A Case Study On The Legal Issues Of China's Enterprise Assets Securitization

As a kind of asset financing based on asset credit and asset cash flow,asset securitization has the characteristics of participation in the main body,functional decomposition and risk diversification.In China,asset securitization is mainly divided into credit asset securitization and corporate asset securitization.The two in the main body,the type of basic property and the implementation of the regulations and other aspects of the regulations are different.China's asset securitization only on the credit asset securitization in the "Ministry of Finance State Administration of Taxation on the credit asset securitization of the tax policy issues"(hereinafter referred to as "2006 No.5")made a more specific provisions.For the enterprise asset securitization,due to the diversity of its basic assets,the multi-level transaction structure,the tax problem is more complex.According to the principle of taxation,the enterprise asset securitization can not of course apply the 2006 No.5 text,the lack of laws and regulations makes the enterprise asset securitization in the tax cycle there are gaps and risks.The author through the case analysis of the way,put forward the following questions.In terms of value-added tax: 1,2016,No.140,"on the clear financial,real estate development,education support services and other value-added tax policy notice" stipulates: "The program manager to undertake the management plan of the process of generating value-added tax liability.",Which provides not only the lack of legal basis,but also easy to undermine the core of corporate asset asset securitization risk isolation.2.If the value-added tax is paid by the program manager in the light of the provisions of Circular No.2016,the debtor who is the underlying asset should obtain the invoice from the original equity agent or the planning manager when obtaining the VAT invoice? In the enterprise income tax: 1,do not refer to the application of No.6 in 2006,the case,the enterprise asset securitization of the program manager whether the obligation to pay income tax? How to identify the sponsor of the transfer of assets? The ownership of the trust property of the special purpose trust The original equity holders to retain the secondary interests of the way to enhance the basic assets of the credit registration in the accounting will lead to the table and can not achieve asset transfer?The first chapter introduces the basic concept and operation flow of enterprise asset securitization,and puts forward the case of securitization of loan loan assets.The second chapter puts forward the tax law problems encountered in the process of asset securitization through the case: how to define the transfer of the assets of the promoters and the ownership of the property of the special plan? Second,the sponsor to retain the secondary interests will be treated together and led to accounting is not considered as a transfer? Third,2016,No.140 to the special program manager for the taxpayer whether there is a legal basis? Fourth,if the implementation of the provisions of 2016,No.140,value-added tax invoices in the invoice and the main taxpayer how to resolve?The third chapter of the above issues were legal analysis,put forward their own point of view: First,in terms of value-added tax to clear the main status of the special plan,with its own tax as the main body.Second,for the issue of value-added tax invoices,in the moment,can refer to the provisions of Article 90 of Article 90,the original equity agent to bear the obligations of billing rather than by the program manager.Third,the enterprise income tax in the issue of asset assignment,a clear trust law for the "entrusted" in the enterprise asset securitization of the meaning,to give a specific plan specific legal personality,a tax entity.4.In the transfer of financial assets subject to credit enhancement for the use of retained subordinated interests or the provision of credit guarantees,the transferor retains only the part(not all)of the transferred financial asset's risk and remuneration and can control Where the transferred financial assets are transferred,the relevant assets and liabilities shall be recognized in accordance with the extent of their continued involvement in the transferred financial assets.As long as the sponsor does not have the intention to retain the control of the assets of the malicious,"real sale" behavior itself will not be locked into the scope of the table to deal with.In the fourth chapter,the author puts forward some suggestions on the tax system of asset securitization in our country.First,we must establish the guiding principle of corporate asset securitization tax,keep the principle of tax neutral,implement the principle of tax efficiency,implement the principle of tax fairness,reflect the principle of substantive taxation The Second,the establishment of corporate asset securitization of specialized legislation,to lift its uncertainty;in the transition phase should also be unified enterprise asset securitization and credit asset securitization of the tax law.Third,exempt from the 2016 140,the provisions of the value-added tax and stamp duty.