Through the following six cases, Caishuijun analyzes the tax risk points that are easily overlooked in stamp duty payment.
1. Do domestic enterprises have to withhold stamp duty for overseas enterprises?
Case: Company B abroad signed a non-patented technology transfer contract with Company A in China, and Company B transferred the non-patented technology to Company A at a price of 20 million yuan. Company A in China paid the stamp duty according to the title of "property right transfer document", and at the same time "withheld and remitted" the stamp duty for Company B and included this expenditure in the management expenses.
Analysis: According to the Notice on Collecting Stamp Duty on Technology Contracts ([89] Guo Shui Di Zi No.034), the contract concluded by the transfer of patent application right and non-patented technology transfer shall be subject to the tax item of "technology contract", and stamp duty shall not be paid according to the tax item of "property right transfer document".
Moreover, at present, the relevant documents on stamp duty do not specify that domestic enterprises have the obligation to withhold and pay stamp duty for overseas enterprises. When applying for stamp duty declaration and payment for overseas enterprises, overseas enterprises should apply for temporary tax registration to pay stamp duty. If domestic enterprises "withhold and remit" stamp duty for overseas enterprises, overseas enterprises may fail to fulfill their obligation to declare and pay stamp duty, and the stamp duty withheld and remitted by domestic enterprises cannot be deducted as a deduction of enterprise income tax.
Second, how to handle the stamp duty verification and collection procedures?
Case: since 20 10, an industrial enterprise has paid the stamp duty involved in the purchase and sale contract according to 75% of the total sales revenue and purchase amount as tax basis. In 20 16, when the inspection bureau carried out tax inspection on it, it was found that the enterprise could not provide the certification documents for the tax authorities to approve the collection.
Analysis: The Notice of State Taxation Administration of The People's Republic of China on Further Strengthening the Management of Stamp Duty Collection (Guo Shui Han [2004]150) stipulates that local tax authorities shall issue a notice of stamp duty collection to taxpayers, indicating the tax basis for the approved collection and the prescribed tax payment period. At the same time, the Notice on Printing and Distributing the Administrative Measures for the Approved Collection of Stamp Duty of Guangzhou Local Taxation Bureau (Guangzhou Local Taxation Bureau [2009] No.374) stipulates that if stamp duty is approved, the competent tax authorities shall issue the Notice of Tax Matters (Approved Collection of Stamp Duty). Enterprises can't carry out stamp duty verification and collection by themselves, but they need to be audited by tax authorities or directly verified, and they can carry out stamp duty verification and collection with corresponding notices.
3. Can the stamp duty overpaid by mistake be refunded?
Case: Enterprise A wrongly entered the contract amount19 million yuan as190 million yuan when declaring stamp duty on a purchase and sale contract, resulting in an overpayment of stamp duty of 5 1300 yuan, and applied to the tax authorities for stamp duty refund.
Analysis: Some people think that according to Article 24 of the Detailed Rules for the Implementation of the Provisional Regulations on Stamp Duty, anyone who affixes more stamps may not apply for tax refund or offset. Therefore, 5 1300 yuan in the above case should not apply for tax refund.
Actually, it is not. Article 5 of the Provisional Regulations on Stamp Duty stipulates that the taxpayer shall calculate the tax payable according to the regulations, and purchase and affix a stamp (hereinafter referred to as decal) at one time. In order to simplify the procedures of decals, if the tax payable is large or the number of decals is frequent, the taxpayer may apply to the tax authorities and take the method of replacing decals with payment books or collecting and paying them on schedule. Article 21 of the Detailed Rules for the Implementation of the Provisional Regulations on Stamp Duty stipulates that if the taxable amount of a voucher exceeds 500 yuan, the taxpayer shall apply to the tax authorities for filling in a payment book or tax payment certificate instead of decals. Obviously, Article 24 of the Detailed Rules for the Implementation of the Provisional Regulations on Stamp Duty refers to the case that stamp duty is paid by decals. In this case, stamp duty is paid by letters of payment, and Article 24 is not applicable. Therefore, 5 1300 yuan in the above case can apply for tax refund.
