In recent years, cases of fraudulently obtaining export tax refunds have occurred frequently, and new characteristics have been shown in the areas involved and tax fraud methods. Relevant departments have also shown a new situation in cracking down on cases of fraudulently obtaining export tax refunds. How can lawyers achieve effective defense in this situation? This article will combine judicial practice to explore the main defense points of the crime of defrauding export tax refunds from the perspectives of the criminal subject, subjective elements, objective elements, crime amount, sentencing, etc., in order to provide some ideas for the effective defense of cases of defrauding export tax refunds.

1、 Debate on the Criminal Subject

The subject of the crime of defrauding export tax refunds includes both natural persons and units. According to the unified management system of foreign trade in our country, only enterprises, units or individuals (individual businesses) that have obtained import and export operation rights with the approval of the national commerce department are eligible to apply for export tax refunds. In the tax refund process, the main perpetrators of crimes are often enterprises with export operation rights; The subject of the crime in other links is usually a unit or individual other than those with export operation rights.

In judicial practice, identifying a unit as a criminal usually means that a natural person will receive a lighter punishment. In the cases searched by the author, in some cases involving unit crimes, the difference in sentencing between directly responsible supervisors or other directly responsible personnel and natural person crimes is mainly reflected in property penalties, such as (2020) Xiang 0822 Xing Chu 44, (2019) E 0281 Xing Chu 185, (2018) E 0281 Xing Chu 478, (2017) Hu 0104 Xing Chu 330, (2017) Zhe 0782 Xing Chu 2926, (2017) Zhe 02 Xing Chu 55 In cases such as (2016) Hu 01 Xing Chu No. 76 and (2014) Bei Xing Er Chu Zi No. 0124, the fines imposed on the directly responsible supervisor or other directly responsible personnel were significantly reduced or no fines were imposed.

2、 Debate on subjective elements

In the Criminal Law and related judicial interpretations, the provision that "those who fraudulently declare exports or other deceptive means to obtain a large amount of national export tax refund" indicates that the perpetrator constitutes the crime of fraudulently obtaining export tax refund subjectively with the intention of tax fraud as the essential element. If there is no evidence to prove that the perpetrator has subjective intention to defraud taxes, criminal responsibility should not be pursued for this crime.

1. If the perpetrator provides affiliated services to others, but there is no evidence to prove that the perpetrator subjectively knows that the affiliated person has the intention to defraud export tax refunds, it does not constitute the crime of defrauding export tax refunds.

As in the case (2016) Yue 01 Xing Chu No. 472, the court held that the defendant company, Delian Company, and the defendant Xu, who was directly in charge of the unit, used Delian Company's qualifications as an import and export company to apply for tax refunds and provided affiliated services to others. In the absence of the "four from three" situation, the defendant applied for tax refunds with the invoice provided by the affiliated person, which was clearly an illegal and irregular act. However, there is no evidence in this case to prove that Delian Company subjectively knew that the affiliated person had the intention to fraudulently obtain export tax refunds, and it cannot be ruled out that the defendant unit Delian Company was reasonably suspected to have been deceived by the affiliated person. Therefore, the defendant unit Delian Company and the defendant Xu are not guilty. Similar cases include (2017) Min 0782 Criminal Investigation No. 104 and Shi Yujian Second Department Criminal Investigation No. 5.

From the above cases, it is not difficult to find that: (1) in the case of affiliation, although it is an illegal and irregular behavior, it is not enough to infer that the affiliated person subjectively knew that the affiliated person had the intention to defraud export tax refunds; (2) Whether the affiliated person has fulfilled the corresponding review obligations is also one of the key points of the review; (3) It is important to be adept at identifying loopholes in evidence, as well as contradictions and correlations between the evidence, and to prove that the affiliated person did not collude with the affiliated person, or subjectively did not know that the affiliated person had intentional tax fraud.

2. If the perpetrator indirectly helps to defraud export tax refunds, but there is no evidence to prove that they have direct intention to defraud export tax refunds, it does not constitute the crime of defrauding export tax refunds.

The subjective aspect of the crime of defrauding export tax refunds is manifested as direct intent, and indirect intent does not constitute this crime. Taking the case No. 3 [2020] of the Seven Prosecutors and Three Departments of Criminal Law as an example. The prosecutor's office believes that Wang was a company cashier who transferred money to Liang at the order of Yan, which was a passive behavior. The existing evidence cannot prove that Wang subjectively purchased US dollars and fraudulently obtained export tax refunds with direct intention. Wang did not participate in the key steps of Company A's fraudulent export tax refund, including signing false sales contracts and issuing false value-added tax special invoices. Wang's involvement in the process of obtaining export tax rebates from Company A was relatively shallow and limited, and his role was relatively small. Although he indirectly assisted Company A in obtaining export tax rebates, the circumstances were significantly minor and the harm was not significant, and it did not constitute a crime. The procuratorate has made a decision not to prosecute Wang.

