I. Legal basis
(1) Notice of State Taxation Administration of The People's Republic of China on the Collection of Value-added Tax and Business Tax on Auction Income (Guo Shui Fa [1999] No.40)
(II) Notice of State Taxation Administration of The People's Republic of China Municipality on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38)
(3) Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Printing and Distributing Provisions on Several Issues Concerning the Collection of Individual Income Tax (Guo Shui Fa [1994] No.89)
(4) The provisions of Item (1) of Article 1 in Annex 3 of the Notice of State Taxation Administration of The People's Republic of China of the Ministry of Finance on Incorporating Railway Transportation and Postal Services into the Pilot Project of Changing Business Tax to VAT (Caishui [20 13] 106).
Second, the tax-related treatment of auction calligraphy and painting
(1) Treatment of VAT and business tax
The Notice of State Taxation Administration of The People's Republic of China on Relevant Issues Concerning the Collection of VAT Business Tax on Auction Income Obtained by Auction Houses (Guo Shui Fa [1 999] No.40) stipulates that1.The extra-price fee charged by the auctioneer to the buyer for auctioning VAT taxable goods shall be taxed at a rate of 4%. If the auction goods fall within the scope of duty-free goods, they may be exempted from value-added tax with the approval of the competent tax authorities at the county level where the auction house is located. 2. The handling fee charged by the auction house to the entrusting party shall be subject to business tax.
Article 2 of People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Degenerate VAT Collection Rate Announcement (People's Republic of China (PRC) State Taxation Administration of The People's Republic of China Announcement No.2014 No.36) stipulates that Article 1 of the Notice of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC) on the Collection of VAT and Business Tax on Auction Income Obtained by Auction Houses (Guo Shui Fa [1999] No.40) is amended as "Collection of VAT at auction houses.
Notice of State Taxation Administration of The People's Republic of China, Ministry of Finance of People's Republic of China (PRC) on Incorporating Railway Transportation and Postal Services into the Pilot Project of Changing Business Tax to Value-added Tax (Caishui [20 13] 106), Appendix 3: Transitional Policy of Changing Business Tax to Value-added Tax stipulates that individual transfer of copyright is exempt from value-added tax.
Based on the above policies and regulations, for auction houses or auction companies to auction VAT taxable goods, all the extra fees charged to buyers are subject to VAT at the rate of 3%. Individual painters entrust the auction houses to auction their paintings and calligraphy, which can be exempted from VAT with the approval of the competent tax authorities at the county level where the auction houses are located. Business tax shall be levied on the handling fees charged by the auction house to the entrusting party.
(2) the treatment of personal income tax
1. Taxes and tax rates are applicable to auction artists' paintings and calligraphy.
Article 1 of the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38) stipulates that individuals who auction their personal property through the auction market shall pay taxes according to the following provisions:
(1) According to the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Printing and Distributing the Provisions on the Collection of Individual Income Tax (Guo Shui Fa [1994] No.089), the income obtained by auctioning the original or photocopy of the manuscript of the author's literary works is the balance of the transfer income minus 800 yuan (the transfer income is less than 4,000 yuan) or 20% (the transfer income is more than 4,000 yuan).
What we should pay attention to here is: how to define whether the manuscript of a written work is an original or a copy, and why individual income tax should be levied separately on the items derived from "remuneration for writing".
Article 4 of the Regulations for the Implementation of the Copyright Law of People's Republic of China (PRC) clearly explains that written works refer to novels, poems, essays, papers and other works expressed in written form.
According to the Individual Income Tax Law of People's Republic of China (PRC), the income from royalties refers to the income obtained by individuals from providing the right to use patents, trademarks, copyrights, non-patented technologies, and the income obtained from providing the right to use copyrights, excluding the income from royalties.
It can be seen that the original or copy of the manuscript of the auction text works will involve property rights other than personal rights in copyright, such as reproduction rights, distribution rights, rental rights, etc., which is a kind of income related to copyright. Therefore, the original or photocopy of the manuscript of the auction text works is different from the auction of other property, and personal income tax should be levied according to the item of "income from remuneration".
(2) When an individual auctions other property except the original manuscript and photocopy of a written work, the taxable income shall be the balance of the transfer income after deducting the original value of the property and reasonable expenses, and personal income tax shall be paid at the rate of 20% according to the item of "income from property transfer".
It should be noted that private property refers to all personal property such as calligraphy and painting, porcelain, jade, jewelry, stamp products, coins, ancient books, antiques, patents, non-patented technology and trademark rights.
Article 4 of the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38) stipulates that if a taxpayer cannot provide a legal, complete and accurate certificate of the original value of the property and cannot correctly calculate the original value of the property, the individual income tax shall be calculated and paid according to 3% of the transfer income; If the auction items are identified by the cultural relics department as cultural relics returned overseas, personal income tax shall be calculated and paid at the tax rate of 2% of the transfer income.
