1, interest expenses of non-financial enterprises borrowing from financial enterprises, interest expenses of various deposits and interbank loans of financial enterprises, and interest expenses of enterprises issuing bonds upon approval;
2. The interest expense of non-financial enterprises borrowing from non-financial enterprises shall not exceed the amount calculated according to the interest rate of similar loans of financial enterprises in the same period.
Two. Provisions on preventing the weakening of linked loan capital
In order to prevent the weakening of capital, Article 46 of the Enterprise Income Tax Law stipulates that the interest expenses incurred when the proportion of debt investment and equity investment accepted by an enterprise from its related parties exceeds the prescribed standard shall not be deducted when calculating the taxable income. Article 119 of the Regulations for the Implementation of the Enterprise Income Tax Law makes it clear that the creditor's rights investment mentioned in Article 46 of the Enterprise Income Tax Law refers to the financing with the nature of paying interest that the enterprise obtains directly or indirectly from related parties and needs to repay the principal and interest or compensate in other ways.
The creditor's rights investment indirectly obtained by enterprises from related parties includes:
(1) Debt investment provided by related parties through unrelated third parties;
(2) The creditor's rights investment provided by an unrelated third party shall be guaranteed by the related party and bear joint liability;
(3) Other creditor's rights investments with substantial liabilities obtained indirectly from related parties.
The equity investment mentioned in Article 46 of the Enterprise Income Tax Law refers to the investment accepted by the enterprise, which does not need to repay the principal and interest, and the investor owns the net assets of the enterprise.
The standards mentioned in Article 46 of the Enterprise Income Tax Law shall be formulated separately by the competent departments of finance and taxation of the State Council.
The Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Tax Policy Issues Concerning Pre-tax Deduction Standard for Interest Expenses of Related Parties of Enterprises (Caishui [2008] 12 1No.) is as follows:
1. When calculating the taxable income, if the interest expenses actually paid by the enterprise to the related parties do not exceed the following proportion and the relevant provisions of the tax law and its implementing regulations, they shall be deducted, and the excess shall not be deducted in the current year and subsequent years.
The interest expenses actually paid by the enterprise to the related parties comply with the provisions of Article 2 of this Notice, and the ratio of creditor's rights investment to equity investment of related parties is:
(1) financial enterprises, 5:1;
(2) Other enterprises, 2: 1.
Case: Company A and Company B are related parties. A company invested 6,543,800 yuan in the share capital of B company and lent 50 million yuan to B company (loan interest is 7%). According to the ratio of 2: 654.38+0, the annual interest payable by Company B based on 50 million yuan is 5000× 7% = 3.5 million yuan, of which only 65 million yuan is allowed to be deducted before tax. )
2, whether the enterprise can provide relevant information in accordance with the relevant provisions of the tax law and its implementing regulations, and prove that the relevant trading activities conform to the principle of independent trading; Or if the actual tax burden of the enterprise is not higher than that of the domestic related party, the interest expenses actually paid to the domestic related party shall be deducted when calculating the taxable income.
The key understanding of this article is that the latter part "or if the actual tax burden of the enterprise is not higher than that of the domestic related parties, the interest expenses actually paid to the domestic related parties shall be deducted when calculating the taxable income."
Due to the existence of preferential tax rate, tax reduction and exemption, investment credit, reinvestment tax rebate and income tax rebate, the actual tax burden among enterprises is not the same. If the actual tax burden of the enterprise paying interest is lower than that of the enterprise receiving interest, it is essentially that the state has overcharged the tax, otherwise the enterprise will take advantage.
Case: Company A and Company B are related parties. A company invested in the share capital of B company100000 yuan and lent it to B company 50 million yuan (the loan interest rate is 7%, assuming the interest rate meets the requirements). If the applicable tax rate of Company A is 25% and the applicable tax rate of Company B is 15%, since the interest income earned by Company A is paid at the rate of 25%, the income tax payable by Company A is = 50 million× 7 %× 25% = 875,000 yuan. Even if the interest paid by Company B is deducted in full, the income tax reduced by Company B due to interest payment = 50 million× 7 %×15% = 525,000 yuan. On the other hand, of course not.
On the other hand, Company A and Company B are related parties. Company A invested RMB 6,543,800,000 in the share capital of Company B, and lent RMB 50,000,000 to Company B at the beginning of 2065,438+03 (the loan interest rate is 7%, assuming the interest rate meets the requirements). The total profit of Company A in 2065.438+03 is 0, and that of Company B in 2065.438+03 is 0. This situation is essentially reverse compensation. If Company A and Company B are taken as a whole, the enterprise does not take advantage. Nonsense, finance and taxation thought that it could not be limited by the debt ratio.
