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1.Cai Shui 2024 No. 8 Circular 2Latest jurisprudence: The amount of late payment penalty should not exceed the amount of overdue tax.
3.Dismantle the multi-layer "nesting" to recover the underpayment of taxes by the partnership.
4.Case Analysis: Calculation of Tax Reduction and Exemption under the Policy of Halving Individual Income Tax for Individual Industrial and Commercial Households.
5.The "positive and negative lists" guide enterprises to guard against tax-related risks.
1.Cai Shui 2024 No. 8
Ministry of Finance, State Administration of Taxation.
Notice Cai Shui 2024 No. 8 on the Pilot Preferential Offshore Stamp Duty Policies in the China (Shanghai) Pilot Zone and Lingang New Area.
Shanghai Municipal Bureau of Finance, Shanghai Taxation Bureau of the State Administration of Taxation:
In order to support the development of offshore in the Free Pilot Zone, the preferential policies for offshore stamp duty in the China (Shanghai) Pilot Zone and the Lingang New Area are hereby notified as follows:
1. Stamp duty shall be exempted from stamp duty on the sales contracts signed by enterprises registered in the China (Shanghai) Pilot Zone and the Lingang New Area to carry out offshore resale business.
The term "offshore resale" as used in this notice refers to a transaction in which a resident enterprise purchases goods from a non-resident enterprise and subsequently resells the goods to another non-resident enterprise, and the goods never actually enter or leave China's customs territory. 2. This notice shall be implemented from April 1, 2024 to March 31, 2025.
Ministry of Finance, State Administration of Taxation.
2.Latest jurisprudence: The amount of late payment penalty should not exceed the amount of overdue tax.
Whether the late payment penalty can exceed the tax principal has been the focus of dispute between the tax and the enterprise for a long time. According to a judgment published on the China Judgments and Judgments website at the end of January this year, the courts of first and second instance both invoked Article 45 of the Administrative Coercion Law, which stipulates that "the amount of additional fines or late fees shall not exceed the amount of the monetary payment obligation", and determined that the late payment penalty imposed by the tax authorities should not exceed the principal amount of the tax, and the case has certain reference value. The State Administration of Taxation clarified the penalty nature of late payment fees in the Interpretation of the New Tax Collection and Administration Law and its Implementation Rules, and the interpretation of late payment fees by the legislature and the Supreme People's Court in the Administrative Coercion Law also included late payment fees. According to the above-mentioned laws and the provisions of the relevant departments on the definition of the nature of the tax late payment penalty and the principle of proportionality, the additional late payment penalty is a penalty measure for the taxpayer who fails to pay the tax within the legal time limit, which is a form of administrative compulsory enforcement and should not exceed the amount of the monetary payment obligation. The full text of the judgment is as follows: Tianjin No. 2 Intermediate People's Court.
Civil Judgments.
2023) Jin 02 Min Zhong No. 10624.
Appellant (plaintiff in the original trial): Taxation Bureau of Tianjin XX District, State Administration of Taxation, domiciled in Hex District, Tianjin.
Legal representative: Zhou X, director.
Entrusted litigant: Wang X, lawyer of Tianjin XX Law Firm.
Appellee (defendant in the original trial): Tianjin XX Textile *** domiciled in Hedong District, Tianjin.
Legal representative: Yang xx, manager.
Bankruptcy administrator: Tianjin XX liquidation***
Entrusted litigant: Cai xx, lawyer of Tianjin xx law firm.
The appellant, Tianjin XX District Taxation Bureau of the State Administration of Taxation (hereinafter referred to as the XX Taxation Bureau), appealed to this court against the civil judgment of Tianjin Hedong District People's Court (2023) Jin 0102 Min Chu No. 7612 due to a dispute over the confirmation of ordinary bankruptcy claims with the appellee, Tianjin XX Textile *** hereinafter referred to as XX Company. After the case was filed on November 1, 2023, this court formed a collegial panel in accordance with the law, and after reading the case file and questioning the parties, it conducted a trial in accordance with the provisions of the law. The case is now closed.
