First, loan service belongs to the taxable scope of value-added tax.
The Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Comprehensively Promoting the Pilot Project of Changing Business Tax to Value-added Tax (Caishui [2016] No.36, hereinafter referred to as "Document No.36") stipulates that the taxable behaviors of financial services include loan services (including financing after sale and leaseback), direct charging financial services, insurance services and financial commodity transfer.
(A) the specific definition of loan services
Loan refers to the business activities of lending funds to others to obtain interest income. Including:
1 Income from various occupied and borrowed funds. Including: interest income (guaranteed income, remuneration, capital occupation fee, compensation, etc. ) Interest income from credit card overdraft, interest income from buying and selling financial products, interest income from margin financing and securities lending during the holding period of financial products (including maturity).
2 financing sale and leaseback. Enterprises engaged in financing sale and leaseback business shall pay value-added tax according to loan services when leasing assets to lessees.
3. Interest and interest income obtained from bills, penalty interest, bill discount, lending and other businesses.
_4 Fixed profit or guaranteed profit charged by monetary capital investment.
(2) Loan services are regarded as sales.
In addition to the above clear definition of loan service, don't forget that the borrowing of funds needs to be regarded as sales. According to Circular 36, services provided by units or individual industrial and commercial households to other units or individuals free of charge (such as providing loan services free of charge, etc.). ) are regarded as sales services, except for public welfare undertakings or for the public.
Why is it so stipulated? In fact, from the perspective of tax design and strengthening tax collection and management, it can not only reflect the fairness of tax collection, but also plug tax loopholes and prevent taxpayers from evading taxes by using the provision of no tax for unpaid acts.
(3) Summary
1. Regardless of whether the loan principal belongs to a financial enterprise or not, all acts of borrowing funds and obtaining interest income are taxpayers who should pay VAT.
2. "Other individuals" are neither "units" nor "individual industrial and commercial households", and their behavior of lending their own funds to enterprises for free is not regarded as sales services, and there is no tax obligation to generate value-added tax.
3. Free loans between enterprises or free loans from enterprises to individuals need to be regarded as sales and paid VAT.
Two, the behavior of free lending between enterprise groups is tax-free.
Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Defining the Policy of Exempting Old-age Institutions from Value-added Tax (Cai Shui [2019] No.20, hereinafter referred to as "Document No.20"), from February +0, 2065438 to February 365438, for enterprises within enterprise groups (the.
After the comprehensive reform of the camp, no matter between affiliated enterprises, affiliated enterprises and non-affiliated enterprises, as long as they provide financial services to each other free of charge, they should pay VAT as sales. Due to the needs of internal fund management and use of enterprise groups, the free use of funds between parent and subsidiary companies exists objectively, and business owners also think that all their money is only used in a different place but they have to pay taxes. The State issued Circular No.20 in time, which solved the problem of value-added tax on the use of funds between units within enterprise groups.
(1) Applicable conditions of the policy
According to the provisions of Circular No.20, there are two situations in which capital lending between units is exempted from value-added tax:
1. The main body of the loan must be the enterprise within the enterprise group (including the enterprise group), that is to say, it includes the loan from the enterprise group company to the member units and the loan between the member units within the enterprise group.
2. The characteristic of borrowing must be interest-free borrowing.
(2) About "enterprise groups"
The interest-free loan in Circular 20 is easy to understand, but the tangled problem lies in the concept of "enterprise group". So, how to define "enterprise group"? Is it enough for an enterprise to declare itself as an enterprise group, or is it necessary to have certain procedures in the industrial and commercial bureau to be considered an "enterprise group"?
1. Substantive elements
According to the Notice of the State Administration for Industry and Commerce on Printing and Distributing the Interim Provisions on the Registration Management of Enterprise Groups (Industrial and Commercial Enterprise Zi No.59 [1998]), an enterprise group refers to an enterprise with a certain scale, which is composed of parent companies, subsidiaries, joint-stock companies and other member enterprises or institutions with capital as the main link and peers as the standard. The articles of association of an enterprise group shall be signed or approved by all members.
2. Procedural requirements
According to the Notice of the State Administration of Market Supervision on Doing a Good Job in Linking Four Administrative Licenses, such as Cancellation of Approval and Registration of Enterprise Groups (Jian [20 18] 139), the issuance of enterprise group registration certificates is cancelled, and local industrial and commercial and market supervision departments no longer register enterprise groups separately and issue enterprise group registration certificates. It is required that the industrial and commercial and market supervision departments at all levels, after canceling the approval and registration of the enterprise group, the parent company of the group shall publicize the name of the enterprise group and the information of the group members to the public through the national enterprise credit information publicity system.
An enterprise as a legal person may use the words "group" or "(group)" before the organizational form in the name, and the enterprise is the parent company of the enterprise group. The name of an enterprise group shall be consistent with the administrative division, brand name, industry or business characteristics of the parent company name. A wholly-owned or holding subsidiary of the parent company or a joint-stock company authorized by the parent company may be named after the name or abbreviation of the enterprise group.
