国税函[2005]130号

颁布日期：20050128 　实施日期：20050128 　颁布单位：国家税务总局

Guo Shui Han [2005] No. 130

The Local Taxation Bureau of Sichuan Province：

Your Request for Instructions for the Issue Concerning the Individual Income Tax on the Stock Right Withdrawn by A Taxpayer （No. 146 [2004] of the Local Taxation Bureau of Sichuan Province has been received. After deliberation， you are hereby given a reply as follows：

I. In accordance with the Individual Income Tax Law of the People's Republic of China （hereinafter referred to as the IITL） and its implementing regulation as well as the Law of the People's Republic of China on the Administration of Tax Collection （hereinafter referred to as the LATC）， if a stock right transfer contract has been fulfilled， in case the stock right modification has been registered and the income has been realized， the income obtained by the transferor from the transfer of stock right shall be subject to individual income tax according to law. After the completion of transfer， if the both parties concerned conclude and fulfill an agreement on canceling the former stock right transfer contract and taking back stock right ， their act is a second stock right transfer act， hence the individual income tax paid for the former transfer may not be refunded.

II. As for a stock right transfer contract incompletely fulfilled， in case the parties concerned stop fulfilling the former stock right transfer contract and the transferor takes back the already transferred stock right at the former price for the reason that an award on the cancellation of the stock right transfer contract and its supplementary agreement is made by the arbitration commission， considering that the stock transfer act has not been completely conducted， the income has not been completely realized and the proceeds of stock right will not exist with the cancellation of stock right transfer relationship， the taxpayer needn't pay the individual income tax in accordance with the provisions of Individual Income Tax Law and the Law on Administration of Tax Revenue Collection as well as the principle of reasonableness of administrative act.

State Administration of Taxation

January 28， 2005