Company A (parent company) and Company B (wholly-owned subsidiary) are affiliated companies. Company B borrowed 5 million yuan from Company A on June 65438+1 October12004. According to the agreement of both parties, the loan term is one year and the annual interest rate is 10%. Company B will expire on June 65438+February 365438 +0, 2004. The total paid-in capital of Company B is 6 million yuan. It is known that the loan interest rate of similar banks is 8%, the business tax rate of financial and insurance industry is 8%, the urban maintenance and construction tax rate is 7%, and the additional tax rate of education fee is 3%. In that year, the subject of "financial expenses" of Company B included the interest of Company A of 500,000 yuan, and the interest allowed to be deducted before tax was: 600× 50 %× 8%: 24 (ten thousand yuan), which increased the taxable income by 260,000 yuan.
Assuming that the total profit of Company B in 2000 was 2 million yuan and the income tax rate was 33%, regardless of other tax adjustment factors, the corporate income tax payable by Company B in that year was (200+26) × 33%: 74.58 (ten thousand yuan). Company B pays interest of 500,000 yuan, and Company A gets interest of 500,000 yuan.
I. Analysis on the tax treatment of loan interest of affiliated enterprises in this case.
1.tax treatment of interest paid by a company.
"Special tax adjustment management regulations (Trial)" stipulates special adjustment items:
The enterprise accepts the debt capital ratio within 5: 1 or 2: 1 (including: 5: 1 for financial enterprises and 2: 1 for other enterprises), which exceeds 5: 1 or 2: 1.
Because the actual tax burden of Company D is higher than that of Company A, and Company D can't provide information to prove that its borrowing activities conform to the principle of independent transaction, the interest expenses actually paid by Company D to Company A are allowed to be deducted under the condition of not exceeding the stipulated asset-liability ratio and the relevant provisions of the tax law and its implementation regulations, and the excess part shall not be deducted in the current year and the following years. The debt investment and equity investment of Company D from Company A are 100000 yuan and 4 million yuan respectively, with a ratio of 2.5: 1, which is higher than the agreed 2: 1, and its agreed interest rate 10% is 8% higher than the loan interest rate of financial institutions in the same period, so the loan interest of Company A cannot be fully deducted before tax. The pre-tax deductible loan amount is 4 million× 2 = 8 million yuan, and the interest amount is 800× 8% = 640,000 yuan. In 2008, * * * paid Company A interest of 65,438+0,000× 65,438+00% = 654,380+00,000 yuan, with a pre-tax deduction of 640,000 yuan, and the remaining 320,000 yuan should be subject to tax adjustment in 2008 and cannot be deducted in future years.
2. Tax treatment of interest paid by Company B..
Company D can provide relevant information stipulated in the tax law to prove that it conforms to the principle of independent transaction, without considering the ratio of debt to capital. However, the agreed interest rate of 9% is higher than the loan interest rate of financial institutions of 8% in the same period, so the loan interest of Company B of 600× 9% = 540,000 yuan cannot be deducted before tax, and the part related to the loan interest rate of financial institutions of 600× (9%-8%) = 60,000 yuan needs to be adjusted.
3. Tax treatment of interest income of Company A and Company B..
According to the relevant provisions of Article 4 of the Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Tax Policies Concerning the Pre-tax Deduction Standard for Interest Expenses of Related Parties of Enterprises (Caishui [2008] 12 1No.), enterprises shall pay enterprise income tax in accordance with relevant provisions. That is to say, for the related parties of interest income, regardless of whether the interest paid by the interest payer is proportional, whether it conforms to the principle of independent trading, and whether it conforms to the interest rate level and scope stipulated in the tax law, the related parties of interest income should pay income tax according to the income actually obtained. Therefore, the interest income of Company A from Company D is 6,543,800 yuan, and that of Company B from Company D is 540,000 yuan. Because there is no relevant preferential tax policy in the Enterprise Income Tax Law and its implementing regulations, it should be incorporated into taxable income to calculate and pay enterprise income tax.
