China: Asia Tax Bulletin – Spring 2015

CHINA Tax Free Reorganisations
• With circulars 109 and 116 jointly issued in December 2014 by the Ministry of Finance and the State Administration of Taxation, the Chinese authorities have relaxed the conditions for internal reorganisations.
• Circular 109 deals with internal reorganisations. Provided the pertinent requirements are met, the transfer of shares of a Chinese company within the group will not be subject to Chinese income tax. There must be a reasonable commercial reason for the transfer, the equity acquired must be at least 50 percent (previously: 75 percent) of the total equity of the target company (in an asset transaction, the assets acquired should be at least 50 percent (previously 75 percent) of the total assets of the transferor), there must be no change in the original operating activities for a prescribed period of time, shareholder equity must comprise at least 85 percent of the total consideration (thus: the debt may be up to 15 percent of the total consideration) and the equity consideration received should not be sold or transferred within a prescribed period of time. This facility is applicable for both domestic and foreign shareholders.
• Interestingly, a new item, which was included in circular 109, is a deferral treatment, which is applicable only to domestic intra-group transfers (from Chinese to Chinese company). There will be no income tax on the transfer of the assets if (a) transferor and transferee are 100 percent owned by the same direct or indirect shareholder or own each other for 100 percent, (b) the transfer takes place at book value, (c) no loss or profit can be recognised in the financial accounts, the transaction is done for reasonable commercial reasons other than tax and there is no change in the operating activities for 12 months after the transfer. This facility is especially interesting, because it does not require a certain threshold interest to be acquired and neither does it require the consideration to be paid for with equity.
• Circular 116 provides for any enterprise income tax liability arising from a transfer of assets to a Chinese company in order to pay up shares issued by the latter to be payable over five years.

Indirect Transfers of Chinese Companies
• As anticipated, on 6 February 2015, China’s State Administration of Taxation (SAT) issued Public Notice [2015] No. 7 (Public Notice 7) dealing with indirect transfers of Chinese taxable assets. It substantially replaces Circular 698 and Bulletin 24 and introduces a new reporting regime which is significantly different from the previous rules. Public Notice 7 has retroactive effect to indirect transfers which have occurred since 1 January 2008 but have not yet been decided upon by the Chinese tax authorities.

WHAT IS THIS ABOUT?
• If a foreign investor sells or reorganises shares (and equity-like interests) in another foreign company (Foreign Company) which directly or indirectly holds Chinese taxable assets, and if this effectively has a similar effect to directly transferring these Chinese assets, then any gain attributable to the Chinese assets will be subject to Chinese income tax if manner in which the sale or reorganisation is conducted does not have reasonable bona fide commercial purpose. There will be no income tax liability if the manner in which the transfer is conducted has reasonable bona fide commercial purpose.
• Chinese taxable assets now include (1) assets attributable to an establishment in China, (2) immovable property in China and (3) shares in Chinese resident companies.

WHAT HAPPENS IF THE INDIRECT TRANSFER LACKS REASONABLE BONA FIDE COMMERCIAL PURPOSE?
• The gain from an indirect transfer of the property of an “establishment or place” situated in China will be treated as income that is effectively connected with that “establishment or place” and subject to 25 percent Chinese income tax.
• The gain from an indirect transfer of real property situated in China and the gain from an indirect transfer of equity interests in Chinese resident companies will be treated as China-sourced income and subject to 10 percent withholding tax.

THE GOOD NEWS
• Unlike Circular 698, Public Notice 7 no longer imposes an obligation on the transferor to report the transfer to the Chinese tax authorities. However, if the transferor does not report the transfer and it turns out to be subject to income tax because it lacks sufficient bona fide commercial purpose, then the transferor or the transferee will be subject to severe penalties.
• Public Notice 7 e xempts from income tax (1) a s ale of shares of the Foreign Company if it occurs through normal trading on a stock exchange and (2) a sale of shares of the Foreign Company which would have been exempt from Chinese income tax under an applicable tax treaty if the transferor would have sold the Chinese assets directly.
• Public Notice provides more guidance as to what constitutes bona fide commercial purpose1.
• Public Notice 7 gives clarity when an indirect transfer will be deemed to lack sufficient bona fide commercial purpose.2
• Public Notice 7 contains a safe harbour for qualifying internal reorganisations.3
• Better protection for taxpayers and clarity on procedure if the Chinese tax authority wants to tax an indirect transfer: they must first obtain prior approval from the SAT on all major steps of an investigation and they must give the taxpayer an opportunity to appeal against an adjustment decision before this decision can be finalised.

