Generally speaking, the organizational forms of enterprises are divided into three categories, namely, corporate enterprises, partnership enterprises and wholly-owned enterprises. From the legal point of view, the company is a legal person enterprise, and the investor shall bear limited liability to the extent of capital contribution. In addition, it can be carried out from other angles, such as domestic-funded enterprises and foreign-funded enterprises; Sino-foreign joint ventures and Sino-foreign cooperative enterprises among foreign-funded enterprises.
The second level of enterprise organizational form classification is divided within the company. This layer is divided into two pairs of enterprise relations, namely the head office and the parent company. Different forms of enterprise organization have different tax levels, and investors must consider the influence of different forms of enterprise organization on enterprises when setting up enterprises.
First, the comparative choice between joint stock limited companies and partnership enterprises
Our country implements different tax regulations for companies and partnerships. The state levies corporate tax on the company's operating profits, and the after-tax profits are distributed to investors as dividends, and individual investors also need to pay personal income tax in one lump sum. Partnership enterprises, however, do not pay corporate tax on their operating profits, but only levy personal income tax on the profits shared by partners.
Example 1: A company runs a company with an annual profit of 200,000 yuan. What is the way to set up a company in order to get the biggest tax preference?
Scheme 1: set up a limited liability company.
Enterprise income tax =20×33%=6.6 (ten thousand yuan)
Personal income tax =(20-6.6)×20%=2.68 (ten thousand yuan) After-tax income =20-6.6-2.68= 10.72 (ten thousand yuan) Scheme 2: Personal income tax for establishing a sole proprietorship enterprise =20×35%-0.675=6.325.
Besides, everything has two sides. When choosing its positive side, we should also consider its negative side, and we can't generalize it. For example, regardless of its main factors, as far as partnerships and joint stock companies are concerned, partnerships are superior to joint stock companies, because partnerships only collect personal income tax once, while joint stock companies have to collect corporate income tax again; If the tax base, tax rate, preferential policies and other factors of the enterprise are comprehensively considered, the joint-stock company also has advantages, because the national tax preferential policies are generally only applicable to joint-stock companies. For example, Guo Shui Fa (1997)No. 198 stipulates that in joint-stock enterprises, individual shareholders' capital reserves are converted into shareholders' income, and personal income tax is not levied. Secondly, when calculating the overall after-tax income of the two types of enterprises, we should not only look at the nominal tax rate, but also look at the overall tax rate. Because the "integration" measures of joint stock limited companies are generally better than those of partnership enterprises, "integration" means eliminating overlapping taxes and some taxes will be eliminated; Third, if there are both domestic residents and overseas residents among the partners, there will be cross-border taxation of partnership enterprises, and the taxation will be different due to different nationalities. In general, large enterprises should choose joint-stock companies, and small enterprises should adopt partnership enterprises. Because large-scale enterprises need more funds, financing is more difficult and management is more complicated. It is more difficult to operate in the form of partnership.
Second, the comparative choice between subsidiaries and branches.
The so-called subsidiary refers to a subordinate company effectively controlled by the parent company or one of a series of companies directly or indirectly controlled by the parent company; The so-called branch is a branch of a company, which is often synonymous with a permanent establishment in the national tax.
When an enterprise wants to operate across regions, it is usually to set up subsidiaries or branches in other regions. Legally speaking, a subsidiary is an independent legal person, but a branch is not. The differences between them are as follows: first, the establishment procedures are different. The establishment of independent accounting subsidiaries in different places requires a lot of procedures, which are complicated and costly, while the procedures for setting up branches are relatively simple and costly; Second, the forms of accounting and tax payment are different. Subsidiaries are independent accounting and tax declaration, which is the first choice of local tax authorities, while subsidiaries are not independent legal persons. The head office accounts for profits and losses and pays taxes uniformly. If there is a profit or loss, the branch and the head office can offset each other before paying the income tax. Third, tax incentives are different. Subsidiaries bear all tax obligations, and branches only bear limited tax obligations. The subsidiary is an independent legal person and can enjoy various preferential policies such as tax exemption period and preferential policies; As non-independent legal persons, branches cannot enjoy these preferential policies. For example, China's preferential policies such as "two exemptions and three reductions" and "preferential tax rate" for foreign-invested enterprises can only be applied to independent legal person enterprises.
Example 2: Blue Sky Company is a group company with two branches, A and B. In 2002, the headquarters realized a profit of 30 million yuan, A branch realized a profit of 5 million yuan, and B branch lost 3 million yuan. The enterprise income tax rate is 33%, then the tax payable of the group company in 2002 = (3000+500-300) × 33% = 653%. Assume that the income tax rate of subsidiaries A and B is still 33%. The corporate income tax payable by the company's headquarters is 3000× 33% = 990 (ten thousand yuan), while the corporate income tax payable by Company A is 500× 33% = 165 (ten thousand yuan). Due to the loss of Company B in 2002, enterprise income tax should not be paid in that year.
