利用关联方借款避税 拆借资金的节税方法

为了防止企业利用关联方借款任意避税,我国税法对关联方借款费用的税前扣除进行了限制。《企业所得税税前扣除办法》规定,纳税人从关联方取得的借款金额超过其注册资本50%的,超过部分的利息支出不得在税前扣除。其实,关联企业之间可以通过其他途径绕过这一限制。

案例

A公司公司(母公司)和B公司公司(全资子公司,实收资本总额为800万元)是关联公司,B公司公司于2003年1月1日向A公司公司借款600万元,双方协议规定借款期限为1年,年利率8%,B公司公司于2003年12月1日到期时一次性还本付息648万元。(同期银行贷款利率为5%)

B公司公司当年用“财务费用”账户列支A公司公司利息48万元,允许税前扣除的利息为20万元(800×50%×5%),调增应纳税所得额28万元(48-20)。上述业务的结果是,B公司公司向A公司公司支付利息48万元,由于是内部交易,对A公司和B公司公司整个集团来说,既无收益也无损失;但是,因为A公司和B公司公司均是独立的企业所得税纳税人,而税法对关联企业间借贷款利息费用税前扣除有限制,使得B公司公司需要额外支付9.24万元(28×33%)的税款;同时,A公司公司收取的48万元利息还需按照金融保险业税目缴纳5%的营业税和相应的城市维护建设税及教育费附加,合计金额为2.64万元[48×5%×(1+7%+ 3%)].因此对整个集团企业来说,合计多纳税11.01万元[2.64×(1-33%)+9.24].

筹划方案

事实上,如果仔细筹划,企业可以选择以下三种方案以节税:

方案一:将A公司公司借款600万元给B公司公司改成A公司公司向B公司公司增加投资。这样,B公司公司就无需向A公司公司支付利息,如果A公司公司适用所得税税率与B公司公司相同,从B公司公司分回的利润则无需补缴税款;如果A公司公司所得税税率高于B公司公司,B公司公司则可以保留盈余部分,这样A公司公司也无需补缴所得税款。

方案二:如果A公司和B公司公司存在购销关系,B公司公司生产的产品作为A公司公司的原材料,那么,当B公司公司需要借款时,A公司公司可以支付预付账款600万元给B公司公司,让B公司公司获得一笔“无息贷款”,从而排除了关联企业借款利息扣除的限制。

方案三:如果A公司公司生产的产品作为B公司公司的原材料,那么,A公司公司可以采取赊销方式销售产品,将B公司公司需要支付的应付账款由A公司公司作为“应收账款”挂账,这样处理,B公司公司同样可以获得一笔“无息贷款”。

需要指出的是,这里的方案二和方案三都属于商业信用筹资范畴。由于关联企业双方按正常售价销售产品,对“应收账款”或“预付账款”是否加收利息,可以由企业双方自愿确定,税法对此并无特别规定。由于B公司公司是A公司公司的全资子公司,A公司公司完全可以对这笔应收账款或预付账款不收利息,这其实对投资者来说是不会有什么损失的。

话外音

如果B公司公司是A公司公司的非全资子公司,情况又会如何呢?A公司公司可能出于自身利益的考虑对销货适当提高售价,这实际上就是把应当由B公司公司负担的利息转移到原材料成本上去了。应当指出的是,如果关联方企业之间不按独立企业间业务往来收取价款或支付费用,而减少应税收入或应纳税所得额的,则税务机关有权对其进行合理调整。因此,企业在采用方案二和方案三进行税务筹划时应当谨慎行事。

  要正确理解《企业所得税税前扣除办法》的规定,还应当注意下列问题:

● 对于企业从关联方借款金额超过其注册资本50%的,超过部分的利息支出不得扣除,也不能资本化;

● 对于集团母公司从金融机构统一取得的贷款,再转贷给子公司使用的,如能证明有关资金确系从金融机构取得,可不作为关联方贷款对待;

● 从严格意义上讲,属于统一法人的总分机构是同一个法人实体,不属于关联企业的范畴。但如果总分机构符合独立纳税人条件,且总机构和分机构分别作为独立纳税人的,那么两者之间发生的借贷款理应受到《企业所得税税前扣除办法》第36条规定的限制。

原创文章,转载请注明: 转载自飞月秀

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