Reasons for cancellation of enterprise
Enterprise cancellation generally stems from the following reasons:
(1) dissolution and revocation due to legal reasons
1. Dissolution and cancellation in accordance with the Company Law. The company law stipulates five reasons for the dissolution of a company, including: (1) the expiration of the business term stipulated in the company's articles of association or other reasons for dissolution; (2) The shareholders' meeting or shareholders' meeting decides to dissolve; (3) The company needs to be dissolved due to merger or division; (4) Being punished and ordered to dissolve; (5) Poor management is required by shareholders to be dissolved by the court.
The Regulations on the Administration of Company Registration stipulates that when a company is dissolved, a liquidation group shall be established to liquidate the dissolved enterprise. The liquidation group of the company shall apply to the original company registration authority for cancellation of registration within 30 days from the date of liquidation.
2. Dissolution and revocation according to other laws. Dissolve the revoked enterprise in accordance with the causes and reasons stipulated in the partnership enterprise law, the sole proprietorship enterprise law and the farmers' professional cooperatives law.
(2) dissolution and revocation according to specific matters
1. Enterprise goes bankrupt. The Enterprise Bankruptcy Law stipulates that the administrator shall, within 10 days from the date of the termination of the bankruptcy proceedings, go to the original registration authority of the bankrupt enterprise for cancellation of registration on the basis of the ruling of the people's court to terminate the bankruptcy proceedings.
2. Enterprise reorganization. The Company Law and the Notice of the Ministry of Finance of People's Republic of China (PRC), State Taxation Administration of The People's Republic of China, on Several Issues Concerning the Income Tax Treatment of Enterprise Reorganization (Cai Shui [2009] No.59, hereinafter referred to as Document No.59) stipulate that: (1) enterprise merger (only refers to absorption merger, the same below), the merged enterprise shall be liquidated and cancelled according to law; (2) the separation of enterprises, the separation of enterprises that no longer exist after the separation should also be liquidated and cancelled; (3) Asset acquisition: the transferee has acquired 65,438+000% of the assets of the transferred enterprise, which no longer exists and should be cancelled; (4) The property rights of state-owned and collective enterprises are sold, and the sold enterprises are cancelled.
Different tax policies are applicable to different ways of asset disposal before cancellation.
The enterprise will cease to exist after cancellation, and its original assets must be sold or transferred to other units or individuals according to legal procedures. The application of tax policies is different in different ways of asset disposal:
(1) selling or distributing the property of the revoked enterprise
1. Direct sale or transfer: if an enterprise sells or transfers assets directly to the outside world before cancellation, it shall pay turnover tax and enterprise income tax according to normal sales of goods, sales of real estate or transfer of intangible assets; If the real estate is transferred, the buyer shall also pay the deed tax according to law.
2. Distributing the assets of the revoked enterprise to shareholders or investors: Both the Provisional Regulations on Value-added Tax and the Regulations on the Implementation of the Enterprise Income Tax Law stipulate that taxpayers should use their assets for profit distribution, that is, if they distribute them to shareholders or investors, they should be treated as sales.
However, the Law on Wholly Owned Enterprises stipulates that investors of a sole proprietorship enterprise shall enjoy the ownership of enterprise property according to law. Therefore, if a sole proprietorship enterprise transfers its property to the investor at the time of cancellation, there will be no transfer of ownership and no turnover tax, enterprise income tax and deed tax will be levied. However, investors who resell the assets received shall pay taxes according to regulations.
(two) according to the enterprise restructuring business turnover tax and deed tax.
1. VAT and business tax. The Announcement of People's Republic of China (PRC) and State Taxation Administration of The People's Republic of China on Taxpayer's Asset Restructuring Related to Value-added Tax (People's Republic of China (PRC) State Taxation Administration of The People's Republic of China AnnouncementNo. 1 1) and the Announcement on Taxpayer's Asset Restructuring Related to Business Tax (People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Announcement No.5 1 1) stipulate that in the process of asset restructuring, Transferring all or part of physical assets and their related creditor's rights, liabilities and services to other sales and replacement is not within the scope of value-added tax and business tax, and the transfer of goods, real estate and land use rights involved is not subject to value-added tax and business tax.
