How to understand and implement People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Announcement No.2011No.34?

Interpretation of People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Announcement No.34 20 1 1

Recently, State Taxation Administration of The People's Republic of China issued the Announcement on Several Issues Concerning Enterprise Income Tax (State Taxation Administration of The People's Republic of China Announcement No.2011,hereinafter referred to as Announcement No.34), which clarified the determination of interest rates for similar loans of financial enterprises in the same period. Combined with practical work experience, the contents of the document are now interpreted one by one.

Original: According to the relevant provisions of the Enterprise Income Tax Law of People's Republic of China (PRC) (hereinafter referred to as the Tax Law) and the Implementation Regulations of the Enterprise Income Tax Law of People's Republic of China (PRC) (hereinafter referred to as the Implementation Regulations), some issues concerning enterprise income tax are hereby announced as follows:

Interpretation: Just after the final settlement of enterprise income tax on 20 10, State Taxation Administration of The People's Republic of China issued Announcement No.34, which further clarified seven issues of enterprise income tax treatment. Announcement No.34 is a comprehensive enterprise income tax document since Guoshuihan [2008] No.875, Guoshuihan [2008] No.828, Guoshuihan [2009] No.98, Guoshuihan [2009] No.202 and Guoshuihan [2065438+00] No.79, which will be repeated many times in the future.

1. How to determine the interest rate of similar loans of financial enterprises in the same period?

According to the provisions of Article 38 of the Implementation Regulations, pre-tax deduction is allowed for the interest expenses borrowed by non-financial enterprises from non-financial enterprises that do not exceed the amount calculated according to the interest rate of similar loans of financial enterprises in the same period. In view of China's current interest rate requirements for financial enterprises, enterprises should provide "a description of the interest rate of similar loans of financial enterprises in the same period" when paying interest for the first time and deducting it before tax according to the contract requirements, so as to prove the rationality of their interest expenses. ?

"Description of similar loan interest rates of financial enterprises in the same period" shall include the similar loan interest rates provided by any financial enterprise in this province at the time of signing the loan contract. Financial enterprises should be enterprises engaged in loan business with the approval of relevant government departments, including banks, finance companies, trust companies and other financial institutions. "Interest rate of similar loans in the same period" refers to the loan interest rate provided by financial enterprises under the condition that the loan term, loan amount, loan guarantee and corporate reputation are basically the same. It can be the average interest rate of the same kind announced by financial enterprises in the same period, or the actual loan interest rate provided by financial enterprises to some enterprises.

Interpretation: Before Announcement No.34 was issued, there were different regulations on interest rates of similar loans in different places, which brought inconvenience to taxpayers. Announcement No.34 uniformly implements policies and scientifically and effectively determines the loan interest rate for the same period. This is also one of the biggest highlights of Announcement No.34. ..

Taxpayers should understand the above policies from the following three aspects.

1. Interest rates of similar loans in the same period include benchmark interest rate plus floating interest rate.

As early as 2003, State Taxation Administration of The People's Republic of China approved the Sichuan Provincial Local Taxation Bureau with Guo [2003]114, and made it clear that the interest rates of similar loans in the same period included the benchmark interest rate plus the floating interest rate. However, the document Yinfa [2004]25 1 issued by the People's Bank of China in 2004 stipulates that the floating interest rate of commercial banks will no longer be subject to floating restrictions from June 29, 2004, so the floating interest rate becomes uncertain.

2. After the promulgation of the "Regulations on the Implementation of the Enterprise Income Tax Law", there has been no uniform implementation standard for the "interest rate of similar loans in the same period", and the implementation situation varies from place to place. Typical examples are: Shanghai, Jiangsu, Hebei and other places deduct the interest actually paid, unless it exceeds the judicial standard; Local taxes in Tianjin and Hebei are required to be deducted according to the benchmark interest rate. These two standards can be described as two extremes. Henan national tax and other places have compromised and demanded that the loan interest rate of the basic bank be implemented. The national tax of Zhejiang province thinks that the interest rate for the same period here is implemented according to the standard of 12%, and I don't know where it came from. More places, no documentation. In view of this situation, there is an urgent need for a unified policy in State Taxation Administration of The People's Republic of China.

Announcement 3.34 basically relaxed the loan interest to all "paid interest".

(1) "Description of interest rates of similar loans of financial enterprises in the same period" shall be provided and submitted to the tax authorities at the latest at the end of the year. This is because, according to the document No.635 [2008] of Guoshuihan, the current withholding tax is calculated according to the total profit minus the loss of the previous year, and then minus the tax-free income (real estate enterprises plus estimated profits). So even if the interest exceeds the standard, it will not be adjusted quarterly. In view of this, although the document requires enterprises to provide "explanation of similar loan interest rates of financial enterprises in the same period" when "the contract requires payment of interest and pre-tax deduction", the author believes that it can be provided at the latest at the time of settlement. Please consult the local tax authorities for details.

