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MindMap Gallery The main changes in the new company and how to deal with them
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The main changes in the new company and how to deal with them
This is a mind map about the main changes in the new company and how to deal with it. It is full of useful information. Interested friends can refer to it!
Edited at 2024-01-14 08:40:04
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The main changes in the new company and how to deal with them
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Changes in the New Company Law
1. The company’s registered capital must be paid in full within 5 years
Article 47, Paragraph 1: The registered capital of a limited liability company shall be the capital contribution subscribed by all shareholders registered with the company registration authority. The capital contribution subscribed by all shareholders shall be paid in full within five years from the date of establishment of the company in accordance with the provisions of the company's articles of association.
Article 266 Paragraph 2: For a company that has been registered and established before the implementation of this law, if the capital contribution period exceeds the period stipulated in this law, unless otherwise provided by laws, administrative regulations or the State Council, it shall be gradually adjusted to the period stipulated in this law. Within the time limit; if the capital contribution period or amount is obviously abnormal, the company registration authority may require it to be adjusted in a timely manner in accordance with the law. Specific implementation measures shall be stipulated by the State Council.
young：
The subscription system was changed to a time-limited payment system, and the scope of application includes not only newly established companies, but also existing companies.
2. Investment in non-monetary assets
Article 48 Paragraph 1 Shareholders may make capital contributions in currency, or in kind, intellectual property rights, land use rights, equity, creditor's rights and other non-monetary properties that can be valued in currency and transferred in accordance with the law; however, legal and administrative Exceptions are made for property that cannot be used as capital contribution according to regulations.
young：
Newly added provisions for equity and debt to be contributed as capital
3. Accelerated expiry of the subscribed capital contribution
Article 54 If a company is unable to pay off its due debts, the company or its creditors whose claims have expired have the right to require shareholders who have subscribed for capital contributions but have not yet expired to pay their capital contributions in advance.
4. Shareholders can check accounting documents
Article 57, Paragraph 2: Shareholders may request to inspect the company's accounting books and accounting vouchers. If a shareholder requests to inspect the company's accounting books and accounting vouchers, he or she shall submit a written request to the company stating the purpose. If the company has reasonable grounds to believe that a shareholder's inspection of accounting books and accounting vouchers has improper purposes and may harm the company's legitimate interests, it may refuse to provide inspection and shall reply to the shareholder in writing and explain the reasons within 15 days from the date of the shareholder's written request. If the company refuses to provide inspection, the shareholder may file a lawsuit with the People's Court.
5. Clarify the profit distribution time
Article 212: If the shareholders' meeting makes a resolution to distribute profits, the board of directors shall make the distribution within six months from the date of the shareholders' meeting's resolution.
6. Capital reserves can make up for losses
Article 214, Paragraph 2: To make up for the company's losses from the public reserve fund, the discretionary public reserve fund and the statutory public reserve fund shall be used first; if it still cannot be made up, the capital public reserve fund may be used in accordance with regulations.
young：
For the first time, it is clarified that capital reserve can be used to make up for losses, but it should be used after surplus reserve to make up for losses. Note that making up for losses here is an accounting concept, not a corporate income tax concept.
7. The accounting firm’s right to decide on employment and dismissal
Article 215 The appointment and dismissal of an accounting firm that undertakes the company's audit business shall be decided by the shareholders' meeting, the board of directors or the board of supervisors in accordance with the provisions of the company's articles of association.
young：
Article 169 of the original Company Law stipulates that only the shareholders’ meeting and the board of directors can decide on the accounting firm The new company law gives the board of supervisors the same powers in terms of hiring and dismissal.
What should I do if I have not paid in the past?
Capital reduction divestment
individual shareholders Capital reduction and divestment
1. Amount recovered from divestment >Investment cost
Taxes need to be paid, and personal income tax is paid according to the "Income from Property Transfer" item.
Taxable income = equity transfer income obtained by an individual - original actual capital contribution (input amount) and related taxes and fees
Note:
(1) Equity income is full-scale income, including equity transfer price, It also includes non-priced income such as compensation and liquidated damages.
(2) The transfer of investment shares of unincorporated enterprises shall be treated as personal income tax according to the transfer of equity.
2. Amount recovered from divestment Low without justification
The tax bureau has the right to determine the equity transfer income and calculate and pay personal income tax.
3. The amount recovered from divestment is less than the investment cost, but there are legitimate reasons
No personal income tax is required.
Legal person shareholder divestment and capital reduction
Note: Corporate capital reductions generally need to be announced for 45 days, and the new company law will be implemented on July 1, 2024, so companies that want to reduce capital must pay attention to the time limit.
Equity change transfer
If it has been confirmed that the registered capital cannot be paid when due, if another company acquires it, you can consider transferring it and making an equity change transfer.
Finance and taxation deal with
VAT
individual shareholders transfer equity
Legal person shareholder transfer equity
Personal Income Tax
Transfer equity of unlisted companies
Taxed based on “income from property transfer”
Transfer equity of listed company
Temporarily exempt from personal income tax
Income from the transfer of restricted shares by individuals is subject to personal income tax at a proportional rate of 20% according to "property transfer income".
corporate income tax
Income or losses from the transfer of corporate equity investment = income from equity investment – cost of equity investment
young: If the amount of distribution payment made by the invested enterprise to the investor exceeds the accumulated profit distribution and accumulated surplus reserve of the invested enterprise but is lower than the investment cost of the investor, it is regarded as investment recovery and the investment cost should be offset.
