Reflections on Perfecting the Collection Rules of Enterprise Income Tax Arising from Debt Restructuring in Reorganization

The issue of levying enterprise income tax as a result of debt restructuring in bankruptcy reorganization is unique, and it has significant implications for enterprise rehabilitation. However, the Chinese legal regulations on this subject are not faultless. The relevant provisions provided in the Circular on Issues Concerning Treatment of Enterprise Income Tax in Enterprise Restructuring Business (Cai Shui [2009] No. 59) are quite complicated to apply in actual taxation practice, and the design of the collection system is against the goal of bankruptcy reorganization. Therefore, the collection system of enterprise income tax in debt restructuring should be perfect in legislation in order to facilitate the rehabilitation of insolvent enterprises. This article examines the various types of corporate income tax in reorganization, explores suitable ways of taxation and makes recommendations for institutional improvement. Specifically, for the “debt forgiveness” type of bankruptcy restructuring, it is recommended to transplant the U.S. “Reduction of Tax Attributes” in order to reduce the tax burden of the reorganized enterprises. For “debt-equity swap” type of bankruptcy restructuring, it is recommended to include a pre-judgment mechanism for the tax authorities, primarily to give them the discretion on whether to impose tax on the difference between the amount of debt and the fair value of equity, so as to reduce the tax burden of creditors and eliminate the space for tax arbitrage.