2. The interest expense of non-financial enterprises borrowing from non-financial enterprises shall not exceed the amount calculated according to the interest rate of similar loans of financial enterprises in the same period.
(II) Article 1 of the Announcement on Several Issues Concerning Enterprise Income Tax (State Taxation Administration of The People's Republic of China Announcement No.34 20 1 1) stipulates that according to Article 38 of the Implementation Regulations, the interest expenses borrowed by non-financial enterprises from non-financial enterprises shall be deducted before tax. In view of China's current interest rate requirements for financial enterprises, enterprises should provide "a description of the interest rate of similar loans of financial enterprises in the same period" when paying interest for the first time and deducting it before tax according to the contract requirements, so as to prove the rationality of their interest expenses. "Description of similar loan interest rates of financial enterprises in the same period" shall include the similar loan interest rates provided by any financial enterprise in this province at the time of signing the loan contract. Financial enterprises should be enterprises engaged in loan business with the approval of relevant government departments, including banks, finance companies, trust companies and other financial institutions. "Interest rate of similar loans in the same period" refers to the loan interest rate provided by financial enterprises under the condition that the loan term, loan amount, loan guarantee and corporate reputation are basically the same. It can be the average interest rate of the same kind announced by financial enterprises in the same period, or the actual loan interest rate provided by financial enterprises to some enterprises. Taxpayers should note that the interest rates of similar loans of financial institutions in the same period are not limited to the benchmark interest rates stipulated by the People's Bank of China, but also include floating interest rates.
(III) Special circumstances: According to Article 2 of the Announcement of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Tax Issues Concerning the Sale of Assets by the Lessee in Financing Sale and Lease-back Business (State Taxation Administration of The People's Republic of China Announcement [20 10]No. 13), according to the current enterprise income tax law and relevant provisions on income determination, the sale of assets by the Lessee in financing sale and leaseback business is not recognized as sales income, so it is a financing lease. During the lease term, the financing interest paid by the lessee is deducted before tax as the financial expenses of the enterprise. Therefore, part of the interest expenses paid by the lessee in the financing sale and leaseback business are not limited by the interest rates of similar loans of financial enterprises in the same period.
Two. Interest expenses incurred by an enterprise in borrowing from related parties that exceed the asset-liability ratio standard shall not be deducted before tax (1) The Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Tax Policy Issues Concerning the Pre-tax Deduction Standard for Interest Expenses of Related Parties of Enterprises (Caishui [2008] 12 1No.) stipulates in Article 1 that when calculating taxable income, The interest expense actually paid by the enterprise to the related party shall not exceed the following proportion and the interest expense actually paid by the tax enterprise to the related party conforms to the provisions of Article 2 of this Notice, and the ratio of creditor's rights investment to equity investment of the related party is: 1. For financial enterprises, it is 5:1; 2. Other enterprises, 2:1;
(2) Article 2 of the Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Tax Policy Issues Concerning Pre-tax Deduction Standards for Interest Expenses of Related Parties of Enterprises (Caishui [2008] No.65438 +02 1) stipulates that an enterprise can provide relevant information in accordance with the relevant provisions of the tax law and its implementing regulations, and prove that relevant trading activities conform to the principle of independent trading;
Or if the actual tax burden of the enterprise is not higher than that of the domestic related party, the interest expenses actually paid to the domestic related party shall be deducted when calculating the taxable income.