THE BAD NEWS

• The scope of situations affected by Public Notice 7 now includes Foreign Companies directly or indirectly owning Chinese immovable assets and assets attributable to an establishment in China, whereas previously it only included the transfer of equity in a Foreign Company which directly or indirectly owns equity in a Chinese company.
• If the indirect transfer lacks reasonable bona fide commercial purpose, both the transferor, the transferee and the Chinese company whose equity is indirectly being transferred have a reporting obligation4 within thirty days of the date of the transfer, failing which penalties will be due. Under the previous rules only the transferor had a reporting obligation. This raises a serious practical challenge for the purchaser, who is often unable to assess whether the transfer is subject to Chinese income tax and what the amount of the tax liability is.
• The party acquiring the equity in the Foreign Company or its paying agent is primarily responsible for paying the Chinese tax in the event the transaction lacks reasonable bona fide commercial purpose, failing which the transferor will be liable to pay the Chinese income tax. If the transferor fails to pay the income tax, the party acquiring the equity in the Foreign Company will be liable for the income tax due plus a penalty. The penalty could range between 50 percent and 300 percent of the income tax liability, subject to a waiver or reduction of the penalty if the acquirer reports the transaction within thirty days after the date of the transfer. The transferor will be liable for a penalty if neither the transferee or the transferor have paid the income tax on the transfer. The offshore seller has an obligation to file a tax return and pay tax within seven days from the date when the tax liability arises if the purchaser (or its withholding agent) fails to withhold the tax. If the offshore seller fails to pay the income tax in full within the prescribed time limit, the offshore seller is subject to a daily interest rate equal to the benchmark RMB lending rate published by the People’s Bank of China plus 5 percentage points. For the indirect transfer of the property of an “establishment or place” situated in China, the “establishment or place” must include the capital gains in its taxable income of the tax year.
• The SAT has no obligation to make a determination on taxability. In most cases the offshore seller and the “establishment or place” are not able to determine whether the indirect transfer is taxable in China within the prescribed time limit.
• As Public Notice 7 does not address this point, there is uncertainty whether the tax authorities will recognize the tax paid in prior indirect transfers when determining the tax basis in subsequent direct or indirect transfers.

KEY TAKE AWAYS

• If an indirect transfer of Chinese assets lacks sufficient bona fide commercial purpose, the seller is still liable for the income tax liability on the sale, including reporting the same to the SAT, but the purchaser now has a withholding and reporting obligation and can be liable if the seller does not pay the tax. This is problematic as there will now need to be an overt discussion on the amount of the tax that is to be paid and therefore the amount that is withheld (or held in escrow), previously something that sellers in practice were generally very reluctant to discuss with purchasers.
• Purchasing parties will need to amend their Sale and Purchase Agreements (SPAs) to reflect the new withholding and reporting obligations in order to protect themselves when they acquire assets which are subject to Public Notice 7.
• Investors should keep sufficient evidence on record to substantiate the reasonable commercial purpose criteria, including minutes of board of directors meetings, shareholders meetings and correspondence with the SAT, if any.