XX Taxation Bureau's appeal request: revoke the (2023) Jin 0102 Min Chu No. 7612 Civil Judgment made by the Tianjin Hedong District People's Court in accordance with the law, remand the case for retrial or change the judgment in accordance with the law, and change the judgment to support the first-instance litigation request of the XX Taxation Bureau. Facts & Reasons:1The court of first instance had an erroneous interpretation of the expanded scope of application of the Administrative Coercion Law of the People's Republic of China. The applicable object of "additional fines or late fees" in the Administrative Compulsion Law of the People's Republic of China is "the administrative decision of the administrative organ on the obligation to pay money in accordance with the law", while the applicable object of the "late payment fee" in the Law of the People's Republic of China on the Administration of Tax Collection is a liability for breach of contract, and the late payment penalty of the additional tax is not applicable to the Administrative Penalty Law of the People's Republic of China. 2.Even if it is considered that the provisions of the Administrative Compulsion Law of the People's Republic of China should be applied to tax collection, according to the principle that special law prevails over general law, when there are inconsistencies and conflicts in law, the special law of the Law of the People's Republic of China on the Administration of Tax Collection shall be applied to tax matters.
Company XX argued that it did not agree with the appeal request of the XX Tax Bureau, and requested that the appeal be dismissed and the original judgment upheld. Facts and Reasons:1The court of first instance correctly applied the law and requested that the appeal request of the XX Tax Bureau be dismissed in accordance with the law. Late payment penalty is a measure of economic sanctions imposed by the tax authorities on taxpayers who pay taxes on overdue tax for taxpayers who do not pay taxes within the payment deadline, and is a specific administrative act made by administrative organs, not the intended liability for breach of contract between equal subjects, so the "late payment fee" in the Administrative Compulsion Law of the People's Republic of China and the Law of the People's Republic of China on the Administration of Tax Collection and Collection are the same concept, and the amount of late payment penalty should be limited. 2.In accordance with the principle that the new law is superior to the old law, the Administrative Coercion Law of the People's Republic of China was implemented later than the Law of the People's Republic of China on the Administration of Tax Collection, so the Administrative Coercion Law of the People's Republic of China should be used. 3.The restriction on the amount of late payment penalty is the embodiment of the principle of the Enterprise Bankruptcy Law of the People's Republic of China to ensure fair repayment of all creditors. The tax principal claim has priority over other ordinary claims in accordance with the law, and if there is no restriction on the tax late payment fee, it will be more detrimental to the fair repayment of other claims, so the tax late payment penalty should be restricted in accordance with the provisions of the Administrative Compulsion Law of the People's Republic of China.
The XX Tax Bureau filed a lawsuit with the court of first instance requesting that:1Request for confirmation that the XX Tax Bureau has an ordinary claim for all the tax overdue penalties owed by the XX Company; 2.The litigation costs are borne by XX Company.
The court of first instance found the facts: on October 27, 2022, the Tianjin No. 2 Intermediate People's Court ruled to accept the bankruptcy liquidation application of XX Company, and on November 17, 2022, Tianjin XX Liquidation *** was appointed as the administrator of XX Company. On January 5, 2023, the XX Tax Bureau made a claim declaration to the administrator for the tax arrears of Company XX, including the 777683 of the tax arrears85 yuan, late fee 204103126 yuan. On February 14, 2023, the administrator reported that the result was the confirmation of the tax claim 77768385 yuan, the amount of ordinary claims (inferior) 77768385 yuan.
On February 22, 2023, the administrator made a "Reply Letter of Objection to Creditor's Rights", which shows that: your bureau now raises objections to the adjustment of the amount of late fees, and the administrator reviews and reviews the objections to your creditor's rights, according to Article 45 of the Administrative Compulsion Law of the People's Republic of China, "the administrative organ makes an administrative decision on the obligation to pay money in accordance with the law, and if the party fails to perform within the time limit, the administrative organ may impose a fine or late fee in accordance with the law." The parties shall be informed of the standards for imposing additional fines or late fees. The amount of the additional fine or late payment penalty shall not exceed the amount of the monetary payment obligation. "The tax authorities, as administrative agencies, shall apply to the upper limit of the late payment penalty. Therefore, the administrator will review the part of the late payment penalty declared by your bureau again and adjust it to the ordinary claim (inferior) 77768385 yuan.
