(A) the case selection process
The selection of tax audit cases, also known as the determination of tax audit objects, refers to the process of collecting, analyzing and screening taxpayers' information data according to certain methods, methods and requirements, and finally determining the specific inspection objects for tax audit. Tax-related cases mainly come from comprehensive information such as accusation, assignment by superiors, transfer at all levels, investigation and expansion, inspection and expansion, information exchange and collection.
(2) Inspection link
1. Implement inspection.
The requisitioner thinks it is a free gift. If there is a discount, it should be indicated on the same invoice, otherwise the discount cannot be reduced. The party who didn't ask for it thought it wasn't a free gift. For example, Notice of Sichuan Provincial State Taxation Bureau on Printing and Distributing Answers to Some Policy Questions on Value-added Tax (Part I) Sichuan Guoshuihan [2008] 155.
"Buy one, get one free" is a kind of promotion method commonly used by commercial retail enterprises at present, and its behavior belongs to price reduction sales, so value-added tax should be calculated and paid according to actual sales income.
Collect evidence
The most important thing in the inspection process is to collect and fix evidence. If the evidence is insufficient, the handling of the case will be risky. Inspection evidence mainly includes: physical evidence, documentary evidence, audio-visual materials, witness testimony, statements of the parties, expert conclusions, on-site transcripts, etc.
(1) Inspectors collect evidence in the following ways:
(1) provides methods. Instruct taxpayers to provide relevant information.
② Exchange method. If it is necessary to obtain the original materials related to the case, the original invoice can be exchanged with a unified exchange ticket or the original materials can be extracted with a special receipt for extracting evidence.
③ Replication method. If the original cannot be obtained, it can be recorded, videotaped, photocopied or copied. In the case that the evidence may be lost or difficult to obtain later, with the approval of the person in charge of the tax authorities, it can be registered and preserved in advance, and a decision on handling it can be made in time within the prescribed time limit. During this period, the parties concerned or relevant personnel shall not destroy or transfer the evidence.
(4) recording method. Go to the scene to observe and make a written record of the observed situation, which will be signed and sealed by the inspectors, the enterprises present and other parties as evidence.
⑤ Inquiry method. Implement tax issues.
⑥ Investigation method. There are two ways to investigate and collect evidence: one is to send people to other units for investigation; The second is correspondence, that is, sending a letter to a foreign unit for investigation and evidence collection. The reply to the investigation in different places and the copies of the attached bills and documents should also be regarded as proof.
The taxpayer's signature is not required for the evidence obtained through investigation and investigation.
⑦ Investigation and evaluation. For example, check the problem of tax evasion at gas stations, and cooperate with technical supervision departments to solve the problems of oil quantity and quantity in and out of tankers and solvent capacity of refueling tanks.
Investigators often use tax inspection drafts, and inspectors truthfully fill in the taxpayer's illegal facts on the drafts. As long as the taxpayer checks and affixes its official seal at the signature or alteration, and the signature number is accurate, the problem is correctly identified, and it violates the provisions of tax laws and regulations, it should be said to be evidence to prove its illegal facts; Taxpayers have great objections to the problems found in the inspection, and apply for reconsideration after making a decision, but the decision cannot be changed, which may cause litigation, and should collect evidence in a timely and in-depth manner within the validity period of supplementary evidence collection by the tax authorities;
(2) The forms and collection procedures of evidence must comply with the law;
First, the procedure should be legal.
The collection work must be carried out by two or more persons with tax administrative law enforcement qualifications;
(2) the collection work must be carried out in accordance with legal procedures and authority before making a decision on tax treatment after issuing a notice of tax inspection (including special investigation); If the tax authorities do not formally issue a tax inspection notice, the tax authorities that collect evidence have no such power without the knowledge of the parties concerned. The evidence collected after the decision of tax treatment or tax administrative punishment is not in conformity with the provisions of the Administrative Procedure Law on several issues.
(3) When collecting evidence, audio recording, video recording, photographing and copying may be conducted, and no taxpayer or witness may be induced to confess, induced to confess or coerce a confession.
Legality refers to the rules of obtaining evidence, and only the evidence collected in accordance with the provisions of the tax law and relevant laws and regulations has legal effect. All materials collected by threats, inducements, confessions, confessions, deception, etc. There is no evidence.
Second, the collected evidence itself must meet the legal requirements and withstand reconsideration or court review. For example, the obtained certification materials are stamped with the official seal of the unit, not the departmental seal within the unit.