Business Tax on Sale of Residential Property
• On 30 March 2015, the Ministry of Finance (MoF) and the State Administration of Taxation (SAT) jointly issued a notice (Cai Shui [2015] No. 39) concerning business tax on the sale of houses owned by individuals. The notice applies as from 31 March 2015.
• According to the notice, the full amount of sale proceeds is subject to business tax if the house has been in the possession of an individual for less than two years.
• If the house sold is non-ordinary (large and luxurious with a surface area greater than 140 m2 and the price more than 120 percent of the average housing price) and has been in the possession of an individual for two or more years, only the capital gain is subject to business tax, which means that the acquisition price can be deducted from the taxable amount, and the balance between the acquisition price and sale proceeds is taxed.
• An individual is exempt from business tax on the sale of the house if it is an ordinary house, and the individual has been in possession of it for two or more years.
• Previously, the exemption from business tax applied if the holding period of the house was more than five years in the period from 28 January 2011 to 30 March 2015 (Cai Shui [2011] No. 12). With this new notice, Cai Shui [2011] No. 12 ceases to apply.
• Further, the relevant tax administrative rules regarding the definition of a non-ordinary house, application of the exemption and requirements for documents provided in the notices Guo Fa Ban [2005] No. 26, Guo Shui Fa [2005] No. 89 and Guo Shui Fa [2005] No. 172 remain applicable.

Tax Incentives for Western Regions
• The State Administration of Taxation (SAT) issued an announcement on 10 March 2015 (SAT Gong Gao [2015] No. 14) concerning clarification of enterprise income tax issues arising from the implementation of the “Catalogue of Encouraged Industries in Western Regions” (the “Catalogue”), which has been in force since 1 October 2014. The announcement retroactively applies from 1 October 2014.
• According to the announcement, an enterprise established in the designated western regions is subject to enterprise income tax at a reduced rate of 15 percent if its main business is one that is newly added as an encouraged business in the Catalogue and the revenue from the main business accounts for more than 70 percent of the total revenue.
• The reduced enterprise income tax rate of 15 percent ceases to apply to enterprises that enjoyed a 15 percent tax rate on the basis of article 3 of SAT Gong Gao [2012] No. 12 but are no longer considered to be encouraged under the Catalogue.

Creation of Taxes Can Only Be Done Based on Law
• The National People’s Congress, China’s highest legislative authority, on 15 March 2015 passed with immediate effect an amendment to the 2000 Legislation Law, which provides that the fundamental taxation system including the creation of a tax, the determination of a tax rate, and the collection and administration of a tax can be made only by law.
• Of China’s 18 taxes, only the enterprise income tax, individual income tax, and vehicle and vessel tax are currently made by law. All other taxes (such as the VAT, business tax, and consumption tax) are regulated by the State Council (executive branch).
• From a tax perspective, the amendment is a milestone in China’s construction of a democratic and legal society because the Legislation Law is a law that controls all other laws. The establishment of the statutory tax principle means the collection of all taxes and the legislation of tax procedures must comply with the provisions of the Constitution Law and the Legislation Law. That will significantly promote the development of the country’s tax laws.

Land Appreciation Tax in Business Restructuring Clarified
• The Ministry of Finance (MoF) and the State Administration of Taxation (SAT) issued a notice on 2 February 2015 (Cai Shui [2015] No. 5) concerning the granting of land appreciation tax (LAT) incentives in a business restructuring. The notice applies from 1 January 2015 to 31 December 2017. The transfer of state-owned land and residential property is exempt from LAT if an unincorporated business as a whole is converted into a limited liability company or a company limited by shares (joint-stock company) or where a limited liability company as a whole is converted into a company limited by shares (joint-stock company).
• The notice provides that the exemption of LAT applies in the case of a merger and spin-off if the main investor of the original entity remains the main investor after the merger or spin-off. The exemption does not apply to real estate development companies.

Foreign Investment Catalogue
• On 13 March 2015, the National Development and Reform Commission (NDRC) and Ministry of Commerce (MOFCOM) jointly released the 2015 version of the Foreign Investment Industrial Guidance Catalogue (2015 Catalogue) to replace the current catalogue adopted in 2011 (2011 Catalogue). The 2015 Catalogue will enter into effect as from 10 April 2015.
• The Catalogue is one of the most fundamental legal documents in the regulatory regime of foreign investment in China. It classifies industry sectors into encouraged, restricted and prohibited, and any sector not included in the Catalogue is permitted. The classification of sectors will decide the level of approval required for, and the type of incentive available to, foreign investment projects. It is viewed as a guidance from the PRC government to direct foreign investment. The 2015 Catalogue is the sixth version of the Catalogue since it was first promulgated in 1995.

