Equity is a comprehensive right of the shareholders of a limited liability company or a joint stock limited company to the personal and property rights of the company. It is the right of the shareholders to obtain economic benefits from the company and participate in the operation and management of the company based on their shareholder qualifications. The ownership structure and the type of shareholders determine the operation of the company, and the importance in corporate governance is self-evident. At the same time, the company's equity structure, especially the type of shareholders, to a large extent, also directly affects the tax cost of each shareholder, and then affects the return of shareholders. As the saying goes, "Nothing is certain in this world except death and taxes." China's tax law system is becoming more and more perfect, tax collection and management is becoming more and more standardized, and paying taxes according to law is the legal obligation of every taxpayer. Although the tax obligation is unavoidable, we can optimize the payment of tax in a legal means or way within the scope of the law, which is what we usually call tax optimization. Companies with a high level of corporate governance tend to design a more complex corporate equity structure based on factors such as legal and tax costs, and the types of shareholders are also more complex, as shown in the figure "Ant Financial equity Structure" below. However, in business practice, most enterprise founders tend to focus only on the issue of corporate control in the equity structure, but ignore the issue of tax optimization in the equity structure, resulting in heavy tax burden for shareholders in the link of holding equity or transferring the company's equity, and the final income is greatly reduced. To be specific, shareholders holding equity mainly involves income tax issues; Shareholder transfer involves income tax, value-added tax, additional tax and stamp duty, but income tax is the main component, which has the greatest impact on shareholders' tax burden. This paper will focus on the income tax of shareholders holding and transferring the company's equity, which can be used as a reference for enterprises when building the company's equity structure or determining the type of shareholders.

I. The types of shareholders and the significance of tax law

In the practice of corporate governance, the main types of shareholders are natural persons or companies. In the income tax law system of our country, the natural person shareholders and the company shareholders apply different tax laws, the tax structure is different, the tax law meaning is different. The Individual Income Tax Law and relevant laws and regulations shall apply to natural person shareholders; Corporate shareholders shall be governed by the Enterprise Income Tax Law and relevant laws and regulations. In addition to natural person shareholders and company shareholders, there are also sole proprietorship shareholders and partnership shareholders in corporate governance practice. Although the corporation, sole proprietorship and partnership are one of the legal forms of enterprise in China, there are great differences in the income tax law. The sole proprietorship and partnership are not subject to the Enterprise Income Tax Law and are not taxpayers within the scope of the Enterprise Income Tax Law of our country. According to the relevant regulations, the sole proprietorship and partnership are not subject to enterprise income tax, the sole proprietorship is the taxpayer of its investment, and the partnership is the taxpayer of its partner. Therefore, in the composition of corporate shareholders, the income tax law of shareholders of unincorporated enterprises such as natural person shareholders, company shareholders and partnership enterprises has different meanings, and there are great differences in tax types, tax rates and tax calculation methods.

Second, the issue of equity income tax

The income tax problem of shareholders holding equity mainly refers to the income tax problem involved when shareholders hold corporate equity to obtain dividends and bonus income. At this stage, the individual income tax law applies to dividends and dividend income obtained by natural person shareholders holding company equity, which can be divided into two situations: (1) When natural person shareholders of unlisted companies obtain dividends and dividend income, proportional tax rate is applicable, and the tax rate is 20%. For example, natural person A holds 10% of the equity of Company A (non-listed company) in his personal name, and the natural person shall apply 20% tax rate when receiving 10 million investment dividends of Company A, pay 2 million personal income tax, and be withheld and paid by Company A, and the actual income is 8 million yuan. (2) Listed companies (including New third Board listed companies) natural person shareholders during the holding period to obtain dividends, dividend income, the implementation of differentiation policy. Among them, if the holding period exceeds 1 year, the dividend and bonus income will be temporarily exempted from individual income tax; If the holding period is more than 1 month to 1 year (including 1 year), the dividend income is temporarily reduced by 50% and included in the taxable income; If the holding period is within 1 month (including 1 month), the dividend and bonus income shall be fully included in the taxable income amount; The above income shall be subject to individual income tax at a uniform rate of 20%. For example, if A natural person holds 1 million shares of Company A (listed company) in his personal name and the holding period exceeds 1 year, the natural person does not need to pay personal income tax when receiving 10 million dividends from Company A.

