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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by Edward ROWE and Jinyan LI
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The Chinese enterprise income tax system has undergone major reforms since its inception in 1980. From 1980 to 2007, there have been two distinct sub-systems: one for domestic enterprises and another for foreign-investment enterprises (FIEs) and foreign enterprises (FEs). As described in the historical review below, each sub-system per se went through a consolidation process.
Following the consolidation of the taxation system applicable to domestic enterprises and the separate consolidation of the taxation system applicable to FIEs and FEs, income from business was taxed under two separate sets of legislation until the end of 2007.
As of January 1, 2008, there will be a uniform Enterprise Income Tax Law1 (the Uniform EIT Law) applicable to all enterprises, irrespective of ownership under which tax will generally be imposed at a rate of 25%.
In this chapter, we will refer to the new uniform law where possible. However, at the time of writing, detailed implementation rules for the uniform tax law have not been released.
Given the history of the uniform law, most technical rules for the computation of taxable income and administrative rules are likely to remain the same as the pre-2008 rules for FIEs and FEs, which are described in detail herein (the FIT Rules).2 The two most significant changes to FIEs and FEs relate to tax rates and tax incentives. Those changes are addressed in the latter part of this chapter.
Under the Uniform EIT Law, enterprises are classified as “residents” and “nonresidents”. Resident enterprises are subject to tax on their worldwide income, whereas non-residents are taxed only on income that has its source in China.3
Enterprises are residents in China if they are established under the law of the People’s Republic of China (PRC), or if they are established under the law of a foreign country but the place of effective management is in China.
Non-resident enterprises are those that are established under foreign laws, that do not have a place of effective management in China but that have a place of establishment in China or receive income from China.
Prior to January 1, 1994, depending on their types, domestic enterprises were subject
to different taxes:
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From January 1, 1994, however, these taxes were abolished and all Chinese domestic enterprises became subject to the Provisional Regulations on Enterprise Income Tax (the Enterprise Income Tax Regulations).4 Until January 2008, enterprises within the territory of the PRC, excluding FIEs and FEs, are subject to Enterprise Income Tax on their income from production and business operations, whether derived from inside or outside China.
More specifically until January 2008, the Enterprise Income Tax Regulations apply
to:
1.2.1 Scope of taxation of domestic enterprises
Domestic enterprises are, without exception, resident in China and are therefore subject to tax on their worldwide income under the laws applicable prior to 2008.
Under the Rules relating to the Consolidated Payment of Enterprise Income Tax, which became effective from January 1, 1995, domestic subsidiaries, corporations or enterprises belonging to one business group may report their profits to their head office and file a consolidated tax return for the year.
1.2.2 Computation of taxable income
Until 2008, taxable income for domestic enterprises was defined as the excess of gross income over permissible deductible costs and other expenses.6 Taxpayers’ total income includes:
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The following items are deductible in computing taxable income:
The following items are not deductible in computing taxable income:
1.2.3. Rates
The rate of tax on domestic enterprises prior to 2008 was 33%.10
1.2.4. Losses
Under the system applicable to domestic enterprises until 2008, losses in atax year may be carried forward for a maximum of five years.11
1.2.5. Double taxation relief
Where foreign tax has been paid by a domestic enterprise on income derived from outside China, this can be offset against taxes due in China. The offset may not, however, exceed the Chinese tax payable on the foreign income.12
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1.2.6. Administration
Enterprise Income Tax as imposed on domestic enterprises until 2008 is paid on an annual basis, but with monthly or quarterly payments on account. Each payment on account should be made within 15 days after the end of the month or quarter concerned. The annual payment should be made within four months of the end of the tax year. The tax authorities will refund any overpayments.13
At the time of the payments on account, the taxpayer should submit a statement of account and a tax return to the tax authorities. An annual statement of accounts and tax return should be submitted to the tax authorities within 45 days after the end of the tax year.14
Whereas Chinese domestic enterprises were taxed under the Enterprise Income Tax Regulations, FIEs and FEs are taxed under the Income Tax Law on Enterprises with Foreign Investment and Foreign Enterprises (the FIT Law) until January 2008.
The FIT Law, adopted on April 9, 1991 by the Fourth Session of the Seventh WPC with effect as of July 1, 1991, applies to FIEs and FEs, including Chinese-foreign equity joint ventures (EJVs), Chinese-foreign cooperative joint ventures (CJVs) and wholly foreign owned enterprises (WFOEs) that are established in China. Prior to 1991, there were two separate taxes that applied to foreign investment enterprises: the Joint Venture Income Tax (JVIT) and the Foreign Enterprise Income Tax (FEIT). The FIT Law was promulgated to consolidate the JVIT and FEIT. The tax rates were designed to be competitive with other countries in order to attract foreign investment.