In addition, during the trial, both parties had no objection to the amount of taxes and late fees.
The court of first instance held that the focus of the dispute in this case was whether the part of the late payment penalty in excess of the principal should be recognized as an ordinary bankruptcy claim. In accordance with the provisions of Article 32 of the Law of the People's Republic of China on the Administration of Tax Collection, "if a taxpayer fails to pay the tax within the prescribed time limit, and the withholding agent fails to release the tax within the prescribed time limit, the tax authorities shall impose a late payment penalty of 5/10,000 of the overdue tax amount on a daily basis from the date of the overdue tax payment", and the second paragraph of Article 45 of the Administrative Compulsion Law of the People's Republic of China provides that "the amount of the additional fine or late payment penalty shall not exceed the amount of the monetary payment obligation". In this case, the tax owed by Company XX was 77768385 yuan, late fee of 204103126 yuan, the manager confirms that the late fee does not exceed the part of the principal, that is, 777683There is nothing improper in the fact that 85 yuan is an ordinary creditor's right, and the court of first instance affirmed it. Therefore, the court of first instance did not support the litigation request of the XX Tax Bureau to confirm all the late payment fees as ordinary creditor's rights.
In summary, in accordance with Article 32 of the Law of the People's Republic of China on the Administration of Tax Collection, Article 45, Paragraph 2 of the Administrative Compulsion Law of the People's Republic of China, and Article 67 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows: "All litigation claims of the Tianjin XX District Taxation Bureau of the State Administration of Taxation are rejected. The case acceptance fee of 80 yuan shall be borne by the Taxation Bureau of Tianjin XX District of the State Administration of Taxation".
In the second instance, neither party submitted new evidence. The facts ascertained in the second instance are consistent with those found in the first instance, and this court confirms the facts ascertained in the first instance.
The court held that the focus of the dispute in this case was whether all the late fees involved in the case should be regarded as ordinary creditor's rights. Article 45 of the Administrative Coercion Law of the People's Republic of China stipulates that: "If an administrative organ makes an administrative decision on the obligation to pay money in accordance with the law, and the party fails to perform it within the time limit, the administrative organ may impose a fine or late payment penalty in accordance with the law." The parties shall be informed of the standards for imposing additional fines or late fees. The amount of the additional fine or late payment penalty shall not exceed the amount of the monetary payment obligation. In this case, the XX Taxation Bureau, as an administrative agency, has the statutory duty to collect taxes and impose late fees for additional taxes, and XX Company owes 777683 taxes85 yuan and overdue performance, according to the above-mentioned legal provisions, the amount of late payment penalty imposed by the XX tax bureau should not exceed the amount of overdue tax, so the court of first instance confirmed that the part of the late payment penalty confirmed by the administrator does not exceed the principal amount is 777683There is nothing improper in the case of 85 yuan as an ordinary creditor's right, and the appeal request of the XX Taxation Bureau to confirm all the late fees as ordinary creditor's rights is not based on sufficient grounds and is not supported by this court.
In summary, the appeal request of the XX Tax Department cannot be sustained and should be dismissed; The first-instance judgment found that the facts were clear and the law was correctly applied, and should be upheld. In accordance with the provisions of Article 176, Paragraph 1 and Article 177, Paragraph 1 (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The second-instance case acceptance fee of 80 yuan shall be borne by the Tianjin XX District Taxation Bureau of the State Administration of Taxation.
This judgment is final.
Presiding Judge: Zhang Yanjun.
Judge: Liu Aimin.
Judge Fang Lijia.
2. December 15, 23.
.Dismantle the multi-layer "nesting" to recover the underpayment of taxes by the partnership.
Recently, the State Administration of Taxation Shenzhen Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone Taxation Bureau (hereinafter referred to as the Qianhai Taxation Bureau), according to the clues provided by the tax department of Nantong City, Jiangsu Province, carried out a verification of Shenzhen A partnership, and confirmed that the enterprise, as a partnership beneficiary of a partnership in Nantong, failed to declare and pay taxes in accordance with the law after obtaining income from the shares of Nantong Enterprise** listed company. The bureau made a recovery of taxes and late fees against a partnership in accordance with the law.167640,000 yuan of processing decision.
