Author: Wang Quan, litigation lawyer, Gui Yiwei, litigation lawyer|Note: Yes.
【Tax Law Writing】Press
After the third phase of the Golden Tax, we often receive similar inquiries, how can enterprises legally "avoid taxes"? Compared with the past, business owners are becoming more aware of tax law compliance, and when they ask about "tax avoidance" schemes, they at least take the initiative to mention the premise of "legality". The logic behind this shift in perception is, of course, inseparable from the tax regulatory environment in which we live and the improvement of regulatory technology. When it comes to "legality", it is necessary for enterprises to have a comprehensive understanding of the current preferential tax policies, and then form a general "tax-saving" idea according to their own industry characteristics, scale, business framework and other factors. In order to facilitate business owners to form a legal awareness of "tax saving", we have summarized and sorted out the preferential tax policies that can be used by enterprises in the current tax environment for reference and application.
[Lawyer's summary].
Before we get into this topic, let's sort out two concepts.
One is the three essentials of "real tax planning", which is not a statutory concept, but an original judgment standard of "real tax planning" created by us based on practical experience and judicial litigation experience to facilitate the business owner to accurately judge whether the tax saving plan that the enterprise has implemented or intends to implement is in line with the law and tax policy provisions. This definition is mainly to facilitate enterprises to avoid the indoctrination and implementation of the "fake tax planning" method, which will bring higher legal and tax risks to enterprises. The so-called "real tax planning" has three essentials, namely: legitimacy, authenticity and rationality. **Friends can experience the specific meaning and application of the three essentials from the relevant articles we have written many times.
The other is "tax incentives". According to the provisions of tax-related laws and documents, tax incentives are mainly divided into three categories: tax base reduction; tax rate reduction; Tax deductions. The tax base deduction is to reduce the amount of taxable income; Tax rate reduction means reducing the taxable tax rate; The tax reduction is to reduce the amount of taxable tax.
First, the choice of business entity.
The business entity here refers to the organizational form of the business unit. Considering that the business entities of different organizational forms have different tax types, tax rates, and the application of preferential tax policies, this leaves a lot of room for tax planning for business units to choose which organizational form to operate. For more information about the differences between different organizational forms of taxation and the size of the tax burden, interested friends can refer to our previous article "Comparison of Tax Burdens under Different Enterprise Organizational Forms?" 》。Among them, individual industrial and commercial households enjoy preferential policies for tax base reduction; Small and low-profit enterprises enjoy the dual preferential policies of tax base reduction and tax rate reduction.
Second, the choice of equity contribution method.
1. In the process of equity contribution, the tax-related documents also provide many preferential tax policies. For example, if an individual contributes capital with technological achievements, he or she can enjoy the preferential policy of deferred tax (deferred to the time of equity transfer); If an individual contributes capital with non-monetary assets other than technological achievements, he or she can enjoy the preferential policy of paying taxes in installments within 5 years; If the non-monetary assets are shared, the assessed non-monetary assets can be depreciated, amortized and deducted before tax at the level of the investee company.
2. In the process of shareholding dividends, the tax exemption policy can be enjoyed for dividends between resident enterprises. Resident enterprises here refer to enterprises established in China in accordance with the law, or established in accordance with the laws of foreign countries (regions) but with actual management institutions in China, excluding sole proprietorship enterprises and partnership enterprises.
3. In the equity exit link (only for the withdrawal of investment or capital reduction other than equity transfer), if the investment enterprise withdraws or reduces the investment from the invested enterprise, the part of the assets obtained by the investment enterprise equivalent to the initial capital contribution shall be recognized as investment recovery; The part equivalent to the accumulated undistributed profits and accumulated surplus reserve of the invested enterprise calculated in proportion to the reduced paid-in capital shall be recognized as dividend income; The remainder is recognized as income from the transfer of investment assets. To put it simply, if an investment enterprise withdraws from equity by way of divestment, it can be exempted from tax on the part of the undistributed profits of the invested enterprise, and the excess part is the income from property transfer, and is subject to the income tax rate applicable to the investment enterprise.