(III) Calculation of related party interest expenses that cannot be deducted From the above provisions, it can be seen that the pre-tax deduction of related party loan interest expenses is not only limited by the interest rate of similar loans of financial enterprises in the same period, but also limited by the debt-to-capital ratio. Many financial personnel can't understand the provisions of Caishui [2008] 12 1, that is, if the loan amount obtained by a financial enterprise from its related party exceeds 500% of its equity investment, and that of other enterprises exceeds 200%, the interest expenses of the excess part shall not be deducted before tax, and the interest expenses of the excess part shall be deducted before tax according to the loan interest rate of similar financial institutions in the same period. Example: The equity investment of Company A (non-financial enterprise) is 33 million yuan. In 20X2, it borrowed 99 million yuan from its related parties according to the loan interest rate of financial institutions in the same period, and the loan interest was 4.5 million yuan. The company's debt ratio is 3(9900÷3300), which is greater than its debt ratio of accepting investment from related parties. Therefore, it is necessary to adjust the taxable income: non-deductible interest expense = all related party interest actually paid in the current year × (1- standard ratio ÷ related debt-equity ratio) = 450× (1-2). It can also be calculated as follows: interest expenses allowed to be deducted before tax = 3300× 2× 450 ÷ 9900 = 300 (ten thousand yuan), and interest expenses that cannot be deducted = 450-300 = 150 (ten thousand yuan).
(4) Matters needing attention in interest expenses of related parties
1. The calculation formula "non-deductible interest expense = interest of all related parties actually paid in the current year ×( 1- standard ratio ÷ related debt-capital ratio)" is not applicable to inter-enterprise loans with no related relationship.
2. Equity investment is not necessarily paid-in capital. According to Article 119 of the Regulations for the Implementation of the Enterprise Income Tax Law of People's Republic of China (PRC), equity investment refers to the investment accepted by an enterprise without repayment of principal and interest, and the investor has ownership over the net assets of the enterprise. Equity investment is the amount of owner's equity on the balance sheet of an enterprise. When the beneficiary's equity is less than the sum of paid-in capital and capital reserve, the equity investment is the sum of paid-in capital and capital reserve.
When the sum of paid-in capital and capital reserve is less than paid-in capital, equity investment is paid-in capital. That is, equity investment is the larger of owner's equity, paid-in capital, capital reserve and paid-in capital. Original text of People's Republic of China (PRC) State Taxation Administration of The People's Republic of China on printing and distributing Article 86 of the Notice (Guo Shui Fa 20092): "Equity investment refers to the amount of owner's equity listed in the balance sheet of an enterprise. If the owner's equity is less than the sum of paid-in capital (share capital) and capital reserve, the equity investment is the sum of paid-in capital (share capital) and capital reserve;
If the sum of paid-in capital (share capital) and capital reserve is less than paid-in capital (share capital), equity investment is paid-in capital (share capital). "
3. Debt investment is not limited to direct investment. According to Article 119 of the Regulations for the Implementation of the Enterprise Income Tax Law of People's Republic of China (PRC), debt investment refers to the interest-paying financing that the enterprise obtains directly or indirectly from related parties and needs to repay the principal and pay interest, or needs to be compensated in other ways. The creditor's rights investment indirectly obtained by enterprises from related parties includes: ① creditor's rights investment provided by related parties through unrelated third parties;
(2) The creditor's rights investment provided by an unrelated third party shall be guaranteed by the related party and bear joint liability;
③ Other creditor's rights investments with substantial liabilities indirectly obtained from related parties.
4. If an enterprise wants to deduct the interest of related parties from the debt capital ratio, it can prepare and save it according to Articles 89 and 90 of the Implementation Measures for Special Tax Adjustment (Guo Shui Fa [2009] No.2), and provide the information required by the tax authorities for the same period to prove that the investment amount, interest rate, term, financing conditions and debt capital ratio of related creditor's rights conform to the principle of independent trading.
Three. If the interest expenses incurred by an enterprise in borrowing from an individual do not meet the deduction conditions stipulated in the tax law, they shall not be deducted before tax. (1) Notice of State Taxation Administration of The People's Republic of China on Pre-tax Deduction of Enterprise Income Tax for Interest Expenses incurred by Enterprises Borrowing from Natural Persons (Guo [2009] No.777) stipulates that, The enterprise income tax deduction shall be calculated according to the conditions stipulated in Article 46 of the Enterprise Income Tax Law of People's Republic of China (PRC) and the Notice of State Taxation Administration of The People's Republic of China, Ministry of Finance of People's Republic of China (PRC) on Tax Policy Issues Concerning the Pre-tax Deduction Standard for Interest Expenses of Related Parties of Enterprises (Cai Shui [2008] 12 1No.).