Clarify the partnership relationship and clarify the tax liability.
In March 2023, the Qianhai Tax Bureau received a letter from the tax department of Nantong City, Jiangsu Province. The letter said that the A partnership located in Shenzhen and the Nantong B partnership had a "multi-layer nested" partnership, and that the Nantong B partnership had previously invested in the shares of Wuxi Z listed companies, and during the holding period, the company also received dividends from the Z listed companies, and the above earnings were subject to tax, and it was recommended that the Qianhai Taxation Bureau verify the relevant issues to avoid the loss of national tax revenue.
After receiving the clues, the tax personnel of the risk management department of the Qianhai Taxation Bureau immediately verified and analyzed the situation of Shenzhen A partnership. As the verification deepened, a multi-layered and interrelated partnership structure gradually emerged.
The tax officer found that the partners of Shenzhen A Partnership were two natural persons. Shenzhen A Partnership is a partner of Nantong C Partnership, Nantong C Partnership is a partner of Ningbo D Partnership, and Ningbo D Partnership is a partner of Nantong B Partnership.
The notice of the Ministry of Finance and the State Administration of Taxation on the income tax of partners in partnership enterprises (CS 2008 No. 159) clarifies that each partner of a partnership enterprise is the taxpayer. If the partners of the partnership are natural persons, they shall pay individual income tax; Partners who are legal persons or other organizations are subject to corporate income tax.
Based on the provisions of the laws and regulations and the verification of the situation of the enterprise, the tax officer believes that the partnership itself does not need to pay income tax. Judging from the verification results, although a number of partnerships and partnerships are involved, the Shenzhen A partnership mentioned in the clues is the ultimate partner of Nantong B partnership. The ultimate income tax payers of the income obtained by the ** shares and ** dividends of Nantong B Partnership shall be the two natural person partners of Shenzhen A Partnership, and they shall bear the ultimate tax liability for the ** shares and cash dividends.
Calculate income data and interpret the law to recover taxes.
After clarifying the organizational structure between Shenzhen A Partnership and Nantong B Partnership, the tax officer began to verify the tax payment status of Shenzhen A Partnership. According to the collection and management information, Shenzhen A Partnership has declared individual income tax on production and operation income and individual income tax on dividends and dividends for two natural person partners. But is the exact amount of tax accurate? Are the relevant taxes paid in full? The tax officer continued to conduct an in-depth investigation and required Shenzhen Partnership A to submit information such as the income statement of Company B, Company C and Company D, as well as the partnership agreement and dividend resolution. However, Shenzhen Partnership A claimed that it could not provide complete information due to its small share of the partnership and its weak control over the partnership.
As a result, the tax officer sent a letter to the competent tax authorities where Nantong B Partnership, Nantong C Partnership, and Ningbo D Partnership were located, asking them to support and assist in the investigation. With the strong support of the tax authorities of Nantong and Ningbo, the Qianhai Taxation Bureau finally obtained all the complete financial information of the partnership involved in this case.
In the face of the mountain of enterprise information, the staff of the Tax Risk Management Bureau of the Qianhai Taxation Bureau acted in groups to analyze in detail the income statement and profit distribution of the partnership in each link involved, and eliminated the impact of factors such as changes in the fair value of the enterprise on the profit, sorted out a relatively clear profit distribution chain, and finally calculated the actual profit income of Shenzhen A partnership according to the partnership share and profit distribution ratio at each level. After comparing and analyzing the previous declaration of the enterprise, the tax officer confirmed that Shenzhen A partnership was underdeclared by about 377 for two natural person partners080,000 yuan, of which 364 were underdeclared in production and operation income950,000 yuan, dividend income less declaration 12130,000 yuan. The tax officer then interviewed the two natural person partners of Shenzhen A Partnership. According to the two partners, they agreed in the partnership agreement that "the remaining funds of the distributable income of the partnership after deducting the various costs and expenses that the partnership should bear shall be returned to the accumulated paid-in capital of all partners." The two partners said that this method of "repaying the principal first and then distributing dividends" can avoid investment risks and is a common practice for enterprises in the industry.
