It can be said that 90% of corporate investors do not know the legal risks of transferring company operating income to personal accounts. This article will use a small case to analyze the various risks that will be faced when operating income is transferred to personal accounts. Legal Risks.
Case
Shareholder B of company A directly transferred the company’s operating income of 100,000 yuan to his personal account, but did not transfer the company’s operating income to the company account. In terms of financial processing, Company A still records the income of 100,000 yuan in its accounts normally, and declares and pays taxes in a timely manner. The legal analysis of the behavior of shareholder B of company A is as follows:
1. Tax liability
According to common sense, if shareholder B is not considering tax avoidance (this analysis does not consider shareholder B Requirements for transferring company assets for cash-out purposes), there is no need to transfer the 10 million yuan in operating income that should be attributed to Company A directly to the personal account without going through the company's basic account. This will cause a lot of unnecessary trouble.
(1) A payment of 10 million yuan requires a value-added tax of 1.7 million yuan. If the company records its accounts normally, there is no risk of paying VAT.
(2) In terms of corporate income tax, 10 million yuan is also required. Putting aside the cost factor, the corporate income tax payable on 10 million yuan is 10*25=2.5 million yuan. If Company A also pays corporate income tax normally, there is no corporate income tax risk.
(3) Shareholders transfer funds from company accounts to personal accounts. According to my country's tax laws, this behavior is considered personal dividend distribution by shareholders. Shareholders should pay a personal dividend income tax of RMB 20 on their personal dividends. Shareholder B’s personal dividend income tax is RMB 2 million. Since shareholder B directly transfers the funds that should be credited to the company's account to his personal account, it means that the shareholder does not pay personal dividend income tax. Evasion of 2 million yuan in taxes is a major criminal offence.
(4) Affects the announcement of the company’s annual report (originally owned by the company’s annual inspection). The company originally had a cash inflow of 10 million yuan, but because the shareholders transferred the funds that should have entered the company's account to their personal names, the company's cash directly resulted in less than 10 million yuan, which will have a significant impact on the annual report.
2. Criminal Law Liability
(1) Crime of official embezzlement (Criminal Law Article 271). It refers to the behavior of personnel of a company, enterprise or other unit taking advantage of their position to illegally take possession of the unit's property in a relatively large amount. The operating income of 10 million yuan originally belongs to the company's monetary funds, and is attributed to the company's assets in accounting terms.
If shareholder B of the company takes advantage of his position to misappropriate 10 million yuan of the company's monetary funds for the purpose of illegal possession, this may constitute the crime of official embezzlement. Since the amount of 10 million is relatively large, it is considered serious job embezzlement.
(2) Crime of misappropriation of funds. According to the provisions of my country's "Criminal Law" and relevant judicial interpretations, it refers to the situation where staff of a company, enterprise or other unit take advantage of their position to misappropriate the funds of the unit for personal use or lend to others. The amount is relatively large and has not been used for more than 3 months. Also, or although it has not exceeded 3 months, but the amount is relatively large, conducting profit-making activities, or engaging in illegal activities.
Shareholder B took advantage of his position to misappropriate the 10 million yuan payment for other purposes, which may constitute the crime of misappropriation of funds. Since the amount of 10 million is relatively large, it is a serious misappropriation of funds.
3. Civil Liability
(1) The operating income of 10 million yuan belongs to the company’s assets. If the organizational form of the enterprise is a sole proprietorship, the direct consequence may be that the corporate property and personal property are mixed, and when external liabilities need to be borne, it may lead to unlimited joint and several liability and bring significant legal risks. If the organizational form of the enterprise is a company, shareholders with 10 million yuan must submit 10 million yuan back to the company and bear liability within 10 million yuan.
(2) The customer transferred 10 million yuan directly to the account of shareholder B without going through the company’s basic account, which means that the customer has no debt repayment relationship with the company.
From a civil law perspective, the customer transferred a sum of money to shareholder B, but the creditor-debt relationship of 10 million yuan between the company and the customer still exists, and there is a great legal risk for the customer. Therefore, the risk of customers not accessing their personal accounts through the company's basic account is very high, and the possibility of customers adopting this method is very small.
IV. Other relevant legal provisions
1. Relevant provisions of the "RMB Bank Deposit Account Settlement Management Measures"
Article 40 The unit shall settle the settlement from its bank If each payment exceeds 50,000 yuan from the account, the following payment basis shall be provided to the bank where the account is opened:
(1) Salary distribution agreement and payee list.
(2) Proof of award
(3) Employment contract signed between the press, publishing, performance organizer, etc. and the payee or the payment certificate to the individual.
(4) Proof of payment or refund from a securities company, futures company, trust investment company or lottery issuing or underwriting department to a natural person
(v) Agreement on transfer of creditor's rights or property rights
(vi) Loan contract.
(vii) Certificate from insurance company
(viii) Certificate from tax authority.
(ix) Agricultural products. Purchase and sale contracts for by-products and mineral products.
(x) Other legal payment certificates
The withholding agent shall pay taxes due from the unit’s bank settlement account to the individual’s bank settlement account. A tax payment certificate should be provided to the bank where the account is opened when making payment.
This article explains that if the company transfers funds to a personal account, which is what is commonly known as public transfer, if the transfer amount reaches a certain amount, it must provide the company with a tax payment certificate. The bank provides relevant supporting documents and is approved by the People's Bank of China. It would be more troublesome to transfer 10 million to shareholder B. If the transfer amount is less than 50,000 yuan, it can be transferred directly to an individual. However, the operation is very difficult for such a large amount. It is more difficult.
2.
Article 42 When making payments from an organization’s bank settlement account to an individual’s bank settlement account, the bank shall follow Articles 40 and 41. If the relevant basis is not provided or the relevant basis does not comply with the provisions of the Article, the bank shall refuse to handle the payment procedures.
Art. Article 62 Banks shall implement an annual inspection system for units that have opened bank settlement accounts, check the compliance of opening bank settlement accounts, and verify the authenticity of account opening materials; units that do not meet the regulations to open bank settlement accounts shall shall be revoked. If any verified bank settlement account information changes, the local branch of the People's Bank of China shall be promptly reported.
The bank shall supervise the use of bank settlement accounts by depositors. Suspicious payment behaviors shall be reported promptly in accordance with the procedures prescribed by the People's Bank of China.
Article 67 Banks shall not engage in the following behaviors when using bank settlement accounts:
(1) Provide false information. Account opening application materials are used to defraud the People's Bank of China to obtain approval to open a basic deposit account, temporary deposit account or special deposit account for a budget unit.
(2) Open or cancel the bank settlement account of the unit without complying with the provisions of these Measures. Register and sign on the basic deposit account opening certificate or notify the relevant account-opening bank.
(3) Violating the provisions of Article 42 of these Measures when handling personal bank settlement account transfer settlement.
(4) Handling savings account transfer settlement.
(5) Violating regulations to pay cash or handle cash deposits for depositors.
(6) Exceeding the time limit or failing to report account opening, change, cancellation, etc. to the People's Bank of China as required.
If the bank commits any of the above-mentioned acts, it will be given a warning and fined not less than 5,000 yuan but not more than 30,000 yuan; Personnel shall be subject to disciplinary sanctions in accordance with regulations; if the circumstances are serious, the People's Bank of China has the right to suspend its approval of the opening of basic deposit accounts. If a crime is constituted, the case shall be transferred to judicial organs for investigation of criminal liability in accordance with the law.
It can be seen from the above regulations that banks will supervise company account openings to prevent companies from having off-book accounts. If the company violates the regulations and transfers funds externally, it will face legal risks.