Based on the above policy, if an auction house or auction company auctions a painter's calligraphy and painting, its taxable income is the balance of the transfer income after deducting the original value of the property and reasonable expenses, and personal income tax is paid at the tax rate of 20% according to the item of "income from property transfer". If the original value certificate of calligraphy and painting cannot be provided legally, completely and accurately, and the original value of calligraphy and painting cannot be calculated correctly, personal income tax shall be calculated and paid according to the tax rate of 3% of the transfer income; If the auctioned calligraphy and paintings are recognized by the cultural relics department as cultural relics returned overseas, personal income tax shall be calculated and paid at 2% of the transfer income.
2. The auction of calligraphy and painting is taxed at the final auction price.
The Notice of State Taxation Administration of The People's Republic of China on Strengthening and Regulating the Collection of Personal Income Tax on Individuals Obtained from Auction (Guo Shui Fa [2007] No.38) stipulates that when collecting personal income tax on personal property auction income, the final auction price of the property shall be the transfer income. How to determine the final auction price? Article 51 of the Auction Law stipulates that the highest bid of a bidder shall be determined by the auctioneer or by other public means. According to this clause, the highest price that causes the auctioneer to drop the hammer is the final auction price. However, under special circumstances, Article 39 of the Auction Law stipulates that if the buyer fails to pay the price as agreed, he shall be liable for breach of contract, or the auctioneer may re-auction the auction target with the consent of the client. If the auction price of the auction target is lower than the original auction price, the original buyer shall make up the difference. That is, under special circumstances, the transfer income of personal property auction is the sum of the difference between the re-auction price and the original buyer.
For example, Zhang San commissioned an auction house to auction a calligraphy and painting, and Li Si became the buyer, with the highest price of 100 1000 yuan. But then Li Si went back on her word, thinking that the painting was not worth so much money and refused to pay the price as agreed. With Zhang San's consent, the auction house auctioned the calligraphy and painting again, but the price of the second auction was only 95 1000 yuan. According to the regulations, the original buyer Li Si should make up the difference between the second auction and the original auction price of 5 1000 yuan to Zhang San. In this case, the transfer income of Zhang San's calligraphy and painting auction is still 10 1000 yuan instead of 95 1000 yuan.
3. Auction calligraphy and painting can be deducted before tax with legal and valid certificates.
The Notice of State Taxation Administration of The People's Republic of China on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38) stipulates that when the taxable income is calculated by applying the item of "income from property transfer" to the auction income of personal property, the taxpayer shall deduct the original value of the corresponding property and the tax paid in the process of auctioning the property from its transfer income with legal and valid vouchers (official invoices supervised by the tax authorities, relevant overseas transaction documents or customs declarations, tax payment certificates, etc.). ).
First of all, the original value of the property refers to the price that the seller personally obtains the auction items. The determination of the original value of property is divided into five situations:
First of all, it is purchased through shops, galleries, etc. , and the actual price paid when purchasing the auction item;
Second, the actual price paid by the auction and the relevant taxes and fees paid for the auction;
Third, through the collection of ancestors, the expenses incurred by collecting auction items for them;
Fourth, the relevant taxes and fees generated when the auction is donated;
Fifth, it is obtained through other forms, and the original value of the property is determined with reference to the above principles.
Secondly, the taxes paid in the process of real estate auction specifically refer to the relevant taxes actually paid in the process of real estate auction.
Thirdly, reasonable expenses refer to the auction fees (commissions), appraisal fees, evaluation fees, catalogue fees, certificate fees and other fees actually paid by taxpayers in accordance with the regulations when auctioning property.
With regard to auction fees (commission), please refer to Article 56 of the Auction Law of People's Republic of China (PRC): "The client and the buyer may agree on the proportion of commission with the auctioneer. If the client, the buyer and the auctioneer have not agreed on the commission ratio and the auction is concluded, the auctioneer may charge the client and the buyer a commission not exceeding 5% of the auction transaction price. The proportion of commission collection shall be determined according to the principle of inverse proportion to the auction transaction price. If the auction is not completed, the auctioneer may charge the agreed fee to the client; If no agreement is reached, the client can be charged a reasonable auction fees. " Generally, the auction fees (commission) of buyers and sellers is below 10% of the auction transaction price, and the specific criteria for auction institutions to charge commissions from buyers and sellers are determined according to international practices and market conditions.
Article 6 of the Notice of State Taxation Administration of The People's Republic of China on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38) stipulates that taxpayers who can provide legal, complete and accurate original value certificates of property but cannot provide relevant tax and fee certificates shall not calculate and pay taxes according to the collection rate, and deduct the amount indicated on the original value certificates of property according to the facts, and calculate and pay individual income tax according to the provisions of the tax law.
