What are the tax-related issues of capital lending between affiliated enterprises?
I. Value-added tax treatment
1. Use value generated by capital lending between non-financial affiliated enterprises.
(1) The enterprise group borrows funds from the bank, then transfers them to its affiliated enterprises for use, and then the group company returns them uniformly.
Item 19 of Article 1 of the Provisions of the Ministry of Finance of People's Republic of China (PRC), State Taxation Administration of The People's Republic of China, on the Transitional Policy of Changing Business Tax to VAT (Caishui [2016] No.36) stipulates that in the unified borrowing and unified repayment business, the interest income collected by enterprise groups or core enterprises within enterprise groups and financial companies affiliated to the group shall be exempted from VAT at a rate not higher than the loan interest rate paid to financial institutions or the coupon rate level of bonds paid. If the interest charged by the unified borrower to the fund user is higher than the loan interest rate paid to the financial institution or the coupon rate level of the bonds paid, the value-added tax shall be paid in full.
Unified borrowing and unified return business refers to:
(1) After an enterprise group or a core enterprise in an enterprise group obtains funds by borrowing from financial institutions or issuing bonds to the outside world, it distributes the borrowed funds to subordinate units (including independent accounting units and non-independent accounting units, the same below), and collects the repayment of the principal and interest of financial institutions or bond buyers from subordinate units.
(2) After an enterprise group borrows money from a financial institution or issues bonds abroad to obtain funds, the financial company to which the group belongs signs a unified loan contract with the enterprise group or its subordinate units and allocates funds. After collecting the principal and interest from the enterprise group or its subordinate units, it is transferred to the enterprise group, and the enterprise group returns the business of the financial institution or the bond purchaser in a unified way.
(2) The enterprise lends its own funds to affiliated enterprises for use.
Enterprises lend their own funds to affiliated enterprises for use. In practice, they can be divided into two categories: paid and unpaid. In case of paid use, according to the provisions of Caishui [2016] No.36 document, an enterprise lends its own funds to affiliated enterprises for use and collects interest, which is regarded as enterprise loan business, and the interest collected is subject to VAT at 6%.
Enterprises will provide their own funds to affiliated enterprises free of charge. Article 14 of Caishui [20 1 6] No.36 Annex1stipulates that services provided by units or individual industrial and commercial households to other units or individuals free of charge shall be regarded as sales services, intangible assets or real estate, except those used for public welfare undertakings or serving the public. Therefore, the value-added tax should be paid for the borrowing of funds between affiliated enterprises according to the above provisions.
At the same time, the notes on the sale of services, intangible assets and real estate in the annex 1 of Caishui [2065438+06] No.36 document stipulate that loans refer to the business activities of lending funds to others to obtain interest income. All kinds of income from occupying and borrowing funds, including interest (including capital preservation income, remuneration, capital occupation fee, compensation, etc.). During the holding period of financial commodities, the interest income from credit card overdraft, interest income from buying and selling financial commodities back, interest income from margin financing and securities lending, interest and interest income from financing after-sale leaseback, bill discount, lending and other businesses shall be subject to VAT according to the loan business.
(3) Interest management of funds borrowed by enterprises from individual shareholders.
Borrowing funds from individual shareholders can also be divided into paid and unpaid. Paid use, the same as above (2), is regarded as enterprise loan business, and the interest charged shall be subject to VAT at 6%. For free use, the lender does not include the "individual" in Article 14 of Caishui [20 1 6] No.36 Annex1.Therefore, the enterprise does not need to pay VAT for borrowing funds from individual shareholders for free.
(four) regarded as sales service (use of funds) price management.
Article 44 of Caishui [20 1 6] No.36 document annex1stipulates that the taxable value of taxpayers is obviously low or high and has no reasonable commercial purpose, or if the acts listed in Article 14 of these Measures occur without sales, the competent tax authorities have the right to determine the sales in the following order:
(1) is determined according to the average price of similar services, intangible assets or real estate sold by taxpayers in the latest period.
(2) According to the average price of similar services, intangible assets or real estate recently sold by other taxpayers.
(3) According to the composition of taxable value. The calculation formula of taxable value is:
Taxable value of components = cost ×( 1+ cost profit rate). The cost profit rate is determined by State Taxation Administration of The People's Republic of China, People's Republic of China (PRC).
2. Accounts receivable and accounts payable arising from the provision of goods, services, labor services, intangible assets and real estate between affiliated enterprises.
Accounts receivable and accounts payable arising from the provision of goods, services, labor services, intangible assets and real estate between affiliated enterprises are a kind of purchase and sale behavior. If it is during the normal credit period of the purchase and sale contract, the capital occupation between affiliated enterprises does not belong to the scope of value-added tax collection, and does not belong to the use of funds provided free of charge, which is only a condition for the purchase and sale contract to take effect. Accounts receivable and accounts payable that occupy more than the credit period stipulated in the normal contract and have no other force majeure (such as financial difficulties caused by the bankruptcy of the debtor) should belong to the category of "providing funds for use" and need to pay VAT according to "providing financial services free of charge".
Two. Income tax treatment
1. The use value of funds generated by borrowing funds (including borrowed funds and self-owned funds) between non-financial affiliated enterprises.
