(1) tax arrangements for absorption and merger.
Absorption merger refers to the dissolution of the target enterprise after the acquirer enterprise obtains all the net assets (or equity) of the target enterprise. The acquirer can exchange cash, bonds or stocks for the net assets (or equity) of the target enterprise, and the result of the merger is still a single economic subject and legal subject.
1. Cancel the legal person status of the target enterprise and settle the enterprise income tax (taxable).
Guo Shui Fa [2000] 1 19 "Notice of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on Income Tax Issues Related to Enterprise Merger and Separation" stipulates that enterprise merger should generally be regarded as taxable: the target enterprise transfers and disposes all assets at fair value, calculates the income from asset transfer and pays income tax according to law; The losses of the target enterprise in the previous year shall not be carried forward to the acquirer to make up; When the acquirer enterprise accepts the assets related to the target enterprise, the cost can be determined according to the assessed value, and the shareholders of the target enterprise obtain the equity of the acquirer enterprise as liquidation distribution.
When the acquirer considers this tax arrangement, the target enterprise should have more uncompensated losses. For example, in an M&A case, the accumulated deductible taxable income of the target enterprise in recent five years is-6 million yuan, the daily book net assets of M&A are 5 million yuan, and the fair value of identifiable net assets is 8 million yuan. The acquirer intends to pay 654.38+million yuan to acquire all the net assets of the target enterprise to complete the absorption and merger. When the transfer price of the net assets of the target enterprise exceeds its book net assets of less than 6 million yuan, the transfer income of the target enterprise does not exceed 6 million yuan, and no liquidation income will be generated after making up the losses, and enterprise income tax is not required. The consideration in this case is 6,543,800,000 yuan, the net assets transfer income of the target enterprise is 5,000,000 yuan, and the liquidation income after loss reduction is-6,543,800,000 yuan, so there is no need to pay enterprise income tax, indicating that the liquidation of the target enterprise in this case has not increased any income tax burden. However, M&A enterprises will benefit from enterprise income tax deduction, because according to the regulations, M&A enterprises can book the fair value of the identifiable net assets of the target enterprise as 8 million yuan, and can accrue depreciation or book-entry expenses, so that the tax basis of the assets of the target enterprise is 3 million yuan higher than the original book value. The part where the price paid by the acquirer enterprise is higher than the fair value of the identifiable net assets of the target enterprise by 2 million yuan is classified as goodwill. According to the new "Regulations for the Implementation of the Enterprise Income Tax Law", when an enterprise is transferred or liquidated as a whole, it is allowed to deduct the expenses of outsourcing goodwill; It is allowed to deduct the amortization expenses of intangible assets calculated by the straight-line method. It can be seen that the new tax law stipulates that the purchased goodwill cannot be amortized and can only be deducted before tax when the enterprise is transferred or liquidated as a whole. How to let the goodwill part enter the tax basis of assets? The way is to improve the fair value of the identifiable net assets of the target enterprise, thereby reducing the amount of goodwill. How to improve the fair value of identifiable net assets? Therefore, when evaluating the identifiable net assets of the target enterprise, it is necessary to identify and measure the intangible assets of the target enterprise as much as possible, because the fair value of identifiable net assets includes tangible entity assets and intangible but identifiable intangible assets. Target enterprises generally have intangible assets that are not recorded but actually exist. These identifiable intangible assets are mainly divided into five categories: first, intangible assets related to trademarks: product trademarks, certification trademarks or logo patterns, newspaper covers, Internet domain names, etc. II. Intangible assets related to customer groups: customer lists, orders or production order contracts, sales contracts, etc. Intangible assets related to art: dramas, literary works, musical works, paintings and photographic works, audio-visual products, etc. Iv. Intangible assets based on contracts: franchise rights such as patent right, franchise right, service or supply contract, lease agreement and mining right. Fifth, technology-based intangible assets: patented technology, computer software and embedded chips, non-patented technology, that is, proprietary technology, databases, secret recipes and other trade secrets. When evaluating assets, the acquirer should fully negotiate with the intermediary structure to confirm and measure intangible assets as much as possible, so as to make the fair value of the identifiable net assets of the target enterprise as close as possible to the payment consideration of the acquirer, so as to reduce the amount of goodwill. 2. The corporate qualification of the target enterprise is cancelled, and the enterprise income tax is not liquidated (tax-free).
This tax arrangement first needs to meet the tax law conditions, that is, the consideration must be equity or voting shares, and the shares should account for more than 80% of the face value. Guo Shui Fa [2000] 1 19 stipulates that cash, marketable securities and other assets other than the equity of M&A enterprises are not higher than 20% of the face value of the paid equity (or the book value of the paid equity), and they can enjoy tax-free or taxable M&A income tax treatment upon examination and confirmation by the tax authorities. If tax exemption is adopted, it shall be handled in accordance with the following provisions: the target enterprise does not confirm the transfer gains and losses of all assets, and does not calculate and pay income tax; All enterprise income tax payment matters before the target enterprise is merged shall be borne by the merged enterprise; The losses of the previous year, if not beyond the statutory compensation period, can be made up by the acquirer's enterprise with the income related to the assets of the target enterprise realized in the next year according to the regulations.