For example, in 2005, Zhang, a resident of a city, commissioned an auction house to auction a calligraphy and painting he bought from the people at a price of 2 1000 yuan, and the final auction price was 50 1000 yuan. Assume that the value-added tax is 2 1 000 yuan, the urban maintenance and construction tax is 1.40 yuan, and the education fee plus 60 yuan (the auction fee and other expenses can be deducted according to the facts, which are ignored here for the convenience of calculation; Excluding other taxes and fees, the same below), the personal income tax payable by Zhang is = (510000-21000-140-60) × 20% = 91. Personal income tax payable = (501000-21000) × 20% = 91600 (yuan).
4, the implementation of the approved collection of personal income tax in two cases.
First, it is impossible to provide legal, complete and accurate proof of the original value of the property, and it is impossible to correctly calculate the original value of the property.
The Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38) stipulates that if a taxpayer cannot provide legal, complete and accurate proof of the original value of the property and cannot correctly calculate the original value of the property, the individual income tax shall be calculated and paid according to the tax rate of 3% of the transfer income; If the auction items are identified by the cultural relics department as cultural relics returned overseas, personal income tax shall be calculated and paid at the tax rate of 2% of the transfer income.
Here we should focus on the identification of "returned cultural relics from overseas". Cultural relics returned overseas are mainly identified by provincial cultural relics management committees (hereinafter referred to as cultural relics management committees) according to customs entry records, and auction institutions withhold and pay taxes at the rate of 2% according to the identification materials issued by cultural relics management committees. Compared with the collection rate of 3%, the collection rate of 2% reflects the state's encouragement and support for the auction of cultural relics returned from overseas in China.
For example, in 2006, Wang, a resident of a city, commissioned an auction house to auction a calligraphy and painting he bought from the people at a price of 20 1000 yuan. The final auction price was 60 1000 yuan, and Wang could not provide the original voucher for purchasing the calligraphy and painting. Therefore, it is necessary to pay personal income tax according to 3% of the transfer income = 601000× 3% =11800 yuan.
Second, it is regarded as a legal, complete and accurate proof of the original value of the property, and the original value of the property cannot be calculated correctly.
Article 5 of the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38) stipulates that if the contents of the original value certificate of the taxpayer's property are not standardized, or if an original value certificate of the property contains multiple auctions and the original value of each auction item cannot be confirmed one by one, it shall not be used as the calculation basis for deducting the original value of the property, and it shall be deemed that a legal, complete and accurate original value certificate of the property cannot be provided, and
For example, several calligraphy and paintings bought by Wang from abroad last year have been recognized as cultural relics lost overseas by the cultural relics department. He commissioned the auction house to auction one of them at the price of 100 1000 yuan, and the original value on the original value certificate he provided was the sum of the original values of several auction calligraphy and paintings. Therefore, Wang should pay personal income tax according to 2% of the transfer income =1001000× 2% = 21000 (yuan).
5, auction calligraphy and painting personal income tax declaration provisions
Article 7 of the Notice of State Taxation Administration of The People's Republic of China on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38) stipulates that the auction unit shall be responsible for withholding and remitting the individual income tax payable on the auction income of personal property, and shall file tax returns with the local competent tax authorities in accordance with regulations. Article 8 stipulates that when an auction unit withholds and pays the personal income tax payable by auctioning personal property, it shall fill in the tax payment certificate for the taxpayer, and clearly indicate the name of each auction item, the auction transaction price and the tax withheld and paid.
Three, the auction of calligraphy and painting tax planning
According to the Notice of State Taxation Administration of The People's Republic of China on Strengthening and Regulating the Collection of Individual Income Tax on Individuals Obtaining Auction Income (Guo Shui Fa [2007] No.38), the individual income tax on auction income can be calculated by two methods: the value-added part and the approved collection rate, leaving room for tax planning.
For example, Mr. Li bought a calligraphy and painting on 201000 yuan, and now the price of this calligraphy and painting has risen to 500 1000 yuan. If Mr. Li's individual tax is calculated according to the value-added part, the tax payable is (5001000-2001000) × (10% )× 20% = 541000 (Yuan
For lots with high original value and small appreciation, it is obviously more cost-effective to calculate the tax amount obtained by personal income tax with the value-added part. A picture of Mr. Zhang's calligraphy and painting just taken from the auction house not long ago. At that time, the auction price was 500 1 000 yuan. But because of the urgent need for funds, I want to sell it quickly. According to his psychological price, as long as it can reach 550 1000 yuan, he is ready to sell this calligraphy and painting. If the tax rate is 3%, the tax payable of Mr. Zhang is 55,065,438+0,000× 3% = 65,438+0,665,438+0,500 (yuan). If the tax is paid according to the value-added part, the tax payable is (55,065,438+.