Hiring Foreign Staff in the PRC

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1 Hiring Foreign Staff in the PRC 8 May 2014, Guangzhou / Shenzhen Success beyond borders we advise German businesses worldwide! 1

2 Agenda I. Residence and Work Permit for Expatriates II. Employment Contract III. Personal Tax System IV. Mechanism of the Social Insurance V. Tax Structuring through Hong Kong 2

3 I. Residence and Work Permit for Expatriates Work and Residence Permit required for Foreigners working in China; also for temporary postings (e.g. interims GM); work without work and residence permit may trigger penalties for employee and Foreigner as well as eviction of Foreigner Problems with Work Permits for Foreigners over 60 years and Foreigners without university diploma Business Visa only applicable for Foreigners who are on business in China but are not employed by a Chinese entity To obtain a work visa (Z visa) Alien Employment License or a Foreign Expert Confirmation Notice and Z Visa Notification Letter (also called invitation letter) After entering China on a Z visa, Foreigner have to apply for work and residence permits The entire process normally takes about six weeks; Change of work within China requires new work permit for new job 3

4 II. Local Employment Contract Local Employment of Foreigners by Chinese Entity Employment contract between Foreigner and Chinese entity is subject to Chinese labor law Written employment contract required (better also in Chinese) Probation period possible Detailed job description recommended Termination and severance payment according to Chinese labor law Employment of foreign GM also requires AIC registration Termination in China may reactivate employment in Germany / overseas 4

5 II. Local Employment Contract A Dispatch of Foreign Personnel Dispatch / Secondment of Foreigners to Chinese subsidiary possible; in practice secondment may be regarded as local employment; at some places local employment contract necessary to obtain work permit Avoid that secondment triggers permant establishment (PE) of foreign parent company; foreign parent company might be challenged that their personnel provides services to the Chinese subsidiary (Service PE) No Service PE if Chinese subsidiary requests dispatch of foreign personnel, has the right to direct the personnel's work and bears the responsibilities for the relevant work and risks 5

6 II. Local Employment Contract B Dispatch of Foreign Personnel If one of the following factors apply the tax authority may challenge the foreign parent company of having established a Service PE The foreign parent company has authority over the foreign personnel s work and bears the relevant responsibilities and risks; The number of foreign personnel to the Chinese subsidiary and the standard of such assignment are decided by the foreign parent company; The salaries and wages of the foreign personnel are borne by the foreign parent company; or The foreign parent company obtains profits from the Chinese subsidiary from the assignment of the foreign personnel 6

7 III. Personal Tax System Basic Information Tax Authority: State Administration of Taxation (SAT) (www.chinatax.gov.cn) Tax Year: 1 January to 31 December Tax Return due date: Monthly tax returns due 15 days after month end, annual tax returns due by 31 March Tax return extensions are not possible Foreigners must register with the local tax bureau No joint tax return for husband and wife 7

8 III. Personal Tax System Who is liable to pay IIT in China? PRC days China-sourced income Borne by PRC entities Borne by overseas entities Non China-sourced income Borne by PRC entities Borne by overseas entities < 183 days** taxable not taxable 183 days 1 year taxable taxable not taxable/ *taxable not taxable/ *taxable not taxable not taxable 1 year 5 years taxable taxable taxable not taxable > 5 years taxable taxable taxable taxable * PRC IIT obligation for director and senior management personnel ** 90 days for Foreigners from non-tax treaty countries 8

9 III. Personal Tax System Who is liable to pay IIT in China? If foreign employee has lived in China for 5 continuous years, he/she shall pay IIT on his/her worldwide income To break 5 year rule in any given year, Foreigner shall leave China for consecutive 31 days or total 91 days, or if this cannot be done, Foreigner should have an employment outside China and may not reside in China for more than 183 days (or 90 days if there is no applicable tax treaty residents) during the 6th year Annual IIT declaration has be submitted to tax authorities within 3 months after the end of the previous calendar year for Foreigners with an annual income in China of more than RMB 120,000 (except the Foreigner left China for more than 30 days in a single trip or for more than 90 days in total in the respective calendar year) 9

10 III. Personal Tax System Chief Representative / Representative Chief representative and representative of a Rep Office are subject to Chinese IIT regardless of whether or not their compensation is paid or borne by the Rep Office; 90 / 183 days tax exemption threshold does not apply In the event that chief representative / representative has other duties outside of China and spends more than 90 days outside of the China in a calendar year they may be subject to Chinese IIT only on the time spend in China * PRC IIT obligation for director and senior management personnel 10

11 III. Personal Tax System Types of taxable compensation Wages and salaries; Foreign service or hardship allowances; Cost of living and automobile allowances; Tax reimbursements; Bonuses; and Equity compensation (stock options etc.) 11

12 III. Personal Tax System Income tax for individuals Computed on a monthly basis China applies progressive tax rates to employment income Monthly Taxable Income (RMB) Tax Rate (%) Fast Calculation Deduction (RMB) 0-1, ,501 4, ,501 9, ,001 35, ,005 35,001 55, ,755 55,001 80, ,505 Above 80, ,505 12

13 III. Personal Tax System Monthly taxable income is monthly gross income after standard deduction of RMB 4,800 as well as deduction of employee's portion of China social security contribution IIT = monthly taxable income tax rate - fast calculating deduction Example: Gross Salary of 50K RMB/month Taxable Income = 50,000 4,800 = 45,200 Tax Rate = 30 % Fast Calculating Deduction = 2,755 IIT = 45,200 * ,755 = 10,805 RMB 13

