The sale of housing Mo signed "Yin and yang contract" any one party breaches the contract, the interests of the victims will be difficult to ensure

The value of 1600000 yuan a set of housing, the owner, buyer and conduit company jointly "hard", see the housing authorities of the housing sales contracts only 600000 yuan.

This is the Yin and yang contract common now the second-hand housing transactions.

Last March, Mr. Zhang from Beijing to spend 700000 yuan to buy in Haidian District Dinghui temple, 46 yuan a set of 90 square metres of housing. 4 months later, housing prices doubled, he is ready to sell the housing price to 1600000, and the conduit company commissioned sales agents.

Mr. Deng is married to buy housing took a fancy to this suite of Mr. Zhang, the two quickly reached the intention to sell or purchase. Mr. Deng Shoufu 1200000, the remaining 400000 to apply for bank loans, he also delivered 4 yuan intermediary fees, loan fees and housing assessment fees. Only one problem, between Mr. Zhang buy a house and sell only 4 months, according to the provisions of the state, less than two years of ordinary housing needs to pay 1629 balance 5.5% as the business tax. For this set of housing Mr Cheung, it is necessary to pay nearly 50000 yuan tax.

1600000 yuan to buy a house, but also spend an extra 100000 yuan, which was too much pressure on Mr. deng. So, in Mr. Zhang's consent, intermediary to help both sides to make a contract of yin and Yang, the housing price in the contract is only 600000 yuan, buy a house than when Mr. Zhang also low 100000.

The two sides signed the contract after just half a month, 46 yuan, the average house price rose again, Mr. Zhang's house can be sold to 1800000. So Mr. Zhang did not want to sell the house. He told Mr. Deng said: "Xiao Deng, I fear of future pay taxes. This is the Yin and Yang, tax, illegal. You have no responsibility, I have responsibility." So, Mr. Zhang to the court, demands the termination of the contract. Final court sentenced Mr Cheung win.

Mr. Deng did not think of, in order to avoid tax signed contract of yin and Yang, but eventually "all is lost".

How the legal effect of contract of yin and Yang

Yin and yang contract refers to a transaction executed simultaneously in two different contracts, one with the false, another one is a true meaning.

Housing transactions in the secondary, "Yin contract" display both real prices, "yang contract" according to use needs to be different, one is the high housing prices contract to the bank to apply for mortgage loans, more; another is to fill the low prices of the contract to the real estate trading center the transfer, in order to pay less taxes. The seller and the buyer signed the "contract of yin and Yang", although it may chance slip by, but because this kind of contract has not registered, an unknown or even just a verbal agreement and so on, in the course of the performance of very vulnerable in conflict.

The signing of two different prices of housing sales contracts, is a kind of contract of yin and Yang. There is a way, the housing sales price is low, then another sign a decoration compensation agreements and old furniture sale and purchase agreement, in the name of decoration compensation and furniture style, make up the housing actual price.

Except for tax evasion and sign the contract of yin and Yang, and few people will pay more. Someone because of factors such as lack of money to do business, and he and friend sign the sale of housing prices, to obtain high loan from the bank. While the move to national pay taxes, but compared with the interest rate and the difficulty of corporate loans, mortgage interest rates or low many.

According to China's "contract law" provisions of article fifty-second, "malicious collusion, damage state, the collective or the third party interests" of the contract is invalid contract. Contract of yin and yang to false price to avoid tax or defraud the high loan harm to the national tax and the interests of the third party, which belongs to the invalid contract. The provisions of article fifty-sixth, invalid contract is not legally binding ab initio. Contract is partially invalid, does not affect the validity of the other parts, the other parts remain valid. In judicial practice, such as signed the "contract of yin and Yang" is just a false price, then the price clause is invalid, but does not affect the validity of the other parts, the other parts remain valid.

For a transaction, the law on one hand from the protection of social public order and good customs angle to restrict, on the other hand, in does not violate the social public order and good customs situation encourages parties according to their true meaning of transaction.