The corporate income tax rate is 25%, and those that meet the conditions of small and low-profit enterprises can enjoy relevant discounts.
stamp duty
land value added tax
During the equity transfer process, if the value of the real estate accounts for a large proportion of the company's net assets, the tax authorities may determine that the essence of the equity transfer is the transfer of real estate and levy land value-added tax.
Cancellation of company
If the company has no actual business operations, it can be deregistered.
tax related question
Question one
Before the cancellation, the boss borrowed money from the company that was neither repaid nor used for production and operations.
This situation should be regarded as distribution of dividends, even if personal income tax is paid back
Question 2
There is retained tax credit before cancellation, and sales invoices are issued to affiliated companies.
It distinguishes whether there is a real transaction. Based on the real transaction, the goods corresponding to the input tax amount can be sold to the affiliated company, and then a sales invoice is issued to the affiliated company, and finally the retained tax credit is transferred to the affiliated company.
Question three
stamp duty
Self-examination of the company’s paid-in capital, capital reserves, operating accounts, and major contracts since the establishment of the company, etc.
Question 4
The book inventory was distributed to shareholders at the time of cancellation and no VAT was paid.
VAT is treated as sales, and VAT must be paid
Question 5
When canceling, the book inventory is greater than the actual inventory and no processing is done.
Find out the cause. If the damage is caused by poor management, the input tax should be transferred out.
Question 6
After the enterprise is deregistered, accounting books, accounting vouchers, invoices and other water-related materials are not kept for the specified period of time.
Tax-related information should be kept for ten years and must not be destroyed without authorization
Possible changes after the implementation of the new company law
Change 1: The company’s registered capital is getting smaller and smaller
In the future, newly registered companies may have registered capitals of hundreds of millions or billions. There will be more and more companies with small registered capitals of hundreds of thousands, 1 million yuan, or several million yuan.
Change 2: Changes in investment methods
Since the new company law stipulates a variety of ways for shareholders to contribute capital, and under the requirement that registered capital be paid in full within five years, if cash is not available, more and more non-monetary investments will be used, such as technology shares and physical investments. universal.
1. The concept of technology investment
(1) Technology investment and shareholding
Technology equity investment refers to the behavior of technology holders using technological achievements as intangible assets to invest in the company. Article 27 of the "Company Law" stipulates: Shareholders may make capital contributions in currency, or in kind, intellectual property rights, land use rights and other non-monetary properties that can be valued in currency and transferred in accordance with the law; however, laws and administrative regulations Exceptions are made for property that is stipulated not to be used as capital contribution. Non-monetary property used as capital contribution must be evaluated and verified, and the property must not be overvalued or undervalued. If laws and administrative regulations have provisions on valuation and valuation, those provisions shall prevail. Article 28 stipulates: “Shareholders shall pay in full and on time the amount of capital contributions they have subscribed for as stipulated in the company’s articles of association. If a shareholder contributes capital in currency, the full amount of the capital contribution shall be deposited into the bank account opened by the limited liability company; If the investment is made with non-monetary property, the transfer procedures of its property rights must be completed in accordance with the law." Therefore, the essence of technology investment is that technical personnel use their technological achievements as investment and invest in the target company. The technical investors obtain shareholder status and transfer the corresponding technological achievements to the company. Technology shares enjoy the same rights as capital shares and bear corresponding obligations as shareholders.
(2) Scope of “technology”
According to Article 1 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases (2020 Revision)", technological achievements refer to products, processes, materials and products made using scientific and technological knowledge, information and experience. Technical solutions for its improvements include patents, patent applications, technical secrets, computer software, integrated circuit layout designs, new plant varieties, etc. Technical secrets refer to technical information that is not known to the public, has commercial value, and for which the right holder has taken corresponding confidentiality measures. Based on the above provisions and practice, "technology" can be divided into two categories. One category includes intellectual property rights such as patents and copyrights that have obtained corresponding ownership certificates (hereinafter referred to as "patented technologies"). The other category is knowledge, information and experience other than patents and copyrights (hereinafter referred to as "non-patented technological achievements"). Non-patented technical achievements have considerable practical value and can enable the owner to obtain economic benefits or competitive advantages. They cannot be obtained from public channels and are kept secret. The owner has also taken appropriate confidentiality measures.
2. Procedures for technology investment
(1) Due diligence - clarifying property rights and practical value of technology
When investing in technology, the legality of technological achievements is particularly important, which directly affects whether the investment is qualified and whether the expected benefits can be achieved. Therefore, detailed investigations should be conducted on technical achievements, technical personnel, and even the previous work and research of technical personnel.
As far as patented technologies are concerned, the investor must be the legal right holder of the patent. In many cases, patented technology is a service invention, and the inventor's unit is the right holder of the patented technology. When investing in patented technology, you must obtain the consent of the inventor's unit and make the investment in the name of the inventor (or in advance Carry out agreed empowerment and equity distribution ratio). For investments in patented technologies, while reviewing the patent certificate, a copy of the patent register must be provided to confirm the current patentee, the validity period of the patent right, legal status, invalidation declaration, and patent implementation license agreement within the validity period. For technical achievements of non-patented technologies, if there are no official certification documents to prove their ownership and technical information, it is recommended to conduct a comprehensive inspection by verifying the technical information and hiring professionals. Through due diligence procedures, ensure that the technology to be invested is legal, valid, and has clear ownership. If the property rights of the technology are unclear, not only will it not be able to bring benefits from technology transformation to the target company, but it may also constitute joint infringement for the original rights holder.
