Look at a living example, it will be better understood:
When the foreign shareholders of a Chinese-foreign cooperative enterprise transferred all their shares to the Chinese shareholders, the tax authorities gave timely tax guidance and withheld and remitted the income tax of non-resident enterprises of13.48 million yuan, which ensured the timely and full storage of the tax.
Relevant facts
A Chinese-foreign cooperative limited company in China (hereinafter referred to as Company A) is engaged in mineral exploration with a registered capital of 25 million yuan, of which the Canadian foreign company M (hereinafter referred to as Company M) holds 6 1% and the Chinese company B (hereinafter referred to as Company B) holds 39%.
From June 5438 to February 2009, Company M signed an equity transfer agreement with Company B, and transferred its 6 1% equity of Company A to Company B at the price of1550,000 yuan.
Case handling
20 10 the tax authorities learned from company b that company m transferred its equity of company a to company b, which attracted the attention of tax officials.
After investigation, the tax collectors learned that all the shares held by Company M were priced at RMB 654.38+0.55 million, and before the transfer of shares, Company M actually contributed RMB 206.543+0.9 million in cash. After confirming the relevant facts, the tax authorities inform the domestic transferee Company B that according to the provisions of the Enterprise Income Tax Law, the company has the obligation to withhold and remit the enterprise income tax on the income obtained by the non-resident enterprise overseas Company M.
However, for the above-mentioned equity transfer, Company M raised an objection: it believed that its income should be taxed in Canada according to the category of "other income" in Article 20 of the China-Canada tax agreement, and submitted an application for tax payment in Canada. After verification, the tax authorities believe that the income from the above-mentioned transactions of Company M belongs to the income from property transfer, so the category of "property income" in Article 13 of the China-Canada Tax Agreement should be applied instead of Article 20 to pay enterprise income tax in China.
After repeated publicity, explanation and communication with enterprises, we finally reached the following understanding:
1. According to the Enterprise Income Tax Law and Article 13 of the China-Canada Tax Agreement, Company M shall pay enterprise income tax on the income from its equity transfer in China.
2. According to the document number. Guoshuihan [2009] No.698 and Guoshuifa [2009] No.3.
Fixed, M company's transfer income should be determined by the balance of its equity transfer income of 6.5438+0.55 million yuan minus its actual contribution of 20.65438+0.9 million yuan, that is, the taxable income is 6.5438+0.81000 yuan, and the enterprise income tax should be 6.5438+0.348 million yuan. Company B is responsible for withholding taxes and reporting and paying them to its competent tax authorities.
3.m company's transfer of equity belongs to the transfer of property ownership. According to the Provisional Regulations on Stamp Duty, 0.5 ‰ stamp duty shall be paid for the equity transfer contract concluded by Company M, that is, 80,000 yuan. In the end, Company B withheld the corporate income tax and stamp duty of Company M * * totaling13.56 million yuan.
Case enlightenment
Chinese-foreign cooperative enterprises refer to enterprises that sign cooperative production and operation contracts through the establishment and completion of a project; It is a contractual economic organization, with or without equity. Both parties may establish a legal person enterprise or cooperate in the form of an unincorporated person. However, whether or not there is equity, whether or not an investor has established a legal person enterprise, a cooperative enterprise or a cooperative project to transfer equity or rights belongs to the category of property transfer stipulated in the enterprise income tax law, and the property income clause of the tax agreement is usually applicable.
It should be noted that in the case of unincorporated cooperative operation, a non-resident enterprise may form an institution or place in China because it sends people to carry out daily operation and management, and the transfer of its equity or rights and interests is actually related to the place of the institution. Therefore, the tax rate applicable to the transfer income of non-resident enterprises is 25%, instead of withholding it at the tax rate of 10%.
Through this case, we should realize that for tax authorities, in view of the close relationship between non-resident enterprises and resident enterprises, taking resident enterprises as the starting point is an effective guarantee for doing a good job in non-resident tax management. At the same time, in view of the difficulty for taxpayers to understand the relevant provisions of the enterprise income tax law and tax treaties, the tax authorities should increase the breadth and depth of tax law publicity, so that domestic enterprises can also understand international tax laws and policies and clarify their responsibilities and obligations in transnational transactions.
In addition, according to the Provisional Regulations on Stamp Duty and its detailed rules for implementation, as long as the equity transfer contract with non-resident enterprises is signed or received in People's Republic of China (PRC) (the signing place of the contract is not necessarily in China), both parties are taxpayers of stamp duty, which is also a problem that non-resident enterprises and tax authorities need to pay attention to in the process of tax treatment.