Interpretation of the above clauses: (1) The transferred physical assets and the creditor's rights, debts and services associated with them can be all or part; (2) The transferee can be a unit or an individual.
2. Deed tax. The Notice of State Taxation Administration of The People's Republic of China, Ministry of Finance of People's Republic of China (PRC) on Deed Tax Policy for Restructuring and Reorganization of Enterprises and Institutions (Caishui [20 1 2] No.4) stipulates: (1) If the original investor continues the merger, the merged company will be exempted from deed tax if it inherits the ownership of the land and houses of the original merged parties; (2) When the company is divided, the derivative party and the newly established party inherit the ownership of the original enterprise land and house, and are exempt from deed tax; (three) the enterprise bankruptcy, housing, land debt, exempt from deed tax; If a bankrupt enterprise transfers real estate to a non-creditor, and the state-owned collective enterprise sells it as a whole, and the transferee enterprise (or individual) meets certain conditions, the deed tax may be exempted or halved.
(three) according to the enterprise restructuring for income tax treatment
1. This file is applicable. In addition to the above-mentioned No.59 document, the documents applicable to enterprise restructuring and income tax treatment include the Notice of the Ministry of Finance of People's Republic of China (PRC), State Taxation Administration of The People's Republic of China, on Several Issues Concerning Enterprise Income Tax Treatment in Enterprise Liquidation Business (Caishui [2009] No.60), the Announcement of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) (Announcement No.4 of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) 20 10) and the Notice of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC).
Document 59 divides the income tax treatment of enterprise restructuring business into general tax treatment and special tax treatment. General tax treatment refers to tax basis, which calculates the disposal gains and losses of the transferred assets and liabilities at fair value, and takes the assets and liabilities received by the transferee at fair value. Special tax treatment should be based on specific circumstances to determine the tax basis.
2 tax year and final settlement. The enterprise income tax law stipulates that if an enterprise terminates its business activities in the middle of a year, the actual business period shall be regarded as a tax year; When an enterprise is liquidated according to law, the liquidation period shall be regarded as a tax year.
Matters needing attention in reporting liquidation income tax returns
(1) main table
(1) Payable staff salaries, unpaid labor insurance premiums, unpaid wages, etc. The amount liquidated in the process of enterprise liquidation shall be deducted from the "other income or expenditure" in line 5 (negative numbers are filled with "-"); (2) The "liquidation income" in line 6 and the "taxable income" in line 13 shall be filled in according to the liquidation income calculated by the formula in brackets after the project name. When line 6 or line 1 1 is 0 or negative, all lines are filled with 0, and the following items are left blank.
(2) Schedule 1
The liquidation income tax return shall be calculated from the termination date of business activities (that is, the liquidation start date), and the gains or losses realized in the liquidation process shall not be considered. Therefore: (1) 1 column "book value" is the amount of the book value of each asset on the liquidation start date, that is, the balance of each account plus or minus the amount of relevant adjustment accounts. (2) In the second column "Tax Basis", fill in the tax basis of the start date of various assets liquidation. (3) column 3 "realizable value or transaction price", as far as enterprise restructuring is concerned, should fill in the evaluation value confirmed by the restructuring parties and recognized by the competent tax authorities; If a public auction is conducted according to legal procedures, the auction transaction price shall be declared. (4) In the fourth column, fill in the difference between the third column and the second column, that is, the disposal gains and losses of various assets calculated with tax.