(2) interest rate reference standard

The interest rate reference standard includes financial institutions such as trust companies and finance companies, and it is well known that the interest rate of trust companies is relatively high, so it is not difficult for enterprises to find such a reference standard in the province. This provision also means that as long as the interest paid by the enterprise is not outrageous, it can basically be deducted according to the "actually paid interest". Of course, the provisions of Announcement No.34 also prevent the possibility of "usury" being deducted before enterprise income tax, which is more scientific and effective.

Second, about the deduction of clothing expenses for enterprise employees?

According to the nature and characteristics of the enterprise's work, the clothing expenses produced by the enterprise and required by the employees' work can be deducted before tax as the reasonable expenses of the enterprise according to the provisions of Article 27 of the Implementation Regulations.

Interpretation: Whether the expenses incurred by employees wearing work clothes are allowed to be deducted before tax has been controversial. In particular, it is controversial whether the suits of some bank staff belong to "employee welfare expenses" or "labor insurance supplies". Announcement No.34 avoids the dispute between "welfare expenses" and "labor insurance expenses", but according to Article 27 of the Regulations for the Implementation of the Enterprise Income Tax Law, "tooling" is defined as "reasonable expenses" and allowed to be deducted, thus eliminating the dispute.

Original: 3. On the deduction of training fees for aircrew in aviation enterprises?

According to the provisions of Article 27 of the Implementation Regulations, the actual pilot training fees, flight training fees, crew training fees and air guard training fees incurred by aviation enterprises can be deducted before tax as transportation expenses of aviation enterprises.

Interpretation: Flight-related training expenses cannot be equal to the general "employee education funds", and it is in line with the characteristics of aviation enterprises to give it a 2.5% proportion limit. 20 1 1, State Taxation Administration of The People's Republic of China requires tax inspection of aviation enterprises, which is timely.

Four, about the tax treatment of the renovation and expansion of fixed assets such as houses and buildings.

If an enterprise rebuilds or expands fixed assets such as houses and buildings before fully withdrawing depreciation, or dismantles or replaces them, the original value of the assets shall be deducted from the net value after withdrawing depreciation, which shall be included in the taxable cost of replacing the fixed assets, and depreciation shall be accrued together with the depreciation period stipulated in the tax law from the next month when the fixed assets are put into use; If it belongs to upgrading function and increasing area, the expenses for the renovation and expansion of fixed assets will be incorporated into the tax basis of fixed assets, and the depreciation will be re-accrued according to the depreciation period of fixed assets stipulated in the tax law from the next month after the renovation and expansion is completed and put into use. If the service life of the rebuilt and expanded fixed assets is lower than the minimum service life stipulated in the tax law, depreciation can be accrued according to the service life. ?

Interpretation: This clause is understood from three aspects.

1, push down to reset tax processing.

Before Announcement No.34 was issued, there were two understandings about the push-down and replacement of fixed assets. For example, the house price is 6.5438+million, the depreciation is 6 million, and the residual net value is 4 million. The first understanding: take the surplus value of 4 million yuan as the cost of building new fixed assets (or developing products); The second understanding is that the net value of 4 million yuan will be regarded as "non-operating expenses" at one time. Announcement No.34 supports the first view.

The question is, can land value-added tax be handled in this way? For example, a company will replace the original fixed assets, build and develop products and sell them. Whether the net value of 4 million yuan is used as non-operating expenses or as a part of future costs forever has a great influence on land value-added tax.

2. Improve the function and increase the area.

If an enterprise upgrades its use function and increases its construction area, the document requires that the depreciation period of fixed assets be recalculated in principle. If the service life is lower than the minimum service life stipulated in the tax law, depreciation can be accrued according to the service life. Such a rule is actually not clear. For example, the original book value of a house is 6,543,800 yuan, and the depreciation period is 20 years. Depreciation has been accrued for 654.38+02 years and 6 million yuan. The company spent 3 million to buy a house, which increased part of the area. At this time, it is obviously not good for enterprises to depreciate according to the requirements of 20 years. However, if the enterprise adopts "the acceptable service life is not more than 20 years", but the actual service life of real estate is originally more than 20 years, the tax authorities may not accept it. Therefore, this clause may not be beneficial to enterprises.

3. About decoration.

Announcement No.34, "Enhance function and increase area", the author thinks that decoration expenditure is not included, and whether decoration expenditure is capitalized or expensed varies from province to province. The author thinks that it may be a compromise acceptable to both enterprises and tax to amortize the decoration expenses according to other long-term deferred expenses and three years.