(2) Valuation and pricing - clarify the consideration for technology investment
Articles 27 and 28 of the "Company Law" stipulate that shareholders shall pay in full and on time the amount of capital they subscribe for as specified in the company's articles of association. If shareholders contribute capital with non-monetary property, they must go through the transfer procedures of their property rights in accordance with the law. If a shareholder fails to pay capital contributions in accordance with the provisions of the preceding paragraph, in addition to paying the company in full, he shall also bear liability for breach of contract to shareholders who have paid capital contributions in full and on time. Article 9 of the "Judicial Interpretation III of the Company Law" stipulates that if an investor contributes non-monetary property and fails to evaluate and determine the price in accordance with the law, and the company, other shareholders or the company's creditors request to determine that the investor has failed to perform its capital contribution obligations, the People's Court shall entrust a legally qualified person to The appraisal agency assigns a price to the property. If the price determined by the assessment is significantly lower than the price specified in the company's articles of association, the people's court shall determine that the investor has not fully performed its capital contribution obligations in accordance with the law.
Therefore, technological achievements as investment must be evaluated and valued. The “evaluation” here includes entrusting a professional evaluation agency to evaluate the value of the technology, as well as shareholders agreeing on the price of the technology without evaluation. Since it is often difficult to have objective evaluation standards and methods for non-patented technologies, in practice shareholders usually agree on the price of technology shares among themselves. In this regard, as long as there is no obvious unfairness, the court will generally respect the autonomy of the parties.
For example, in the (2019) Guangdong 03 Min Zhong No. 18309 Judgment, the Shenzhen Intermediate People's Court held that the stipulation in Article 18 of the "Investment Agreement" showed that the company's shareholders confirmed that Liu had negotiated a price for non-patented technology to buy shares. This agreement does not violate the mandatory provisions of laws and administrative regulations, is the true expression of intention of all parties, and should be legal and valid.
The Shaoxing Intermediate People’s Court pointed out in the (2018) Zhejiang Minzhong No. 4448 judgment that the cooperation agreement was the true expression of the intentions of each shareholder, indicating that each shareholder knew that Wu’s technology played a key role in the company’s operations. In fact, the company’s production and operation There is indeed a heavy reliance on the technology provided by Wu, so the discount of 300,000 yuan for the technology investment is not unfair and is within a reasonable range. Moreover, judging from the objective circumstances of this case, there is no realistic possibility of evaluating the technology investment. At the same time, the investment agreement did not violate the provisions of the company's articles of association, so the technology investment should be deemed valid.
In addition, there are two points that need to be noted when negotiating prices. First, if non-patented technology involves state-owned assets, an appraisal method must be used. Second, when the company's external creditors raise objections to the value of the technology in the technology investment and there is corresponding evidence, the court may entrust a specialized evaluation agency to evaluate the target technology.
(3) Clear delivery - ensuring complete transfer of technology
The "Company Law" clearly stipulates that capital contributions must go through property rights transfer procedures and the technology must be transferred to the name of the target company. The investment agreement should make a comprehensive agreement on the delivery of technological achievements to ensure that the investor fully fulfills its investment obligations.
(1) Clarify the delivery obligations of the investor. In addition to requiring the investor to transfer technological achievements to the target company, the investor should also be required to provide comprehensive technical information, and it should be agreed that the investor has the obligation to provide technical guidance. Depending on the technical achievements, it can be stipulated in the contract that the technical party will handle the corresponding ownership change registration or provide all data, experience, and information closely related to the technology, and clearly agree on what technical data will be provided and how to provide it, etc. Delivery standards. If the investor cannot prove that it has fulfilled its obligation to transfer and deliver technological achievements to the target company, it is likely to be deemed that the investment was false. In the (2019) Hebei 01 Minzhong No. 6551 case, the court held that: if a shareholder makes a non-monetary investment, the criterion for determining whether the capital contribution obligation has been fulfilled is to complete the property rights transfer procedures to the company and the actual delivery of the non-monetary property. The non-monetary property contribution involved in this case is the "triazine ring" production process technology. If the technology is a practical technology and proprietary technology according to the defendant, and the property ownership cannot be transferred through registration, the technical data should also be handed over to show delivery. , and the implementation will be supervised by all shareholders to ensure that the technology is mastered and exclusively enjoyed by the company. The defendant cannot provide proof of delivery, and because the company entered bankruptcy liquidation procedures before it was put into production after its establishment, it cannot prove that the defendant has completed delivery and fulfilled its investment obligations by having put into production and application and the company has actually mastered the technology. It should be determined that The defendant failed to fulfill its capital contribution obligation.
(2) Agree on acceptance terms. Before the expiration of the investment period (or within the agreed period), all parties shall jointly conduct acceptance inspection. Those who pass the acceptance inspection shall jointly sign the acceptance certification document. If the acceptance fails, the technology investor shall bear the corresponding liability for breach of contract or pay back the investment in currency.
3. Risks of technology investment and suggestions for countermeasures
(1) Issues regarding ownership of rights to technological achievements
1. Determination of ownership of rights
The ownership of the technology used for investment should be clearly agreed upon at the time of investment. If no detailed agreement is made, the court will generally determine ownership based on the provisions of Article 16 of the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Technology Contract Dispute Cases", that is, “If a party contributes capital to an enterprise with technological achievements but does not clearly agree on the ownership, and the enterprise that receives the investment claims that the technological achievements belong to it, the people’s court should generally support it, but the value of the technological achievements is in obvious proportion to the amount of investment accounted for by the technological achievements. Except for those that unreasonably harm the interests of investors."
It is recommended that when investing in technology, a clear agreement should be made on the ownership of the rights to the technical achievements, including who will own the rights to future technology upgrades to avoid subsequent disputes.