Amendment to Administrative Measures on Tax Registration

• Courtesy IBFD, it was reported that the State Administration of Taxation (SAT) issued an order on 27 December 2014 concerning the amendment to the Administrative Measures on Tax Registration (SAT Order No. 36). The amendment applies from 1 March 2015 and is summarised below.
o New taxpayer identification number (TIN) system has been introduced and is used by both state tax bureaus and local tax bureaus. The entities that have acquired an organisation code will receive a TIN consisting of nine digits of the organisation code and six additional digits indicating the administrative region where the taxpayer is situated. The TIN of the entities without an organisation code is composed of the identity card number followed by two additional digits.
o The branches of enterprises operating in other regions do not need to register with the tax authorities in the places where their business operations are carried out if the business activities last for less than half a year.
o The tax authority will no longer need to conduct a field investigation on the taxpayer, even if dubious documentation is provided by the taxpayer.
o A withholding agent exempt from tax registration in accordance with relevant laws and regulations is required to register as a withholding agent with the tax authority within 30 days after the withholding obligation arises.
o The tax autority is required to examine and approve the registration on the same day as the submission of the form of tax registration alteration if the relevant documents are complete and authentic.
o The penalty on the taxpayer failing to make a tax registration or to file the alteration or cancellation within the time limit is repealed.
o The penalty on the taxpayer using the tax registration certificate inappropriately is repealed.
o The penalty fee on the withholding agent failing to make the tax withholding registration within the time limit is reduced from CNY 2,000 to CNY 1,000.

VAT Refund for Foreign Visitors – Extended Country-Wide
• The Ministry of Finance issued an announcement on 6 January 2015 (Gong Gao [2015] No. 3) extending to the whole country the pilot programme of value added tax (VAT) refund for foreign visitors on consumer goods purchased in China. The pilot programme was launched in Hainan in 2011. According to the announcement, all regions that meet the requirements of the state may set up a system of VAT refund on consumer goods with a value of more than CNY 500 for foreign visitors (including citizens from Taiwan, Hong Kong and Macau) who stay in China less than 183 days and claim the refund within 90 days of purchasing the goods. The refund rate is 11 percent of the amount stated on the invoice, including VAT. If the refund exceeds CNY 10,000, the refund can only be remitted to the bank account of the visitor and cannot be paid in cash. The implementation of this policy is intended to boost tourism to the country and to adopt the common practice of other countries that are significant tourist destinations.

Draft Foreign Investment Law Released for Public Comment
• On 19 January 2015, the Ministry of Commerce released a draft of the Foreign Investment Law of the People’s Republic of China for public comment. The new Law contains 11 chapters and will, once in force, replace the current regulations on foreign investment, i.e., Regulations on Chinese-Foreign Equity Joint Ventures of 1979, Regulations on Chinese-Foreign Cooperative Joint Ventures of 1988 and Regulations on Wholly Foreign-Owned Enterprises of 1986. We note the following two new elements.
• Investments in the form of “variable interest entities” (control over an enterprise by using contracts or agencies rather than by shareholding or other forms of ownership) will be subject to the foreign investment law and therefore to the restrictions or prohibitions imposed by that law. The same applies to situations where a foreign party has control over an enterprise in China using contracts or trusts.
• Although the draft of the new Law emphasises that foreign investment will receive national treatment, there are restrictions and prohibitions on foreign investment in certain areas. For this purpose, the State Council is authorised to issue the Catalogue of Special Measures of Administration, i.e., the catalogue specifying the restricted and prohibited industries for foreign investment. For the restricted industries in the catalogue, foreign investors need to apply for investment permission (a license). Otherwise no license is required for foreign investment. The relevant department of the State Council will issue Guidelines on Permission Examination of Foreign Investment to provide the details.

