Summary: Whether it is necessary to convict and sentence the behavior of not reporting tax, there is room for discussion in the ethical, political and legal aspects. The amendment to the criminal law (VII) changed the crime of tax evasion to the crime of tax evasion, but only changed the crime, but did not substantially change the scope of legal interest protection regulated by the criminal law of tax evasion & mdash;& mdash; the order of honest declaration and tax payment, the Supreme People's Court and the Supreme People's Procuratorate "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration" Article 1, Paragraph 2, Paragraph (I), which is extremely harsh and the definition ", in essence, the legal interests protected by the criminal law norms of tax evasion are increased & mdash;& mdash; Conviction and sentencing for non-declaration. The crime of tax evasion is a statutory and administrative offence, and its conviction should be based on administrative basic law rather than criminal law, let alone judicial interpretation. The amendments to the Criminal Law (VII) criminalize non-declaration, and the provisions of Article 1, paragraph 2, of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration all have varying degrees of institutional conflicts with the Tax Collection and Administration Law.

Key words: tax evasion, non-declaration, legal benefit change, system conflict

Recently, Weiwei Atomic Co., Ltd. has been "checked back for 20 years" to pay 85 million yuan and late fees, Bohui's "heavy aromatics derivatives" have been adjusted by tax authorities, and tax-related incidents such as "heavy aromatics" to pay 0.5 billion yuan have continued to become hot news. On the one hand, it reflects the strengthening of the state's supervision of tax collection and management, and on the other hand, it also arouses people's discussion on the legality of "reverse investigation for 20 years. Some people think that according to Article 52 of the tax administration law, "if the taxpayer or withholding agent fails to pay or underpays the tax due to the responsibility of the tax authorities, the tax authorities may require the taxpayer or withholding agent to pay the tax within three years, but no late fee shall be charged. If a taxpayer or withholding agent fails to pay or underpays taxes due to miscalculation or other errors, the tax authorities may pursue the collection of taxes and late fees within three years; if there are special circumstances, the recovery period may be extended to five years. For tax evasion, tax resistance or tax fraud, the tax authorities shall not be subject to the time limit specified in the preceding paragraph to pursue the collection of unpaid or underpaid taxes, late fees or defrauded taxes." According to the regulations, "reverse investigation for 20 years" lacks legal basis, because the failure to declare and pay taxes by Weiwei Atomic Co., Ltd. does not constitute tax evasion, tax resistance or tax fraud under the tax administrative regulations. Some people also believe that according to Article 201 of the Criminal Law, failure to declare tax is a crime of tax evasion. Article 1, Paragraph 2, Item (I) of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration stipulates that taxpayers who have handled tax registration do not declare taxable acts, which is a "non-declaration" stipulated in Article 201 of the Criminal Law. Tax evasion is a new name for tax evasion, therefore, according to the Criminal Law and relevant judicial interpretations, it can be determined that the failure to declare taxable acts committed by VV Atomic as a taxpayer who has gone through tax registration constitutes tax evasion and shall be subject to Article 52 of the Tax Administration Law. The third paragraph stipulates that the tax shall be recovered indefinitely. The provisions of Article 201 of the Criminal Law and the second paragraph of Article 1 of the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Tax Collection and Administration seem to reflect the powerful role of criminal justice in assisting tax collection and administration and vigorously safeguarding national tax interests. Function, but it brings questions: should tax administrative regulations be used as the basis for conviction of criminal cases endangering tax collection, or should criminal law provisions that endanger tax collection and administration be used as the basis for tax enforcement?

The Legal Benefit System Foundation and Criminal Law Provisions of (I) Tax Evasion Crime

On September 4, 1992, the Standing Committee of the National People's Congress promulgated the "Supplementary Provisions on Punishing Tax Evasion and Tax Resistance Crimes". The first article stipulates that taxpayers who forge, alter, conceal, or destroy account books and accounting vouchers without authorization. It is tax evasion to list more expenditures or not list or list less income in the account books, or to make false tax declarations, and fail to pay or underpay the tax payable. If the amount of tax evasion accounts for more than 10% of the tax payable and the amount of tax evasion is more than 10,000 yuan, or if the tax authority gives two administrative penalties for tax evasion and then evades tax, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and a fine of not more than five times the amount of tax evasion; if the amount of tax evasion accounts for more than 30% of the tax payable and the amount is more than 100,000 yuan, he shall be sentenced, he shall be sentenced to three years and not more than seven years.