4. Are all contracts taxable vouchers for stamp duty?
Case: A company in Guangzhou signed an audit and consulting obligation contract with C accounting firm, with the contract amount of1000000 yuan. Signed a power of attorney for advertising with B TV station that month, and the amount of power of attorney was 2 million yuan. Company A declared and paid stamp duty for all the above 3 million yuan.
Analysis: Article 1 of the Provisional Regulations on Stamp Duty stipulates that all units and individuals who have signed books and received vouchers listed in this Regulation within the People's Republic of China are taxpayers of stamp duty and should pay stamp duty in accordance with the provisions of this Regulation. Therefore, the taxable vouchers that are not listed in the above-mentioned documents should not be subject to stamp duty, that is, the above-mentioned audit and consulting obligation contracts should not be subject to stamp duty. As for the power of attorney signed by Company A and TV station B, Guangdong Local Taxation Bureau's Notice on Stamp Duty Collection of Advertising Contracts of Media Units (Guangdong Local Taxation Bureau [1998] No.44) stipulates that the advertisement recognition book of newspapers and magazines and the power of attorney of TV station are a kind of contract vouchers, and the decals should be calculated according to the stamp duty regulations. Therefore, the above-mentioned advertising power of attorney should pay stamp duty.
5. What are the precautions for handling stamp duty on schedule?
Case: A industrial enterprise has a large production scale, and a large number of commodity sales contracts are signed every month, which requires frequent decals. With reference to the requirements of other tax declaration, corporate finance Lin calculated the stamp duty payable in the current month on a monthly basis without approval or filing, and then made a declaration in the interface of "Non-approved tax declaration" before 15 of each month.
Analysis: According to Article 7 of the Provisional Regulations on Stamp Duty, the tax payable certificate should be affixed when the book is set up or received. Therefore, enterprises that fail to pay the stamp duty on schedule can't report the stamp duty on a monthly basis with reference to other taxes.
The Notice of the Ministry of Finance and State Taxation Administration of The People's Republic of China on Changing the Administrative Measures for Collecting and Paying Stamp Duty on Time (Caishui [2004]170) stipulates that taxpayers can decide whether to use the method of collecting and paying stamp duty on time according to the actual situation if the same kind of tax payable certificate needs to be affixed frequently. The period for aggregate payment is one month. Taxpayers who adopt the method of regular summary payment shall inform the competent tax authorities in advance. Once the payment method is selected, it shall not be changed within one year. In terms of specific implementation, all localities have formulated corresponding management measures, which clearly stipulate the way for taxpayers to "inform the competent tax authorities" and the registration procedures. If taxpayers choose to pay stamp duty in a lump sum on schedule, they should "inform" the tax authorities in a timely manner according to the relevant procedures determined by the local tax authorities, and cannot adopt this method on their own without the relevant "registration" by the tax authorities.
Six, the group company unified purchase of tax stamps can be distributed to the subordinate subsidiaries?
Case: A certain group company is headquartered in Guangzhou and has several subsidiaries in South China. For the convenience of centralized management, the financial personnel of the group purchase tax stamps and distribute them to their subsidiaries for use, and all the expenses are included in the management expenses of the group.
Analysis: The purchase of tax stamps by enterprises is generally an immediate matter, and it does not need the approval of the tax source management department. Therefore, sometimes it will lead to the situation that group enterprises buy too many tax stamps and distribute them to subsidiaries privately. Article 1 of the Provisional Regulations on Stamp Duty stipulates that all units and individuals who have written and received the vouchers listed in this Ordinance within the territory of the People's Republic of China are taxpayers of stamp duty and shall pay stamp duty in accordance with the provisions of this Ordinance. In addition, Item 8 of Article 10 of the Enterprise Income Tax Law stipulates: "When calculating taxable income, the following expenses shall not be deducted: (8) Other expenses unrelated to income." According to the above regulations, all subsidiaries are taxpayers of stamp duty if they have the behavior of bookbinding and receiving taxable vouchers, and should pay stamp duty according to the regulations. The subsidiary is an independent legal entity, and the stamp duty borne by the group company for the subsidiary is other expenses unrelated to income, so it is necessary to increase the taxable income.
Are you clear about the risks involved in stamp duty now?
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