代扣代缴个人所得税取得的手续费应该征收营业税吗？

代扣代缴个人所得税取得的手续费应该征收营业税吗？ 代扣代缴个人所得税取得的手续费应该征收营业税吗, Should the business tax be levied on the personal income tax withheld and withheld? As early as N, "Chinese tax" is published in the official mailbox bell made a point of view, think of the enterprises and institutions to pay personal income tax withholding fee income must be calculated must levy business tax. Since then, many experts believe that the service sector tax rate should be applied, and the sales tax will be levied at the rate of 5%. In view of the impact of these experts, some tax authorities have generally adopted this view. Then, the enterprises and institutions to pay personal income tax withholding fees obtained, in the end should not be levied business tax? I am quite necessary to discuss and discernment. For enterprises and institutions to perform tax withholding obligations, access to commission fees should be levied business tax reasons and basis, can be summarized as the following three points: A business unit, withholding personal income tax fee made, in full compliance with the stipulated "enterprise accounting system" and "enterprise accounting standards" and other revenue recognition conditions, such as the economic benefits associated with the transaction will flow to the enterprise; the amount of revenue can be reliably measured and so on, which constitute the income of the enterprise. Two, according to the provisions of the "notice" on the issue of tax exemption of individual income tax on savings deposit interest income withholding fee income tax [2001]31 number of normative documents: on savings interest tax withholding fee income, shall be respectively in accordance with the relevant provisions of the "Provisional Regulations" and "People's Republic of China People's Republic of China business tax on enterprise income tax the" Regulations on collection of business income tax and business tax. Since the provisions ofthe [2001]31 has made the withholding tax on interest fee income levy business taxes, and all current business tax laws and policies were not provided for enterprises and institutions of the personal income tax withholding fee income exempted from business tax. Then, for other enterprises and institutions to obtain withholding tax, fees, income should also be levied business tax. Three, according to the "business tax tax notes", the National Tax issued [1993]149 regulations, enterprises and institutions withholding personal income tax can also be regarded as an agent, and therefore can pay the sales tax in accordance with the agent industry. It should be admitted that if only the formal analysis of the above three reasons and basis, no doubt can support the "enterprises and institutions to perform tax withholding obligations, access to commission fees should be levied business tax" point of view. However, if a deep analysis is done, it is easy to find the deficiency: First, enterprises and institutions to obtain revenue and calculate the payment of business tax, there is no logical relationship between the inevitable. As long as the enterprises in accordance with the provisions of tax laws and regulations of the state to fulfill the personal income tax withholding obligations, and perform procedures and related procedures, can be no suspense to obtain withholding fees. But the point is, do you have to pay sales tax when you get income? As we all know, tax legalism is the highest principle of tax law. In accordance with the principle of tax statutory requirements, the state's tax on certain income and income of taxpayers, how to tax and how much tax levied, must have legal provisions. If there is no law, Then you can't tax. Thus, in many cases, even though taxpayers have earned income and even provide service income, they do not have to pay sales tax because they are not covered by the sales tax. For example, enterprises and institutions obtained financial subsidies from the parties concerned, including sales tax, tax relief and so on. As a result, the first reason and basis for the withholding of personal income tax fee for enterprises and institutions is that the first reason and basis for the payment of sales tax is untenable. Two, the tax policy stipulates that the Levy of Commission on savings institutions does not mean taxation of similar income to other institutions. It should be admitted that in the [2001]31 of the national tax administration, it is clearly stipulated that the income tax paid to the savings institution for withholding interest tax shall be levied in accordance with the regulations on the Provisional Regulations on business tax. However, the tax law and policy stipulates that the Levy of sales tax on the income tax paid by the savings institution for withholding interest tax means that the tax laws and policies also impose business tax on similar income from other institutions The statutory principle of taxing legalism actually implies two aspects: one is that the law does not expressly stipulate that no taxation is allowed; the other is that it is not applicable to analogy. That is to say, if the tax law adopts a positive list rather than general methods, clear tax provisions of a certain behavior of a particular industry, it means that other industries on the outside of the industry and other industries other than the behavior of the taxation made of no tax exclusion provisions; although the relevant business or the behavior is similar to that of the national tax authorities can not carry out analogy. Three, the business tax exemption regulations, there is no clear tax withholding tax, income tax exemption does not mean tax on the fee income. There is no corresponding tax exemption regulation in all the tax benefits of business tax. It is an important reason for levying business tax on the income of commission fees after the enterprises and institutions perform their personal income tax withholding and payment obligations. But the question is: in the business tax exemption regulations, there is no clear tax deduction for withholding tax. Does it mean that the income tax is taxable? The logic of either this or that there is wrong, because the relationship between the exemption of business tax and business tax is not a either this or that, in addition to exempt from sales tax and business tax, there is an exemption of business tax situation. If the withholding of personal income tax and access to fees, income behavior itself does not belong to the provision of labor services, then it does not belong to the scope of Taxation of business tax. Therefore, the next question we will discuss is whether the withholding and payment of personal income tax and the acquisition of commission income belong to the provision of labor services abroad. The third rules for the implementation of the Interim Regulations on business tax are clear: "labor services provided by the regulations" as