High-tech enterprises are the state's key support for enterprises, not only can enjoy the enterprise income tax rate of 15% preferential tax rate, can also enjoy the loss carry-forward years to extend the tax incentives, the enterprise's technical staff to obtain the transformation of scientific and technological achievements of the equity awards can also enjoy the policy of installment payment of personal tax. This year, many high-tech enterprises to identify institutions to increase the supervision of high-tech enterprise qualification, issued one after another to cancel the high-tech enterprise qualification announcement, for enterprises sounded the alarm. In practice, what circumstances will be canceled high-tech enterprise qualification, what kind of tax risk enterprises face? This article is intended to reveal and provide ideas for prevention and response.

I.Dynamic observation: this year, 26 provinces and municipalities canceled a total of 2960 high-tech enterprise qualification

According to the announcement of the high-tech enterprise certification and management work network, since January this year, Fujian, Shanxi, Hebei and many other places have issued announcements to cancel the qualification of high-tech enterprises. The following are the details of the cancelation of the qualification of high-tech enterprises from January to November 2024 in various places.

Compared with last year's cancellation of the qualification of 1590 high-tech enterprises in various provinces and cities across the country, there is a trend of increased supervision in the management of high-tech enterprises, and enterprises should pay great attention to the cancellation of the qualification of high-tech enterprises in practice as well as the tax risks they face.

II.What are the common situations of being canceled the qualification of high-tech enterprises?

(i) High-tech products (services) revenue ratio does not meet the standard

According to Item 6 of Article 11 of the Administrative Measures for the Recognition of High-tech Enterprises, one of the criteria for the recognition of high-tech enterprises is that the revenue from high-tech products (services) in the recent year (hereinafter referred to as "high-tech revenue") accounts for not less than 60% of the total revenue of the enterprise in the same period. High-tech revenue refers to the sum of product (service) revenue and technical revenue (including technology transfer revenue, technical service revenue and commissioned research and development revenue) obtained by the enterprise through R&D and related technical innovation activities. The total income is the total income minus the non-taxable income calculated in accordance with the provisions of the Enterprise Income Tax Law.

In practice, there are a lot of enterprises due to the failure to accurately account for the amount of total income, high-tech income, resulting in high-tech income ratio did not meet the standards affecting the qualification of high-tech enterprises. For example, a company in Guangzhou did not transfer the equity transfer income obtained from the equity of the holding subsidiary to the total income, resulting in the proportion of high-tech income did not meet the standard, affecting the qualification of high-tech enterprises.

(ii) R&D expenses as a percentage not meeting standards

According to Item 5 of Article 11 of the Administrative Measures for the Recognition of High and New Technology Enterprises, the proportion of research and development expenses to total sales revenue of an enterprise in the last three fiscal years shall reach 5% (revenue ≤50 million yuan), 4% (50 million yuan <revenue ≤200 million yuan), and 3% (revenue >200 million yuan), respectively. About the research and development costs are more complicated, specifically divided into personnel and labor costs, direct input costs, depreciation and long-term amortization costs, amortization of intangible assets, design costs, equipment debugging costs and test costs, commissioned external research and development costs, other costs. Once a specific R & D costs are summarized incorrectly, it will affect the calculation of the total R & D costs, resulting in R & D costs accounted for less than the standard, the enterprise will be canceled the qualification of high-tech enterprises.

(iii) The ratio of scientific and technical personnel is not up to standard

According to Article 11(4) of the Administrative Measures for the Recognition of High and New Technology Enterprises, the proportion of scientific and technological personnel engaged in R&D and related technological innovation activities in an enterprise to the total number of employees of the enterprise for the year shall not be less than 10%. Specifically, the scientific and technological personnel and the total number of employees of the year are calculated according to the monthly average of the whole year, including the personnel on duty, part-time and temporarily employed, and the part-time and temporarily employed personnel must work in the enterprise for more than 183 days in the whole year.

