1、 What is equity transfer?
Equity transfer refers to the civil legal act that the shareholders of a company transfer their own shares to others according to law, so that others become shareholders of the company.Equity transfer is a common and common way for shareholders to exercise their equity. The company law of China stipulates that shareholders have the right to transfer their capital contribution or part of their capital contribution by legal means.
2、 What are the conditions for the company's equity transfer and change?
Because the limited liability company is a joint venture company in essence, it must maintain the company's capital. When the shareholders are unwilling and unable to own their shares, they can not withdraw their capital contribution, but can only transfer them to others. Therefore, the transfer of equity becomes the choice of shareholders to withdraw from the company.At the same time, the establishment of a limited liability company is based on the trust between shareholders, which has the characteristics of human cooperation. The dependence between shareholders and the stability of shareholders play an important role in the company, which makes the transfer of shareholders' equity not as free as that of a joint stock limited company,Therefore, the company laws of various countries have made strict restrictions on the transfer of shareholders' equity of limited liability companies, which mainly include substantive and formal requirements.1. Substantive requirements.It can be divided into internal transfer conditions and external transfer restrictions.
(1) Internal transfer conditions
Because the transfer of equity between shareholders will only affect the proportion of internal shareholders' capital contribution, that is, the size of rights. For the limited liability company which attaches importance to the human factor, the foundation of its existence is that the mutual trust between shareholders has not changed.Therefore, there are three situations: first, shareholders can freely transfer their shares or part of their shares without the consent of the shareholders' meeting.Second, in principle, shareholders can freely transfer part or part of their equity, but the articles of association can attach other conditions to the transfer of equity between shareholders.The third is to stipulate that the transfer of shares between shareholders must be approved by the shareholders' meeting.
(2) Restrictions on external transfer
Limited liability company has the attribute of human cooperation, and the personal credit and mutual relationship of shareholders directly affect the style and even reputation of the company. Therefore, there are many restrictive provisions on the transfer of shares by shareholders of limited liability company to a third party outside the company.It can be roughly divided into legal restrictions and contractual restrictions.In fact, statutory restriction is a kind of compulsory restriction, and its basic method is to directly stipulate the restriction conditions of equity transfer in legislation.The transfer of equity, especially to a third party outside the company, must comply with the provisions of the law.In essence, contractual restriction is a kind of autonomous restriction. Its basic feature is that the law does not impose any rigid requirements on the transfer restriction, but leaves the issue to the shareholders themselves, allowing the company to make specific restrictions on the transfer of equity through the articles of association or contract.
2. Formal requirements
In addition to meeting the above physical conditions, equity transfer generally has formal requirements. The so-called formal elements of equity transfer involve the conclusion of equity transfer agreement in form;It also includes whether the transfer of equity needs registration or justice and other legal procedures. For the formal requirements of equity transfer, many countries' company laws have made clear provisions.
3、 What is the process of equity transfer and change?
1. Get the company change registration application form (from the window of the certificate processing hall of the industrial and commercial bureau)
2. Change the business license (fill in the company change form, affix the official seal, sort out the original copies of the amendment to the articles of association, the resolution of the shareholders' meeting, the equity transfer agreement, and the original and duplicate copies of the company's business license to the certificate processing hall of the industrial and commercial bureau for processing)
3. Change organization code certificate (fill in the change form of enterprise code certificate, affix the official seal, sort out the company change notice, copy of business license copy, copy of enterprise legal person id card, and original of old code certificate to the quality and Technical Supervision Bureau for handling)
4. Change of tax registration certificate (go to tax bureau with tax change notice)
5. Change bank information (handle with bank change notice basic account opening bank)
4、 What information does the company need for equity transfer change?
