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中华人民共和国营业税暂行条例实施细则 PRC, Business Tax Tentative Regulations Implementing Rules

2006-05-17 01:17   我要纠错 | 打印 | 收藏 | | |

(Promulgated by the Ministry of Finance on 25 December 1993 and effective as of 1 January 1994.)
颁布日期:19931225  实施日期:19931225  颁布单位:财政部

  Article 1 These Rules are formulated in accordance with Article 16 of the PRC, Business Tax Tentative Regulations.

  Article 2 For the purposes of Article 1 of the Regulations, the term “taxable labour services” shall refer to labour services within the scope of the following business tax items: transport industry, construction industry, finance and insurance industries, post and telecommunications, culture and sports, entertainment business and service industry.

  For the purposes of the Regulations, the term “taxable labour services” shall not include processing, repair and replacement (“non-taxable labour services”)。

  Article 3 For the purposes of item 5 of Article 5 of the Regulations, the term “the business of purchasing and selling foreign exchange, negotiable securities and futures” shall refer to the business of purchasing and selling foreign exchange, negotiable securities and futures engaged in by financial institutions (including both banks and non-banking financial institutions)。

  The purchase and sale of foreign exchange, negotiable securities or futures by non-financial institutions or individuals shall not be subject to business tax.

  Article 4 For the purposes of Article 1 of the Regulations, the phrase “provide taxable labour services, assign intangible assets or sell immovable property” shall refer to acts of providing taxable labour services for consideration, assigning intangible assets for consideration or assigning the ownership of immovable property for consideration (“taxable acts”), except for taxable labour services provided by staff and workers of work units or individual operators for their own work units or employers.

  For the purposes of the preceding paragraph, the term “for consideration” shall include the gain of currencies, goods or other economic benefits.

  If a unit or an individual sells a building that is newly constructed by itself or himself (hereafter, “constructed by oneself”), the act of constructing by oneself shall be regarded as a provision of taxable labour services.

  The assignment of restrictive property rights or perpetual use rights of immovable property as well as the grant of immovable property without consideration to another party by a work unit shall be regarded as a sale of immovable property.

  Article 5 A sale that involves both taxable labour services and goods shall be a mixed sale. Mixed sales by enterprises, enterprise-type work units and individual operators engaged in production, wholesale or retail of goods shall be regarded as sales of goods and shall not be subject to business tax. Mixed sales by other work units or individuals shall be regarded as a provision of taxable labour services and shall be subject to business tax.

  Whether or not a taxpayer's sale is a mixed sale shall be determined by the collection authorities under the State General Administration of Taxation.

  For the purposes of the first paragraph, the term “goods” shall refer to tangible movable property that include electric power, heating power and gases.

  For the purposes of the first paragraph, the phrase “enterprises, enterprise-type work units and individual operators engaged in production, wholesale or retail of goods” shall include enterprises, enterprise-type work units and individual operators engaged mainly in production, wholesale or retail of goods and concurrently in non-taxable labour services.

  Article 6 Where a taxpayer is concurrently engaged in taxable labour services and goods or non-taxable labour services, separate accounts shall be kept for the amount of business of the taxable labour services and the sales amounts of the goods or non-taxable labour services. If no separate accounts are kept or if accounts are not kept accurately, value added tax shall be levied on the taxable labour services as well as on the goods or non-taxable labour services. Business tax shall not be levied.

  Whether or not value added tax shall be levied on the taxable labour services concurrently engaged in by a taxpayer as well as on the goods or non-taxable labour services shall be determined by the collection authorities under the State General Administration of Taxation.

  Article 7 Except where provided otherwise in Article 8 of these Rules, any of the following situations shall be regarded as the provision of taxable labour services, assignment of intangible assets or sale of immovable property within the People's Republic of China (hereafter, “China”) as mentioned in Article 1 of the Regulations:

  1. labour services provided that occur in China;

  2. the carrying of travellers or goods in China out of China;

  3. organizing travellers in China for travelling outside China;

  4. assignment of intangible assets used in China; or

  5. sale of immovable property located in China.

