Research On The Income Tax Rules Of Division Reorganization In China's Enterprises

With the development of market economy,division reorganization has become one of the common forms of merger and acquisition.As a kind of property right transaction behavior,division reorganization involves complex income tax problem,and becomes an important factor influencing the decision of subjects.This requires the improvement of the income tax rules on the basis of the principle of tax neutrality.In accordance with the provisions of related normative documents of division reorganization of income tax,under different conditions,Separation of corporate restructuring can adopt general tax treatment(that is,to pay taxes on income and losses recognized in the current period)and special tax treatment(that is,deferred tax payment without recognizing income and losses in the current period).However,the rudimentary provisions lack of guidance in practice and lead to controversy,exposing the problems existing in the rules of income tax for the division reorganization of enterprises.According to the syllogism in the application of tax Law,the following steps must be taken:To determine the occurrence of the fact of economic life,to determine that the fact of economic life conforms to the characteristics of the constitutive elements stipulated in the tax law,and to determine the law applicable to the fact and its legal consequences.On the one hand,the improper and imprecise elements of the special tax treatment affects the identification of the special tax treatment of taxpayers whether or not the separate reorganization of tax treatment takes place or not,and lead to the excessive discretion of the tax authorities,which can easily infringe upon the legitimate rights and interests of the taxpayers.On the other hand,there is a two-track way to deal with the income tax treatment of the legal person shareholder and the natural person shareholder in the current regulation,and there is a suspicion of violating tax neutrality principle.When collecting income tax on discrete consideration obtained by shareholders of separated enterprises,it does not distinguish the types of consideration,which results in the collapse of many cases of reorganization in practice,so that the issue of the tax timing of division reorganization income is raised to the table.And the point of tax payment is an important condition for determining whether the reorganization of a separate enterprise conforms to the income tax law in the current period.Furthermore,the tax basis as an important tool to determine the taxable income amount of the income tax of division reorganization in China 's enterprises,the identification of the tax basis in the document makes taxpayers doubt the application of the tax basis calculation rules in the special tax treatment,which also highlights the ununiversality and irrationality of the current tax basis calculation rules.The questions of special tax treatment applicable condition and the tax timing and the tax basis respectively belong to the questions of three steps of tax law application,analyzes and solves these questions,has the important significance to straighten out,consummates the income tax rules of division reorganization in China 's enterprises.Therefore,after making clear that the system design of special tax treatment has the value orientation of encouraging enterprises to carry out reorganization transactions and anti-tax avoidance.First of all,it is necessary to perfect the qualification of special tax treatment on the value orientation of the two aspects,specific and detailed enumeration of elements for anti-tax avoidance requirements.This paper redefines the suitable elements of "holding enterprise",and makes a more reasonable improvement on the "original major shareholder" element that restricts the sale of shares after division.Secondly,on the basis of a clear definition of the constituent elements,in order to determine the tax time of income,a distinction should be made between income realization and recognized income,which can be used for reference in the concept of "realization event","tax confirmation" and "funds available for tax payment" in the American realization concept system,the standard claim to be realized in the United States is that funds can be used to cover taxes and tax confirmation is made when funds are available to cover taxes.Therefore,the income tax treatment of the shareholders of the separated enterprises should be reasserted in the case of the separate reorganization income tax system of our country,and the types of the consideration to the shareholders should be distinguished so as to determine the tax treatment of the shareholders and levy income tax reasonably.Finally,on the basis of analyzing the evolution of tax basis rules in American income tax,the paper verifies and summarizes the characteristics of tax basis by the method of case experiment.The tax basis of our country is mixed with accounting,and the calculation method is not universal and may lead to the problem of double taxation and increase the tax burden of taxpayers.It is necessary to innovate the basic concept and rules of tax calculation in our country,and on the basis of drawing lessons from the basic calculation rules of tax basis in the American income tax law,we should overthrow the rules for the determination of the tax basis of the old "Historical cost rule" in our country,and redefining the calculation formula of the tax basis,so as to ensure the rationality and universality of the calculation rules of the tax basis,and guarantee that taxpayers' income is taxed only once in the flow of transactions.Furthermore,we should improve the way of determining the tax basis in the division reorganization income tax of enterprises in our country and remove the unreasonable calculation rules of the tax basis in the special tax treatment.And unifies the calculation method of the tax basis when the property changes of the parties involved in the reorganization,so as to ensure that the tax basis of the taxpayer flows with the taxpayer and truly reflects the tax burden level of the taxpayer,so as to protect the legitimate rights and interests of the taxpayers.