Corporate income tax law applies to dividends and dividend income from shareholders holding company equity, which can be divided into two situations: (1) According to the relevant provisions of the Enterprise Income Tax Law, dividends, dividends and other investment income obtained by resident enterprises from resident enterprises are temporarily exempt from income tax. Therefore, if the type of shareholders of the target company (resident enterprise) is a company (resident enterprise), the shareholders of the company do not need to pay enterprise income tax when they obtain dividends or dividends and other equity income from the target company. As long as the shareholders of the company do not continue to distribute dividends or bonuses to their natural person shareholders, there will be no effective income tax liability. (2) In addition to the above circumstances, if the shareholders of non-resident enterprises receive dividends, bonuses and other investment income from the company, 25% enterprise income tax shall be applied after the final settlement, except for high-tech enterprises. For example, natural person A holds 10% of the equity of Company A (resident enterprise) with its own company (resident enterprise), and the company does not need to pay corporate income tax when it receives 10 million dividends from Company A. Another example is that natural person A invests in A partnership enterprise (resident enterprise), and then Enterprise A invests in listed company B (resident enterprise); In the above shareholding structure, partnership A does not belong to the taxpayer of enterprise income tax, so Partnership A does not have to pay enterprise income tax when it obtains the dividend distributed by the listed company. According to the Notice of the State Administration of Taxation on the Implementation of the Provisions on the Imposition of Individual Income Tax on Investors of Sole Proprietorship Enterprises and Partnership Enterprises (State Tax Letter (2001) No. 84), in the name of partnership enterprises, foreign investment is divided into interest or dividends and dividends, and the income of each investor shall be determined according to the principle of first division and then tax. The individual income tax of each partner shall be calculated on the basis of the taxable items of "interest, dividend and bonus income" and shall be withheld and paid by the partnership. Therefore, in the above shareholding structure, the tax obligation is the natural person, and the individual income tax rate of 20% is applicable according to "interest, dividend and bonus income".

Third, the transfer of equity income tax issues

The income tax related to shareholders' transfer of equity mainly refers to the income tax related to shareholders' transfer of corporate equity. As far as the transfer of company equity by natural person shareholders is concerned, it can be divided into two situations based on whether the target company is a listed company: (1) When the natural person shareholder transfers the company equity of the non-listed company, the natural person shareholder shall pay personal income tax in accordance with the corresponding provisions of China's individual income tax law, the tax rate is 20%, and the specific transfer is withheld and paid by the transferee. For example, if natural person A holds 10% of the equity of Company A (non-listed company) in the name of an individual and makes a profit of 10 million yuan after deducting the acquisition cost and reasonable expenses after transferring the equity, the income tax rate of 20% is applicable, and the individual income tax of 2 million yuan is paid, and the actual income is 8 million yuan. (2) When natural person shareholders of listed companies transfer company shares, they are divided into restricted shares and tradable shares, and the policies are different. When a natural person shareholder of a listed company transfers restricted shares, it shall pay individual income tax at a rate of 20% in accordance with the corresponding provisions of the Individual Income Tax Law of China. According to the tax exemption policy at the present stage, if the transfer of listed companies (including the new third Board listed enterprises) tradable shares, there is no need to pay income tax. Therefore, at this stage in the secondary market trading of listed companies in the tradable shares of the actual does not pay personal income tax.

With respect to the transfer of company equity by the shareholders of the company, according to the relevant provisions of enterprise income tax at present, the shareholders of the company do not need to pay income tax when transferring the equity of the target company, but apply the enterprise income tax rate of 25% after the final settlement of the enterprise (except high-tech enterprises); If the company has other operating losses, the enterprise will not necessarily incur the actual income tax burden when it makes the annual final settlement. For example, if natural person A holds 10% equity of Company B through Company A under its name and makes a profit of RMB 10 million after deducting acquisition costs and reasonable expenses after transferring the equity, the company does not pay enterprise income tax in the transfer of equity, but applies 25% enterprise income tax rate according to the final operating income of the enterprise after the final settlement of the enterprise. The amount of income tax paid depends on the overall operation of the company. Another example is that A natural person invests in A partnership, and then A partnership invests in B company, holding 10% of the shares of B company. In the above shareholding structure, when partnership A sells 10% equity of Company B, it does not pay corporate income tax; When a natural person A makes foreign investment in the name of a partnership enterprise, it is necessary to determine the income of each investor according to the principle of division before tax, and calculate the individual income tax of each partner according to the taxable item of "individual business income", which shall be withheld and paid by the partnership enterprise. Therefore, in the above shareholding structure, the tax obligation is the natural person, according to "self-employed income", applicable to the difference of 5%-35% progressive tax rate. It should be noted that investment partnerships currently have a one-time option when applying income tax policy.

To sum up, in terms of corporate ownership structure and types of shareholders, natural person shareholders, company shareholders, partnership shareholders and other unincorporated shareholders have different legal meanings in tax law, and their tax burden costs are also different. For the same equity interests, different shareholding structures also have certain differences in tax burdens. Therefore, when the company's shareholders build the shareholding structure or determine the type of the company's shareholders, they should not only consider legal issues, but also consider the tax burden cost of the company's shareholders holding or transferring equity, so as to prepare for a rainy day.