1. The income of individuals engaged in other financial commodity transactions is still exempt from business tax.
Article 5 of the new business tax regulations stipulates that the taxpayer's turnover is the total price and extra-price expenses charged by the taxpayer for providing taxable services, transferring intangible assets or selling real estate. Taxpayers engaged in the business of buying and selling financial commodities such as foreign exchange, securities and futures shall take the balance of the selling price minus the buying price as the turnover. Previously, China's tax law did not levy business tax on the income obtained by individuals engaged in foreign exchange and other financial commodities transactions. In order to continue to temporarily exempt individuals from business tax on the transfer of financial commodities, Caishui [2009]11explicitly exempts individuals (including individual industrial and commercial households and other individuals, the same below) from business tax temporarily. That is, the new rules and regulations stipulate that individuals refer to individual industrial and commercial households and other individuals, that is to say, sole proprietorship enterprises and individual partnerships still need to pay business tax in accordance with the regulations. It should be noted here that commodity futures are subject to value-added tax, not business tax.
Important note: At present, Article 5 of the new business tax regulations only applies to units, not individuals. Units engaged in this kind of business are not exempt from business tax, and institutional investors such as financial institutions, listed companies and securities companies should be levied according to the difference between buying and selling. According to China's Securities Law, marketable securities should include government bonds, various corporate bonds, stocks and securities investment funds. Therefore, non-financial institutions should levy business tax on the transfer of shares of listed companies. However, in order to support the development of the fund industry, China has successively provided certain preferential business tax policies for the fund industry. For example, 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 the Tax Policy of the National Social Security Fund (Caishui [2002] No.75) stipulates that business tax is temporarily exempted from the difference income of the social security fund board and the social security fund investment manager who use the social security fund to buy and sell securities investment funds, stocks and bonds; 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 the Tax Policy of Securities Investment Funds (Caishui [2004] No.78) stipulates that from June 5438+ 10/day, 2004, the difference income of managers of securities investment funds (closed and open securities investment funds) who use the funds to buy and sell stocks and bonds will continue to be exempted from business tax and enterprise income tax. The policy has not been abolished and is still being implemented. That is to say, after June 5438+1 October1in 2009, all closed-end and open-end securities investment funds approved by the CSRC will still not be subject to business tax when using the fund assets to buy and sell stocks and bonds.
Two or four types of personal gifts of real estate are temporarily exempt from business tax.
Article 5 of the new detailed rules adjusts the past "units give away real estate and pay business tax" to "units or individuals give away real estate or land use rights to other units or individuals for free", that is to say, according to the new detailed rules, no matter whether units or individuals give away real estate or land use rights for free, they must pay business tax. That is, individuals donate real estate for free, such as real estate, and business tax will not be levied before the end of 2008. After the implementation of the new regulations, it is said that it will be levied from 2009. However, under any of the four listed circumstances, the business tax shall be temporarily exempted. They are: divorce property division; Free gift to spouse, parents, children, grandparents, grandparents, grandchildren, grandchildren, brothers and sisters; Free gift to the supporter or supporter who has direct maintenance or maintenance obligation; After the death of the owner of the house property right, the legal heir, testamentary successor or legatee of the house property right is obtained according to law.
However, in order to prevent individuals from making private transactions in the name of donation and avoiding business tax, etc. Caishui [2009]11also stipulates that when going through the tax exemption procedures, the following relevant materials should be submitted according to the situation: First, the relevant certification materials stipulated in Article 1 of the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Strengthening the Tax Administration of Personal Donation of Real Estate for Free [2006] 144; The second is to give both parties valid identity documents; Third, the judgment of the people's court to prove the relative relationship between the donor and the recipient, and the notarial certificate issued by the notary office (all originals); 4. The judgment of the people's court, the notarial certificate issued by the notary office, and the supporting materials issued by the township people's government or the subdistrict office to prove the dependency relationship between the donor and the donee (all originals). In addition, the tax authorities should carefully examine the above information provided by both parties. If the information is complete and filled in correctly, it shall be signed and sealed on the Registration Form of Individual Donation of Real Estate for Free attached to the document number. Guo shui fa [2006] 144, the copy is kept, the original is returned to the author, and the business tax exemption formalities are handled at the same time. This is the same as the case that individual donated real estate is exempt from personal income tax, and proof materials should be provided.
Key points: At this stage, the business tax generated by personal donations of real estate and land use rights is not levied for the time being, but only for the four types of donations listed in Caishui [2009]11.At the same time, relevant certification materials should be submitted to the tax authorities according to their respective circumstances to enjoy tax exemption. In addition to the above four cases, personal donations of real estate or land use rights are taxable. Unit donations should be regarded as sales and business tax should be levied. At the same time, under the old regulations, individuals gave away real estate or land use rights free of charge, and no business tax was levied. Therefore, Guo Shui Fa [2006] 144 stipulates that tax authorities shall not sell invoices to individuals who give away real estate for free or issue invoices on their behalf. Under the new regulations, gifts given by other units and individuals for free do not belong to the scope of tax exemption, and should be regarded as taxable acts to collect business tax, and the tax authorities should issue invoices for them.
Three, domestic taxpayers abroad (provide) part of the labor service temporarily exempt from taxation or tax exemption.