The first paragraph of Article 40 of the Tax Administration Law revised in 1995 stipulates that taxpayers who falsify, alter, conceal, or destroy account books and accounting vouchers without authorization, and list more expenses or no or less income in the account books, or make false tax declarations, fail to pay or underpay the tax payable, is tax evasion. If the amount of tax evasion accounts for more than 10% of the tax payable and the amount of tax evasion is more than 10,000 yuan, or if the tax authorities impose two administrative penalties for tax evasion, the tax authorities shall, in addition to recovering the tax evasion, punish the tax evasion in accordance with the provisions of Article 1 of the Supplementary Provisions on Punishment of Tax Evasion and Tax Resistance Crimes; if the amount of tax evasion is less than 10,000 yuan or less than 10% of tax payable, the tax evasion shall be recovered by the tax evasion, A fine of up to five times the amount of tax evasion is imposed.

The first paragraph of Article 201 of the Criminal Law revised in 1997 stipulates that taxpayers who use deception or concealment to make false tax declarations or fail to declare, evade paying a large amount of tax and account for more than 10% of the tax payable, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and a fine; if the amount is huge and accounts for more than 30% of the tax payable, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and a fine.

It can be seen that Article 201 of the Criminal Law revised in 1997 formally determines the crime of tax evasion and related criminal responsibilities, which should be based on Article 40 of the Tax Collection and Administration Law revised in 1995. The legislative purpose of Article 40 of the "Tax Collection and Administration Law" revised in 1995 is to establish the collection and management order of honest declaration, crack down on and punish false declaration, which is also the legal interest that should be protected by Article 201 of the 1997 Criminal Law. Therefore, semantically and logically, "non-declaration" in the provisions of Article 201 of the 1997 Criminal Law should not be simply understood as non-declaration, but should be understood as the result of the failure to declare and pay a specific amount of tax by means of "concealing income and falsely listing costs.

The criminal law norms of the crime of (II) tax evasion and the criminal law norms of the crime of tax evasion protect the same legal interests.

The first paragraph of Article 63 of the Tax Administration Law revised in 2001 stipulates that taxpayers who forge, alter, conceal or destroy account books and accounting vouchers without authorization, or list more expenses or less income in the account books, or refuse to declare or make false tax declaration after being notified by the tax authorities, and fail to pay or pay less tax payable, are tax evasion. Where a taxpayer evade taxes, the tax authorities shall pursue the payment of the taxes and late fees that he has not paid or underpaid, and impose a fine of not less than 50% but not more than five times the taxes that he has not paid or underpaid; if the case constitutes a crime, he shall be investigated for criminal responsibility according to law. The addition of "refusal to declare upon notification by the tax authorities" as one of the circumstances of tax evasion in this provision seems to be a clear definition of "non-declaration" in Article 201 of the 1997 Criminal Law, and the specific legal interest protected by it is still the order of good faith declaration.

The 2009 amendment to the Criminal Law (VII) changed the "crime of tax evasion" to the "crime of tax evasion", but the first paragraph of Article 201 of the revised Criminal Law still stipulates: taxpayers who use deception or concealment to make false tax declarations or Those who fail to declare and evade paying a large amount of tax and account for more than 10% of the tax payable shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and a fine; the amount of more than 30%, shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be sentenced to a fine. Its normative content and the legal interests protected are exactly the same as those of Article 201, paragraph 1, of the 1997 Criminal Law.

The definition of the illegal act of tax evasion in Article 63 of the tax Collection and Administration Law revised in 2015 is the same as that in Article 63 of the tax Collection and Administration Law revised in 2001. It only takes "refusing to declare after being notified by the tax authorities" as one of the circumstances of tax evasion, and does not regard direct "non-declaration" as tax evasion.

