Procuratorate accusing the original defendants Wu Dacheng and Wu Yinghao of falsely writing VAT special invoices, and made (2018) Qiong01 Xingchu No. 38 criminal judgment on December 10, 2018。The original trial defendants Wu Dacheng, Wu Yinghao are not satisfied with the appeal。After accepting the case, the Court formed a collegial panel in accordance with the law and held a public hearing on June 21, 2019。Hainan Provincial People's Procuratorate appointed prosecutor Gao Jinxiu and clerk Su Yini to perform their duties in court。Appellant Wu Dacheng and his defender Huang Liangsheng, appellant Wu Yinghao and his defender Dou Yanqun attended the court to participate in the proceedings。The trial has now concluded.。

The original judgment was determined:

October 2011 to present，The defendants Wu Dacheng and Wu Yinghao acted as the nominal legal representatives and shareholders of 18 tool companies such as Haikou Fayabi Trading Co., LTD., by employing people from outside the province，Entrusted Mr. Chen 1 and Mr. Chen 2 of Haikou Kai De Business Consulting Co., LTD. (hereinafter referred to as Haikou Kai De Company) (handled in a separate case) to set up a general taxpayer enterprise in Hainan and to act as an agent for bookkeeping and invoice issuance。Wu Dacheng and Wu Yinghao used the above tool companies to falsely open VAT special invoices to the national tax department to declare profits deducted。

Defendant Wu Dacheng was responsible for manipulating the bank account operation funds of the above-mentioned Hainan tool company，The flow of money from fictitious real goods transactions，Contact upstream enterprises to accept incoming tickets and contact downstream receipt units，The defendant Wu Ying Hao by Wu Dacheng instigated，Responsible for tax authorities to apply for VAT special invoice volume increment, contact tax authorities, contact financial agency personnel and deal with the company's daily expenses。Chen 1, Chen 2 and others were ordered by Oh Daesheng，Accounting agent for 18 Hainan tool companies and apply for and issue VAT special invoices，Use the obtained input invoice to deduct the tax of Hainan Tool Company，And 500 yuan per registered company，Acting for a company to do the accounts of 1500 yuan per month to collect fees，The total agency fee is 278,700 yuan。

Between October 2011 and August 2016，The defendants Wu Dacheng and Wu Yinghao used the names of the above 18 tool companies，When no real business is happening，Fabricating purchase and sales contracts, fabricating false documents, and remitting funds to the settlement accounts of relevant companies, etc，Accept the import invoice of sugar from Guangxi, Jiangsu, Beijing and other places，Then the input invoice to Chen 1, Chen 2 and other people for certification deduction。At the same time, Wu Dacheng sent the unit name, company address, bank of account, product type, unit price, quantity, amount, tax and other information of the downstream units that accepted the false opening to Chen 1, Chen 2 and other people for the false VAT special invoice。For the smooth verification of the incoming invoice deduction，Wu Dacheng remitted funds to the corporate bank accounts of buyers and sellers through online banking accounts，An illusion of the flow of funds in a real business transaction，Accept the input invoice of sugar in the name of Hainan Tool Company，And then falsely open a special VAT invoice for non-sugar products，Earn the invoice difference in a "buy and sell" cycle。According to the statistics of the national tax department, the total value tax of the false VAT special invoice is 626128094.16 yuan, the actual declared tax deduction 90975876.93 yuan, resulting in a national tax loss of 90975876.93元。

The original judgment held that the defendants Wu Dacheng and Wu Yinghao, in order to seek illegal interests, falsely opened special VAT invoices, falsely opened the amount of tax and the national tax loss of 90975876.93 yuan, the amount is huge, the circumstances are particularly serious, and its behavior has constituted the crime of falsely writing VAT special invoices。The prosecution has been found guilty and should be supported。

The defendant Wu Dacheng planned to set up a tool company，Entrusted Chen 1, Chen 2 agent bookkeeping and invoice，And use the above tools companies to falsely open VAT special invoices to declare deductions，Instigation defendant Wu Yinghao contact tax authorities to apply for value-added tax invoice volume increment，Manipulate the bank accounts of the above-mentioned Hainan tool company to operate funds，Fictitious fund flow，Contact upstream enterprises to accept incoming tickets and contact downstream receipt units，Accept the input invoice of sugar in the name of Hainan Tool Company，And then falsely open a special VAT invoice for non-sugar products，Cycle to earn the difference in the falsely written VAT special invoice，It plays a major role in joint crime，Principal criminal。