So in such disputes, to determine the validity of the contract of yin and yang are combined the merits consideration, or for the protection of state, social public interests identified all invalid contract, either to facilitate transactions only identified tax price clause is invalid.

Yin and yang contract risk

Yin and yang contract not only makes the national tax revenue losses, and shake the society to integrity management, compliance and tax confidence, disturb the market economic order. In practice, the parties signed the contract of yin and Yang a serious violation of the provisions of tax management in our country, the relevant departments found, if belong to the general tax evasion, the administrative organ shall have the power to impose fines, detention and other administrative punishment; if the amount of tax evasion is larger, more times, may constitute a crime.

On the other hand, second-hand housing contract of yin and yang to both the seller and the buyer risks.

For the buyer has the following risk: the risk that 1 real meaning. Due to the price, payment terms are not clear or not is determined as the true meaning, it may cause some clauses (especially the price terms) are not binding, and lead to a sale can not be carried out smoothly. 2 can not get high credit risk. 3 then sell bear the high cost risk. Risk 4 of the contract is not established. 5 administrative penalties and criminal liability risk.

For the seller has the following risk: risk of 1 declared invalid. Risk 2 limit cannot be repaid in full. 3 administrative penalties and criminal liability risk.

The signing of "Yin and Yang" contract the seller can therefore pay less don't even pay business tax, personal income tax and other taxes. Once the tax authorities found the existence of tax evasion behavior, it will not only be recovered taxes, may also be fined. "Standard" tax administrative punishment case in the fifth paragraph third, account management or the use of false contracts, agreements, concealing taxable income project a tax evasion amount 1 to 3 times the amount of. In the revised "criminal law", the provisions of article 201st, taxpayers to take deception, conceal the means of false tax returns or not to declare, to avoid a large amount of pay taxes and the tax payable shall be accounted for more than ten percent, is less than three years imprisonment or criminal detention, and shall also be fined; the huge amount of the tax payable shall be above thirty percent and at three years, more than seven years in prison, fined.

Intermediary in the contract of yin and Yang is the administrative punishment

The law must have evidence to prove that the intermediary in the contract of yin and Yang, will have the responsibility. Evidence is mainly refers to the intermediary signed or stamped on the transfer price confirmation or supplementary agreement, or also in reservation and sale contract stamped but two copies of the contract price gap. But, even if there is evidence to prove that the intermediary in the contract of yin and Yang, the existing civil, criminal law for mediating this behavior does not clearly defined, the only industry norms and administrative punishment standard, the court generally will not direct decision intermediary for assisting tax avoidance and bear the responsibility, is the largest authority relevant departments for levying tax and administrative punishment. At the same time, the administrative authorities and industry associations have the right to participate in the intermediary contract of yin and Yang of administrative punishment.

In recent years, to curb real, the state charged in the second-hand housing transactions tax steadily rising, but there are always some people not willing to pay taxes, fancy to come up with some tax evasion. As a countermeasure, the signing of the "Yin contract" to tax evasion and avoidance is very common. According to Fangguansuo staff introduced, their handling of the second-hand housing transactions, signed the "contract of yin and Yang" accounted for more than half of. These contracts are mainly to do the transaction price, common names the "decoration compensation", "account transfer fee", "relocation" etc.. Housing ownership people to escape the second-hand housing transactions involving business tax and other local taxes or bank loan for the purpose, the signing of "Yin and Yang" two sales contracts in the secondary housing transactions, and the false contracts to the real estate trading center for the registration of the transaction registration. Ordinary secondary residential non our province (mainly to 144 square meters for the community, the general residential) in the transaction link the tax negative close to the transaction price of 10%, including sales tax (payment, the tax rate of 5.55%, the transfer of more than 5 years of housing could be exempt from deed tax (3%), tax, the buyer to pay, ordinary residential halved) stamp duty, fees, etc.. A total of 500000 yuan of non ordinary residential, if up to 45000 yuan to transfer the tax can be in 5 years, if the contract price is reduced by 100000 yuan, tax 9000 yuan can be saved. And for registration in the real estate management department, unless the transaction price deviates significantly from the average market price, to re evaluate the value of real estate consider relevant departments will.