(III) "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration" Article 1, Paragraph 2, Item (I), increased the scope of legal interest protection for the crime of tax evasion, leading to changes in the legal interest of the crime of tax evasion

The first paragraph of Article 1 of the Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Endangering Tax Collection and Administration lists a number of cases of "deception and concealment", and the second paragraph of Article 1 lists a number of cases of "non-declaration, the objective aspect of the crime of tax evasion is changed from" false tax declaration or non-declaration by means of deception or concealment "to" false tax declaration by means of deception or concealment "or" non-declaration ", and the non-declaration without deception or concealment is also regarded as a conviction situation, which expands the scope of the legal benefit of the criminal law of tax evasion-the declaration of tax in good faith.

The second paragraph of Article 1 of the judicial interpretation stipulates that under any of the following circumstances, it shall be deemed as "non-declaration" as stipulated in the first paragraph of Article 201 of the Criminal Law: (1) a taxpayer who has gone through the establishment registration at the registration authority in accordance with the law has committed a taxable act but does not declare and pay tax; (II) a taxpayer who does not need to go through the establishment registration at the registration authority or fails to go through the establishment registration in accordance with the law, after being notified by the tax authorities according to law, they do not declare and pay taxes; (III) other people who knowingly should declare and pay taxes according to law but do not declare and pay taxes. This provision classifies all acts of non-declaration and tax payment as "non-declaration" criminal acts in Article 201 of the Criminal Law, breaking through the limit of "refusing to declare upon notification by the tax authorities" stipulated in Article 63 of the tax Collection and Administration Law.

In other words, according to the legislative purpose, meaning and logic, and according to the principle of modesty of criminal law, the "non-declaration" in article 201 of the criminal law should be understood as the consequence of non-declaration caused by "fraud and concealment". Even according to Article 63 of the Tax Collection and Administration Law, the "non-declaration" in Article 201 of the Criminal Law shall be limited to "refusal to declare upon notification by the tax authorities"; the second paragraph of Article 1 of the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration" further identifies all non-declaration and tax payment as crimes.

The conviction of the "crime of endangering tax collection and administration" such as the crime of (I) tax evasion should be based on the Tax Collection and Administration Law as the institutional basis and pre-law.

Penalty is the ultimate means of legal relief and legal punishment, so criminal law has become the most stringent legal norms, and civil and commercial law, administrative law and other departmental laws constitute the relationship between post-law and pre-law. In essence, criminal law is not a normative law that regulates social law and order, but a sanction law that punishes when the legal order is destroyed and the civil and commercial law and administrative law are not sufficient to remedy and punish. The crime of tax evasion and other "crimes of endangering tax collection and management" belong to administrative crimes and statutory crimes. Only when the tax administration laws and regulations are violated and the severity reaches the necessary degree of conviction and sentencing, can the conviction and sentencing be sentenced. In this regard, the pre-law and normative law of "Endangering Tax Collection and Administration" in Chapter 3, Section 6 of the Criminal Law are the "Tax Collection and Administration Law" and its implementing regulations. The legal basis for the conviction of the crime of endangering tax collection and administration, whether it constitutes endangering tax collection and administration, and whether it is necessary to impose penalties, should be based on the "Tax Collection and Administration Law" and its implementing regulations.

The (II)'s full conviction of "non-declaration" deviates from the legal basis and the pre-law, and is in danger of contradicting the principle of legality.

As mentioned earlier, the "Tax Collection and Management Law" and its implementing regulations are the legal system basis of the "Hazardous Tax Collection and Management Law" of the "Criminal Law", and are the pre-law and the regulatory law. According to the principle of "legally prescribed punishment for a crime", for administrative and statutory offenders who are "endangering tax collection and management" such as tax evasion crimes, the basis for conviction is not the "Criminal Law", but the "Tax Collection and Management Law". The Tax Administration Law considers that it constitutes tax evasion, and only under serious circumstances does it constitute the objective elements of the crime of tax evasion (the original crime of tax evasion) stipulated in Article 201 of the Criminal Law. The Tax Administration Law does not stipulate that it is tax evasion, and the Criminal Law does not need to and should not be treated as the crime of tax evasion.