This tax-free treatment arrangement is only applicable to the case that the acquirer completes the absorption and merger of the target enterprise through equity payment. When the target enterprise has no or little uncompensated losses and pays a large premium, the tax-free treatment arrangement is quite beneficial to the target enterprise, but it has no tax-saving benefit to the acquisition enterprise, because the acquisition enterprise obtains the net assets of the target enterprise on the basis of the original book value rather than the fair value. At the same time, this arrangement should be approved by the relevant tax authorities.
(2) Tax arrangements for the newly established merger model.
A newly established merger means that the merging parties exchange their respective shares (or stocks) for the shares (or stocks) of the newly established enterprise according to a certain proportion, and the original enterprise is dissolved. The newly established enterprise accepts the assets of the dissolved enterprise and undertakes the debts of the dissolved enterprise. A shareholder who dissolves an enterprise becomes a shareholder of a newly established enterprise after exchanging net assets or equity in a certain proportion for the equity of the newly established enterprise. The result of the new merger is still a single economic subject and legal subject.
1. Cancellation and liquidation (taxable) of corporate entities of both parties to the merger.
This arrangement is the same as the taxable treatment arrangement of mergers and acquisitions. The net assets of the M&A participants obtained by the new enterprise shall be accounted for according to the fair value of the identifiable net assets, and the unrecovered losses of the M&A participants shall not be deducted from the taxable income of the new enterprise; When an enterprise involved in mergers and acquisitions is dissolved, it shall confirm the income from asset transfer according to the fair value of its net assets and conduct liquidation. This arrangement is applicable to the situation that the parties to the merger have not made up for more losses, and the income from asset transfer is recognized according to the fair value of net assets, and no enterprise income tax is paid. In the newly established tax basis, the acquired enterprises can take the fair value of net assets as assets, which plays a tax-saving role in evaluating and increasing the net assets of all parties involved in the acquisition.
This tax arrangement mainly considers the full use of uncompensated losses and the appreciation of net assets. In practice, the adjustment of net asset appreciation should make full use of uncompensated losses as much as possible, mainly by confirming and measuring the amount of identifiable intangible assets to adjust the appreciation.
2. The merger and acquisition of both corporate cancellation, not liquidation (tax-free).
Newly established mergers and acquisitions are generally completed through equity exchange, which conforms to the tax exemption conditions stipulated in the tax law, and all parties to mergers and acquisitions can make tax arrangements through tax exemption treatment. When the tax exemption arrangement is adopted, the enterprises participating in the merger and acquisition will transfer the net assets and uncompensated losses of the original enterprise to the newly established enterprise according to the book value. The newly established merged enterprise takes the original book value of the net assets of the merged parties as the asset tax basis, and the original uncompensated losses can still be offset in the new enterprise; If the enterprise of the parties to the merger is dissolved but not liquidated, the income from asset transfer will not be recognized. This tax-free arrangement is more suitable for enterprises involved in mergers and acquisitions with little or no uncompensated losses, so there is no need to pay liquidation income tax. However, the tax basis of the merged enterprise can only be the original book value of the net assets of the merged parties, and the income based on the fair value of the net assets cannot be obtained.
In a word, to judge which tax arrangement is more suitable, we need to negotiate with each other which tax treatment method can maximize the total tax saving value of the merged parties. Secondly, we need to calculate the income tax according to the payment method and the specific conditions of both parties, analyze the uncompensated losses of the merged parties and make overall arrangements. Under the cash payment method, only taxable tax arrangements can be adopted; Under the mode of equity (or stock) payment, with the approval of the tax authorities, taxable treatment or tax-free treatment can be arranged. The tax exemption arrangement is not income tax relief in essence, but income tax deferral.
In the tax arrangement of enterprise merger and acquisition, we should also pay attention to the fact that tax law and accounting may be different in determining who is the acquirer and who is the merged enterprise. In the tax law, the party paying the consideration is generally regarded as a merged enterprise, and the party receiving the consideration is regarded as the target enterprise; Accounting is determined according to the principle that substance is more important than form. For example, in the newly established merger, all the enterprises participating in the merger are the target enterprises in tax law (the merged enterprises), and the newly established enterprises are the acquirer enterprises; In accounting, one of the enterprises involved in the merger should be determined as the buyer, and the rest should be treated as the purchased enterprises.
From the tax point of view, general tax treatment and special tax treatment are mainly a kind of payment behavior for the merging party, so they generally do not involve tax issues (payment of non-monetary assets generally needs to be regarded as sales); For the merged party, after the cancellation of the enterprise merger, the assets of the enterprise are merged and transferred, and the shareholders of the enterprise get benefits. Therefore, the merged enterprise involves the tax issue of asset transfer. Item 4, Article 4 of Caishui [2009] No.59 stipulates that besides the special tax treatment provisions stipulated in this Notice, enterprise restructuring shall also be subject to tax treatment according to the following provisions:
(1) The merged enterprise shall determine the tax basis to accept the assets and liabilities of the merged enterprise according to its fair value.