QFIIs and RQFII’s are Exempt From Non Resident Capital Gains Tax
• The exemption applies to sales made by QFIIs and RQFII’s after 17 November 2014. Any sales before that date can still be taxed at 10 percent.

Strict Transfer Pricing Rules for Service Fees and Royalties

• In a move to implement the OECD’s action plan on base erosion and profit shifting to tackle international tax avoidance, China’s State Administration of Taxation (SAT) on March 20 issued Public Notice [2015] 16, providing tougher transfer pricing rules for the administration of services fees and royalties paid by Chinese companies to foreign related parties. It takes effect from the issuance date, 18 March 2015.
• Enterprises must comply with the arm’s-length principle for expenses paid to foreign related parties. If those expenses are not at arm’s length, they can be subject to a special tax adjustment up to 10 years after the tax year in which the transaction occurred.
• Payments to an overseas related party which has no substantial operation or activities, does not undertake functions or bear risks should not be deductible for CIT purpose.
• Where an enterprise makes service fee payments to its overseas related party, the service received by the enterprise should enable it to obtain direct or indirect economic benefits. It also lists out five specific scenarios as well as a catch-all general condition of service payments that should not be deductible for CIT purpose by the Chinese payer.
• It also denies deductibility of royalties if the recipient of the royalties has not contributed to the value of the IP.

International Tax Developments

Japan. China’s State Administration of Taxation (SAT) issued an announcement on 26 February 2015 with regard to Japan’s local corporation tax which was introduced by Japan on 1 October 2014. The announcement declares that the China/Japan tax treaty applies to this new tax. As a result, the Japanese local corporation tax paid by a Chinese resident can be credited against the Chinese income tax.

HONG KONG

Budget 2015

• The Budget for 2015-16 was presented to the Legislative Council by the Financial Secretary on 25 February 2015. The tax-related proposals will, once they are enacted, apply from 1 April 2015. The main points are summarised below.

CORPORATE TAXATION
• Subject to a maximum of HKD 20,000 per case, a one-off reduction of 75 percent of the current profits tax for the year of assessment 2014-15 is proposed.
• Under specified conditions, interest for corporate treasury centres is proposed to be deductible under profits tax, and a reduction of 50 percent of the current profits tax for specified corporate treasury activities is proposed.
• An extension of the profits tax exemption to private equity funds is proposed (this is also discussed under the separate heading in this bulletin).

PERSONAL TAXATION
• A one-off reduction of 75 percent of the current salaries tax and tax under personal assessment for the year of assessment 2014-15 is proposed, subject to a maximum of HKD 20,000 per case.
• The child allowance and the additional one-off child allowance in the year of birth are proposed to be increased from HKD 70,000 to HKD 100,000 from the year of assessment 2015-16.

Termination of Contract Payment NotTaxable
• In the Aviation Fuel Supply case, the Hong Kong court of final appeal has ruled that a lump sum received by a taxpayer on termination of a contract was on capital account and not on revenue account. Consequently the income was not taxable for the taxpayer.

Increased Minimum Wage
• On 16 January 2015, notice was gazetted to adjust the Statutory Minimum Wage (SMW) rate to HKD 32.5 per hour (up from the current HKD 30 per hour). It is anticipated that the new rate will come into effect on 1 May 2015. To reflect the change to the SMW rate, the current HKD 12,300 monthly cap (above which is not necessary to keep a written record of hours worked) will be increased to HKD 13,300 per month. The change has consequences for MPF contributions for employers and employees. Employers should take steps to update their payroll procedures to reflect this change.

