(A) the tax risk of natural person's transfer of equity

1. Tax risk of whether the equity transfer agreement is fulfilled.

According to "Reply of State Taxation Administration of The People's Republic of China on Taxpayer's Collection of Individual Income Tax on Equity Transfer" (Guo [2005] 130), the individual income tax on equity transfer is handled in the following two ways:

(1) If the equity transfer contract has been completed, the equity has been changed and the income has been realized, the transferor shall pay personal income tax according to law. After the transfer, the two parties signed an execution agreement to terminate the original equity transfer contract and return the equity, which is a second equity transfer, and the personal income tax levied on the previous transfer will not be returned. Based on this provision, if the equity transfer agreement has been fulfilled, the sign of performance is that the transferee has paid the equity transfer money to the transferor and gone through the formalities of industrial and commercial change registration in the local industrial and commercial department. Then the two parties signed an execution agreement to terminate the original equity transfer contract and return the equity, and the personal income tax levied on the previous transfer will not be returned.

(2) If the equity transfer contract has not been fulfilled, the original equity transfer contract is terminated due to the execution of the arbitration commission's ruling on the termination of the equity transfer contract and the supplementary agreement, and the transferred equity has been recovered at the original price, because the equity transfer behavior has not been completed and the income has not been fully realized, the equity income will cease to exist with the termination of the equity transfer relationship. According to the relevant provisions of the Individual Income Tax Law and the Tax Administration Law, starting from the principle of rationality of administrative actions, taxpayers should not pay individual income tax. Based on the above provisions, individuals must consider whether the equity transfer agreement is fulfilled or not. If they don't want to transfer their equity in essence, they don't need to go through industrial and commercial registration or pay the equity transfer fee after signing the equity transfer agreement. Then the equity transfer agreement is legally unfulfilled and can be returned to the agreement, which can save personal income tax in equity transfer.

2. Tax risk of individual income tax paid by individual equity transfer.

The tax risks of personal income tax paid by individuals when transferring shares are mainly reflected in two aspects:

On the one hand, the legal procedure of personal transfer of equity does not comply with tax laws and regulations. In practice, there has always been a phenomenon: the transferor and the transferee privately sign a parity or discount equity transfer agreement, and directly go through the formalities of industrial and commercial change registration in the local industrial and commercial department through social relations without going through the local tax authorities. This is not in line with the provisions of the tax law, and there is a risk of being inspected and punished by the tax authorities.

On the other hand, the transfer price in the equity transfer agreement often does not conform to the principle of independent transaction, that is, it does not conform to the discount or parity conditions stipulated in the tax law, and less personal income tax is declared and paid. Article 3 of the Notice of State Taxation Administration of The People's Republic of China on Strengthening the Management of Individual Income Tax on Income from Equity Transfer (Guo [2009] No.285) stipulates: "The tax authorities shall strengthen the assessment and examination of the tax basis for income from equity transfer. We should carefully examine the information about the income from equity transfer declared by withholding agents or taxpayers, and judge whether the equity transfer behavior conforms to the principle of independent trading, rational economic behavior and actual situation. If the declared tax basis is obviously low (such as parity, low-price transfer, etc.). If there is no justifiable reason, the competent tax authorities may refer to the share of net assets corresponding to the net assets per share or the equity ratio enjoyed by individual shareholders. "

(2) Tax risks in the equity transfer of enterprise shareholders.

"Regulations for the Implementation of the Enterprise Income Tax Law of People's Republic of China (PRC)" (the State Council Order No.512 of the People's Republic of China) Article 83 The dividend, bonus and other equity investment income between qualified resident enterprises mentioned in Item (2) of Article 26 of the Enterprise Income Tax Law refers to the investment income obtained by resident enterprises directly investing in other resident enterprises. Dividends, bonuses and other equity investment income mentioned in Item (2) and Item (3) of Article 26 of the Enterprise Income Tax Law do not include the investment income obtained by resident enterprises who have continuously held shares that are publicly issued and circulated for less than 12 months. Guoshuihan [2065438+00] No.79 makes it clear that the income from equity transfer is the balance after deducting the cost of acquiring equity. When calculating the income from equity transfer, an enterprise shall not deduct the amount distributable according to equity from the retained earnings of shareholders such as undistributed profits of the invested enterprise. Based on the provisions of the above tax law, the tax risks in the legal person equity transfer agreement are mainly reflected in the following aspects: when the invested enterprise has accumulated undistributed profits and surplus reserves for many years, the transfer price of the legal person equity transfer includes the product of the accumulated undistributed profits and surplus reserves of the invested enterprise for many years and the proportion of the equity held by the transferor's shareholders, which makes equity transfer price a premium transfer, thus making the transferor's shareholders pay more corporate income tax.

There are many tax risks in transferring equity after capital increase, mainly involving corporate shareholders and natural person shareholders. Therefore, if the shareholder is an enterprise or a legal person, in order to reduce the enterprise income tax when transferring the equity, the retained earnings can be distributed first and then transferred, which can reduce the expenses. Equity transfer is a major event for both parties, so equity transfer must be cautious, and relevant clauses must be clearly defined in the equity transfer agreement.