THE HONG KONG INSTITUTE OF CHARTERED SECRETARIES. Suggested Answers

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1 THE HONG KONG INSTITUTE OF CHARTERED SECRETARIES Suggested Answers Level : Professional Subject : Hong Kong Taxation Diet : June 2007 The suggested answers are published for the purpose of assisting students in their understanding of what may be expected from a good candidate in the time allowed for each paper. They are in no way exhaustive nor model answer to the questions. They do not reflect the opinion of HKICS. 1

2 THE HONG KONG INSTITUTE OF CHATERED SECRETARIES HONG KONG TAXATION JUNE 2007 Suggested Answers SECTION A 1. (a) An assessor has the following rights: Section 51(1) - Requiring a taxpayer to file a return within the time limit specified. Section 51(3) - Requiring a taxpayer to supply information in support of the return. Section 51(4) (a) - Obtaining any information that may affect the tax liability or obligation of any person from such person or any other persons. Section 51A (4) (b) - Summon any person to attend and be examined with regard to any matters which may affect his tax liability or obligation. Section 51A Obtaining a statement of assets and liabilities with the consent of the Board of Review. Section 51B - Issuing search warrants upon application to the Magistrate. (b) Upon receipt of an objection, the Commissioner will give order to Benny for the payment of tax as follows: To holdover the tax in dispute unconditionally. To holdover the tax in dispute conditionally requiring the taxpayer to purchase a Tax Reserve Certificate. To holdover the tax in dispute conditionally requiring the taxpayer to furnish a banker s undertaking. To order the taxpayer to pay the tax as demanded on the notice of assessment. 2

3 (c) Cola Limited should be subject to Hong Kong property tax on its rental income under section 5(1) of the Inland Revenue Ordinance. As the meaning of business under section 2 includes letting or subletting by a corporation, such rental income would also be subject to Hong Kong profits tax. Cola could apply for a property tax exemption under section 5(2)(a), provided that the rental income derived from the property concerned is included as part of the profits of the trade carried on by the corporation. If no exemption has been claimed, Cola can set off any property tax paid against its profits tax payable as provided under section 25. (d) Bad and doubtful debts are allowable for deduction under section 16(1)(d) of the Inland Revenue Ordinance, provided that: the debt must have originally been included as a trading receipt; or it is money lent in the ordinary course of lending business; and positive action has been taken to enforce collection and this has proved to be fruitless; and if the debt is a provision, it must be specific in nature. (e) Capital expenditure incurred on the renovation or refurbishment of a building or structure can be deducted over five years of assessment under section 16F, provided that: the building or structure concerned is not used or intended to be used as a domestic building; the capital expenditure has not been incurred to enable a building or structure to be first used for the production of profits; the capital expenditure has not been incurred to enable a building or structure to be used for a purpose different from which it was used immediately before the capital expenditure was incurred. 3

4 (f) Any salary or interest on capital received by a partner from a partnership is exempt from salaries tax (section 8(2)). On the other hand, salaries paid by a partnership to its partner should not be considered to be a deductible expense (section 17(2)). The amount of rental income received by Fanny will be taxable under property tax. When rent is paid by a partnership to its partner or his/her spouse, the amount of rent deductible is limited to the assessable value of the property (section 16(1)(b)). (g) Income coming from the following three sources is subject to Hong Kong salaries tax under section 8(1): An office which is a permanent substantive position that has an existence independent of the persons who fills it. An example is a director created under the Companies Ordinance. An employment exists where there is a contract of service, i.e. when there is a master-servant relationship. A pension is a periodical payment which is payable after a person has retired from his job. 1 (h) Conditions for deducting an approved charitable donation under section 26C of the Inland Revenue Ordinance: It must be made to an approved charitable organisation. The aggregate amount must not be less than $100. The maximum allowable deduction is 25% of the assessable income after deduction of outgoings and expenses. It must be a pure donation from which no material benefit is derived. 4

5 (i) Ivan Iu Property tax $ Estimated assessable value for 2006/07 ($30,000 x 12) 360,000 Less: 20% statutory deduction (72,000) Estimated net assessable value 288,000 Provisional tax 46,080 Actual assessable value for 2007/08 ($30,000 x 2 + $24,000 x 7) 228,000 Less: 20% statutory deduction (45,600) Revised net assessable value 182,400 Revised provisional 29,184 The amount of provisional property tax for 2007/08 to be held over is $16,896 ($46,080 - $29,184). (j) The agreement for sale and purchase of residential property should be subject to stamp duty under Head 1(1A) of the Stamp Duty Ordinance. As the duty rate for any property valued over $6,720,000 is 3.75%, the amount of stamp duty payable on or before 1 August 2006 is $300,000 ($8,000,000 x 3.75%). Adding or deleting the name of parent, spouse or children to/from the conveyance agreement does not constitute a change of purchasor. Hence the conveyance agreement should be considered to have been executed in conformity with the agreement for sale and purchase, and is liable to a fixed duty of HK$100. 5