Since 2001, Article 63 of the "Tax Administration Law" has always stipulated that "refusal to declare after notification by the tax authority" is the case of tax evasion in the case of "non-declaration. According to the principle of legally prescribed punishment for a specified crime, Article 63 of the Tax Collection and Administration Law should be used as the pre-law, normative law and conviction basis for the crime of tax evasion in Article 201 of the Criminal Law, that is, the Criminal Law should only prosecute and sentence the crime of tax evasion for serious acts of "refusing to declare upon notification by the tax authorities", and should not impose penalties on all "non-declaration" acts.

(III)'s full conviction of "non-declaration" violates the principle of modesty in criminal law.

To a large extent, the principle of modesty in criminal law and the principle of legality of crime and punishment are mutually exclusive, or the principle of modesty in criminal law is an important manifestation of the principle of legality of crime and punishment. As a pre-law and normative law, the Tax Collection and Administration Law does not stipulate that tax evasion is an act, and the criminal law and criminal judicial organs should not be dealt with as the crime of tax evasion; the Tax Collection and Administration Law does not provide for acts that need to be punished through penalties, and the criminal law and criminal justice organs do not need to include them in the scope of crimes and penalties. These are the proper meaning of the principle of criminal law.

Article 64 of the Tax Administration Law stipulates: "If a taxpayer or withholding agent fabricates a false basis for tax calculation, the tax authorities shall order it to make corrections within a time limit and impose a fine of not more than 50,000 yuan. If a taxpayer fails to file a tax return and fails to pay or underpays the tax payable, the tax authorities shall recover the tax and late fee that he or she has not paid or underpaid, and impose a fine of not more than 50% but not more than five times the tax". It can be seen that Articles 63 and 64 distinguish the legal consequences of "refusing to declare upon notification by the tax authorities" and "not to declare". For the former, the treatment includes "if a crime is constituted, criminal responsibility shall be investigated according to law", while for the latter, it is not stipulated that it is necessary to be dealt with as constituting a crime and being investigated for criminal responsibility. Therefore, for the ordinary "non-declaration" stipulated in Article 64 of the Tax Administration Law, the Criminal Law and corresponding judicial interpretations should not include it in the scope of crime to prosecute criminal responsibility.

Article 1 of the (IV) Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration violates the legal principle and logic of the relationship between normative law and sanctions law, and is suspected of legislation

Article 63 of the Tax Administration Law, which is a normative law, stipulates what is tax evasion, and Article 201 of the Criminal Law, which is a sanctions law, stipulates how to sanction it. In order to achieve the integrity and convenience of criminal legal norms, Article 201 of the Criminal Law may stipulate what tax evasion is, but the connotation and extension of its provisions should be consistent with Article 63 of the Tax Administration Law and should not be expanded. The amendment to the Criminal Law (VII) to include ordinary "non-declaration" in the scope of criminal responsibility prosecution, and there are signs of bringing the circumstances stipulated in Article 64 of the Tax Collection and Administration Law into criminal law sanctions in violation of the principle of criminal law modesty. However, according to the fact that the crime of tax evasion originated from the crime of tax evasion and the composition of tax evasion is always stipulated in Article 63 of the Tax Collection and Administration Law, there is still room for "non-declaration" in Article 201 of the Criminal Law to be interpreted as "refusal to declare upon notification by the tax authorities. However, the second paragraph of Article 1 of the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration" directly regards non-declaration in all cases as "non-declaration" in Article 201 of the Criminal Law, which greatly expands The object of the crime of tax evasion.