In practice, some enterprises have been canceled the qualification of high-tech enterprises due to the number of scientific and technological personnel not counted according to the stipulated caliber of the staff, and the number of scientific and technological personnel and employees of the enterprises has changed greatly, resulting in the proportion of scientific and technological personnel not meeting the standard. For example, according to the announcement issued by the Shanghai High-tech Enterprise Recognition Steering Group on October 28, 2024, 73 enterprises were canceled as high-tech enterprises due to the ratio of scientific and technological personnel not meeting the standard.

(iv) Serious fraudulent behavior of enterprises in the process of applying for recognition

According to Article 19(1)(a) of the Administrative Measures for the Recognition of High-tech Enterprises, if there is any serious falsification in the process of applying for the recognition, the recognition organization shall cancel the qualification of high-tech enterprise. In practice, there are enterprises to meet the conditions for the identification of high-tech enterprises, on their own or commissioned by a third-party intermediary agency to falsely increase the research and development costs, scientific and technological personnel and other relevant indicators of the "water", by the relevant departments of the staff through the on-site investigation, access to information, inquiries, investigations, expert testimony and other ways to verify that the certification body canceled the qualification of the enterprise's high-tech enterprises. High-tech enterprise qualification. Such as Shanghai high-tech enterprise certification steering group issued by the Shanghai high enterprise recognition finger [2024] 005, Jiangsu Province, high-tech enterprise certification management coordination group issued by the Suzhou high enterprise association [2022] 7 announcement, Sichuan Province, high-tech enterprise certification management group issued by the Sichuan high enterprise recognition [2019] 5, are reflected in the application for recognition of the existence of enterprises in the process of fraud and falsehoods of this problem.

In addition, according to Article 19(1)(b) and (c) of the Administrative Measures for the Recognition of High and New Technology Enterprises, if an enterprise suffers from a major safety or quality accident or serious environmental violations, fails to report on a regular basis on major changes in the recognition conditions, or fails to fill in the annual development statement for two years in total, it will also face the risk of cancellation of its qualification as a high and new technology enterprise by the recognizing body.

III.What kind of tax risk will the enterprise face if the qualification of high-tech enterprise is canceled?

(i) Exposure to the tax risk of back taxes and late charges

According to Paragraph 2 of Article 19 of the Administrative Measures for the Recognition of High and New Technology Enterprises, Article 43 of the Implementation Rules of the Tax Collection and Administration Law and Article 32 of the Tax Collection and Administration Law, for the enterprises whose high and new technology qualification has been canceled, the tax authorities will adjust the enterprise's applicable enterprise income tax rate to 25%, recover the underpayment of enterprise income tax from the year in which the enterprise fails to comply with the conditions for recognition and impose a daily charge of five ten-thousandths of one percent of the late tax payment. The tax authorities will adjust the applicable enterprise income tax rate to 25%, recover the underpayment of enterprise income tax from the year when the enterprise does not meet the qualification, and impose a late payment charge of five ten thousandths of the tax on a daily basis. For example, Heilongjiang Province High-tech Enterprise Recognition Management Group issued No. 10 [2024], which clearly states that the tax authorities will recover the tax incentives for high-tech enterprises in accordance with the law. At the same time from the listed companies announced the case can also be observed, once the enterprise is canceled high-tech enterprise qualification, will need to pay a huge amount of enterprise income tax and late fees, such as the listed company Fuda alloy in the China Securities Regulatory Commission administrative licensing project review a feedback feedback response disclosed that its four subject companies do not meet the high-tech enterprise qualification, take the initiative to make up for the enterprise income tax, late fees totaling 78,191,700 yuan. ..