(2) The interest expenses incurred by an enterprise in borrowing from its internal employees or other persons other than those specified in Article 1, if the borrowing conditions meet the following conditions at the same time, shall not exceed the amount calculated according to the interest rate of similar loans of financial enterprises in the same period? According to the provisions of Article 8 of the Tax Law and Article 27 of the Regulations for the Implementation of the Tax Law, deduction is allowed.
1. The loan between enterprises and individuals is true, legal and effective, and there is no illegal fund-raising purpose or other illegal acts;
2. The enterprise signed a loan contract with the individual. The document is very clear, so I won't explain it.
4. If the enterprise investor fails to pay the due capital in full within the prescribed time limit, the interest expenses incurred by the enterprise from overseas borrowing cannot be fully deducted. The Official Reply on the Deduction of Interest Expenses before Enterprise Income Tax Due to Enterprise Investors' Inadequate Capital Contribution (Guo [2009] No.312) stipulates that if enterprise investors fail to pay their due capital contribution in full within the prescribed time limit, the interest incurred by enterprises borrowing from abroad is equivalent to the investor's interest.
This provision is easy to understand, because if an enterprise investor fails to pay its due capital contribution in full within the prescribed time limit, the interest payable equivalent to the difference between the actual capital contribution paid by the investor and the due capital contribution within the prescribed time limit shall be borne by the investor himself, which naturally does not belong to the reasonable expenditure of the enterprise and cannot be deducted before the enterprise income tax. Calculation formula: loan interest that cannot be deducted in each calculation period of the current year = loan interest of the current period × unpaid registered capital of the current period ÷ loan amount of the current period;
The total interest that an enterprise can't deduct before enterprise income tax within one year = the sum of loan interest that can't be deducted in each calculation period of that year. The calculation period is based on the period when the paid-in capital and loan balance of the enterprise remain unchanged within one year: an enterprise borrows 6,543.8+0.5 million yuan in 20X3, with an annual interest rate of 6,543.8+0.5 million yuan. The enterprise was established in 20X2, with a registered capital of 6,543.8+0.2 yuan, which should be 6,543.8+0.2 yuan in 20X2. Interest that cannot be deducted before enterprise income tax for 20X3 years =15 ÷12× 5× 60/150+15 ÷12× 7× 40//kloc-0.
Five, the interest expense business must comply with the provisions of other relevant laws and regulations, otherwise it is true, legal and reasonable that the expenses incurred in the taxpayer's business activities can be deducted before tax. Legality means that no matter whether the expenditure actually occurs or is reasonable or not, if it is illegal and does not conform to the relevant provisions of the tax law, even if it can be used as an expense according to the financial accounting regulations or systems, it shall not be deducted before the enterprise income tax. The legality is obvious, that is, it is not allowed to deduct illegal expenses before tax.
For example, buying and selling bank acceptance bills is a common and representative business in daily work. The discount interest of most enterprises in buying and selling bank acceptance bills is recorded in "financial expenses-interest expenses (discount interest)", and the accounting basis used is usually receipts, self-made payment vouchers and discount vouchers other than the company name. And no tax adjustment will be made in the final settlement of enterprise income tax. In fact, this practice has left considerable tax risks for enterprises. From the point of view of bills alone, because the compliant bills (local tax interest invoices) have not been obtained, the discounted interest expenses cannot be deducted before tax. Then, can the enterprise obtain the local tax interest invoice, which can be deducted before tax? According to Article 10 of People's Republic of China (PRC)'s Negotiable Instruments Law, the issuance, acquisition and transfer of bills should follow the principle of honesty and credit, and have real trading relationship and creditor-debtor relationship. The acquisition of the bill must pay the consideration, that is, the corresponding price recognized by both parties of the bill should be paid. Obviously, the sale of bank acceptance bills violates the People's Republic of China (PRC) Bill Law, and even if the enterprise obtains the local tax interest invoice, it shall not be deducted before tax.
