Overpayment Of Personal Loans Can Not Be Ignored.

For example: a company limited by a legal person shareholder and two natural shareholders A and B jointly invested in the establishment of a limited liability company.

In 2010, two shareholders of natural persons borrowed 5 million yuan from the company and returned it in June 2014.

In August 2014, the tax authorities of the local tax authorities found that the loan was not used in the production and operation activities of the invested enterprises. According to the relevant tax policies, the company was instructed to make up the personal income tax by 2 million yuan in accordance with the law.

The company has divergent views on tax counselling.

Whether individuals levy taxes on enterprises or how to levy taxes should be grasped and dealt with in the following two aspects according to the actual situation.

First, the issue of personal income tax on personal loans is mainly based on the following three tax policies:

1. The Ministry of Finance and the State Administration of Taxation on the regulation of individual investors' personal income tax collection and Administration ([2003]158) stipulates that individual investors should borrow money from their investment enterprises (except individual proprietorship enterprises and partnership enterprises) in the tax year, and do not return them after the end of the tax year, and are not used for the production and operation of enterprises. The loans that are not returned can be regarded as dividends distribution to individual investors, and personal income tax is calculated according to the items of interest, dividends and bonuses.

2, the Circular of the State Administration of Taxation on Issuing the "Regulations on the administration of personal income tax" ([2005]120) stipulates that individual investors of individual proprietorship enterprises and partnership enterprises borrow money from their investment enterprises, and levy taxes on loans borrowed for more than one year and not used for production and operation of enterprises in strict accordance with relevant regulations.

3, the Ministry of Finance and the State Administration of Taxation on approval of personal income tax on personal purchases of housing or other property by the Ministry of Finance and the State Administration of Taxation stipulates that investors, investors, family members or other personnel of enterprises shall borrow money from enterprises to purchase housing estates and other property, and register their ownership as investors, investors, family members or other personnel of the enterprise. If the loan is not returned after the end of the year, it shall be taxed according to law.

The above income obtained from the individual investor or family member of a sole proprietorship enterprise or partnership shall be regarded as the profit distribution of individual investors by the enterprise, and the personal income tax shall be levied according to the item of "production and operation income of individual industrial and commercial households". The above income obtained from the individual investors or family members of other enterprises outside the enterprise shall be regarded as the bonus distribution to individual investors, and the personal income tax shall be levied according to the item "interest, dividends and bonus"; and the personal income tax collected by other personnel of the enterprise shall be calculated according to the item "wages and salaries".

The above provisions:

First, we defined the scope of taxpayers.

That is, the individual investor of a sole proprietorship enterprise or the partner of a partnership or his family member who borrows from the invested enterprise; the individual investor or other family member of the other enterprise borrows from the invested enterprise; the three category of the loan from the enterprise employee to the enterprise.

We need to pay special attention to borrowing for the employees and the employed enterprises.

It is also limited to borrowing to purchase houses and other property, and to register the ownership as an individual employee and not to repay the loan after the end of the loan.

The two is to define the taxable items of personal income tax.

According to different types of enterprises and different borrowers, individual income tax is calculated according to "income from production and operation of individual industrial and commercial households", "income from interest, dividends, bonuses" and "income from wages and salaries".

Three is right.

The time of occurrence has been clearly defined.

That is: the individual investor or individual member of a sole proprietorship enterprise or his family member has a loan term of "more than one year"; he shall borrow money from other enterprises, investors, family members or other personnel of the enterprise to repay the loan after the "end of the year".

The four is to stipulate the precondition for levying loan behavior.

That is, the loan item is not used for the production and business operation of the enterprise.

Two, whether borrowing enterprises calculate and collect interest according to the same benchmark interest rate of the same period of financial institutions should be regarded as another condition for whether to levy taxes.

Above

Although it is clear that a person's loan to a company exceeds the prescribed time limit and fails to be used for the production and operation of an enterprise, it shall be taxed. However, in actual business, an individual borrows money from an enterprise with interest and interest bearing loans.

In my opinion, any interest received by a financial institution in accordance with the loan agreement for the same period of interest rate of the same kind of loans should be regarded as the business borrowing behavior of the enterprise. It should not be regarded as a personal income tax. Instead, it should be taxed according to the income.

Through the above analysis and combined with this case, the first is that the loan period of shareholders is nearly four years, exceeding the time requirement for the non return of the loan after the "tax year ended", and its tax liability has already occurred. Two, it is not used for the production and operation business of the invested enterprise after borrowing, which is in line with the precondition of collecting personal income tax; and the three is the borrower's free occupation of enterprise funds.

In the course of tax counseling, loans have been returned, but there is no provision for tax refund in the tax law. Therefore, it should be treated in accordance with the provisions of fiscal and taxation [2003]158.

Most of the tax related problems of personal loans to enterprises occur after the event. Some specific problems need to be further clarified. For example, how to regulate the personal loans of enterprise investors who have exceeded the prescribed time limit and not used for the production and operation of enterprises before the inspection period? How to regulate the management of the loans? The loans that are deemed to be levied on personal income tax, and whether the enterprises are deducted when they are actually allocated in the late stage, etc., are urgently needed by the general administration to make it clear and convenient for tax treatment and tax compliance.

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