6 SECTION B 2. (a) Under section 5(1) of the Inland Revenue Ordinance, property tax is levied on the owner of land and buildings situated in Hong Kong. Therefore if the property is held in Bill s own name, as an individual letting property in Hong Kong he will be subject to property tax. Property tax is charged at the standard rate on the net assessable value of the property. Net assessable value is defined in section 5(1A) as the assessable value of land and buildings less rates paid by the owner and a 20% statutory deduction. A lump sum premium will be spread over the shorter of the lease period or three years commencing from the start of the lease period. Business under Section 2 includes agricultural undertaking, poultry and pig rearing, the letting or subletting by any corporation of any premises, and the subletting by any other persons of any premises held by him under a lease or tenancy other than from the Government. Hence if the property is held in the name of a company incorporated in the UK, the rental income is chargeable to profits tax. The company shall apply to the Commissioner for a property tax exemption and have the rental income taxed under profits tax. Under profits tax, actual expenses are allowed but the 20% statutory deduction and the spreading of lump sum premium are not available. The corporation will also be entitled to a commercial building allowance (i.e. 4% on the cost of construction). (b) Even though Bill is liable to property tax in respect of the consideration received by him, his loan interest will not be deductible under property tax. Alternatively, Bill may consider electing for personal assessment if he is eligible for such an election. Under personal assessment, loan interest is deductible against the net assessable value of the property (but limited to the net assessable value). 6

7 Personal assessment may be elected by a person who is: An individual Aged 18 or above, or under that age if both his or her parents are dead Either a permanent or temporary resident in Hong Kong, or if he or she is married, whose spouse is either a permanent or temporary resident If Bill continues to reside in the UK after acquiring the property and does not meet the criteria for residence, he might not be eligible for personal assessment. If the interest expense has been incurred by the UK company for the production of rental income under section 16(1)(a), the amount will be deductible if one of the conditions in section 16(2) is fulfilled (providing that sections 16(2A), 16(2B), 16(2D) and 16(2E) do not apply). Based on the information provided in the question, the interest income is paid by Bill to a corporation in Hong Kong. If the interest income is chargeable to tax in Hong Kong in the hands of the recipient, the interest expenses will be deductible. 7

8 3. (a) Cyperware Limited Profits tax computation Year of assessment 2006/07 Basis period: Year ended 31 March 2007 $ $ Net profit before tax 1,600,000 Add: Share of partnership loss ($900,000 - $400,000 - $100,000) 400,000 Commission - Offshore trading profits 900,000 - Undisclosed recipients 140,000 Contribution to Mandatory Provident fund - Calvin ($900,000 x 10%) 90,000 - Cecilia ($400,000 x 5%) 20,000 Depreciation 160,000 General administration expenses ($240,000 x 2,500,000/9,500,000) 63,158 Profits tax 250,000 2,023,158 3,623,158 Less: Offshore trading profits 2,500,000 Refurbishment expenditure ($120,000 x 20%) 24,000 Depreciation allowances 220,000 (2,744,000) Assessable profit 879,158 Profits tax 153,853 (b) Section 14(2) (b) of the Inland Revenue Ordinance provides that a corporation s share of assessable profits in a partnership should be charged at the corporation tax rate. On the other hand, section 19C (5) provides that a corporation s share of loss in a partnership may be set off against the corporation s assessable profits for the year of assessment in which the loss was incurred. However, in the case of a limited partnership, section 22B(3) states that the 8

9 amount of loss which may be set off against a corporation s assessable profits should be limited to the lesser of: the corporation s share of the partnership loss; or the corporation s share of investment in the partnership. The share of investment in the partnership refers to the aggregate of the amount contributed as capital by a corporation plus the amount of its share of partnership profits not yet received. Accordingly the amount of Cyperware s share of partnership losses which may be set off against its assessable profits is the lesser of: its share of partnership loss $900,000; or its share of investment in Cyper & Co $500,000 ($400,000 + $100,000). Any excess share of the partnership loss (i.e. $400,000) should be carried forward in Cyper & Co and set off against its future profits. 9

10 4. (a) As David is employed by a Hong Kong company, he has a Hong Kong employment and therefore liable to salaries tax under section 8(1) of the Inland Revenue Ordinance. As David has a Hong Kong employment, he can only be exempt from Hong Kong salaries tax if he rendered all his services outside Hong Kong (section 8(1A)(b)(ii)) or visited Hong Kong for not more than 60 days in the year of assessment 2005/06 (section 8(1B)). Although David was not present for more than 60 days in Hong Kong in the year of assessment 2005/06, he has commenced a Hong Kong employment and his stays in Hong Kong therefore cannot qualify as visits. As such, David s income for the period from 1 March 2006 to 31 March 2006 is fully chargeable to salaries tax. David Dai Salaries tax Year of assessment 2005/06 $ Salaries 300,000 Add: Rental value ($300,000 x 4%) 12,000 Assessable income 312,000 (b) David Dai Salaries tax computation Year of assessment 2006/07 $ $ Salaries 1,200,000 Bonus 200,000 Reimbursement of utilities expenses 10,000 Telephone allowance ($2,000 x 12) 24,000 Holiday benefit ($20,000 x 3/10) 6,000 1,440,000 Add: Rental value ($1,440,000 x 9/12 x 4%) 43,200 ($1,440,000 x 3/12 x 10%) 36,000 79,200 Assessable income 1,519,200 10