The FIT Law has provided various tax incentives to foreign investors engaged in productive ventures and/or established in special open areas. In reality, about 80% of foreign investment is in coastal regions, where the effective tax rate could be significantly lowered through a series of tax holidays and reductions provided under Chinese Laws.
1.3.1. Scope of taxation on FIEs and FEs
Resident enterprises are subject to tax on their worldwide income, whereas non-residents are taxed only on income that has its source in China.15
Under the laws applicable until 2008, FIEs and FEs, including EJVs, CJVs or WFOEs were considered resident in China for income tax purposes if their head offices were in China, and they enjoyed legal person status under Chinese laws.16
A “head office” is defined in article 5 of the FIT Rules to mean the central establishment responsible for the operation, management and control of the enterprise. Article 4 of the General Principles of Civil Law17 recognizes EJVs, CJVs and WFOEs as legal persons if they are established in accordance with Chinese laws, possess the necessary property or funds, have their own name, organizational structure and premises, and are able to assume civil obligations independently.
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Under the Cooperative Joint Venture Law, however, a CJV has an option not to be incorporated as a legal person. If the joint venture is not a legal person, but a partnership, the parties to the venture are taxed separately. In other words, the venture is not considered to be a resident in China, although the parties to the venture may, with the approval of the tax authorities, elect to be taxed as one entity.18
The FIT Law does not permit consolidated taxation of subsidiary corporations or enterprises belonging to one business group. Hence, each member of the business group must apply for a specific ruling.
1.3.2. Determination of the source of income
For non-resident enterprises with a site or establishment in China, income earned from China through the site or establishment is Chinese-source income. Moreover, income earned from outside China is also Chinesesource income if it is effectively connected with the site or establishment in China.
The general principle is that income is deemed to arise at the place where the substantial elements of its production occur. In other words, the source of business income is determined on the basis of production and business activities and the operational sites established in China. The place of contract can be considered a significant factor in determining the source of income. Article 6 of the FIT Rules defines income from Chinese sources as:
In addition to business income, Chinese-source income includes passive income, such as dividends, interest, rental income and royalties received from China and gains on transfers of property in China.
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Taxable income is generally income less allowable deductions and losses. The Chinese tax laws provide formulas for calculating taxable income for taxpayers engaged in different types of industries.
For manufacturing industries, taxable income must be computed according to the following formulae defined in article 10 of the FIT Rules:
Income from commercial business is defined as follows:
Income in service industries is defined as follows:
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For other trades, computation of taxable income is made by application of the above formulae.
For certain types of business such as extractive industries, insurance, financial institutions, and shipping and air transport, special rules are applicable.
Under Chinese tax law, the taxation year should generally be the calendar year.19
However, a CJV or a WFOE may apply to the local tax authorities for approval to use its preferred 12-month fiscal period as the taxation year in cases of difficulty in computing taxable income according to the calendar year. A short taxation year is permitted where the taxpayer commenced or terminated its business in that year, or in the case of reorganization.20
Income from business and production is generally taxable at the time a taxpayer earns the income. Article 11 of the FIT Rules states that taxable income is to be recognized on an accrual basis. In other words, income and expenditure must be brought to account when goods have been delivered, services rendered or other obligations have been performed notwithstanding the flow of cash.
In cases of hardship where payments for goods and services are deferred to future years, article 11 allows the recognition of revenue to be deferred in the following situations (apparently at the election of the taxpayer):
The FIT Rules further specify that revenue received in the form of non-monetary assets (as in the case of CJV product sharing or petroleum exploration) must be taken into income at the time of receiving such assets. The amount of income so derived must be computed either on the basis of the price at which the products are sold to third parties or by reference to their current market price.21
Income earned and expenditures incurred outside China that are subject to Chinese taxes are accounted for in the same manner as income earned and expenditures incurred in China, that is, on an accrual basis.
China implements exchange controls and the State Administration of Foreign Exchange (SAFE) prescribes rates of exchange.
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Expenses are generally deductible to the extent that they are incurred in gaining or producing income and the amount to be deducted is reasonable under the circumstances.