Then, the corporate income tax payable by Blue Sky Company in 2002 is: 990+165-155 (ten thousand yuan), which is higher than the overall tax of the head office:1155-1056. If the income tax rates of the head office and subsidiaries are different, the above situation will change again.
Example 3: Nanjing Tianshun Corporation has set up two branches in Hainan and Zhuhai, of which the corporate income tax rate in Nanjing is 33%, and that in Hainan and Zhuhai is 15%. In 2002, the company realized a profit of 20 million yuan. The two subsidiaries in Hainan and Zhuhai realized profits of 2 million yuan and 3 million yuan respectively. The head office stipulates that 60% of the after-tax profits of subsidiaries will be remitted back to the head office and 40% will be kept by themselves. Then 2002 degrees: corporate income tax payable by the head office of the company =2000×33%=660 (ten thousand yuan); Enterprise income tax payable by Hainan subsidiary =200× 15%=30 (ten thousand yuan); Enterprise income tax payable by Zhuhai subsidiary =300× 15=45 (ten thousand yuan); Profits remitted by subsidiaries to headquarters. Income tax =255×(33%- 15%)=45.9 (ten thousand yuan) Total tax paid by Blue Sky Company =660+30+45+45.9=780.9 (ten thousand yuan) If the above two subsidiaries are changed into branches, the total tax paid by Blue Sky Company = (2000+200+30). Because the subsidiary and the parent company are not the same legal entity, the losses of the subsidiary cannot be merged into the account of the head office; The branch and the head office are the same legal entity, and the losses incurred in their operations can be offset by the head office. Therefore, when enterprises need to set up branches abroad or other places to expand their production and operation, in view of the unfamiliar local conditions, the production and operation are in the primary stage, and the possibility of losses is greater, we can consider setting up branches at the initial stage of entering the place, so that the losses incurred in other places can be offset at the head office to reduce the burden on the head office. When the production and operation are on the right track and the products can be sold and profitable, we should consider setting up branches to ensure that we can enjoy local preferential tax policies when making profits.
Third, the choice of private enterprises and individual industrial and commercial households
According to the current tax law, People's Republic of China (PRC) Enterprise Income Tax Law is applicable to private enterprises in China, and People's Republic of China (PRC) Individual Income Tax Law is applicable to individual industrial and commercial households. From the tax rate, the tax rate is 18% when the taxable amount of private enterprises is below 30,000 yuan, and 27% when the annual taxable income is between 30,000 yuan and 654,380+10,000 yuan. When the taxable amount of individual industrial and commercial households is 30,000 yuan, the applicable marginal tax rate is 20%, which seems to be directly higher than that of private enterprises. However, due to the cumulative tax rate applicable to individual industrial and commercial households, its actual tax rate is only 15.8%, which is lower than that of private enterprises 18%. When the taxable amount of individual industrial and commercial households is 654.38+10,000 yuan, the marginal tax rate is 35%, which is also higher than that of private enterprises, but the actual tax rate is only 28.25%. It can be seen that under the same profit level, individual industrial and commercial households get more benefits than private enterprises, but there are also many shortcomings, such as small scale and difficult business expansion. Private enterprises, on the other hand, have the characteristics of relatively strict organization, which can expand operations, reduce costs and improve profitability. Therefore, investors should consider all kinds of factors and make a favorable choice before investing.
Fourth, the choice of domestic and foreign-funded enterprises.
The so-called domestic-funded enterprises refer to enterprises founded by state-owned assets, collective assets and domestic personal assets. Including state-owned enterprises, collective enterprises, private enterprises, joint ventures and joint-stock enterprises. The so-called foreign-funded enterprise refers to an economic entity established in China with the approval of the China Municipal Government and with the participation of foreign capital. Mainly include: Sino-foreign joint ventures, Sino-foreign cooperative enterprises and wholly foreign-owned enterprises.
There are great differences in taxation between domestic and foreign-funded enterprises: the preferential tax rates of domestic-funded enterprises are small, which are 18% and 27%; The preferential rates of foreign-funded enterprises are relatively large, which are 15% and 24% respectively. The scope of application of preferential policies for domestic enterprises is narrow, mainly concentrated in the tertiary industry, that is, enterprises using "three wastes", labor service enterprises, school-run factories, welfare enterprises and so on. Foreign-funded enterprises have a wide range of applications, mainly including production enterprises, advanced technology enterprises, product export enterprises, and enterprises engaged in energy, transportation, port construction and other industries. And the time for domestic enterprises to reduce or exempt preferential policies is short, generally 1-3. In addition, the number of subjects to which domestic and foreign-funded enterprises apply taxes is also different, with domestic enterprises applying more than 10 and foreign-funded enterprises applying six taxes. It can be seen that foreign-funded enterprises enjoy more preferential policies and different taxes. Other things being equal, enterprises should choose to establish joint ventures.