The first paragraph of Article 1 of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration even regards "fabricating false tax basis" as "fraud and concealment" in Article 63 of the Tax Collection and Administration Law and Article 201 of the Criminal Law, but "fabricating false tax basis" is an act that does not require prosecution and criminal responsibility as stipulated in Article 64 of the Tax Collection and Administration Law. According to the objective constituent elements of the original tax evasion crime and the first paragraph of Article 63 of the Tax Administration Law, "fraud" includes forgery, alteration, and overlisting of expenditures, and "concealment" includes concealment or unauthorized destruction of account books and bookkeeping vouchers, and underlisting of income. The Tax Administration Law is a normative law and a pre-law, as well as a technical legislation. It distinguishes "forging, altering, concealing, destroying account books and accounting vouchers without authorization, or listing more or less income in account books" from "fabricating false tax calculation basis" in Articles 63 and 64. It can be seen that professional legislative advice departments (Ministry of Finance and State Administration of Taxation) believe that the two are different. In terms of pure semantic distinction, "fabrication" refers to empty words, while "fraud" in Article 63 of the Tax Administration Law and Article 201 of the Criminal Law refers to fraud-forgery, alteration and destruction of account books or accounting vouchers. Many scholars believe that "fabricating false tax basis" in Article 64 of the Tax Collection and Administration Law is a summary of "forging, altering and overlisting expenditures" in Article 63. If "fabricating false tax basis" causes tax loss, it shall be dealt with according to Article 63 of the Tax Collection and Administration Law (including further prosecution). If tax loss is not caused, it shall be fined according to Article 64 of the Tax Collection and Administration Law. If we infer from this point of view that the "false declaration" and "non-declaration" in Article 201 of the Criminal Law all point to the act of non-payment of tax or underpayment of tax caused by active illegal acts, "false declaration" should refer to the false listing of costs in the process of tax declaration, and "non-declaration" should refer to the concealment of income in the process of tax declaration and non-declaration.

Paragraph 2 of Article 1 of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration includes all non-declaration acts as "non-declaration" in the crime of tax evasion. The first paragraph of Article 1 also lists a number of "fraud and concealment" situations. Except for item (I), the rest are basically added in addition to the situations stipulated in Article 63 of the Tax Administration Law. Whether some situations fall within the scope of "false declaration" stipulated in Article 63 of the Tax Administration Law and Article 201 of the Criminal Law is still controversial, such as defrauding tax concessions. The judicial interpretation of criminal law should only explain the sentencing issues in the criminal law norms, the normative law and the objective situation of the crime in the pre-law, and should not add the crime situation not stipulated in the pre-law and the normative law. Otherwise, the judicial interpretation of criminal law will replace the pre-normative law and place the judicial interpretation in the position of the pre-law, which is essentially equivalent to legislation, which is inconsistent with the rules and requirements of the Legislative Law.

(I) the necessity of administrative punishment is lacking, but it is punished by criminal law.

For administrative offenders and statutory offenders, the existence of violations of administrative laws and regulations is the premise of punishment. When the administrative punishment is sufficient to punish, the department will no longer pursue criminal responsibility. When the administrative management laws and regulations stipulate that serious violations need to be prosecuted and When the crime is responsible, more severe criminal responsibility can be pursued. In other words, illegal acts that are exempted from administrative responsibility should not be investigated for criminal responsibility.

The general recovery period stipulated in the first and second paragraphs of Article 52 of the Tax Administration Law is three years and five years respectively, and the limitation period for tax administrative penalties stipulated in Article 86 of the Tax Administration Law is five years. The maximum sentence for tax evasion is seven years and the prosecution period is ten years. According to the legal principle and logic of administrative offenders, only those who are within the limitation of prosecution of administrative penalties but the administrative penalties are not enough to punish can be prosecuted. In practice, most criminal cases of crimes endangering tax collection and management are also transferred by the tax authorities to the public security organs for investigation. According to the principle of modesty in criminal law, if it is not enough to investigate the responsibility of administrative punishment, there should be no need to pursue criminal responsibility. If the second paragraph of Article 1 of the interpretation on Several Issues concerning the application of law in handling criminal cases endangering tax collection and administration stipulates that the criminal responsibility of non declaration shall be "comprehensively" prosecuted, many tax related acts that have not been subject to administrative responsibility due to the limitation of administrative punishment will be prosecuted instead.

(II) to promote tax, tax and police joint operations caused by tax-enterprise relations dilemma

Under normal circumstances, the general recovery period stipulated in the first and second paragraphs of Article 52 of the "Tax Administration Law" is three years and five years, respectively, and no supplementary levy will be imposed after the expiration. The Reply of the State Administration of Taxation on the Issue of Time Limit for Recovery of Undeclared Taxes (Guo Shui Han [2009] No. 326) stipulates that the failure to pay or underpayment of taxes due to the failure of taxpayers to file tax returns as stipulated in the second paragraph of Article 64 of the Tax Administration Law is not tax evasion, tax resistance or tax fraud. The recovery period is generally three years in accordance with the spirit stipulated in Article 52 of the Tax Administration Law, and can be extended to five years in special circumstances.