Article 38 of the Regulations for the Implementation of the Enterprise Income Tax Law stipulates that the following interest expenses incurred by an enterprise in its production and operation activities are allowed to be deducted: interest expenses incurred by non-financial enterprises in borrowing from financial enterprises, interest expenses incurred by various deposits and interbank loans of financial enterprises, and interest expenses incurred by enterprises in issuing bonds upon approval; The interest expenses of non-financial enterprises borrowing from non-financial enterprises shall not exceed the amount calculated according to the interest rate of similar loans of financial enterprises in the same period.
According to the above provisions, the interest on funds borrowed between non-financial affiliated enterprises belongs to pre-tax deduction. However, the part that exceeds the interest rate of similar loans of financial enterprises in the same period cannot be deducted before tax.
Some affiliated enterprise loans are interest-free. According to Article 30 of the Notice of State Taxation Administration of The People's Republic of China Municipality on Printing and Distributing the Implementation Measures for Special Tax Adjustment (for Trial Implementation) (Guo Shui Fa [2009] No.2), as long as the transaction does not directly or indirectly reduce the overall tax revenue of the country, in principle, transfer pricing investigation and adjustment will not be conducted. Therefore, in areas with the same actual tax burden in China, interest-free transactions between related parties may not be adjusted, but for related parties with different actual tax burdens (such as western development areas or serious losses of one party), they need to be adjusted according to the fair transaction price.
2. Interest management of enterprises borrowing from individual shareholders before income tax.
According to the Notice of State Taxation Administration of The People's Republic of China on Pre-tax Deduction of Enterprise Income Tax on Interest Expenditure of Enterprises Borrowing from Natural Persons (Guo [2009] No.777), the loan between enterprises and individuals is true, legal and effective, and there is no illegal fund-raising purpose or other illegal acts. If a loan contract is signed between enterprises and individuals, the interest paid before tax can be deducted.
However, Article 38 of the Regulations for the Implementation of the Enterprise Income Tax Law stipulates that the interest expenses of non-financial enterprises borrowing from non-financial enterprises shall not exceed the amount calculated according to the interest rate of similar loans of financial enterprises in the same period.
Therefore, the interest generated by non-financial enterprises borrowing from individual shareholders that is higher than the financial loan interest rate shall not be deducted.
3. Accounts receivable and accounts payable arising from the provision of goods, services, labor services, intangible assets and real estate between affiliated enterprises.
If it is within the normal credit period of the purchase and sale contract, the occupied interests between affiliated enterprises do not need to be settled, but if it exceeds the normal credit period of the purchase and sale, there are two situations:
(1) The actual tax burden between affiliated enterprises is the same or similar. According to Article 30 of Guo Shui Fa [2009] No.2, as long as the transactions between domestic related parties with the same actual tax burden do not directly or indirectly reduce the overall tax revenue of the country, in principle, transfer pricing investigation and adjustment will not be conducted.
(2) The actual tax burden of affiliated enterprises is different, and the part that exceeds the normal credit period of purchase and sale needs to be settled and adjusted according to the interest rate of financial institutions in the same period.
4. Capital weakening management
Article 1 of the Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Tax Policy Issues Concerning Pre-tax Deduction Standard for Interest Expenses of Related Parties of Enterprises (Caishui [2008] No.65438 +02 1) stipulates that when calculating taxable income, the interest expenses actually paid by enterprises to related parties shall not exceed the following proportion and the relevant provisions of the tax law and its implementing regulations, and the excess shall not be deducted in the current year and the following years.
The interest expenses actually paid by the enterprise to the related parties comply with the provisions of Article 2 of this Notice, and the ratio of creditor's rights investment to equity investment of related parties is:
(1) Financial enterprises, 5:1;
(2) Other enterprises, 2: 1.
At the same time, Article 2 stipulates that an enterprise can provide relevant information in accordance with the relevant provisions of the tax law and its implementing regulations to prove that the relevant trading activities conform to the principle of independent trading; Or if the actual tax burden of the enterprise is not higher than that of the domestic related party, the interest expenses actually paid to the domestic related party shall be deducted when calculating the taxable income.
5. Different directions of value-added tax in taxable value and enterprise income tax in taxable value.
The relevant provisions of Caishui [2065438+06] No.36 document mainly restrict the underpayment of value-added tax caused by taxpayers' low taxable value and non-independent transactions. The provisions in the document Caishui [2008] 12 1 mainly restrict taxpayers all over the country from charging more interest due to different actual tax burdens, resulting in less corporate income tax, thus reducing the tax revenue of the state treasury. In order to solve the restriction of different restrictions on value-added tax and enterprise income tax, the interest charged by capital transactions between affiliated enterprises must conform to the principle of independent transaction and reduce the tax risk of enterprises.
To sum up, the problem of capital borrowing between affiliated enterprises mainly involves two taxes, one is value-added tax and the other is enterprise income tax. Value-added tax involves the use value generated by borrowing funds between non-financial affiliated enterprises and the accounts receivable and payable generated by providing goods, services, labor services, intangible assets and real estate between affiliated enterprises. The above information is provided by.