Detailed Rules for the Implementation of the Provisional Regulations of the People's Republic of China on Land Value-added Tax (Finance Law No. 6, 1995) Article 9 stipulates: Where a taxpayer develops or transfers real estate in stages and batches after receiving the land use right in parcels, the amount deducted may be calculated and apportioned according to the proportion of the area of the land use right transferred to the total area, or according to the building area, or in other ways confirmed by the tax authorities.
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According to the provisions of Document No. 91 (2009), the land value-added tax liquidation of real estate projects is divided into "liquidable" and "liquidable". For the "liquidated" project, the taxpayer's land value-added tax liability of the project ends after liquidation, and there is generally no need for secondary liquidation. However, for liquidable items, there is usually a re-sale after liquidation (also known as the final sale), so there is a need for secondary liquidation.
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According to the provisions of Document No. 91 (2009), the land value-added tax liquidation of real estate projects is divided into "liquidable" and "liquidable". For the "liquidated" project, the taxpayer's land value-added tax liability of the project ends after liquidation, and there is generally no need for secondary liquidation. However, for liquidable items, there is usually a re-sale after liquidation (also known as the final sale), so there is a need for secondary liquidation.
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Notice of the State Administration of Taxation of the Ministry of Finance on Continuing to Implement the Land Value-added Tax Policy Related to Enterprise Restructuring (Finance and Taxation [2018] No. 57, hereinafter referred to as "Announcement No. 57") states:
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The author believes that the enterprise restructuring should be established on the basis of the continuation of the legal person, if the legal person does not continue (in the process of restructuring a new legal person) can not be called restructuring. Therefore, the whole transformation of a non-incorporated enterprise into a limited liability company or a company limited by shares, and the whole transformation of a limited liability company (limited by shares) into a company limited by shares (limited liability company) should not involve the transfer of real estate ownership. Therefore, the restructuring of real estate enterprises also does not belong to the scope of land value-added tax. But from No. 57 announcement seems to infer that the reform involving real estate enterprises should be levied land value-added tax, the author thinks that this is contrary to the provisions of the land value-added tax regulations.
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At present, the land value-added tax settlement adopts the "three division method", that is, divided into ordinary housing, non-ordinary housing and non-housing three types of settlement. There are many disputes in practice on how to determine the liquidation type of the underground sellable development products (mainly garage, parking space, storage room and other ancillary facilities, the same below).
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Notice No. 1 of Suzhou Tax Regulation [2012] stipulates: "If the same development project contains multiple types of real estate, land value-added tax shall be paid according to the following categories: income, deduction of project amount, value-added amount and value-added rate shall be calculated respectively. (2) other types of houses (including ordinary houses and non-ordinary houses); And (3) non-residential properties."
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The legislation of land value-added tax is under way. Personally, I think it is completely possible to cancel the type liquidation, for the following reasons: First, the type liquidation artificially separates the land value appreciation of the same parcel and the same project, which goes against the legislative spirit of the land value-added tax liquidation by project; Second, the classification of liquidation actually causes the same item may be applied to multiple tax rates, which is likely to increase the taxpayer's unreasonable burden; Thirdly, the classification liquidation actually caused the value-added of different types of real estate in the same project could not be balanced, which probably increased the unreasonable burden on taxpayers.
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The State Taxation Agency (2006) No. 187 document stipulates: "If the real estate that has not been transferred at the time of land value-added tax liquidation is sold or transferred with compensation after liquidation, the taxpayer shall declare the land value-added tax according to the regulations. The amount deducted shall be calculated by multiplying the cost of the unit building area at the time of liquidation by the area sold or transferred. Cost per unit gross floor area = total amount deducted at liquidation ÷ total gross floor area of liquidation. "
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Document No. 187 of the State Taxation Agency (2006) stipulates: "The land value-added tax shall be liquidated in the real estate development projects approved by the relevant departments of the state, and in the phased development projects, the phased project shall be liquidated."
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