Viewpoint... Corporate separation under tax planning.
Published:
2023-12-18
The separation of limited companies usually includes internal decision-making, financial division, separation registration, tax filing and other procedures, the author combined with fiscal and tax planning through this article to sort out and plan the above procedures, with a view to the readers have some enlightenment.
Foreword
With the rapid development of market economy, more and more companies are involved in the separation. The intrinsic motivation of enterprise separation usually includes improving efficiency, dividing risk, dividing business segments, and obtaining tax benefits. The separation of limited companies usually includes internal decision-making, financial division, separation registration, tax filing and other procedures, the author combined with fiscal and tax planning through this article to sort out and plan the above procedures, with a view to the readers have some enlightenment.
1. the development of discrete programmes
In the case of conditions, the separation scheme can be formulated in advance before the separation, and the improvement of the feasible separation scheme can greatly improve the smooth degree of the implementation phase. The content of the separation plan usually includes the reason and purpose of the separation, the number of surviving companies and derivatives, the scope of business and the size of the registered capital of each company after the separation, and the division of financial assets and liabilities. Special attention is paid to fully consider the relevance of the business scope, registered capital scale and financial assets and liabilities of each company after the separation when formulating the separation plan, so as to prepare for the convergence of financial data before and after the separation.
Implementation of 2. discrete programmes
Separation procedures usually include internal decision-making, separation agreement signing, financial division, approval and registration, etc., the program implementation stage of the procedures need to be interspersed, the following author will be the specific implementation process and legal basis one by one introduced as follows:
1, approved the name of the derivative company.
According to Articles 22 and 23 of the Measures for the Administration of Enterprise Name Registration, the establishment of a derivative company still requires pre-approval of the name. When approving the name of a derivative company, the application for pre-approval of the name of the enterprise shall state the name of the enterprise, domicile, registered capital, scope of business, name or name of the investor, amount of investment and proportion of investment, authorized entrustment opinions, and shall be signed and sealed by all investors.
2, to the general meeting of shareholders to vote on the separation resolution.
According to Article 37 of the the People's Republic of China Company Law, the division of the company is within the scope of the powers of the general meeting of shareholders, so the resolution of the division of the company needs to be submitted to the general meeting of shareholders for voting, and according to Article 43 of the the People's Republic of China Company Law, it must be approved by shareholders representing more than 2/3 voting rights.
3. Publication of separate announcement
According to Article 175 of the the People's Republic of China Company Law, the company shall notify its creditors within ten days from the date of the resolution on division and make an announcement in the newspaper on the 30th.
4, the preparation of balance sheet and financial list, the drafting of separation agreements.
According to Article 175 of the Company Law of the the People's Republic of China, when a company is separated and its property is divided accordingly, a balance sheet and a list of property shall be prepared.
After the division of the property is completed, the surviving company and the derivative company enter into a Separation Agreement. The contents of the Separation Agreement usually include the method of separation, the registered capital and equity structure of the parties before and after the separation, the business division plan, the property division plan, the debt division plan, the personnel placement plan and the dispute resolution.
5. Separate registration
According to Article 38 of the Regulations on the Registration of the People's Republic of China Companies, if a company is divided, it shall apply for registration 45 days after the date of the announcement.
6. Separate tax registration
After the separation registration of the company, the company shall carry out tax separation registration to show that each company pays tax separately. Special attention should be paid to two points: first, separate filing should be carried out before tax separation registration; second, if the separation involves the interests of special tax treatment of asset reorganization, the equity shall not change in December before and after the separation.
7, asset registration separation change.
After the separation of the company, the registered assets divided into the derivative company shall be gradually registered for the separation and change.
Concluding remarks
The division of the company involves the implementation of internal decision-making procedures, drafting of resolutions of the shareholders' meeting, division agreements and other legal work, as well as financial and accounting work such as property division, accounting division, preparation of balance sheets and property lists, as well as tax work such as tax division registration, asset reorganization and special tax treatment. Therefore, lawyers with financial and tax knowledge background participate in the implementation of the division work, with particularly good results.
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