The tax payer will analyze the tax risk points that can be easily ignored in the payment of stamp duty through the following six cases.
I. Do domestic enterprises have to withhold and pay stamp duty on behalf of foreign enterprises?
Case: overseas company B and China's domestic company A signed a non-patent technology transfer contract in the territory, company B to 20 million yuan price will be the transfer of the non-patent rights to the company A, the territory of the company A according to the "transfer of property rights documents" tax items to pay the stamp duty, and at the same time, for company B to "withhold and pay". At the same time, Company A paid the stamp duty according to the "title transfer document" tax item, and at the same time, Company B paid the stamp duty "on behalf of the withholding agent" and charged the expense to the administrative expense.
Analysis: According to the Circular on the Collection of Stamp Duty on Technology Contracts ([89] Guo Shui Di Zi No. 034), the contract of the transfer of patent application right and transfer of non-patent technology shall be applicable to the tax item of "Technology Contracts", and the stamp duty shall not be paid in accordance with the tax item of "Documents for Transfer of Property Rights". The contract of transfer of patent application right and non-patent technology transfer is applicable to the tax item of "technology contract" and should not be subject to the stamp duty according to the tax item of "document of property right transfer".
And, at present, the documents related to stamp duty do not specify that the domestic enterprises have the obligation to withhold and pay the stamp duty for the overseas enterprises, and the overseas enterprises should apply for the temporary tax registration to pay the stamp duty when handling the overseas enterprises' declaration and payment of the stamp duty. If the domestic enterprise "withholds and pays" the stamp duty for the foreign enterprise, it may cause the foreign enterprise not to fulfill the obligation to declare and pay the stamp duty, and at the same time, the stamp duty withheld and paid by the domestic enterprise cannot be deducted as a deduction for enterprise income tax.
Two, how to handle the stamp duty authorized collection procedures?
Case: Since 2010, Industrial Enterprise A has been paying the stamp duty involved in purchase and sales contracts according to 75% of the total amount of sales revenue and purchases as the taxable base.In 2016, the Inspection Bureau, when carrying out a tax inspection, found that the enterprise was unable to provide the documents proving that the tax authorities had authorized the collection of stamp duty on it.
Analysis: The Circular of the State Administration of Taxation on Relevant Issues on Further Strengthening the Administration of Stamp Duty Collection (Guo Shui Han [2004] No. 150) stipulates that the local tax authorities approve the collection of stamp duty and shall issue a notice of approval of collection of stamp duty to the taxpayer, stating the tax basis for the approval of collection and the stipulated deadline for payment of the tax. Meanwhile, the Notice on the Issuance of Administrative Measures for the Approved Collection of Stamp Duty by Guangzhou Local Taxation Bureau (Sui Di Shui Han [2009] No. 374) stipulates that, where the approved collection of stamp duty is adopted, the competent tax authorities shall issue the Notice of Tax Matters (Approved Collection of Stamp Duty). Enterprises can not carry out the authorized collection of stamp duty by themselves, but need to be audited by the tax authorities or directly approved and other procedures, and can only carry out the authorized collection of stamp duty with the corresponding notice.
Three, wrongly paid overpaid stamp duty can be refunded?
Case: Enterprise A in a purchase and sale contract to carry out the stamp duty declaration, the contract amount of 19 million yuan wrongly entered as 19,000 million yuan, resulting in an overpayment of stamp duty of 51,300 yuan, to the tax authorities to apply for a refund of stamp duty.
Analysis: There is a view that, according to Article 24 of the Enforcement Rules of the Provisional Regulations on Stamp Duty, whoever overpays the stamp duty shall not apply for tax refund or credit. Therefore, the 51,300 yuan in the above case should not be refunded.
In fact, Article 5 of the Provisional Regulations on Stamp Duty stipulates that the taxpayers shall calculate the taxable amount by themselves according to the regulations, and purchase and affix the full amount of the stamp duty stamps at one time (hereinafter referred to as decal) payment method. In order to simplify the procedure of decalation, if the taxable amount is large or the frequency of decalation is frequent, the taxpayer may apply to the tax authorities to adopt the method of paying the tax by payment letter instead of decalation or by paying the tax on a periodical summary basis. Article 21 of the Enforcement Rules of the Provisional Regulations on Stamp Duty stipulates that if the taxable amount of a voucher is more than 500 yuan, the taxpayer shall apply to the tax authorities for filling in a demand note or a tax clearance certificate instead of applying the decal. Obviously, the provisional regulations for the implementation of the rules of the stamp duty, Article 24 refers to the use of decal payment of stamp duty, the case of payment of stamp duty, does not apply to the provisions of Article 24, so the case of 51,300 yuan in the above can be refunded.
