I. Cases
(A) Overview of case enterprises
Guangxi Construction Engineering Group Co., Ltd. Guangxi Construction Engineering? ) is a large state-owned enterprise directly under the Guangxi District Government, with 22 subsidiaries, including 5 construction enterprises with special qualifications and 28,000 full-time employees. In 2065438+2007, the top 500 Chinese enterprises ranked 19 1, with operating income of 90.5 billion yuan and profits exceeding 2 billion yuan for the first time. As the vanguard of construction enterprises in the western region, Guangxi Construction Engineering plans to exceed 654.38 billion+08.2 billion in operating income in 2022, ranking among the top 500 enterprises in the world.
Guangxi Construction Engineering Financial Control Investment Co., Ltd. Financial Control Company? ) is an investment company under Guangxi Construction Engineering Co., Ltd., which combines industry with finance and develops new business; Originally, it was a wholly-owned subsidiary, but due to the financing method of clearing shares and paying debts, the share ratio dropped to 96.7 1%, and now it is an absolute holding subsidiary. The company has a registered capital of 500 million yuan and total assets of 4 billion yuan.
Guangxi Construction Engineering Group No.1 Construction Engineering Co., Ltd. Company A? ) is the main subsidiary of Guangxi Construction Engineering Co., Ltd., which was originally a wholly-owned subsidiary. Later, due to debt financing, the share ratio dropped to 93.08%, and now it is an absolute holding subsidiary. The registered capital is 10 billion yuan, and the annual operating income of 20 17 years is11600 million yuan.
Nanning Dadu Microfinance Co., Ltd. Microfinance Company? ) is a wholly-owned subsidiary of Jianyi Company and a secondary subsidiary established by Guangxi Construction Engineering Co., Ltd. in May 2065438+2004 to integrate the upstream and downstream industrial chain loan business within the Group; At the end of 20 17, the net assets of small loan companies were 447.25 million yuan, including 400 million yuan of registered capital and 47.25 million yuan of small loan companies.
(2) Enterprise reorganization matters
Because the financial control company and the small loan company belong to the financial sector of Guangxi Construction Engineering Co., Ltd., their business has a certain intersection; According to Guangxi Construction Engineering's Notice on Integrating Nanning Dadu Microfinance Co., Ltd. into Guangxi Construction Engineering Financial Control Investment Co., Ltd. (Guijian Group Zheng Zi [2065438+07] No.51), the Group integrated the microfinance company of Jianyi Company into a financial control company as a whole.
Second, the relevant tax law basis
Notice on Several Issues Concerning the Handling of Enterprise Income Tax in Enterprise Restructuring Business (Caishui [2009] No.59)? Corporate restructuring? Refers to the transactions when the economic or legal structure outside the production and operation business of the enterprise changes greatly, including asset acquisition, equity acquisition, merger and division, etc. Article 5 of the Notice stipulates that special tax treatment shall be applied if the enterprise reorganization meets the following conditions at the same time: ① The reorganization business is not aimed at reducing or delaying tax payment, but it has reasonable commercial purposes; (2) The equity ratio of the acquired enterprise shall not be less than 75% of the total equity of the acquired enterprise; (3) After the reorganization, the enterprise maintains its original substantive operation for 12 months; ④ The party that has acquired the equity in the reorganization business shall not transfer the equity within 12 months after the reorganization date. ?
Notice on Issues Concerning Enterprise Income Tax Handling in Promoting Enterprise Reorganization (Caishui [20 14] 109) In the equity acquisition, the equity ratio of the above-mentioned acquired enterprise is adjusted from 75% to 50% of the total equity of the acquired enterprise. Article 3 of the Notice stipulates that for the transfer of assets and equity, between 65,438+000% directly controlled wholly-owned resident subsidiaries and between 65,438+000% directly controlled resident subsidiaries of the same or more resident enterprises, assets or equity can be transferred according to the net book value. In the case that the main purpose is not to reduce or delay the payment of taxes, and there are reasonable commercial purposes, assets or equity can be transferred continuously.
Three. Relevant legal basis of state-owned assets
Article 2 of the Interim Measures for the Administration of Free Transfer of State-owned Property Rights of Enterprises (No.239 [2005] of the State Council State-owned Assets Supervision and Administration Commission) refers to the free transfer of state-owned property rights of enterprises between wholly state-owned enterprises.
Article 31 of the Measures for the Supervision and Administration of State-owned Assets Transactions of Enterprises (Order No.32 of the Ministry of Finance of the State-owned Assets Supervision and Administration Commission of the State Council), which came into effect on June 24, 20 16, stipulates that if property rights are transferred between enterprises funded by the same country and their holding enterprises at all levels or actually controlled enterprises due to internal reorganization and integration, the funded enterprises may adopt the method of non-public agreement transfer after fulfilling the internal decision-making procedures. Article 32 stipulates that, Where an enterprise transfers its property rights through non-public agreement transfer, the transfer price can be determined on the basis of the asset evaluation results issued by the evaluation agency in the local SASAC intermediary agency library or the net asset value in the latest audit report of the enterprise after performing the internal decision-making procedure.