Expenditures can be classified as capital and current outlays. Expenditures incurred in acquiring or developing fixed or intangible assets are of a capital nature and are not deductible in the year incurred.22 However, the tax law provides for the amortization of capital costs over a number of years. Expenditures incurred in the course of carrying on business, such as cost of goods sold, taxes on sales, manufacturing costs, marketing expenses, administrative expenses and financial expenses are deductible in computing income.23
2.3.1. Limitations
The deduction of certain expenses is statutorily limited. Article 19 of the FIT Rules excludes the following deductions:
2.3.2. Management fees
Management fees paid to head offices by an establishment in China are deductible if they are reasonable and are related to production or business operations of the establishment.24 Such fees may be subject to withholding tax if they are paid to a non-resident. The amounts of the fees must be approved by the local tax authority, to which relevant information must be provided, including a report from a certified public accountant. FIEs can apportion among their branches the management fees relating to their respective businesses; however, taxpayers are prohibited from deducting as expenses management fees paid to associated enterprises.25 [Page953:]
2.3.3. Interest expense
Interest expense is deductible in calculating income if it is incurred in connection with the business activities of the taxpayer and the amount of the interest is reasonable. The deduction is subject to approval by the local tax authorities, to which information concerning the loan and payment of interest must be provided.26 An interest payment is considered reasonable if the rate of interest is not higher than the rate applicable to ordinary commercial loans.
For loans taken out in order to purchase or construct fixed assets or to acquire or develop intangible assets, the interest that accrues before such assets are put into use must be included in the cost base of the asset and deducted over the relevant amortization period.27
The State Administration of Industry and Commerce (SAIC) has also placed restrictions on the debt-equity ratio for companies, which restricts the deductibility of interest expenses indirectly.
2.3.4. Entertainment
The FIT Rules permit taxpayers to deduct entertainment expenses related to their production and business operations (subject to the existence of records or receipts). However, the following limitations apply:
Enterprises engaged in industrial manufacturing, construction, commerce and agriculture are subject to the limit mentioned in the first paragraph above based upon sales income. Other businesses, such as hotels, restaurants, transportation and financial and service industries, are limited according to total business income as set out in the second paragraph.
The State Administration of Taxation (SAT) has clarified that the sales figures on which the deduction is calculated should be net of VAT.
2.3.5. Wages and welfare benefits
Salaries, wages, benefits and allowances paid to employees are deductible.29 However, article 24 prohibits the deduction of payments to foreign social insurance plans on behalf of an employee working in China.
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2.3.6. Reserves
Taxpayers may claim an annual reserve for bad debts if they are engaged in granting credit, leasing or other similar businesses. Taxpayers engaged in other business activities may not claim this reserve. The maximum reserve that can be deducted in a year is limited to 3% of the year-end balance of funds outstanding (not including inter-bank loans) or of the year-end balance of receivables.30
A debt is considered to be bad if:
When a debt becomes bad, if the actual losses from the debt exceed the amount of reserve claimed in the preceding year, the excess portion of such losses can be deducted from the taxable income for the current year; if the actual losses are less than the preceding year’s reserve, the excess portion of the reserve must be brought into income for the current year.32 If a reserve is claimed and all or part of the debt is subsequently collected, the amount collected must be included in income for the year of collection.33 Other reserves set up for advertising, employee bonuses and welfare funds are not recognized as allowable deductions
. 2.3.7. Exchange gains and losses
Article 23 of the FIT Rules provides that any gain or loss on foreign exchange realized by production or business operations is reported as profit or loss in the current year. In practice, with approval of the tax authority, foreign currency exchange gains and losses are generally amortized for tax purposes over five years.
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2.3.8. Research and development expenditures
The rules relating to the tax deductibility of research and development (R&D) costs are summarized as follows:
No carry-forward of unused R&D costs is allowed. Loss-making enterprises can deduct R&D costs as they are incurred against their payable income tax, and do not have to conform with the “20% rule” as profit-making enterprises do.
In computing taxable income for the year, no deduction may be made for outlays of a capital nature except as specifically permitted.34 Allowances may be claimed in respect of the depreciation of both fixed assets and intangible assets. The treatment of assets is dealt with extensively in Chapter III of the FIT Rules.
