situation
Real estate development company was established in March of 20 1 1 year, with registered capital (paid-in capital)100000 yuan. The shareholders registered for industry and commerce and those stipulated in the Articles of Association are all Party A. 201March. When the tax authorities checked the tax payment of the company in 201February, they found that the balance of its "capital reserve" account reached 60 million yuan at the end of the year. In February of 201February, it was verified that Party A invested 24.65 million yuan and Party B invested 24.85 million yuan. The financial personnel of the Company carry out the following accounting treatment according to the receipts and bank drafts of Party A, Party B and Party C (unit: RMB 10,000, the same below):
Debit: Bank 6000.
Loan: the capital reserve is 6000 yuan.
After receiving the above-mentioned money and recording it in the account, the company has neither increased the registered capital nor the number of shareholders, nor changed the ownership structure or handled the industrial and commercial change registration.
analyse
The Notice of People's Republic of China (PRC) State Taxation Administration of The People's Republic of China on Stamp Duty on Capital Account Book (Guo Shui Fa [1994] No.25) stipulates that the tax basis of stamp duty on capital account book is paid-in capital and total capital reserve. If the total amount increases, the increased part will subsidize printing.
Article 6 of the Enterprise Income Tax Law stipulates that the total income of an enterprise includes donation income and other income. Article 21 of the Regulations for the Implementation of the Enterprise Income Tax Law stipulates that donation income refers to monetary assets and non-monetary assets that an enterprise accepts from other enterprises, organizations or individuals free of charge.
The Notice of the Ministry of Finance on Doing a Good Job in the Annual Report of implementation of accounting Standard Enterprises in 2008 (Caihuizi [2008] No.60) stipulates that the capital investment of the controlling shareholder in the enterprise, which is directly or indirectly donated by the controlling shareholder or its subsidiary, should be regarded as equity transaction, and the relevant profits should be included in the owner's equity (capital reserve). Article 6 of the Notice of the Ministry of Finance on Printing and Distributing No.5 Interpretation of Accounting Standards for Enterprises (12) stipulates that if an enterprise accepts non-controlling shareholders (or subsidiaries of non-controlling shareholders) to directly or indirectly pay off debts, forgive debts or donate, and the economic essence shows that it belongs to the capital investment of non-controlling shareholders in the enterprise, the relevant profits will be included in the owner's equity (capital reserve).
According to the above provisions:
1. Stamp duty of RMB 30,000.00 Yuan shall be paid for the increase of "capital reserve" of the company, that is, 6000× 0.05% = 3 (ten thousand Yuan).
2. As Party A is the controlling shareholder of the company, the capital of RMB 24.65 million invested by Party A shall be used as equity transaction, and the relevant profits shall be included in the capital reserve.
3. Since Party B and Party C are not the legal shareholders of the company, after the total contribution of 35.35 million yuan by Party B and Party C is included in the "capital reserve", judging from the economic essence, the monetary assets belonging to the company that have been donated by other individuals for free shall be regarded as the income from donations and incorporated into the total income of the enterprise to declare and pay enterprise income tax.
The company's financial personnel believe that the total capital actually invested by the company's "shareholders" is 70 million yuan, of which Party A contributed 34.65 million yuan, accounting for 49.5%; Party B contributed 24.85 million yuan, accounting for 36.5%; C contributed 6,543,805,000 yuan, accounting for 654.38+05%. Party B and Party C belong to the shareholders of the company, and the capital invested by them is recorded in the "capital reserve", which conforms to the provisions of the financial system and does not need to pay enterprise income tax.
However, although B and C have contributed capital, they are not registered in the company registration authority, and they are not clear shareholders in the company's articles of association, and their shareholder status will not be recognized by the tax authorities. Article 33 of the Company Law clearly stipulates that a company shall register the names of shareholders and their capital contributions with the company registration authority; Where the registered items are changed, the registration of change shall be handled. Without registration or change of registration, it may not confront a third party.
suggestion
In the above cases, B and C are typical "dark stock" investors. Investment in "dark stocks" needs to pay stamp duty and enterprise income tax because, judging from the economic essence, the company has accepted monetary assets given free of charge by other enterprises, organizations or individuals after recording the investment in the owner's equity account "capital reserve". From the perspective of rational planning, there are three ways to deal with "dark stock" investment.
The first method: add 2 shareholders with a registered capital of 60 million yuan, convert "dark shares" into "bright shares", and make the following accounting adjustments according to the industrial and commercial change registration:
Borrow: the capital reserve is 6000 yuan.
Loan: paid-in capital is 6,000 yuan.
After the above adjustment, the shareholders of the company only need to pay stamp duty of 30,000 yuan, and do not need to pay enterprise income tax. Of course, this approach violates the original intention of investors who are unwilling to become "Ming shares" shareholders.
The second method: Party B and Party C first recover the invested capital of 35.35 million yuan, and then Party A will invest it in the company, and at the same time make the following accounting adjustments:
When you get it back,
Borrow: capital reserve-B invests 2485 yuan.
Capital reserve-1050 investment by party c
Loan: bank deposit 3535.
When investing,
Debit: Bank deposit 3535
Loan: capital reserve -A investment of 3535 yuan.
After the above adjustment, since Party A is the controlling shareholder, after the invested capital is included in the "capital reserve", the company only needs to pay the stamp duty of 30,000 yuan, without paying the enterprise income tax.
The third way: the 35.35 million yuan invested by Party B and Party C and the 24.65 million yuan invested by Party A are converted into debt investment, and the following accounting adjustments are made:
Borrow: the capital reserve is 6000 yuan.
Loan: Other payables -A 2465
Other payables -B 2485
Other payables -C 1050.
After the above adjustment, the company does not need to pay stamp duty or enterprise income tax. At the same time, the invested funds can pay interest at a rate not higher than the bank's loan interest rate for the same period, which is deducted before tax. When paying interest and pre-tax deduction, we must pay attention to two points: First, because Party A is the controlling shareholder and belongs to the related party of the company, its "asset-liability ratio" of debt investment of 24.65 million yuan and equity investment of 6.5438+million yuan exceeds 2. 1, therefore, Party A's interest deduction must comply with the Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Tax Policy Issues Concerning the Pre-tax Deduction Standard for Interest Expenses of Related Parties of Enterprises (Cai Shui [2000]