about Yin Yang Contract The determination of effectiveness is a problem worth discussing, which mainly includes the following points of view:
The first view: both contracts are violated《 contract law 》Paragraph 2 of Article 52: Malicious collusion harms the interests of the State, the collective or a third party; Paragraph 3: Covering up illegal purposes in legal form; Article 5: Violation of laws and administration statute Mandatory provisions. Therefore, both contracts are invalid.
The second view: A negative contract is the true expression of intention of both parties, which does not violate the provisions of Article 52 of the Contract Law and meets the requirements for the validity of the contract, so it is valid. The positive contract was signed by the parties in order to avoid national management and pay less taxes, which violated the mandatory provisions of the Tax Administration Law and damaged the national interests; Moreover, the contract is invalid because it conceals the illegal purpose in a legal form.
The third point of view: both the yin contract and the yang contract are valid. The Supreme People's Court Disputes over construction contracts of construction projects Article 21 of the Interpretation of Several Issues Concerning the Application of Law to Cases clearly stipulates that: the parties to a construction project separately concluded Project construction contract In case of any inconsistency with the substantial contents of the registered bid winning contract, the registered bid winning contract shall be taken as the settlement engineering funds The basis of. The positive contract is the construction unit, and the construction unit shall《 Bidding Law 》According to relevant regulations of bid Signed construction contract It is a contract that complies with mandatory provisions of the law and is filed with the construction administrative department, which shall be valid as the basis for settlement of project funds. Although the negative contract has not gone through legal procedures and has been publicly recorded in the government department, the positive contract is not the expression of the true intention of both parties, and the actual performance is not in accordance with the positive contract, while the negative contract is the expression of the true intention of both parties, and the actual performance is also in full accordance with the relevant provisions of this contract. Therefore, all Yin Yang contracts are valid.
For the first point of view, if it is judged that both contracts are invalid, it obviously violates the basic concept of civil law and contract law, that is, autonomy of will. For the second point of view, there are also shortcomings: although the positive contract was signed by the parties for the purpose of paying less tax, covering up the illegal purpose in a legal form, and also violating the provisions of the Tax Collection and Management Law, other terms in the contract did not violate the above provisions, and also reflected the agreement between the parties. Therefore, Yang cannot be completely denied Effect of contract , except for the price terms, other terms shall be recognized as valid. For the third point of view, it is obviously improper to affirm the validity of the Yin Yang contract without distinguishing any circumstances, and this point of view is only applicable in the field of bidding Equity Transfer Contract If we admit that both contracts are valid, wouldn't it be a change of direction to admit that the tax evasion and tax evasion of the parties are legal?
Therefore, the above three points of view are defective, and the determination of the validity of yin-yang contracts should be treated differently in different situations. Then Equity transfer As far as the Yin Yang contract in the Contract Law is concerned, it should be considered from several aspects: the Yin contract is the true expression of intention of both parties and does not violate Article 52 of the Contract Law, so it should be recognized as valid. For a positive contract, if there is no substantial difference between the terms in the contract other than the price terms and the terms in the negative contract, it should be recognized as valid, and the validity of the whole contract cannot be denied because of the defects in the price terms. Except for the price clause in the positive contract, both contracts meet the requirements of contract validity. Therefore, the negative contract is valid, and other terms of the positive contract except for the price terms are valid, and other terms can be used as evidence of the negative contract.
According to the State Administration of Taxation's Notice on Strengthening the Collection of Income from Equity Transfer (GSH [2009] No. 285) individual income tax Article 4 of the Notice on Management stipulates: "The tax authorities shall strengthen the assessment and review of the tax basis for the income from equity transfer. The information related to the income from equity transfer reported by withholding agents or taxpayers shall be carefully reviewed to determine whether the equity transfer is in line with the principle of independent transaction, reasonable economic behavior and the actual situation. If the tax basis declared is obviously low (such as parity and low price transfer) and there is no justifiable reason, the competent tax authority may check and ratify it with reference to the net assets per share or the share of net assets corresponding to the equity ratio enjoyed by individual shareholders. " This provision actually recognizes the effectiveness of equity transfer under the condition of signing a yin-yang contract. Because if the positive contract contrary to the true intention of the parties is invalid as a whole, then Change in equity If the registration is invalid, the tax authority has no right to tax the equity transfer. The tax authority's verification of taxation is a confirmation that the equity transfer price in the positive contract is invalid. This not only follows the basic concept of autonomy of the will of the contract law, but also can regulate the abuse of freedom of contract, which conforms to the development law of the market economy and is conducive to promoting the development of transactions and maintaining the stability of transactions.
