When it comes to partnership income tax, the Notice of the Ministry of Finance and the State Administration of Taxation on Partnership Partner Income Tax (Caishui [2008] 159) is unavoidable, which is the cornerstone of partnership income tax and is also criticized. First of all, let's take a look at what is stipulated in Caishui [2008] 159.
1, taxpayer
A partnership enterprise takes each partner as the taxpayer.
If the partners of a partnership are natural persons, they shall pay individual income tax;
If the partners are legal persons or other organizations, they shall pay enterprise income tax.
2, the principle of tax payment
The income from the production and operation of a partnership and other income shall be divided first and then taxed.
The production and operation income and other income mentioned in the preceding paragraph include the income distributed by the partnership to all partners and the income (profit) retained by the enterprise in the current year.
After-tax is only a principle relative to enterprise income tax. That is, the partnership itself does not need to pay income tax, and all income is calculated to each partner according to the proportion of partners, and the income tax of each partner is calculated. Moreover, "score" does not mean direct distribution of income, but a calculation process. That is to say, in terms of tax treatment, the profits of the partnership are calculated under the personal names of each partner according to relevant regulations, and the tax revenue is calculated with the partners as taxpayers.
3. Calculation of partner's income
The partners of a partnership enterprise shall determine the taxable income according to the following principles:
(1) The partners of a partnership enterprise shall determine the taxable income from the production, operation and other income of the partnership enterprise according to the distribution ratio agreed in the partnership agreement.
(2) If the partnership agreement is not stipulated or clearly stipulated, the taxable income shall be determined according to the distribution ratio decided by the partners through consultation with all the income from production and operation and other income.
(3) If negotiation fails, the taxable income shall be determined according to the total production and operation income and other income and the proportion of the paid-in capital contribution of the partners.
(4) If the proportion of capital contribution cannot be determined, the taxable income of each partner shall be calculated on the basis of the total production and operation income and other income according to the number of partners.
The partnership agreement shall not stipulate that all profits shall be distributed to some partners.
This paragraph is basically consistent with the relevant provisions of the Partnership Enterprise Law, which embodies the main purpose of the partnership enterprise.
4. Calculation of taxable income
Calculated in accordance with the Provisions on Individual Income Tax of Investors in Sole proprietorship and Partnership Enterprises (Caishui [2000] No.91) and the Notice of the Ministry of Finance of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Relevant Issues Concerning the Adjustment of Pre-tax Deduction Standards of Individual Income Tax of Sole proprietorship and Partnership Enterprises (Caishui [2008] No.65).
1) Provisions of Caishui [2000] No.91
Individual income tax items and tax rates
The total income of a sole proprietorship enterprise or partnership enterprise (hereinafter referred to as the enterprise) in each tax year, the balance after deducting costs, expenses and losses, shall be regarded as the individual production and operation income of investors. According to the taxable items of "income from production and operation of individual industrial and commercial households" in the individual income tax law, the five-level excess progressive tax rate of 5%-35% is applied to calculate and collect individual income tax.
In the past few years, LP individuals who attract investment in some areas are gradually disappearing at the tax rate of 20%. Although some areas are still engaged in edge-scratching, this is actually a violation of the lower law of the upper law. Although some places give tax incentives, they are actually ineffective.
The total income mentioned in the preceding paragraph refers to all kinds of income obtained by enterprises engaged in production and business operations and activities related to production and business operations, including commodity (product) sales income, business income, labor income, project price income, property rental or transfer income, interest income, other business income and non-business income.
Calculation of personal income
Investors of a sole proprietorship enterprise shall regard all the income from production and operation as taxable income; Investors in a partnership enterprise shall determine the taxable income according to the total production and operation income of the partnership enterprise and the distribution ratio agreed in the partnership agreement. If the partnership agreement does not stipulate the distribution ratio, the taxable income of each investor shall be calculated according to the total production and operation income and the number of partners.
The income from production and operation mentioned in the preceding paragraph includes the income distributed by the enterprise to individual investors and the income (profit) retained by the enterprise in the current year.
Treatment of investing in multiple units
Where an investor establishes two or more enterprises (including participating in the establishment, the same below), at the end of the year, the taxable income obtained from all enterprises shall be summarized, and the applicable tax rate shall be determined accordingly, and the taxable amount shall be calculated and paid.