5. Tax treatment for withdrawing or reducing investment by investment enterprises?

When an investment enterprise withdraws or reduces its investment in the invested enterprise, the part of its assets equivalent to the initial investment is recognized as investment recovery; The part equivalent to the accumulated undistributed profits and accumulated surplus reserves of the invested enterprise, which reduces the proportion of paid-in capital, is recognized as dividend income; The rest is recognized as investment asset transfer income. ?

The operating loss of the invested enterprise shall be carried forward by the invested enterprise to make up for it; An investment enterprise shall not adjust or reduce the investment cost, nor shall it be recognized as an investment loss. ?

Interpretation: This clause requires taxpayers to grasp the following four aspects.

1. Three modes to reduce long-term equity investment of enterprises.

First, transfer equity. According to the provisions of Document No.79 of Guoshuihan [2010] and Document No.698 of Guoshuihan [2009], the transfer price shall not be deducted from the accumulated undistributed profits and accumulated surplus reserve share of the invested enterprise.

Second, the invested enterprise is liquidated and the equity of the enterprise dies. According to article 1 1 of the Regulations and document Caishui [2009] No.60, the invested enterprise is allowed to deduct the corresponding undistributed profits and surplus reserves from its remaining assets during liquidation.

Third, the distribution of capital reduction. Before Announcement No.34, the tax law did not clearly stipulate whether undistributed profits and surplus reserves can be deducted, but Announcement No.34 explicitly mentioned enterprise liquidation.

For example, in 2008, Company A registered Company M with RMB 6,543.8+million, accounting for 30% of the shares of Company M. In 2065.438+00,654.38+0, the shareholders' meeting decided to allow Company A to withdraw its shares, and Company A received RMB 25 million in cash. By the end of 2009, the undistributed profit and surplus reserve of M Company was RMB 30 million. According to the proportion of registered capital, a company should enjoy 9 million yuan.

Therefore, a company's equity withdrawal income =2500- 1000-900=600 (ten thousand yuan).

2. The undistributed profits and surplus reserves can only be deducted according to the proportion of registered capital, but not according to the dividend proportion agreed in the articles of association.

Although the new "Company Law" stipulates that the articles of association can stipulate that investors do not pay dividends according to the proportion of their capital contribution, in order to make the policy more rigid, Announcement No.34 makes it clear that undistributed profits and surplus reserves must be deducted according to the proportion of registered capital.

3. Deduct accumulated undistributed profits and surplus reserve shares, regardless of whether the retained earnings have been paid enterprise income tax.

Although the starting point of the policy is that the retained earnings of enterprises are after-tax earnings that have already paid enterprise income tax, in order to avoid double taxation, enterprises are allowed to deduct them from the returned assets. But in fact, due to the existence of three major reasons, the retained earnings of enterprises may not completely correspond to the taxes paid. The first is to increase taxes. This will lead to an increase in tax revenue, but the retained earnings will decrease, and enterprises will be affected. The second is tax cuts. This will reduce taxes and retained earnings. The third is to approve the collection. The accounting profit of the approved enterprise is completely out of proportion to the tax paid. For example, the retained income of the enterprise is 6,543,800 yuan. In fact, the approved enterprises only collect taxes according to the income of 3 million yuan. At this time, the retained earnings are still deducted by 6,543,800 yuan. Obviously, enterprises have taken a big advantage!

Announcement No.34 did not consider the approval of the collection, and of course Caishui [2009] No.60 did not consider this situation. At present, according to the provisions of the tax law, only retained earnings can be deducted from the liquidated or partially divested assets in accounting. At present, only Shanghai requires a profit distribution table, taking this difference into account.

4. If the divested assets are non-monetary assets, the income must be recognized at fair value.

For example, when Company A invests in Company M, the investment cost is 6,543,800,000 yuan, accounting for 30% of the shares of Company M. By the time of divestment, Company M has accumulated retained income of 30,000,000 yuan, of which Company A enjoys 9,000,000 yuan according to its share in the registered capital.

Company A withdrew its capital and got a property with a book value of 20 million yuan and a market valuation of 25 million yuan.

At this point, this part of the property must be treated as sales first, and the profit is confirmed to be 5 million yuan, and then processed according to Announcement No.34, and the calculation is as follows:

The first step is to confirm the sales income of 5 million yuan and increase the profit of 5 million yuan at the same time. A company enjoys 35 million ×30%= 1050 (ten thousand yuan).

The second step is to confirm the divestiture income. 2500-1000-1050 = 450 (ten thousand yuan)

The wrong way is: 2000-1000-900 =100 (ten thousand yuan).

How long does it take for the enterprise to provide valid certificates?

If the relevant costs and expenses actually incurred by the enterprise in the current year cannot be obtained in time for various reasons, the enterprise may temporarily account for the book amount when paying quarterly income tax in advance; However, at the time of final settlement, valid vouchers of costs and expenses should be supplemented.