In this regard, the tax officer said that if the enterprise does "repay the principal" of the income, then the industrial and commercial registration information and the amount of paid-in capital account in the financial statements of the enterprise will change, but the information of the enterprise has not changed. In addition, even if the enterprise "repays the principal" according to the agreement, it will not affect the calculation of profits and tax payable, according to the provisions (Cai Shui 2008 No. 159), the production and operation income and other income of the partnership shall adopt the principle of "first divide and then tax", and the income (profits) retained by the partnership in the current year shall be taxed. In other words, after the partnership has a profit or receives dividends, the share of each partner is calculated separately first, and the tax liability is incurred in that month. Specifically, in the case of Shenzhen A partnership, it shall calculate the profits from enterprise C according to the partners' share in accordance with the law, file tax returns and withhold individual income tax on its natural person partners.
After patient and meticulous policy guidance from tax personnel, Shenzhen A Partnership recognized the opinions of tax personnel, cooperated with the tax authorities to make supplementary declarations, and paid back taxes and late fees of 167640,000 yuan.
Case Analysis: Calculation of Tax Reduction and Exemption under the Policy of Halving Individual Income Tax for Individual Industrial and Commercial Households.
The final settlement of individual income tax business income is in progress, how to calculate the tax reduction and exemption amount of the individual income tax policy of halving the individual income tax for individual industrial and commercial households?
1.Offer Details.
From January 1, 2023 to December 31, 2027, the individual income tax will be reduced by half for the part of the annual taxable income of individual industrial and commercial households not exceeding 2 million yuan. Individually-owned businesses can enjoy this preferential policy on the basis of enjoying other existing preferential individual income tax policies.
2.Policy basis.
Announcement of the Ministry of Finance and the State Administration of Taxation on Further Supporting the Development of Small and Micro Enterprises and Individually-owned Industrial and Commercial Households (Announcement No. 12 [2023] of the Ministry of Finance and the State Administration of Taxation).
3.Calculation formula.
Tax reduction and exemption = (tax payable for the part of the taxable income of business income not exceeding 2 million yuan - tax reduction and exemption amount for other policies, taxable income of business income not exceeding 2 million yuan, taxable income of business income) 50%.
4.Illustrate.
Case 1: The annual taxable income does not exceed 2 million yuan.
Taxpayer Li operates a self-employed business C, with an annual taxable income of 80,000 yuan (10% of the applicable tax rate and 1,500 quick deductions), and can enjoy the tax reduction and exemption of 2,000 yuan from the policy for the disabled, then the tax reduction and exemption amount of the policy = (80,000 10%-1,500) - 2,000 50% = 2,250 yuan.
When the taxable income of business income does not exceed 2 million yuan, the taxable income of business income does not exceed 2 million yuan = the taxable income of business income, so the calculation formula can be simplified as: tax reduction and exemption = 50% of the tax payable part of the taxable income of business income not exceeding 2 million yuan - tax reduction and exemption of other policies
Case 2: The annual taxable income exceeds 2 million yuan.
Taxpayer Wu operates a self-employed business D, with an annual taxable income of 2,400,000 yuan (the applicable tax rate is 35%, and the quick deduction is 65,500), and can enjoy the tax reduction and exemption of the disabled policy of 6,000 yuan, then the tax reduction and exemption amount of Wu's policy = (2000000 35%-65500)-6000 2000000 2400000 50% = 314,750 yuan.
5.Tips.
This calculation rule has been embedded in the information system of the electronic tax bureau, and the tax authorities will provide taxpayers with pre-filling services for returns and report forms, and eligible taxpayers can accurately and truthfully fill in the business data, and the system can automatically calculate the amount of tax reduction and exemption.
According to the current policy, if a taxpayer obtains business income from two or more places, it shall choose to apply for an annual summary declaration with the competent tax authority of the place where one of the business operations is located. If an individually-owned business obtains business income from two or more sources, it is required to combine the annual taxable income of the individual business income when filing the annual summary tax return, recalculate the tax reduction and exemption amount, and refund the excess and make up for the deficiency.