(ii) Exposure to tax risks constituting administrative penalties for tax evasion

According to the provisions of Article 63 of the Tax Collection and Management Law, if an enterprise applies for the qualification of high-tech enterprise and makes false statements, such as increasing the number of research and development personnel, listing the research and development expenditures, falsifying intellectual property rights, and falsifying research and development personnel, it constitutes tax evasion of "making false tax declarations". It is necessary to point out that, according to the objective principle of subjectivity, the false behavior can be presumed to exist subjective intent, once the enterprise exists such behavior, the tax authorities can determine that the enterprise constitutes tax evasion, to recover the non-payment or underpayment of taxes, late payment fees, and impose a non-payment or underpayment of more than 50 percent of the tax or a fine of less than 50 percent of the following, in this case, the enterprise claimed that there is no tax evasion of the subjective intent of the basic no In this case, there is basically no room for defense for the enterprise to claim that there is no subjective intent to evade tax.

(iii) Exposure to criminal risk for tax evasion offenses

According to Article 201 of the Criminal Law, if an enterprise adopts fraudulent means to obtain the qualification of a high-tech enterprise, resulting in underpayment of enterprise income tax by a total amount of 100,000 yuan and accounting for 10% of the total amount of all taxes payable to the tax authorities, and if the enterprise fails to make up for the taxes payable, pay the late payment fees or accept the administrative penalties after the tax authorities have issued a notice of recovery of taxes, the enterprise shall face the risk of being transferred by the tax authorities to the public security authorities. The risk of being transferred to the public security by the tax authorities. It should be noted that if the public security authorities file a case and then make up the tax, pay late fees and accept administrative penalties, it will not affect the judicial authorities to pursue the criminal liability of the enterprise and related personnel for the offense of tax evasion.

Ⅳ.High-tech enterprises and should be prevented and response?

(i) Ongoing self-inspection and attention to the status of qualification of high-tech enterprises

After obtaining the qualification of high-tech enterprise, the enterprise should, within the 3-year validity period, carry out associated, comprehensive and continuous assessment of the relevant recognition rules and related indicators, and make regular and proactive tax risk prevention and control work. Specifically:

1. Setting up a commissioner is responsible for paying attention to whether the enterprise carries out the enterprise name change in accordance with the regulations, whether the occurrence of significant changes related to the conditions of accreditation is reported to the accreditation organization in a timely manner, and whether it fills in the annual statement of development in a timely manner;

2. Pay attention to whether there is any change in the ratio of high-tech income, the ratio of R&D expenses, the ratio of scientific and technological personnel and other indicators;

3. Analyze whether the number of intellectual property declarations, relevance, and core supportive role for products meet the conditions for recognition.

(ii) Employing professionals to assist enterprises in the identification and subsequent management of high-tech enterprise qualifications

If the staff of the enterprise does not understand the qualification certification of high-tech enterprises thoroughly enough and has difficulties in management operation, it can consider hiring professionals to provide the guideline service for the qualification certification of high-tech enterprises, help the enterprise to strictly examine whether it meets the qualification conditions, assist the enterprise to sort out and improve the certification materials, and pay attention to the changes of the relevant indexes of the enterprise on a regular basis to avoid the risk of being canceled or suspended due to the staff's mistakes.

(iii) Proactively addressing administrative tax risks and avoiding transformation into criminal risks

If the enterprise applies for the recognition of high-tech enterprise qualification in the process of forged materials, fabricated indicators and other behaviors, and the tax authorities determine that constitutes tax evasion, the enterprise should pay the tax, late payment fees and penalties in a timely manner, to avoid being transferred to the judicial organs by the tax authorities. If the enterprise is really unable to pay, according to Article 3 of the Judicial Interpretation of the Two High Commissions, "A taxpayer who has evaded payment of tax as stipulated in Paragraph 1 of Article 201 of the Criminal Law shall, before the public security organs open a case, pay the full amount of the tax payable, pay the late payment fees and fulfill the administrative penalty decision made by the tax authorities in accordance with the law and the tax authorities' notices of recovery, and shall pay the tax payable, the late payment fees and the penalties in full within the stipulated time limit or the approved period for deferred or installment payment. If the administrative penalty decision made by the tax authorities is not pursued, the criminal responsibility shall not be investigated", apply to the tax authorities for deferment and payment in installments, so as to avoid the criminal risk of tax evasion.