What are the tax problems of leaseback business?

Notice of People's Republic of China (PRC) Ministry of Finance State Taxation Administration of The People's Republic of China on Deed Tax Policy for Financing Enterprises by Sale and Leaseback (Cai Shui [2012] No.82), at first glance, it is thought that the VAT policy for solving the sale and leaseback business has been introduced, but a closer look shows that the deed tax problem is solved, no matter what kind of tax problems are solved, as long as the problems are solved, let's solve them one by one.

Document No.82 was issued on February 6, 65438, and was published in the official website of the Ministry of Finance today, but there was no specific implementation date, so it should be implemented from the date of publication. Document No.82 stipulates that "if a financial leasing company carries out the business of sale and leaseback and assumes the ownership of the lessee's house and land, it shall pay taxes according to the regulations. If the leaseback contract expires and the lessee repurchases the original house and land ownership, the deed tax shall be exempted. "

Before talking about the specific documents, let's know about the deed tax. After understanding the principle of deed tax collection, it may be better understood when talking about specific documents.

Deed tax is a property tax levied on the party who owns the land use right and the house ownership. The external manifestations of the main taxation objects of deed tax are land use right and house ownership certificate, that is to say, as long as the relevant property certificate is handled, deed tax will be levied in principle, which is the core standard of deed tax collection. A good example is the Notice on Deed Tax on House Purchase (Cai Shui [2011] No.32), which stipulates that "units and individuals who have paid deed tax shall return the house before the registration of house ownership change; The deed tax will not be refunded if the house ownership is changed and the house is returned. If you don't do the title certificate, the deed tax will be refunded. If you have a property right certificate, it constitutes the basic element of taxation, so you can't refund the tax. There are a lot of small property houses now, because you can't do the property right certificate, of course, you don't have to pay the deed tax. " "deed" is divided into "red deed" and "white deed" in history. "red deed" refers to the certificate of property rights recognized by the government and the law, and the parties affix the government seal after paying taxes; "White deed" refers to a civil contract concluded by the parties themselves without paying taxes and stamping the government seal. Therefore, the deed tax is essentially a tax levied on the property right certificate recognized by the government, not a tax levied on the contract.

Circular 82 mainly solves and clarifies the deed tax problem in the process of "selling" and repurchase of real estate in leaseback business.

First of all, it is worth making clear that the financial leasing company that can be exempted from deed tax in Document No.82 must be a financial leasing company. According to the provisions of the Measures for the Administration of Financial Leasing Companies, "financial leasing companies refer to non-bank financial institutions that are mainly engaged in financial leasing business with the approval of China Banking Regulatory Commission. The name of a financial leasing company shall be marked with the words "financial leasing". Without the approval of China Banking Regulatory Commission, no unit or individual may engage in financial leasing business or use the word "financial leasing" in its name, unless otherwise stipulated by laws and regulations. In other words, domestic pilot financial leasing companies and foreign-funded financial leasing companies approved by the Ministry of Commerce of People's Republic of China (PRC) and State Taxation Administration of The People's Republic of China are not allowed to apply this policy. In other words, financial leasing companies as lessors must have the word "financial leasing" in their names to apply this policy.

In the leaseback business, the lessee sells the subject matter to the lessee. According to Article 34 of the Measures for the Administration of Financial Leasing Companies, "A financial leasing company engaged in after-sale leaseback business shall truly obtain the ownership of the corresponding subject matter. If the subject matter belongs to the property category that must be registered with the registration department in accordance with national laws and regulations, the financial leasing company shall handle the relevant registration. " In order to obtain the ownership of the subject matter, and the real estate is generally confirmed by registration, therefore, the financial leasing company needs to go through the transfer formalities in the real estate management department and obtain the real estate license. Since the real estate license has been obtained, it constitutes the basic condition of deed tax. According to document No.82, if the lessor assumes the ownership of the lessee's house and land, it shall pay taxes according to the regulations.

At the end of the lease period, if the lessee wants to buy back the subject matter, he also needs to go through the transfer procedures and apply for a new property certificate, which constitutes the basic taxation conditions of deed tax and should have been taxed. However, in order to promote the development of leaseback business and reduce the financing cost of the lessee, the state has given tax incentives, that is, Document No.82 stipulates that if the lessee repurchases the original house and land ownership at the expiration of the contract, the deed tax shall be exempted.