(1) Application for company change (filing) registration signed by the legal representative;
(2) The original power of attorney for enterprise registration application (can be filled in the application form);
(3) ID certificate of the operator (copy, check the original);If it is represented by an enterprise registration agency, the business license of the enterprise registration agency shall be submitted at the same time (the copy shall be stamped with the seal of the enterprise and marked "consistent with the original");
(4) The resolution or decision submitted in accordance with the provisions and procedures of the articles of Association (original version); and;
(5) In case of transfer to a person other than the original shareholder, the subject qualification certificate of the new shareholder shall be submitted;
(6) Amendment to the articles of association or new articles of Association (signed by the legal representative); and;
(7) Equity transfer agreement (1 original, in case of involving state-owned property rights, the approval documents of the State Council, local people's government or the state-owned assets supervision and administration institution of the people's government at the same level authorized by the State Council, local people's Government shall be submitted; if the equity transfer does not involve the transfer of state-owned property rights, the equity transfer agreement shall be notarized or witnessed;
(8) A copy of the qualification certificate of the shareholder (check the original copy);
(9) The original and duplicate of business license of enterprise legal person;
(10) If it is stipulated by laws, administrative regulations and decisions of the State Council that the change of equity must be submitted for examination and approval, the approval documents of relevant departments shall be submitted.
5、 The company's equity transfer, the details of individual income tax treatment and the behaviors that should be prohibited in the change of equity transfer
（1） Details of individual income tax treatment of equity transfer change
1. In the transaction of equity transfer, the transferor is the taxpayer, while the party receiving the equity is the withholding agent, performing the duty of withholding tax
2. After the parties to the equity transaction have signed the equity transfer agreement and completed the equity transfer transaction to the time when the enterprise changes the equity registration, the transferor or the transferee with the tax liability or withholding obligation shall apply for tax (withholding) declaration with the competent tax authority, and hold the tax payment certificate or tax exemption and non tax certificate of the equity transfer income issued by the tax authority,Go to the administrative department for Industry and commerce to register the change of equity.
3. If the parties to the equity transaction have signed the equity transfer agreement, but the equity transfer transaction has not been completed, the enterprise shall fill in the "report form of individual shareholder change" and report to the competent tax authority when applying to the administrative department for Industry and Commerce for equity change registration.
（2） Behaviors that should be prohibited in the change of equity transfer
The company law stipulates that the shares of the company held by the promoters of a joint stock company shall not be transferred within three years from the date of the establishment of the company;The shares of the company held by the company's directors, supervisors, managers and other senior managers shall not be transferred during their term of office.When the investor transfers the equity of the unlisted joint stock company, he must have a clear understanding of the relevant situation of the stock right to be transferred.
6、 After the equity transfer form of the company and the completion of the equity transfer, the equity change shall be handled in a timely manner
There are two ways for the shareholders of limited liability company to transfer their capital contribution: one is to transfer the equity to other existing shareholders, that is, the internal equity transfer of the company;The second is that the shareholders transfer their shares to other investors other than the existing shareholders, that is, the equity transfer outside the company.There are differences between the two forms in terms of conditions and procedures.
1. After the completion of the equity transfer, the target company should cancel the capital contribution certificate of the original shareholder, and issue the capital contribution certificate by the newly added shareholder, and need to modify the name, residence and capital contribution of the relevant shareholders in the articles of association and the register of shareholders.
2. Where a limited liability company changes its shareholders, it shall register the change with the industrial and commercial authorities within 30 days from the date of the change.
It should be emphasized that the legal person qualification certificate or identity certificate of natural person and the amended articles of association should be submitted at the same time of the change registration.
7、 What tax does the company need to pay for the change of equity transfer?
In the process of equity transfer, the transferor needs to pay various taxes and fees.
When the transferor is an individual
If the transferor is an individual, he shall pay personal income tax at the rate of 20%.
When the transferor is a company
If the transferor is a company, there will be more taxes involved. For details, please refer to "tax treatment of company equity transfer".The details are as follows:
（1） The tax type involved in the change of equity transfer of domestic enterprises involves the transfer of equity to a certain company, and the income from equity transfer will involve enterprise income tax, business tax, deed tax, stamp tax and other related issues
1. Enterprise income tax
(1) In the general purchase and sale of stock rights (including the transfer of stocks or shares), enterprises shall comply with the relevant provisions of the notice of the State Administration of Taxation on several income tax issues concerning enterprise equity investment business (Guo Shui Fa (2000) No. 118, repealed).The accumulated undistributed profits or accumulated surplus accumulation fund of the investee that the equity transferor shall share shall be recognized as the income from equity transfer, and shall not be recognized as the income of dividend nature.
