Overview of Tax Evasion Crime in Vietnamese Criminal Law from 1945 to 1999

Signs of subject and object, subjective aspect: Anyone with criminal capacity and reaching a certain age can be the subject of these two types of crimes. The object that these two crimes violate is the management order of other valuable papers. People who commit these two crimes with intentional fault, they are fully aware that their behavior is a violation of the law and want the consequences to happen or even though they do not want them, they let the consequences happen.

Regarding the objective aspect of crime, including the act of illegally buying, selling and using VAT invoices, there have been specific instructions in Joint Circular No. 21/2004/TTLT-BCA-TANDTC-VKSNDTC-BTP of the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Public Security, and the Ministry of Justice dated November 23, 2004 guiding the prosecution of criminal liability for the act of illegally buying, selling and using value-added invoices as follows:

1.3. Anyone who illegally purchases a value-added invoice and uses it to legalize documents for illegal trading of goods will be subject to criminal prosecution as follows:

a. If it can be proven that the act of illegally trading goods across the border falls into one of the following cases, criminal liability for "smuggling" will be prosecuted under Article 153 of the Penal Code:

a.1. Goods worth one hundred million VND or more;

Maybe you are interested!

a.2. Goods with a value of less than one hundred million VND, but have been administratively sanctioned for the acts specified in Article 153 or in one of Articles 154, 155, 156, 157, 158, 159, 160 and 161 of the Penal Code or have been convicted of one of these acts, but have not had their criminal records expunged and still commit violations if they do not fall under the cases specified in Articles 193, 194, 195, 196, 230, 232, 236 and 238 of the Penal Code.

b. If it is not possible to prove the act of illegal cross-border trading of goods (ie only domestically) and falls into one of the following cases, criminal liability for "tax evasion" will be prosecuted according to Article 161 of the Penal Code:

b.1. Tax evasion from fifty million VND or more;

b.2. Tax evasion of less than five million VND, but has been administratively sanctioned for tax evasion or has been convicted of tax evasion or of one of the crimes specified in Articles 153, 154, 155, 156, 157, 158, 159, 160, 164, 193, 194, 195, 196, 230, 232, 233, 236 and 238 of the Penal Code, has not had the criminal record cleared and still commits the violation.

1.4. Anyone who purchases value-added invoices that do not fall under one of the cases guided in subsections 1.1, 1.2 and 1.3 of this section shall be prosecuted for criminal liability as follows:

a. In case it can be proven that when purchasing a value-added invoice, the value-added invoice was fully recorded as if the goods were purchased, the buyer will be prosecuted for criminal liability for "the crime of storing, transporting, and circulating fake valuable papers" according to Article 181 of the Penal Code;

b. In case it is not possible to prove that the value added invoice has been fully recorded as the goods were purchased (the value added invoice is intact as when issued), the buyer will be prosecuted for criminal liability for "crime of buying and selling documents of state agencies" according to Article 268 of the Penal Code, if the number of value added invoices is fifty or more (usually each number has 3 copies) or less than fifty, but has been administratively sanctioned or has been convicted of the crime of appropriating, buying and selling, destroying seals and documents of state agencies and social organizations, but has not had the criminal record cleared and still violates [40].

However, some provisions of this Circular are no longer consistent with the provisions of the 2009 Penal Code. Currently, the 1999 Penal Code, as amended and supplemented, adds a crime related to invoices, which is the crime of "illegal purchase and sale of invoices".

– Article 164a. Therefore, it is necessary to amend and provide appropriate guidance so that the application of the law in investigation, prosecution and trial is consistent and accurate.