  Article 8 Any of the following shall be regarded as provision of insurance labour services in China:

  1. insurance labour services provided by an insurance institution in China, except for insurance provided for export goods by an insurance institution in China; or

  2. insurance labour services provided by an insurance institution outside China for articles in China as the subject matter.

  Article 9 For the purposes of Article 1 of the Regulations, the term “work units” shall refer to State-owned enterprises, collective enterprises, private enterprises, share system enterprises, other enterprises and administrative work units, institutions, military work units, social organizations and other work units.

  For the purposes of Article 1 of the Regulations, the term “individuals” shall refer to individual industrialists and merchants as well as other individuals with business operations.

  Article 10 If the operation of an enterprise is leased or contracted out to another party, the lessee or contractor shall be the taxpayer.

  Article 11 Except where provided otherwise in Article 12 of these Rules, work units shall be payers of business tax if they carry out taxable acts and obtain or receive currencies, goods or other economic benefits from the opposite party including both work units that practice independent accounting and work units that do not practice independent accounting.

  Article 12 The taxpayer for tax on the operation of central railways shall be the Ministry of Railways. The taxpayer for tax on the operation of equity joint venture railways shall be the equity joint venture railway companies. The taxpayer for tax on the operation of local railways shall be the local railway administrative authorities. The taxpayer for tax on the operation of lines under provisional control for infrastructure construction shall be the administrative authorities for lines under provisional control for infrastructure construction.

  Work units that are engaged in the business of transportation by water, air, pipeline or land and that have the obligation to pay business tax shall be the work units that are engaged in transportation business and that calculate profits and losses.

  Article 13 Charges by legislative, judicial and administrative authorities shall not be subject to business tax if both of the following conditions are met:

  1. where the charges are permitted to be imposed by virtue of official documents of the State Council, People's Governments at provincial level or financial or commodity price authorities thereunder and the standards of the charges comply with the provisions of the documents; and

  2. where the charges are collected directly by the legislative, judicial and administrative authorities themselves.

  Article 14 For the purposes of Article 5 of the Regulations, the term “additional charges” shall include service charges, fund sources, fund-raising fees, payments collected on behalf of another party, advance payments on behalf of another party and all other types of charges in addition to the price that is charged to the opposite party.

  All additional charges, irrespective of how they are to be accounted for under the accounting system, shall be included in the amount of business for the calculation of the amount of tax payable.

  Article 15 If a taxpayer provides taxable labour services, assigns intangible assets or sells immovable property at a price that is obviously on the low side and no proper grounds are presented therefore, the taxation authorities in charge shall have the right to determine the turnover in accordance with the following sequence:

  1. determination in accordance with the average price of similar taxable labour services provided or similar immovable property sold by the taxpayer in that month;

  2. determination in accordance with the average price of similar taxable labour services provided or similar immovable property sold by the taxpayer during the most recent period;

  3. determination of a price for tax calculation purposes in accordance with the following formula:

                              
  Price for tax calculation purposes
                      ( 1 + profit to cost ratio)
      = business cost or project cost x ───────────
                      ( 1 - business tax rate)

  The term “profit to costs ratio” as mentioned in the above formula shall be determined by the taxation authorities under the People's Governments of the provinces, autonomous regions and centrally governed municipalities.

  Article 16 Where, in accordance with Article 4 of the Regulations, a taxpayer settles the amount of business in foreign exchange, either the State exchange rate (in principle, the median of the rates) for the date on which the amount of business is collected or that for the first day of the month during which the amount of business is collected may be selected as the Renminbi conversion rate for the amount of business. However, the Renminbi conversion rate for the turnover of finance and insurance enterprises shall be the rate determined in the final statements for the preceding year.

  The taxpayer shall determine in advance which conversion rate to use and may not change it within one year from such determination.

  Article 17 The turnover of transportation enterprises generated from the through transport business shall be the amount of business actually obtained.

  For the purposes of Item 6 of Article 5 of the Regulations, the term “other circumstances” shall include circumstances where a travel enterprise organizes a trip in China for a tour group, in which case the turnover shall be the tour price collected less the expenses for accommodation, meals, transportation, admission and other expenses paid to other work units for the tourists.

