The concept of natural person shareholder ①? Legal person? Symmetry of. Individuals who enjoy civil rights and assume obligations according to law based on natural birth. In our country, citizens are equal to natural persons in civil legal status.
2 and? Social man? Relative. In sociology, it refers to people who have not experienced the process of socialization since leaving their mothers. It only has the natural attributes of human beings, but has no social attributes of human beings.
A person who becomes the subject of civil rights and obligations based on birth. In China and some other countries, they are called citizens. However, citizens only refer to natural persons with the nationality of a country, and natural persons also include foreigners and stateless persons.
What is the difference between natural person shareholders and natural person shareholders? Specific people, that is, individuals, enjoy and directly exercise shareholders' rights and undertake obligations, such as attending shareholders' meetings, consulting financial and accounting materials and receiving dividends. Corporate shareholders is an organization. As an abstract entity drawn up according to law, its rights and obligations need to be fulfilled through the actions of specific people. By sending shareholders' representatives to complete it on its behalf, the consequences will be borne by the organization.
On May 28th, 2009, State Taxation Administration of The People's Republic of China made it clear in a recent document that after the individual equity transfer transaction is completed, the transferor with tax obligation or the transferee with tax withholding obligation should declare individual income tax to the tax authorities, and only after obtaining the tax payment certificate can they go to the administrative department for industry and commerce to make changes.
This paper aims to analyze the legal issues involved in the transfer of equity by natural person shareholders, and effectively prevent the legal risks faced by natural person shareholders in small and medium-sized enterprises in the transfer of equity.
1. After the equity transfer is completed, there is no legal risk of changing the industrial and commercial registration because the personal income tax on the equity transfer has not been paid.
Two, the industrial and commercial authorities to change the registration application materials only in the form of examination without substantive examination of the legal risks.
3. Procedures for equity transfer of natural person shareholders of a limited company.
4. Documents to be prepared for equity transfer.
Verb (abbreviation of verb) application for company change registration
Equity transfer refers to the transfer of equity by shareholders of a limited liability company to other shareholders of the company or people other than shareholders of the company.
First, the way of equity transfer of limited company
1. Transfer between shareholders of the company
Shareholders of the company may transfer all or part of their shares to other shareholders of the company without obtaining the consent of other shareholders.
2. Shareholders are transferred to people other than shareholders of the company.
① Shareholders' transfer of equity to persons other than shareholders shall be approved by more than half of other shareholders.
(2) Shareholders shall notify other shareholders of the transfer of their shares in writing and obtain their consent. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity; Do not buy, as agreed to transfer.
(3) Under the same conditions, other shareholders have the priority to purchase the equity transferred with the consent of shareholders. If two or more shareholders claim to exercise the preemptive right, their respective purchase proportions shall be determined through consultation; If negotiation fails, the preemptive right shall be exercised in accordance with their respective investment proportions at the time of transfer.
Two, natural person shareholders to pay personal income tax on equity transfer is the pre-procedure for shareholders' industrial and commercial change registration.
According to Article 1 of State Taxation Administration of The People's Republic of China's Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Strengthening the Management of Individual Income Tax on Equity Transfer, the transferor or transferee with tax payment obligation or withholding obligation shall file a tax payment (withholding) declaration with the competent tax authorities, pay the personal income tax payment certificate or tax exemption or non-tax exemption certificate issued by the tax authorities, and go through the formalities for registration of equity change with the administrative department for industry and commerce.
Three, after the completion of the equity transfer, there is no legal risk of changing the industrial and commercial registration due to the failure to pay personal income tax on the equity transfer.
According to Article 33 of the Company Law, a company shall register the names of shareholders and their capital contributions with the company registration authority; Where the registered items are changed, the registration of change shall be handled. Without registration or change of registration, it may not confront a third party.
The registration of industrial and commercial change is only an antagonistic element of shareholder change, not an effective element. Therefore, the following conclusions are drawn:
1. What is the basis of both parties? Equity transfer agreement? After the performance of the contract is completed, the transferee will obtain the shareholder qualification according to law, even if the industrial and commercial registration has not been changed due to the failure to pay personal income tax on the equity transfer.
2. If the industrial and commercial registration is not changed according to law after the equity transfer, the original shareholder who transferred the equity cannot use the equity transfer against the third party. That is, for a third party, the transferor is still? Shareholders? , should bear the shareholder responsibility to the third party. Even if the equity has been transferred as agreed.
However, between the transferor and the transferee, the transferor has lost the shareholder qualification, and the transferee has obtained the shareholder qualification, which is not affected by whether or not to apply for industrial and commercial change registration.
3. If the industrial and commercial registration is changed according to law after the equity transfer, the transferor no longer has the shareholder qualification of the transferee or a third party.