The defendant Wu Yinghao knew that Wu Dacheng registered shell companies for the false VAT special invoice，Still for Wu Dacheng contact financial agency personnel，Provide the information required by the agency，Contact tax authorities to apply for VAT special invoice volume increment，And collect Wu Dacheng pay remuneration，He was ordered by others in the crime of falsely writing VAT special invoices，Complete part of the false VAT special invoice，Play an assisting role，An accessory;The defendant Wu Yinghao after the prosecution truthfully confessed the basic facts of the crime，Have a good confession，With circumstances of confession，Therefore, he can be given a lighter punishment。The defense of the defendant Wu Yinghao put forward the defense opinion of accessory and confession is valid and should be supported。

Synthesize the facts of the case and the circumstances of the defendants，In accordance with the provisions of Article 205, paragraph 1, Article 25, Article 26, paragraph 1, Article 27, Article 52, Article 53, 55, 56, Article 67, paragraph 3 and Article 64 of the Criminal Law of the People's Republic of China，判决：

I. Defendant Wu Dacheng, guilty of falsely writing special VAT invoices, was sentenced to life imprisonment, deprivation of political rights for life, and confiscation of all personal property。

The defendant Wu Yinghao, guilty of falsely writing special VAT invoices, was sentenced to 13 years in prison, deprived of political rights for three years and fined 200,000 yuan。The fine shall be paid within three months from the effective date of this judgment。

Third, the public security organs seized Wu Dacheng's Nokia mobile phones, Huawei mobile phones, OPPO mobile phones and two Ping An bank cards are criminal tools, confiscated and handed over to the national Treasury。

Fourth, the public security organ QQ accused Wu Yinghao held a Huawei Honor mobile phone, a ZTE mobile phone, a Samsung mobile phone, an IPHONE mobile phone, four black Nokia mobile phones and Guangfa bank cards, China Construction bank cards, China Industrial and commercial bank cards are criminal tools, confiscated, handed over to the national Treasury。

V. State tax loss caused by the false opening of special VAT invoices 90975876.93 yuan, continue to the defendant Wu Dacheng and Wu Ying Hao, handed over to the Treasury。

Appellant Wu Tai Seng's reasons for appeal and the defence opinions of his defenders are as follows:

1.The procedure of the first instance was illegal, part of the final evidence was not presented at the trial, and most of the evidence was not fully cross-examined。

2.The facts of the first instance were not clear, and Wu Dacheng only provided the "bridge funds" business in this case, collected fees, and did not implement the bill crime。Wu Dacheng charged the phone charges to the 12 mobile phone numbers involved through wechat, which cannot prove that the 12 mobile phone numbers are controlled and used by Wu Dacheng。There is a large amount of money flowing between Wu Dacheng's bank account and the company involved, which can also prove that Wu Dacheng is engaged in the "bridge capital" business, rather than only proving that Wu Dacheng is engaged in the crime of falsely opening bills。

3.There are problems in the identification of evidence in the first instance。Wechat records, email addresses, mobile phone call records and other electronic evidence, only extracted transcripts, no identification opinions, can not confirm the authenticity of electronic evidence, can not be used as final evidence。

Appellant Wu Yinghao's reasons for appeal and the defence opinions of her defenders are as follows:

1.The first instance judgment found that some of the facts of Wu Yinghao did not conform to the objective facts, Wu Yinghao and Chen 1, Chen 2 sisters are basically the same status, and no Chen sisters know more about the inside story, Chen sisters were not investigated for criminal responsibility, but Wu Yinghao was convicted and punished, which is obviously unfair and improper。

2.Wu Yinghao in this case is only a "horse boy", "employee" role, the first trial identified Wu Yinghao accessory, confession, confession and repentance and other minor circumstances, but still sentenced to 13 years, compared with the recent sentencing of similar cases in China, obviously heavy, request the second trial to change the sentence。

The second instance trial found out: the original judgment found that the defendants Wu Dacheng and Wu Yinghao in order to seek illegal interests, false VAT special invoices, false tax amount and national tax loss 90975876.The facts of the crime for $93 are clear。The evidence presented, cross-examined and confirmed by the trial of the first instance, the source is legitimate, objective and true, and relevant to the case, the evidence is true and sufficient to be identified, and this court confirms it。It was also found that during the second trial, Wu Yinghao's family paid a fine of 200,000 yuan in advance on behalf of Wu Yinghao。