3, enterprises engaged in financial business and non-financial business at the same time, the actual interest paid to related parties, should be calculated separately according to reasonable methods; If it is not calculated separately according to a reasonable method, the interest expenses allowed to be deducted before tax shall be calculated according to the proportion of other enterprises in Article 1 of this Notice.
4. The enterprise income tax shall be paid in accordance with the relevant provisions for the non-conforming interest income obtained by the enterprise from related parties. (Eligible interest income is also subject to enterprise income tax)
"As stipulated in Article 85 of the Notice (Guo Shui Fa [2009] No.2), the interest expenses that cannot be deducted when calculating the taxable income mentioned in Article 46 of the Income Tax Law shall be calculated according to the following formula:?
Non-deductible interest expense = interest actually paid by all related parties in the current year ×( 1- standard ratio ÷ related debt-capital ratio)?
Among them:?
The standard proportion refers to the proportion stipulated in the Notice of the Ministry of Finance of State Taxation Administration of The People's Republic of China on Tax Policy Issues Concerning the Pre-tax Deduction Standard for Interest Expenses of Related Parties of Enterprises (Caishui [2008] No.65438 +02 1). ?
The proportion of related debt refers to the proportion of debt investment accepted by an enterprise from all its related parties (hereinafter referred to as related debt investment) to the equity investment accepted by the enterprise according to Article 46 of the Income Tax Law and Article 119 of the Implementation Regulations of the Income Tax Law. Related creditor's rights investment includes creditor's rights investment guaranteed by related parties in various forms.
Related debt-to-capital ratio = sum of average related debt investments in each month of this year ÷ sum of average equity investments in each month of this year?
Among them:?
Average monthly related debt investment = (book balance of related debt investment at the beginning of the month+book balance at the end of the month) /2?
Average monthly equity investment = (book balance of equity investment at the beginning of the month+book balance at the end of the month) /2
Equity investment refers to the amount of owner's equity listed in the balance sheet of an enterprise (the tax law does not make a specific definition, but refer to the accounting definition). If the owner's equity is less than the sum of paid-in capital (share capital) and capital reserve, the equity investment is the sum of paid-in capital (share capital) and capital reserve; If the sum of paid-in capital (share capital) and capital reserve is less than paid-in capital (share capital), equity investment is paid-in capital (share capital).
It is worth noting that if the investment obtained through the acquisition of equity, its asset-liability ratio has nothing to do with the price paid for the acquisition of equity, and it is still determined according to the above owner's equity. This is because the target company is not the target company, but the shareholders of the target company.
Article 87 of Guo Shui Fa [2009] No.2 makes it clear that the interest expenses mentioned in Article 46 of the Income Tax Law include the actual interest, guarantee fees, mortgage fees and other expenses of an interest nature directly or indirectly related to debt investment. ?
Three, distinguish between capital loan interest expenses and income loan interest expenses.
According to the relevant provisions of Article 37 of the Regulations for the Implementation of the Enterprise Income Tax Law, the interest expenses of capital loans shall be deducted by stages or included in the cost of related assets. Interest expense of income loan can be deducted in the current period.
Four, about the deduction of interest expenses incurred by enterprises due to inadequate investment by investors.
Notice on the deduction of interest expenses before enterprise income tax caused by improper investment of enterprise investors (Guo Shui Han [2009] No.312) clearly states that if an enterprise investor fails to pay its due capital contribution in full within the prescribed time limit, the interest incurred by the enterprise in borrowing from abroad is equivalent to the interest payable by the difference between the actual capital contribution paid by the investor and the capital contribution payable within the prescribed time limit, which is not a reasonable expenditure of the enterprise.
The specific calculation of non-deductible interest shall be based on the period during which the paid-in capital and loan balance of the enterprise remain unchanged within one year. The non-deductible loan interest of each calculation period shall be calculated by multiplying the loan interest amount of the current period by the proportion of the unpaid registered capital of the enterprise to the total loan amount of the current period, and the formula is:?
The loan interest that the enterprise cannot deduct in each calculation period = the loan interest amount of the current period × the unpaid registered capital amount of the current period ÷ the loan amount of the current period?
The total loan interest that an enterprise can't deduct in one year is the sum of the loan interest that can't be deducted in each calculation period of that year.
Verb (abbreviation of verb) Pre-tax deduction of interest expenses of enterprises borrowing from natural persons.
