I. Business tax
(1) Notice of People's Republic of China (PRC) State Taxation Bureau on Printing and Distributing the Answers to Business Tax Questions (I) (Guo Fa [1995] 156)
17. Q: How should the business tax be levied on cooperative housing?
Answer: Cooperative housing construction means that one party (hereinafter referred to as Party A) provides the land use right and the other party (hereinafter referred to as Party B) provides funds for cooperative housing construction. Cooperative housing generally has two ways:
The first way is pure "barter", that is, the two sides exchange their own land use rights and housing ownership. There are two specific ways of exchange:
(1) Land use right and house ownership were exchanged, and both parties obtained part of house ownership. In the course of this cooperation, Party A exchanged the ownership of some houses and transferred the land use right at the expense of transferring part of the land use right; Party B sells the house at the price of transferring part of the house ownership in exchange for part of the land use right. Therefore, both sides of cooperative housing should pay business tax. Party A shall pay taxes according to the sub-item of "Transfer of Land Use Rights" in the tax item of "Transfer of Intangible Assets". Party B shall pay taxes according to the tax item of "real estate sales". Since the two parties have not made monetary settlement, their respective turnover shall be separately verified according to the provisions of Article 15 of the Implementation Rules. If both parties (or any party) of cooperative housing sell their houses and real estate, their sales income will be subject to business tax according to the tax item of "selling real estate".
(2) exchange for house ownership at the expense of transferring land use rights. For example, Party A leases the land use right to Party B for several years, and Party B invests in the construction and use of the land. After the lease expires, Party B will return the land use right to Party A together with the completed buildings. During this operation, Party B will exchange the land use right for several years at the expense of buildings, and Party A will exchange the land use right for buildings at the expense of leasing. Party A has leased the land use right, which shall be treated as "service industry". If Party B sells real estate, business tax shall be levied according to the tax item of "selling real estate". When both parties pay taxes separately, their turnover should also be approved according to the provisions of Article 15 of the Detailed Rules for the Implementation of the Provisional Regulations on Taxation.
Note: Article 15 of the original detailed rules for implementation.
Article 15 Where a taxpayer provides taxable services, transfers intangible assets or sells real estate at an obviously low price without justifiable reasons, the competent tax authorities have the right to verify its turnover in the following order:
(a) according to the average price of similar taxable services provided by taxpayers or similar real estate sold in the current month.
(2) According to the average price of similar taxable services recently provided by taxpayers or similar real estate sold.
(three) according to the following formula approved taxable value:
Taxable value = operating cost or project cost ×( 1+ cost profit rate) ÷( 1- business tax rate)
The cost profit rate in the above formula shall be determined by the tax authorities of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.
The second way is that Party A shares the land use right, and Party B shares the shares with monetary funds to establish a joint venture and build cooperative housing. For this form of cooperative housing, it is necessary to determine how to levy taxes according to the specific situation.
(1) If both parties adopt the mode of * * * taking risks and * * enjoying the distribution of profits after the completion of the house, according to the business tax regulations, the land use right provided by Party A to the joint venture is regarded as an investment in shares, and no business tax is levied, in accordance with the provisions of "investing in shares with intangible assets, participating in the profit distribution of investors and * * sharing the investment risks"; The sale of real estate only taxes the income from the sale of houses by the joint venture; The profits shared by both parties are not subject to business tax.
(2) If Party A participates in the distribution or extracts the fixed profit according to a certain proportion of the sales revenue after the house is completed, it is not the behavior that the business tax does not apply to the investment in shares mentioned in the business tax, but the behavior that Party A transfers the land use right to an associated enterprise. Then, the fixed profit obtained by Party A or the income extracted from the sales revenue in proportion shall be taxed as "intangible assets transfer"; A joint venture shall collect business tax according to the sales income of all houses and the tax item of "selling real estate".
