1. Tax law provisions
Some enterprises regard their valuable fixed assets and inventories as in-kind investments, often without recognizing income and not treating them in accordance with the fair value stipulated in the tax law, and there is a risk of underpaying value-added tax and surcharge and enterprise income tax.
According to the Detailed Rules for the Implementation of the Provisional Regulations on Value-Added Tax:
4. The following acts of units or individual industrial and commercial households shall be regarded as the sale of goods:
6) Providing self-produced, commissioned processing or purchased goods to other units or individual industrial and commercial households as investment.
According to the announcement of the State Administration of Taxation on issues related to the collection and administration of enterprise income tax on investment in non-monetary assets (Announcement No. 33 of 2015 of the State Administration of Taxation).
5. The enterprise shall keep the equity investment contract or agreement, the fair value appraisal confirmation report of the non-monetary assets (details) invested abroad, the explanation of the tax basis of the non-monetary assets (details), and the supporting materials of the industrial and commercial department for the establishment or change of the invested enterprise for future reference, and separately and accurately account for the differences between the tax law and the accounting.
Two. Company Law Provisions
Article 27 of the Company Law [Method of Capital Contribution] Shareholders may make capital contributions in currencyIt is also possible to make capital contributions with non-monetary assets that can be valued in monetary terms and can be transferred in accordance with law, such as physical objects, intellectual property rights, and land use rightsï¼›However, there is an exception for property that is not allowed to be used as capital contribution as stipulated by laws and administrative regulations.
The non-monetary property used as capital contribution shall be appraised and verified, and shall not be overvalued or undervalued. Where laws and administrative regulations have provisions on appraisal valuation, follow those provisions.
Because shareholders' capital contribution involves the adequacy and stability of capital, if the capital contribution is not evaluated, it is likely that the capital contribution is false, or even the property value of the capital contribution is abnormally low, thus harming the interests of other shareholders and creditors.
Three. Case
From October 2021 to February 2022, your company purchased 4,683,300 fixed assets such as medium and heavy truck lines, sprinkler trucks, and forklifts00 yuan, deducting 537,292 input tax89 yuan, and in the same month, it was transferred to the "long-term equity investment" account through the "fixed property liquidation" account to invest in Xinjiang **Automobile Manufacturing***Xinjiang **Automobile Manufacturing***, and your company's foreign investment in fixed assets should be regarded as sales, and the taxable income of VAT should be recorded 4,146,00711 yuan, but your company did not record income, resulting in an underdeclaration and payment of VAT of 537,29289 yuan, urban construction and maintenance tax 37,61050 yuan.
According to the first paragraph of Article 63 of the Law of the People's Republic of China on the Administration of Tax Collection: "A taxpayer who forges, alters, conceals, or destroys account books or accounting vouchers without authorization, or lists more expenses or omits or understates income in the account books, or refuses to declare or makes false tax declarations after being notified by the tax authorities, and fails to pay or underpays the tax payable, is guilty of tax evasion." The under-declaration and payment of tax due to the fact that your company's income should be recorded but not recorded has constituted tax evasion and caused tax delay.
*: Environmental Wisdom Finance and Taxation Law.
Author: Dong Lei.
*Editor: Mulin Financial News.