Four. Comparison of stock right change schemes in enterprise restructuring
Based on the above tax laws and state-owned assets laws and regulations, combined with the actual situation of the first construction company and the financial control company, the following three equity change schemes are put forward, and the tax cost and tax risk are compared to choose the best scheme.
(1) Free transfer
Under the free transfer scheme, Jianyi Company and Jinkong Company signed the Equity Transfer Agreement of Small Loan Company. This transfer is carried out within the scope of consolidated statements of Guangxi Construction Engineering Co., Ltd., and does not involve changes in the scope of consolidated statements, so it has no impact on the rights and interests of individual enterprises and has no significant impact on current finance, production and operation. In this scheme, the first construction company and financial control company only need to take the book value of their investment in small loan companies as the target of this transfer.
According to the analysis, free transfer is a special way to transfer the state-owned property rights of enterprises, and it is a resource optimization means to comprehensively allocate the state-owned assets of various departments in the form of free on the premise of merger and reorganization. It has administrative characteristics, which reduces the resistance and cost of resource allocation and improves the speed of regulation. Free transfer itself does not have the property of tax exemption, although in this scheme, the financial holding company takes the equity of a small loan company allocated by a construction company as the paid-in capital, and the relevant provisions of special tax treatment are applied in the way, which is in line with the scope of tax exemption. However, both Yijian Company and Jinkong Company have introduced clear shares and real debts as strategic partners. Guangxi Construction Engineering holds 93.08% equity of First Construction Company and 96.7 1% equity of Jinkong Company, which are not in compliance with the Notice on Promoting Enterprise Restructuring (Caishui [20 14] 109). /kloc-What are the conditions for free transfer between wholly-owned resident subsidiaries directly controlled by 0/00%? Requirements. Combined with the Interim Measures for the Administration of Free Transfer of State-owned Property Rights of Enterprises issued by the State-owned Assets Supervision and Administration Commission of the State Council, free transfer refers to the free transfer of state-owned property rights of enterprises between wholly state-owned enterprises. This document is also stipulated in order to prevent the loss of state-owned assets. Therefore, although the cost of equity transfer is low, it is impossible to adopt the free transfer scheme in compliance.
(2) Non-public agreement transfer
Under the non-public agreement transfer scheme, the First Construction Company and Financial Control Company signed the Equity Non-public Agreement Transfer Agreement on the equity transfer of microfinance companies. This equity transfer is carried out within the scope of consolidated statements of Guangxi Construction Engineering Co., Ltd., and does not involve changes in the scope of consolidated statements, so it does not affect the rights and interests of individual enterprises, but it does have a certain impact on the current finance, taxation and production and operation of a construction company. The specific accounting treatment is as follows.
Accounting treatment of a construction company;
Debit: Bank deposit is 447.25 million.
Loan: long-term equity investment? Microfinance company 400 million
The investment income is 47.25 million yuan.
Accounting treatment of financial control companies:
Borrow: long-term equity investment? Micro-credit company 447.25 million
Loan: Bank deposit is 447.25 million yuan.
Through analysis, the first construction company adopts the non-public agreement transfer method, and the price of transferring the equity of the small loan company shall not be lower than the asset evaluation result or the net asset value in the latest audit report of the small loan company (namely 20 17). Because Jianyi Company, the equity transferor, confirmed the income of 47.25 million yuan, it violated the Notice on Promoting Enterprise Restructuring (Cai Shui [20 14] 109). Neither company has confirmed the profit or loss financially? Special tax treatment, so it does not meet the requirements of special tax treatment, and can only be treated in accordance with general tax treatment. Therefore, in this scheme, although the first construction company and the financial control company belong to the equity transfer under the same control, the net assets of the small loan company should be 447.25 million yuan as the target of this transfer, the first construction company should confirm the investment income of 47.25 million yuan, thus affecting the total profit of the first construction company in the current period of 47.25 million yuan, and at the same time, it should pay the enterprise income tax of 7,087,500 yuan (2065438+ Although this scheme can achieve the purpose of enterprise restructuring,
(3) Equity payment acquisition
Jinkong Company acquired the equity of Jianyi Company's small loan company by means of equity payment, and signed an equity payment acquisition agreement. This equity acquisition is carried out within the scope of the consolidated statements of Guangxi Construction Engineering Co., Ltd., and does not involve the change of the scope of the consolidated statements, so it will not affect the rights and interests of individual enterprises, nor will it have a significant impact on the current finance, production and operation. When financial control company purchases 0/00% equity of small loan company/kloc-from Jianyi company, it will pay 0/00% of the total equity transaction in the form of equity payment of financial control company, which is intended as the capital increase of Jianyi company to financial control company. The purpose of this is to meet the relevant conditions of special tax treatment, and the specific accounting treatment is as follows.
Accounting treatment of a construction company;
Borrow: long-term equity investment? Financial control company 447.25 million yuan
Loan: long-term equity investment? Small loan company 400 million yuan
The capital reserve is 47.25 million yuan.