Four, the industrial and commercial authorities to change the registration application materials only in the form of examination without substantive examination of the legal risks.
According to the Reply of the State Administration for Industry and Commerce (SAIC) No.67 (2001) on whether the registration authority bears corresponding responsibilities for the authenticity of the materials submitted by the applicant (hereinafter referred to as the reply of SAIC), namely? The applicant shall be responsible for the authenticity of the application materials and supporting documents submitted by him.
The duty of the registration authority is to examine whether the relevant application materials and supporting documents submitted by the applicant are complete, and whether the application materials and supporting documents and the items recorded therein comply with the provisions of relevant laws and regulations on registration management. The registration authority shall not bear the corresponding responsibility for the consequences caused by the untrue application materials and certification documents.
In judicial practice, illegal shareholders often forge other shareholders' signatures and other documents to make the application documents meet the legal requirements in form, and defraud industrial and commercial registration by fraudulent means. The real cases published by the State Administration for Industry and Commerce are as follows:
At the end of 2008, Li, a natural person, applied to an industrial and commercial bureau to change the investor of a sole proprietorship enterprise. At the same time, he provided the transfer agreement that Cheng, the original investor of the sole proprietorship enterprise, agreed to transfer his sole proprietorship enterprise to Li, a copy of the ID cards of Cheng and Li, and a power of attorney that Cheng entrusted Li to handle the change registration. The staff of an industrial and commercial bureau accepted and reviewed the above materials provided by Li on the spot, and issued the Business License of Sole proprietorship enterprise to Li.
Cheng, the original investor, proposed that he had never signed a transfer agreement with Li at all, nor did he entrust others to sign it on his behalf. An industrial and commercial bureau failed to examine the authenticity of the application for change of registration materials, and wrongly approved the investor of a sole proprietorship enterprise to change the administrative license, resulting in its loss of ownership of the sole proprietorship enterprise.
An industrial and commercial bureau immediately investigated and found that the signature of the original investor Cheng was forged by Li on the above-mentioned investor transfer agreement.
Therefore, the transferee of equity should raise the awareness of legal risk prevention and take the initiative to prepare the necessary application documents in the process of equity transfer? Substantive? Audit (including confirming the identity of the transferring shareholder) to prevent the property economic loss caused by invalid equity transfer.
Verb (abbreviation of verb) Procedure for the transfer of shares of natural person shareholders of limited company
1, signed by the transferor and the transferee? Equity transfer agreement?
2. The company applies to the administrative department for industry and commerce for registration of equity change, fills in the Application Form for Registration of Company Change and the Report Form for Changes of Individual Shareholders, and reports to the competent tax authorities.
3. After the equity transfer transaction is completed, the transferor or transferee who has the obligation to pay taxes or withhold and remit shall file a tax return with the competent tax authorities.
4. The company shall go through the registration formalities of equity change with the administrative department for industry and commerce with the personal income tax payment certificate or tax exemption or no tax certificate issued by the tax authorities.
Documents to be prepared for the equity transfer of intransitive verbs
1. Application for company change registration signed by the legal representative (with the official seal of the company);
2. The company signs the explanation of the capital contribution of the company's shareholders (promoters) (with the official seal of the company);
3. Certificate of the designated representative or authorized agent signed by the company (stamped with the official seal of the company) and a copy of the ID card of the designated representative or authorized agent (signed by myself);
The specific entrusted matters, the authority of the client and the entrustment period shall be indicated.
4. The limited liability company submits the resolution of the shareholders' meeting (signed by all shareholders, and signed by myself if the shareholder is a natural person; Shareholders other than natural persons build official seals); Where a limited liability company fails to convene a shareholders' meeting on the transfer of shares by shareholders or the resolution of the shareholders' meeting is not signed by all shareholders, it shall submit the written notice issued by the shareholder who transferred shares to other shareholders on the transfer of shares and the reply opinions of other shareholders. If other shareholders fail to reply, they shall submit the explanation of the shareholders who intend to transfer the shares.
5. Equity transfer agreement or equity delivery certificate (signed by both parties to the transfer, and signed by myself if the shareholder or promoter is a natural person; Shareholders or promoters other than natural persons affix their official seals);
6. The qualification certificate of the new shareholder or the identity certificate of the natural person;
A copy of the business license submitted by the enterprise; Copy of the legal person registration certificate of the institution; An enterprise as a legal person shall submit a copy of its registration certificate; A copy of the certificate submitted by the private non-enterprise unit; Natural person submits a copy of ID card.
7. Amendment to the Articles of Association (signed by the legal representative of the company);
8. Where laws, administrative regulations and decisions of the State Council require approval for the change of shareholders, a copy of relevant approval documents or license certificate shall be submitted;
9. A copy of the company's business license.