Tax Planning On The Allocation Of Packaged Assets

The company is a wholly owned subsidiary of the company B, and the company is a subsidiary company of the company B, and now the company's subsidiary assets are pferred to a company, and the company's book assets are 10000 yuan, including 1 million 600 thousand yuan in currency assets, 5 million 600 thousand yuan in receivables, 5 million 600 thousand yuan in other receivables, 10 million yuan in fixed assets, 30 million yuan in fixed assets, 3 million yuan in fixed assets, 31 million 800 thousand yuan in land use rights, 50 million yuan in liabilities, 5 million 600 thousand yuan in short-term loans, 24 million yuan in payable accounts, and $80 in other payments, and the tax payable is $8 million, payable on employees' salaries in Yuan Yuan, and in long-term payables. In practice, there is an example of a company.

There are 300 employees in the company, 20 of which are part-time employees in branch offices.

The case is a major asset reorganization. How to make reasonable use of tax incentives and reduce tax burden for enterprises is the key to the success of this reorganization.

To this end, we may wish to analyze the case from value-added tax, income tax and other taxes.

In the company law and the relevant laws, the word "pfer" is rarely used, and there is no suitable explanation from Baidu search. There are "free pfers" in the documents pferred from state-owned assets. In the daily operation of companies, we can not use the word "pfer" because of the restriction of the company law, but the "pfer" is widely used in the tax law. The application of income tax documents and the deed tax documents are also used many times, but what is the pfer?

The most detailed stipulation in the enterprise income tax document is the notice of the State Administration of Taxation on the issue of tax collection of assets (equity) pfer enterprises (the fortieth announcement of the State Administration of Taxation No. 2015).

"(1) between the parent and subsidiary companies directly controlled by 100%, the parent company pfers the shares or assets held by the parent company to the subsidiary company at the book value, and the parent company receives the 100% equity interest of the subsidiary company.

The parent company is treated according to the increase of long-term equity investment, and the subsidiary is treated in accordance with the accepted investment (including the capital stock, the same below).

The basis for calculating the tax base of a parent company's shares is to determine the original tax base of equity or assets.

(two) between the parent and subsidiary companies directly controlled by 100%, the parent company pfers the shares or assets held by the parent company to the subsidiary company by book value, and the parent company does not receive any equity or non equity payment.

Parent company scour down

(including capital accumulation, the same below), and subsidiaries are treated according to their investment.

(three) between the 100% parent companies directly controlled, the subsidiary pfers the shares or assets held to the parent company at its book value, and the subsidiary does not receive any equity or non equity payment.

The parent company is processed according to the recovered investment, or processed according to the accepted investment, and the subsidiary company is dealt with by reducing the paid down capital.

The parent company shall reduce the tax base for holding the shares of the subsidiary company according to the original tax base of the Transferred Equity or assets.

(four) between the subsidiary companies directly controlled by the same or the same parent company, under the parent company's leadership, a subsidiary pfers its shares or assets to the other subsidiary company's book value at the net book value, and the draw party has not obtained any equity or non equity payment.

The drawing party shall be treated according to the owner's equity and shall be treated according to the accepted investment.

"

The four cases stipulated in the above documents are equivalent to the definition of pfer.

In practice, in addition to the application of tax documents, asset restructuring is mainly applicable to industrial and commercial documents. In the case of industrial and commercial changes, the word "pfer" must not be used. The reorganization does not conform to the industrial and commercial documents. The registration of enterprises will not be carried out and may cause legal risks. Therefore, it is necessary to standardize the four situations in the perspective of the company law so as to meet the requirements of reorganization.

From the point of view of the text, the first case belongs to the parent company's investment in non monetary assets to its subsidiaries.

In the second case, the parent company has not obtained any equity or non equity payment.

It is a complex matter for the parent company to reduce the paid up capital (including capital accumulation and the same below) and deal with the subsidiary according to the investment. "A company's reduction of the paid in capital is a very complex matter. Only the company's capital reduction or division can reduce the registered capital. Therefore, this situation is that after the parent company's capital reduction or division, the shareholders of the parent company will invest in the non monetary assets or merge the separate companies and subsidiaries.

