First, regarding the asset management plan, can contractual private equity funds invest in the equity of companies to be listed in the national share transfer system? Do you need to reply to the actual shareholders during the listing review?
1. Fund subsidiaries can invest in the shares of companies to be listed in the national share transfer system by setting up special asset management plans.
Policy basis:
Article 9 of the Pilot Measures for Asset Management Business of Specific Clients of Fund Management Companies stipulates that the assets of asset management plans of fund subsidiaries shall be used for the following investments: (3) Other assets recognized by China Securities Regulatory Commission. A specific asset management plan that invests in the assets specified in items (2) and (3) of the preceding paragraph is called a special asset management plan.
2. The targeted special asset management plan of a securities company can be agreed by the securities company and the customer to invest in the equity of the company to be listed in the national share transfer system.
Policy basis:
Article 25 of the Detailed Rules for the Implementation of the Targeted Asset Management Business of Securities Companies stipulates that the investment scope of the targeted asset management business shall be agreed by the securities company and its customers through contracts, and shall not violate the laws, administrative regulations and the prohibitive provisions of the China Securities Regulatory Commission, but shall be in line with the customers' risk awareness and tolerance, as well as the investment experience, management ability and risk control level of the securities company.
Article 14 of the Measures for the Administration of Customer Asset Management Business of Securities Companies stipulates that when a securities company handles special asset management business for a special purpose customer, it shall sign a special asset management contract, set a specific investment target according to the special requirements of the customer and the specific conditions of the underlying assets, and provide asset management services for the customer through a special account. ..... A securities company may handle special asset management business by setting up a comprehensive aggregate asset management plan.
3. The investment scope of private equity funds (including contractual private equity funds) includes the company's equity to be listed in the national share transfer system.
Legal basis:
Article 2 of the Interim Measures for the Supervision and Administration of Private Equity Funds points out that the investment of private equity funds includes buying and selling stocks, equity, bonds, futures, options, fund shares and other investment targets agreed in investment contracts.
The share transfer system holds that, according to "Guidelines for Supervision of Unlisted Public Companies No.4-Guidelines for Examination of Relevant Issues Concerning Unlisted Joint Stock Limited Companies with More than 200 Shareholders" (CSRC Announcement No.201354), "those who use private equity funds, asset management plans and other financial management plans to establish and standardize their financial management plans in accordance with relevant laws and regulations and are supervised by the securities regulatory authorities shall not be allowed to carry out. Therefore, asset management plans of fund subsidiaries, asset management plans of securities companies, and contractual private equity funds, which are legally established and standardized in operation, have been registered with China Fund Industry Association and supervised by the securities regulatory authorities, may not reduce their holdings when the shares of the companies to be listed are listed, but relevant information disclosure must be done well.
Second, when companies invested by asset management plans and contractual private equity funds apply for listing in the national share transfer system, can shares be directly registered as product names?
The share transfer system thinks that it can be directly registered as a product name. The specific operation points are as follows:
1. When a company invested in an asset management plan or contractual private equity fund applies for listing, the sponsoring securities firm lists the asset management plan or contractual private equity fund as a shareholder in the prospectus for public transfer, and fully discloses the relationship between the asset management plan or contractual private equity fund and its manager and other products under the manager's name in the prospectus for public transfer. At the same time, the sponsoring brokerage firm will verify the following matters and express clear opinions: First, whether the asset management plan or contractual private equity fund is established and standardized according to law, and has fulfilled the relevant filing or approval procedures; Second, the source of funds for asset management plans or contractual private equity funds and their legal compliance; The third is whether the investment scope is in line with the contract and whether the investment is in compliance; Fourth, whether the holder of the asset management plan or contractual private equity fund is the controlling shareholder, actual controller or director of the company to be listed.
2. When a company invested by an asset management plan or contractual private equity fund passes the listing filing review and handles the initial registration of shares, the listing business department is responsible for checking whether the information of shareholders involved in the Application Form for Initial Registration of Shares is consistent with the information disclosed in the public transfer statement.
3. After checking that the share registration information is consistent with the disclosure information, the business department of China Clearing Issuer directly registers the shares in the name of asset management plan or contractual private equity fund.
