In the field of export tax refunds, it is strictly prohibited to handle export tax refunds through the business model of "fake self operation, real agency". The reason is that this business model is often related to illegal and criminal activities of fraudulently obtaining export tax refunds, which disrupts the normal order of export tax refunds. However, "fake self operation and real agency" cannot be equated with tax violations and tax fraud. What is the essence of the business model of "fake self operation and real agency", where is the boundary of violation, illegality, and involvement in crimes, and under what circumstances constitutes the crime of fraudulently obtaining export tax refunds? This article will analyze the above issues.

1、 There is a fundamental difference between the "fake self operation, real agency" model and self operation

（1） "False self operation, real agency" and "four self and three blind" are essentially agency behaviors of export enterprises that do not participate in substantive operations and evade supervision, which are often seen in false transactions and exports

The so-called "fake self operation and real agency" refers to exporting under the name of an export enterprise, but the export business is not self operated by the export enterprise (self purchase and sales, self export, and self responsibility), but is actually completed by other units or individuals. "Four Self and Three Invisible" refers to an export enterprise engaging in export business when "merchants" or intermediaries bring their own customers, sources of goods, bills of exchange, and customs declaration, without seeing export products, suppliers, or foreign merchants.

Essentially, "fake self operated real agency" is a type of agency behavior implemented by export enterprises that does not participate in substantive operations and evades supervision, just like "four self operated and three invisible". In reality, this export transaction model often lacks real goods, and vouchers such as invoices and customs declarations are forged. The perpetrator uses methods such as forging or signing false sales contracts, issuing false value-added tax special invoices or forging export tax refund vouchers, and falsely reporting untaxed goods to apply for export tax refunds through import and export declaration.

（2） Foreign trade enterprises actively participate in export business, strictly fulfill their regulatory responsibilities for the authenticity of export business, and export trade is completely authentic, which is self operated

1. Whether foreign trade enterprises actually participate in export business and strictly fulfill their regulatory responsibilities for the authenticity of export business can be examined from the following perspectives: (1) comprehensively judge the degree of participation of foreign trade enterprises in export business from the aspects of procurement, sales, transportation, customs declaration, foreign exchange collection, tax refund, etc., and examine whether foreign trade enterprises personally operate export business; (2) The time, energy, and financial resources invested by foreign trade enterprises in export business; (3) Have foreign trade enterprises fulfilled their obligations to inspect suppliers, foreign investors, etc., inspect goods, and supervise export processes.

2. Whether the export trade of foreign trade enterprises is real can be viewed from the following aspects: (1) whether the process of goods circulation in China is real, including the source of goods and whether the goods are real, whether relevant contracts and documents are real, and whether the attributes of the goods are real; (2) Whether the tax rate conditions applicable to the goods are true; (3) Whether cross-border transactions of goods are genuine; (4) Whether the tax refund qualifications of foreign trade enterprises are genuine, etc.

3. There are significant differences between self operation and agency in terms of ownership and risk assumption of goods: (1) The ownership of goods is different. For example, in the case handled by the author, the foreign trade enterprise and the supplier signed a "purchase and sales contract" instead of an "agency contract", and the ownership of goods belonged to the foreign trade enterprise before export, while the ownership of goods exported through agency only belonged to the unit entrusted to export; (2) The risks taken are different. Before exporting self operated goods, foreign trade enterprises must bear the risk of loss, damage, or other quality issues related to the goods; Enterprises that act as agents for exports will not bear risks related to the quality of goods, foreign exchange settlement, tax refunds, and other aspects that are significantly disproportionate to the agency fees; (3) In self operated business, foreign trade enterprises purchase goods and advance taxes on their own, undoubtedly bearing the risk of foreign exchange settlement and tax refund, which directly affects the profits and losses of foreign trade enterprises in carrying out this business; Enterprises that act as agents for exports only charge agency fees, so they naturally do not need to consider issues other than providing export qualifications and tax refund qualifications.

