Iii. Analysis of controversial issues

(1) Restructuring of real estate enterprises

The author believes that the enterprise restructuring should be established on the basis of the continuation of the legal person, if the legal person does not continue (in the process of restructuring a new legal person) can not be called restructuring. Therefore, the whole transformation of a non-incorporated enterprise into a limited liability company or a company limited by shares, and the whole transformation of a limited liability company (limited by shares) into a company limited by shares (limited liability company) should not involve the transfer of real estate ownership. Therefore, the restructuring of real estate enterprises also does not belong to the scope of land value-added tax. But from57The announcement seems to infer that the land value-added tax should be levied on the restructuring of real estate enterprises. The author thinks that this is contrary to the provisions of the regulations on land value-added tax.

(2) Changing the nature of the enterprise

If real estate enterprises change into non-real estate enterprises before restructuring and reorganization, and then carry out restructuring and reorganization, can they enjoy the policy of exempting land value-added tax temporarily? It is hard to find out from the current tax policy.

In the case of a real estate company first changing into a non-real estate enterprise (changing the industrial and commercial registration, cancelling the real estate industry, changing to business services) and then splitting (dividing the hotel assets into a new company), a local tax bureau of a province replied in the form of a white paper as follows: If the company takes the land and projects together with the commercial housing and hotel, and develops them in stages, it should be taxed; Land value added tax may not be levied on hotels that take land separately." Although the above answer may have some problems of logic, rigor and legality, the intention of anti-tax avoidance is very clear, so it is probably impossible to achieve the purpose of not paying the land value-added tax by changing the nature of the enterprise.

(3) Concurrently engaging in real estate business

Some real estate enterprises may concurrently engage in commercial, hotel, construction and other businesses (also known as other enterprises concurrently engage in real estate business). If these enterprises split off their commercial, hotel and construction assets (without changing the purpose of the assets) or use them for foreign investment (accepting investors as non-real estate enterprises), If a real estate enterprise absorbs and merges the assets of a non-real estate enterprise without changing the original use of the acquired assets (becoming a joint venture project), or if a real estate enterprise accepts real estate investment from a non-real estate enterprise and uses the invested real estate for a non-real estate development project (becoming a joint venture project), shall land value-added tax be levied? The author thinks that the above behavior does not involve the real estate industry in essence, so it should be allowed to enjoy from the perspective of substance over form57Notice no tax policy. In practice, however, it may be difficult for tax authorities to decide not to levy taxes.

(4) Self-built fixed assets

Obviously, the salable development products developed by real estate enterprises cannot enjoy the policy of temporary exemption from taxation of assets reorganization, but can the unsalable (self-use) fixed assets developed by real estate enterprises enjoy the policy of temporary exemption from taxation of assets reorganization? The author believes that if the self-built fixed assets are still used in the real estate industry (including for the office of real estate enterprises), then obviously can not enjoy the temporary tax policy; If the self-built fixed assets are used for commercial, hotel and other concurrent business projects, it shall judge whether the temporary tax exemption policy can be enjoyed by referring to the above-mentioned concurrent business.

Iv. Relevant suggestions

In response to the above controversy, the author believes that further clarification of the following policies may be considered:

First, the land value added tax will not be levied on the enterprise restructuring continued by the legal person.

Second, for real estate enterprises to change to non-real estate enterprises, and then restructuring, if the restructuring date3If the company does not change into a real estate company within the year and the new company does not involve the real estate industry, it can enjoy the benefits provided that it meets the specified conditions57Notice no tax policy.

Third, the real estate involved in the part-owned business of the real estate enterprise is used for restructuring and reorganization, or the real estate accepted by the real estate enterprise in the process of restructuring and reorganization is used for part-owned business, and the said real estate self-restructuring and reorganization date3Not used in the real estate industry during the year, subject to the stipulated conditions can enjoy57Notice no tax policy.

Fourth, for the real estate enterprises self-built fixed assets, and the assets at the time of project approval clearly used for non-real estate industry, such assets for restructuring and restructuring, and self-restructuring and restructuring3Not used in the real estate industry during the year, subject to the stipulated conditions can enjoy57Notice no tax policy.

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