According to some lawyers of taxlangzi WeChat, a prodigal son of finance and taxation in China, shareholders who are promoters of a joint stock limited company need to register with the administrative department for industry and commerce. Article 9 of the Regulations of the People's Republic of China on the Administration of Company Registration stipulates that the registered items of a company include: (1) name; (2) domicile; (3) The name of the legal representative; (4) Registered capital; (5) company type; (6) Business scope; (7) business term; (8) Names of shareholders of a limited liability company or promoters of a joint stock limited company. In practice, if the promoters of a joint stock limited company include asset management plans and contractual private equity funds, there are still great obstacles to directly registering as shareholders of the company, and they often "curve" register as managers of the corresponding plans or funds.
Third, regarding the asset management plan, contractual private equity funds invest in the equity of companies to be listed in the national share transfer system, involving business tax and income tax treatment.
At present, China's tax legislation does not clarify the status of asset management plans and contractual private equity funds as tax payers.
Article 8 of People's Republic of China (PRC) Securities Investment Fund Law, revised on 20 12, stipulates that the relevant taxes and fees for fund property investment shall be borne by the fund share holders, and shall be withheld and remitted by the fund manager or other withholding agents in accordance with the relevant state regulations on tax collection. If we refer to the relevant legislative principles of the Securities Investment Fund Law, asset management plans and contractual private equity funds can be regarded as subordinate taxpayers, and the relevant taxes on their investments are borne by fund share holders, and withheld and remitted by fund managers or other withholding agents in accordance with the relevant state regulations on tax collection.
Take investment funds as an example. Investment fund is a kind of collective investment. In the fund investment model, the investor is the funder of the fund, and the operator is the fund manager and custodian. The fund is only a kind of trust property in essence. The fund itself is not the main body of operation, and the fund itself should not be regarded as a taxpayer. For investors' income from the fund, the relevant taxes and fees shall be paid by the fund manager or investors themselves before the fund is established or after the fund is distributed. This investment mode of the fund connects all the subjects in the investment link, thus involving all kinds of taxes in this process, which should be paid by different subjects in the investment link themselves or on their behalf according to law. The fund itself does not need to pay taxes, but this does not mean that this kind of investment behavior does not pay taxes, but this kind of tax should be paid by the relevant subjects themselves or by the fund manager. To engage in fund investment, all entities shall fulfill their tax obligations by themselves or on their behalf in accordance with relevant laws.
A, asset management plan, contractual private equity fund as the virtual subject of tax.
If the asset management plan or contractual private equity fund is the main taxpayer, the tax related to its investment shall be borne by the asset trustor, and shall be withheld and remitted by the asset manager or other withholding agents in accordance with the relevant provisions of the state on tax collection. However, at present, China's tax legislation does not directly stipulate the withholding obligations of asset managers or other withholding agents and how to withhold and remit them.
B Asset management plans and contractual private equity funds are regarded as tax entities. If asset management plans and contractual private equity funds are regarded as taxpayers, they need to register as taxpayers in the tax authorities and file tax returns on time.
In the 9th issue of Tax Research 20 14, Professor Wang Zhen of Accounting College of Shijiazhuang University of Economics published the article "Research and Analysis on Business Tax Policy of Collective Asset Management Plan". The article mentioned such a case.
In case 20 13 1.6, an investment company A in China participated in the aggregate plan issued by a securities company with a total amount of 1 100 million yuan, with a total planned share of 1 100 million copies and a term of 2 years. Securities companies act as trustees and managers of collective plans, and Industrial and Commercial Bank of China acts as custodians of collective plans. The plan can invest in government bonds, money market funds and stocks of domestic listed companies. For the convenience of analysis, it is assumed that the plan only invests in stocks of domestic listed companies, and stamp duty and income tax are not considered.
As the principal, Company A actually participated in RMB 20 million, excluding the participation fee, and * * * got 20 million shares; China Citizen Week actually participated in 5 million shares. The plan is closed, and the client can transfer the share through the manager's OTC market three months after its establishment. 20 14 On June 5th, 65438+ 10, Company A transferred 100000 shares through the manager's over-the-counter market at the transfer price of 1. 1 yuan/share.