In summary, if a foreign trade enterprise substantially participates in export business, strictly fulfills its regulatory responsibility for the authenticity of export business, and the export trade is genuine, it is self operated and not classified as "fake self operation or real agency". Furthermore, even if there is "false self operation or real agency", it cannot directly trigger illegal and criminal liability. For whether it constitutes tax fraud in administrative law and tax fraud in criminal law, it is necessary to judge whether there is tax fraud behavior and whether there is intentional tax fraud in accordance with relevant provisions such as the Tax Collection and Management Law and the Criminal Law.

2、 Analysis of the Violation, Illegality, and Criminal Boundary of the "False Self operation and True Agency" Model

According to relevant laws and regulations, in order to effectively prevent and crack down on the endless occurrence of tax fraud, China's regulations on illegal and irregular trade models have undergone an evolution from "four from three" to "fake self operation and real agency".

（1） From "Four Self and Three Invisible" to "Fake Self operation and True Agency"

The Notice on the Non Refund of Taxes for Products Exported by Export Enterprises through the "Four Self and Three Invisible" Method (Guoshufa [1992] No. 156) stipulates the handling method for "Four Self and Three Invisible": no tax refund shall be processed for the "Four Self and Three Invisible" business transactions of export enterprises. If losses are caused to the country or enterprises, the tax refund shall be suspended until the export operation rights are cancelled, and administrative responsibilities shall be pursued against the relevant parties, Economic or political penalties shall be imposed, and if the circumstances are particularly serious, the case shall be transferred to judicial organs and criminal responsibility shall be pursued.

Due to some problems in the actual implementation of the "four self and three invisibility" regulations, there are loopholes such as "three self and three invisibility" and "four self and two invisibility", coupled with the continuous changes in tax fraud methods. In this context, in order to more effectively prevent the risk of tax fraud caused by illegal exports and make up for the loopholes in the "four self and three blind" regulations, "fake self operation and real agency" emerged with the issuance of the "Notice of the State Administration of Taxation and the Ministry of Commerce on Further Standardizing the Order of Foreign Trade Export Operations and Strengthening the Management of Export Goods Tax Refunds (Exemptions)" (Guoshuifa [2006] No. 24). Compared to "four self and three blind", "fake self operation and real agency" have made more comprehensive prohibitions on illegal agency export situations. Therefore, in practice, more cases of illegal export agency are classified as "fake self operation, real agency" and punished.

（2） "Fake self operation or real agency" directly triggers liability for violations, and in this case, the tax authority shall make tax treatment in accordance with the law

According to the Notice on Further Regulating the Order of Foreign Trade Export Operations and Effectively Strengthening the Management of Export Goods Tax Refunds (Exemptions) (Guo Shui Fa [2006] No. 24) and the Notice on the Policy of Export Goods Labor Value Added Tax and Consumption Tax (Cai Shui [2012] No. 39), export enterprises engaged in "fake self operation and real agency" business shall recover the tax refunded (exempted), and no longer handle the tax refunded (exempted); Value added tax shall be levied in accordance with the provisions of treating domestic sales goods as taxable. It can be seen that the "fake self operation and real agency" model will directly trigger the responsibility for violations, and the tax authorities will only handle this tax.

（3） If an export enterprise engages in "fake self operation or real agency" business and fraudulently obtains export tax refunds, the tax authority shall impose administrative penalties

1. The State Administration of Taxation [2006] No. 24 document establishes the provision of "fraudulently obtaining export tax refunds" as a prerequisite restriction for the "false self operation and real agency" model to constitute administrative illegality.

Article 3 stipulates that if an export enterprise engages in "false self operation or real agency" business and fraudulently obtains export tax refunds, the tax authority shall recover the fraudulently obtained tax refunds and impose a fine of not less than one time but not more than five times the fraudulently obtained tax refunds; And with the approval of tax authorities at or above the provincial level (including provincial level), the right to export tax refunds shall be suspended for more than six months. During the period when the right to export tax refund is suspended, no export tax refund (exemption) shall be processed for the goods exported by the enterprise through self operation, commission or agency. It can be seen that there is no equivalent relationship between "fake self operation, real agency" and fraudulently obtaining export tax refunds.

2. Whether it constitutes fraudulent export tax refund under administrative law requires both the determination of whether there is tax fraud and the determination of whether there is intentional tax fraud.