In the new business tax, the principle of judging domestic and foreign labor services is adjusted from "the place where labor services occur" to the combination of "oneself" and "source of income". Article 4 of the detailed rules for the implementation of the new business tax stipulates that units or individuals that provide or accept labor services as stipulated in the regulations are domestic labor services. That is, first, all services provided by domestic units or individuals, regardless of whether the services provided by them occur in China, belong to domestic services; Second, the labor services accepted by the labor service recipient in China, whether belonging to domestic units or individuals, are provided in China; Third, the income from domestic sources of labor service providers, whether they provide labor services in China or not, is regarded as domestic labor services. However, Caishui [2009]11clearly stipulates that the services provided by units or individuals in People's Republic of China (PRC) (hereinafter referred to as domestic) engaged in construction, culture and sports (except broadcasting) outside People's Republic of China (PRC) (hereinafter referred to as domestic) are temporarily exempted from business tax. At the same time, the services provided by overseas units or individuals to domestic units or individuals as stipulated in the Provisional Regulations on Business Tax do not belong to the services provided in China as mentioned in Article 1 of the Regulations, and business tax is not levied. The specific scope of the above services shall be stipulated by the Ministry of Finance of People's Republic of China (PRC) and State Taxation Administration of The People's Republic of China. According to the above principles, business tax is not levied on services such as bathing, hairdressing, dyeing, painting, copying and packaging provided by overseas units or individuals to domestic units or individuals, such as culture and sports (except broadcasting), entertainment, hotels, restaurants, service warehouses and other service industries.
Key points: First, domestic taxpayers are temporarily exempt from business tax for services provided overseas except construction, culture and sports (except broadcasting), while services such as service industry and transportation industry are taxed; Second, when domestic units or individuals receive the labor services listed in Caishui [2009]11overseas, it is unnecessary (and impossible) to levy business tax on overseas units or individuals that provide labor services. On the other hand, if the above-mentioned labor service occurs overseas and the labor service provider is a non-China resident, the collection of this tax is not feasible; Iii. For the tax items of industry, service industry and other services that are not listed in the tax items of broadcasting industry and finance [2009]11,regardless of whether the provider is a domestic taxpayer or not, whether it occurs overseas or not, as long as the provider (recipient) involves domestic taxpayers, the tax will be levied temporarily on the principle of "individual"; Four, according to the provisions of the new regulations, the technical services and services provided by Chinese enterprises abroad need to pay business tax, so the relevant business tax such as the Letter of State Taxation Administration of The People's Republic of China on Tax Issues of Economic Assistance Projects (Guo Fa [1990] No.884) is partially abolished. Note that the current business tax day notes clearly stipulate that the collection scope of service industry includes: agency industry, hotel industry, catering industry, tourism industry, warehousing industry, leasing industry, advertising industry and other service industries. Other services include bathing, hairdressing, dyeing, photography, fine arts, painting mounting, copying, typing, etching, calculation, testing, inspection, laboratory testing, recording, video recording, copying, printing, design, drawing, surveying and mapping, exploration, packaging and consulting. As for broadcasting, according to the old regulations, foreign cultural units do not come to China, and the income from various broadcasting services provided to domestic units or individuals only through satellite communication and the Internet is not subject to business tax like overseas services. Now, according to the new policy, as long as the recipient or provider is in China. Business tax should be levied as domestic labor service, which inevitably involves the implementation of transitional policies. Specifically, it shall be implemented in strict accordance with the Notice of State Taxation Administration of The People's Republic of China, Ministry of Finance of People's Republic of China (PRC) on the Transitional Policy of Implementing Business Tax on Old Contracts in the New Year (Cai Shui [2009]112).
Four, administrative fees and other temporary exemption from business tax.
Article 13 of the new rules states that government funds or tax-free places that collect administrative fees on their behalf should meet the requirements at the same time. Caishui [2009]11refines the provisions of Article 13 of the Rules, stipulating that government funds approved by the State Council or the Ministry of Finance, Only when there are three conditions, namely "administrative fees and government funds approved by the State Council or the provincial people's government and its finance and price departments", "financial bills uniformly printed or supervised by the financial departments at or above the provincial level" and "the money received is turned over to the finance", can business tax be levied. In order to facilitate practical operation, Caishui [2009] 11annotated the concepts of government funds and administrative fees (consistent with the concepts of income tax-related policies):1. Government funds refer to the funds that people's governments at all levels and their subordinate departments support a project according to laws, state administrative regulations and relevant documents of the Central Committee and the State Council. Including various funds, funds, additional and special expenses. Second, administrative fees refer to the fees charged by state organs, institutions, social organizations and other organizations acting as government functions to specific clients in the process of providing specific services to citizens and legal persons in accordance with the relevant provisions of laws, administrative regulations, local regulations and other procedures approved by the State Council, and in accordance with the principle of cost compensation and non-profit. At the same time, due to the implementation of the new policy, the 13 business tax policy document on administrative fees (funds) issued by the state from 1990 to 2003 was abolished simultaneously.
Important note: For the extra-price expenditures (including collection and self-collection) obtained by taxpayers, any administrative fees or government funds that do not meet the three conditions stipulated in the document Caishui [2009]11shall be subject to business tax collection according to regulations. For example, a real estate development enterprise is uniformly included in the administrative fees or government funds 1 10,000 yuan levied on house prices according to the principle of one price. The above-mentioned extra-price charges meet the first and third conditions stipulated in Caishui [2009]11.However, the unified invoice for real estate sales issued by the competent tax authorities does not meet the requirement of "issued at or above the provincial level at the time of collection". Therefore, this charge of 6,543,800 yuan is subject to business tax.
Five, pay attention to find the preferential tax policies of the local tax authorities.