Because the certification business takes place outside China, if the certification mark obtained by Company A is not attached to the product, it shall be regarded as accepting the certification labor service. Article 1 of the Provisional Regulations on Business Tax of the People's Republic of China stipulates: "Units and individuals that provide labor services, transfer intangible assets or sell real estate within the territory of the People's Republic of China are taxpayers of business tax and shall pay business tax in accordance with these regulations." Article 4 of the Detailed Rules for the Implementation of the Provisional Regulations of the People's Republic of China on Business Tax further clarifies: "The provision of labor services, the transfer of intangible assets or the sale of real estate within the territory of the People's Republic of China and the People's Republic of China (hereinafter referred to as the territory) as mentioned in Article 1 of the Regulations refers to: (1) the units or individuals that provide or accept labor services as stipulated in the regulations are within the territory; (2) The recipient of the transferred intangible assets (excluding land use rights) is in China; (3) The land whose land use right is transferred or leased is within the territory; (4) The real estate sold or leased is in China. "

article 11 of the provisional regulations on business tax of the people's Republic of China stipulates: "if the people's Republic of China and units or individuals outside China provide taxable services, transfer intangible assets or sell real estate in China, and there is no operating institution in China, their domestic agents shall be the withholding agents; If there is no agent in China, the transferee or the buyer shall be the withholding agent. "

according to the newly revised provisional regulations on business tax on January 1, 29 and the above-mentioned provisions of its detailed rules for implementation, the certification fee charged by Dutch customers for the certification service provided by Company A is domestic income because the certification service fee received by the service provider Company A is in China, so it is necessary to withhold and remit the business tax when paying the certification fee.

If the certification mark is affixed to the products of Company A, it shall be regarded as the trademark use right in the franchise. According to the detailed rules for the implementation of business tax, "the recipient of the transferred intangible assets (excluding the land use right) is in China"; The certification fee charged by Dutch customers belongs to the trademark use fee charged for the transfer of trademark use right in China, and the business tax should also be withheld and remitted by Company A..

In addition, if Company A, which has been granted the right to use overseas trademarks, is in the area of "VAT reform", the transfer of trademark rights is within the scope of "VAT reform" and belongs to the cultural and creative services in modern service industry, so it is necessary to withhold and pay business tax instead of VAT.

How to confirm the withholding of enterprise income tax

Depending on the specific situation, there are three results:

First, tax exemption.

1. If the certification business takes place overseas, and Company A only obtains the certification certificate and certification mark issued by foreign certification bodies, but does not attach the certification mark to the products, according to the Enterprise Income Tax Law of the People's Republic of China and its implementing regulations, if a non-resident enterprise does not set up an institution or place in China, it shall pay enterprise income tax on the income originating in China. Income from the provision of labor services shall be determined from sources inside and outside China according to the place where the labor services occur. Certification fees shall be regarded as overseas labor fees and shall not be taxed.

2. If the certification business takes place in China, according to Article 7 of the Agreement between the People's Republic of China and the Kingdom of the Netherlands on the Avoidance of Double Taxation and the Prevention of Fiscal Evasion on Income: "The profits of an enterprise in a Contracting State shall be taxed only in that country, except that the enterprise conducts business in the other Contracting State through a permanent establishment located in that other Contracting State. If the enterprise carries on business in the other Contracting State through a permanent establishment located in that other Contracting State, its profits may be taxed in that other State, but only to the extent of the profits belonging to that permanent establishment. " Dutch customers, who are residents of the agreement countries and do not constitute a permanent establishment in China, apply to the tax authorities for the implementation of the provisions of the tax agreement, and can be exempted from paying enterprise income tax after approval.

second, levy enterprise income tax. If the certification business takes place in China and constitutes a permanent establishment. If Company A only obtains the certification certificate and certification mark issued by foreign certification bodies, but does not attach the certification mark to the products, the certification fee shall be regarded as the domestic labor fee. According to the provisions of international tax treaties and relevant domestic tax laws, 25% enterprise income tax shall be levied on the income obtained by residents of the agreement countries and non-agreement countries who constitute permanent institutions in China.

3. Withholding income tax. No matter whether the certification business takes place in China or overseas, if Company A sticks the logo of a foreign certification body on the product, it can be concluded that Company A has obtained the trademark right of the organization. According to the international tax agreement and the relevant domestic tax laws, the income obtained by providing the trademark right belongs to the royalty, and the withholding income tax is levied.

Timely submission of materials to the tax authorities

According to Article 5 of the Interim Measures for Tax Administration of Non-residents' Contracted Engineering Operations and Provision of Labor Services (State Taxation Administration of The People's Republic of China Order No.19), Dutch customers who provide certified labor services in China shall, within 3 days from the date of signing the project contract or agreement (hereinafter referred to as the contract), Go through the tax registration formalities with the competent tax authorities where the project is located, and submit the Report Form of Domestic Institutions and Individuals Contracting Engineering Operations or Labor Projects, and attach the non-resident tax registration certificate, contract, copy of tax agency power of attorney and non-resident written explanations on relevant matters. If it is a domestic labor service but does not constitute a permanent establishment, it is also necessary to apply to the competent tax authorities for the application of tax agreements in a timely manner, and provide proof materials of the country where the non-resident enterprise is located.

when company a pays the certification service fee to the Dutch company, if the Dutch company providing certification services constitutes a permanent establishment in China, its income from labor services in China is operating profit, which is not within the scope of statutory withholding, so the corporate income tax should generally be calculated and paid by the non-resident Dutch company itself.

However, if the Dutch company fails to register and declare taxes and fails to fulfill its tax obligations after obtaining the income from labor services in China, according to the Enterprise Income Tax Law and its implementing regulations, and the relevant provisions of the Interim Measures for Tax Administration of Non-residents' Contracted Project Operation and Labor Services, if the tax authorities designate the certified labor service payer, that is, the domestic enterprise as the withholding agent, the domestic enterprise shall fulfill its obligation to withhold and remit the enterprise income tax when paying the overseas certification fee.

if the certification fee is regarded as the trademark use fee, according to Article 37 of the Enterprise Income Tax Law of the People's Republic of China, the income tax payable by a non-resident enterprise on the income specified in the third paragraph of Article 3 of this Law shall be withheld at the source, and the payer shall be the withholding agent. Company A also needs to withhold and remit enterprise income tax when paying the certification fee.

In short, because the company A of the labor service recipient or the transferee of the trademark use right is in China, the business tax must be withheld and remitted. Enterprise income tax depends on whether the certification fee belongs to royalties or labor fees, and the enterprise income tax should be withheld and remitted if it belongs to royalties. If a permanent establishment is a labor service fee, the customer shall pay the enterprise income tax by himself; if it is not a permanent establishment, it is not required to pay the enterprise income tax.