It can be seen from this that according to the interpretation of the State Administration of Taxation (the highest tax professional authority), the non-declaration in the second paragraph of Article 64 of the Tax Administration Law does not constitute tax evasion, tax resistance, or tax fraud. It is unscientific and unprofessional for the Supreme People's Court (non-tax professional authority) to include the circumstances stipulated in the second paragraph of Article 64 of the Tax Administration Law into the scope of prosecution; in addition, the "non-declaration" in Article 201 of the Criminal Law shall not be interpreted as non-declaration as stipulated in the second paragraph of Article 64 of the Tax Administration Law, but can only be interpreted as non-declaration of income to be declared in the process of tax declaration and on the information, or as "refusal to declare upon notification by the tax authorities" as stipulated in Article 63 of the Tax Administration Law ".

Under the circumstances of tight taxation tasks, it is difficult for all localities to check and compensate taxes and fines on tax-related issues of enterprises five years ago based on the provisions on the recovery period of Article 52 of the Tax Collection and Administration Law, the provisions on the limitation period of tax administrative penalties stipulated in Article 86 of the Tax Collection and Administration Law and the spirit of document No. 326 of the National Tax 2009, in accordance with the provisions of Article 1 of the Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration, while the criminal prosecution procedure for the crime of tax evasion can be initiated, the enterprise can be determined to have tax evasion on the basis of criminal filing, prosecution, and judgment, and then realize Indefinite tax recovery.

However, this uncertainty and expanded interpretation of tax-related liability will inevitably cause enterprises to panic about tax-related liability, make the relationship between tax enterprises out of harmony, and make the interdependence between tax and tax sources in trouble.

The Interpretation Dilemma of (III) "Not Declaring" in Real Tax Declaration Scenarios

In the real tax declaration scenario, "non-declaration" has at least the following situations, which are prone to interpretation dilemmas and lead to the inability to accurately apply the legal norms of tax evasion.

The first is not to declare in accordance with the regulations, that is, not to declare directly, that is, the situation described in Article 64 of the Tax Administration Law.

Second, a declaration is made, but certain taxable income is concealed and not declared during the declaration process.

The third type is to fail to declare in accordance with the regulations and refuse to declare after being notified by the tax authorities, that is, the situation described in Article 63 of the Tax Administration Law.

Fourth, the income is declared, but the tax exemption or tax reduction is declared, and then the tax authorities consider that it does not meet the conditions for tax reduction and exemption, such as Bohui shares "heavy aromatics derivatives" by the tax authorities as "heavy aromatics" tax 0.5 billion yuan case.

Fifth, the taxpayer believes (not maliciously or intentionally) that a certain income is not tax-related, so he does not declare the income in the first and second cases mentioned above, but the tax authorities later determine that it is tax-related.

In the actual tax collection and management scenario, the situation of non-declaration may be far more than the above five types. The second paragraph of Article 1 of the "Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Tax Collection and Management" covers all and all. But in fact, the situation similar to the above-mentioned first and 2. 4. five are interpreted as non-declaration of tax evasion, which is unconvincing in terms of offense and pre-law basis.

On the basis of the normative law preempted by Article 63 of the Tax Administration Law, combined with the position that the crime of tax evasion originates from the crime of tax evasion and the legal benefits remain unchanged, and according to the principle of modesty in criminal law, the illegality and culpability of non-declaration can be understood through the following simple cases:

Enterprise A has gone through tax registration. The real operating income in 2022 is 10 million yuan and the real cost is 5 million yuan. It is recognized as a high-tech enterprise by the Science and Technology Innovation Commission and is subject to a preferential tax rate of 15%. If enterprise a does not declare enterprise income tax every quarter in 2022 or remit and pay enterprise income tax for 2022 before may 2023, it falls under the circumstances mentioned in article 64 of the tax collection and administration law and does not constitute tax evasion. If the tax authorities find that enterprise a has failed to declare on schedule and require it to make supplementary declaration, enterprise a still does not submit the declaration, it belongs to the "refusal to declare upon notification by the tax authorities" mentioned in Article 63 of the Tax Administration Law and the "non-declaration" mentioned in Article 201 of the Criminal Law. If enterprise a submits the declaration form and information, but conceals the income of 5 million yuan in the declaration form, resulting in underpayment of tax of 750000 yuan, it can be understood as the "non-declaration" part of the income mentioned in article 201 of the criminal law; if enterprise a submits the declaration form and materials, but falsely lists the cost of 5 million yuan in the declaration form and materials with forged or fabricated financial vouchers, resulting in an underpayment of tax of 750000 yuan, it belongs to the "false declaration" mentioned in article 201 of the criminal law. If enterprise a truthfully declares its income and cost, it will pay enterprise income tax of 750000 yuan in 2022, in 2024, the tax authorities and judicial authorities determined that Enterprise A submitted false information in the process of applying for high-tech enterprise identification. The 15% tax rate should not be applied but the 25% tax rate should be applied. The tax should be 500000 yuan and a late fee should be paid.

