I. Handling of turnover tax involved in debt restructuring
Debtors often involve turnover taxes such as value-added tax and business tax in debt restructuring. According to the Provisional Regulations on Value-added Tax and its detailed rules for implementation, when the debtor pays off his debts with physical assets, he should not only carry out financial treatment of debt restructuring, but also calculate and pay value-added tax. The payment of business tax mainly occurs in the debt restructuring of intangible assets such as patent rights, because this debt restructuring is essentially the transfer of intangible assets from debtors to creditors, and business tax should be calculated and paid in accordance with the provisions of the provisional regulations on business tax and the implementation rules. In addition, if the debt restructuring involves taxable items of consumption tax, the consumption tax should also be calculated and paid in accordance with the Provisional Regulations on Consumption Tax and its implementation rules.
1. When the debtor pays off debts with raw materials, finished products and other inventories, it shall be regarded as sales and pay VAT according to Article 4 of the Detailed Rules for the Implementation of the Provisional Regulations on VAT. If it belongs to self-produced taxable consumer goods, it shall also pay consumption tax in accordance with regulations. Taxable sales should be correctly determined when calculating taxes. If there is sales, value-added tax shall be paid according to the sales amount; if there is no sales amount, the sales amount shall be determined in the following order: 1) It shall be determined according to the average sales price of similar goods of the taxpayer in the current month; (two) according to the taxpayer's recent average sales price of similar goods; 3) According to the component tax value, the formula is: component tax value = cost ×( 1+ cost profit rate); If the goods are subject to consumption tax, the taxable value of the composition = [cost ×( 1+ cost profit rate) ]/( 1- consumption tax rate). When calculating and paying consumption tax, if it is levied ad valorem, it shall be calculated and paid according to the highest sales price of similar goods; If it belongs to a specific amount, it shall be paid according to the transferred amount and the applicable tax amount. For example, enterprise A owes enterprise B RMB 6,543,800+,and enterprise A can't pay it on time due to financial difficulties, and both parties agree to pay off the debt with products through negotiation. The actual cost of the product is 600,000 yuan, and the market sales price (fair value) excluding tax is 800,000 yuan. Both enterprise A and enterprise B are general VAT taxpayers, and their products are taxable consumer goods, with the VAT rate of 17% and the consumption tax rate of 10%. In this case, enterprise A, as a debtor, pays off its debts with its own products, which is regarded as sales from the perspective of tax law. Therefore, according to the provisions of the tax law, enterprise A should levy a value-added tax output of 654.38+0.36 million yuan (800,000 yuan× 654.38+07%) and a consumption tax of 80,000 yuan (800,000 yuan× 654.38+00).
2. When the debtor repays the debt with intangible assets, it belongs to the transfer of intangible assets, and the business tax shall be calculated and paid according to the provisions of the Provisional Regulations on Business Tax and the fair value of the repaid intangible assets.
3. When the debtor pays off debts with fixed assets (movable property), it shall calculate and pay VAT as used fixed assets in accordance with the provisions of the Provisional Regulations on VAT. According to the Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Several Issues Concerning the Implementation of VAT Reform in China (Caishui [2008] 170), since June 5438+ 10/day, 2009, taxpayers have sold their used fixed assets (hereinafter referred to as used fixed assets). Value-added tax should be levied according to different situations: (1) (2) Taxpayers who were not included in the pilot project to expand the scope of VAT deduction before 6438 and sold their own fixed assets purchased or made before 65438+February 3, 20081day will be subject to VAT at a reduced rate of 4%; (3) Taxpayers who have been included in the pilot project of expanding the scope of VAT deduction before June 5438+February 3, 2008, before the pilot project of expanding the scope of VAT deduction in this area, sell their own purchased or self-made fixed assets, and the VAT is levied at a reduced rate of 4%; The sales of self-use fixed assets purchased or made by ourselves after the pilot project to expand the scope of VAT deduction in this region shall be subject to VAT at the applicable tax rate. It is particularly important to note that the Provisional Regulations on Value-added Tax and its implementing rules stipulate that the tax is based on sales, excluding the value-added tax payable. Therefore, when calculating tax, the amount of debt paid should be converted into sales excluding tax first, and then multiplied by the tax rate (collection rate), and the output tax amount = debt paid amount ÷( 1+ tax rate or collection rate) × tax rate or collection rate.
4. When the debtor pays off his debts with fixed assets (real estate such as houses and buildings), he shall pay business tax according to the sales of real estate in accordance with the provisions of the Provisional Regulations on Business Tax. Among them, the self-built real estate should be taxed on the amount of debt, and the purchased real estate should be taxed on the difference between the amount of debt and the purchase price according to the provisions of Caishui [2003] No.016.
5. If the creditor is a financial enterprise, when modifying other conditions of debt restructuring, the creditor shall correctly divide the principal and interest in future receivables according to the debt restructuring agreement, and pay business tax on the interest contained in future receivables. Because the creditors of financial enterprises need to confirm the interest receivable after the extension in advance on the debt restructuring date when they make concessions to the debtor to modify other conditions of debt restructuring, so as to calculate the due amount receivable and debt restructuring losses. According to accounting standards, this part of interest is included in "medium and long-term loans-debt restructuring loans" on the debt restructuring date. In this way, the future interest income will be capitalized in advance, thus reducing the tax basis of its future business tax. Therefore, accidental income (interest) should also be calculated and paid business tax.
In addition, in debt restructuring, the calculation and payment of value-added tax, consumption tax and business tax should also be calculated and paid in accordance with the Provisional Regulations on Urban Maintenance and Construction Tax and the Additional Interim Provisions on the Collection of Education Fees, with the total amount of value-added tax, business tax and consumption tax actually paid as the tax basis and applicable tax rate.