14 III. Personal Tax System Tax Deductible Allowances Reimbursement under tax equalization Business car Housing provided Taxable Not taxable Not taxable if the amount is reasonable and supported by valid rental receipts. Home leave - employee Not taxable if the transportation costs (up to two home trips per year) are reasonable and supported by valid payment receipts. Home leave - family Taxable Relocation / moving expenses upon commencement and Not taxable if the amount is reasonable and supported by valid payment receipts. end of PRC assignment Children's education incurred in PRC Not taxable if the amount is reasonable and supported by valid payment receipts. Language training incurred in PRC Not taxable if the amount is reasonable and supported by valid payment receipts. Reimbursement for meal and laundry Not taxable if the amount is reasonable and supported by valid payment receipts. Stock option / stock purchase discount Taxable 14

15 III. Personal Tax System Tax Deductible Allowances If expats live in Hong Kong or Macau and works in Mainland China, children education and housing allowance etc. in Hong Kong or Macau are also tax free, but should approved/confirmed by local tax authority Annual bonus can be divided by 12 to determine the applicable tax rate; this preferential calculation method can only be used one time by each individual employee (taxpayer) during a calendar year; additional bonuses are taxed as part of regular wages and salaries 15

16 III. Personal Tax System IIT Treatment of Director Fee Director fee from employer or employer s affiliated enterprises in China Treated as wages and salaries Director fee from other companies in China Treated as independent personal service income Director fee from outside China Exempted from PRC IIT 16

17 IV. Mechanism of the Social Insurance Under the new China Social Security Law (2011): All non-chinese nationals working in China holding a work permit, resident permit or a permanent residence permit must participate in the social insurance system Foreigners must participate in 5 insurance schemes: Maternity insurance; Basic medical insurance; Unemployment insurance Basic pension schemes; and Work-related injury insurance Within 30 days after obtaining a work permit, the Chinese employer should apply for social insurance registration for the expatriate. 17

18 IV. Mechanism of the Social Insurance Under the new China Social Security Law (2011): Social security contribution rates vary among municipalities and provinces Employers and foreign employees are subject to social security contributions at an average rate of 30% and 11% of gross income, respectively In Guangzhou, Shenzhen, Dongguan (Guangdong) foreign employees must enroll in all five social insurance programs. Foreign workers can be exempted from enrollment in social insurance programs if there is a bilateral social insurance treaty between the expatriate s home country and China. Currently, only Germany and South Korea have concluded such treaties with China. German employees may be exempted from the Chinese pension and unemployment insurance scheme and remain in the German system; the approval of such exemption is in the discretion of Chinese and German authorities 18

19 IV. Mechanism of the Social Insurance Monthly Mandatory Social Insurance Payments Guangzhou Employer contribution Employee contribution Pension * % 8.0% Maternity 0.85% 0.0% Unemployment 0.9% - 1.0% 0.5% Occupational Injury % 0.0% Medical Insurance 8.0% 2.0% Sub-total % 10.5% * Pension Note: Monthly Salary Cap = RMB 12,654; outside of GZ employee contribution 12%, within GZ 20% monthly ceiling amount (except pension rate) is RMB15,939 = monthly max contribution: for employer of RMB 3,839 and for employee of RMB 1,

20 IV. Mechanism of the Social Insurance Monthly Mandatory Social Insurance Payments Shenzhen Employer contribution Employee contribution Pension * % 8.0% Maternity 0.5% 0.0% Unemployment 2% 1.0% Occupational Injury % 0.0% Medical Insurance 6.8% 2.0% Sub-total % 11% * Pension Note: 14% for person with Shenzhen hukou, and 13% for person without Shenzhen hukou monthly ceiling amount RMB 14,754 = monthly max contribution: for employer of RMB 3,190, for employee of RMB 1,

21 IV. Mechanism of the Social Insurance Monthly Mandatory Social Insurance Payments Dongguan Employer contribution Employee contribution Pension 14.0% 8.0% Maternity 0.0% 0.0% Unemployment 0.5% 0.5% Occupational Injury % 0.0% Medical Insurance 6.5% 2.0% Sub-total % 10% monthly max contribution: for employer of RMB 2, and for employee of RMB 1,

22 IV. Mechanism of the Social Insurance What happens If the foreign employee leaves China Social insurance personal account will be retained, and the contribution years will be calculated on a cumulative basis if foreigner comes back to China to work again Pension insurance may be terminated upon application and social insurance can pay out contributions as a lump-sum payment. Medical insurance can be used to purchase medicine Expatriate employees are entitled to pension benefits at the statutory retirement age, i.e. 60 for men and 55 for women (after 15 years of retirement insurance payments) 22

23 V. Employment Structuring through Hong Kong Hong Kong residents working across the Mainland border Employment by Hong Kong entity normally requires work permit / visa in Hong Kong, unless job is offshore Employment in Hong Kong and work in China may cause IIT liability in China; income derived by a Hong Kong resident from an employment exercised in China is subject to IIT in China, unless all of the following three conditions are met: Presence in the China for a period not exceeding aggregated 183 days in any 12-month period; Salary is paid by, or on behalf of an employer who is not a resident of China; and the salary is not borne by a PE which the employer has in the Mainland However, salary split between HK and Mainland entity possible, if Foreigner performs work as well in Hong Kong as in China 23

24 Your contact Thank you for your attention! Picture Sebastian Wiendieck Attorney-at-Law (Germany) Associate Partner Rödl & Partner 45/F Metro Plaza 183 Tian He Bei Lu Guangzhou Telefon +86 (20) Telefax +86 (20)

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