On June 6, 2065438+2004+65438+2065438, the plan manager sold a stock at a price of 6 million yuan, and the investment cost of the stock was 4 million yuan.
According to the above matters, the competent tax authorities of Company A require Company A to declare and pay the business tax on share transfer of collective plan and additional:
Business tax payable =1000× (1.1-1)× 5% = 5 (ten thousand yuan).
Urban maintenance and construction tax payable = 5× 7% = 0.35 (ten thousand yuan)
Surcharge of education fee payable = 5× 3% = 0. 15 (ten thousand yuan)
The competent tax authorities of securities companies require the plan manager to declare and pay the business tax and surcharges for buying and selling the share of the collective plan, and withhold and remit the business tax and surcharges for the plan participant (Company A) to transfer the share of the plan:
Business tax payable = (600-400) × 5% = 10 (ten thousand yuan)
Urban maintenance and construction tax payable = 10× 7% = 0.7 (ten thousand yuan)
Surcharge of education fee payable = 10× 3% = 0.3 (ten thousand yuan)
The business tax and surcharge for Company A's share in the transfer plan shall be withheld and remitted:
Withholding business tax payable =1000× (1.1-kloc-0/)× 5% = 5 (ten thousand yuan)
Withholding tax payable for urban maintenance and construction = 5× 7% = 0.35 (ten thousand yuan)
Surcharge for withholding education fee = 5× 3% = 0. 15 (ten thousand yuan)
Company A believes that the nature of collective plan belongs to entrustment contract or commission contract. The securities stipulated in China's Securities Law only include stocks, corporate bonds, government bonds, securities investment funds and securities derivatives, and the stocks to be issued are not securities. Redemption of "own property" at a premium through the transfer of planned shares in the OTC market of securities companies only involves income tax and does not pay business tax.
Securities companies believe that the collective plan belongs to private funds, and the tax policy of securities investment funds should be applied mutatis mutandis. According to the Notice of the Ministry of Finance on the Tax Policy of Securities Investment Funds in State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) (Caishui [2004] No.78), since June 5438+ 10/day, 2004, the managers of securities investment funds (closed-end securities investment funds and open-end securities investment funds) will continue to be exempted from business tax and enterprise income tax on the difference income from buying and selling stocks and bonds. Therefore, securities investment fund managers do not need to declare and pay business tax when buying and selling stocks under the collective plan. Securities companies also believe that the collective plan is only a contract and does not have the subject qualification of taxpayers; In the asset management business carried out by securities companies, there is no practice of tax-related treatment of collective plans in the industry. The tax matters of the client (or the plan share holder) shall be declared and paid by themselves, and the manager is not required to fulfill the business tax obligations involved in the transfer of the plan share.
In this case, the focus of the dispute is mainly on two issues: First, whether the share of collective plan belongs to securities (similar issues include the share of trust plan), thus constituting the transfer of financial goods in the sense of business tax? The second is whether the collective plan itself can be used as a taxpayer of business tax.
Regarding the first dispute, the tax authorities believe that according to the concept and characteristics of securities, the share of collective plan is a typical securities and belongs to the category of financial goods. Judging from China's tax system, taxpayers should levy business tax instead of value-added tax on the income from the transfer of movable property. In this case, Company A made a profit of 6,543,800 yuan by transferring the planned share, and should pay business tax. At the same time, Article 1 of the Notice of the Ministry of Finance of People's Republic of China (PRC) and State Taxation Administration of The People's Republic of China on Certain Tax Exemption Policies for Personal Financial Commodities Trading (Caishui [2009] No.65438 +0 1 1) stipulates that the income obtained by individuals (including individual industrial and commercial households and other individuals) from buying and selling foreign exchange, marketable securities, non-commodity futures and other financial commodities is temporarily exempted from business tax. Obviously, the planned share transfer of Company A does not belong to the above-mentioned business temporarily exempted from business tax, and the corresponding business tax should be declared and paid.