1.5. Overview of tax evasion in Vietnamese criminal law from 1945 to 1999

1.5.1. From 1945 to 1985

After the success of the August Revolution, the Democratic Republic of Vietnam was established. The law of this period did not have a complete system, the systematization of legal regulations was still limited in many areas, especially in the economic field. However, in the face of economic development, the need to manage State budget revenues has created many documents to establish taxes such as:

Circular 427-TTG dated December 18, 1954 of the Prime Minister regulating corporate tax;

Decree No. 715-TTg dated March 24, 1956 of the Prime Minister on promulgating the agricultural tax regulations applicable in places where land reform has been carried out;

Decision No. 200-NQ/TVQH dated January 18, 1966 of the National Assembly Standing Committee on promulgating the regulations on industrial and commercial taxes;

Resolution No. 487-NQ/QHK4 dated September 26, 1974 of the National Assembly Standing Committee on promulgating the commodity tax regulations.

The tax laws of this period identified violations of tax regulations as one of the violations of the policy on business management. At the same time, they also stipulated specific tax violations and ways to handle violations. Some types of tax evasion-related behaviors were also recorded, such as: False declaration, refusal to pay taxes,

Creating fake documents, keeping books that do not reflect reality... are all regulated in legal documents to deal with tax evasion.

For those who commit tax evasion, in addition to various sanctions such as fines, confiscation of fraudulent goods, and suspension of business operations, there has been an initial differentiation of criminal liability based on the amount of tax evasion and the seriousness of the tax evasion.

Besides, the legal documents of this period did not have any general provisions on tax evasion, nor did they clearly distinguish between tax evasion as an administrative violation and tax evasion as a crime.

On March 15, 1976, the Government issued Decree No. 03/SL-76 regulating economic crimes. Article 6 of the Decree stipulates:

Economic crimes are crimes that cause financial and economic damage to the State, cooperatives, or collectives of people, hinder the restoration and development of production, and stabilize and improve people's lives, including the following crimes:

- Producing counterfeit goods, intentionally deceiving consumers.

- Illegal business, intentionally evading state regulations.

- Making counterfeit silver or consuming counterfeit silver

- Fraudulent buying, fraudulent selling , tax evasion , deceiving the authorities.

- Speculation, hoarding, spreading false information, lowering prices, increasing prices, and disrupting the market.

- Selling state prohibited goods.

Committing a crime in one of the above cases shall be punished by imprisonment from 6 months to 5 years and a fine of up to 50,000 VND or one of those two penalties. In serious cases, the punishment shall be up to 20 years in prison, life imprisonment or the death penalty and part or all of the property shall be confiscated [5, Article 6].

Thus, during this period, tax evasion was defined as one of the economic crimes, and the law determined the danger to society of tax evasion. The Decree also strictly stipulates sanctions for tax evasion in particular and acts of violating the economic regime in general. The penalty applied to this crime is imprisonment from 6 months to 5 years or a fine of up to 50,000 VND, in serious cases, the penalty is up to 20 years in prison, life imprisonment or death penalty. These provisions are the legal basis for criminal handling of acts of violating the economic regime in general and tax evasion in particular, contributing to the fight against tax evasion crimes.

In 1982, in order to adapt to the development of the socio-economic situation and on the basis of the 1980 Constitution, the Ordinance on the punishment of speculation, smuggling, counterfeiting, and illegal business was issued on June 30, 1982. In Clause 1, Article 6 of this Ordinance, tax evasion is defined as one of the objective acts of the crime of illegal business:

Anyone who conducts business without a license or not in accordance with the permitted content, evades taxes , does not list prices, raises prices higher than the listed prices, does not register trademarks, illegally uses trademarks or uses other tricks to deceive State agencies and consumers shall be subject to non-custodial reform from three months to two years, or to imprisonment from three months to two years, and shall be fined three times the value of the illegal goods [12, Article 6].

Thus, tax evasion is increasingly defined. In the 1982 ordinance on the punishment of speculation, smuggling, counterfeiting, and illegal business, tax evasion is considered one of the objective acts of illegal business, in the group of crimes that violate economic management order. And those who commit illegal business (including tax evasion) must always be subject to a fine as a mandatory penalty and must undergo non-custodial reform or imprisonment. Thus, during this period, lawmakers focused on measures

Economic sanctions for tax evasion are necessary because they violate economic order and therefore affect the economic well-being of the offender.