(3) The following evidence cannot be used as the basis for the final decision:
① Evidence collected in serious violation of legal procedures;
(2) Obtaining evidence that infringes upon the lawful rights and interests of others by taking candid photos, secretly recording or eavesdropping;
Evidence obtained by inducement, fraud, coercion, violence and other improper means;
(four) evidence obtained by illegally depriving the parties of their right to state, defend or hear according to law;
(5) The copy or reproduction is not recognized by the original, the original preservation unit or individual, and there is no evidence confirmed by other evidence;
⑥ Technical treatment of unidentified evidence;
End inspection
Before the end of the inspection, the inspectors can inform the inspected object of the facts and basis of the tax violations found; When necessary, you can issue a Notice of Tax Matters to the inspected object, requiring it to give a written explanation and provide relevant information within a time limit; If the inspected object gives an oral explanation, the inspector shall make a written record, which shall be signed by the party concerned. After the inspection, a tax inspection report shall be made according to the working papers of tax inspection and relevant materials, which shall be audited by the person in charge of the inspection department.
If no illegal tax facts are found after inspection, the contents, process and facts of the inspection shall be explained in the tax inspection report.
(3) Trial link
Audit trial is a process in which the judicial department of the Inspection Bureau of the Inland Revenue Department examines the tax-related cases concluded by the audit and makes a decision according to the prescribed duties and procedures.
1. Audit test mode
In practice, the audit trial mode is usually divided into three levels according to the specific circumstances of the case:
(1) For general cases, the trial department located in the inspection bureau shall designate a special person to conduct the trial, make an audit report and report it to the director of the inspection bureau for approval.
(2) For cases with complicated cases, that is, if the judicial department and the inspection department have different opinions on facts and qualitative issues, the judicial department shall submit them to the inspection bureau for collective examination and approval.
(3) Major cases shall be submitted by the Inspection Bureau to the case trial committee of the Inland Revenue Department for approval.
The three-level trial system can better reduce misjudged cases in tax-related cases.
2. The trial content
During the trial, the trial personnel shall carefully review the tax inspection report and all the files related to the case, and the trial personnel shall focus on the following contents:
(1) Check whether the object is accurate. Whether the subject of the inspection object is accurate mainly depends on whether the name of the inspection object in tax inspection documents such as Notice of Tax Inspection Task, Notice of Tax Inspection and Report of Tax Inspection is completely consistent with the actual name.
(two) whether the facts of tax violations are clear, whether the evidence is sufficient, whether the data is accurate and whether the information is complete;
Clear facts mean that the tax-related facts identified in the tax inspection report must be true, specific and accurate, that is, the legal facts of tax-related cases are clear. Clear legal facts refer to confirming the validity of all kinds of evidence and the time, place, plot, consequences, responsibilities and reasons of major tax violations one by one in accordance with legal procedures and standards, and then judging the facts of the case (that is, legal facts) with valid evidence to ensure that the facts involved in the trial are clear.
(2) Sufficient evidence means that evidence should meet the three characteristics of evidence, namely, relevance, legitimacy and authenticity. Only evidence that meets these three conditions at the same time can support the existence of proven facts. Therefore, in the process of audit trial, we should carefully review the logical relationship between evidence and facts, evidence and evidence to ensure that the evidence is conclusive and sufficient.
(3) Accurate data not only refers to the accurate calculation of tax payable, but also needs to examine whether the source of tax basis is legal, whether the procedures are complete, whether the classification is accurate, whether it meets the taxation scope of relevant taxes, and whether the applicable tax rate is obtained.
(4) Complete information refers to handed-over materials, tax documents, evidence materials and other materials. All materials related to the case should be complete, legal and effective.
(3) Whether the applicable laws, administrative regulations, rules and other normative documents are appropriate and correct in nature;
The review of applicable laws and regulations mainly includes: first, whether the applicable laws and regulations are fully cited; Second, whether the cited laws and regulations are correct; Third, whether to quote laws and regulations in a standardized way, and whether to list the names of laws and regulations and related clauses; Fourth, whether the ranking citation of laws and regulations meets the requirements.
Whether the nature is correct refers to judging whether the tax behavior of the parties concerned is illegal according to the characteristics and conditions of illegal acts stipulated by relevant laws. If so, it is necessary to judge the consequences and influence caused by its illegal behavior and lay the foundation for tax treatment and punishment.