  Article 18 The amount of business of a taxpayer engaged in construction, renovation and decoration projects shall include the prices of raw materials, supplies and power used in the projects, irrespective of how these are settled with the opposite party.

  For taxpayers engaged in installation projects, wherever the value of the installation project includes the value of the equipment installed, the amount of business shall include the prices of equipment.

  Article 19 The amount of business of an act of constructing by oneself as mentioned in Article 4 of these Rules shall be determined by reference to Article 15 of these Rules.

  Article 20 For the purposes of Item 4 of Article 5 of the Regulations, the term “on-lending business” shall refer to the business of lending borrowed funds to another party for use. The term shall not include the business of lending deposits or self-owned capital taken in from work units or individuals to another party for use.

  Article 21 Where re-insurance is practised in the insurance industry, the amount of business of the original insurer shall be the total revenue from the insurance premium less the insurance premium paid to the reinsurer.

  Article 22 Where a work unit or an individual carries out a performance, the amount of business shall be the total revenue from ticket sales or block booking less the expenses paid to the work unit, performance company or agent that provides the performance venue.

  Article 23 The amount of business of the entertainment business shall be the fees collected from customers in the operation of the entertainment business, including admission fees, table charges, song selection fees as well as charges for tobacco, alcoholic drinks and other beverages and all other charges collected in the operation of the entertainment business.

  Article 24 The amount of business of the tourism industry shall be the fees collected less the expenses for meals, accommodation and transportation paid to other work units for tourists.

  Where a travel enterprise organizes a trip in China for tourists and the tour group is taken over by another travel enterprise, the sales amount shall be determined by reference to the provisions of Item 2 of Article 5 of the Regulations.

  Article 25 Where a work unit grants immovable property to another party without consideration, the amount of business shall be determined by reference to Article 15 of the Rules.

  Article 26 The scope of some of the tax free items specified in Article 6 of the Regulations shall be limited as follows:

  1. For the purposes of Item 2 of the first paragraph, the term “labour services provided by handicapped persons in their personal capacity” shall refer to labour services provided for society by handicapped persons themselves.

  2. For the purposes of Item 3 of the first paragraph, the term “medical services provided by hospitals, clinics and other medical institutions” shall refer to services in respect to diagnosis and treatment of patients, epidemic prevention, obstetrics and family planning as well as businesses providing pharmaceuticals, medical apparatus, meals and accommodation in hospital wards in connection with such services.

  3. For the purposes of Item 4 of the first paragraph, the term “schools and other educational institutions” shall refer to ordinary schools and to other types of schools that are established with the approval of People's Governments above prefectural or municipal level or of educational administrative departments of governments at the same level, and where the academic records of the students of such schools are recognized by the State.

  4. For the purposes of Item 5 of the first paragraph, the term “agriculture by means of mechanical cultivation” shall refer to the business of cultivation (including ploughing, weeding, planting, harvesting, threshing, plant protection, etc.) using agricultural machinery in agriculture, forestry and animal husbandry.

  The term “irrigation and drainage” shall refer to the business of irrigating farmland or draining waterlogged farmland.

  The term “prevention and control of plant diseases and elimination of pests” shall refer to the business of forecasting, preventing and controlling plant diseases and insect pests in agriculture, forestry, animal husbandry and fishery.

  The term “agriculture and animal husbandry insurance” shall refer to the business of providing insurance for plants and animals being grown and reared in the planting industry, the aquatics breeding industry and animal husbandry.

  The term “relevant technical training” shall refer to the business of technical training in relation to agriculture by means of mechanical cultivation, irrigation and drainage, prevention and control of plant diseases and elimination of pests, and for the purpose of enabling peasants to acquire knowledge in agriculture and animal husbandry insurance.

  The scope of the tax exemptions for the business of breeding of and preventing and controlling disease in poultry, livestock and aquatic animals shall include the business of providing pharmaceuticals and medical apparatus in connection with such labour services.