The core point of whether the loan interest in this case can be fully deducted
(1) Whether the debt-to-capital ratio accepted by the enterprise meets the requirements.
The ratio of debt investment to equity investment shall not exceed the prescribed ratio, that is to say, there is no weakening of capital, unless the enterprise can prove that it conforms to the principle of independent trading or the actual tax burden of the invested enterprise is not higher than that of the investing enterprise. Otherwise, the interest exceeding the prescribed proportion shall not be deducted in the current year and the following years.
(2) Determination of interest rates of similar financial institutions in the same period.
In June of 20 1 1, State Taxation Administration of The People's Republic of China issued the Announcement on Several Issues Concerning Enterprise Income Tax (State Taxation Administration of The People's Republic of China Announcement [20 1 1] No.34), which made a unified and more reasonable operation regulation on the interest rates of similar financial institutions in the same period: when signing, it should include "similar loans of financial enterprises in the same period.
Financial enterprises should be enterprises engaged in loan business with the approval of relevant government departments, including banks, finance companies, trust companies and other financial institutions. "Interest rate of similar loans in the same period" refers to the loan interest rate provided by financial enterprises under the condition that the loan term, loan amount, loan guarantee and corporate reputation are basically the same. It can be the average interest rate of the same kind announced by financial enterprises in the same period, or the actual loan interest rate provided by financial enterprises to some enterprises. State Taxation Administration of The People's Republic of China's regulations leave some room for enterprises to choose the agreed interest rate, because the "interest rate for similar loans in the same period" can be either the average interest rate announced by financial enterprises in the same period or the actual loan interest rate provided by financial enterprises for some enterprises. At the same time, financial enterprises include banks, finance companies, trust companies and other financial institutions, but the reality is that the interest rates of finance companies and trust companies are generally higher than those of banks. Therefore, enterprises should try their best to use the interest rates of financial companies, trust companies and other financial companies as the source of interest rates of similar loans in the same period when submitting the Statement of Interest Rates of Similar Loans of Financial Enterprises to the tax authorities, so as to increase the pre-tax deduction limit of interest expenses.
Second, the risk warning:
1. For inter-enterprise lending, the borrowed funds must be self-owned and the corresponding invoices need to be obtained. Without obtaining the corresponding invoice, the enterprise has not obtained the legal certificate of pre-tax deduction, and the interest shall not be deducted before tax.
2. When signing a loan agreement between enterprises, the loan interest rate must be reasonably agreed, in line with the relevant provisions of the law, and the agreed interest rate shall not exceed the interest rate of similar loans of financial enterprises in the same period.
3. It is best to control the related debts of affiliated enterprises within the specified proportion, so as to avoid the tax authorities' determination that there is capital weakening, which leads to the special tax adjustment instead of pre-tax deduction of interest paid in excess of the specified amount.
4. Once the associated debt exceeds the specified proportion, the enterprise shall prepare relevant materials in advance to prove that its business conforms to the principle of independent trading, so as to ensure that the interest expenses exceeding the standard proportion can be deducted before income tax.
There are legal and tax risks in the lending behavior between affiliated enterprises to some extent. It is suggested that enterprises should make good plans for this, especially in the aspects of debt-to-capital ratio, interest rate level and invoice acquisition, and strictly follow the provisions of relevant laws and regulations. At the same time, in order to prevent the risk of tax adjustment, affiliated enterprises should actively prepare relevant certification materials for "independent transactions" when borrowing funds, so as to safeguard their own interests and minimize risks.
Legal basis:
Paragraph 1 of Article 26 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases stipulates: "If the interest rate agreed by both borrowers and lenders does not exceed 24% per annum, the people's court shall support it. If the interest rate agreed by the borrower and the lender exceeds the annual interest rate of 36%, the interest agreement in excess is invalid. "