In the third case, the parent company withdraws investment and the subsidiary company reduces capital or separation. The shareholders of the subsidiary company will invest capital or separate assets to the parent company, and the parent company will accept the investment according to the investment, because the shareholders of the subsidiary company are the parent company themselves and invest in themselves, so it is hard to encounter in practice.

In the fourth case, because the party has not obtained any equity or non equity payment, the subsidiary company has invested or merged the other parent subsidiary with non monetary assets.

The above situations are dealt with in addition to the first one involving non monetary assets investment, and the rest are capital reduction or separation and merger plus non monetary assets investment. The latter three cases are the combination of more than two reorganization procedures. Therefore, the so-called pfer in corporate income tax refers to non monetary assets investment or capital reduction, division plus investment or merger.

The notice of the State Administration of Taxation on the issue of value added tax on assets reorganization of taxpayers (state tax administration Announcement No. thirteenth of 2011) stipulates that "in the process of asset reorganization, a taxpayer pfers all or part of the physical assets and the associated creditor's rights, liabilities and labor force to other units and individuals in the form of merger, separation, sale and replacement. It does not fall within the scope of the value-added tax, and the pfer of goods involved does not impose VAT."

The fiscal 2016 "36" document stipulates that five of the non taxable items shall be pferred to all other units and individuals in the process of asset reorganization through merger, division, sale and replacement, together with the associated creditor's rights, liabilities and labor force, including the pfer of the real property and the right to the use of land.

The two documents mentioned above include "merger, separation, sale and replacement" as a way of reorganization, but whether the pfer is allowed to be restructured by the non tax restructuring of the value-added tax. According to the previous analysis, the pfer is a combination of investment or investment and capital reduction, separation and merger. The merger and division is the restructured method stipulated in the paper. Is the reduction of capital the permitted way? Capital reduction and investment belong to the same type, all of which are the sale of assets and the trading of equity as the consideration price. Only the reduction of the capital price is the withdrawal of equity interest, and the consideration of the investment is the issuance of shares. Therefore, capital reduction and investment should be a special form of "sale".

Are all the ways of reorganization as stipulated in the VAT documents, but are the combinations restructured? The State Taxation Administration's announcement on the issue of value added tax on taxpayers' assets reorganization (the sixty-sixth announcement of the State Administration of Taxation, 2013) stipulates that "in the process of asset reorganization, taxpayers can pfer all or part of their physical assets and their associated creditor's rights and liabilities through the merger, division, sale, replacement, etc., and the final pferee and the recipient of the labor force are the same units and individuals. The relevant provisions of the State Administration of Taxation on the issue of taxpayers' asset restructuring related to value added tax" (the State Administration of Taxation Announcement No. thirteenth of 2011) are still applicable. From the above analysis, the pfer is a combination of investment or investment and capital reduction, separation and merger.

From the perspective of the document, the combination is the pfer of the final pferee to the same unit and individual. Therefore, the combination is also a way to allow no taxation to be restructured under the VAT document.

To sum up, the pfer is a restructuring method stipulated in the VAT non tax document, and the premise of the pfer is, of course, between enterprises with investment or even control relationship, otherwise, the concept of pfer can not be used.

Three. Transfer the coordination between value added tax and income tax.

The value added tax document emphasizes that "all or part of the physical assets and related claims, liabilities and labor force should be pferred together", requiring that assets, liabilities and labor force be packaged and pferred together, which is essentially a category of business pfer.

Because of the pfer of business and the goal is not the pfer of assets, the value added tax and business tax are added to the non taxable income. This non taxable income is not included in the scope of VAT collection.

Therefore, the pfer of all or part of the creditor's rights and debts is a necessary condition.

Moreover, the notice of the State Administration of Taxation on the handling of taxpayers' assets reconstituted tax on value-added tax (the fifty-fifth announcement of the State Administration of Taxation No. 2012) stipulates that the input tax can also be pferred with assets, so the integrity of the pfer can be seen.

From these documents, the reorganization of value added tax refers to the shift of business from one unit or individual to another unit or individual. Business is always in progress, but the main body of business has changed.

