The crime of fraudulently obtaining export tax refunds refers to the state refunding taxes that should not have been refunded, while the crime of tax evasion refers to taxpayers failing to pay the taxes that should have been paid. From the concept, it can be seen that the difference between the two is quite obvious, but the provisions of Article 204 (2) of the Criminal Law establish a connection between the two, and in judicial practice, the crime of tax evasion is rarely seen in the judgment of the crime of defrauding export tax refunds. Therefore, the author believes it is necessary to clarify the relationship between the crime of fraudulently obtaining export tax refunds and the crime of tax evasion, as well as the role played by the provisions of Article 204 (2) of the Criminal Law in handling cases of fraudulently obtaining export tax refunds.

1、 The difference between the crime of defrauding export tax refunds and the crime of tax evasion

The crime of fraudulently obtaining export tax refunds and the crime of tax evasion are both crimes in the tax field, both of which aim to achieve criminal purposes through fraudulent means. However, the two also have differences in terms of the criminal subject, subjective aspects, objective aspects, and the legal interests infringed upon.

1. Different criminal subjects. The subject of the crime of defrauding export tax refunds is a general subject; The subject of tax evasion crime is a special subject, including taxpayers and withholding agents (including units and individuals).

2. The subjective aspects of crime are different. The purpose of defrauding export tax refunds is to defraud the country of export tax refunds without actually fulfilling tax obligations; The purpose of the crime of tax evasion is to evade tax obligations by not paying or underpaying taxes.

3. The objective aspects of crime are different. The crime of defrauding export tax refunds refers to the behavior of the perpetrator in the export process of goods, using false export reports or other deceptive means to defraud the country of export tax refunds; The crime of tax evasion refers to the use of deception or concealment to make false tax declarations or fail to declare taxes, or the withholding agent fails to pay or underpays the taxes already withheld or collected, or after paying taxes, uses false exports or other deceptive means to defraud the paid taxes.

4. The legal interests infringed upon are not entirely the same. The crime of fraudulently obtaining a national export tax refund infringes on the institutional order of national tax collection and management, as well as the ownership of public property; The crime of tax evasion infringes on the order of tax collection and management and national tax revenue.

2、 The connection between the crime of defrauding export tax refunds and the crime of tax evasion

According to the provisions of Article 204 (2) of the Criminal Law, if a taxpayer, after paying taxes, adopts the deceptive methods specified in the preceding paragraph to defraud the paid taxes, they shall be convicted and punished in accordance with the provisions of Article 201 (Crime of Tax Evasion) of this Law; If the amount of tax defrauded exceeds the amount of tax paid, punishment shall be imposed in accordance with the provisions of the crime of defrauding export tax refunds.

It is worth noting that in the export process of goods, if the perpetrator does not export goods at all and uses false export declarations or other deceptive means to obtain export tax refunds, there is no such situation as "after paying taxes, using the deceptive methods specified in the preceding paragraph to defraud the paid taxes", which may only constitute the crime of defrauding export tax refunds. In addition, if there are real goods exported, but fraudulent means such as falsely increasing the quantity and unit price of exported goods, using inferior products as substitutes, and falsely reporting product names are used to falsely increase (or overstate) the export amount to obtain export tax refunds, they should be dealt with according to the situation: (1) For taxpayers who defraud taxes that do not exceed the amount they have paid, they should be convicted and punished for tax evasion; (2) If a taxpayer fraudulently obtains taxes exceeding the amount paid, the excess amount shall be convicted and punished for the crime of fraudulently obtaining export tax refunds.

3、 Application of Article 204 (2) of the Criminal Law in Judicial Practice

In cases of fraudulently obtaining export tax refunds, it is often difficult to successfully defend the crime of tax evasion. In the cases searched by the author, there are no successful examples of defense. In the case of (2019) E 0281 Xing Chu No. 708, the defender proposed that (the company involved in the case had false contracts with the other party) had already paid value-added tax in the early stage, and according to legal regulations, the part of the tax that was fraudulently paid after paying the tax should be punished as tax evasion, not as export tax refund fraud. The court responded that the defendant Yu's subjective purpose was to defraud the country of export tax refunds, rather than to defraud the paid taxes. Defendant Yu arranged for Company A, which he actually controlled, to sign a false purchase and sales contract with Company B in the absence of real goods transactions, and instructed Company A to falsely issue value-added tax special invoices to Company B. All of these actions were a means of fraudulently obtaining export tax refunds. According to the principle of subjective and objective consistency, defendant Yu constituted the crime of fraudulently obtaining export tax refunds. Similar cases include (2020) Lu 08 Xing Zhong 416, (2018) Hu 0105 Xing Chu 366, (2015) Hang Xi Xing Chu Zi 355, (2014) Hu Yi Zhong Xing Chu Zi 65, etc.