3. The cost deduction policy applies.
Theoretically, all cost deduction policies are tax-based reduction and exemption policies. Specifically, it can be divided into:
1. Accelerated depreciation policy.
Under normal circumstances, depreciation of fixed assets acquired by an enterprise starts from the month following the month in which they are put into use, and depreciation can be deducted in installments before tax according to the provisions of the tax law. For different types of fixed assets, the tax law has a minimum depreciation period. For example, 20 years for houses and buildings; 10 years for aircraft, trains, ships, machines and other production equipment; 5 years for appliances, tools, furniture, etc. related to production and business activities; 4 years for means of transport other than airplanes, trains, and ships; electronic equipment, for 3 years.
However, the tax-related documents also give preferential policies for accelerated depreciation of eligible fixed assets, such as:
1) For the newly purchased instruments and equipment for R&D, production and operation of small and low-profit enterprises in the manufacturing industry, if the unit value does not exceed 1 million yuan, it is allowed to be included in the current cost at one time; If the unit value exceeds 1 million yuan, the depreciation period can be shortened or accelerated depreciation can be adopted.
2) For the newly purchased instruments and equipment specially used for research and development by enterprises in all industries, if the unit value does not exceed 1 million yuan, it is allowed to be included in the current cost at one time; If the unit value exceeds 1 million yuan, the depreciation period can be shortened or accelerated depreciation can be adopted.
3) Fixed assets with a unit value of no more than 5,000 yuan held by enterprises in all industries are allowed to be included in the current cost and expense at one time.
4) From January 1, 2018 to December 31, 2023, fixed assets (excluding houses and buildings) with a unit value of no more than RMB 5 million purchased (including self-constructed) by enterprises are allowed to be included in the current cost at one time.
2. R & D expenses plus deduction policy.
In order to encourage enterprises to increase R&D investment and innovate production, the tax-related documents give eligible enterprises the ability to add pre-tax deductions for the accrued R&D expenses. It is embodied in:
1) Manufacturing enterprises enjoy a 100% additional deduction policy for their R&D expenses; Intangible assets formed from its R&D activities are amortized before tax at 200% of the cost of intangible assets.
2) Small and medium-sized technology-based enterprises enjoy a 100% additional deduction policy for their R&D expenses; Intangible assets formed in respect of its R&D activities are amortized before tax at 200% of costs.
3) General enterprises enjoy a 75% additional deduction policy for their R&D expenses, and amortize 175% of the cost of intangible assets formed by their R&D activities before tax.
4) The R&D expenses entrusted by the enterprise to external units or individuals for development shall be calculated and deducted by the entrusting party according to 80% of the actual amount of expenses.
5) The expenses incurred by the enterprise in entrusting overseas units (except individuals) to carry out R&D activities shall be included in the entrusting party's entrusted overseas R&D expenses according to 80% of the actual amount of expenses, and shall not exceed 2 3 of the qualified R&D expenses in China, which can be deducted before tax according to the regulations.
6) In addition, the tax-related documents also restrict the application of the additional deduction policy for some industries, namely: tobacco manufacturing, accommodation and catering, wholesale and retail, real estate, leasing and business services.
3. The policy of additional deduction of wages paid by disabled persons.
In order to encourage enterprises to place disabled employees, the Enterprise Income Tax Law allows enterprises to deduct 100% of the wages paid to disabled employees on the basis of actual deductions.
4. Deduction policy for special funds for environmental protection.
Under normal circumstances, enterprises are only allowed to deduct pre-tax expenses and losses, depreciation and amortization actually incurred in the current period. However, all kinds of reserves, special funds and other expenses accrued by enterprises are not allowed to be deducted before tax because they have not actually occurred. However, in the field of environmental protection, the tax law provides for exceptions.
According to the regulations, the special funds for environmental protection and ecological restoration extracted by enterprises in accordance with relevant regulations are allowed to be deducted. However, if the aforesaid special funds are changed after being withdrawn, they shall not be deducted.
Fourth, the choice of corporate identity applies.