However, in accordance with the "Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Endangering Tax Collection and Administration", Article 1, paragraph 2, all of the above situations constitute crimes. Obviously, only the failure to declare on time and the tax rate is reduced to 25% is also recognized as a crime of tax evasion, which is stricter than the statutory standards of the regulatory law and is unreasonable.

From the point of view of neutral political ethics, taxation is the compulsory and free collection of private property, and the reduction of tax burden by private individuals as far as possible is in line with human nature (justice in natural law) to a certain extent, and to a considerable extent, it is the same as "the law is not strong", just like self-defense and emergency avoidance. After all, the conviction and sentencing of behaviors that conform to human nature without persuasion or warning (refusing to declare after notification) is a departure from natural justice and a sense of modesty. In addition, the state can strengthen tax collection through continuous legislation, but private individuals choose to bear different consequences of tax declaration compliance within the framework of tax collection and management legal system.

Supply-school economist Arthur Laffer argues that, within a certain tax rate range, the government can get more tax revenue by raising the tax rate, but if it breaks through the optimal tax rate, the tax revenue will be less and less. In fact, the harshness of tax administration is the same, beyond the equilibrium point (optimal) strict enforcement, tax revenue will be lower and lower, many people choose to go slow and vote with their feet. Tax is the venous blood vessels of the society, and too much backflow will cause the body to be weak due to ischemia. At the moment of supply-side reform, tax administrative law enforcement and judicial accountability should be softer. From the historical experience, recuperation is experience, then self-cultivation can also generate taxes.

Returning to the perspective of the rule of law, the provisions of Article 1 of the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Tax Collection and Administration expand the scope of legal benefit protection for tax evasion, which is the source of tax evasion crime, and constitutes a deviation and conflict with Articles 63 and 64 of the Tax Collection and Administration Law, which are the pre-law of Article 201 of the Criminal Law. Its understanding of whether non-declaration constitutes tax evasion is also different from that of tax evasion from the highest tax evasion, there is a suspicion of going beyond the scope of professional competence to develop a separate pre-law and normative law for tax evasion. After all, as an administrative offender and a statutory offender, the elements of the tax-related crime should be modestly based on the provisions of the tax law and the opinions of the tax authorities.

It is not difficult to speculate that in the near future, Articles 63 and 64 of the Tax Administration Law may be revised, and Article 64 of the Tax Administration Law may be added to stipulate that "those who constitute a crime shall be investigated for criminal responsibility according to law", or merged or assimilated into Article 63. However, it is undeniable that the amendment to the Criminal Law has literally deviated from Article 63 of the pre-law "Tax Collection and Administration Law" (VII) regarding "non-declaration" as an element of the crime of tax evasion, but has reserved room for interpreting the connotation of "non-declaration" in accordance with Article 63 of the "Tax Collection and Administration Law". The Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Tax Collection and Administration has eliminated all room, these are easy to think that there is a history of violating the principle of legality of crime and punishment and the principle of modesty of punishment.

As a special law, a pre-law and a normative law, the tax law always follows the criminal law and even the provisions of the judicial interpretation of the criminal law, which violates the requirements of administrative professionalism and reverses the logical relationship between the normative law (tax law) and the sanctions law (criminal law). The rule of law is the best business environment, and the rule of law in taxation is the most important rule of law, and there is almost no one. When the law is used as a belief, it is the rule of law; when the law is used as a tool, it is at best the rule of law.

(This article only represents the author's point of view)