Where an investor establishes two or more enterprises, the personal expenses allowed to be deducted in accordance with the provisions of the first paragraph of Article 6 of these Regulations shall be deducted from the production and operation income of one enterprise at the investor's option.
The annual loss of an enterprise is allowed to be made up by the production and operation income of the enterprise in the next year. If the income in the next year is insufficient, it is allowed to continue to make up for it year by year, but the longest period shall not exceed 5 years.
If an investor establishes two or more enterprises, the annual operating losses of the enterprises cannot be made up across enterprises.
Tax withholding agent
Investors should report and pay individual income tax to the local competent tax authorities where the enterprise actually operates and manages. The income obtained by investors from the production and operation of the partnership enterprise shall be declared and paid by the partnership enterprise to the local competent tax authorities where the enterprise actually operates and manages, and the individual income tax return shall be copied to the investors.
According to the current situation that the third phase of Golden Tax is launched in Shanghai, when a partnership declares every month, it is required to fill in the ID information of all natural person partners and require associated bank cards. The tax will be deducted directly from the personal account and will not be remitted by the partnership. This major change will have a major impact on the cash flow of a single partner, will have a lot of impact on the fund LP, and will also affect the subsequent operation.
2) Provisions of Caishui [2008] No.65
The expense deduction standard for individual industrial and commercial households, sole proprietorship enterprises and partnership enterprises is uniformly determined as 42,000 yuan/year (3,500 yuan/month), and the wages of investors shall not be deducted before tax.
Reasonable wages and salaries actually paid to employees by individual industrial and commercial households, sole proprietorship enterprises and partnership enterprises are allowed to be deducted according to the facts before tax.
Trade union funds, employee welfare funds and employee education funds allocated by individual industrial and commercial households, sole proprietorship enterprises and partnership enterprises are deducted according to the facts within the standards of 2%, 14% and 2.5% of the total wages and salaries respectively.
Individual industrial and commercial households, sole proprietorship enterprises and partnership enterprises can deduct the part of advertising fees and business promotion fees that does not exceed 15% of the sales (business) income of the year; The excess shall be allowed to be carried forward and deducted in future tax years.
Business entertainment expenses directly related to production and operation incurred by individual industrial and commercial households, sole proprietorship enterprises and partnership enterprises in each tax year shall be deducted according to 60% of the amount incurred, but the maximum amount shall not exceed 5‰ of the sales (business) income of that year.
Later, a document (Guo Shui Han [20065438+0] No.84) was added to clarify the tax payment of interest, dividends and bonuses.
Income from interest, dividends and bonuses obtained by a sole proprietorship enterprise or partnership enterprise from foreign investment shall not be incorporated into enterprise income, but shall be separately regarded as income from interest, dividends and bonuses obtained by individual investors, and personal income tax shall be calculated and paid according to the tax item of "income from interest, dividends and bonuses". If foreign investment in the name of a partnership is divided into interest, dividends and bonus income, the interest, dividends and bonus income of each investor shall be determined in accordance with the spirit of Article 5 of the Supplementary Provisions of Caishui [2000] No.91,and personal income tax shall be calculated and paid according to the taxable items of "interest, dividend and bonus income" respectively.
Where the partners of a partnership are legal persons or other organizations, the profits of the partnership shall not be offset by the losses of the partnership when calculating and paying enterprise income tax.
On the contrary, you can use the profits of the partnership to offset its losses! ! ! !
Influence on accounting treatment
According to the above documents, if an enterprise as a legal person invests in a partnership, regardless of whether the invested enterprise distributes profits in the current year, it shall calculate and pay enterprise income tax according to the taxable income of the invested partnership shared by the enterprise as a legal person. Therefore, there will be a temporary difference in the above matters, that is, income tax is calculated and paid in the sharing period, and income tax is not required in the distribution period. Therefore, when calculating the sharing income tax, it is necessary to confirm a deferred income tax asset at the same time, and then reverse the deferred income tax asset later.
In addition, in most partnership agreements, the division of fees will be agreed at the beginning, which will be handled by the investors who distribute the income after the principal division. Whether the investor classifies the investment as long-term equity investment or as available-for-sale financial assets, it is necessary to clarify the essence of the sub-return. If the essence of dividend distribution is dividend distribution, it should be recognized as investment income. If the essence of sharing is cost recovery, it should be recognized as reducing the investment cost, if it is not seen, it should be considered as dividend.