2. Risks of unclear ownership
The investor shall legally enjoy the technology invested and shall have the right to dispose of it. If the technological achievements belong to other companies or organizations, or if there are exclusive rights, the investment may involve legal risks such as unauthorized disposal and breach of contract, which will affect the operations and earnings of the target company.
The situations in the following two cases can give us inspiration for dealing with related risks:
(1) In the Qinghai Provincial Higher People’s Court (2019) Qingmin Final Case No. 236, the court held that the party concerned became a shareholder of other companies through patented shares in his own name without convening a shareholders’ meeting. This behavior harms the interests of the company and may harm the interests of other third parties and creditors, so it should be deemed invalid.
(2) The Supreme People's Court (2011) Civil Ruling No. 1420 held that as one of the co-owners of the patent right, it has no right to license a third party to use the patent without the consent of the other co-owner of the patent involved in the case. Exclusively implement the patent involved. Moreover, the other co-owner of the patent right involved in the case was not ratified or the right to dispose of the patent involved was not obtained afterwards. Therefore, the patent license contract is invalid.
Therefore, in addition to paying attention to the technology ownership issues of the investment, you can also require technology investment shareholders to issue a commitment letter as an auxiliary means of risk control, promising that if the technology used for investment has rights defects or other disputes cause losses to the target company, Compensation should be made.
(2) Risks of investment in non-patented technologies
Since non-patented technologies have not been registered, investment in non-patented technologies should be treated more cautiously. In practice, the following situations require special attention:
1. False non-patented technology
Non-patented technology investors use false publicity, packaging and other methods to cause other shareholders to have a wrong understanding of the "technology", leading other shareholders to agree to the technology investor's investment with false technology. In the (2020) Zhejiang 01 Minzhong No. 7901 case, several shareholders of technology investment did not possess the so-called non-patented technology involved in the case. They spent money to buy packaged "fake technology", and the company's increased registered capital was untrue. of. None of the shareholders made capital contributions with real, legally transferable "non-patented technology." In this case, each shareholder's capital increase, shareholder meeting resolutions, the company's amendments to the articles of association, and industrial and commercial changes registration, etc., were all acts to cover up false capital contributions. Accordingly, the court determined that the untrue investment was concealed in a legal form to achieve the purpose of falsely reporting the registered capital, and the investment was deemed invalid.
2. Non-patented technologies with uncertain development prospects
Due to the uncertainty of the future development of non-patented technologies, it is impossible to predict whether the technology can obtain the corresponding qualifications, achieve production and profitability expectations. Generally speaking, the court believes that this situation is a commercial risk, and it is up to the investors to judge and bear it. In the (2019) Guangdong 03 Minzhong No. 18309 case, the technical achievements could not be profitable without qualification certification. However, the court held that investment behavior, as a for-profit commercial behavior, itself has the attributes of coexistence of risks and benefits, and should follow the "prudent investment" According to the business principle of "at your own risk", each investor should bear corresponding responsibilities for investment and operation risks. Although the technology investment shareholder failed to help the company obtain qualification recognition, the breach of contract by the technology investment shareholder did not constitute a fundamental breach of contract and therefore did not meet the statutory contract termination conditions.
In order to minimize investment risks caused by technical information asymmetry, technology ownership flaws, technology research and development effects, and responsibility sharing can be agreed upon in advance. we suggest:
In the investment agreement, the technology investor's liability for breach of contract for technical defects, technical research and development, and failure to meet mass production standards is stipulated to ensure that the target company can successfully obtain the corresponding technology and use the technology to generate actual productivity, etc. If subsequent risks arise due to the technology itself, even if it does not constitute a fundamental breach of contract and the shareholder agreement cannot be terminated and the shareholder status is revoked, the technology investor can still be required to assume liability for breach of contract to recover part of the losses.
In addition, during business negotiations, the feasibility of signing a gambling agreement or agreeing on buy-back terms can also be discussed, which to a certain extent will encourage technology investors to increase their research and development efforts on technology.
3． Pay attention to whether technical personnel have signed confidentiality and non-compete agreements with their original employers.
Non-competition restrictions mean that after the termination or rescission of the labor contract, the employer and the employees who know the company's business secrets or have other significant impacts on the company's operations are not allowed to produce similar products, operate similar businesses, or have other competitive relationships within a certain period of time. If you hold a position in an employer, you are not allowed to produce similar products or operate similar businesses that compete with the original employer. According to Article 24 of the Labor Contract Law, persons subject to non-competition restrictions are limited to the employer’s senior managers, senior technical personnel and other personnel with confidentiality obligations, and these personnel are often also core team members of technology investors. In order to avoid the adverse impact on the target company caused by technical personnel's violation of the non-competition agreement, before signing the technology equity agreement, in addition to confirming that the ownership of the technology is clear and undisputed, it is also necessary to confirm that the technology equity investors and their teams There is no confidentiality or non-competition agreement between the member and the original employer, or the confidentiality or non-competition period stipulated in the relevant agreement has expired.
(3) Things to note when transferring technological achievements
The transfer of technological achievements is a key procedure for technology investment. Therefore, it is particularly important for technology investors to sign a patent (or technology) transfer contract with other shareholders and target companies. The transfer contract should specify the following contents:
1. Technology transfer procedures
(1) Patented technology
For the transfer of patented technology, a written transfer contract must be signed and registered with the Patent Office in accordance with Article 10 of the Patent Law (2020 Amendment).