(3) After the completion of the house, the two parties distribute it according to a certain proportion. This business behavior does not constitute the business tax behavior of investing in intangible assets and sharing risks as mentioned in the business tax. Therefore, the land transferred by Party A to the joint venture shall be taxed according to the "transfer of intangible assets" first, and its turnover shall be verified according to the provisions of Article 15 of the detailed rules for implementation. Therefore, if the house of the joint venture company is allocated to Party A and Party B,
(II) Reply of State Taxation Administration of The People's Republic of China on Business Tax on Cooperative Housing (Guo Shui Han [2004] No.241)
Guangdong Provincial Local Taxation Bureau:
Your request for instructions on tax policy issues related to the collection of business tax on "cooperative housing" of Guangzhou Jinan Real Estate Development Co., Ltd. (No.357 [2003] of Guangdong Local Taxation Bureau) has been received. The specific meaning of "one party provides the land use right" in Article 17 of the Notice of State Taxation Administration of The People's Republic of China on Printing and Distributing the Answers to Business Tax (Part I) (Guo Fa [1995]No. 156, hereinafter referred to as 156) is as follows:
156 article 17 "cooperative housing means that one party provides land use rights and the other party provides funds." The term "one party providing the land use right" in the regulations includes the acts of providing the land use right by one party, such as obtaining the planning permit for construction land approved by the Planning Bureau, the approval letter for construction land, the notice for construction land and the land use certificate issued by the land management department, and the land use right enjoyed by the relevant parties in other construction land documents.
(III) Reply of State Taxation Administration of The People's Republic of China on Business Tax of Cooperative Housing (Guo Shui Han [2005] 1003)
Hainan Provincial Local Taxation Bureau:
Your request for instructions from Hainan Provincial Local Taxation Bureau on cooperative development of Bauhinia Garden in Haikou, our province (No.57 [2005] of Qiong Local Taxation Bureau) has been received. After study, the reply is as follows:
In view of the fact that during the development and construction of this project, both the land use right holder and the house owner belong to Party A, there is no transfer of intangible assets as stipulated in the People's Republic of China (PRC) Business Tax Regulations. Therefore, the behavior that Party A provides the land use right and Party B provides the necessary funds to jointly develop real estate projects in the name of Party A does not belong to cooperative housing, and the provisions of Article 17 of the Notice of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Printing and Distributing the Answer to Business Tax (No.1) on the collection of business tax on cooperative housing are not applicable.
Second, land value-added tax.
(1) Notice of State Taxation Administration of The People's Republic of China, Ministry of Finance on Some Specific Issues Concerning Land Value-added Tax (Caishuizi [1995] No.048)
1, on tax exemption of real estate investment and joint venture.
In the case of real estate investment or joint venture, if one of the investors or joint venture invests in land (real estate) as a share or transfers real estate to the invested or joint venture as a condition of joint venture, the land value-added tax will be temporarily exempted. If the above-mentioned real estate is re-transferred by investment or joint venture, land value-added tax will be levied.
2. Tax exemption for cooperative housing.
If one party goes out of the land and the other party contributes funds, and the two parties cooperate to build houses, and the houses are allocated for their own use in proportion after completion, the land value-added tax will be temporarily exempted; After the transfer is completed, the land value-added tax shall be levied. If one party goes out of the land and the other party contributes funds, and the two parties cooperate to build houses, and the houses are allocated for their own use in proportion after completion, the land value-added tax will be temporarily exempted; After the transfer is completed, the land value-added tax shall be levied.
(II) Notice of the Ministry of Finance of State Taxation Administration of The People's Republic of China on Several Issues Concerning Land Value-added Tax (Caishui [2006] No.21)
Where land (real estate) is used as capital contribution or joint venture, and the invested or joint venture engages in real estate development, or the real estate development enterprise makes investment or joint venture with the commercial housing built by it, the provisions of Article 1 of the Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Some Specific Issues Concerning Land Value-added Tax (Caishuizi [1995] No.048) shall not apply.
(III) Notice of Guangzhou Local Taxation Bureau on Printing and Distributing the Guidelines on Some Issues Concerning Land Value-added Tax Liquidation (Continued 2) (No.2010/70, Sui Di Shui Han)
Twelve, for the following forms of cooperative housing development real estate projects, how to confirm the relevant income and deduct the project amount?