PE Funds Tax Exemption
• Hong Kong’s Legislative Council (LegCo) announced on 5 January 2015 that it will issue new tax legislation in the first half of 2015 to expand the scope of the current tax exemption of offshore funds managed by Hong Kong fund managers. It will include in the scope of tax exempt income, qualifying income earned from private companies (the present law excludes investments in private companies from the tax exemption). Furthermore it is proposed to include qualifying income earned by Hong Kong special-purpose vehicles (SPVs) owned by the offshore Private Equity (PE) Fund in the scope of the tax exemption.
• This is a significant development and it would offer excellent scope for tax planning for Hong Kong based investment managers of offshore PE Funds, who manage investments in private companies. They could then consider to establish Hong Kong SPVs for these investments. Given Hong Kong’s increasing network of tax treaties (presently 32) and the good quality of some of these treaties (especially its treaties with mainland China, Japan and Indonesia), using a Hong Kong SPV may be tax efficient. Currently, many of such investments are increasingly structured through Singapore tax resident companies, as Singapore offers a similar tax exemption in its current income tax law provided the pertinent conditions are satisfied.
• The new tax legislation was gazetted by the government on 20 March 2015. The Bill was introduced into the Legislative Council on 25 March 2015.

Forms for Resident Status Certificates Revised
• On 29 January 2015, the Inland Revenue Department (IRD) released the revised forms for application for certificate of resident status by a company, partnership, trust or other body of persons.
• In Hong Kong, a certificate of resident is a document issued by the IRD to a Hong Kong resident who requires proof of Hong Kong residence status for the purpose of claiming tax benefits under Hong Kong’s tax treaties.
• In general, the following persons can apply for a certificate of residence:
o An individual who ordinarily resides in Hong Kong;
o An individual who stays in Hong Kong for more than 180 days during a year of assessment or for more than 300 days in two consecutive years of assessment;
o A company, partnership, trust or other body of persons incorporated or constituted in Hong Kong; and
o A company, partnership, trust or other body of persons incorporated or constituted outside Hong Kong but centrally managed and controlled in Hong Kong.

Footnotes

1 While it says that one should consider all the facts of the case, it singles out the following criteria as being of special importance: (1) whether the equity value of the Foreign Company is mainly derived directly or indirectly from Chinese taxable assets, (2) whether the assets or income of the Foreign Company are mainly derived directly or indirectly from Chinese taxable assets, (3) whether the functions performed and risks assumed by the Foreign Company and its direct and indirect subsidiaries that hold Chinese taxable assets can justify the economic substance of the organisational structure, (4) whether foreign income tax is paid on the indirect transfer, (5) whether and how a tax treaty applies to the indirect transfer, (6) the length of time that the shareholders, business model and the organisational structure of the Foreign Company have been in existence, (7) whether it would have been possible for the transferor to directly invest in and directly transfer the Chinese taxable assets, instead of doing so indirectly.

2 If all the following criteria are satisfied: (1) 75 percent or more of the equity value of the Foreign Company is derived directly or indirectly from Chinese taxable assets, (2) 90 percent or more of the asset value (excluding cash) or the income of the Foreign Company is derived from investments in China during any moment within one year prior to the indirect transfer, (3) the functions performed and risks assumed by the Foreign Company and any of its direct or indirect subsidiaries are limited and insufficient to justify the economic substance of the organisational structure, (4) the income tax paid on the indirect transfer in both the country of the transferor and the country where the Foreign Company is established is lower than the Chinese income tax if a direct transfer of the Chinese taxable assets would have taken place.

3 The following three conditions must be satisfied: (1) the transferor and transferee are related companies, either because one owns at least 80 percent of the equity of the other or a third party owns at least 80 percent of both transferor or transferee (if it concerns immovable assets in China, the test is not 80 percent but 100 percent), (2) the new holding structure created after the reorganisation should not result in a lower Chinese income tax liability if the Foreign Company would be transferred, (3) the transferee acquires the equity of the Foreign Company by either issuing its own equity or equity of a company controlled by the transferee (this excludes publicly traded stock).

4 The documents required to voluntarily report the indirect transfer include: (i) equity transfer agreement, (ii) corporate ownership structure charts before and after the equity transfer, (iii) prior two years of financial and accounting statements for all intermediate holding companies, and (iv) a statement that the indirect transfer is not taxable.

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