However, during this period, criminal regulations were not yet centralized and unified in one document, and tax evasion was not yet defined as a specific crime.

1.5.2. From 1985 to 1999

In 1985, at the 7th session of the National Assembly, the first Penal Code of our country was passed. It is a sharp tool of the proletarian dictatorship State to protect the achievements of the revolution, protect the socialist regime, protect national security and social order and safety, protect the legitimate rights and interests of citizens, fight against and prevent all criminal acts, contributing to the completion of two strategic tasks: successfully building socialism and firmly protecting the socialist Fatherland of Vietnam. This Penal Code inherits and develops the Penal Code of our State in previous legal documents. In which, the crime of tax evasion has been defined as a specific crime in the group of economic crimes. Article 169 of the 1985 Penal Code stipulates the crime of tax evasion as follows: “Anyone who evades taxes in large amounts or has been administratively sanctioned but continues to violate shall be subject to reform without detention for up to one year or imprisonment from three months to three years” [19] .

Subsequently, the Code was amended and supplemented in 1989, 1991, and 1992, and the provisions on tax evasion were also supplemented in a more specific direction, expanding the scope and increasing the penalties applied to tax evasion. According to the 1992 amended law, Article 169 stipulates the crime of tax evasion as follows:

1. Anyone who evades taxes in large amounts or has been administratively sanctioned but continues to violate shall be subject to imprisonment from six months to five years.

2. Committing tax evasion on a very large scale or having been convicted but not yet had the sentence expunged for tax evasion or for one of the crimes specified in Articles 96a, 97, 165, 166, 167, 168, 173 and 183 or

In other particularly serious cases, the offender shall be sentenced to imprisonment from three to twelve years.

According to the provisions of the law through the years of amendment, one of the signs to determine the crime of tax evasion is the sign of "tax evasion in large quantities". However, the law does not clearly stipulate what is tax evasion in large quantities, and has not been specifically quantified in the Law. According to Joint Circular No. 11/TTLT dated November 20, 1990 of the People's Court, People's Procuracy, Ministry of Interior and Ministry of Justice guiding the handling of tax evasion acts: Tax evasion in large quantities is tax evasion with the tax amount equivalent to the value of 5 tons of rice or more (point 4 - Joint Circular No. 11). Then, to adapt to the new situation, Joint Circular No. 06 dated September 20, 1996 of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of the Interior, and the Ministry of Justice replaced Circular No. 11, providing guidance on handling tax evasion as follows: "A person who evades tax in an amount from fifty million VND to less than one hundred and fifty million VND shall be considered to have evaded tax in a large amount and shall be prosecuted for criminal liability under Clause 1, Article 169 of the Penal Code". This provision is more specific to ensure uniform application.

Chapter 2

TRIAL OF TAX EVASION IN HANOI CITY

2.1. Requirements to ensure the lawful trial of tax evasion crimes

Trial is the Court's action, based on the circumstances of the case and the provisions of the law, to determine whether a person is a criminal or not, which article of the Penal Code stipulates the crime and corresponding to the crime they have committed, the Court decides on the punishment for them. Therefore, to ensure the trial of the right person, the right crime, and the right law, the Court must carry out the activity of determining the crime and deciding on the right punishment.

2.1.1. Must determine the correct crime

To accurately determine the crime of tax evasion, it is necessary to clearly understand what the crime is, what it includes, which agency has the authority... and what bases must be used when determining the crime?

2.1.1.1. Concept and characteristics of crime determination

Determination of crime is an important stage in the process of applying the Penal Code, one of the measures to bring the Penal Code into social life, contributing to improving the effectiveness of the fight against crime, thereby contributing to the implementation of the criminal policy of our Party and State. Determination of crime is the legal confirmation of the conformity (identity) between the socially dangerous act committed in objective reality and the signs in the corresponding criminal procedure prescribed in the Penal Code. In other words, Determination of crime is the determination of a specific act committed that fully satisfies the signs of the criminal procedure of which crime among the crimes prescribed in the Penal Code.

The crime has the following characteristics:

Comment