Updated Regulations regarding Withholding Tax in China

Transcription

1 Updated Regulations regarding Withholding Tax in China Fiona Fan Director, Accounting Services NCO China Oct 13, 2010

2 Agenda Key concepts and regulations about withholding tax in China Relationship between withholding tax and double tax treaty Procedures of applying for approval from tax bureaus

3 Key Concept & Regulations

4 Key concepts and regulations for withholding tax What is withholding tax Withholding tax is not a type of tax but a method of collecting tax. Many kinds of taxes can be withheld. Individual Income Tax Corporation Income Tax Stamp Duty, business tax etc.

5 Key concept and regulation for withholding tax When the tax will be withheld? - The money receiver is not a registered tax payer in China - The tax is paid by the money payer on behalf of money receiver

6 Key concept and regulation Re. withholding tax Today s focus Regulations and payment procedures about withholding tax when payment (not for normal trading) is made out of China.

7 Key concept and regulation for withholding tax Normally, two taxes will be required - Corporation income tax for a corporate or individual income tax for an individual - Business tax

8 Key concept and regulation for withholding tax Corporation Income Tax is determined by - the nature of payments - days in China - service venue

9 Nature of payment Key concept and regulation for withholding tax Conditions Taxable income CIT Rate Dividend Before 2008 NIL Interest Royalty After 2008 (2008) Dividend to be paid Interest to be paid Royalty to be paid Service fee Services render out of China NIL 10% ( according to DTT) 10% ( according to DTT) 10% ( according to DTT) Services render in China more than 6 months (183 days) Services render in China within 6 months (183 days) Service fee to be paid NIL Deemed profit margin * 25%

10 Key concept and regulation for withholding tax Nature of payment Equity acquisition Conditions Taxable income CIT Rate Indirect share transfer * NIL * Direct share transfer Capital gain 10% * Relevant supporting documents need to be reported to tax bureau if: The seller has the real control power The tax rate in the jurisdiction of intermediary Co. is less than 12.5% or tax exempted Tax authorities may disregard the existence of a intermediary company if the purpose of this company was for tax avoidance. Therefore, the sale of the company will be subject to Chinese tax.

11 Key concept and regulation for withholding tax Individual Income Tax is determined by - the nature of payments - days in China - service venue

12 Key concept and regulation for withholding tax Nature of payment Dividend Interest Royalty Service fee Conditions Taxable income IIT Rate Services render out of China Services render in China more than 6 months (183 days) Services render in China within 6 months (183 days) NIL Interest to be paid Tax table for independent constructor NIL Service fee to be paid NIL 20% 20% Tax table for independent constructor

13 Key concept and regulation for withholding tax Business Tax is determined by - whether the transaction is subject to business tax or not

14 Key concept and regulation for withholding tax Nature of payment Dividend Interest Royalty Service fee Conditions Taxable income BT Rate Services render out of China Services render in China more than 6 months (183 days) Services render in China within 6 months (183 days) NIL Interest to be paid Royalty to be paid NIL Service fee to be paid Service fee to be paid 5% 5% 5% 5%

15 Key concept and regulation for withholding tax Nature of payment Equity acquisition Conditions Taxable income BT Rate Indirect share transfer * NIL * Direct share transfer NIL * * The paid business tax can not be regarded as deductible expenses for corporation income tax.

16 Relationship between withholding tax & Double tax treaty

17 Withholding tax & double tax treaty Purpose of double tax treaty - to avoid double taxation on home and foreign countries; - to prevent the fiscal evasion with respect to taxes on income

18 Withholding tax & double tax treaty Tax rate in double tax treaty Tax Rate Country Dividend Interest Royalty Sweden 5%* 10% 10% Denmark 10% 10% 10% Hong Kong 5%* 7% 7% Singapore 5%* 7% 10% * The mother company needs to occupy more than 25% shares of the subsidiary.

19 Withholding tax & double tax treaty Double tax treaty is prevail It needs to apply for enjoying double tax treaty

20 Withholding tax & double tax treaty The six-month rule The income tax will be exempted if the loan is provided by government bodies The double tax treaty is for income tax only

21 Procedures of applying for approval from tax bureau

22 Procedures of applying for approval When should be applied - Before any foreign payments - Use as costs or expenses

23 Procedures of applying for approval Who should go to Tax Bureau to apply - The actual payer should be the overseas companies based in China - If the payer does not apply, the money receiver should apply oneself or appoint an agent - Note: if the withholding tax is paid by the domestic enterprises, calculation will be different

24 Procedures of applying for approval Application department - First, go to National Tax Bureau - And then, go to Local Tax Bureau - Note: If one single payment is less than $30,000, there s no need to go to any tax bureau

25 Procedures of applying for approval Important preparation documents for National Tax Bureau 1. Withholding (deduction) at source: dividend, interest, rent, royalty, property transfer i. Contract record registration Enterprise income withholding tax contract record registration form Contract, copy of the official receipt (Fapiao) Board resolution Auditing report (the year of payment) Explanation for any differences