3. The agreement to allocate export tax refunds does not represent subjective intent to defraud taxes.

As in the case (2013) Mintizi No. 73, Bochuang Company signed a Cooperation Agreement with the Civil Explosive Company, which stipulated that the Civil Explosive Company would sign an equipment export contract with foreign investors and declare export tax refunds. The full amount of tax refunds would be paid by the Civil Explosive Company to Bochuang Company. The post civil explosive company advocates that the purpose of the "Cooperation Agreement" is for Bochuang Company to engage in export activities under the guise of the civil explosive company and obtain huge export tax rebate benefits through shell trading. Violating relevant national regulations, the contract agreement is invalid.

The Supreme Court of Justice recognizes: "The Cooperation Agreement" The agreement between the parties regarding the redistribution of export tax refunds obtained by the civil explosive company in accordance with the law is the true intention of the parties, and the civil explosive company has the right to dispose of the full amount of tax refunds to Bochuang Company within five banking days after receiving the export tax refund under the foreign trade contract. Export tax refund is a measure taken by China to encourage exports. In this case, there is no situation of fake exports without real goods being exported, and it is not a case of fraudulently obtaining a national export tax refund.

It can be seen that in the case of export agency, if there is a genuine export of goods, the foreign trade company has the right to dispose of the tax refund after declaring and obtaining the tax refund. Whether it is the distribution of the tax refund, the deduction of the payment for goods, or the payment of agency fees, it is a manifestation of the autonomy of the agent and the agent. It cannot be inferred that the actor has subjective intention to defraud tax based on the agreement on the distribution of the tax refund.

3、 Debate on Objective Elements

In the Criminal Law and related judicial interpretations, the provision that "those who use false export reports or other deceptive means to obtain a large amount of export tax refunds from the state" also indicates that the perpetrator constitutes the crime of defrauding export tax refunds by objectively committing fraudulent acts such as false export reports.

1. In the case of agency, having genuine goods exported does not constitute the crime of fraudulently obtaining export tax refunds.

Taking the (2013) Min Ti Zi No. 73 case as an example, According to the Supreme Court of Justice, regarding the issue of export tax refunds, the foreign trade contract under the export business involved in this case (i.e. the "Cooperation Agreement", which is a typical foreign trade agency contract) The actual performance has been completed, and there is a genuine export of goods. The subject of the tax refund is a civil explosive company that has signed an export trade contract with foreign investors. The civil explosive company's export tax refund meets the provisions of Chinese laws and administrative regulations... It is not a case of fraudulently obtaining a national export tax refund.

2. If there is no conclusive evidence to prove that the defendant has engaged in fraudulent export reporting or other deceptive means to obtain national tax payments, it does not constitute the crime of obtaining export tax refunds.

Case No. 26 (2015) of Qianjianjing Nonsui. From July 2009 to June 2012, the public security organs transferred, reviewed, and prosecuted and found that He Moujia illegally obtained 10 customs declaration forms from Company A that were used to obtain export information from others, and declared export tax refunds to the tax department, fraudulently obtaining a total of 1377018.60 yuan in taxes. From July 2011 to June 2013, He Moujia illegally obtained 5 copies of B customs declaration forms that were used to obtain export information from others, and declared export tax refunds to the tax department. He defrauded a total of 478159.74 yuan in taxes.

The procuratorate believes that the investigation authorities have failed to verify that He Moujia provided false value-added tax invoices, export declaration forms, export receipt verification forms, invoices and other materials when applying for export tax refunds to the national tax department. This means that they cannot directly determine that Company A and Company B have engaged in fraudulent export reporting or other fraudulent means to obtain national export tax refunds. The existing evidence cannot fully prove that Company A and Company B were involved in 15 cases of export business, and it cannot rule out reasonable suspicion that Company A and Company B have genuine export business. So, the prosecutor's office made a decision not to prosecute Company A, Company B, and He Moujia.

4、 Debate on the amount of crime

1. If a tax refund has been declared but not refunded, it should be recognized as an attempted crime.

In judicial practice, it is common to have already declared but not yet refunded taxes. For those who have not actually obtained export tax refunds, they are often considered as attempted crimes and punished with a lighter or mitigated punishment compared to accomplished crimes. This is true for cases such as (2020) Zhe 1021 Xing Chu 251, (2020) Yu 1525 Xing Chu 885, (2019) Zhe 0483 Xing Chu 424, (2018) Yu 0229 Xing Chu 29, (2018) Hu 0105 Xing Chu 366, and (2017) Zhe 0502 Xing Chu 326.

2. If completed and attempted crimes coexist and reach different sentencing ranges, the punishment shall be based on the provisions of the heavier punishment, rather than the total amount of crimes accumulated from completed and attempted crimes.