2.4.1. Fixed assets
“Fixed assets” refer to “houses, buildings and structures, machinery, mechanical apparatus, means of transportation and other such equipment, appliances and tools related to production and business operations with a useful life of one year or more”.35 Some assets are deemed not to be “fixed assets” for the purpose of depreciation if they have a cost of less than RMB 2,000 and are not part of the main equipment used in production and business operations, or if they have a useful life of less than two years. The cost of acquiring such assets can be deducted in the current year.36
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2.4.2. Valuation
For the purpose of calculating depreciation, fixed assets are valued at original cost. The original cost is determined as follows:
2.4.3. Allowable deduction and salvage values
Depreciation for fixed assets is computed annually on a straight-line basis on the assumption that there will be a residual salvage value of 10% of the original cost. In other words, only 90% of the cost of an asset may be written off. Approval from the local tax authorities must be obtained before a taxpayer may claim a lower (or no) salvage value for an asset.38
Additional expenses in respect of a fixed asset, such as substantial repairs or improvements, are added to the cost base of the asset and amortized accordingly. If the useful life of the asset is extended as a result of repairs or improvements, the depreciation period may be extended.39
2.4.4. Prescribed depreciation periods
Depreciation may be claimed commencing in the month following the month in which the asset is first put into use and ceasing in the month following that in which it stops being used. In the case of offshore oil and gas production, development costs are deemed to be capital expenditures and can be depreciated commencing one month after the oil or gas field goes into commercial production.40
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“Buildings and structures” include all types of buildings, warehouses, dormitories, towers, pools, frames, roads and bridges, as well as piping, chimneys, enclosing walls and other structures that exist independently outside a building, machinery or equipment.42
“Facilities attached to buildings and structures” are depreciated together with the buildings and structures. These facilities include ventilation piping, water and oil supply pipes, communication lines, power transmission lines and elevators.43
“Machinery and equipment” includes all types of machines, mechanical apparatus, production lines and ancillary equipment as well as power generation, transmission and conduction equipment.44
“Railway rolling stock and vessels” includes locomotives, passenger cars, freight cars and motorized vessels.45
“Electronic equipment” that qualifies for a five-year depreciation period (as opposed to the ten-year depreciation period applicable to other machinery and equipment) includes all equipment consisting of electronic elements such as integrated circuits and transistors, and the performance of which relies on electronic technology, including computers, software, computer-controlled robots, digital control systems, programme control systems.46
If a used asset is acquired and the remainder of the useful life of the asset is shorter than the prescribed period of depreciation, the depreciation period is deemed to be the remainder of the asset’s useful life.47 If an asset remains useful after it has been fully depreciated, no further depreciation may be claimed.48
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According to article 40 of the FIT Rules, the STB may approve accelerated depreciation in the following cases:
2.4.5. Disposal of fixed assets
Article 44 of the FIT Rules provides that, where a depreciable asset is
disposed of, a taxpayer:
The recapture or terminal loss is treated as regular income or loss in the year of disposition.49
Expenditures incurred for acquiring or developing intangible assets such as patents,
proprietary technology, trademarks, copyrights and site-use rights may be amortized
on a straight-line basis.50
2.5.1. Valuation
The cost of acquired assets is deemed to be the reasonable purchase price. The cost of self-developed intangibles is the actual expenditure incurred on research and development. The cost of assets contributed as investment in an FIE is deemed to be the reasonable price of the assets set out in the investment contract. No rules are provided with respect to determining what is a reasonable price.51
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2.5.2. Amortization period
The appropriate amortization period for intangible assets is specified by the FIT Rules to be the following:
2.5.3. Amortization of start-up costs
Start-up costs incurred by a taxpayer during the “period of organization”, such as incorporation costs, expenses connected with conducting feasibility studies and legal fees, may be amortized over five years beginning with the month following the commencement of production and business operations.56
The “period of organization” is defined in article 49 of the FIT Rules as commencing from the date on which approval is granted for the establishment of the enterprise and terminating on the date of actual commencement of production or business operations (including trial production and trial operations). Therefore, a joint venture or foreign subsidiary in China cannot amortize start-up expenses incurred prior to the date on which the Chinese government grants approval for the establishment of the enterprise.
Inventories of merchandise, finished products, products in process, semi-finished products, raw materials and other goods are valued at cost.57 However, article 51 of the FIT Rules provides that taxpayers may also choose from the following cost flow assumptions in lieu of the actual costs of inventory and costs of goods sold:
Once a method of accounting for inventory has been selected, the method may not be changed without the tax authorities’ approval prior to the commencement of the taxation year in which the change is to be implemented.58
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Losses are generally deductible by a taxpayer in computing taxable income in a year. Under article 11 of the FIT Law, losses incurred by a taxpayer in a tax year may be carried forward for five years; however, no provision is made for the carry-back of losses. Losses can be deducted from all types of income, as no distinction is made between capital and non-capital losses.