11 Less: Mandatory Provident Fund contribution (12,000) Net assessable income 1,507,200 Less: Married person allowance 200,000 Child allowance 40,000 (240,000) Net chargeable income 1,267,200 Tax at standard 241,152 Tax at progressive rates 242,640 Tax payable 241,152 11

12 5. Eric Chan Salaries tax Year of assessment 2006/07 $ $ Salary 800,000 Bonus 100,000 Home purchase allowance 120,000 1,020,000 Less: Subscription to ACCA 2,000 Self education expenses 10,000 (12,000) Net assessable income 1,008,000 Elaine Chan Property tax Year of assessment 2006/07 Rent 96,000 Less: 20% statutory deduction (19,200) Net assessable value 76,800 Eric and Elaine Chan Personal assessment Year of assessment 2006/07 Eric Elaine Joint $ $ $ Net assessable income 1,008,000 - Net assessable value - 76,800 Assessable profit - 180,000 1,008, ,800 Less: Mortgage interest - (30,000) 1,008, ,800 Less: Concessionary deductions Home loan interest (100,000) - Residential care expenses (48,000) - 860, ,800 Less: Share of partnership loss - (100,000) Loss b/f - (300,000) 860,000 (173,200) Loss transferred from spouse to another (173,200) 173,200 12

13 Reduced total income 686, ,800 Less: Approved charitable donations (Limited to 25% x $(686,800+20,000) - 20,000)) (156,700) 530,100 Less: Married person s allowance 200,000 Dependent parent allowance - Basic (father) 30,000 - Additional (father) 30,000 (260,000) Reduced total income after personal allowance 270,100 Tax at standard 84,816 Tax at progressive rates 43,220 Tax payable by Eric 43,220 Tax payable by Elaine NIL 13

14 6. (a) No stamp duty will be imposed on the transfer of fixed assets, trademark, accounts receivable and accounts payable, as they are neither immovable properties nor shares. Under Head 1(1A) of the Stamp Duty Ordinance, stamp duty is imposed on the consideration or value for the transfer of the immoveable property, whichever is the higher. And according to section 24(1), where the conveyance or transaction is in consideration of any debt due to the transferee or is subject whether certainly or contingently to the payment or transfer of any money or stock, the debt, money or stock is to be deemed as the whole or part of the consideration. Hence the agreement for sale of staff hostel together with the outstanding mortgage will be subject to stamp duty of $90,000 (($2,000,000 +$2,000,000) x 2.25%). On the other hand, the subsequent conveyance agreement which has been executed in conformity with the previous agreement for sale will be liable to a fixed duty of $100 under Head 1(1). (b) Similarly the transfer of the director s quarters from Flavour to its director will be liable to stamp duty under Head 1(1A). The stamp duty payable on the agreement for sale and purchase of the director s quarters is $45,000 ($3,000,000 x 1.5%). However the transfer of the office building from Flavour to its fellow subsidiary should be chargeable under Head 1(1), as Head 1(1A) only applies to residential buildings. The amount of stamp duty payable on the conveyance agreement is therefore $150,000 ($5,000,000 x 3%). Section 45 relief for conveyance of immovable property or transfer of Hong Kong stock only applies when: one body corporate is the beneficial owner of not less than 90% of the issued share capital of the other; or a third body corporate is the beneficial owner of not less than 90% of the issued share capital of each of the companies. Should Flavour wish to apply for section 45 relief, it has to prove to the Collector of Stamp Revenue that none of the following anti-avoidance 14

15 provisions apply: If any part of the consideration for the transfer of immovable property or Hong Kong stock between associated companies was provided by an unrelated non-associated person, section 45 relief is not applicable. If there is an arrangement at the time of the transfer of immovable property or Hong Kong stock that the two companies will cease to be associated even after two years of the transfer, section 45 relief is not applicable. The Collector has issued a ruling stating that as long as he is satisfied that the loan was made by a bank or a deposit taking company in the ordinary course of business, and that neither the bank and the deposit taking company has any interest in the property other than as security, the provision of purchase money by the bank or deposit taking company would not cause a denial of the section 45 relief. It should be noted that companies held by the same individual will not qualify for section 45 relief. Hence section 45 relief only applies to the transfer of property to Fair s fellow subsidiary, but not if the property is transferred to Fair s directors. However, there is a requirement under section 45 that the transferor and transferee companies have to remain associated for at least two years after the conveyance or transfer. If they cease to be associated within the two-year period, section 45 exemption will be revoked and duty is payable within 30 days of the change. Taking into account that Flavour will be liquidated immediately upon its transfer of properties, section 45 relief does not apply to the transfer of property to the fellow subsidiary. 15

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