(3) Case analysis
Example 1:M Company is a subsidiary of Group A (established according to the Interim Provisions on the Administration of Enterprise Group Registration). In the course of the company's business development, in order to solve the shortage of funds of M company, A company borrowed 2 million yuan from M company, and the contract stipulated interest-free loan. The two sides reached an agreement and signed a loan agreement. Is it necessary for Company A to pay VAT like a sales loan?
Analysis: According to Circular No.20, Company A is exempt from value-added tax if it borrows funds between subsidiaries M within an enterprise group for free. Of course, if Company M borrows money from Company H, another subsidiary of Company A, it is also eligible for tax exemption, because they are all internal subsidiaries of Group A. ..
Example 2: Due to the need of business development, the business personnel of Company B went to the Industrial and Commercial Bureau to handle the new company C .. Company C is a wholly-owned subsidiary of Company B, and Company B borrowed 20 million yuan from Company C for business needs, and the loan contract stipulated interest-free loan. Is it necessary to pay VAT as sales?
Analysis: Circular 20 only gives enterprise groups this privilege, and interest-free capital borrowing between affiliated enterprises and other non-enterprise group affiliated enterprises is still regarded as sales and VAT is levied. Therefore, although Company C is a wholly-owned subsidiary of Company B, it is not an enterprise group. Therefore, Company B's interest-free borrowing from its subsidiary C needs to be treated as sales and needs to pay VAT. Interest income is calculated according to the bank's interest rate for similar loans in the same period.
Three, the enterprise group unified loan and repayment business is exempt from value-added tax.
Circular 20 only exempts the funds occupied by internal units of enterprise groups from VAT. However, in practice, many industrial companies generally invest in or participate in a number of enterprises (affiliated enterprises), and the capital exchanges between these affiliated enterprises are also very frequent. If there is no interest on capital transactions, it will not be conducive to the efficiency of the daily fund management of the group. If interest is paid, the VAT input tax generated by interest income cannot be deducted, which will increase the tax burden of the Group. So, is there a better way to solve this problem? In Annex 3 of Document No.36, Provisions on the Pilot Transition Policy of Changing Business Tax to Value-added Tax, the relevant policies and regulations on the unified borrowing and repayment business of enterprise groups have solved the tax burden problem of interest-bearing loans between units within enterprise groups.
(1) policy stipulates that
In Annex 3 of Circular No.36, Provisions on the Pilot Transition Policy of Changing Business Tax to Value-added Tax, in the unified borrowing and unified repayment business, the interest charged by enterprise groups or core enterprises of enterprise groups and financial companies affiliated to the group shall be exempted from value-added tax at a rate not higher than the loan interest rate paid to financial institutions or the coupon rate level of bonds paid.
If the interest charged by the unified borrower to the fund user is higher than the loan interest rate paid to the financial institution or the coupon rate level of the bonds paid, the value-added tax shall be paid in full.
There are two main modes of unified borrowing and unified return business:
1. After an enterprise group or a core enterprise in an enterprise group borrows money from a financial institution or issues bonds to foreign countries to obtain funds, it distributes the borrowed funds to subordinate units (including independent accounting units and non-independent accounting units, the same below), and collects the repayment of the principal and interest of the financial institution or bond purchaser from the subordinate units. That is: (1) the flow of loan funds: bank → group enterprise A→ subordinate enterprises; (2) The flow of returned funds: subordinate enterprises → group enterprise A→ bank. Or, (1) loan funds flow: bank → group core enterprise B company → subordinate enterprises (including the group); (2) Return capital flow: subordinate enterprises (including groups) → group core enterprise B → banks.
2. After an enterprise group borrows money from a financial institution or issues bonds abroad to obtain funds, the financial company affiliated to the group signs a unified loan contract with the enterprise group or subordinate units within the group and allocates funds, collects principal and interest from the enterprise group or subordinate units within the group, and then transfers it to the enterprise group, and the enterprise group returns the business of the financial institution or bond purchaser in a unified way. That is, (1) the flow of borrowing funds: bank → group enterprise A→ financial company D→ subordinate companies (including groups); (2) Flow direction of returned funds: subordinate companies (including groups) → finance company D→ group enterprise A→ bank.
(2) Applicable conditions
1. The premise must be a group enterprise. Based on the articles of association of the group, the parent company of the group publicizes the name of the enterprise group and the information of the group members to the society through the national enterprise credit information publicity system. The articles of association of an enterprise group shall be signed or approved by all members.
It is worth noting that some companies have invested in many subsidiaries abroad and like to declare themselves as group companies. Such a company is not a real group company and may not enjoy preferential policies.
2. Funds need to come from outside. Entrusted loans within the group do not conform to unified borrowing and unified repayment.