The Chinese tax laws do not generally impose any obligation to withhold tax from income or money earned by or due to a non-resident who derives Chinese business income. Article 67 of the FIT Rules, however, provides that in the case of income earned by a non-resident enterprise engaged in projects in China (such as construction, installation, assembly and exploration), or through provision of services (such as consulting, management, training and other labour services), the tax authorities may require the payer of the contract fees or service fees to withhold tax from the payment.
The FIT Rules allow certain taxpayers to calculate taxable income by applying a deemed profit rate where the enterprise is unable to submit complete accounting records and accurately compute its taxable income. In practice, use of a deemed profit rate has been limited to permanent establishments of foreign companies in China and has thus generally been unavailable to FIEs.
The FIT Regulations do not specify the deemed profit rate that the tax authorities will apply in order to ascertain taxable income. However, the tax authorities have developed broad guidelines with respect to deemed income with profit rates generally between 5% and 40% depending on the specific industry.
For foreign companies engaged in construction work or the implementation of a contracted project, the tax authorities generally permit the calculation of taxable income by applying a deemed profit rate of 10% of total revenue (after allowing deduction for machinery and equipment and other materials imported by the foreign company for the project owner, and certain work performed offshore, subject to the fulfilment of certain criteria).
The deemed profit rate for foreign companies undertaking design work in China has been set at 15% of the total revenue from the design project. However, provided that either the contract disaggregates the prices for design work performed outside China from work performed within China, or, the foreign company can furnish accurate evidence of the offshore portion of the contract price, the revenue attributable to design performed outside China will be free of tax.
The deemed profit rate for foreign companies providing hotel and office building management services has been set at between 20% and 40% of the management company’s total revenue. The specific rate is left to the discretion of the local tax authorities with jurisdiction over the project.
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For representative offices in China, the tax authorities apply a deemed profit rate of 10% of the total income of the representative office. In practice, the authorities impose a formula that results in gross taxable income being equal to approximately 117% of the expenses. The deemed profit rate for foreign companies engaged in offshore oil exploration and production is 10% of the gross revenue. The deemed profit for income from international air and sea transportation is 5% of the gross revenue.
Debt-equity rules restrict the deductibility of interest where the debt to equity ratio exceeds certain prescribed thresholds.
The Interim Provisions Concerning the Ratio Between Registered Capital and Total Investment of EJVs, issued on March 1, 1987 set down restrictions on FIEs’ debtequity ratios. The minimum levels of equity are as follows:
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Although there are no special rules on the taxation of financial institutions in China, at the beginning of 1997 the State Council issued a notice that sets out some rules for financial institutions including those operated with foreign investment.
Financial institutions with foreign investment established in the SEZs (including Shanghai Pudong New Area and Suzhou Industrial Park) are exempt from business tax on zone-source income for five years commencing from the date of their business registration. However, financial institutions will no longer enjoy the preferential tax treatment on income generated from outside zone sources and, to this extent, are subject to the same tax treatment that applies to financial institutions established outside these zones.
Financial institutions with foreign investment located outside the SEZs that were established before December 31, 1996 enjoyed a lower business tax rate of 5% until the end of 1998. To those established on or after January 1, 1997, an increased rate of 8% applies.
The rate of business tax was raised from 5% to 8% for foreign banks in Shanghai, except for those located in Pudong district, which are therefore exempt from the tax. The increase will have effect retroactively to January 1, 1997. It is not clear whether this will affect banks that have previously been granted exemption from the tax for the first few years of operation.
Interest received by foreign banks from loans to foreign investment financial institutions59 in China is subject to income tax.
Since the beginning of 1997, foreign banks allowed to do RMB business have had to keep accounts for RMB transactions separate from those in foreign currencies, and income tax on the profits of different activities is computed separately based on the different earnings of these two forms of currency business. Also, foreign banks are required to conform with the tax rules stipulated in the FIT Law and its implementing regulations for computation and payment of income taxes on the earnings generated from foreign currency business. Starting from the first profitmaking year, a full exemption from income tax is available for one year and the national tax rate of 30% is reduced by 50% for the next two profitmaking years.