For example, in the (2016) Zhejiang 0782 Criminal Investigation Case No. 3198, Mei, Lou, and others successfully fraudulently obtained a total of over 2.19 million yuan in tax refunds. After declaration, the tax refunds were unsuccessful, totaling over 405000 yuan. Additionally, over 380000 yuan was not successfully declared for export due to customs inspection. The procuratorate accused Mei, Lou, and others of a particularly large amount of crime. The court determined that the completed portion of the export tax refund fraud involving each defendant in this case was over 2.19 million yuan, the attempted portion was over 400000 yuan, and the reserve portion was over 380000 yuan. According to the relevant provisions of the Criminal Law and judicial interpretations, the statutory punishment range should be determined based on the completed part with heavier punishment, and the attempted and preparatory parts should be considered as sentencing circumstances. Therefore, the prosecution's accusation that the amount of crime in this case is particularly large and inappropriate should be corrected.

3. If there is a real export of goods, but there is a situation of false increase in export amount, and there is no sufficient evidence to prove that the exported goods are all false exports and have successfully declared tax refunds, it cannot be considered as a fraudulent tax amount.

For example, in the case (2021) Xiang 0981 Xing Chu 406, 482, the prosecutor's office accused the defendants Liu, Hu, and others of jointly investing in the registration of 11 companies, including Yuanjiang Bomoutai Fur Co., Ltd., and obtaining 1184 falsely issued agricultural and sideline product purchase invoices with a total face value of 170784863 yuan. The prosecutor's office determined that the defendant used the falsely issued invoices to fraudulently obtain a total tax refund amount of 17896075 yuan by multiplying the amount of the agricultural product purchase invoice by a 10% tax refund rate.

The evidence in the case proves that the above-mentioned company controlled by the defendant has both real and false business operations. The court found that a total of 33657 exported goods were declared by the 10 fur companies involved between March 2019 and July 2020. Except for 1667 goods exported from Changsha Customs through Du's grain gang in November 2019, which had evidence to prove false declaration and successful tax refund

Except for 1358387.14 yuan, the opinion of the prosecution that all other exported goods were falsely exported and successfully declared for tax refund cannot meet the standard of sufficient evidence, and this court will not recognize it. The court later corrected the amount charged by the prosecutor's office to be particularly large.

Therefore, in cases involving inflated export amounts and genuine exports of goods, it is necessary to carefully examine whether the evidence regarding false export reports is indeed sufficient, in order to effectively defend the criminal amount.

5、 Debate on sentencing

If the defendant has two or more mitigating circumstances, the sentencing range may be reduced by two.

For example, in the (2020) Xiang 08 Criminal Case No. 7, the amount of tax fraud exceeded 140 million yuan. Tan, who was an accomplice and confessed, was sentenced to five years in prison and fined 200000 yuan; He was sentenced to three years in prison, suspended for five years, and fined 100000 yuan due to his accomplice and voluntary surrender. Similar cases include (2022) Zhe 0305 Xing Chu 163, (2021) Yue 0604 Xing Chu 215, (2019) Zhe 09 Xing Chu 4, (2017) Zhe 0782 Xing Chu 2926, (2017) Zhe 06 Xing Chu 31, (2017) Zhe 02 Xing Chu 55, (2016) Min 0402 Xing Chu 251, (2013) Sui Zhong Fa Xing Er Chu Zi 142, etc.

In joint crimes, it is common for multiple defendants to jointly bear double the fine.

In the case of Hu 0105 Criminal Investigation No. 366 in 2018, the amount of tax fraud was over 18 million yuan. The defendants Ding Yingqiong, Bao Chengsong, and Yu Weiming jointly committed the crime, and the court fined the three individuals 5 million yuan, 7 million yuan, and 6 million yuan respectively. It can be seen that the court imposed twice the fine on the entire case, which greatly reduces the punishment compared to imposing twice the fine on each defendant. Similar cases include (2017) Su 06 Xing Chu 40, (2017) Zhe 0921 Xing Chu 65, (2016) Zhe 01 Xing Chu 160, (2015) Hu Yi Zhong Xing Chu Zi 192, (2013) Jin Yi Xing Chu Zi 1260, etc. Therefore, property punishment can be effectively defended based on the circumstances of the crime, combined with the ability to pay fines, judicial practice, and other circumstances.

3. Strive for the accomplice's plot in order to obtain a mitigated punishment.

In the export tax refund fraud cases searched by the author, 98% of the accomplices were given reduced punishment. The crime of fraudulently obtaining export tax refunds often involves falsifying value-added tax special invoices, forging packing lists, ocean bills of lading and other documents, customs declaration, tax refunds and other multiple links. Each link requires the cooperation of relevant personnel. If it can be demonstrated that the participants are accomplices in terms of criminal intent, status, role, participation level, and profit, it is highly likely to receive reduced punishment.