The Circular of the Ministry of Finance and the State Administration of Taxation on the issue of handling enterprise income tax reorganizations related to enterprise restructuring (fiscal 2014 [109]) Third: "the pfer of shares or assets between the 100% directly controlled resident enterprises and the residents directly controlled by the same or the same multi home enterprises can be carried out at the net book value. The main purpose is to have a reasonable commercial purpose, not to reduce, exempt or postpone the payment of taxes. After the pfer of equity or assets, the substantive business activities of the Transferred Equity or assets will not be changed within 12 months after the pfer of equity or assets, and the profits and profits of the enterprises and the enterprises that have not been accounted for in the 12 months after the pfer of equity or assets, the special tax treatment can be carried out according to the following provisions." we look at the pfer of income tax.

It is not difficult to see from this article that the pfer of income tax refers to the form of reorganization that the main body limits the pfer of shares or assets between the residents controlled by the same control, does not pfer liabilities, and pfers the equity or assets that can not be changed by use. This shows that the pfer of income tax is not a pfer of business, but merely a pfer of assets.

In addition, the State Administration of Taxation on assets (equity) pfer enterprise income tax levy notice (the State Administration of Taxation Announcement No. fortieth in 2015) several restructuring ways are equity as a consideration of the pfer price, if the package pfer, pfer assets must be pferred to liabilities, the pfer of liabilities will become the pfer of assets consideration, which will not be consistent with the document, therefore, this is from another point of view, the income tax documents referred to the pfer is purely asset pfer, should not be packaged assets pfer or net asset pfer.

The pfer of packaged assets in VAT is to pfer the claims and liabilities together, and the pfer of income tax documents can not be pferred together with liabilities. This problem forms a mutually exclusive situation.

How to coordinate is a problem that needs to be studied. Without a good method, the whole reorganization will be faced with the risk of failure.

Of course, if there is a tax levy, we can get enough tax benefits, which requires a comparison of which kind of tax benefits are greater.

The author suggests that first, we should first calculate the VAT or income tax expenditure brought about by restructuring and then compare it to make a tax treatment plan; two, if we can ensure that the packaged assets are not eligible for VAT, we can consider whether we can take advantage of the 5 years' preferential tax policy for the non monetary assets to postpone the income tax or make use of special tax restructuring methods. Three, because in addition to the first case, the other three cases include capital reduction or separation and merger.

Four. Analysis and extension of the preceding cases

　　本文开头的案例是一个分公司的划转，分公司就是一个资产、负债、劳动力的集成打包的典型，划转分公司当然需要注销分公司划转到新公司后再成立;第二，增值税中的重组文件规定可以“全部或部分”转让，即不要求所有有关联的资产、负债、劳动力都要转让，有些要素是不能转让的，比如分公司经理是由总公司法人代表兼任，该经理就不能转让，有些资产也无法转让，比如其他应收款或其他应付款，这部分资产有时候与生产经营没有关联，因此部分转让也是可以的，但转让多少呢，笔者认为达到业务转让的要求就可以了;第三，资产重组是市场经济中一种交易概念，百度百科有这样的描述“资产重组是指企业资产的拥有者、控制者与企业外部的经济主体进行的，对企业资产的分布状态进行重新组合、调整、配置的过程，或对设在企业资产上的权利进行重新

The configuration process. "

因此，资产重组适用于任何企业;第四，文件规定打包资产受让的主体是“其他单位和个人”，但如果是个人，是无法进行业务继续的，只能是转让给经济主体，比如个体、企业等;第五、契税中的划转没有资本作为对价的要求，因此划转资产和划转打包资产均免征契税，且契税的范围更为宽泛，在自然人与其成立的个人独资企业、一人有限公司之间划转资产也免征契税;第六、土地增值税的重组税收优惠政策没有划转这一方式，前文已述，划转实质上是投资与合并、分立、减资的组合，土地增值税的重组文件中规定了投资、合并、分立，也没有要求以资本作为对价，但没有规定减资的优惠政策，因此划转重组方式中有减资组合的，不能享受土地增值税优惠，其他形式的划转均享受优惠。

Deed tax; sixth. The tax preferential policy of land value-added tax has not been pferred. As mentioned earlier, the pfer is essentially a combination of investment and merger, separation and capital reduction. The reorganization document of land value-added tax stipulates that investment, merger and division are not required, nor does it require capital to be considered as a consideration. However, there is no preferential policy for reducing capital. Therefore, in the way of pfer reorganization, there is no preferential benefit for land value added tax, and other forms of pfer enjoy preferential treatment.