In addition, if the transfer of the patent under application is involved, the applicant (i.e., the technology investor) should transfer the patent application rights to the target company, and the target company will continue the patent application process and become the patentee.
Note 1 Article 10 of the "Patent Law of the People's Republic of China (2020 Amendment)":
If a Chinese unit or individual transfers patent application rights or patent rights to foreigners, foreign enterprises or other foreign organizations, it must go through the procedures in accordance with the provisions of relevant laws and administrative regulations.
When transferring patent application rights or patent rights, the parties concerned shall enter into a written contract and register it with the patent administration department of the State Council, which shall make an announcement. The transfer of patent application rights or patent rights takes effect from the date of registration.
(2) Non-patented technology
For the transfer of non-patented technology, the technology investor and all other shareholders need to deal with the non-patented technology used for investment, including but not limited to the technology solution description, rights holder, application value, delivery requirements, and the increase or decrease in technology value, etc. Agree.
2. Things to note in technology transfer contracts
For the transfer contract of patented technology, the nature of the rights to be transferred should be clearly stated, that is, the ownership transfer of patented technology should be clearly stated. In addition, it should be checked whether the patent technology information in the transfer contract is consistent with the registration information of the patented technology.
For non-patented technology transfer contracts, the transfer agreement needs to specify: the obligee of the non-patented technology (one or more people), the content of the non-patented technology and related technical data, and the ownership of the property rights after the investment in the non-patented technology. All legal rights such as patent applications and copyrights owned by the target company after the non-patented technology is invested will belong to the target company.
Whether it is patented technology or non-patented technology, when signing a technology transfer contract, the transfer of the technology and the transfer of the rights attached to the technology should be included. All parties must not only stipulate in the transfer contract that the technology investor will hand over technical data and provide technical guidance, but also make it clear that the resignation of the investor or proprietary technical personnel will not result in the company's loss of rights to the proprietary technology.
Based on the special attributes of technology, in order to ensure the interests of all parties, the company should also agree with the technology investors or proprietary technical personnel on the confidentiality obligations of each party and the corresponding liability for breach of contract.
4. Risks and response suggestions after technology investment
(1) Technology depreciation/failure of subsequent technology research and development
Although Article 30 of the Company Law stipulates that after the establishment of a limited liability company, if it is found that the actual value of the non-monetary property used as capital contribution to establish the company is significantly lower than the value specified in the company's articles of association, the shareholder who made the capital contribution shall make up the difference. ; Other shareholders at the time of company establishment bear joint and several liability. However, Article 15 of the "Judicial Interpretation III of the Company Law" distinguishes between the depreciation of non-monetary property used for capital contribution: if the capital contribution depreciates due to market changes or other objective factors, the company, other shareholders or creditors request the capital contribution If a person bears the responsibility to make up capital contribution, the people's court will not support it. Unless otherwise agreed by the parties. From the above provisions, the following referee rules can be derived:
1. If the technology investment property depreciates due to objective factors, the technology investment shareholders cannot be required to bear the responsibility for making up the capital contribution unless otherwise agreed by the parties;
2. If the technology investment property depreciates due to non-objective factors, such as defective investment, fraud, inactivity or malicious leakage of technical information, the investing shareholders may be required to bear the responsibility of making up the difference;
3. Regarding the devaluation of technology investment property, if the parties have an agreement, the agreement shall be followed.
We suggest that the capital contribution agreement clearly stipulates the depreciation of technology investment property, the standards for determining the extent of depreciation, and the responsibilities, such as making up capital contributions, making corresponding adjustments to equity ratios, compensation for losses, and standards for determining losses, so as to avoid the possibility of misunderstandings to the greatest extent possible. There is no agreement or the agreement is unclear, resulting in irreparable losses.
(2) Attribution of innovation results
Under normal circumstances, after technology investment, the innovation results based on the invested technology will be recognized as employee inventions, and the company will be the owner of the innovative technology. For example, the Beijing Higher People's Court stated in the (2003) Gao Min Zhong Zi No. 61 Civil Judgment that after technology investment and equity participation, the subsequent improvement results, if there is no agreement between the two parties, should be regarded as service inventions and belong to the company.
But there is another view on the issue of attribution of innovation results. For example, the Guangdong Provincial Higher People's Court pointed out in the (2017) Guangdong Civil Court No. 2403 Civil Judgment that "subsequent upgrade results" mainly refer to new technologies developed based on the company's material and technical conditions and on the basis of equity investment technology, and should not The expanded explanation includes all technologies developed after becoming a shareholder, as well as technologies that have been developed before becoming an investor.
After careful study of relevant cases, we found that the court actually makes judgments on the ownership of technological innovation results based on the following two points: 1. Whether the innovation results are research and development based on the technology in which the shares are invested; 2. Whether the innovation results mainly use the company's materials and technology condition. In this regard, we suggest that the ownership of innovative technological achievements can be clarified in the investment agreement. For example, as long as the innovative technology is developed after the technology investment, it will belong to the company.
(3) Binding of technical personnel
In addition to the value of technological achievements themselves, their R&D personnel are also indispensable. Therefore, how to deeply integrate the technical personnel of the existing R&D team with the company is also an issue that the company needs to consider. We give the following suggestions:
1. Join a new company
In the investment agreement, it is stipulated that the technical team will join the new company collectively. After technology investors invest in the company with technology, the company usually requires the technical party to actually work in the company based on the consideration of effective implementation and industrial promotion of the technology, and is responsible for forming a research and development team (or maintaining the original team) to conduct technology research and development, and the company will Pay wages, pay social security, etc. At this time, there is a labor relationship between the technical investor and his team and the company, and they have the status of "employee". The company can clearly agree on the specific work scope, duties, scope of technical achievements, reward and punishment mechanisms, etc. of the technical investors and their teams.
