Item (2) of Article 2 of State Taxation Administration of The People's Republic of China Announcement No.29 of 20 14 stipulates that if an enterprise receives assets allocated by shareholders and treats them as income, it shall be included in the total income at fair value, and the enterprise income tax shall be calculated and paid, and the tax basis of the assets shall be determined at fair value. The following are the tax planning skills and typical case analysis that I brought to you. Welcome to read.
(A) the legal basis for tax planning
1, Item (1) of Article 2 of the Announcement of State Taxation Administration of The People's Republic of China on Several Issues Concerning the Taxable Income of Enterprise Income Tax (State Taxation Administration of The People's Republic of China Announcement No.2014 No.29) stipulates that an enterprise receives assets allocated by shareholders (including assets donated by shareholders, assets donated by former non-tradable shareholders and new non-tradable shareholders in the process of share-trading reform, the same below). Where the contract or agreement stipulates that the capital (including capital reserve) has been actually treated in accounting, it shall not be included in the total income of the enterprise, and the enterprise shall determine the tax basis of the asset at fair value.
Item (2) of Article 2 of State Taxation Administration of The People's Republic of China Announcement No.29 of 20 14 stipulates that if an enterprise receives assets allocated by shareholders and treats them as income, it shall be included in the total income at fair value, and the enterprise income tax shall be calculated and paid, and the tax basis of the assets shall be determined at fair value.
According to the provisions of this article, an enterprise accepts the tax treatment of assets allocated by shareholders, which can be divided into two situations. In the first case, it is treated as accepting investment, that is, it does not need to pay enterprise income tax as income; In the second case, it is treated as income, that is, it is included in the taxable income according to the donation accepted.
2. Article 8 of the Notice on Doing a Good Job in the Annual Report of implementation of accounting Standard Enterprises in 2008 (Accounting Letter No.200860) stipulates that donations and debt exemptions accepted by enterprises that meet the recognition conditions in accordance with accounting standards should usually be recognized as current income. If you accept the direct or indirect donation from the controlling shareholder or the subsidiary of the controlling shareholder, judging from the economic essence, it belongs to the capital investment of the controlling shareholder in the enterprise, and it should be regarded as an equity transaction, and the relevant profits should be included in the owner's equity (capital reserve).
3. Article 6 of Interpretation of Accounting Standards for Business Enterprises No.5: Q: If an enterprise accepts non-controlling shareholders (or subsidiaries of non-controlling shareholders) to pay debts, exempt debts or donate directly or indirectly, how should it be accounted for?
Answer: If an enterprise accepts debt repayment, debt exemption or donation on its behalf and meets the conditions for income recognition according to the Accounting Standards for Business Enterprises, it should usually be recognized as the current income; However, if an enterprise accepts a non-controlling shareholder (or a subsidiary of a non-controlling shareholder) to directly or indirectly pay off debts, forgive debts or donate, and the economic essence shows that it belongs to the non-controlling shareholder's capital investment in the enterprise, the relevant profits should be included in the owner's equity (capital reserve).
In the event of bankruptcy and reorganization of an enterprise, if its non-controlling shareholders transfer their shares to the creditors of the enterprise due to the implementation of the bankruptcy and reorganization plan approved by the people's court, the enterprise shall include the transferred shares of the non-controlling shareholders in the owner's equity (capital reserve) according to their fair values on the transfer date, reduce the book value of exempted debts, and include the difference between the fair value of transferred shares and the book value of exempted debts in the current profits and losses. If the controlling shareholder transfers part of the equity of the enterprise in accordance with the bankruptcy reorganization plan to pay debts to the creditors of the enterprise, the enterprise shall also be treated according to this principle.
It can be seen that the investment of both controlling shareholders and non-controlling shareholders in the Accounting Standards for Business Enterprises can be divided into two situations. Those that meet the conditions of income recognition are treated as income, otherwise they are treated as capital (capital reserve), which is consistent with the provisions of Announcement No.29. The tax policy of Announcement of State Taxation Administration of The People's Republic of China on Several Issues Concerning Taxable Income of Enterprise Income Tax (State Taxation Administration of The People's Republic of China Announcement No.2014 No.29) is consistent with the definition of accounting standards for assets allocated by shareholders.
(2) Tax planning scheme
In order to save the tax burden, the most favorable tax planning tool for enterprises is contract, that is, enterprises must make tax planning in the process of signing contracts or through contracts. In this case, the tax planning skill is that an enterprise must sign an investment or capital increase agreement when it receives the assets transferred by shareholders, and it is clear in the investment contract or capital increase agreement that the investment or capital is treated as capital (including capital reserve), but it cannot sign a donation agreement and treat it as donation.
[Analysis: Tax planning skills for an enterprise to accept shareholders' assets]
1, case introduction
Group company A invested RMB100000 yuan to establish asset management company B; A month later, Group A reached an agreement with Asset Management Co., Ltd. B. It was clearly stated in the agreement that Group A included the land use right with monetary capital of 2 million yuan and assessed value of 3064 1 10,000 yuan into Asset Management Co., Ltd. B. Please analyze how to make tax planning to minimize the tax burden of Enterprise B.
2, tax planning skills
In this case, Company B accepts the tax planning of assets allocated by Group A, which is mainly realized by signing a contract. There are two kinds of contract signing skills:
The first one is that group company A and asset management company B sign an agreement for free transfer of assets or a donation agreement.
The second is that group company A signs an investment or capital increase agreement with asset management company B, which clearly states that group company A makes capital increase to asset management company B with monetary capital of 2 million yuan and land use right with an estimated value of 3064 1 10,000 yuan. After capital increase, asset management company B has paid-in capital of 3 million yuan and capital reserve of 3064 1 10,000 yuan.
3. Tax burden analysis of tax planning skills.
According to the first contract signing scheme, according to Item (2) of Article 2 of State Taxation Administration of The People's Republic of China Announcement No.2014, if an enterprise receives the assets allocated by shareholders, whatever is treated as income, it shall be included in the total income at fair value, and the enterprise income tax shall be calculated and paid, and the tax basis of the assets shall be determined at fair value. Based on this regulation, enterprise B should pay enterprise income tax of 3064 1 10,000 yuan × 25% = 76,602.5 (10,000 yuan).
According to the second contract signing skill, according to Item (1) of Article 2 of State Taxation Administration of The People's Republic of China Announcement No.2014, if an enterprise receives assets allocated by shareholders (including assets donated by shareholders, listed companies receive assets donated by former non-tradable shareholders and new non-tradable shareholders in the process of share-trading reform, and shareholders give up their shares, the same below), all contracts and agreements are agreed as capital (including capital reserve). Then Company B does not pay enterprise income tax of 3064 1 ten thousand yuan ×25%=7660.25 (ten thousand yuan). Therefore, the second contract signing skill saves 76,602,500 yuan in tax compared with the first contract signing skill.
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