Before the publication of Document No.82, before there is no specific tax exemption policy, the tax authorities may have to levy deed tax when handling the title certificate of the lessee's repurchase of the subject matter. Before there is no special tax exemption policy, it is no problem for the local tax authorities to levy taxes according to the basic principle of expropriation, just like the deed tax levied by Nanjing local tax on the property name-adding behavior reported by the media before the publication of Caishui [20 1 1]82. However, there are also some problems in the provisions of Circular 82. We take the leaseback business of two listed companies as an example.

Anhui water conservancy leaseback case

201110 On October 9, Anhui Water Conservancy Development Co., Ltd. (stock code "600502", stock abbreviation "Anhui Water Conservancy") announced that Anhui Water Conservancy, Anhui Bailianya Reservoir Development Co., Ltd., a holding subsidiary of Anhui Water Conservancy Co., Ltd., and Anhui Jinzhai Liubo. Financing from Huarong Financial Leasing Co., Ltd.170,000 yuan, 60 million yuan, 35 million yuan, total financing1120,000 yuan. From the date of completion of the lease contract, Anhui Water Conservancy and Holding Company will return the ownership of the leased equipment to the company after paying the nominal price.

Lutianhua leaseback case

20 12 On July 26th, Sichuan Lutianhua Co., Ltd. (stock code "0009 12", stock abbreviation "Lutianhua") announced that Sichuan Tianhua Co., Ltd. (hereinafter referred to as "the Company"), a holding subsidiary of Sichuan Lutianhua Co., Ltd., intends to use machinery and supporting equipment, and during the lease period, it will be leased. After the lease expires, the ownership of all leased property will be transferred to Tianhua Company at a nominal price of one yuan.

Taking Anhui Water Conservancy as an example, the lessor is Huarong Financial Leasing Company. Therefore, during the whole transaction, Huarong Financial Leasing paid the deed tax when Huarong Financial Leasing Company handled the title certificate, and Anhui Water Conservancy was temporarily exempted from collecting the deed tax according to the No.82 document. In the case of Lutianhua, the lessor is Huayuan Leasing, which is the third batch of financial leasing pilot enterprises approved by the Ministry of Commerce and the State Administration of Taxation, and is not a financial leasing company approved by the China Banking Regulatory Commission. Therefore, in the whole transaction, Huayuan Lease pays the deed tax when handling the property right certificate, and it should pay the deed tax when handling the property right certificate when repurchasing Lutianhua, and it cannot enjoy the tax-free treatment stipulated in Document No.82. Our list analysis is as follows:

Through comparative analysis, it can be seen that the lessee can enjoy tax-free treatment when trading with financial leasing companies, but pay taxes according to regulations when trading with other financial leasing companies. The essence of the business is the same, but it is unfair because the lessor has different identities and the lessee has different tax treatment. It seems that the tax encourages the lessee to go to the financial leasing company for financing, which in turn inhibits the lessee from going to other financial leasing companies for financing. Both financial leasing companies and non-financial leasing companies are market players, but the tax treatment is different, which is worth thinking about and recalling.

In addition, from the nature of the transaction, the "sale" in the sale-leaseback business is not a real sale, so the lessee's "repurchase" should not be a real purchase, but a financing behavior. Although the property certificate has been handled, from the perspective of substantive taxation, the property certificate handled by this transaction, whether for the lessor or the lessee, should be temporarily exempted from deed tax. Collecting deed tax in this transaction link will definitely increase the transaction cost, which is not conducive to the development of leaseback business and will also increase the financing cost of enterprises. Before the publication of Circular 82, in order to encourage the development of financial leasing business, some local documents were issued, which are also worth learning from. For example, "Opinions on Promoting the Development of Leasing Industry in Our City" (Document No.39 of Tianjin Municipal People's Government [2065438+00]) stipulates that ".

Finally, I hope that the competent tax authorities can unify the tax treatment of customers of financial leasing companies of different factions, and further improve the deed tax policy of leaseback business based on the principle of fair tax burden and substantial taxation.