(4) Whether it complies with legal procedures.
(1) The legality of the program.
In the trial, first of all, it is necessary to examine whether the procedure for determining the object of tax inspection is legal and whether the object of inspection is obtained in accordance with the principles and screening methods of inspection and case selection; Secondly, it is necessary to examine whether the implementation of the inspection conforms to the prescribed procedures and whether the various elements are effective and complete. For example, whether there are more than two people at the beginning of the inspection and show the tax inspection certificate and tax inspection notice at the same time. Through the review, judge whether the inspection procedure is legal.
② the integrity of the program
The legal procedure review is to review whether the relevant procedures that should be handled in the implementation of the inspection comply with the regulations and requirements. If the procedures for obtaining the account books and relevant materials of the previous year are complete, it is necessary to first examine whether the act has the approval procedures of the director of the tax bureau, that is, the consent opinion signed by the director on the Approval Form for Tax Administrative Law Enforcement. Secondly, check whether the reconciliation procedures for obtaining account books are fulfilled, that is, when the notice of obtaining account books is served, the name, quantity and date of obtaining account books are indicated on the list of obtaining account books, and then the inspection bureau and the inspected object sign and seal respectively. Finally, the material return procedure is reviewed, that is, after checking the name, quantity and material return time of the reconciliation materials, the inspection bureau and the inspected object sign and seal the original account book reference list respectively. Through the above review, it is judged whether the reconciliation and reconciliation procedures are complete.
③ Timeliness of procedures
The timeliness of the review procedure is mainly to review whether the relevant matters in the audit implementation process are completed within the statutory time limit. Administrative regulations clearly stipulate the time limit of administrative procedures. For example, the date of all kinds of evidence materials extracted in the inspection must have legal effect after the tax inspection notice is delivered and the receipt date is obtained, but before the date of making the tax inspection report. Audit trial should be conducted to ensure that the implementation of tax audit conforms to legal procedures.
(5) whether to exceed or abuse power.
Abuse of power means that inspectors violate the authority and procedures prescribed by law, exceed their authority and illegally decide and deal with tax-related matters that they have no right to decide and deal with. The manifestations of abuse of power include both excessive use of power within the scope of duties, that is, exceeding power, and failure to perform power within the scope of duties seriously. In fact, it is a duplication of meaning to stipulate that inspection exceeds or abuses power, and it should be changed to "whether it abuses power".
(1) Exceeding authority refers to the inspection behavior that inspectors exercise tax inspection power beyond the relevant provisions of the Tax Collection and Administration Law and its detailed rules. If inspectors check the goods consigned by taxpayers out of the box at the station, instead of strictly observing that the exercise of verification right is limited to checking the documents of consigned goods at the station, this is ultra vires law enforcement.
(2) Failing to perform the power within the scope of duties seriously means that the inspectors are not serious and responsible in the inspection, fail to inspect the tax violations of the parties, or fail to take tax preservation measures in time when the parties have evaded their tax obligations and obviously transferred their property. These are all powers endowed by law and belong to abuse of power.
(6) Whether the tax treatment and punishment suggestions are appropriate;
Whether the suggestions for handling and punishment are appropriate mainly depends on whether the tax inspection report provided by the inspectors is accurate in the characterization of the case and whether the suggestions for handling and punishment are appropriate. The case characterization is to characterize the tax-related facts of the inspection object, which is the key to handling the case. There are different rules for dealing with different tax issues. Only when the nature is accurate can it be handled properly.
The qualitative basis of tax-related cases mainly includes: legal facts; Relevant tax laws and regulations, etc.
Article 63 A taxpayer who forges, alters, conceals or destroys account books and vouchers without authorization, or overstretches expenditure, omits to report or understates income in account books, or refuses to declare or falsely report tax payment after being notified by the tax authorities, and fails to pay or underpays the tax payable is tax evasion. If a taxpayer evades taxes, the tax authorities shall recover the unpaid or underpaid taxes and late fees, and impose a fine of not less than 50% but not more than five times the unpaid or underpaid taxes; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 64 Where a taxpayer or withholding agent fabricates a false tax basis, the tax authorities shall order it to make corrections within a time limit and impose a fine of less 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 unpaid or underpaid tax and late fees, and impose a fine of more than 50% and less than five times the unpaid or underpaid tax.