At the same time, both parties should sign confidentiality agreements, non-compete agreements, etc. to ensure the interests of all parties. Technology investors and their teams are deeply bound to the company, and the new technologies they develop based on the company's conditions and company-owned technologies should be classified as service inventions.
2. Equity incentives
When designing the initial equity structure, shareholders of all parties can, in addition to determining the price and equity ratio of technology shares, also require technology investors to assume certain cash contribution obligations (subscription and partial paid-in). After all, after actually paying a certain amount of cash, technology investors will have a stronger sense of responsibility for the company's operations, technological innovation and other issues.
All parties can negotiate to reserve a portion of the equity as options to incentivize R&D personnel. Company performance and scientific research achievements can be used as additional conditions for obtaining equity. It is stipulated in the investment agreement that the conditions for technology investors to obtain corresponding equity ratios, such as: passing tests, mass production, profitability (multiple levels can be set up), successful research and development of new technologies, etc., will be given to technology investors based on the performance goals completed at different stages. The corresponding options and exercise conditions of investors or technical team members.
In summary, technology investment can maximize the advantages of all parties, achieve all-round cooperation and integration of technology and capital, maximize business synergy, and greatly promote the long-term development of the company. However, it is undeniable that there is a certain degree of uncertainty in the development of technology, and the ownership of intellectual property rights attached to technology may also be disputed. Therefore, an optimal technology equity transaction structure and the design of core terms can improve the predictability of all parties, and also have It helps eliminate some concerns caused by information gaps, lays a solid foundation for the smooth and efficient implementation of the transaction and continued future cooperation, reduces the financial burden and compliance costs of the target company, and conducts transactions based on the advantages and core demands of both parties. Consideration to achieve the most effective cooperation. Of course, due to the differences in the equity structures and operating models of each company, the specific technology shareholding model should also be personalized based on the characteristics of the technology. This article only provides a preliminary discussion on the basic process and risk prevention of technology investment. Please correct me if there are any imperfections. In the future, with the continuous improvement of my country's laws and regulations and the advancement of practice, we look forward to sharing more relevant content with you and using this to have in-depth exchanges.
Change three: For existing companies, it may trigger a wave of capital reduction, cancellation and transfer
If the existing company cannot pay in the registered capital within the specified time, Capital reduction, equity transfer and cancellation are imperative.
Change 4: False investment and advance capital may become a problem
Due to the five-year capital contribution period limit, many companies may still be unable to make the actual payment upon expiration, and may use bridge funds to realize the funds in place, which is commonly referred to as advance capital and false capital contributions.
Change 5: The amount of external financing of enterprises may become larger
Small registered capital will affect the company's operating turnover. In the next step, it will become more and more common for companies to borrow external financing.
Change 6: The number of newly registered companies will decrease, and the number of shell companies will be greatly reduced.
Change 7: The probability of shareholders abusing the capital contribution deadline to avoid capital contribution responsibilities will be greatly reduced.
Does the company need to pay tax when it reduces its capital?
What we reduce is the registered capital. If it does not involve the company's undistributed profits, no real money is involved, and no money is transferred back to shareholders, then there is no tax issue involved.
When applying for capital reduction from the subscribed registered capital, as long as no money is taken from the company, only publicity and change registration are required.
If the company's registered capital has been paid in, the capital reduction will reduce the paid part. That is to say, during the capital reduction process, the money originally paid in needs to be taken away. If the money taken away exceeds the money paid in, then this part is Need to pay a tax.
Capital reduction and tax payment Two premises:
First: The company's registered capital consists of both paid-in and subscribed capital. When the capital is reduced, the paid-in part is reduced, and the subscribed part is also reduced, then there will be a reduction of paid-in registered capital.
Second: The company has undistributed profits. If the company redistributes undistributed profits when the paid-in registered capital is reduced, it may be necessary to pay taxes.
How to handle tax treatment for capital reduction and divestment
individual shareholders Capital reduction and divestment
Amount recovered with divestment >Investment cost
Taxes need to be paid, and personal income tax is paid according to the "Income from Property Transfer" item.
Taxable income = equity transfer income obtained by an individual - original actual capital contribution (input amount) and related taxes and fees
Notice:
1. Equity income is a full-scale income, including not only the equity transfer price, but also non-price income such as compensation and liquidated damages.
2. The transfer of investment shares of unincorporated enterprises shall be treated as personal income tax according to the transfer of equity.
Policy basis:
"Announcement of the State Administration of Taxation on the Collection of Personal Income Tax on Recovered Money from Individuals Terminating Investment and Business Operations"
The amount recovered from divestment is low without justifiable reasons
The tax bureau has the right to determine the equity transfer income and calculate and pay personal income tax.
policy in accordance with:
According to the "Announcement of the State Administration of Taxation on the Issuance of the Measures for the Administration of Personal Income Tax on Income from Equity Transfers (Trial)" (State Administration of Taxation Announcement No. 67 of 2014, hereinafter referred to as Announcement No. 67), the withdrawal of capital by individual shareholders must be funded by the company. , it is a company's equity recovery and an equity transfer, and personal income tax needs to be calculated and paid according to the equity transfer.
Amount recovered from divestment <investment cost, But there is a valid reason
No personal income tax is required.
