After legal person shareholder divestes endowment add endowment, is this troubled which kind?

2022-07-06 0 By

Equity management is an important part of internal governance in many joint-stock enterprises, and equity transaction has been a key factor to improve corporate governance capability for a long time.Many senior managers of enterprises actively introduce strategic investors who identify with market positioning, expand their business territory, establish a continuous tracking mechanism for the financial status of legal shareholders, and comprehensively enhance their governance ability.In practice, a small number of financial personnel have consulted such a “strange” problem: shareholders will decide to increase capital after the withdrawal of corporate shareholders, is this wave of operation really without risk?A, what does the tax law say?In 2011, according to the state administration of taxation announced no.34 about some issues of enterprise income tax in the state administration of taxation announced “relevant provision:” five, the investment enterprises to withdraw or reduce the tax treatment of  investment enterprises from the invested enterprise to withdraw or reduce investment, its assets, as part of the initial capital contributions, should be recognized as investment back;The portion equivalent to the accumulated undistributed profits and accumulated surplus reserves of the invested enterprise calculated according to the reduction of the paid-in capital shall be recognized as dividend income;The rest is recognized as income from the transfer of investment assets. The operating losses incurred by the invested enterprise shall be carried forward by the invested enterprise to make up for the losses according to regulations.Investment enterprises shall not adjust and reduce their investment costs, nor shall they recognize them as investment losses.” What does the Company Law say?According to relevant provisions of the company law of the People’s Republic of China, the following three points are mentioned :(1) a resolution to increase or reduce the registered capital made at the shareholders’ meeting must be passed by shareholders representing more than two-thirds of the voting rights.(2) When a company needs to reduce its registered capital, it must prepare a balance sheet and a list of assets.(3) If the company increases or decreases its registered capital, it shall go through alteration registration with the company registration authority according to law.Three, “reduce capital” again “increase capital”, get compensation how to pay tax?When it comes to calculating taxes, here must be a “chestnut” to analyze in detail!Assume that the initial investment cost of Company A’s investment in Company X is 10 million yuan, accounting for 40% of the shares of Company M, company B’s investment of 15 million yuan accounts for 60% of the shares of Company X, and Company A intends to transfer all 40% of the shares of Company X to natural person C.Before the equity transfer, M Company’s undistributed profit is 30 million yuan and surplus reserve is 20 million yuan.In December 2021, Company A will transfer all its shares to natural person C at A price of 80 million yuan.If A company transfers equity to A natural person directly C, according to the no. 79 [2010] of the state administration of taxation on several implementation of enterprise income tax law of notice of tax rules: “when calculating the equity transfer income, enterprise may not deduct the invested enterprise undistributed profit according to the equity of shareholders such as retained earnings may be allocated amount.”Then the equity transfer income of Company A is 80-10 million yuan =70 million yuan, and the enterprise income tax payable is 70 million yuan ×25%= 17.5 million yuan.If the operation mode of “decrease first and increase later” is adopted, Company A and Company B reach A capital reduction agreement stipulating that Company A will withdraw 40% of its capital contribution from Company X and obtain 80 million compensation. At the same time, natural person C and Company X sign A capital increase agreement stipulating that C will contribute 8000 yuan and occupy 40% of X’s equity.A general meeting of shareholders shall be held and the agreement on capital reduction and capital increase shall be approved by shareholders representing more than two-thirds of the voting rights.Assuming that the above legal procedures are complete, the following three points should be paid attention to if company A first withdraws 40% of its investment share from company X and obtains 80 million yuan of compensation :(1) the compensation is the recovery of investment capital and does not need to pay corporate income tax;(2) The proportion of surplus reserve and undistributed profit of the invested company (30 million +20 million) ×60%=30 million yuan is “dividend income” and can be exempted from corporate income tax according to current laws and regulations;(3) According to the calculation, the remaining 80 million-10 million-30 million =40 million yuan belongs to the equity transfer income of COMPANY A, and the enterprise income tax shall be 40 million yuan *25%=10 million yuan.Through the calculation and analysis of specific data, the disposal method of “capital reduction” and “capital increase” can obviously achieve tax saving items than “direct transfer”, and in addition to the case of capital increase need to pay stamp duty, enterprise income tax can be adjusted to appropriately reduce the tax burden level.Source: Focus on Finance and Taxation (Linson)