A company is a real estate development enterprise, the implementation of corporate income tax audit.2019Nian A company develops commercial housing200Set, all sold to employees of its wholly-owned subsidiary Company B (assuming they are ordinary employees, non-shareholders or executives, and non-relatives of shareholders and executives). Commercial housing area per set100Square meters, market price (fair value) per square meter2Ten thousand yuan, sold to the wholly-owned subsidiary staff selling price is per square meter1Ten thousand yuan, housing development cost per square meter8000Yuan (including land and other items that should be included in the cost).

(3) Analysis of policy application

1Verify the application of the collection policy

The calculation of enterprise income tax is affected by many factors. In this case, even if there is sufficient evidence to prove that the declared price of Company A is obviously low and there is no valid reason (the discussion of the valid reason is more complicated, we will have the opportunity to discuss it separately), it is not appropriate to simply and brutally directly assess the enterprise income tax. Therefore, it is inappropriate to directly apply the approved tax collection policy of the Tax Collection and Administration Law.

State tax issue2008:30The number of the document is to solve the problem of enterprise income tax collection, that is, the audit of the collection and the verification of the collection of the problem. In this case, even if the house transfer price of Company A is obviously low, the enterprise income tax cannot be collected by means of approved collection, so the state tax is issued2008:30The number file does not solve the problem well either.

2, the application of related party transaction adjustment policy

As can be seen from the provisions of the Law on the Administration of Tax Collection, the Law on the Administration of Tax Collection can only solve the problem of related transactions between "affiliated enterprises", while the related transactions between enterprises and individuals cannot be directly applied to the Law on the Administration of Tax Collection, so the related transactions of the Law on the Administration of Tax Collection cannot solve the problem of this case.

The Enterprise Income Tax Law and its implementing regulations include the connected transactions between enterprises and individuals into the category of tax adjustment. However, there are disputes in practice over whether there is a connected relationship between the employees of Company A and its wholly-owned subsidiary Company B. Some people believe that this case is not a transaction between Company A and Company B, and there is no shareholding relationship or kinship relationship between Company B and Company A. Check with the State Administration of Taxation2016Annual regulation42It is not possible to identify the existence of a correlation between the two parties in the transaction.
The author believes that to judge whether a transaction belongs to connected transaction, we should analyze it around the principle of independent transaction. Assuming there is no relationship between Company A and Company B, is Company A willing to pay per square meter1The price of ten thousand yuan will sell the development product to the staff of B company? The answer, of course, is no. Therefore, it can be judged that the transaction between Company A and Company B's employees is not conducted in accordance with the fair transaction price and business practices, and is based on relational relationship.

For this case, the principle of substance over form should be adopted to identify connected transactions: If Company B sells the developed products developed by itself to its employees at a low price, it shall be deemed that Company B has paid compensation to its employees. If Company A sells the developed product to the staff of Company B at a low price, it shall be deemed that Company A bears the staff salary for Company B, or that Company B buys the housing from Company A at a low price and then sells it to the staff at the original price. Therefore, the transaction in this case is essentially related transaction between Company A and Company B, which should be adjusted according to law. Company A shall increase its income:200×100×(2－1)＝20000(ten thousand yuan), and accordingly, Company B shall increase the expenditure (employee salary).20000Ten thousand yuan.

Announcement of the State Administration of Taxation2017Annual regulation6"Transactions between domestic related parties with the same actual tax burden, as long as the transaction does not directly or indirectly lead to a reduction in the overall national tax revenue, in principle no special tax adjustment shall be made." If the actual tax burden of Company A and Company B is the same, no related transaction adjustment can be made. Related policy interpretation see: enterprise income tax risk of free appropriation of funds of affiliated enterprises

Some people raised the question: If Company B sells its own development products to its employees at a low price, how to identify related transaction? The author thinks that the policy basis of enterprise income tax to deal with this problem is indeed insufficient. According to the Regulations on the Implementation of the Enterprise Income Tax Law, where an enterprise uses its goods, property and services for the welfare of its employees, it shall be regarded as selling. According to the State Administration of Taxation2016Annual regulation80The provisions of the announcement, shall be regarded as sales in accordance with the fair value to determine the sales revenue. The author believes that the difference between the selling price and the market price of the developed products sold by B company to employees should be regarded as being used for employee welfare (part of which is used for employee welfare). It should be noted that, from the perspective of enterprise income tax, if B company needs to increase its income, it should increase the employee compensation expenditure by the same amount at the same time, so it has little impact on the taxable income of enterprise income tax.

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