Legal person shareholder Capital reduction and divestment
Case Analysis:
Company A and Company B respectively invested RMB 400,000 and RMB 600,000 to register Company C with a paid-in capital of RMB 1 million. Due to various reasons, Company A withdrew capital from Company C in accordance with procedures and obtained RMB 500,000 in cash. When the capital was withdrawn, C The company's undistributed profits are 80,000 yuan, the surplus reserve is 20,000 yuan, and the capital reserve is 150,000 yuan. How to handle the accounting? Does Company A’s divestment involve corporate income tax issues?
1. Account processing:
Borrow: Paid-in capital-Company A 400,000 yuan
Capital reserve 100,000 yuan
Loan: bank deposit 500,000 yuan
2. Enterprise income tax question:
The assets withdrawn by Company A from Company C are divided into 3 parts:
(1) The part equivalent to the initial investment should be recognized as investment recovery of 400,000 yuan, without corporate income tax;
(2) The part equivalent to the accumulated undistributed profits and accumulated surplus reserves of the invested enterprise calculated based on the reduction in paid-in capital, 10×40% = 40,000, should be recognized as dividend income and exempt from corporate income tax;
(3) The remaining portion is recognized as income from the transfer of investment assets and is subject to corporate income tax. Company A's corporate income tax payable = (50-40-4) × 25% = 15,000 yuan.
Under what circumstances can capital be reduced, and what are the ways for a company to reduce capital?
What situations Can capital be reduced?
1. Solve the problem of shareholder investment defects
If a shareholder is unable to pay the company's registered capital on time due to financial difficulties or other reasons, the shareholder can be exempted from the capital contribution obligation by reducing capital;
2. Adjust the company’s equity structure
The capital reduction of individual shareholders of the company or the capital reduction of different shareholders can change the shareholding ratio of each shareholder in the company;
3. Realization of shareholders’ equity
If shareholders are unable to transfer their equity, they can liquidate their equity through capital reduction;
4. Solve the company’s excess capital problem
Some companies have formed a large amount of surplus capital in the course of their operations, causing idleness and waste of capital in the company. Capital efficiency can be brought into play by reducing capital;
5. The company suffers losses
The company suffers serious losses, the gap between the total capital and the actual assets is too large, and the company's capital has lost its due legal significance in proving credit status;
6. Divest the company’s business and assets
The company may divest certain businesses and assets to shareholders based on operational management needs or strategic layout requirements.
Capital reduction Way
1. Equal ratio capital reduction and Unequal capital reduction
Equal-proportion capital reduction means that all shareholders of the company reduce their capital contributions to the company in the same proportion. This kind of capital reduction is relatively simple. The proportion of capital contribution of each shareholder remains unchanged, but the amount of capital contribution is reduced, and it does not involve a conflict of interest among the company's shareholders. Therefore, there is no need to value the company, negotiate a price (all shareholders obtain property from the company according to their shareholding ratio), or even sign a capital reduction agreement;
Unequal capital reduction means that only some shareholders reduce capital, or all shareholders reduce capital but in different proportions. This kind of capital reduction is more complicated, and there are conflicts of interest among shareholders. The company needs to be valued (capital reduction consideration = company valuation × shareholding ratio of capital reducing shareholders). The shareholders negotiate the price based on the evaluation and sign a contract. Capital reduction agreement.
2. Substantial capital reduction and Formal capital reduction
According to whether the company's net assets are reduced during capital reduction (or whether capital reduction consideration is paid to shareholders), it is divided into substantive capital reduction and formal capital reduction.
Substantial capital reduction means that while reducing the registered capital, the company also needs to pay capital reduction consideration to shareholders, thus reducing the company's net assets. For example, divesting the company's business and assets to shareholders is a typical substantive capital reduction.
Formal capital reduction means that only the amount of registered capital is reduced, the company does not need to pay shareholders the capital reduction consideration, and the company's net assets are not reduced. For example, capital reduction of registered capital that has not yet been contributed by shareholders is a typical form of capital reduction.
How to reduce company capital?
1. Make shareholders’ meeting resolutions or decisions (It needs to be signed by all shareholders and stamped with the official seal)
1. Contents of the resolution of the limited liability company: reduce the amount of subscribed registered capital, the specific amount of each shareholder's commitment for the reduction of subscribed registered capital, the method and date of capital contribution of each shareholder, and modify the company's articles of association accordingly;
① A limited liability company submits a shareholders' meeting resolution signed by shareholders representing more than two-thirds of the voting rights.
② A one-person limited liability company shall submit a written decision signed by shareholders
2. Contents of the resolution of a joint-stock company: reduce the amount of registered capital subscribed, specific methods for reducing the amount of registered capital subscribed, and amend the company's articles of association accordingly.
2. Modify the company’s articles of association
Modify the company's articles of association in accordance with the resolution or decision of the shareholders' meeting regarding the company's capital increase.
It mainly involves: the amount after capital reduction, the latest amount of capital subscribed by each shareholder, the method and date of capital contribution by each shareholder, etc.
3. Prepare balance sheet and property inventory
1. The balance sheet is divided into: assets and liabilities. The assets part includes current assets, long-term assets, etc., and the liabilities part includes current liabilities and long-term liabilities.
2. When preparing assets and liabilities, list each asset and liability in detail, indicate the amount of each asset and liability, check the accuracy of the amount of each asset and liability, and finally enter the compiled balance sheet data into the computer , that is, the preparation work is completed.
4. Notify creditors and external announcements.
The company shall notify its creditors within 10 days from the date of making the resolution to reduce capital, and shall publish an announcement in a newspaper at or above the provincial level within 30 days.
