Huanze Tax Agent Firm runs the Taxpayer Perspective column, which aims to let people understand what tax risks and tax obligations enterprises will face under some special circumstances through the perspective of taxpayers themselves, and how we should deal with these circumstances. Huan Ze is also honored to invite Mr. Xiong Zhen to write a feature for this column. Mr. Xiong Zhen is a senior teacherTax agent, once engaged in tax administration in the tax department20For many years, he has served as Deputy director of the Tax Administration Department, director of the Service Administration Bureau and director of the Law Department of the prefecture-level Tax Bureau. At present, he is the tax director of domestic listed pharmaceutical companies.Has published tax planning, tax policy interpretation class articles150More than ten thousand words, in the "China Tax News" serialized "tax planning 36", is the "Straits Financial Herald" "famous planning" column staff writer.I hope all the articles in this column can enlighten you.
Today, let's take a look at the impact of partner transfer of partnership property share on the tax burden in the course of business operation.
The new Individual Income Tax Law stipulates: "Income from the transfer of property refers to income obtained by an individual from the transfer of securities, stocks, shares of property in a partnership, real estate, machinery and equipment, vehicles and vessels, and other property." This is the first time that the tax code has explicitly included an individual's share of a partnership's property as taxable as income from the transfer of property.
I. Relevant provisions of the Partnership Enterprise Law
The share of property refers to the proportion of the partnership property owned by the partners as agreed in the partnership agreement. According to the provisions of the Partnership Law:
(1) General partnership
1Except as otherwise provided in the partnership agreement, the assignment of all or part of a partner's share of property in the partnership to a person other than the partner shall be subject to the unanimous consent of the other partners. When the partners transfer all or part of their share of property in the partnership, they shall notify the other partners.
2Where a partner transfers his share of property in the partnership to a person other than the partner, the other partner shall have the preemptive right under the same conditions; Except as otherwise agreed in the partnership agreement.
3Where a person other than a partner is legally assigned the partner's share of property in the partnership, he shall, upon amendment of the partnership agreement, become a partner in the partnership and shall enjoy rights and perform obligations in accordance with this Law and the amended partnership agreement.
(2) Limited partnership
A limited partner may transfer his or her share of property in the limited partnership to a person other than a partner in accordance with the terms of the partnership agreement, provided that he or she notifies the other partners 30 days in advance.
Ii. Comparison between partnership property shares and company equity
(1) Property ownership
From the perspective of the company, the shareholders of the company own the equity of the company, while the company owns the ownership of the property of the company. The property of the company does not directly belong to the company. The shareholders can dispose of their own equity, but cannot directly dispose of the property of the company. From the perspective of partnership, partners own the property share of the partnership, while the partnership owns the ownership of the business property. The business property does not directly belong to the partners, who can dispose of their own property share, but cannot directly dispose of the property of the enterprise. From the perspective of property ownership, corporate equity and partnership property share have similar functional attributes.
(2) Tax treatment
From the perspective of the company, the company shall pay one enterprise income tax when transferring the company property (the taxpayer is the company), and another enterprise income tax or individual income tax when transferring the company equity (the taxpayer is the shareholder). The tax payers of the two income taxes are different, and the tax payment links are independent of each other. There is no cross influence.
From the perspective of partnership enterprises, partnership enterprises should pay one individual income tax on production and operation income when transferring business property (the taxpayer is a partner, the partner is a legal person for the time being), and partners should pay another individual income tax on property transfer income when transferring business property shares (the taxpayer is still a partner). Because the taxpayers of the two income taxes are the same subject, are the two tax payment links independent of each other without cross-influence? We will focus on this in the next article.
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