The listing information shows that the old shareholders did not give up the preemptive right in this equity transfer. The transferor requires the intended transferee to simultaneously accept all the 265,438+0 Wal-Mart equity projects listed and transferred by the transferor on the Shanghai Stock Exchange. In addition, it is also required that the intended transferee shall not transfer the equity of the target company to the outside world within five years after becoming a shareholder of the target company, unless the original shareholder agrees.
The shareholding structure of Beijing Wal-Mart is as follows: Wal-Mart (China) Investment Co., Ltd. holds 65% and China Resources SZITIC Investment Co., Ltd. holds 35%.
As a resident enterprise registered in Shenzhen, China Resources SZITIC Investment Co., Ltd. cannot obtain the cost information of its shareholding in Beijing Wal-Mart through public channels. The balance of its creditor's rights is 42,644.438+09110,000 yuan, and the corresponding expenses are estimated to be 42,643.38+09,438+10,000 yuan. The transfer condition is cash as the transfer consideration.
The following only analyzes the tax problems of China Resources' transfer of equity and creditor's rights.
First, whether the payment is invoiced.
Article 2 of the Notice of State Taxation Administration of The People's Republic of China, Ministry of Finance of People's Republic of China (PRC) on Business Tax on Equity Transfer (Caishui [2002] 19 1No.) stipulates that no business tax is levied on equity transfer.
Therefore, the transfer of shares of Beijing Wal-Mart by China Resources is not subject to business tax.
Article 1 of the Provisional Regulations on Business Tax stipulates that units and individuals that provide labor services, transfer intangible assets or sell real estate in People's Republic of China (PRC) are taxpayers of business tax and shall pay business tax in accordance with these regulations.
Article 2 stipulates that the business tax items and tax rates shall be implemented in accordance with the schedule of business tax items and tax rates attached to these Regulations.
It can be seen that the transfer of creditor's rights does not belong to "providing labor services, transferring intangible assets and selling real estate" as stipulated in the Business Tax Regulations, that is, it does not belong to the scope of business tax collection, and China Resources does not levy business tax on the transfer of creditor's rights of Beijing Wal-Mart.
According to the provisions of Article 19 of the Measures for the Administration of Invoices, units and individuals that sell goods, provide services and engage in other business activities shall collect money from the outside, and the payee shall issue invoices to the payer; Under special circumstances, the payer will issue an invoice to the payee. With reference to Article 19 of the Detailed Rules for the Implementation of the Provisional Regulations on Business Tax, if the payment is made to a domestic unit or individual, and the behavior of the unit or individual falls within the scope of business tax or value-added tax collection, the invoice issued by the unit or individual shall be the legal and valid certificate.
As China Resources does not levy business tax on the transfer of equity and creditor's rights, it does not engage in business activities. When obtaining the transfer payment, there is no need to issue an invoice to the transferee.
Second, whether the equity creditor's rights in the transfer clause respectively indicate the impact of stamp duty.
According to the Provisional Regulations on Stamp Duty and its detailed rules for implementation, stamp duty is only levied on the vouchers listed in the tax items and tax rates table and other vouchers determined by the Ministry of Finance. Unlisted vouchers do not need to pay stamp duty. Taxable vouchers listed at present include: (1) purchase and sale contracts, processing contracts, construction project contracts, property leasing, cargo transportation, warehousing, loans, property insurance, technology contracts or vouchers of a contractual nature; (2) Transfer of property rights; (3) Business account books; (4) Rights and licenses; (5) Other tax vouchers determined by the Ministry of Finance.
Article 10 of the Notice of State Taxation Administration of The People's Republic of China on the Interpretation and Provisions on Some Specific Issues of Stamp Duty (Guo Shui Fa [19 1] 155) stipulates that the taxation scope of the property ownership transfer certificate in the "property ownership transfer certificate" tax item is: movable property, real estate ownership transfer certificate registered by the government management authority, and enterprise equity.
Therefore, when signing the China Resources Equity Transfer Contract, both China Resources and the transferee shall affix their seals according to the Certificate of Property Right Transfer, and the tax rate shall be 0.5 ‰, and the tax basis shall be the amount contained in the contract. A contract to transfer creditor's rights signed in cash for payment of consideration does not belong to the scope of taxable documents and does not need to be stamped.
It is particularly important to note that Article 17 of the Detailed Rules for the Implementation of the Provisional Regulations on Stamp Duty stipulates that different tax items and tax rates shall apply to the same voucher because it contains more than two economic matters. If the amount is recorded separately, the tax payable shall be calculated separately and applied according to the total amount of tax payable; If the amount is not recorded separately, a tax stamp with high tax rate is applicable.
Therefore, if China Resources transfers equity and creditor's rights, and the transfer amounts of equity and creditor's rights are indicated in the contract respectively, China Resources and the transferee shall pay stamp duty for the equity transfer part, but not for the creditor's rights part; If the transfer amount of equity and creditor's rights is not stipulated in the contract, China Resources and the transferee shall also pay stamp duty at 0.5 ‰ of the transfer amount of creditor's rights. It can be seen that the transfer amount of equity and creditor's rights is not stipulated in the contract, which will increase the stamp duty of China Resources and the transferee.
The author noticed that China Resources quoted the amount of equity separately from the amount of creditor's rights in the listing price of equity transfer and creditor's rights. Creditor's rights usually have the possibility of bad debts, but because they are transferred together with equity, the possibility of bad debts is small. Transferring the creditor's rights at a fair price in the quotation can minimize the stamp duty burden of China Resources and the transferee.
Three. business income tax
The Regulations for the Implementation of the Enterprise Income Tax Law stipulates that the income from property transfer refers to the income obtained by an enterprise from the transfer of fixed assets, biological assets, intangible assets, equity, creditor's rights and other property.
Therefore, the income from China Resources' transfer of equity and creditor's rights belongs to the income from property transfer and should be included in all the income of China Resources for enterprise income tax. Related equity and creditor's rights costs and stamp duty can be deducted before tax.
Since the creditor's rights are transferred at a fair price, there is no loss involved and there is no asset loss declaration. In case of loss in equity transfer, China Resources shall report to its competent tax authorities before tax.