The accounting treatment of financial control company is as follows:
Borrow: long-term equity investment? Small loan company 447.25 million yuan
Loan: paid-in capital is 447.25 million yuan.
The analysis shows that under the equity payment acquisition scheme, the first construction company takes the equity of the microfinance company as the consideration for capital increase and becomes the shareholder of the financial control company, which conforms to the relevant provisions of special tax treatment (① the proportion of equity payment for acquisition is 100%, which is greater than the prescribed proportion; (2) The financial control company will not change the original substantive operation of the small loan company within 12 months after obtaining the equity of the small loan, and will not transfer the equity at the same time). The advantage of this scheme is that no matter whether it is a construction company or a financial holding company, there will be no tax impact in the process of this equity acquisition and shareholding, which not only realizes the purpose of restructuring Guangxi construction enterprises, but also does not need to pay corporate income tax. After the acquisition of the equity of the small loan company, the registered capital of Jinkong Company increased from 565,438+07 million to 964 million, which greatly enhanced the strength of Jinkong Company as an investment platform for construction projects in Guangxi and its ability to undertake PPP projects. To sum up, this scheme is obviously more feasible than the first two schemes. What is the essence of the special tax treatment for this equity acquisition? Deferred tax payment? When a construction company sells its equity in financial control company, it will face tax-related problems again. (as shown in the table)
Summary and thinking of verbs (abbreviation of verb)
Under the background of the continuous reform of state-owned enterprises in China, enterprise assets reorganization has become one of the important strategic means for the development of state-owned enterprises. If the state-owned enterprises can reasonably use the above-mentioned tax laws and state-owned assets regulations to make tax planning for the reorganization of state-owned enterprises, it will prevent tax risks, save a lot of cash flow for enterprises, and help state-owned enterprises to improve their core competitiveness and further improve quality and efficiency in the fierce market competition environment. Therefore, the author believes that the essence of special tax treatment for enterprise restructuring business is? Deferred tax payment? , its focus? The main purpose is to reduce or delay the payment of taxes, which has a reasonable commercial purpose? . Therefore, it is suggested that enterprises make full use of the process of assets or equity reorganization. Deferred tax payment? Policies can not only complete the reform and reorganization of state-owned enterprises, but also optimize the tax burden of the overall framework of group companies. Some suggestions are put forward to prevent tax-related risks in the reorganization of state-owned enterprises.
(1) Establish and improve the internal prevention mechanism for tax-related risks of state-owned enterprises.
First, state-owned enterprises must combine the prevention of tax-related risks with daily management. Implant the concept of tax-related risk prevention into the whole enterprise development concept, and let all employees participate. Clarify the division of responsibilities for tax risk prevention, improve mutual synergy, and form a top-down and stable tax-related risk prevention system for state-owned enterprises.
Second, state-owned enterprises should establish their own tax-related risk management library. Insist on absorbing daily tax-related risk cases and knowledge points and update the latest tax law; By comparing the specific enterprise reorganization plan with the enterprise tax-related risk management database, the possible tax risk points can be accurately identified before implementation, so it is suggested that the leaders or strategic departments of state-owned enterprises adjust the specific reorganization plan and take measures to prevent tax risks.
(b) Establish an independent and professional tax department in the internal organs of state-owned enterprises.
State-owned enterprises should focus on financial personnel with the most professional knowledge of taxation, such as those with professional qualifications of certified public accountants, certified tax agents or senior accountants, and set up independent enterprise tax departments to fully demonstrate the tax risks involved in the reorganization of state-owned enterprises. Because there are many levels of tax laws and regulations in China, if enterprise tax personnel have a vague understanding of tax law during the demonstration, they should communicate with the competent tax authorities in time before continuing the project demonstration to prevent tax-related risks.
(3) the reorganization plan decided by the competent tax authorities before the state-owned enterprises implement enterprise reorganization.
Different ways of enterprise restructuring enjoy different tax incentives, so the restructuring plan of state-owned enterprises should fully consider what kind of restructuring methods can adapt to the preferential tax policies; Any tax-related issues in the restructuring plan, such as whether the contract form and organizational structure conform to the provisions of the tax law, must be fully communicated with the competent tax authorities before the implementation of enterprise restructuring, so that they can give professional guidance on the tax feasibility of this enterprise restructuring plan and do a good job in preventing tax-related risks beforehand.
References:
Shine Wong. Study on the Enterprise Income Tax Risk of the Merger and Reorganization of State-owned Enterprises [J]. Accounting Newsletter, 20 17, (02):1119.
[2] Lin Yuexiu. Thoughts on tax-related issues of free transfer of property rights in mergers and acquisitions of state-owned enterprises [J]. Accounting study, 20 17, (23): 0 1-03.
[3] Yu Wen. Case study on special reorganization business [J]. Accounting, 20 17, (05): 13- 14.
(Author: Guangxi Construction Engineering Group Co., Ltd.)