stipulated in Article 1 of the regulations...... Refers to the provision of services provided by the ordinance...... The term "compensation" as mentioned in the preceding paragraph refers to the acquisition of money, goods or other economic interests." The taxable service in the business tax system must be paid by the taxpayer. Although the tax law only defines the "paid" form, i.e. obtaining money, goods or other economic interests, but not the substance of "paid" to define, but according to the general principles of legal interpretation, If the law does not define the content of an entry, it means that the term can be understood as the most common meaning: what is called "pay" can be understood as the act of mutual consideration between the actor and the receiver. The so-called "consideration" means that one side pays the price in return for the other's benefit. Therefore, "paid" is based on the law of commodity value, not only has a clear purpose of profit, but also uses the principle of exchange of equal value. Based on this we can also conclude that unless the law made special provisions (such as financial institutions), which belongs to the current business tax provisions of China's tax within the scope of the "service" is a must to equivalent exchange based behavior has obvious profit of production and operation. Then, enterprises and institutions in accordance with the provisions of the law to fulfill the personal income tax withholding obligations, access to fees for the conduct of such a feature? The answer should obviously be negative: 1, withholding personal income tax does not belong to the taxpayer's production and business activities of the category, the taxpayer cannot in its business license or other production license, withholding personal income tax as the scope of production and business activities. 2, the taxpayer withholding and payment obligations, fundamentally speaking, is not in order to obtain fees and fees and other economic benefits, but only in order to fulfill the tax legal obligations. Even if the country does not have any fees to return, taxpayers must still unconditionally and comprehensively and faithfully fulfill their personal income tax withholding obligations. 3, according to the legal standard of 2%, any one enterprise in the personal income tax withholding are impossible to achieve the purpose of profit, because the tax authorities to pay the fee does not comply with the principle of equal exchange, can compensate for the taxpayer withholding tax cost. Since the withholding personal income tax and fee income does not conform to the characteristics of the Interim Regulations on business tax required paid, so we have every reason to assert that the scope of withholding tax fee does not belong to the business tax taxable services, even if there is no tax exemption provisions, also do not need to pay taxes. Four, withholding personal income tax can be counted as an act of agency, tax levy is worth discussing. The withholding of individual income tax is regarded as an act of agency, and it is an important reason for levying tax on personal income tax and income from the enterprises and institutions. But the key question is whether withholding individual income tax can be regarded as a kind of agency management. As a result of withholding tax and obtaining commission income, the act of providing labor service outside the business tax regulations does not belong to us, so there is no further discussion on this issue. However, it is still necessary to make a more thorough analysis in order to further analyze the errors of the tax levy on withholding tax: In accordance with the "business tax" tax notes No. [1993]149 interpretation of the agency, is refers to the client to handle the matters of business, including the purchase and sale of goods, import and export agent, the service and other service agents. Obviously, if the withholding of individual income tax is regarded as an act of agency, then it can only be classified as "other agency services"", In other words, enterprises and institutions are in accordance with the provisions of the law, the agent belongs to workers or other personal income tax payers to fulfill personal income tax declaration and tax obligations. Since the business unit is the agent of the personal income tax taxpayers to fulfill tax obligations, then in accordance with the principle of general law and contract, enterprises and institutions is the withholding agent shall be paid from the personal income tax payer, and not from the tax authorities to obtain fee income. But the fact is: the individual income tax payers have not paid any fees to the enterprises and institutions at all, but the tax authorities pay the fees to them. In accordance with the "notice" on the further strengthening of tax collection and payment withholding fees for property management [2005]365 is clearly: "withholding refers to tax laws and administrative regulations have been defined for the withholding of units and individuals in the payment, the tax authorities on behalf of withheld from the payment to the entities or individuals obligated to pay taxes the income paid to the tax authorities and the behavior." However, if the withholding agent is withheld and paid, the individual income tax is regarded as the agent of the tax authorities, and then there will be three legal problems: 1, the withholding agent is really in the name of personal income tax personal income tax taxpayers fulfill reporting obligations, if we regard it as the tax authorities tax withholding agents, so also is a double agent. According to the accepted legal principle, double agency is invalid agency. 2, if the withholding agent is the agent of the tax authorities to exercise the right to levy taxes, then it means that the withholding agent individual income tax and fee behavior is not the production and operation of the act, the business tax is levied without any reason. 3, if the withholding agent is the agent of the tax authorities to exercise the right to levy taxes, then the tax authorities to pay fees in a certain extent can be recognized as the tax funds. If it is taxed, it means tax on state administrative expenses. Therefore, to sum up, the reasons of the enterprises and institutions withholding personal income tax to obtain fee collection of sales tax revenue to the behavior of the agent can be set up, on the contrary, the withholding agents perform personal income tax withholding fee income exempt from business tax is more reasonable. Of course, for savings institutions (financial) withholding and the fee collection of sales tax revenue is another matter, because these financial institutions will be the behavior as a service pack to charge customers the service fees paid to the relation of the price formation. This is also the reason for the special provisions of the existing policy.