(2) The liquidation or transfer of wholly-owned subsidiaries and enterprises holding more than 95% of the shares shall be carried out in accordance with the relevant provisions of the notice of the State Administration of Taxation on printing and distributing the Interim Provisions on certain income tax business issues in enterprise restructuring and restructuring (GSF (1998) No. 97, repealed).The accumulated undistributed profits and accumulated surplus reserves of the investee that should be shared by the investor shall be recognized as the dividend income of the investor.In order to avoid double taxation of after tax profits and influence enterprise restructuring activities, the above-mentioned dividend income is allowed to be deducted from the transfer income when calculating the investor's equity transfer income.
(3) According to Article 3 of the notice of the State Administration of Taxation on the issues concerning income tax that need to be clarified in the implementation of the enterprise accounting system (GSF (2003) No. 45), if the enterprise has withdrawn the assets for impairment, depreciation or bad debts, if the relevant preparation has increased the taxable income at the time of tax declaration,The reverse tax adjustment should be allowed for the write off of the relevant assets after the transfer and disposal.Therefore, when an enterprise liquidates or transfers the equity of its subsidiary (or a branch that is independently accounted for), the enterprise to be liquidated or transferred shall reduce the taxable income and increase the undistributed profit according to the amount of the bad debt provision for the taxable income which has been written off and increased in the past. The transferor (or investor) shall recognize the dividend income according to the share of equity.
Income tax treatment of income and loss of enterprise equity investment transfer
(4) The income or loss from the transfer of equity investment refers to the balance after the cost of equity investment is deducted from the income from the recovery, transfer or liquidation of equity investment.The income from the transfer of equity investment of an enterprise shall be incorporated into the taxable income of the enterprise, and the enterprise income tax shall be paid in accordance with the law.
(5) The equity investment losses caused by the recovery, transfer or liquidation of the equity investment of an enterprise can be deducted before tax. However, the equity investment loss deducted in each tax year shall not exceed the equity investment income and investment transfer income realized in the current year, and the excess part can be carried forward and deducted in the subsequent tax years.
2. Business tax
According to the notice of the Ministry of Finance and the State Administration of Taxation on business tax issues related to equity transfer (CS No. 191), it is stipulated that:
(1) No business tax shall be levied on the behavior of taking shares in intangible assets and real estate, distributing profits with the investors and sharing the investment risks.
(2) Since January 1, 2003, there is no business tax on equity transfer.
3. Deed tax
According to the regulations, in the equity transfer, the units and individuals bear the equity of the enterprise, and the ownership of the land and housing of the enterprise will not be transferred and the deed tax will not be levied;In the process of capital increase and share expansion, deed tax shall be levied on those who invest in the enterprise at the price of land and housing ownership or as capital contribution. "
4. On the taxation of share transfer change of stamp duty
There are two kinds of situations in the transfer of stock rights: one is the transfer of stock rights in the enterprises trading or trusteeship in Shanghai and Shenzhen stock exchanges, and the stamp tax on Securities (stock) transactions shall be levied at the rate of 3 ‰ of stamp duty on Securities (stock) transactions.The second is the equity transfer of enterprises that are not traded or entrusted in Shanghai and Shenzhen stock exchanges. The transfer shall be carried out according to Article 10 of the notice of the State Administration of Taxation on interpretation and provisions on some specific issues of stamp duty (GSF No.1) on September 18, 1991, and stamp duty shall be levied by both parties according to the tax rate of 5% of the agreed price (i.e. the amount specified).
（2） Income tax treatment of equity transfer change of domestic enterprises
According to the notice of the State Administration of Taxation on several income tax issues concerning enterprise equity investment business (GSF No. 118, repealed)
The income or loss from the transfer of equity investment refers to the balance after the cost of equity investment is deducted from the income from the recovery, transfer or liquidation of equity investment.The income from the transfer of equity investment of an enterprise shall be incorporated into the taxable income of the enterprise, and the enterprise income tax shall be paid in accordance with the law.
If the distribution payment amount of the invested enterprise to the investor exceeds the accumulated undistributed profit and accumulated surplus accumulation fund of the invested enterprise and is lower than the investment cost of the investor, it shall be regarded as investment recovery and the investment cost shall be offset;The part exceeding the investment cost shall be regarded as the equity transfer income of the investor's enterprise, which shall be incorporated into the taxable income of the enterprise and pay the enterprise income tax according to law.