(2) The merged enterprise and its shareholders shall be subject to income tax treatment according to liquidation.
(3) The losses of the merged enterprise shall not be carried forward to make up in the merged enterprise. The above treatment, that is, general tax treatment.
For example, if Enterprise A merges with Enterprise B, the book net assets of Enterprise B are 50 million yuan and the fair value is 60 million yuan. The shareholders of enterprise B get 40 million yuan of equity in the merged new enterprise, and other non-equity payments are 20 million yuan. In this merger, enterprise A accepted the net assets of enterprise B at a fair value of 60 million yuan as the tax basis. If the assets of enterprise B increase by 6,543,800,000 yuan, the enterprise income tax shall be paid as required, which shall be treated as after-tax liquidation distribution.
Article 5 of Caishui [2009] No.59 stipulates that special tax treatment provisions shall apply to enterprise restructuring that meets the following conditions:
(1) has a reasonable commercial purpose, and its main purpose is not to reduce, exempt or delay the payment of taxes.
(two) the proportion of assets or equity of the acquired, merged or split part is in line with the proportion stipulated in this notice.
(3) The original substantive business activities of the restructured assets will not be changed within 12 months after the reorganization of the enterprise.
(4) The amount of equity payment involved in the consideration of the restructuring transaction conforms to the proportion stipulated in this notice.
(5) The original major shareholder who has made equity payment during enterprise reorganization shall not transfer the acquired equity within 12 months after reorganization. At the same time, the document stipulates that for a business combination that meets the conditions stipulated in Article 5 of the Notice, the amount of equity payment obtained by the shareholders of the business combination at the time of business combination shall not be less than 85% of the total transaction payment, and for a business combination under the same control that does not need to pay consideration, it may choose not to confirm the transfer gains and losses of related assets for the time being.
For example, if Enterprise A merges with Enterprise B, the book net assets of Enterprise B are 50 million yuan and the fair value is 60 million yuan. When the shareholder of enterprise B receives the equity of the merged enterprise of 55 million yuan and other non-equity payment of 5 million yuan, the proportion of equity payment to the total transaction payment is 92% (55 million yuan? 6000? 100%), more than 85%, both parties can choose special tax treatment, that is, the asset appreciation part of100000 yuan is not subject to enterprise income tax. At the same time, the share exchange between Party A and Party B does not confirm the transfer gains and losses. Assuming that this ratio does not exceed 85%, the enterprise income tax with an asset appreciation of 6,543,800,000 yuan is 2,500,000 yuan, and the share-based payment also recognizes gains or losses.
In the special tax treatment, the amount of non-equity payment shall be taxed according to the sixth item of Article 6 of Caishui [2009] No.59. If the parties to the restructuring transaction fail to confirm the gains or losses of the relevant assets transfer temporarily according to the regulations, the non-equity payment shall still confirm the corresponding gains or losses of the assets transfer during the current transaction, and adjust the tax basis of the corresponding assets. Gain or loss of assets transfer corresponding to non-equity payment = (fair value of transferred assets-tax basis of transferred assets)? (Non-equity payment amount? Fair value of transferred assets). According to the above example, the shareholder of enterprise B obtained the equity of the newly merged enterprise of 55 million yuan and the non-equity of 5 million yuan. If the original equity investment cost of the shareholders of enterprise B is 40 million yuan, the value will be increased by 20 million yuan (55 million +500-4000). The non-equity income of 5 million yuan obtained by shareholders corresponds to the transfer income of 5 million yuan. 6000? 2000= 166.7 (ten thousand yuan). The taxable cost for shareholders to obtain new shares is not 55 million yuan, but 36.667 million yuan (40-500+166.7). This is stipulated in Item 4 of Article 6 of Caishui [2009] No.59? Tax basis: If the shareholders of the merged enterprise acquire the equity of the merged enterprise, it shall be determined based on the tax basis of the original equity of the merged enterprise? .
For the specially merged enterprise, since the asset appreciation loss tax of the merged enterprise has not been confirmed, the tax basis is also based on the book value of the original enterprise assets at the time of receiving the assets. Item 4 of Article 6 of Caishui [2009] No.59 stipulates that a business combination in which the amount of equity paid by shareholders during business combination is not less than 85% of the total transaction payment, and a business combination under the same control without paying consideration, can be handled in accordance with the following provisions.
(1) The tax basis at which the merged enterprise accepts the assets and liabilities of the merged enterprise shall be determined by the original tax basis of the merged enterprise.
(2) Relevant income tax matters before the merger of the merged enterprise shall be inherited by the merged enterprise. As an example, enterprise A and enterprise B are merged, although the fair value of net assets of enterprise B is 60 million yuan, its book value is 50 million yuan, and the merged enterprise can only use 50 million yuan as the tax basis for accepting assets.