Twenty-sixth enterprise income tax law stipulates clearly, such as dividend, bonus between qualified resident enterprises equity investment income for tax exempt income, but in practice, both sides often controversial issues of tax exemption, etc. annual tax-free limit. The author through the relevant cases and list views, for your reference.
Case 1
Confirm the tax exemption for the year: December 20, 2012 A company to make decision, distribution before the annual profit 2000000 yuan, investment square B company in 2013 April received amount is recognised as investment income. B company to duty-free belongs to the competent tax authorities for tax exemption formalities to be informed when investment income for 2012, not 2013 enterprises accounted for B.
Regulations for the implementation of article seventeenth of the provisions of the income tax act, equity investment gains and dividends, except otherwise provided for departments of Finance and taxation under the State Council, in accordance with the invested party makes the decision of profit distribution of the date of recognition of income realized. The same accounting policies is to be invested to make the decision of profit distribution of the date of recognition of income realized. But in practice, because the enterprise internal communication problems, investors often can not be timely grasp of financial personnel allocation of the invested enterprise, even in the bank there is surplus section to the bill when found to be invested enterprises have made distribution, leading to the invested enterprise distribution and investment between enterprises accounted for a longer time difference. If the invested enterprise to make allocation and investors accounted for all occurred in the same year, accounting and tax are not much problem. On the contrary, if there exists in different years to happen in the case of enterprises, in order to ensure the identity of the declaration data accuracy and A, B corporate dividends year, B enterprise may be the tax authorities for the adjustment of the annual final settlement data to tax exemption procedures.
Case 2
Not according to the proportion of investment allocation: a company by the A, B, C investment company set up, accounted for 50%, 40% and 10% equity. In 2013 March a company to make allocation decision, distribution of 2012 annual profit of 1000000 yuan, of which A company 550000 yuan, 450000 yuan B company, C company to give up the allocation of rights and interests. A, B company to the competent tax authorities for tax exemption formalities, told exemptions were 500000 yuan and 400000 yuan, the ultra proportion part does not belong to the scope of duty-free.
In recent years, not proportional distribution in growing, reasons, may be the investors of the dividend needs not a cause, may also be shareholders of the invested enterprise by different contribution. Treatment in taxation, some shareholders to give up the right of other shareholders super proportional share of the dividends if can be exempt from tax problems, tax departments in processing is not consistent. A kind of viewpoint thinks the company law does not forbid not proportional, tax laws and regulations nor prohibition, according to conducive to taxpayer principle, the ultra proportion parts also belongs to the scope of duty-free. But to prove the legitimacy is not proportional, the tax department should require the invested enterprise with all assigned to confirm the signing of the resolutions of shareholders, even the request by the invested enterprise to modify the distribution terms in the articles of association of the company. Another view was that, although the company is not prohibited by law, but in accordance with market principles, shareholders will not be free of charge to give up rights, should be compensated in other ways, if the multi part is also included in the scope of duty-free, may encourage backroom deals, the taxable income into tax-free income. And give up the rights can be as a gift to other shareholders, shareholders of the ultra proportion allocated funds donated for the income, and is no longer the dividend, shall pay enterprise income tax exemption, so the case 2, A, B, respectively, 500000 yuan and 400000 yuan.
Case 3
Quota is more than a total investment of after tax corporate profits: A company 2012 annual pre tax profit of 4000000 yuan, increasing the amount of taxable income 1000000 yuan, the actual amount of taxable income 5000000 yuan, pay enterprise income tax 1250000 yuan, profit after tax 2750000 yuan. In 2013 March made the decision, the distribution of 2012 annual after tax income of 3750000 yuan. Investment square B company to the competent tax authorities for tax exemption formalities, told the assignment cannot exceed the annual after tax profit, the exceeding part does not belong to the scope of duty-free.
Company law and accounting policies to "profit" to measure the operating situation of the enterprise, the enterprise income tax law "income" to calculate the tax amount. Two similar but not the same. As in the example above, A company 2012 annual taxable income is 5000000 yuan, while the accounting profit is only 4000000 yuan. The taxpayer's argument is straightforward, since the tax by 5000000 yuan, 5000000 yuan allowance should also be based on the calculation, after tax is 3750000 yuan, the legislative principle conforms to avoid repeated taxation. The tax department point of view is very reasonable, the provisions of the company law after tax profits can only be assigned, and the distribution of after tax profits more than words, will be the formation of negative undistributed profit balance in accounting, equivalent to the loss distribution, so can not exceed the profit after tax, the scope of duty-free should not cover more than part of the. But I think that the company law and tax law is the legal category, the tax department to explain the company law "after tax profit" definition of the practice is not professional, not sensible, without permission. Tax departments should firmly seize the residents as a foothold to judge inter enterprise tax policy itself and behind the legislation principle. The author believes that the residents of inter enterprise investment income tax-free legislation aims to encourage investment, to avoid double taxation, allowance as the investment side should by the investment party should exist inevitable connection of taxable income, can not be completely separated, so the taxpayer opinion should get support.