According to Article 66 of the Tax Collection and Administration Law, if a person fraudulently obtains a national export tax refund by falsely reporting exports or other deceptive means, the tax authority shall recover the fraudulently obtained tax refund and impose a fine of one to five times the fraudulently obtained tax. To determine whether "false self operation or true agency" constitutes tax fraud in administrative law, it is necessary to prove that the tax fraud behavior has been carried out and that there is subjective intention to defraud tax.

（4） Whether "fake self operation or real agency" constitutes the crime of fraudulently obtaining export tax refunds should be judged based on the provisions of the Criminal Law and relevant judicial interpretations

According to Article 204 of the Criminal Law, the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Fraudulent Export Tax Refunds (Fa Shi [2002] No. 30), Articles 1 and 2, and Article 55 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Pursuing Criminal Cases under the Jurisdiction of Public Security Organs (II), objectively committing tax fraud by "false reporting of exports" or "other deceptive means", Subjectively having the intention of fraudulently obtaining export tax refunds, and the amount of fraudulently obtaining export tax refunds exceeds 100000 yuan, constitutes the crime of fraudulently obtaining export tax refunds.

According to the above regulations, the Fa Shi [2002] No. 30 document does not list the situations of "false self operation and true agency". The "fake self operation and real agency" model does not meet the management requirements of tax authorities for export tax refunds, but this behavior itself does not necessarily have social harm in the sense of criminal law, let alone infer that the agent export enterprise subjectively has the intention to defraud export tax refunds. Only by comprehensively examining factors such as the subjective intention and objective behavior of the perpetrator can a fair conclusion be drawn on whether this behavior constitutes the crime of fraudulently obtaining export tax refunds, which is in line with the original intention of the legislation.

3、 The subjective intention of foreign trade enterprises to fraudulently obtain export tax refunds and the objective implementation of such behavior are the key to determining whether "false self operation and real agency" behavior constitutes fraudulently obtaining export tax refunds

According to the relevant provisions of the Tax Collection and Administration Law, the Criminal Law, and judicial interpretations, the demand for export tax refund fraud subjectively has the direct intention of obtaining export tax refund fraud, and objectively implements the behavior of obtaining export tax refund fraud through "false declaration of exports" or other deceptive means. The difference between tax fraud in administrative law and tax fraud in criminal law lies in whether the result causes significant or more losses to the national tax revenue.

1. To examine whether foreign trade enterprises subjectively have the intention to fraudulently obtain export tax refunds, the following aspects can be considered: firstly, whether the purpose of foreign trade enterprises conducting related export business is to obtain legitimate economic benefits or to seek illegitimate economic benefits; The second is whether foreign trade enterprises have obtained obvious unreasonable benefits; Thirdly, whether foreign trade enterprises have fully fulfilled the prudent obligation of strict examination and control over the authenticity of export trade; Fourthly, whether foreign trade enterprises collude with tax fraud groups to obtain export tax refunds; Fifth, whether foreign trade enterprises have operated in accordance with laws and regulations in the past.

2. Examine whether foreign trade enterprises have objectively engaged in fraudulent export tax refunds, mainly focusing on whether the export business of foreign trade enterprises is a genuine export of goods, whether they have engaged in fraudulent export reporting or other deceptive means of obtaining export tax refunds. If the tax authorities only consider the enterprise to be related to tax fraud because it engages in "four self three blind" or "fake self operation, real agency" business, they actually ignore the most core factor, which is the authenticity of the transaction. Whether there is a real transaction and export of goods is the fundamental basis for declaring tax refunds. If the materials submitted by the enterprise for tax refund declaration are sufficient to prove the true occurrence of the transaction and the true export, the tax authority cannot determine that the enterprise has engaged in tax fraud without conclusive and sufficient evidence to prove the false export of the enterprise.