(1) If one party leaves the land and the other party contributes to jointly develop real estate projects, the two parties will not establish a joint venture company. In the process of cooperation, the exporter exchanges part of the land use right (real estate) for part of the property ownership, and the investor exchanges part of the land use right (real estate) for part of the land use right.
The above-mentioned land use right (real estate), at the expense of transferring part of the land use right in exchange for part of the real estate ownership, shall be recognized in accordance with the provisions of Item 1 of Article 3 of DocumentNo.. 187, if an investor transfers part of the real estate ownership in exchange for part of the land use right (real estate), it shall confirm the income and the price paid for obtaining part of the land use right in accordance with the provisions of Item 10 of the Accounting Standards for Business Enterprises.
(2) Take the land use right (real estate) and investors' monetary capital as the share price, and set up a joint venture to engage in real estate development. Upon completion, the distribution method adopted by both parties is: 1. Risk sharing, profit sharing. 2. Draw or fix profits according to a certain proportion of sales revenue; 3. Distribute real estate according to a certain proportion.
For the above-mentioned joint venture, the appraised value confirmed when the local land use right (real estate) is invested shall be taken as the price paid for obtaining the land use right; When leaving the land, the appraised value confirmed when the land use right (real estate) is priced as a share is taken as the income from the transfer of the land use right (real estate).
According to Article 6 of 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 Land Value-added Tax (Caishui [2006] No.21), if a joint venture is established to engage in real estate development with land use rights (real estate) as shares after March 2, 2006, land value-added tax shall be levied.
Guo shui fa [2006] 187 "notice of State Taxation Administration of The People's Republic of China on issues related to land value-added tax liquidation management of real estate development enterprises"
Three. Determination of indirect sales and self-use real estate income
(1) Real estate development enterprises will use the developed products for employee welfare, incentives, foreign investment, distribution to shareholders or investors, repayment of debts, exchange for non-monetary assets of other units and individuals, etc. , when the ownership is transferred, it is regarded as selling real estate, and its income is confirmed in the following ways and order:
1. It is determined according to the average price of similar real estate sold by the enterprise in the same area and year; ?
2. It shall be determined by the competent tax authorities with reference to the market price or assessed value of similar real estate in the local year.
Three. business income tax
The Measures for Handling Enterprise Income Tax of Real Estate Development Business (Guo Shui Fa [2009] No.31) stipulates that:
Thirty-first enterprises to obtain land use rights by non-monetary transactions, the cost should be determined according to the following provisions:
(a) enterprises and units in exchange for the development of products, land use rights to invest in enterprises, according to the following provisions:
1. If the development products exchanged are for the development and construction of the land, the investment-receiving enterprise will not confirm the cost temporarily when accepting the land use right. When the development product is separated for the first time, the cost of the land use right shall be calculated and confirmed according to the fair market value of the development product to be separated (including the first separation and subsequent separation) and the relevant taxes and fees payable in the process of land use right transfer. Where premium is involved, the acquisition cost of land use right shall be added to the premium payable or deducted from the premium received.
2. If the exchanged development products are for other land development and construction, the investment-receiving enterprise shall calculate and confirm the cost of land use right according to the fair market value of the development products and the relevant taxes payable in the process of land use right transfer when the investment transaction occurs. Where premium is involved, the acquisition cost of land use right shall be added to the premium payable or deducted from the premium received.
(2) If an enterprise or unit invests the land use right into the enterprise in the form of equity, the enterprise receiving the investment shall calculate and confirm the acquisition cost of the land use right according to the fair market value of the land use right and the relevant taxes and fees payable in the process of land use right transfer when the investment transaction occurs. Where premium is involved, the acquisition cost of land use right shall be added to the premium payable or deducted from the premium received.
Thirty-sixth enterprises and other enterprises, units and individuals, joint venture development of real estate projects, without the establishment of an independent legal person company, in accordance with the following provisions:
(1) If the development contract or agreement stipulates to distribute the development products to all investors (i.e. partners and joint ventures, the same below), when the enterprise distributes the development products for the first time, if the taxable cost of the project has been settled, the difference between the taxable cost of the development products that should be distributed to investors and their investment amount should be included in the current taxable income; If the taxable cost is not settled, the investment amount of the investor will be treated as sales income for relevant tax treatment. ?
