I. Analysis of relevant tax policies for VAT input tax deduction
(A) People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Announcement No.2014 No.39 Analysis
According to the Announcement of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Issues Related to Taxpayers Issuing Special VAT Invoices Abroad (Announcement No.39 of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC), 20 14), issuing special VAT invoices abroad does not belong to falsely issuing special VAT invoices abroad.
1. Taxpayers sell goods or provide VAT taxable services to paying taxpayers;
2. The taxpayer has charged the taxpayer of the payer the price for selling goods, providing taxable services or providing taxable services, or obtained evidence for asking for the price;
3. The contents of the special VAT invoice issued by the taxpayer to the paying taxpayer in accordance with the regulations are consistent with the contents of selling goods, providing taxable services or taxable services, and it is a special VAT invoice legally obtained by the taxpayer and issued in its own name.
Based on the above-mentioned tax policy, the connotation of the first article is: logistics (labor flow); The second connotation is capital flow; The connotation of article 3 is the flow of votes. To sum up, according to People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Announcement No.39 (20 14), if the sales behavior or labor behavior is satisfied at the same time, the seller (labor provider), the issuer of the special VAT invoice and the payee of the payment are the same civil subject, or in other words, the four-stream consistent procurement behavior such as "contract flow, labor flow (logistics), capital flow and ticket flow" is satisfied.
(2) Analysis of Item (3) of Article 1 in Guo Shui Fa [1995] 192.
Item (3) of Article 1 of the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Strengthening the Administration of Value-added Tax Collection (Guo Shui Fa [1995] 192) stipulates: "When taxpayers purchase goods or taxable services and pay transportation expenses, the objects of payment must be consistent with the sales units and service providers who issue the deduction vouchers before they can declare the deduction of input tax, otherwise they will not be deducted." The document particularly emphasizes that "the payment object must be the same as the sales unit that issued the deduction voucher and the unit that provided the labor service", which means that it doesn't matter who pays, and it doesn't particularly emphasize that the payment unit must be the buyer or the labor service recipient. As long as the payee and the company that issued the special VAT invoice are the same company, the company that obtained the special VAT invoice can declare the deduction of VAT input tax, otherwise it cannot declare the deduction of VAT input tax. Based on this analysis, in order to deduct the VAT input tax, the following conditions must be met: the seller (labor provider) recorded in the contract-the shipper recorded in the contract flow, invoice or bill of lading-logistics, the billing unit recorded in the special VAT invoice-ticket flow, the actual payee-capital flow, etc. , so as to offset the VAT input tax.
Second, the legal theory and tax risk analysis of the inconsistency between logistics and contract flow, capital flow and ticket flow
The integration of logistics with contract flow, capital flow and ticket flow is an important legal requirement for general VAT taxpayers to deduct VAT input tax and avoid falsely issuing special VAT invoices. If "logistics is inconsistent with contract flow, capital flow and ticket flow", it means that only contract flow, capital flow and ticket flow are unified, while money flow and ticket flow are consistent, but due to the lack of logistics support and evidence, the apparent contract flow is easily suspected as a fake contract or a yin-yang contract. According to the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Decision of 〈NPC Standing Committee on Punishing the Crime of Falsely Issuing, Forging and Illegally Selling Special VAT Invoices (Fa Fa Fa Fa [1996] No.30), it belongs to "Falsely issuing special VAT invoices for others, introducing others for myself and others" without buying or selling goods or providing or accepting taxable services.
In fact, with the rapid development of modern logistics industry, it is very common that logistics is inconsistent with contract flow, capital flow and ticket flow. That is to say, when logistics is inconsistent with contract flow, capital flow and ticket flow, it is not necessarily an act of no real transaction or an act of falsely invoicing. As a tax authority responsible for tax collection and management, we should not only see the inconsistency between logistics and contract flow, capital flow and ticket flow, but also think of taxpayers falsely issuing special invoices for value-added tax. But according to the actual situation of the transaction, it is necessary to accurately judge whether they falsely issue special invoices for value-added tax.
Therefore, in purchasing practice, if "logistics is inconsistent with contract flow, capital flow and ticket flow", it will face certain tax risks: it is likely to be judged that there is no real transaction behavior and it is suspected of falsely issuing VAT invoices. Not only is it legally suspected of falsely issuing special invoices for value-added tax, but it can't deduct the input tax of value-added tax in tax law.
Three, logistics and contract flow, capital flow, ticket flow inconsistent contract signing skills and deduction of VAT cases.
In order to avoid the inconsistency between logistics and contract flow, capital flow and ticket flow, the tax risk of VAT input tax cannot be deducted. Mande Enterprise Services believes that tax risks should be solved and avoided through the following signing skills.
First of all, there must be a shipper clause in the purchase contract. This clause shall specify that the consignor (the seller's customer) of the goods sent to the buyer is the seller's long-term cooperative supplier.
Secondly, it must be emphasized in the purchase contract that the consignor is not the main basis of the goods seller in the purchase contract, such as the long-term purchase cooperation framework agreement between the goods seller and the real consignor in the purchase contract.
case analysis
Analysis on the signing skills of deducting VAT from the inconsistency between logistics and contract flow, capital flow and ticket flow in enterprise procurement business
(1) case introduction
Enterprise A is a building materials production enterprise, enterprise B is a trading company specializing in the distribution of building materials, and enterprise C is a general contracting enterprise. Enterprise C signed a purchase contract with enterprise B to purchase building materials at100000 yuan (excluding VAT), and paid1170000 yuan (including VAT) to enterprise B. Enterprise B issued100000 yuan (excluding VAT) to enterprise C, and the VAT was170. Enterprise A and enterprise B signed a long-term procurement framework agreement, stipulating that the goods purchased by enterprise B from enterprise A will be stored in the warehouse of enterprise A, and the goods sold by enterprise B to customers (potential purchasers) will be directly sent by enterprise A to the customers of enterprise B according to the delivery instructions of enterprise B. At the same time, the agreement also stipulates that enterprise A will issue a special VAT invoice of 17% to enterprise B. Enterprise B directly issues a special VAT invoice of 17% to enterprise C. Please analyze that enterprise C has received a special VAT invoice of 6.5438+million yuan (excluding VAT) issued by enterprise B, and the VAT amount is 6.5438+0.7 million yuan. How to sign a purchase contract without tax risk?
(2) Tax-related risk analysis and contract signing skills to avoid tax risks.
According to the jurisprudence and tax risk analysis of the inconsistency between logistics and contract flow, capital flow and ticket flow, the transaction behavior between enterprise C and enterprise B includes contract flow, capital flow and ticket flow, but there is no logistics, and the real shipper is enterprise A instead of enterprise B, which leads to the inconsistency between logistics and contract flow, capital flow and ticket flow. Specific as shown in the figure below:
As shown in the above figure, the tax risk faced by enterprise C is that enterprise C obtains the special VAT invoice issued by enterprise B and is suspected of falsely issuing the invoice, so it cannot deduct the VAT input tax. In order to realize the purpose of not falsely issuing special VAT invoices and deducting VAT input tax, Enterprise C and Enterprise B must correctly sign the following purchase contracts:
First of all, there must be a shipper clause in the purchase contract. This clause shall specify that the consignor of the goods sent to the buyer (enterprise C) is the long-term cooperative supplier of the seller (enterprise B).
Secondly, in the procurement contract, it must be emphasized that the main basis for enterprise A (consignor) to deliver goods to enterprise C is the long-term procurement cooperation framework agreement between enterprise B (seller of goods) and enterprise A (consignor).
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