Interpretation: 1 This document provides a policy basis for the document No.635 of Guoshuihan [2008] and the current tax declaration.

Guoshuihan [2008] No.635 stipulates that when tax is paid in advance in a quarter, it is basically taxed according to the accounting profit, and there is no valid certificate that meets the tax law in time, which can also be used as an accounting deduction certificate. Therefore, no tax adjustment will be made in a quarterly report. Although it has been clearly stipulated in document No.635 of Guoshuihan [2008], it is a declaration form after all, and Announcement No.34 is expounded again from the policy level. Similarly, as early as 2008, it was clearly stated that "deemed sales income can be used as the deduction base of the three expenses", and the first article of document No.202 of Guoshuihan [2009] clearly stipulated at the policy level.

2. The estimated expenses shall be supplemented with valid vouchers during the settlement period.

There is no dispute that the annual settlement period expenses must obtain valid vouchers, and whether it is necessary to obtain the estimated expenses before the settlement period is indeed controversial in various provinces. Announcement No.34 clarifies that both cost items and expense items must be supplemented with valid vouchers at the final settlement, which unifies the policy.

However, there will still be difficulties in actual implementation. For example, 20 10, the raw materials purchased by the company with a value of 30 million yuan are priced by the weighted average method, and the raw materials of 100000 yuan have not been invoiced by the final settlement. The consumption of raw materials in that year was 20 million yuan, of which 3 million yuan was calculated by equivalent output method.

Then, if the income was increased in that year, how much should it be increased? 1100,000 yuan, how much of the cost of no tickets has entered the "cost of sales"?

Method 1: direct tax increase100000 yuan, simplified.

Method 2: Because the amount of materials with invoices is 20 million yuan, which is more than 6,543,804 yuan included in the cost of sales, it is considered that all materials with invoices are included in the cost of sales and need not be increased.

Method 3: According to the weighted average method, increase140,000× 30%.

What kind of way, announcement no.34 did not explain in depth. Personally, I think it is appropriate to simplify the processing according to the method of 1 in order to facilitate the collection and management, otherwise it will be very troublesome.

3. The follow-up treatment of invoices obtained in different periods has not been completely clear.

For example, 20 10 incurred a cost of 1 10,000 yuan. Before May 3, 20 1 1, the invoice was still not obtained, and the enterprise made tax adjustment on this expense on May 3 11.

In August of 20 1 1 year, the enterprise obtained 1 10,000 invoices, so what should be done with this 1 10,000 yuan?

Scheme 1: Retroactively adjusted to 20 10, and applied for tax refund of 250,000 yuan. The advantage of this scheme is that it completely conforms to the basic theory of "accrual basis", but the disadvantage is that the procedures are complicated and the tax refund is not easy.

Scheme 2: direct deduction on 20 1 1 year, tax reduction and exemption before10-may 20 12 1 day. The advantage is simple and easy, but the disadvantage is that it does not conform to the "accrual basis".

I prefer option 2, which is not completely in line with accrual basis, but it is convenient for taxpayers to operate.

Of course, if enterprises have tax avoidance intentions, they still need to make retrospective adjustments, such as tax deduction vouchers that are deliberately not removed during the tax reduction or exemption period.

Original: seven. This announcement shall come into force on July 20 1 1. Before the implementation of this announcement, the relevant matters of the enterprise have been dealt with according to the provisions of this announcement, and no adjustments will be made; If it has been dealt with, but it is inconsistent with the provisions of this announcement, and the taxable income of the enterprise needs to be reduced according to the provisions of this announcement, the taxable income of the enterprise shall be reduced accordingly 20 1 1 year after the implementation of this announcement.

Interpretation: This clause is very important and interesting. Article 84 of the Legislative Law stipulates that laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules shall not be retroactive, except for special provisions made to better protect the rights and interests of citizens, legal persons and other organizations.

Announcement No.34 well embodies the spirit of Article 84 of the Legislative Law, that is, documents beneficial to taxpayers can be adjusted retroactively, while clauses unfavorable to taxpayers cannot be retroactively.

Announcement No.34 stipulates that the retrospective adjustment of tax reduction takes into account both the tax interests of enterprises and the convenience of operation, which is very reasonable. For example, in 20 10, Company M paid interest of RMB 100000, which was deducted before tax according to the benchmark interest rate, resulting in an overpayment of RMB 4 million. According to Announcement No.34, the interest of100,000 yuan can be deducted in full, but the tax refund is settled at 20 1 1 without retrospective adjustment. Considering both the tax interests of enterprises and the convenience of operation, it is very reasonable!

However, Announcement No.34 did not mention the provisions of tax increase for less taxes in previous years, indicating that even in this case, there is no need to increase taxes according to this policy.

Source: China Tax.