5. Pay off debts or provide guarantees
Creditors have the right to require the company to pay off debts or provide corresponding guarantees within 30 days from the date of receipt of the notice, or within 45 days from the date of announcement if no notice is received.
6. Handle industrial and commercial change registration
A company that intends to reduce capital must apply for industrial and commercial change registration 45 days from the date of announcement. If a company's change in registered capital involves changes or changes in paid-in capital, it must also register changes in paid-in capital or report changes.
Specific capital reduction process It's not complicated, There are three steps in total:
first step Announcement
The first step in applying for capital reduction is to publish a capital reduction announcement through the industrial and commercial system. The following are the specific steps.
①Log in to the National Enterprise Credit Information Publicity System, Click [Fill in corporate information]
If you have already registered a business liaison, you can log in directly; if you have not registered, you need to register a business liaison first.
②After logging in, Select [Fill in the company’s report to reduce registered capital]
③ Fill in the information based on the actual capital reduction situation, 【Save and publish】
④Click on the left side of the page [View the company’s reduction in registered capital], You can view/print capital reduction information.
The above capital reduction announcement has been released, and you need to wait for the 45-day publicity period. During this period, the company's creditors have the right to demand payment of debts or the provision of corresponding guarantees. The next step can only be taken after the 45-day publicity period has expired and there are no objections.
Step 2 Industrial and commercial change registration
Registration of industrial and commercial changes can be done offline or online.
To apply offline, go directly to the industrial and commercial bureau where you registered and submit the materials.
Materials required to be submitted for capital reduction and industrial and commercial changes:
Capital Reduction Filing Form
Shareholders' meeting resolution (decision) on capital reduction
Revised Articles of Incorporation or Amendment to Articles of Association
third step Get a new license
After submitting the materials, passing the review, and completing the industrial and commercial change of capital reduction, the entrusted agent or legal representative needs to bring the company's old business license to the government service hall, and print the new business license at the self-service terminal.
After receiving the new business license, the capital reduction process is officially completed, and the company's registered capital and other information will be updated with the industrial and commercial administration department.
The whole process takes about 2 months. Partners who need to reduce capital should plan in advance to avoid crowding and queuing in business and industry, which will affect the progress of the process.
Several questions about shareholders
Capital reduction divestment
1. Is divestment the same as capital reduction?
Answer: They are different. Although they both return investment from the invested enterprise, divestment is a one-time event and no shares will be retained after the divestment. Capital reduction only reduces the equity share, but some shares will still be retained.
2. Are divestment and equity transfer the same?
Answer: No, divestment is a matter between shareholders and the invested company, while equity transfer is a matter between shareholders.
3. From the perspective of company law, What should we pay attention to when divesting capital?
Answer: In the Company Law, Capital reduction needs to meet two points:
First, a shareholders’ meeting resolution needs to be passed;
The second is to notify and announce creditors in accordance with regulations, otherwise shareholders who withdraw their shares may bear joint liability for compensation.
The procedure is relatively complex, requiring the preparation of a balance sheet and property list, notifying and announcing creditors in accordance with regulations, negotiating debt repayments with creditors and providing guarantees, etc. It takes a long time, so it is suitable for companies with shareholder cooperation and no debt or very little debt.
shareholder dividend
Question one
If shareholders want to distribute dividends at the end of the year, must the dividend ratio be based on the capital contribution ratio?
Answer: Not necessarily. All shareholders can agree not to distribute dividends in proportion to their capital contribution if they sign a "Shareholders Agreement"
Question 2
The shareholders of Company A are not individual natural persons, but legal person shareholders who directly invest. If they receive a dividend of 2 million at the end of the year, how much corporate income tax do they need to pay?
Answer: Corporate income tax = 00,000 yuan
Question three
If the company is profitable, is it okay not to pay dividends to shareholders? Because there is a 20% personal tax on dividends
Answer: There is no requirement to distribute dividends. Whether to distribute profits and how much to distribute are within the scope of decision-making by the board of directors and shareholders' meeting. Shareholders cannot request the court to distribute profits on the grounds that the company's huge profits and long-term failure to distribute dividends to shareholders harm the interests of shareholders. This does not comply with legal regulations.
Question 4
What are the tax risks if a company forgets to withhold personal income tax on shareholder dividends?
Answer: There is a tax risk. Although the company is not a dividend taxpayer, as a withholding agent, if it fails to perform its withholding and payment obligations, it will be fined 50% to 3 times according to regulations, but no late payment fees will be charged.
Question 5
If a company obtains investment income that is not distributed in proportion to its equity capital contribution, can it enjoy the exemption from corporate income tax?
Answer: 1. Dividends may not be divided according to the proportion of capital contribution, but all shareholders need to agree 2. The company can enjoy the preferential exemption from corporate income tax if it obtains investment income that is not distributed according to the proportion of equity investment.
Question 6
Can the undistributed profits on the company's books be converted into paid-in capital of natural person shareholders? Is there a tax?
Answer: Yes. According to the "interest, dividend, bonus income" items, a 20% personal income tax is levied
Question 7
If a natural person partnership obtains dividends from the invested enterprise, where should the individual tax be paid?
Answer: Pay at the location of the partnership
Question 8
How does a sole proprietorship pay personal income tax on dividends received from invested enterprises?
Answer: Dividend income should be treated separately as the investor's personal income, and personal income tax should be calculated and paid according to the taxable items of "interest, dividends, and bonus income".
Personal owned enterprises
Legal Status
Does not have legal personality
Contributor
a natural person
Limitation of Liability
bear unlimited liability
tax management
personal tax
VAT
Understand the new company law in one picture