China: 企业灵活用工雷区扫盲——"劳务外包"模式之税务法律风险评析

Last Updated: 13 August 2019
Article by Vera Gao
Most Read Contributor in China, August 2019

前言:2019年7月17日,李克强主持召开国务院常务会议,确定支持平台经济健康发展的措施,壮大优结构促升级增就业的新动能,指出完善平台企业用工、灵活就业人员相关政策。这预示着国家将出台相关政策对企业用工加以引导规范。本文旨在对现有企业劳务外包模式类型进行分析,帮助企业避免灵活用工的雷区。

20世纪的商业体制的主要内容是集权,但21世纪因互联网发展带来的效率的极大提升,企业往往通过尽量减少交易成本的方式来设定组织的边界,即企业的平均规模在逐步缩小,企业开始筹划将更多的内部工作转移给专业化分工的外部企业,通过网络社区进行各种形式的"外包"。

自"金税三期"系统上线、新《个人所得税法》(主席令第9号)实施、银行加强"公转私"管理以来,企业纷纷将劳务用工外包给第三方劳务平台,劳务者不再与企业建立直接的劳动关系或劳务关系,而作为与第三方劳务平台建立合作关系的自由职业者,通过第三方劳务平台提供服务换取报酬。

但基于《个人所得税法》的规定,个人劳务报酬所得属于综合所得,适用3%-45%的超额累进税率[1]。对此,不少劳务平台纷纷推出了所谓的"灵活用工解决方案",声称可以帮助企业解决财税难题。然而,这些解决方案实际并没有真正给企业"排雷",反而是给企业"埋雷"。

一、典型劳务外包模式概述

劳务外包模式涉及到企业、劳务平台和自由职业者三方主体,通常是由企业作为外包方在劳务平台上外包任务,将支付给自由职业者的佣金及劳务平台的服务费打包支付予劳务平台,劳务平台向企业开具全额的增值税专用发票(税率为6%),之后再由劳务平台转包予自由职业者承揽业务,通过各种方式将其劳务所得转化为经营所得,并适用个人所得税核定征收,以达到所谓的节税目的。

经检索目前热门的几大劳务外包平台并对其业务模式进行分析,根据其将劳务所得转化为经营所得的方式不同,将其分为三类典型劳务外包模式:

(1)模式一:直接将自由职业者以自然人身份进行税务筹划;
(2)模式二:将自由职业者视为临时从事生产、经营的自然人进行税务筹划;
(3)模式三:将自由职业者转化为最小单元的市场主体(个体工商户)进行税务筹划。

下文将在介绍三种典型劳务外包业务模式的基础上,分析其主要税务法律风险以提示各模式主要雷区。

二、模式一及其主要雷区分析

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