Caishui [2009] No.59 stipulates that equity acquisition refers to a transaction in which an enterprise (hereinafter referred to as the acquired enterprise) purchases the equity of another enterprise (hereinafter referred to as the acquired enterprise) in order to control the acquired enterprise. That is, it belongs to the holding merger in the Application Guide of Accounting Standards for Business Enterprises No.20-Business Combination.
Equity purchase is a transaction controlled by the acquired enterprise, that is, obtaining the equity of the invested unit to form an investment in the subsidiary; If an equity purchase forms an investment in a joint venture or an associated enterprise, it is not an equity purchase.
I. General tax treatment of equity acquisition
Caishui [2009] No.59 stipulates that the acquisition of enterprise equity shall be handled in accordance with the following provisions:
1. The purchaser shall confirm the gains or losses from the transfer of equity and assets.
2. The tax basis of the equity or assets purchased by the purchaser shall be determined on the basis of fair value.
3. The related income tax matters of the merged enterprise shall remain unchanged in principle.
In fact, the acquired party sells an asset, and the profit and loss of the sale are included in the taxable income of the current period; The purchaser purchases an asset at the purchase price (fair value), which is tax basis; Long-term equity investment is a transaction between shareholders and has nothing to do with the acquired enterprise, so the relevant income tax matters of the acquired enterprise naturally remain unchanged. The general tax treatment of equity acquisition is very simple, and it is no different from other asset sales.
Second, the special tax treatment of equity acquisition
1. Special recombination conditions
(1) It has a reasonable commercial purpose, and its main purpose is not to reduce, exempt or delay tax payment.
(two) equity acquisition, the acquisition of equity purchased by the enterprise is not less than 75% of the total equity of the acquired enterprise.
(3) The original substantive business activities of the restructured assets will not be changed within 12 months after the reorganization of the enterprise.
(four) the amount of equity payment of the acquisition enterprise at the time of equity acquisition is not less than 85% of the total transaction payment.
(5) The original major shareholder who has obtained equity payment during enterprise reorganization shall not transfer the acquired equity within 65,438+02 months after reorganization.
Article 2 of Caishui [2009] No.59 stipulates that the equity payment mentioned in this notice refers to the form of equity and shares paid by the enterprise or its holding enterprise among the consideration paid by the party purchasing or exchanging assets in enterprise restructuring. Then there are two situations of equity payment:
(a), the payment of corporate equity, that is, private placement.
(2) Pay with the equity of its holding company.
It should be pointed out that:
(1) Article 6 of the Measures for the Administration of Enterprise Income Tax on Enterprise Restructuring stipulates that the holding enterprise mentioned in Article 2 of the Notice refers to the enterprise whose shares are directly held by the enterprise. That is, the replacement is the equity of the subsidiary, not the equity of the parent company.
(2) The original major shareholders as stipulated in Article 20 of the Measures for the Administration of Enterprise Income Tax on Enterprise Restructuring Business and Item (5) of Article 5 of the Notice refer to the shareholders who originally held more than 20% equity of the transferred enterprise or the acquired enterprise.
2. Special restructuring income tax treatment
The parties to the equity purchase transaction may choose to deal with it in accordance with the following provisions:
1. The tax basis for the shareholders of the acquired enterprise to acquire the equity of the acquired enterprise is determined by the original tax basis of the acquired equity.
2. The tax basis where the acquiring enterprise obtains the equity of the acquired enterprise shall be determined according to the original tax basis of the acquired equity.
3. The tax basis and other related income tax items of the original assets and liabilities of the merged enterprise and the merged enterprise remain unchanged.
4. If both parties to the restructuring transaction temporarily fail to confirm the gains or losses from the transfer of assets related to equity payment in this transaction according to the provisions in Items (1) to (5) of this article, the non-equity payment shall still confirm the corresponding gains or losses from the transfer of assets during the current transaction, and adjust the tax basis of the corresponding assets.
Gain or loss of asset transfer corresponding to non-equity payment = (fair value of transferred assets-tax basis of transferred assets) × (amount of non-equity payment ÷ fair value of transferred assets).
(a), the enterprise equity payment, private placement
Case1:Company A purchased 80% of the shares of Company A held by another company, Company B, by way of private placement of shares and a fixed asset. In order to obtain the equity, Company A issued 20 million shares of common stock, with a par value of 1 yuan and a fair value of 5 yuan per share; . The original book price of a fixed asset is 6,543,800 yuan, the accumulated depreciation is 5 million yuan, and the fair value is 8 million yuan. When acquiring the equity, the book value of company A's net assets is 90 million yuan, and the fair value is 10800/80% yuan. The long-term equity investment in tax basis before the 80% equity of Company A held by Company B was sold was 60 million yuan.
Company B, the shareholder of the acquired enterprise.
The proportion of equity payment to total transaction payment =(2000×5)÷ 10800=92.59%.
It is assumed that other people also meet the special reorganization conditions.
Company A and Company B choose special reorganization.
Income tax treatment of B company, the shareholder of the merged enterprise
1. Company B, the shareholder of the merged enterprise, shall confirm the taxable income:
( 10800-6000)×(800÷ 10800)=355.68
2. Tax basis, who obtained the equity of Company A from Company B?
6000×92.59%=5555.4
Income tax treatment of merged enterprise A
1. Confirmed taxable income of fixed assets transfer 800-( 1000-500) = 300.
2. Tax basis, who obtained the equity of Company A from Company A?
6000×92.59%+ 10800×7.4 1%=6355.68
For Company B, compared with the general restructuring, the taxable income during the current restructuring period is less confirmed (10800-6000)-355.68 = 4444.32, while the tax basis for Company B to acquire the equity of Company A is reduced10000-5555.4 = 4444.6 (4444.6 and 4444). However, for Company A, the number of tax basis people who have obtained the equity of Company A has also decreased by 4,444.32.
Compared with general reorganization, the tax of special reorganization is higher.
(2) Payment by equity of the holding company.
Case 2: Following case 1, Company A changed its private placement shares into 20 million ordinary shares held by Company B, a subsidiary of the company, and the fair value of each share was 5 yuan. Company A holds 20 million shares of Company B's tax basis for 80 million yuan, and other conditions remain unchanged.
Company A and Company B choose special reorganization.
The income tax treatment of company B, the shareholder of the acquired enterprise, is the same as the case 1.
Income tax treatment of merged enterprise A
Tax basis: whoever obtains the equity of Company A, the original tax basis for obtaining the equity is determined to be 6000× 92.59%+10800×7.4 1% = 6355.68 (including10800× 7.41%to calculate the profit and loss).
And tax basis, where Company A originally held 200,000 shares, was 80 million yuan. After special reorganization, tax basis decreased by 80-5555.4 = 2444.6, and tax basis changed. If the original tax basis of 20 million shares held by Company A is 50 million yuan, the tax basis will increase by 5555.4-5000 = 555.4 after special reorganization.
Because the original tax basis of the acquired equity is inconsistent with the tax basis of the replacement holding company, it is obviously unreasonable for the difference tax basis to disappear. If it is stipulated that "the tax basis, who bought the equity of the acquired enterprise should be determined according to the original tax basis for the acquired enterprise to pay the equity." It seems more appropriate.