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12.31.2008

Draft CL amendments - Article 201 - tax evasion

Art. 201 punishes tax evasion, provisions on which have been simplified. A new paragraph has been added that exempts from criminal liability those who pay tax arrears, a fine and are subject to administrative punishment.


Article 201

Any taxpayer who files a false tax declaration pay or underpays the amount of taxes payable by means of forging, altering, or fails to file a tax declaration by means of [deception] or concealing, or destroying without authorization account books or vouchers for the accounts, or overstating expenses or omitting or understating incomes in account books, or refusing to file his tax returns after the tax authorities have notified him to do so or filing false tax returns shall if the amount of tax evaded [is reasonably high] and accounts for over 10 percent but under 30 percent of the total of taxes payable and over 10,000 yuan but under 100,000 yuan,or if he commits tax evasion again after having been twice subjected to administrative sanctions by the tax authorities for tax evasion, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also [or shall only] be fined. not less than one time but not more than five times the amount of tax evaded; if the amount of tax evaded [is big and] accounts for over 30 percent of the total of taxes payable or is over 100,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined not less than one time but not more than five times the amount of tax evaded.

纳税人采取欺骗、隐瞒手段进行虚假纳税申报或者不申报,逃避缴纳税款数额较大并且占应纳税额百分之十以上 的,处三年以下有期徒刑或者拘役,并处或者单处罚金;数额巨大并且占应纳税额百分之三十以上的,处三年以上七年以下有期徒刑,并处罚金  

Where a withholding agent who, by using the means mentioned in the preceding paragraph, fails to pay or under-pays the taxes which he has withheld or collected shall, if the amount accounts for over 10 percent of the total of taxes payable or is over 10,000 yuan, [is reasonably high] shall be punished in accordance with the provisions in the preceding paragraph.

[Draft amendment: 扣缴义务人采取前款所列手段,不缴或者少缴已扣、已收税款,数额较大的,依照前款的规定处罚]

Whoever repeatedly commits the acts mentioned in the preceding two paragraphs and goes unpunished shall be punished on the basis of the cumulative total

[Whoever commits the acts mentioned in paragraph one and pays taxes after tax authorities have issued a communication demanding the payment of arrears is charged an overdue fine and is subjected to administrative punishment shall not be subjected to criminal prosecution, unless has received criminal sanctions for tax evasions within the last 5 years, or has been subjected to administrative punishment by tax authorities for more than two times.]

“有本条第一款行为,经税务机关依法下达追缴通知后,补缴应纳税款,缴纳滞纳金,并且接受行政处罚的,不予追究刑事责任;但是,五年内曾因逃避缴纳税款受过刑事处罚或者被税务机关给予二次以上行政处罚的除外
Translation courtesy CECC

Comments

Fanxulitai.

Suggested to replace "by means of deception or concealing" with "by deception, concealing or other means", to include all those cases not currently covered by the amendment to art. 201


Liu Zhenwei.

Stated that this amendment will water-down the fight against tax evasion. Suggested to introduce different provisions to punish cases where the amount of tax evaded accounts for more than 30% of what due. Also he suggested to use the payment of tax arrears as a mitigating circumstance.


Li Zupei

Suggested to mention "fails to file a false declaration" before "file a false declaration"





Fanny Law

Commented negatively upon the exemption from criminal liability of those who evade less than 10% of the tax due. While such measure is likely to reduce law enforcers' workload, it will nonetheless encourage people to evade tax. Suggested that mitigated sanctions or administrative punishment be adopted on those who do not reach the 10% liability limit.

Gama


Proposed to change "if the amount of tax evaded is reasonably high and accounts for over 10 percent" into "if the amount of tax evaded is reasonably high or accounts for over 10 percent". This would allow to prosecute those who evade amount of tax which are big, even though do not reach the 10% limit.



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