(3) Schedule 2
When filling in the form: (1) 1 column: "book value" should be filled in according to the accounting book value on the liquidation start date; (2) Column 2 "Tax Basis": Trading financial liabilities shall be filled in according to the balance in its "cost" subsidiary account; The contents of accrued expenses recorded in salary payable, wages payable, welfare payable, interest payable, estimated liabilities, accounts payable and other payables. If the corresponding expenses have been included in the profit and loss but have not been paid, but the tax has been increased at the time of final settlement before the liquidation, the tax basis of the relevant amount should be reported as 0.
(4) Schedule III
This statement has the significance of cash flow statement to a certain extent, and has no direct relationship with liquidation profit and loss. The purpose of filling in this form is to confirm the remaining property that can be shared by the shareholders of the cancelled enterprise (only shareholders who are corporate income tax taxpayers) and the amount that should be included in taxable income and accrued dividends.
Relevant provisions on special tax treatment for enterprise cancellation and income tax declaration
(a) you can choose the conditions for special tax treatment and the basic principles of tax treatment.
The conditions for adopting special tax treatment for enterprise restructuring listed in Circular 59 include: (1) asset acquisition: the assets acquired by the transferee shall not be less than 75% of the total assets of the transferor, and the corresponding equity payment (referring to the payment method of the transferee's shares or the equity of the enterprise directly holding the equity, the same below) shall not be less than 85% of the total transaction payment; (2) Business combination: a business combination under the same control in which the shareholders of the merged enterprise receive an equity payment of not less than 85% of the total transaction payment and do not pay the consideration; (3) Enterprise Separation: All shareholders of the separated enterprise obtain the equity of the separated enterprise according to the original shareholding ratio, the separated enterprise and the separated enterprise do not change the original substantive business activities, and the amount of equity payment obtained by the shareholders of the separated enterprise in the transaction is not less than 85% of the total transaction payment.
The basic principles of special tax treatment are as follows: (1) In a cancelled enterprise, the assets corresponding to equity payment are not recognized as asset transfer gains and losses at the time of transfer. After these assets are transferred to the transferee, the original tax basis of the cancelled enterprise is still the tax basis of the transferee; (2) For the value of the transferred assets corresponding to the non-equity payment, the enterprise shall confirm the transfer gains and losses according to the fair value before cancellation, and adjust the tax basis of the assets corresponding to the non-equity payment received by the transferee accordingly.
(2) Application of liquidation income tax return
1. If the revoked enterprise adopts special tax treatment and should confirm the non-equity payment gains and losses from asset transfer, it shall fill in the liquidation income tax return and some schedules. When special tax treatment is adopted (the non-equity payment does not exceed 15% of the total transaction payment), the non-equity payment shall still confirm the gains or losses of asset transfer at fair value. The calculation formula is:
Income or loss from 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.
In this paper, "fair value", "realizable value or transaction price" and "appraised value" should be regarded as equivalent concepts.
2. When the merger consideration is not paid for the merger under the same control, the liquidation gains or losses are not confirmed according to the provisions of the tax law, and it is unnecessary to fill in the above declaration form and schedule.
(3) Fill in the declaration form
1. Main table: line 1 of (1), which is filled in according to the calculation result of the formula "Profit or loss of asset transfer corresponding to non-equity payment" in Document No.59; (2) Line 2 can be left blank or 0; (3) The following lines shall be filled in according to the requirements of general tax treatment.
2 Schedule 1 and Schedule 2 can be omitted.
3. Schedule 3:( 1) 1 is filled in according to the amount of non-equity payment; (2) Lines 2 to 10 shall be filled in according to general tax treatment requirements; (3) If the line 10 is 0 or negative, the lines below the line 1 1 are left blank.
Your problem of "tax treatment of company cancellation" has been sorted out. Relevant laws and regulations stipulate that when a company is dissolved, a liquidation group shall be organized to liquidate the dissolved enterprise. For the revoked enterprise, special tax treatment shall be taken, and the non-equity payment of the gains and losses from asset transfer shall be confirmed, and the liquidation income tax return form and some schedules shall be filled in.