26 Procedures of applying for approval ii. Application for Tax Agreement to Foreign Resident iii. Documentation submission - contract, original and photocopy of the Fapiao (in Chinese and English) - business license, the original duplicate of tax registration certificate and photocopy - writing application: contract signing date, expire date, amount, currency, exchange rate, tax payment party, tax calculation sheet - apply for tax payment after the primary audit

27 Procedures of applying for approval - Enterprise income withholding tax report form (Tax Agreement to Foreign Resident attachment) - Foreign payments on service and trading projects need to complete the tax certificate form - Related contract progress form for the sales and purchase of foreign exchange - Pay for the tax in Bank 7 days before Submit to the National Tax Bureau with tax receipt and above mentioned documents. Wait for the approval notification from National Tax Bureau

28 Procedures of applying for approval iv. Tax certificate for overseas payment on service trading, profit, current transfers and some of the capital project

29 Procedures of applying for approval 2. Withholding at contracting work and labor offering projects: contracting work, architectural design, shows and sporting event, management employment, after sale services, repair and replacement business, exhibit and sale of products, field sales, and mining business etc. Procedures and preparation documents are similar to withholding at source.

30 Procedures of applying for approval Important preparation documents for Local Tax Bureau - Tax certificate issued by National Tax Bureau for overseas payment on service trading, profit, current transfers and some of the capital project - Contract, Fapiao (contract stamp duty) - writing application - apply for tax payment after the primary audit - Submit to the Local Tax Bureau with tax receipt and above mentioned documents.

31 Procedures of applying for approval - Wait for the approval notification from Local Tax Bureau - Acquire the Tax certificate for overseas payment on service trading, profit, current transfers and some of the capital project - Voucher of Tax Withholding and Collection

32 Tax Changes Concerning Representative Offices Major changes include: Application for Enterprise Income Tax (EIT) exemption from ROs will no longer be accepted; Existing tax exempted ROs will be cleared up; Business tax will be paid on actual China source income and profit tax will be paid on actual profit; Cost plus method used for RO with inaccurate revenue records; Actual revenue/deemed profit method used for RO without accurate expenses or cost records.

33 Tax Changes Concerning Representative Offices Major changes - continued: The minimum deemed profit rate has been increased to 15%; 15% - 30% for construction, design, consulting service; 30% - 50% for management service; No less than 15% for other services; Minimum tax burden has been increased from 8.8% to 10.9%.

34 Issues for Clarification The following issues require further clarification from tax authorities: If the RO is used for preparatory and auxiliary purposes, will the RO is allowed to apply for tax exemption according to tax treaty? If so, how do you deem an RO to be for preparatory and auxiliary purposes? How do we define China source income when an RO is not supposed not to carry out any operation in China from legal standpoint? How will the tax officer determine the deemed profit rate? The business tax rate for legal entities is from 3% to 20%. Will the same rate apply to ROs?

35 Recent Tax Changes Concerning Equity Transfers

36 What is an Equity Transfer? Scenario One A non-china resident company ( seller ) sell part/all of its shares of a Chinese company to another non-china resident company or a domestic company. Scenario Two A non-china resident company sell part/all shares of its subsidiary ( intermediary Co. ) which owns part/all shares of a Chinese company.

37 Tax Changes Concerning Equity Transfers Major Changes Under Scenario One: If a capital gain incurred, relevant withholding tax is required; Capital Gain = Selling price Purchased cost Retained earnings will not be excluded from the equity transfer price; Cost = Amount of initial contribution / consideration The foreign currency of the initial contribution and the exchange rate at the date of subsequent investment should be used.

38 Tax Changes Concerning Equity Transfers Example: Changes Under Scenario One A foreign company would like to sell 100% of its Chinese subsidiary at the price of USD 100, which includes the Chinese subsidiary s retained earnings of USD 40. The initial contribution is USD 30. Withholding Tax = (USD100-USD30)* 10% = USD 7 A foreign company would like to sell 100% of its Chinese subsidiary at the price of USD 60 and decided to distribute its Chinese subsidiary s retained earning USD 40 before the transfer. The initial contribution is USD 30. Withholding tax = (USD60-USD30)* 10% = USD3

39 Tax Changes Concerning Equity Transfers Major Changes Under Scenario Two: Relevant supporting documents need to be reported to tax bureau if: The seller has the real control power The Procedures tax rate in of the applying jurisdiction for approval of from intermediary tax bureaus Co. is less than 12.5% or tax exempted Tax authorities may disregard the existence of a intermediary company if the purpose of this company was for tax avoidance. Therefore, the sale of the company will be subject to Chinese tax.

40 Questions and Answers

41 Contact Us NCO China Fiona Fan Director, Accounting Services Beijing: (8610) Shanghai: (8621)