The competent tax authorities of Company A insist on the view of generalized securities, and believe that the share of collective plan belongs to securities; Company A, on the other hand, insists on the viewpoint of securities in a narrow sense, and thinks that tax declaration should be handled in strict accordance with the types of securities listed in the Securities Law, and the competent tax authorities cannot unilaterally expand the scope of application of securities.
Regarding the second dispute, the tax authorities believe that Caishui No.200478 only exempts the fund manager from the business tax obligation of using the fund to buy and sell stocks and bonds, and does not exempt the fund client from the business tax obligation. Because the collective plan and the securities investment fund implement different legal norms, the collective plan has the characteristics of private placement, but it does not belong to the securities investment fund regulated by the Securities Investment Fund Law, so the tax policy of the securities investment fund cannot be applied to expand the scope of application of preferential tax policies. The manager must declare and pay the business tax and its surcharge on the wealth management products bought and sold under the collective plan on schedule.
There are two kinds of tax payment strategies for collective plan: one is to grant the taxpayer qualification of collective plan, and the plan manager will handle the tax-related matters of collective plan on his behalf, and withhold and remit the relevant taxes on the share transfer of collective plan, which can be called the tax subject theory of collective plan; Second, the client is a taxpayer, and the client declares and pays the business tax on the sale of financial products and the transfer of planned shares. This strategy can be called subject tax theory. Considering that it takes time and there is a time lag for the manager to transmit the investment application or share transfer information of the collective plan to the client, in order to realize timely and full tax collection, the tax authorities adhere to the viewpoint of the tax subject theory of the collective plan, and believe that the collective plan should be the tax subject, and the collective plan manager should declare and pay all tax-related matters of the collective plan. Taxpayers (securities companies) adhere to the principal's view of tax subject.
Professor Wang Zhen believes that asset management business, under the premise that asset management institutions and investment participants (called "clients") do not set up investment enterprises, is generally led by asset management institutions to set up collective plans to raise funds. The assets or funds of the collective plan are independent of the assets owned by the asset management institution and the custodian institution. For each collective plan, the asset management institution must open a separate account to separately account for the increase and decrease of the assets of the collective plan. Pool plans have many names, such as trust plans, bank financing plans, and pool asset management plans.
Professor Wang Zhen prefers to treat collective plans as taxpayers. He pointed out that if the collective plan is qualified as a taxpayer, the plan manager can calculate and declare the tax payment of the collective plan, which can solve many difficulties brought by the client as a taxpayer.
First of all, the original ticket problem that restricts the tax accounting of collective plan can be easily solved. All expenses, procurement, foreign investment and other matters belonging to the collective plan can be paid by the collective plan; All income belonging to the collective plan can be invoiced by the collective plan for taxpayers; There is no need for the client to perform the delivery of the tax payment certificate. The efficiency and accuracy of collective planning tax accounting will be greatly improved.
Secondly, the administrator can use the funds of the collective plan to pay taxes, which will not cause the difficulty that the client has no money to pay taxes under the main taxpayer theory, and the client does not have to arrange the compulsory redemption of the collective plan or the compulsory transfer of shares or the compulsory dividend of the plan. Managers can reduce the interference of such compulsory measures on the allocation of funds during the collective planning period, which is helpful to improve the predictability and stability of the use of planned funds.
Thirdly, when there are both institutional investors and individual investors among the clients, insisting on the collective plan as the taxpayer can avoid the influence of the "classification method" under the main taxpayer theory on the business tax of institutional investors, and keep the actual tax burden of business tax of institutional investors buying and selling financial products at 5%, which is consistent with its nominal tax rate.
Internationally, Israel and Ireland regard collective plans as ordinary companies and apply normal corporate tax rates. The United States, Britain, Canada, Norway and other countries regard collective plans as independent taxpayers and need to pay taxes in full, and the income distributed to investors can be deducted. Italy, Spain, the Netherlands and other countries set collective plans as independent taxpayers and apply low tax rates to collective plans. In Germany, investment funds do not need to pay taxes, but they should be independent taxpayers to determine the tax base. It can be seen that collective planning as an independent taxpayer is an international trend.