Individually-owned businesses can enjoy the half-tax reduction policy when they pay individual income tax in advance and final settlement, and they do not need to file for the record when enjoying the policy, and can enjoy it by filling in the relevant columns of the individual income tax return and tax reduction and exemption report form. For individual businesses filing through the electronic tax bureau, the tax authorities will automatically provide them with the pre-filling service of this policy in the declaration and report form. For individual industrial and commercial households with a fixed quota for simple declaration, the tax authorities will automatically transfer and pay the tax according to the tax payable after the reduction or reduction.
The "positive and negative lists" guide enterprises to guard against tax-related risks.
Recently, the tax department of Shaoguan, Guangdong Province has compiled a "positive and negative list" for taxpayers, covering five types of taxes: resource tax, environmental protection tax, vehicle and vessel tax, cultivated land occupation tax and tobacco tax, to help taxpayers reduce the declaration errors of relevant taxes and correctly enjoy preferential tax policies.
After compiling the "positive and negative list", the Shaoguan tax department used tax big data to screen local resource-based enterprises, quickly delivered the "positive and negative list" to taxpayers, and guided taxpayers to make good use of the "list", standardize tax declarations, and prevent tax risks.
In the past, it was easy to make mistakes when declaring resource tax, but now there is a 'positive and negative list', and information collection, tax declaration, and tax incentives are displayed in the form of **, which is clearly organized and clear at a glance, which is convenient for self-inspection when declaring. Shenzhen Zhongjin Lingnan Nonferrous Metals Co., Ltd. *** Fankou lead-zinc mine financial director Li Hui said.
It is understood that the enterprise is located in the Fankou area of Dongtang Town, Renhua County, which is rich in mineral resources, and is currently one of the largest lead-zinc-silver ore production bases in Asia, and is also a leading enterprise in Renhua County's resource tax, which pays resource tax accounting for more than 97% of the county's resource tax revenue. "Due to the large variety of mineral resources and large sales volume of enterprises, it is difficult to accurately calculate the sales volume (volume) of taxable products and how to prevent tax risks in daily tax declarations. Li Hui said, "The tax officer taught us to make an online resource tax declaration against the 'checklist', so that we could avoid some detours." If you encounter problems in your daily declaration, you can also find answers from this easy-to-understand 'checklist' with cases. Under the guidance of the tax officer, Li Hui completed the resource tax declaration in a short time.
The launch of the "list" is also a "timely rain" for the financial personnel of Dabaoshan Mining in Guangdong Province, a large-scale resource-based mining enterprise.
The company is located in Qujiang District, Shaoguan City, and is a national demonstration base for comprehensive utilization of mineral resources and a national green mining enterprise. Since the implementation of the resource tax law, the company has enjoyed the preferential resource tax policy for mining low-grade ore and mining associated ore, and has enjoyed a total of more than 21 million yuan of preferential resource tax reduction. In the process of resource tax declaration, how to determine the corresponding tax items of taxable products and how to accurately understand the preferential tax policies that can be enjoyed are the difficulties of enterprise financial personnel. "The 'positive list' clearly tells us 'what to do and how to do it', providing companies with specific how-to guidelines. The 'negative list' reminds us of 'what not to do, how to deal with it', and helps enterprises avoid tax risks. Li Kaixuan, the financial officer of the enterprise, said that the "positive and negative list" launched by the tax department in a timely manner not only saves a lot of time and energy for enterprises to declare correctly, but also provides guidance for enterprises to accurately enjoy preferential tax policies, and can effectively prevent tax risks by comparing the "risk matters + cases + basis". Under the guidance of the "list" and the guidance of tax personnel, Li Kaixuan corrected and declared the preferential treatment of mineral product resource tax for the erroneous enjoyment of the depletion period of mining.
Next, the Shaoguan tax department will increase the publicity and guidance of the "positive and negative list", and make concerted efforts from the tax service side and the tax declaration end to do a good job in the implementation of the "positive and negative list".
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