The above cases are all cases of false reporting of export amounts. In judicial practice, the handling authorities often identify cases of falsely reporting export amounts as fraudulent export tax refunds. In this way, the provisions of Article 204 (2) of the Criminal Law can be said to be in vain.

4、 Understanding of Article 204, Paragraph 2 of the Criminal Law

Regarding the number of crimes related to tax evasion and the crime of fraudulently obtaining export tax refunds, if the amount of tax fraudulently obtained exceeds the amount of tax paid and the excess amount reaches a relatively large standard for the crime of fraudulently obtaining export tax refunds, is it a felony punishment or a combination of multiple crimes, or is it only a crime of fraudulently obtaining export tax refunds? There are different viewpoints in the theoretical community regarding this issue. The first viewpoint believes that multiple crimes should be punished together, because the perpetrator's behavior has committed two crimes at the same time, and the punishment for multiple crimes will not be too heavy, because the punishment for tax evasion is much lighter than the crime of fraudulently obtaining export tax refunds. The second viewpoint holds that if it constitutes an imaginative joinder of offenses, one should choose a felony to be punished, because the combination of multiple crimes violates the theory of the number of crimes. The third viewpoint suggests that the crime of defrauding export tax refunds should be established, as this provision confuses the crime of tax evasion with the crime of defrauding export tax refunds, and violates the principle of prohibiting segmented evaluation, which can easily lead to the improper aggravation or reduction of the offender's criminal responsibility.

The author believes that this provision distinguishes and evaluates based on the amount of tax fraud, which violates the principle of legal evaluation by repeatedly evaluating the same behavior; If combined punishment for multiple crimes is implemented, it violates the requirements of the number of crimes regulations and serves as an exception to the principle of punishment for imaginative joint offenders, nor does it comply with the principle of adapting crime to punishment; When choosing a felony for punishment, if the ultimate punishment is tax evasion, it confuses the essence of tax evasion and the crime of fraudulently obtaining export tax refunds, and violates the theory of criminal composition. Therefore, the conviction and punishment for the crime of defrauding export tax refunds are more legal and reasonable.

5、 How to use the provisions of Article 204 (2) of the Criminal Law for effective defense

As mentioned earlier, when encountering cases of fraudulently obtaining export tax refunds by reporting high export amounts, the crime of fraudulently obtaining export tax refunds should be convicted and punished. However, in terms of the amount of tax fraud, it is not necessary to identify both the fraudulently paid tax and the portion exceeding the paid tax as the amount of tax fraud. Instead, it is necessary to distinguish between the actual amount of goods exported and the amount of the overstatement. We can provide examples to illustrate. Assuming that the actual amount of goods exported by Company A is 1 million yuan and the input tax is 130000 yuan (assuming a value-added tax rate of 13% and an export tax refund rate of 13%). When processing export tax refunds, the enterprise falsely increased the actual amount of exported goods to 3 million yuan and successfully refunded 390000 yuan by forging relevant export tax refund procedures.

According to the second paragraph of Article 204 of the Criminal Law, defrauding the portion of 130000 yuan in tax payment constitutes the crime of tax evasion; Fraudulent tax collection exceeding the paid tax amount of 260000 yuan constitutes the crime of fraudulent export tax refund. The author believes that Company A falsely reported an export amount of 2 million yuan and fraudulently obtained an export tax refund of 260000 yuan, which indeed caused losses to national property. However, the tax refund of 130000 yuan obtained by Company A, which includes genuine exports of goods, is a tax refund preferential treatment that should be enjoyed according to the export tax refund policy. There is no intention or behavior of tax evasion, and it does not constitute the crime of tax evasion. Therefore, it should be convicted and punished for fraudulently obtaining an export tax refund of 260000 yuan.

Of course, cases of fraudulently reporting export amounts to obtain export tax refunds in judicial practice are usually more complex. However, as long as we grasp the principle of "if there are real goods exported, we should enjoy corresponding tax refund preferential policies according to the national export tax refund policy; only if we do not have the conditions for export tax refund and use fraudulent means to obtain national export tax refund, it constitutes the crime of fraudulently obtaining export tax refund", and verify the true input of the enterprise The true export price of the goods and the actual export tax refunds that the enterprise should receive can change the nature, reduce the amount of crime, and achieve effective defense.