Looking at the tax-related documents, the significance of distinguishing corporate identity is mainly divided into three aspects:
1. General taxpayers and small-scale taxpayers.
The core of the significance of the distinction between general taxpayers and small-scale taxpayers lies in the field of value-added tax. The sales of goods and services by small-scale taxpayers are generally subject to a 3% levy rate, and the levy rate is generally 5% for those related to immovable property; General taxpayers are subject to the VAT rate of % on the sale of goods and services. Compared with general taxpayers, the VAT rate of small-scale taxpayers is much lower, but small-scale taxpayers are not allowed to deduct inputs, and if the input deduction factors are considered, the final tax rate of small-scale taxpayers may not necessarily be lower than that of general taxpayers.
In addition, the tax-related documents also have restrictions on the scope of identification of small-scale taxpayers. Those who can be registered as small-scale taxpayers usually need to meet the standard of annual VAT sales of 5 million yuan and below, and once the sales amount exceeds 5 million yuan, they must be registered as general taxpayers. General taxpayers cannot be re-registered as small-scale taxpayers. Other individuals (referring to natural persons) who exceed the prescribed standards shall be taxed as small-scale taxpayers; Units that exceed the prescribed standards but do not frequently engage in taxable activities, as well as non-enterprise units and enterprises that do not frequently engage in taxable behaviors, may choose to pay taxes as small-scale taxpayers.
For the grasp of the sales standard of 5 million yuan, the sales of intangible assets and the transfer of immovable property that occur incidentally shall be excluded; For taxpayers who levy VAT on the difference (VAT calculation has a deduction item), the annual taxable sales amount shall be calculated according to the sales amount before deduction.
2. Subsidiaries and branches.
The difference between subsidiaries and branches in terms of tax planning is mainly reflected in two aspects: (1) profit splitting; (2) Cost allocation.
The subsidiary is an independent legal entity with operational autonomy, financial and tax independence, and is responsible for its own profits and losses. If the head office has a subsidiary, part of the business will be diverted by the subsidiary and the profits will be split, and the business scale after the spin-off is very likely to meet the criteria for the identification of small and low-profit enterprises, and a very low tax burden rate will be applied to the business. At the same time, the scale of operation after the spin-off may also meet the conditions of small-scale taxpayers, and the VAT rate with a lower levy rate will apply.
The branch is an unincorporated unit, and the finance and taxation are not completely independent, and the income and cost expenses are ultimately accounted for by the head office. Therefore, the branch cannot play the role of profit splitting. However, since the financial affairs of the branch are attributed to the head office, the losses of the branch are shared by the head office, which can have the effect of reducing profits, especially for the branches that cannot make profits temporarily with large investment in the early stage. In the field of VAT, branches with independent accounting can also be separately identified and registered as small-scale taxpayers, and the VAT rate with a lower levy rate is applied. Therefore, in terms of VAT identification, the head office can be different from the branch, which is also the point where we can use tax funding.
3. Audit collection and verification collection.
We do not analyze the difference between audit collection and approved collection. In practice, Wei Ya, Sydney, Zheng Shuang, Fan Bingbing and others often evade taxes by using the approved collection to change the nature of income. To this end, we have also shared the practical knowledge of approved collection many times in this ***. It should be pointed out that the verification and collection is not a preferential tax policy, strictly speaking, most of them are a punitive tax collection method, but they are alienated by practice when they are implemented. The state has also recognized the problems, and in the past two years, it has limited the scope of application of the approved levy, and even cancelled the registration of the approved levy enterprises. However, the approved collection still has a certain significance, and it is impossible for the state to cancel all the approved collections. In practice, for business entities that meet the three requirements of "real tax planning", it is still possible to make good use of the policy of verification and collection.
Fifth, the choice of business scale.
The value of the choice of business scale is mainly reflected in the fact that the state provides great tax incentives in the field of income tax for small and low-profit enterprises, that is, the state tailors a double reduction and exemption policy of tax base and tax rate for small and low-profit enterprises. According to the provisions of the tax-related documents, the part of the annual tax income of small and low-profit enterprises that does not exceed 1 million yuan shall be reduced by 125% is included in the taxable income, and the corporate income tax is paid at a rate of 20% (the final tax rate is 2.).5%）；The part of the annual taxable income exceeding 1 million yuan but not exceeding 3 million yuan shall be included in the taxable income at a reduced rate of 25%, and the enterprise income tax shall be paid at a rate of 20% (the final tax burden rate is 5%).
