1. Does the company have to pay taxes when transferring its creditor's rights?
The transfer of creditor's rights needs to be taxed.
1, enterprise income tax is required for the transfer of creditor's rights.
According to Article 6 of the Enterprise Income Tax Law of People's Republic of China (PRC): "The income obtained by an enterprise from various sources in monetary and non-monetary forms is the total income, including: …… (3) income from property transfer; …"。
As for the specific meaning of "income from property transfer", according to Article 16 of the Regulations for the Implementation of the Enterprise Income Tax Law, the income obtained by an enterprise from the transfer of fixed assets, biological assets, intangible assets, equity, creditor's rights and other property refers to "income obtained by an enterprise from the transfer of property". Therefore, a company that transfers its creditor's rights, if the transfer income exceeds its creditor's rights, should be incorporated into its total income and pay enterprise income tax.
2. Stamp duty.
(1) The object of stamp duty collection is determined by enumerating, and the Provisional Regulations on Stamp Duty in People's Republic of China (PRC) does not use the contract of assignment of creditor's rights as a taxable voucher. Therefore, stamp duty should not be levied unless the transfer of creditor's rights involves the transfer of real estate, equity and other property.
(2) The creditor's rights transfer contract is not a taxable document listed in the stamp duty, and stamp duty is not required.
Second, the elements of the transfer of creditor's rights
1. must be a legal and valid creditor's right, and shall not violate the public interest. The effective existence of creditor's rights is the premise of creditor's rights transfer. The transfer of another person's invalid creditor's rights or the transfer of another person's extinguished creditor's rights is the subject of the transfer. The significance of this restriction is to prevent the interests of the transferee, the state and the collective from being harmed. In judicial practice, some people evade legal sanctions by transferring their creditor's rights.
2. The assignment shall not change the main contents of the creditor's rights. Although the concept of creditor's rights as a legal lock has disappeared, the transfer of creditor's rights is only a change of subject. If the main content of the debt changes, a new contractual relationship will occur, which is not of the nature of transfer. The content change of debt includes the type, quantity, quality specification, nature, time limit, place and method of performance, settlement method, liability for breach of contract, etc. Changes in the non-main contents of debts do not affect legal relations. However, after the main contents such as the types of debts, the quality specifications of the subject matter and the nature of debts have changed, they are no longer the same as the original debts. If the other party promises, the new contract is established and no longer belongs to the scope of creditor's rights transfer. For example.
3. The assignor and assignee of creditor's rights must reach an agreement on the assignment of creditor's rights. The transfer of creditor's rights is a kind of punishment, which must meet the effective conditions of civil acts. The transferor must be qualified, that is, have the disposition ability and be a person with full capacity for civil conduct. The expression of will of both parties must be true and untrue, and the transfer of creditor's rights is invalid. If one party deceives, coerces or takes advantage of the danger of others, the transfer is invalid. After the termination of the contract, if the assignee has accepted the repayment from the debtor, it shall return it to the original creditor as unjust enrichment.
4. The assigned creditor's rights must be transferable. According to the relevant principles of debt, some contracts are non-transferable, and their creditor's rights should also be non-transferable. One is the creditor's rights based on personal trust relationship, the creditor's rights based on specific identity relationship, the creditor's rights based on inaction, and the right to claim inheritance. Second, creditor's rights belong to subordinate rights. Subordinate rights are transferred with the transfer of main rights. If subordination and sovereignty are transferred separately, it is not allowed in essence. For example, secured claims exist to secure the principal claims. If it is separated from the principal creditor's rights, its guarantee nature will naturally lose, so it cannot be transferred separately. The third is the creditor's rights that cannot be transferred according to the agreement of the parties to the contract. According to the principle of autonomy of the parties, the prohibition of the parties' assignment of creditor's rights can be stipulated in the contract or separately after the conclusion of the contract, but it must be made before the assignment of creditor's rights, otherwise the assignment is valid. The fourth is the creditor's rights that cannot be transferred according to the law.
5. The debtor must be informed of the assignment of creditor's rights. Article 546 of the Civil Code stipulates: "If the creditor transfers its rights, it shall notify the debtor. Without notice, the assignment is invalid for the debtor. "
3. What creditor's rights can be transferred?
(a) according to the nature of the creditor's rights shall not be transferred;
(two) according to the agreement of the parties shall not be transferred;
(3) It shall not be transferred according to law.
If the parties agree that the non-monetary creditor's rights cannot be transferred, they may not confront a bona fide third party. If the parties agree that the creditor's rights are not transferable, they may not oppose a third party.
Legal objectivity:
Article 546 of the Civil Code of People's Republic of China (PRC) * * * If the creditor transfers its creditor's rights without notifying the debtor, the transfer shall not be effective for the debtor. The notice of assignment of creditor's rights shall not be revoked, except with the consent of the transferee. Article 545 of the Civil Code of People's Republic of China (PRC) * * * Creditors may assign all or part of their creditor's rights to a third party, except in one of the following circumstances: (1) According to the nature of the creditor's rights, they may not assign them; (two) according to the agreement of the parties shall not be transferred; (3) It shall not be transferred according to law. If the parties agree that the non-monetary creditor's rights cannot be transferred, they may not confront a bona fide third party. If the parties agree that the creditor's rights are not transferable, they may not oppose a third party.