Obviously, the tax law stipulates that eligible dividends are drawn from after-tax profits, so after-tax profits are not only the only source of dividends and bonuses, but also the maximum amount of dividends paid by the invested enterprises. There are usually two ways to distribute a fixed dividend. First, the invested unit distributes outside the total after-tax profits created by the enterprise; Second, the total after-tax profit created by the invested unit is lower than that created by the enterprise.
In the first case, the fixed dividend received by the investment enterprise will exceed the dividend that should be distributed according to the proportion of capital contribution, and the source of the excess is not the after-tax profit of the invested unit. If this part is also tax-free, it is obviously abusing the dividend tax exemption system to avoid tax.
In the second case, the fixed dividend received by the investment enterprise will be lower than the dividend that should be distributed according to the proportion of capital contribution, and the invested unit will retain a large amount of surplus. Obviously, the dividend comes from the after-tax profit of the invested unit, which meets the tax exemption conditions.
If fixed dividends are agreed from the perspectives of equity transfer and liquidation, will the tax burden of investment enterprises be different?
If the investing enterprise expects to transfer the equity, the invested enterprise will distribute it beyond the total after-tax profits created by the enterprise, which will greatly reduce the net assets of the enterprise. If the equity transfer conforms to the principle of independent trading, the transfer price will be reduced accordingly. The capital gains of investment enterprises are reduced due to excessive dividend distribution, and the tax law should tax capital gains, which correspondingly reduces the tax burden of capital gains. On the contrary, if the distribution of the invested unit is less than the total after-tax profits created by the enterprise, the capital gains tax will be increased. Therefore, in order to transfer the equity, the investing enterprise must try its best to get more dividends, which will give the invested enterprise greater dividend pressure, resulting in the distribution of the invested enterprise exceeding the total after-tax profits created by the enterprise, and the investing enterprise will use the dividend tax exemption policy to reduce the capital gains tax. This violates the original intention of dividend tax exemption policy to avoid double taxation, and abuses dividend tax exemption to avoid tax, which has great tax risks.
If an investment enterprise expects to liquidate the invested enterprise, the amount of remaining assets shared by the shareholders of the liquidation enterprise is equivalent to the part of the accumulated undistributed profits and accumulated surplus reserves of the liquidation enterprise calculated according to the shareholding ratio of shareholders, which should be recognized as dividend income, and the tax exemption policy is still applicable. Therefore, as long as the dividends before the increase do not exceed the total after-tax profits, the tax burden will not change.
In short, when residents and enterprises agree to distribute with fixed dividends, there are two tax risks to be noted: first, the tax risks brought by partial pre-tax distribution, and the fixed dividends exceed the dividends that should be distributed according to the proportion of capital contribution; Second, abuse the tax exemption policy to avoid taxes, and deliberately use dividend tax exemption to reduce capital gains tax. Enterprise tax personnel need to seriously understand the true meaning of dividend and master its restrictive conditions in order to bring the greatest tax benefits to enterprises.