Grounds of appeal and defence as to the appropriateness of the sentence in this case。1.The sentencing of Wu Dacheng。After investigation, Wu Dacheng to the case so far, have refused to confess, in the face of confirming the implementation of the false VAT special invoice crime, sufficient evidence, still have a chance, deny, refuse to confess, subjective vicious。At the same time, the starting point of the crime of falsely writing VAT special invoices for more than 10 years to life imprisonment is the evasion of tax of more than 500,000 yuan, the tax evasion in this case is more than 90.97 million yuan, the original sentence is a combination of the criminal facts and sentencing circumstances of the case, the appellant Wu Dacheng sentenced to life imprisonment is not appropriate。This court confirms it。2.Wu Yinghao's sentencing。Wu Yinghao in the case of false VAT special invoice process，Mostly at the behest of Oh Tae-sung，Contact financial agency personnel for Wu Dacheng and provide information required for the registration of shell companies，To manage Wu Dacheng in Hainan for the establishment of a shell company for false VAT invoices，Only receive the monthly management fee paid by Oh Dae-sung，The original judgment found Wu Yinghao as an accessory to the case was correct，The punishment may be lighter or mitigated。At the same time, Wu Yinghao to the case so far, are actively honest confession, guilty repentance, can be lenient punishment。During the second trial, Wu Yinghao actively paid the fine in advance, which also reflected her subjective attitude of confession and repentance。Based on the sentencing circumstances of appellant Wu Yinghao's accomplice, truthful confession, confession and repentance, and active pre-payment of fines, combined with the sentencing situation of similar cases in our province and China recently, the original sentence of 13 years in prison is slightly excessive and should be adjusted。To sum up, according to the criminal facts and sentencing circumstances identified in this case, combined with China's criminal policy of combining leniency with severity, the court believes that the original sentence for appellant Wu Dacheng is appropriate and should be maintained, while the sentence for appellant Wu Yinghao is biased and should be adjusted。The appellant Wu Yinghao and the defenders held that the appeal reasons and defense opinions of the original judgment were too heavy for Wu Yinghao's sentencing were established, and the court adopted them。

The Court held that the appellant (the original defendant) Wu Dacheng, together with the appellant (the original defendant) Wu Yinghao, used the tool company to falsely open the special VAT invoice, and the amount of tax falsely opened and the national tax loss 90975876.93 yuan, resulting in a huge loss of national tax revenue, Wu Dacheng, Wu Yinghao behavior has constituted the crime of falsely opening a special VAT invoice。The original judgment identified the facts clearly, the evidence is true and sufficient, and the conviction is accurate。Legal trial procedure。The appellant Wu Yinghao and his defenders' reasons for appeal and defense of the excessive sentence in the first instance are established, and the court adopts them。In accordance with the provisions of Article 236, paragraph 1 (2) of the Criminal Procedure Law of the People's Republic of China, the judgment is as follows:

I. Upholding the first, third, fourth and fifth judgments of Haikou Intermediate People's Court (2018) No. 38, Qiong01, Xingchu。

Revoking the second judgment of Haikou Intermediate People's Court (2018) No. 38, Qiong01, Xingchu。Namely, the defendant Wu Yinghao committed the crime of falsely writing VAT special invoices, was sentenced to 13 years in prison, deprived of political rights for three years, and fined 200,000 yuan。

3. The appellant (the original defendant) Wu Yinghao, guilty of falsely writing special VAT invoices, was sentenced to 10 years in prison, deprived of political rights for one year, and fined 200,000 yuan。

4. The fine of 200,000 yuan paid in advance by Wu Yinghao shall be handed over to the state Treasury。

This judgment is final。

Chief Judge Wang Xiaozhen

Judge Huang Weiguo

Judge Wu Xiangdong

July 9th, 2019

Judge Assistant Hu Biao

Clerk Lin Xiaoling

Tax season brief:Under favorable tax policies, more tax risks are hidden。It seems that preferential policies can be used to profit through illegal means, but in fact, it has long become the "focus of attention" of tax authorities.。For the normal operation of enterprises, should also pay attention to avoid tax risks when enjoying preferential tax policies, only a correct understanding of preferential tax policies, standardized handling of business operations, can be considered to make good use of preferential tax policies, in order to achieve stable and healthy development of enterprises。