Reference:
State Taxation Administration of The People's Republic of China No.27 Announcement No.20 20 10/0 issued the Announcement on Checking the Tax Basis of Individual Income Tax on Equity Transfer, and combined with practical work, explained how to judge and deal with the problem of obviously low price in practical work for your reference:
1. Policy provisions: Determine the tax basis according to the principle of fair trade.
(1) According to the individual income tax law and its detailed rules for implementation, the income from individual equity transfer belongs to the income from property transfer, and the balance after deducting the original value of the property and reasonable expenses from the income from property transfer is taxable income, and the individual income tax rate is 20%, which is levied on a per-time basis.
(II) The Notice of State Taxation Administration of The People's Republic of China on Strengthening the Management of Individual Income Tax on Equity Transfer (Guo [2009] No.285) stipulates that if the tax basis for declaration is obviously low (such as parity, low-price transfer, etc.) and there is no justifiable reason, the competent tax authorities may refer to the net assets per share or the share of net assets corresponding to the rights and interests enjoyed by individual shareholders for verification.
(3) The announcement clearly stipulates that the income obtained by a natural person from transferring the equity (shares) of the invested enterprise shall be calculated at the fair transaction price and the tax basis shall be determined. If the tax basis is obviously low without justifiable reasons, the competent tax authorities may adopt the methods listed in the announcement for verification.
Second, several key points should be grasped in policy application.
(1) First, grasp the subject matter and the transaction price.
1. The subject of the announcement is a natural person;
2. The specific tax object is the income obtained from the equity (shares) of the enterprise invested by natural persons;
3. The basis of taxation is the fair transaction price;
4. The equity transfer mentioned in the announcement does not include the share transfer of listed companies.
(2) Prerequisites for approving the expropriation.
Guoshuihan [2009] No.285 stipulates that the prerequisite for the approval of individual income tax on the income from equity transfer is "obviously low price" and "without justifiable reasons", which must be both.
(3) the transfer price is determined to be "obviously low"
1. The declared equity transfer price is lower than the initial investment cost or the price paid for acquiring equity and related taxes;
2. The declared equity transfer price is lower than the corresponding share of net assets;
3. The declared equity transfer price is lower than the equity transfer price of the same shareholder or other shareholders of the same enterprise under the same or similar conditions;
4. The declared equity transfer price is lower than the equity transfer price of enterprises in the same industry under the same or similar conditions;
5. Other circumstances identified by the competent tax authorities.
(4) the basis for judging "without justifiable reasons"
1. The judgment is "justified".
(1) The invested enterprise has suffered losses for more than three consecutive years (including three years);
(2) Transfer equity at a low price due to national policy adjustment;
(3) Transfer the equity to the transferor's spouse, parents, children, grandparents, grandchildren, grandchildren, brothers and sisters, and the dependents or supporters who are directly responsible for raising or supporting the transferor;
(4) Other reasonable circumstances as determined by the competent tax authorities.
2. In addition to the above four legitimate reasons, if equity transfer price: (1) is lower than the initial cost or the price paid and related taxes; (2) Although higher than the initial investment cost, but lower than the share of net assets; (3) It is lower than the transfer price of other shareholders to the same shareholder of the same enterprise; (4) equity transfer price of similar enterprises with the same or similar conditions may be recognized by the tax authorities because the tax basis is obviously low.
Third, the connotation of net assets
Net assets refer to owners' equity, which is the ownership of enterprise investors to the net assets of enterprises. The net assets of an enterprise are equal to the balance of all assets MINUS all liabilities in quantity.
Net assets = total assets-total liabilities = owners' equity (including: invested capital, capital reserve, surplus reserve and undistributed profits).
The share of net assets is the amount of net assets corresponding to the net assets per share or equity ratio enjoyed by taxpayers.
Four. Examination and approval methods with obviously low tax basis and no justifiable reason.
(1) Check the income from equity transfer with reference to the share of net assets corresponding to net assets per share or the proportion of equity enjoyed by taxpayers.
Example: kloc-0/:20101In June, Zhang San acquired 25% equity of enterprise A at a price of 2 million yuan (including the price and related taxes). 20 1 1 1 Zhang San transferred all the above shares to Li Si at a price of 2.5 million yuan.
Analysis: If the share of net assets corresponding to Zhang San's shareholding ratio in Enterprise A is less than 2.5 million yuan, Zhang San should declare and pay personal income tax according to the transfer price of 2.5 million yuan = (250-200) × 20% = 6.5438+10,000 yuan; If the net assets of enterprise A are140,000 yuan at the time of transfer, and the share of net assets corresponding to the equity ratio of enterprise A enjoyed by Zhang San is =1400× 25% = 3.5 million yuan, the tax authorities may consider that the basis for tax declaration is obviously lower than the corresponding share of net assets without justifiable reasons, and its approved tax basis should be 3.5 million yuan, and personal income tax should be paid = (350-200).
(2) According to the income from equity transfer approved by equity transfer price, under the same or similar conditions, the same shareholder or other shareholders of the same enterprise.
(three) with reference to the same or similar conditions of enterprises in the same industry in equity transfer price approved equity transfer income.
Example 3: Undertaking example 1, if enterprise B and enterprise A belong to the same industry and have similar enterprise conditions, corporate shareholders of enterprise B will transfer 25% of its equity in the joint equity exchange, and the listing price and actual transfer price are both 4 million yuan.
Analysis: In this case, the tax authorities can think that the tax basis of equity transfer is obviously low and there is no justifiable reason. Referring to equity transfer price's 4 million yuan, under the same or similar conditions, the income from Zhang San's equity transfer should be declared and calculated according to the transfer price of 4 million yuan, and the personal income tax should be paid = (400-200) × 20% = 400,000 yuan.
Special reminder in practical application of verb (abbreviation of verb)
(1) It is clearly stipulated in the announcement that the net assets of enterprises with intellectual property rights, land use rights, houses, exploration rights, mining rights and equity rights accounting for more than 50% of total assets must be evaluated and verified by intermediaries.
(2) equity transfer price refers to the money received by the equity transferor in the form of cash, non-monetary assets or equity.
(3) Cost price of equity refers to the amount of capital actually paid by the equity transferor to the China resident enterprise when investing in shares, or the equity transfer amount actually paid to the original transferor when purchasing equity.
(4) Income from equity transfer = Income from equity transfer-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.