In Mr. Wang to sell a second-hand through the intermediary of the housing, the negotiated price, he advocated and buy a but on transactions in the last million yuan tax burden problem difficult to reach an agreement, and finally to 42 million transaction price of a set of 80 square metres of housing property, and signed housing contracts of sale. To pay taxes and fees, the parties to a contract the sale of housing, the sale price for the 30 million, when Mr. Wang hesitated: on the one hand, feel the risk, on the other hand, feel save thousands of dollars is cost-effective, quickly handle the property transfer procedures, pay the relevant taxes zhang. All the formalities, Zhang still owe 120000 yuan 1629, Mr. Wang has repeatedly demanded. Mr. Wang on the basis of the first contract, asked Zhang immediately pay the remaining 1629 120000 yuan. Zhang advocated on the basis of the second copies of the contract agreed price. The parties to the dispute not.

A set of housing transactions, two copies of the contract, but also has the "signature", whose contract "more" effective? From the "evidence law" sense, to record the transfer price shall prevail, registration act is a specific administrative act, the administrative organ of a result, proved this registration must be higher than the general evidence. In this case, proof of housing management authority transfer, the transfer of property rights registration of evidence is the most effective. Both sides of the contract from the legal angle is equal, but the transfer of property rights registration "support" Zhang "low price" contract is more powerful. If Lee can not come up with evidence or third party evidence to prove that he held the contract transaction intention is expressed, it can only give up the recovery of 12 million yuan claims. The signing of the "Yin contract" party once a dispute to default or cancel the contract, if the parties to a contract concluded that private price cannot prove that both sides is according to the actual price contract, then the evidence from the point of view, after a contract because after registration, certificate than price contract. This may lead to buyers pay higher limit, but the termination of the contract returned 1629 and calculating the liability for breach of the registration price shall prevail. In addition, when the buyer once again approved the sale of housing, a 5.5% sales tax and personal income tax may be introduced in the 20% house is sure to register the price shall prevail, which led directly to the next business taxes will be in accordance with the difference between the sale price minus the computation again lower prices, thereby increasing the tax rate.

A "contract of yin and Yang" this approach will bring endless trouble, but also will bring no small risk to the buyer.

First of all, to steal, tax evasion real estate transaction parties, this practice is illegal, criminal suspects. "PRC tax collection and management law" fortieth article: taxpayers take false tax return means, fails to pay or underpays tax evasion, is. The tax authorities shall pursue the payment of the taxes unpaid or underpaid, impose fails to pay or underpays the fine of 5 times. According to the "Regulations of the people's Republic of China Criminal Law" the amount of tax evasion, the tax payable shall be accounted for more than 10% and the amount of tax evasion in 10000 yuan of above or by the tax authorities for tax evasion two administrative sanctions and tax evasion, will constitute the tax evasion crime, may be sentenced to criminal detention or prison punishment.

Secondly, for real people, the secondary housing transactions truthfully report the transaction price, will lead to the purchase after the transfer of the property tax may increase substantially.

In addition, according to the "contract law" the relevant provisions of the people's Republic of China, the signing of "Yin and Yang" contract for the sale of two copies of the buyer in the secondary housing transactions if the crooked brains, adhere to the contract price for it, the rest of the difference will not be paid, will cause the contract dispute, no, once saved the relevant evidence or related the witness, and the buyer pays the limit and not in full, then the entire transaction may be to "cheap" the buyer ended. Even keep the relevant evidence to the seller, or witness the two sides of the transaction is to deal with a higher price, because such transactions suspected of tax evasion, tax authorities can also be in accordance with relevant laws and regulations, the business tax or individual income tax evasion behavior fines or even criminal responsibility. Parties to the transaction caused great economic losses if the party is not necessary.

Finally, to remind you: the sale of housing can not be greedy small profits, yin and yang contract avoidance risk!