You don't need to get an invoice for the pre-tax deduction of loan interest expenses. In practice, in addition to the interest expenses of borrowing from banks, many enterprises collect the interest expenses of borrowing from non-financial enterprises and individuals with receipts or payment vouchers, and there is no tax adjustment at the final settlement. In actual work, from the point of view of the enterprises contacted, the interest expenses paid by subsidiaries to the "cash pool" of enterprise groups have not obtained the invoices supervised by the local taxation bureau. In the financial company mode, the self-made bills filed by the banking regulatory bureau are generally used, and in the settlement center mode, the self-made receipts are used as settlement vouchers. Can the interest charges charged by these settlement vouchers be deducted before tax? Before answering this question, let's look at several tax policies:
1. Article 20 of the Measures for the Administration of Invoices in People's Republic of China (PRC) (Order No.587 of the State Council of the People's Republic of China) stipulates that when units and individuals sell goods, provide services and engage in other business activities, and collect money from outside, the payee shall issue invoices to the payer;
Under special circumstances, the payer will issue an invoice to the payee.
2. The Notes on Business Tax Items stipulates that loans belong to "finance and insurance" tax items, and loans refer to the act of lending funds to others for use. No matter financial institutions or other units, as long as they lend funds to others, they should be regarded as lending activities and business tax should be levied according to the tax item of "financial insurance".
3. Notice on Collection of Business Tax on Unified Lending and Repayment by Non-financial Institutions (Caishuizi [2000] No.7)? 1. In order to alleviate the financing difficulties of small and medium-sized enterprises, the competent department of the enterprise or the core enterprise in the enterprise group (hereinafter referred to as the general borrower) borrows money from financial institutions, distributes the borrowed funds to subordinate units (including independent accounting units and non-independent accounting units), and collects interest from financial institutions to repay the financial institutions, and no business tax is levied. Second, the unified borrower shall allocate funds to subordinate units, and shall not charge interest to subordinate units at a level higher than the loan interest rate paid to financial institutions. Otherwise, it is regarded as having the nature of engaging in loan business, and the business tax is levied in full on the interest charged to the subordinate units. "
From the above three provisions, we can draw a conclusion:
1. If the interest expenses charged by the enterprise to related parties need to pay business tax, an invoice shall be issued;
If the business tax is not paid, there is no need to issue an invoice.
2. The borrowing cost of an enterprise from an unrelated natural person shall be true, lawful and effective. Individuals who receive interest need to cooperate with enterprises to apply for issuing invoices on behalf of the competent local tax authorities, and bear the corresponding business tax, urban construction tax, education surcharge, local tax surcharge and personal income tax. If an enterprise "pays taxes on behalf of individuals", it is generally difficult for tax authorities to agree to pre-tax deduction.
3. In practice, the tax authorities usually recognize the bills issued by financial companies (non-bank financial institutions) and filed by the banking regulatory bureau, and each subsidiary can make pre-tax deduction with this bill;
For the receipts issued by the settlement center, the tax authorities usually consider them as non-compliant bills and are not allowed to deduct them before income tax. Enterprises should obtain invoices supervised by tax authorities before tax deduction.
Therefore, "unified borrowing and unified repayment" refers to the pre-tax deduction certificate of enterprise income tax without paying the interest expenses of business tax. General tax authorities are not required to issue invoices for interest income, but they can use receipts to deduct it before tax. Other non-financial institutions should obtain interest invoices before they can be charged before tax. In order to deduct the interest expense of not paying business tax before enterprise income tax, there should also be sufficient supporting materials (headquarters: bank loan contract, intra-group loan interest expense sharing agreement, unified loan principal and interest expense sharing calculation table and other related supporting materials, subsidiaries: receipts for actually obtaining loans and paying interest expenses) to prove that the loan interest expense belongs to the nature of "unified loan and unified repayment".