Two. Income tax treatment in debt restructuring
Because the enterprise income tax law adopts the mode of proper separation of tax law and accounting when determining taxable income, debt restructuring will have a certain impact on enterprise income tax. In order to standardize the income tax treatment of debt restructuring gains and losses, State Taxation Administration of The People's Republic of China promulgated the Measures for the Income Tax Treatment of Enterprise Debt Restructuring, which clarified the income tax treatment methods of creditors and debtors in the process of debt restructuring.
1. When the debtor pays off the debt with cash lower than the book value of the debt, the difference between the taxable cost of debt restructuring and the cash paid shall be recognized as the income from debt restructuring and included in the taxable income of the enterprise; The creditor shall recognize the difference between the taxable cost of the restructured creditor's rights and the cash received as the current debt restructuring loss and offset the taxable income.
2. When the debtor pays off the debt with non-cash assets, it should be divided into two economic businesses: transferring the non-cash assets at fair value, and paying off the debt with an amount equivalent to the fair value of the non-cash assets for income tax treatment. The debtor shall recognize the difference between the fair value of non-cash assets used for liquidation and their taxable costs as gains or losses from asset transfer, and recognize the difference between the taxable costs of debt restructuring and the fair value of non-cash assets used for liquidation (including taxes and fees related to the transfer of non-cash assets) as gains from debt restructuring and include them in the enterprise. The taxable cost of non-cash assets acquired by creditors shall be determined according to the fair value of the assets (including taxes and fees related to the transfer of assets), so as to calculate the depreciation expense of fixed assets, amortization expense of intangible assets or sales cost of carried-over goods that can be deducted before enterprise income tax. At the same time, the difference between the taxable cost of restructuring creditor's rights and the fair value of non-cash assets received (including taxes and fees related to the transfer of assets) is recognized as the current debt restructuring loss, and the taxable income is reduced.
3. When the debt is converted into share capital, unless otherwise stipulated in enterprise restructuring or liquidation, the debtor shall recognize the difference between the book value of the restructured debt and the fair value of the equity enjoyed by the creditor due to the abandonment of creditor's rights as the income from debt restructuring and include it in the taxable income of the current period; Creditors shall recognize the fair value of the equity they enjoy as the taxable cost of investment, and recognize the difference between the taxable cost of restructuring creditor's rights and the fair value of the equity they enjoy as the current debt restructuring loss to offset the taxable income.
4. When modifying other debt conditions for debt restructuring, the debtor shall write down the taxable cost of the restructured debt to the future payable amount, and the write-down amount shall be recognized as the current debt restructuring income and included in the current taxable income; The creditor will write down the taxable cost of the creditor's right to the future receivable amount, and the amount written down will be recognized as the debt restructuring loss in the current period, which will offset the taxable income. The relevant tax laws only stipulate that the taxable cost of restructured debt is greater than the future payable amount, but it is not clear that the taxable cost of restructured debt is less than the future payable amount. If this happens, it should be a free donation from the debtor to the creditor in nature, and the debtor is not allowed to deduct the donation from the taxable income; Creditors should include the part of donations accepted in taxable income. It should be noted that when modifying other debt conditions of debt restructuring, when the debtor is involved in contingent payable amount and the creditor is involved in contingent receivable amount, according to the principle of real occurrence and certainty in the Measures for Pre-tax Deduction of Enterprise Income Tax, contingent payable (received) amount may not necessarily occur, and its amount is also predicted in advance. Therefore, when calculating the gains or losses of debt restructuring, the debtor and creditor may not include contingent payable (received) amount.
5. In the debt restructuring business, if the income from asset transfer or debt restructuring confirmed by the enterprise due to paying off debts with non-cash assets or creditors' concessions is large and it is indeed difficult to pay taxes at one time, it can be included in the taxable income of each year on average within a period of not more than 5 tax years with the approval of the competent tax authorities.
Three. Handling of other taxes and fees involved in debt restructuring
1. stamp duty
According to the Provisional Regulations on Stamp Duty, all books purchase and sale contracts and property rights transfer contracts are subject to stamp duty. Therefore, in addition to the debt restructuring ruled by the court, no matter what other debt restructuring methods, creditors and debtors must negotiate and finally sign a written agreement on debt restructuring. This kind of debt restructuring agreement can belong to the nature of sales contract, property ownership transfer certificate or both according to different debt restructuring methods, so stamp duty should be calculated and paid according to different contract nature and applicable tax rate.
2. Deed tax
When the debtor pays off his debts with his own house and land, according to the Provisional Regulations on Deed Tax and its detailed rules for implementation, it is regarded as the transfer of land use right and house ownership, and its successor is the taxpayer. Therefore, when this debt restructuring occurs, the creditor as the receiver should pay the deed tax in accordance with the provisions of the tax law in addition to the accounting treatment related to debt restructuring in accordance with accounting standards.
3. Property tax
When the debt-paying assets acquired by creditors are houses and buildings, the property tax shall be paid on the basis of the recorded value stipulated in the accounting standards in accordance with the relevant provisions of the property tax.
To sum up, in the debt restructuring business, both creditors and debtors have certain tax obligations. Therefore, enterprises should fully consider the impact of tax burden cost on the profit and loss of debt restructuring when making debt restructuring decisions. At the same time, due to the provisions of the enterprise income tax law, taxpayers' bad debt losses must meet certain conditions (that is, they cannot be recovered after more than three years) and can be deducted before tax after approval by the tax authorities. In the year of reorganization, the bad debt loss can be used as the reorganization loss to offset the taxable income of the enterprise in that year, which can offset the income tax expenditure in advance and ease the pressure on liquidity. Therefore, the use of debt restructuring to deal with bad debts has also found new tax planning space for enterprises.