I. Brief introduction of the case:
1. In the investigation of tax sources, the Risk Response Bureau of a local taxation bureau found that a township investment company lent its business license to others (six natural persons), acquired a piece of land in the name of the company through bidding, developed a residential building and sold it all, but failed to declare it to the competent tax authorities, failed to register the project with the competent tax authorities, failed to receive and issue invoices, and failed to declare and pay local taxes, which was suspected of violating the tax law. Therefore, the company was ordered to make corrections within a time limit according to law.
2. However, the legal representative of the company (who is also the head of the administrative institution) thinks that the company only lends its business license to others, and the actual development behavior is the responsibility of six natural persons. The company is not responsible for any specific affairs, and all revenues and expenditures are the responsibility of six natural persons. The company has not made any income and should not become a taxpayer.
3. However, the tax authorities believe that although the company is not responsible for specific development matters and does not actually collect money, all development and sales matters are based on the company lending its business license to others, which in fact constitutes the contracting and leasing operation of the company by others. In addition, the six natural persons who signed the contract all carried out various businesses in the name of City Investment Company, and the company's industrial and commercial registration remained unchanged. The company should be the taxpayer, and the tax payable by the company and relevant individuals should be verified according to legal procedures. At the same time, the legal representative of the company was suspected of violating the law and discipline and was examined by the judicial organs according to law.
Second, the tax law analysis:
1. Paragraph 2 of Article 49 of the Detailed Rules for the Implementation of the Law of People's Republic of China (PRC) on Tax Collection and Management stipulates that the employer or lessor shall report the relevant information of the contractor or lessee to the competent tax authorities within 30 days from the date of spontaneous contracting or leasing. If the employer or lessor fails to declare, the employer or lessor and the contractor or lessee shall bear joint and several liability for tax payment.
2. Guo Shui Fa [1994]No. 179 stipulates that if an enterprise is still registered as an enterprise after individual contracting or leasing, it shall pay enterprise income tax in accordance with the relevant provisions of enterprise income tax. For contracting and leasing, operators shall pay income tax in accordance with the relevant provisions of the individual income tax law on the income obtained in accordance with the contract (agreement).
3. According to Article 11 of the Detailed Rules for the Implementation of the Provisional Regulations of the People's Republic of China on Business Tax, the unit operates by contracting, leasing and joint venture, and the contractor, lessee and joint venture (hereinafter referred to as the contractor) have taxable behaviors. If the contractor operates in the name of the employer, lessor and joint venture (hereinafter referred to as the employer), and the employer bears relevant legal responsibilities, the employer shall be the taxpayer; Otherwise, the contractor shall be the taxpayer.
4. Therefore, although the company only lent its business license to others for use and did not get any economic benefits, it should still be regarded as a taxpayer of business tax, enterprise income tax and other related taxes according to relevant tax regulations. At the same time, according to the relevant provisions of the tax law, personal income tax should be levied on the contracted business income of six contractors. It is not surprising that the legal representative of the company accepted benefits in the process of contracting and committed other violations of law and discipline. According to the relevant laws and regulations of our country, he should bear the relevant legal consequences and be examined by the judicial organs.
Processing flow:
Industrial and commercial registration Process?
1, industrial and commercial registration needs to be verified first;
2. Qualification certificates of all investors (original ID card provided by natural person and business license provided by enterprise legal person);
3. An application for registration of enterprise establishment signed by the legal representative of the enterprise;
4. Submit the articles of association. The Articles of Association can be downloaded from the website of the Inland Revenue Department. The Articles of Association shall be signed by all shareholders and sealed by the legal representative of the enterprise;
5. Industrial and commercial registration needs to provide certificates of appointment of directors, supervisors, managers, chairmen or directors;
6. Submit copies of the ID cards of directors, supervisors and managers;
7. Provide proof of the use of the company's residence, such as the house lease agreement and a copy of the house property right;
8. Report to the Industrial and Commercial Bureau for approval, and issue a business license after approval;
9. Carry the engraving password issued by the Public Security Bureau and go to the engraving shop registered by the Public Security Bureau for engraving;
10. Go to the tax bureau for tax verification and open a basic company account at any local bank.
References:
Baidu encyclopedia-industrial and commercial registration jurisdiction