(two) if the development contract or agreement stipulates the profit distribution of the project, it shall be handled in accordance with the following provisions:
1. The enterprise shall incorporate the operating profit of the project into the taxable income of the current period, uniformly declare and pay the enterprise income tax, and shall not distribute the project profit before tax. At the same time, it cannot be amortized in the cost or deducted from the relevant interest expenses before tax because of accepting the investment from the investor. ?
2. The project operating profit of the investor shall be treated as dividends and bonuses for relevant tax treatment.
Article 37 Where an enterprise invests the land use right in real estate development projects of other enterprises for the purpose of developing products, it shall be handled in accordance with the following provisions:
When an enterprise obtains a development product for the first time, it shall decompose the development product into two economic businesses: transferring the land use right and purchasing the development product for income tax treatment, and calculate and confirm the gains or losses from the transfer of the land use right according to the fair market value of the development product (including the first acquisition and subsequent acquisition) that should be obtained by the project.
Four. contract tax
Reply from State Taxation Administration of The People's Republic of China of the Ministry of Finance of People's Republic of China (PRC) to the Department of Finance of Henan Province (Caishui [2000]14)
First, how to determine the subject of deed tax payment and tax basis for cooperative housing construction between Party A and Party B..
Unit A owns land, and unit B provides funds to build houses. Unit B has obtained part of the land use right of Unit A, which belongs to the transfer of land use right ownership. According to the "Provisional Regulations on Deed Tax in People's Republic of China (PRC)", unit B should levy deed tax, and the tax basis is the transaction price of land use right obtained by unit B..
The ownership of the above-mentioned house jointly built and shared by Party A and Party B will not be transferred, and deed tax will not be levied.
Verb (abbreviation of verb) the Supreme People's Court's explanation of cooperative housing.
(1) "the Supreme People's Court's Answers to Several Issues Concerning the Trial of Real Estate Development and Management Cases before the Implementation of the Real Estate Management Law" (Fa Fa Fa [1996] No.2)
Five, on the use of state-owned land to invest in cooperative housing.
18. The party who enjoys the land use right cooperates with others to build a house with the land use right as an investment. The joint construction contract signed is a special form of paid transfer of land use rights. In addition to the examination and approval procedures for joint construction, the registration procedures for the change of land use rights shall also be handled according to law. Failing to go through the registration formalities for the change of land use right, the joint construction contract shall generally be deemed invalid, but if both parties have actually performed the contract, or the house has been basically completed, and there are no other illegal acts, the joint construction contract may be deemed valid, and both parties shall be ordered to go through the registration formalities for the change of land use right.
22, called cooperative housing, is actually a land use right transfer contract, according to the actual nature of the contract. If the transfer of land use rights conforms to the law, the contract may be deemed valid, but not invalid in the name of cooperative housing.
(II) Interpretation of the Supreme People's Court on the Application of Law in the Trial of State-owned Land Use Right Contract Disputes [2005] No.5;
Article 14 A cooperative real estate development contract as mentioned in this Interpretation refers to a cooperative agreement in which the parties jointly invest, share profits and share risks in real estate development with the provision of land use rights and funds as the basic contents.
Twenty-fourth cooperative real estate development contracts stipulate that the parties who provide land use rights do not bear business risks and only charge fixed interest, which is regarded as a contract for the transfer of land use rights.
Twenty-fifth cooperative real estate development contract stipulates that the parties who provide funds do not bear the business risks and only allocate a fixed number of houses, which shall be recognized as a house sales contract.
Twenty-sixth cooperative real estate development contract stipulates that the parties who provide funds do not bear the business risks but only charge a fixed amount, which shall be regarded as a loan contract.
Twenty-seventh cooperative real estate development contract stipulates that the parties who provide funds do not bear operational risks and only use the house by lease or other forms shall be recognized as a house lease contract.