With the rapid development of capital market and the further deepening of corporate restructuring, equity transfer has become very common. I. Several ways of tax planning for equity transfer 1. Transfer the equity at a low price to a low-tax area, and then transfer the equity at the market price, and use the tax depression to achieve the purpose of saving taxes. The most difficult step in this operation is how to transfer the equity at a low price. According to Article 35 of the Tax Administration Law, if the tax basis declared by a taxpayer is obviously low and there is no justifiable reason, the tax authorities have the right to verify the tax payable. We usually use the following methods to achieve the goal of low price. (1) According to the regulations: "The income from equity transfer that meets one of the following conditions is obviously low, which is regarded as justified: (1) It can produce valid documents to prove that the production and operation of the invested enterprise have been greatly affected by the adjustment of national policies, resulting in the transfer of equity at a low price; (2) Inherit or transfer the equity to the spouse, parents, children, grandparents, grandchildren, grandchildren, brothers and sisters who can provide legal and valid identity certificates, and the dependents or supporters who have direct support or support obligations to the transferor; (3) Internal transfer of non-transferable shares held by employees of the enterprise as stipulated in relevant laws, government documents or articles of association, and there are relevant materials that fully prove that the transfer price is reasonable and true; (4) Other reasonable circumstances in which both parties to the equity transfer can provide valid evidence to prove its rationality. " (2) Planning by using the formation mechanism of "market price" For non-listed companies, the fair price of equity is not easy to obtain, and the formation mechanism of "market price" is too diverse, so tax can be saved by planning the market price, such as the transaction price in the same period, and equity transfer can be carried out before PE/VC participates, or before the equity price rises sharply. We can also reduce the market price by directly reducing the evaluation price of equity, and plan the market value basis of equity by reducing the net asset value of the target enterprise through reasonable accounting standards (methods). By designing related business transactions, we can realize the reasonable output of profits involved in stock transfer, delay the entry time of business income, reduce the comprehensive evaluation value of stock transfer time nodes and reduce tax. (3) Create the transaction price under specific circumstances, such as using judicial auction, arbitration, judicial deduction of equity pledge and other means to realize the rationality of the transaction price. By the same token, under certain circumstances, the drastic adjustment of national policies and industrial policies, the reduction of the equity value of the target enterprise, and the equity transfer in the case of financial difficulties and crises are all methods that constitute a reasonable low price. Of course, this method should be used within reasonable limits (the tax authorities think that equity transfer price is unfair and will re-examine the transaction tax payable). 2. The special tax treatment of deferred tax planning method can be applied to equity acquisition that meets certain conditions, so as to achieve the effect of deferred tax payment. According to the document Caishui [2009] No.59, if the asset restructuring business meets and chooses to apply special tax treatment, both the acquired enterprise and the shareholders of the acquired enterprise take the original tax basis of the acquired equity as the newly invested tax basis. In particular, according to the latest provisions of the Announcement on Several Issues Concerning the Collection and Management of Enterprise Income Tax in Enterprise Restructuring Business (State Taxation Administration of The People's Republic of China Announcement No.48, 20 15), enterprises only need to declare and submit relevant materials when making annual final settlement, which greatly relaxes the applicable conditions for special tax treatment. In addition, State Taxation Administration of The People's Republic of China recently issued the Announcement on the Collection and Management of Enterprise Income Tax on Transferred Assets (Equity) (No.2015), which clarified and clarified the relevant issues concerning the application of "tax exemption" (special tax treatment) to transferred assets (Equity). The policy of "deferred tax payment" for equity transfer is extended to all enterprises, and enterprises can actively strive for the application of this policy in the process of equity transfer. Tax planning may not be completely legal, but at least it should not be illegal, which is the legal bottom line of tax planning. Under the background of comprehensively promoting the rule of law and standardization of tax law enforcement, tax planning needs the participation of tax lawyers more and more. Compared with traditional lawyers, tax agents, certified public accountants, etc. Tax lawyers have a compound professional background of "tax plus law", so tax-related legal risks can be fully considered in tax planning, so that the tax planning scheme can be truly implemented! Two. When approving the income from equity transfer, the competent tax authorities must choose the income from equity transfer in the order of net assets approval method, analogy method and other reasonable methods. (1) Verification method of net assets The income from equity transfer is verified according to the net assets per share or the share of net assets corresponding to equity. If the land use rights, houses, unsold real estate, intellectual property rights, exploration rights, mining rights, equity and other assets of the invested enterprise account for more than 20% of the total assets of the enterprise, the competent tax authorities may refer to the asset appraisal report issued by the legally qualified intermediary agency provided by the taxpayer to verify the income from equity transfer. If the equity transfer occurs again within 6 months and the net assets of the invested enterprise have not changed significantly, the competent tax authorities may refer to the asset evaluation report of the invested enterprise at the time of the last equity transfer to verify the equity transfer income. (2) The analogy method ① refers to the equity transfer income of the same shareholder or other shareholders of the same enterprise under the same or similar conditions; (2) Approved by referring to the equity transfer income of enterprises in the same industry under the same or similar conditions. (III) Other Reasonable Methods If it is difficult for the competent tax authorities to verify the income from equity transfer by using the above methods, they may do so by using other reasonable methods. 3. The transfer price is obviously low, and valid documents must be issued for justified reasons (1) to prove that the invested enterprise is greatly affected by the adjustment of national policies, resulting in the low-price transfer of equity; (2) Inherit or transfer the equity to the spouse, parents, children, grandparents, grandchildren, grandchildren, brothers and sisters who can provide legal and valid identification, as well as the supporter or supporter who has the direct obligation to support or support the transferor; (3) Internal transfer of non-transferable shares held by employees of the enterprise as stipulated in relevant laws, government documents or articles of association, and there are relevant materials that fully prove that the transfer price is reasonable and true; (4) Other reasonable circumstances in which both parties to the equity transfer can provide effective evidence to prove its rationality.
Legal objectivity:
Article 34 of the Law on the Administration of Tax Collection
When collecting taxes, tax authorities must issue tax payment vouchers to taxpayers. When a withholding agent withholds or collects taxes, if a taxpayer requests the withholding agent to issue a certificate of withholding or collecting taxes, the withholding agent shall issue it.
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The collection and suspension of taxes, as well as the reduction, exemption, refund and overdue tax, shall be implemented in accordance with the provisions of the law. Where the State Council is authorized by law, it shall be implemented in accordance with the administrative regulations formulated by the State Council.
No organ, unit or individual may, in violation of the provisions of laws and administrative regulations, arbitrarily make decisions on tax collection, suspension, tax reduction, exemption, tax refund, overdue tax and other decisions inconsistent with tax laws and administrative regulations.