It can be seen that if enterprises plan in advance, take advantage of the above-mentioned preferential policies, and do a good job in top-level framework design, they can ultimately achieve a great "tax saving" effect.
Sixth, the choice of enterprise type.
The tax-related documents give different types of preferential tax policies for different types of enterprises, including tax rate reduction and exemption, as well as tax base reduction. Specifically, it is manifested in:
1. High-tech enterprises are subject to enterprise income tax at a reduced rate of 15%. tax rate reduction;
2. The enterprise income tax shall be levied at a reduced rate of 15% for the recognized technologically advanced service enterprises. tax rate reduction;
3. Small and medium-sized technology-based enterprises enjoy a 100% additional deduction policy for their R&D expenses; Intangible assets formed in respect of its R&D activities are amortized before tax at 200% of costs. (Tax-based relief).
4. If a venture capital enterprise invests in an unlisted small and medium-sized high-tech enterprise by way of equity investment for more than 2 years, it may deduct the taxable income of the venture capital enterprise in the year in which the equity has been held for 2 years according to 70% of the investment amount. (Tax-based relief).
7. Preferential tax policies for special industries.
In order to encourage the development of specific industries, tax-related laws and documents give tax incentives at the income tax level, which are embodied in:
1. Income from agriculture, forestry, animal husbandry and fishery industries generally enjoys preferential income tax exemption policies. For the cultivation of flowers, tea and other beverage crops and spice crops (including ornamental crops), as well as marine aquaculture and inland aquaculture, the levy shall be reduced by half.
2. Income from investment and operation of public infrastructure projects supported by the state; Income from eligible environmental protection, energy conservation and water conservation projects; You can enjoy the preferential policy of "3 exemptions and 3 halves".
3. The company's investment, its own capital business, and the income obtained from the market are not subject to corporate income tax for the time being. The income obtained by investors from the distribution of **investment** is temporarily exempt from corporate income tax.
4. Third-party enterprises engaged in pollution prevention and control shall be levied enterprise income tax at a reduced rate of 15%.
5. The integrated circuit and software industries shall enjoy preferential policies of exemption and reduction respectively according to specific circumstances. Specifically, we will share and interpret the preferential tax policies for the integrated circuit and software industries separately in the future.
6. Qualified legal person enterprises in the Lingang New Area of the Shanghai Free Trade Zone that are engaged in products (technologies) related to core links in key fields such as integrated circuits, artificial intelligence, biomedicine, civil aviation, etc., and carry out substantive production or R&D activities, shall be subject to enterprise income tax at a reduced rate of 15% for 5 years from the date of establishment.
7. For enterprises in encouraged industries that operate substantively in Hainan Free Port, enterprise income tax shall be levied at a reduced rate of 15%.
8. The income derived from new overseas direct investment by enterprises in tourism, modern service industry and high-tech industries established in Hainan Free Port shall be exempted from enterprise income tax.
8. Other special types of preferential tax policies.
1. Preferential tax reduction and exemption items.
According to the Regulations for the Implementation of the Enterprise Income Tax Law, if an enterprise purchases and actually uses special equipment for environmental protection, energy and water saving, and safe production, 10% of the investment amount of the special equipment can be deducted from the tax payable of the enterprise in the current year; If the credit is insufficient in the current year, the credit can be carried forward for the next five tax years.
However, if an enterprise purchases the above-mentioned special equipment and transfers or leases it within 5 years, it shall cease to enjoy the preferential enterprise income tax and pay the enterprise income tax that has been credited.
2. Preferential income tax on qualified technology transfer.
For the qualified income from technology transfer and the income from technology transfer of non-exclusive licensing rights for more than 5 years, the tax-related documents provide preferential policies for exemption of enterprise income tax within 5 million yuan and halving the enterprise income tax for more than 5 million yuan. At the same time, in the field of VAT, taxpayers who provide technology transfer, technology development and related technical consulting and technical services are exempt from VAT. For specific relevant analysis, please refer to the article "Full Analysis of Tax-related Legal Issues in Intellectual Property Transfer" shared in the previous stage.