The penalties imposed by this tax audit are wrong
Peng Huaiwen
The audit cases published by the tax bureau are a good learning material for corporate financial personnel, because as a negative teaching material, they can avoid similar problems encountered by their own enterprises through learning, so as to reduce tax risks.
Recently, when I was studying, I found that the punishment of a tax audit was wrong.
Facts of violation: The inspectors mainly found the following problems by inspecting the tax-related materials such as the accounting vouchers and related detailed account books of the gas station in 2020, 2021 and 2022: 1. The gas station did not withhold and pay individual income tax of 8460.00 yuan as a gift with sales in 2020; 2. In 2021, 16150.00 yuan of gifts were given with sales without withholding and paying individual income tax; 3. In 2022, 119000.00 yuan of gifts were given with sales without withholding and paying individual income tax
Penalty basis: Article 69 of the Law of the People's Republic of China on the Administration of Tax Collection: "If the withholding agent should withhold the tax that has not been withheld or receivable but has not been collected, the tax authorities shall recover the tax from the taxpayer and impose a fine of not less than 50% but not more than three times the amount of the tax that should be withheld and not withheld, or receivable but not collected."
Penalty content: An energy limited company in Inner Mongolia did not perform the withholding and payment obligations, and was fined 17,233.20 yuan for the tax that should be withheld and not withheld, and the tax receivable was not collected.
Peng Huaiwen said:
1. The situation that the individual income tax needs to be withheld according to the "accidental income" for gifts
Article 3 of the Announcement of the Ministry of Finance and the State Administration of Taxation on the Application of Individual Income Tax to Taxable Income Items on Relevant Income Obtained by Individuals (Announcement No. 74 [2019] of the Ministry of Finance and the State Administration of Taxation) stipulates that:
In business publicity, advertising and other activities, enterprises randomly give gifts (including online red envelopes, the same below) to individuals outside their own units, and enterprises give gifts to individuals outside their own units in annual meetings, symposiums, celebrations and other activities, and the gift income obtained by individuals shall be calculated and paid according to the item of "accidental income", except for consumption vouchers, vouchers, vouchers, coupons and other gifts with price discounts or discounts given by enterprises.
The taxable income of the gift income referred to in the preceding paragraph shall be calculated in accordance with Article 3 of the Notice of the Ministry of Finance and the State Administration of Taxation on Individual Income Tax Issues Related to Gifts Given by Enterprises in Promotion and Business (CS [2011] No. 50).
Note: The scope of application of the above provisions is "individuals other than the unit". If it is an individual in the unit, the individual income tax shall be withheld according to the "income from wages and salaries".
Comments: In this audit case, "gifts with sales" are obviously more in line with point 2 of the above provisions, that is, gifts are given at the same time as the sale of refined oil. Therefore, no personal income tax should be levied.
2. Gifts do not need to be subject to individual income tax
Article 1 of the Notice of the Ministry of Finance and the State Administration of Taxation on Individual Income Tax Issues Concerning Gifts Given by Enterprises in Promoting and Exhibiting Business (CS [2011] No. 50) stipulates that if an enterprise gives gifts to individuals in the process of selling goods (products) and providing services, it shall not be subject to individual income tax if it falls under one of the following circumstances:
1. Enterprises sell goods (products) and provide services to individuals through price discounts and discounts;
2. Enterprises give gifts while selling goods (products) and providing services to individuals, such as free phone bills and network access fees for individuals who purchase mobile phones, or free mobile phones when they purchase phone bills;
3. Enterprises will give feedback gifts to individuals whose cumulative consumption reaches a certain amount according to consumption points.
Note: Item 3 of Article 2 of Cai Shui [2011] No. 50 stipulates that enterprises will give additional lottery opportunities to customers whose cumulative consumption reaches a certain amount, and the individual shall pay individual income tax at a rate of 20% in full according to the item of "accidental income".
3. What should taxpayers and withholding agents do if they have objections to the penalty imposed by the tax bureau?
1. Before the formal punishment
In accordance with the provisions of the Measures for the Implementation of Tax Administrative Penalty Hearing Procedures (for Trial Implementation), before the tax authorities impose a fine of more than 2,000 yuan (inclusive) on a citizen, or a fine of more than 10,000 yuan (inclusive) on a legal person or other organization, or a fine of more than 10,000 yuan (inclusive) on a legal person or other organization, the tax authorities shall inform the parties to serve the Notice of Tax Administrative Penalty Matters, and inform the parties of the facts and evidence of the violations that have been ascertained. The legal basis for the administrative punishment and the administrative punishment to be given, and inform them of the right to request a hearing.
The party requesting a hearing shall submit a hearing in writing to the internal tax authorities within three days after the delivery of the Notice of Tax Administrative Penalty Matters; If it is not submitted within the time limit, it will be deemed that the right to a hearing is waived.
If the parties request a hearing, the tax authorities shall organize a hearing.
Therefore, if the taxpayer or withholding agent has any objection to the penalty to be imposed by the tax bureau, and the amount of the fine reaches the standard, it may request a hearing within the prescribed time.
2. After the formal penalty is made
In accordance with Article 88 of the Tax Administration Law, taxpayers and withholding agents may apply for administrative reconsideration if they have objections to tax penalties, and if they are not satisfied with the administrative reconsideration decision, they may file a lawsuit (administrative litigation) with the people's court in accordance with the law.
4. How to inspect this case so that the enterprise can pay taxes and impose fines?
In this case, the gas station gave gifts when selling refined oil, and did not levy individual income tax in accordance with the regulations.
那也未必!
The Notice of the State Administration of Taxation on Issues Concerning the Deduction of Value-Added Tax Taxable Sales by Discount Amount (Guo Shui Han [2010] No. 56) stipulates that if a taxpayer sells goods by way of discount, and the sales amount and the discount amount are respectively indicated on the same invoice, the sales amount and the discount amount are respectively indicated in the "amount" column on the same invoice, and the VAT can be levied according to the discounted sales amount. If the discount amount is not indicated in the "Amount" column of the same invoice, but only the discount amount is indicated in the "Remarks" column of the invoice, the discount amount shall not be deducted from the sales amount.
When an enterprise engages in promotional activities such as buying one get one free, it is a kind of physical discount, and if an invoice is issued in accordance with the above provisions, it can pay VAT according to the discounted amount, that is, the gift can not pay VAT.
If the above-mentioned invoicing provisions are not met, gifts given in promotional activities will usually be recognized by the tax bureau as "gratuitous gifts", and in accordance with Article 4 (8) of the Detailed Rules for the Implementation of the Provisional Regulations on Value-Added Tax, they need to be regarded as sales and pay VAT.
Therefore, if the inspected enterprise does not calculate the VAT for deemed sales, or does not obtain a special VAT invoice for the purchase of gifts in accordance with the regulations, the probability of paying the VAT is very large.
In terms of enterprise income tax, Article 3 of Guo Shui Han [2008] No. 875 stipulates that if an enterprise sells its own goods in a combination of buy one and get one free, it is not a donation, and the total sales amount shall be apportioned and recognized according to the proportion of the fair value of each commodity. This provision does not emphasize the issuance of invoices. Therefore, the sale and giving of gifts do not need to be regarded as sales in terms of enterprise income tax.
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