Adjustment Of Enterprise Income Tax To Overseas Related Parties

The pfer pricing of tax avoidance among multinational related enterprises often has many characteristics, such as variety, concealment and complexity. It will not only cause the loss of national tax, but also bring great difficulties to tax collection and management in China.

The principle of independent paction.

Article 1 of the 16 circular stipulates that, according to the forty-first article of the enterprise income tax law, the enterprise shall pay the expenses to the overseas related party, and shall comply with the principle of independent paction.

It can be seen that the expenses paid by enterprises to related parties abroad should be consistent with the principle of independent paction.

What is the principle of independent trading?

According to the 110th provision of the implementing regulations, the principle of independent paction referred to in the forty-first section of the enterprise income tax law refers to the principle that all parties involved in an unrelated paction follow the principles of fair paction price and business practice.

Thus, the principle of independent trading emphasizes that the distribution of revenues and expenses among the parties must be carried out according to the pricing standard or price adopted under market conditions.

This principle has been accepted and adopted by most countries in the world and has become a guiding principle for tax authorities to deal with the distribution of income and expenses between affiliated enterprises.

The principle of authenticity.

Article second of the 16 Circular provides that, according to the forty-third article of the enterprise income tax law, the enterprise can pay the expenses to the overseas related parties, and the competent tax authorities may require the enterprise to provide contracts or agreements signed with the parties concerned, and to record the relevant information that proves that the paction is actually happened and is in line with the principle of independent paction.

It can be seen that the second principles emphasized by the announcement are

It refers to the fact that an enterprise has actually taken the cost of paying fees to overseas related parties. It can provide relevant contracts or agreements signed with its associated parties, and other relevant supporting information that proves that the paction has actually occurred.

This principle is also reflected in the 16 bulletin third.

The third provision stipulates that the expenses paid by enterprises to overseas related parties who fail to perform their functions, take risks and have no substantive business activities shall not be deducted when calculating the taxable income of enterprises.

The enterprise must pay the cost to the overseas related party who has performed the function, the risk and the substantive operation activities before it can be deducted before tax.

The principle of profitability.

Article fourth of the 16 circular stipulates that the enterprise should pay the cost of accepting the services provided by the overseas affiliated party, which should enable the enterprise to obtain direct or indirect economic benefits.

This article emphasizes the principle of profitability.

To this end, the third article further clarified that when an enterprise receives overseas related parties to provide services, it should make an analysis of the profitability of the service based on the principle of profitability, that is, whether it can bring direct or indirect to the enterprise.

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Income based labor services can be paid in accordance with the principle of independent paction, and the expenses paid for receiving non productive labor shall not be deducted when calculating the taxable income of enterprises.

It can be seen that even if the enterprise has paid the expenses for accepting the overseas related party's labor service, if the income principle is not in conformity with the principle, the related expenses can not be deducted when calculating the taxable income of the enterprise.

Relevance principle.

The eighth provision of the enterprise income tax law stipulates that the actual expenses related to the acquisition of income, including costs, expenses, taxes, losses and other expenses, shall be deducted from the calculation of taxable income.

The twenty-seventh section of the regulations on the implementation of the enterprise income tax law also stipulates that the related expenses referred to in the eighth section of the enterprise income tax law refer to expenditures directly related to income.