3. Investigate whether foreign trade enterprises have caused losses in national taxes. The essence of export tax refund is "pay first, pay later", which means that the export enterprise itself must pay the tax first in order to be eligible to apply for export tax refund. On the contrary, fraudulently obtaining export tax refunds can only be established if the enterprise has not paid the tax. In other words, the realization of fraudulently obtaining export tax refunds requires the premise that the export goods have not paid the input tax, and the declaration of exports causes national tax losses. This is the fundamental way to combat tax fraud. Therefore, assuming that the transaction is genuine and the relevant taxes have been fully paid in the front-end stage, the recognition of the export tax refund by the tax authority as a loss caused by the enterprise to the state's tax revenue, in order to pursue the administrative or criminal responsibility of the parties involved, violates the spirit of the Tax Collection and Management Law, Criminal Law and other legal provisions.

4、 From the cases in judicial practice, there is a clear boundary between "false self operation, true agency" and the crime of fraudulently obtaining export tax refunds

（1） The existence of "false self operation and real agency" behavior does not necessarily constitute the crime of fraudulently obtaining export tax refunds

As for the case (2016) Yu 0105 Xing Chu 1119, the trial found that in early 2010, the defendant Wu met with Chen, the general manager of the shipping company (foreign trade company), and others, and agreed that the shipping company would act as Wu's agent for the export of goods. Wu brought his own source of goods, customers, bills of exchange, and customs declaration. The shipping company declared export tax refunds to the tax authorities. In order to fraudulently obtain export tax refunds, Wu colluded with Huaxin Company and other enterprises to issue value-added tax special invoices without real goods transactions. The shipping company provided blank paper stamped with the company seal to the defendant Ye, and Ye colluded with Haichao Logistics Company and other enterprises to forge foreign trade contracts and create false transportation agreements and other materials for customs declaration. After successful customs declaration, Ye will hand over the relevant documents to the shipping company, which will declare the export tax refund to the tax authority. After obtaining the tax refund, the shipping company deducts the agency fee and transfers the remaining amount to the bank account designated by Wu and Ye. The court found that although the declaration of export tax rebates by the shipping company objectively provided conditions for Wu and Ye to commit the crime of fraudulently obtaining export tax rebates, there is currently no evidence to show that the shipping company or Chen and others were involved in the conspiracy to obtain export tax rebates, or knowingly violated the relevant national regulations on import and export operations by allowing them to bring their own customers, sources of goods, bills of exchange, and declare customs on their own, Fraudulent export tax refund from the country. Therefore, this case cannot be identified as a unit crime of the shipping company. Similar judgments can also be found in the judgments (2016) Yue 01 Xing Chu 472 and (2017) Min 0782 Xing Chu 104.

（2） Those who engage in "false self operation or real agency" behavior and have subjective and objective intentions to defraud export tax refunds shall be convicted and punished for the crime of defrauding export tax refunds

As in the case (2015) Zhehang Xingchu Zi No. 123, the court found that Qiaotong Company (Import and Export Company), knowing that Liu had the purpose of fraudulently obtaining export tax refunds, still acted as an agent for Liu's false export of wooden products in a "four self three blind" model, and applied for export tax refunds to the national tax department with a falsely issued value-added tax special invoice and Liu's provided customs declaration, colluding with Liu to fraudulently obtain national export tax refunds, and the amount was particularly huge, Constitute the crime of fraudulently obtaining export tax refunds.

For example, in the case of Zhe Li Xing Zhong Zi No. 104 (2015), the court found that Baodi Company (Import and Export Company) engaged in export business and declared export tax refunds in violation of normal business procedures, despite knowing that the specific content of the export business did not conform to real transactions, and still engaged in illegal operations to defraud the country of export tax refunds, which has subjective intent and objective behavior of a crime.

For example, in the case of Lu 13 Xing Zhong 217 (2018), the court found that the Light Export Company used its export tax rebate qualifications to engage in illegal export agency business under the pretext of self operated business with other defendants and others, that is, the "Four Self Three Invisible" business. It was agreed that the Light Export Company would charge an agency fee of around 0.1 yuan to the above-mentioned personnel for every $1 exported, earning a fixed profit. Qingchu Company provides other defendants with stamped blank customs declaration documents, customs declaration authorization letters, and other related materials. Other defendants are responsible for handling false contracts stamped by Qingchu Company, contacting 35 enterprises to issue value-added tax special invoices, purchasing foreign exchange, and contacting false customs declarations. Qingchu Company