  5. For the purposes of Item 6 of the first paragraph, the term “cultural activities organized by memorial halls, museums, cultural centres, art galleries, exhibition halls, painting and calligraphy galleries, libraries and protected cultural relic work units” shall refer to cultural activities within the scope of the tax item of culture and sports that are organized by such work units at their own sites. The term “revenue from ticket sales” of such work units shall refer to revenue from the initial sale of admission tickets.

  The term “revenue from ticket sales for cultural and religious activities organized by religious sites” shall refer to revenue from the sale of admission tickets for cultural and religious activities organized by temples, mosques and churches.

  Article 27 For the purposes of Article 8 of the Regulations, the scope of applicability of the minimum amount subject to business tax shall be limited to individuals.

  The ranges of the minimum amount subject to business tax shall be as follows:

  For those that pay tax on a periodical basis, the minimum amount subject to tax shall be a monthly amount of business of Rmb 200 - Rmb 800; and

  For those that pay tax each time the liability to pay tax arises, the minimum amount subject to tax shall be a turnover of Rmb 50 each time or day.

  Taxpayers whose amount of business reaches the minimum amount subject to tax shall calculate and pay business tax in accordance with the total amount of business.

  The taxation authorities under the People's Governments of the provinces, autonomous regions and centrally-governed municipalities shall determine, within the prescribed ranges and in accordance with the actual circumstances, the minimum amounts subject to tax to be applied in their regions and shall report the same to the State General Administration of Taxation for the record.

  Article 28 If the method of advance collection of payment is adopted for the assignment of leaseholds or the sale of immovable property by a taxpayer, the taxpayer's obligation to pay tax shall arise on the day of receiving the advance payment.

  If a taxpayer engages in an act of constructing by oneself as mentioned in Article 4 of these Rules, the obligation to pay tax on such act shall arise on the day on which it sells the building constructed, collects the turnover in full or obtains a voucher on the basis of which payment of turnover may be demanded.

  If a taxpayer grants immovable property to another party without consideration, its obligation to pay tax shall arise on the day on which the ownership of such immovable property is transferred.

  Article 29 For the purposes of Article 11 of the Regulations, the term “other withholding agents” is defined as follows:

  1. where work units or individuals outside China that do not maintain business establishments in China carry out taxable acts in China, their agents shall be the withholding agents for their amounts of tax payable; where they do not have agents, the assignees or purchasers shall be the withholding agents;

  2. where tickets are sold by another party for a performance carried out by a work unit or an individual, the ticket seller shall be the withholding agent for the tax payable by such work unit or individual;

  3. where the agent for a performance is an individual, the ticket seller shall be the withholding agent for the payable tax on the agent's business of organizing the performance.

  4. the primary insurer shall be the withholding agent for re-insurance business;

  5. where an individual assigns other intangible assets as mentioned in Item 2 of Article 12 of the Regulations, the assignee shall be the withholding agent for the tax payable on the assignment.

  Article 30 Where a taxpayer that provides taxable labour services in another county (municipality) must submit tax returns and pay tax to the taxation authorities in charge at the place where the labour services are provided but fails to do so, the taxation authorities in charge at the place where the office of such taxpayer is located or where such taxpayer resides shall collect the unpaid tax.

  Article 31 A taxpayer that contracts for a project in another province, autonomous region or centrally-governed municipality shall submit tax returns to the taxation authorities in charge at the place where the office of such taxpayer is located.

  Article 32 Where a taxpayer carries out taxable acts within its own province, autonomous region or centrally-governed municipality and needs to change its place for tax payment, such change shall be determined by the taxation authorities under the People's Governments of the provinces, autonomous regions and centrally-governed municipalities.

  Article 33 The term of tax payment for the finance industry (except pawnbroking) shall be a quarter of a year.

  The term of tax payment for the insurance industry shall be one month.

  Article 34 For the purposes of these Rules, the terms “above” and “below” shall include the numbers themselves or the level itself.

  Article 35 These Rules shall be interpreted by the Ministry of Finance or the State General Administration of Taxation.

  Article 36 These Rules shall be implemented as of the date of implementation of the Regulations. At the same time, the PRC, Business Tax Regulations (Draft) Implementing Rules promulgated by the Ministry of Finance on 28 September 1984 shall be repealed.

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