Four, whether all contracts are stamp duty payable documents?
Case: Company A in Guangzhou signed a contract with C accounting firm for auditing as well as consulting obligations, with a contract amount of 1 million yuan. In the same month, it signed a contract with TV station B to broadcast advertisements, and the amount of the contract was 2 million yuan. company A declared and paid the stamp duty on all of the above 3 million yuan.
Analysis: Article 1 of the Provisional Regulations on Stamp Duty stipulates that the units and individuals in the territory of the People's Republic of China who set up and receive the documents listed in the Regulations are the taxpayers of the stamp duty, and shall pay the stamp duty in accordance with the provisions of the Regulations. Therefore, the taxable certificates which are not listed in the above documents should not be subject to stamp duty, i.e. the above auditing and consulting obligation contract should not be subject to stamp duty. As for the letter of attorney for broadcasting advertisements signed between Company A and TV Station B, the Guangdong Provincial Bureau of Land Taxation's Circular on the Collection of Stamp Duty on Advertising Contracts of Media Organizations (Guangdong Land Taxation [1998] No. 44) stipulates that the advertisement subscription letters of newspapers and magazines, and the letter of attorney for broadcasting advertisements of TV stations, etc. are vouchers of a contractual nature, and shall be subject to the calculation of stamp duty according to the provisions of the Stamp Duty Regulations. Therefore, the above-mentioned advertising commission should pay stamp duty.
V. What are the precautions to be taken for the payment of stamp duty on a periodical basis?
Case: A industrial enterprise has a large scale of production and signs a large number of contracts for the sale and purchase of commodities every month, which requires frequent decals. With reference to the requirements of other tax declarations, the finance department of the enterprise, without approval or filing, calculates the stamp duty payable for the month on a monthly summary basis, and then makes a declaration in the interface of "non-approved tax declarations" before the 15th of each month.
Analysis: According to Article 7 of the Provisional Regulations on Stamp Duty, taxable vouchers shall be decalized at the time of writing or receiving. Therefore, enterprises that do not pay stamp duty on a consolidated basis cannot refer to the monthly declaration of other taxes for their stamp duty payment period.
The Circular of the Ministry of Finance and the State Administration of Taxation on Changing the Administrative Measures for Aggregate Payment of Stamp Duty on a Periodical Basis (Cai Shui [2004] No. 170) stipulates that, for the same type of taxable vouchers that need to be appliquéd frequently, taxpayers can decide on their own whether or not to adopt the method of aggregate payment of stamp duty on a periodical basis in accordance with the actual situation. The period of aggregate payment is one month. Taxpayers adopting the method of aggregate payment by installments shall inform the competent tax authorities in advance. Once the payment method is selected, it cannot be changed within one year. In terms of specific implementation, all localities have formulated corresponding administrative measures, which have clearly stipulated the way of taxpayers "informing the competent tax authorities" and the registration procedures. If the taxpayer chooses to pay the stamp duty by the period of aggregation, should be in accordance with the local tax authorities to determine the relevant procedures in a timely manner to "inform" the tax authorities, can not be in the tax authorities do not make the relevant "registration" on their own in this way.
Sixth, the group company unified purchase of stamp duty stamps can be distributed to the subsidiaries to use?
Case: a group of companies headquartered in Guangzhou, there are a number of subsidiaries distributed in southern China, the group's financial staff in order to centralize the management of the convenience of the unified purchase of stamp duty stamps, issued to the use of subsidiaries, and will be included in the group's administrative expenses.
Analysis: The purchase of stamp duty stamps by enterprises is generally an immediate matter, which does not require the approval of the tax source management department. Therefore, it sometimes leads to the situation that the group enterprise purchases too many stamp duty stamps and privately distributes them to subsidiaries for use. Article 1 of the Provisional Regulations on Stamp Duty stipulates that the units and individuals who have written and received the vouchers listed in these Regulations within the territory of the People's Republic of China are the taxpayers of the stamp duty and shall pay the stamp duty in accordance with the provisions of these Regulations. In addition, Item 8 of Article 10 of the Enterprise Income Tax Law provides that "When calculating taxable income, the following expenditures shall not be deducted: (h) other expenditures not related to the acquisition of income." According to the above provisions, each subsidiary shall be the taxpayer of the stamp duty and shall pay the stamp duty in accordance with the regulations if it has written, issued or received taxable certificates. The subsidiaries are independent legal entities, and the stamp duty borne by the group company for the subsidiaries is other expenditure not related to the income obtained, which needs to be adjusted upward to the taxable income.
Are you now clear about these risks contained in the stamp duty?
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