3. The borrower is a group or core enterprise or a financial company affiliated to the group.
4. Funds are only allocated to one floor. In other words, funds can only be allocated to subordinate companies by unified borrowers. If the subordinate company is redistributed to other companies, it can't enjoy the tax exemption, and it should pay the value-added tax.
5. Intra-group loan interest must be less than or equal to the loan interest of financial institutions. If the interest rate allocated by Uni-President borrower to other companies in the group is higher than the interest rate paid by Uni-President borrower to financial institutions, you cannot be exempted from VAT, and you need to pay VAT in full. Note that financial institutions here refer to financial institutions that borrow money from outside.
6. The funds must be returned by the unified borrower. For example, although finance company D signed a loan contract with its subsidiary and collected the principal and interest, it could not directly return the funds to the bank, but to the group company, which then returned them to the bank.
(3) Case analysis
Example 3: Enterprise Group A obtained a loan of 20 million yuan from the bank with an interest rate of 5%. Lend B500 million yuan to the group subsidiary respectively, with an interest rate of 5%; 500 million yuan, with an interest rate of 6%; D100000 yuan, with interest rate of 5%, and subsidiary D lent Sun Company H Company 5 million yuan with interest rate of 5%. Analysis:
1. Flow of loan funds: bank → group enterprise A→ subordinate enterprises;
2. Direction of capital return: subordinate enterprise → group enterprise A→ bank.
Example 4: B, the core enterprise of the enterprise group, obtained a loan of 20 million yuan from the bank with an interest rate of 5%. Loaned to the group subsidiary C500,000 yuan respectively, with an interest rate of 5%; D company 5 million yuan, the interest rate is 8%; E100000 yuan, with the interest rate of 5%. Subsidiary E lends the borrowed money to other subsidiaries of the Group, Company F, with the interest rate of 5%. Analysis:
1. Flow of loan funds: bank → Company B → subordinate enterprises;
2. Return direction of funds: subordinate enterprises → company B → bank.
Example 5: Enterprise Group A obtained a loan of 20 million yuan from the bank with an interest rate of 5%, and the funds were paid by Group A to finance company D, which signed a unified loan repayment contract with the companies in the group. Lend 5 million yuan to the parent company of enterprise A group respectively, with an interest rate of 5%; Group subsidiary B500 million yuan, with an interest rate of 5%; Company C is RMB 6,543,800,000 yuan, with an interest rate of 5%. Company C lends it to Company E, a subsidiary of the group, with an interest rate of 5%. Analysis:
1. Flow direction of borrowing funds: bank → group enterprise A→ financial company D→ subordinate companies (including groups);
2. Flow direction of returned funds: subordinate companies (including groups) → financial company D→ group enterprise A→ bank.
Four. Applicable tax rate and invoice issuing
(1) tax rate
The interest charged by enterprises actually belongs to financial services. The applicable VAT rate for financial services is 6%, and the collection rate is 3%. Therefore, the VAT rate for ordinary taxpayers to obtain loan interest income is 6%, and the VAT rate for small-scale taxpayers to obtain loan interest income is 3%.
(two) whether the loan interest paid can be deducted.
According to the provisions of Circular 36, the input tax of "purchased loan services, catering services, residents' daily services and entertainment services" cannot be deducted. Therefore, enterprises cannot deduct the input tax when accepting loan services. At the same time, when the taxpayer accepts the loan service and pays the lender the investment and financing consulting fee, handling fee and consulting fee directly related to the loan, the input tax amount cannot be deducted from the output tax amount. Of course, other investment and financing consulting fees, handling fees, consulting fees and other fees unrelated to loan services can be deducted.
(3) How to issue a loan service invoice
Although invoicing is a relatively simple problem, how to invoice loan services still puzzles financial personnel in practice. The reason is that the input tax of the loan service mentioned in the above article cannot be deducted. Naturally, people think that if the input tax cannot be deducted, special VAT invoices cannot be issued. In fact, there are only two specific situations in which a special VAT invoice cannot be issued for providing services, namely: 1 selling services, intangible assets or real estate to consumers; Taxable acts exempt from value-added tax are applicable.
Therefore, although the loan service cannot be deducted, the enterprise can issue a special VAT invoice. In practice, many banks issue invoices according to customers' needs. If customers want to issue special VAT invoices, banks will generally issue special VAT invoices. However, because the input tax cannot be deducted, if the enterprise obtains the special VAT invoice for certification deduction, don't forget to transfer the input tax at the same time during the certification deduction period, otherwise there will be the problem of stranded tickets. From the practical work efficiency, since it cannot be deducted, there is no need to obtain a special VAT invoice. It is suggested that the enterprise should ask the other party to issue an ordinary VAT invoice when paying the loan interest, otherwise it will waste time and energy if the tax inspection needs to provide the tax bureau with an explanation that the loan interest has not been deducted.