The Notice on Pre-tax Deduction of Enterprise Income Tax on Interest Expenditure of Enterprises Borrowing from Natural Persons (Guo Shui Han [2009] No.777) clearly states:
1. The interest expenses incurred by an enterprise in borrowing from shareholders or other natural persons associated with the enterprise shall be in accordance with the provisions of Article 46 of the Enterprise Income Tax Law of People's Republic of China (PRC) (hereinafter referred to as the tax law) (the interest expenses incurred by an enterprise when the proportion of creditor's rights investment and equity investment accepted by related parties exceeds the prescribed standard shall not be deducted when calculating the taxable income) and the Notice of State Taxation Administration of The People's Republic of China, Ministry of Finance of People's Republic of China (PRC) on tax policy issues related to the pre-tax deduction standard for interest expenses of related parties of enterprises (Cai Shui [2008]
2. If an enterprise borrows money from its internal employees or other personnel other than those specified in Article 1 and meets the following conditions at the same time, the part of its interest expense that does not exceed the amount calculated according to the interest rate of similar loans of financial enterprises in the same period shall be deducted in accordance with Article 8 of the Tax Law and Article 27 of the Regulations for the Implementation of the Tax Law.
(1) The loan between the enterprise and the individual is true, legal and valid, and there is no illegal fund-raising purpose or other violation of laws and regulations;
(2) Enterprises and individuals sign loan contracts.
VI. Determination of interest rates for similar loans of financial enterprises in the same period.
Announcement on Several Issues Concerning Enterprise Income Tax (State Taxation Administration of The People's Republic of China Announcement No.2011No.34) clearly points out that according to the provisions of Article 38 of the Implementation Regulations, the interest expenses borrowed by non-financial enterprises from non-financial enterprises are allowed to be deducted before tax. In view of China's current interest rate requirements for financial enterprises, enterprises should provide "a description of the interest rate of similar loans of financial enterprises in the same period" when paying interest for the first time and deducting it before tax according to the contract requirements, so as to prove the rationality of their interest expenses.
"Description of similar loan interest rates of financial enterprises in the same period" shall include the similar loan interest rates provided by any financial enterprise in this province at the time of signing the loan contract. Financial enterprises should be enterprises engaged in loan business with the approval of relevant government departments, including banks, finance companies, trust companies and other financial institutions. "Interest rate of similar loans in the same period" refers to the loan interest rate provided by financial enterprises under the condition that the loan term, loan amount, loan guarantee and corporate reputation are basically the same. It can be the average interest rate of the same kind announced by financial enterprises in the same period, or the actual loan interest rate provided by financial enterprises to some enterprises.
Seven, the enterprise does not need to pay the loan interest tax treatment.
Enterprises must provide legal loan contracts for interest-free loans received. If a legal loan contract cannot be provided, it shall not be treated as an enterprise loan. For taxpayers who provide loans, according to the principle of independent transaction, interest income is calculated according to the interest rate of similar loans in the same period, incorporated into taxable income, and income tax is levied.
8. Legal documents for deducting interest expenses before tax.
According to Article 6 of the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Printing and Distributing Some Specific Measures to Further Strengthen Tax Collection and Management (Guo Shui Fa [2009] 1 14), the legal and valid credentials that have not been obtained as required shall not be deducted before tax. The expenses incurred by an enterprise in borrowing from a natural person shall be true, lawful and effective, the lender shall pay relevant taxes and fees in accordance with the regulations, and issue corresponding invoices, and the interest party shall obtain the invoices before tax.
Comprehensive case: Company A established Company B in 20 12+0 years100000 yuan. 20 12 In June, Company B borrowed 50 million yuan from Company A, with an annual interest rate of 10%, assuming that both Company A and Company B are non-financial enterprises; During the same period, the bank loan interest rate was 8%; The actual tax burden of Company B is higher than that of Company A, and Company B cannot provide information to prove that its borrowing activities conform to the principle of independent trading.
According to the enterprise income tax law and its implementing regulations and the provisions of document 12 1, the calculation is as follows:
As the actual tax burden of Company B is higher than that of Company A, and Company B can't provide information to prove that its borrowing activities conform to the principle of independent transaction, the interest expenses actually paid by Company B to Company A are allowed to be deducted on the premise that the debt-to-capital ratio specified in document 12 1 and the relevant provisions of the tax law and its implementing regulations are not exceeded, and the excess part shall not be deducted in the current year and the following years.
Company B accepts the debt investment and equity investment of Company A for 50 million yuan and 6,543.8+million yuan respectively, and the ratio of the two is 5: 654.38+0, which is higher than the agreed 2: 654.38+0, and its agreed interest rate of 654.38+00% is higher than the loan interest rate of financial institutions for the same period of 8%, so the loan interest of Company B cannot be fully deducted before tax. The pre-tax deductible loan amount is1000× 2 = 20 million yuan, and the interest amount is 2000× 8% =10.6 million yuan. The interest paid by 20 12 * * * to company a is 5000×10% = 5 million yuan, which can be deducted before tax, and the remaining 3.4 million yuan should be adjusted on 20 12, and cannot be deducted in future years.