The SAT, Ministry of Finance and the People’s Bank of China (PBOC) jointly issued a notice regarding the income tax rates for foreign banks that are allowed to do RMB business.60 A unified income tax rate of 33% (30% national rate plus 3% local rate) is applied to foreign banks on the earnings generated from RMB business. The preferential “one-year exemption and two-year reduction” of income tax on SEZ activities is no longer available to such foreign banks.
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The FIT Rules consolidated for the first time the special tax rules that apply to foreign enterprises engaged in the cooperative exploitation of petroleum or natural gas resources. In the past, almost all such enterprises have been foreign oil companies that have signed agreements to develop China’s offshore oil resources. More recently, however, there have been a number of similar contracts signed for the cooperative exploration and development of oil and gas fields.
3.2.1. Special depreciation rules
For enterprises engaged in the exploitation of petroleum, all investments in the development stage are accumulated and treated as capital expenditures, with each oil or gas field treated as one unit. Depreciation is then computed from the month following the month in which the oil or gas field enters into commercial production.
Preferential depreciation treatment is granted to enterprises engaged in oil exploration. For example, the depreciation period for fixed assets, both during and after the development stage, may be computed without any residual value over a period of not less than six years.
Reasonable exploration expenses incurred by an enterprise engaged in oil or gas exploration may be amortized against revenue derived from oil or gas fields that have already gone into commercial production. The amortization period may not be less than one year.
Due to the high risks involved in oil and gas exploration, the FIT Rules allow a special deduction of expenses from income generated from a subsequent project of the same taxpayer. If a foreign company terminates its operations in a designated contract area because no commercial oil or gas field is discovered, and that company has neither consecutive contracts for the exploitation of other fields nor maintains in China an operation and management establishment or an office, the expenses incurred in exploring the unproductive field may be carried forward. If the company enters into a new contract for cooperative oil or gas exploitation within 10 years from the date of termination of the first contract, the company is allowed to amortize the expenses of the first non-productive field against production revenue for the new contract areas. Such amortization is permitted only after the tax authorities have reviewed and confirmed the original exploration expenses for the closed field and issued confirming documentation.
There is no provision, however, allowing a taxpayer engaged in exploitation of two or more contract areas to amortize exploration expenses of a terminated area (or areas) against revenue from another area already under exploitation. It appears that such amortized expenditures may be carried over as a loss to offset income of other establishments or branches of the taxpayer.
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3.2.2. Determination of income
A foreign enterprise engaged in oil and gas exploration is assumed to derive its income the moment it receives its share of production. The amount of income is computed according to prices that are regularly adjusted with reference to the international market prices for substances of equal quality.61
Where it is difficult for the taxpayer to compute the amount of income in accordance with the FIT Rules, the amount of income is deemed to be 10% of the gross revenue of the enterprise.
3.2.3. Transfers of oil contract rights
Where a foreign enterprise assigns or transfers its contractual right to exploit and produce offshore oil, any proceeds received in excess of the expenses incurred on acquiring the right and on developing the oil field are treated as income. The transferee or assignee is permitted to amortize the price paid to acquire the right.62
3.2.4. Specific royalties
Since January 1, 1989 a specific exploitation royalty on offshore crude oil and natural gas has been payable in kind based on the annual gross production of each oil or gas field within the contract area.
The rates of the offshore crude oil royalty are the following:
The rates of the offshore natural gas royalty are as follows:63
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3.2.5. Onshore oil and natural gas
Under regulations issued in January 1990, royalties must be paid for using mines in the exploitation of onshore oil.
On July 28, 1995, the STB and the Ministry of Finance jointly issued a notice revising the regulations on the rates of the onshore oil and natural gas royalty for CJVs.
In the exploitative areas of Qinghai, Tibet and Xinjiang and shallow sea areas, the rates of onshore oil and natural gas royalty are as follows:
In areas of exploitation in other provinces and autonomous regions, and municipalities directly under the central government, the rates of onshore crude oil and natural gas royalty are as follows:64
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3.2.6. Payment of royalties
Under a notice issued by the STB on November 7, 1995, the exploitation royalty borne by CJV exploiters is payable in kind and is calculated on the basis of annual gross production of each oil and gas field less spoilage and input during the operation. The royalty can be paid in instalments throughout the year, and is to be paid in full by the end of each calendar year.
In the case of crude oil and gas transported by pipelines, payment of the exploitation royalty is required on a monthly basis within 15 days of monthend.
With regard to crude oil and gas transported by ships or vessels, the joint venture must pay the royalty within five days after each sale. Within three months after year end, the joint venture must file a final return and pay any amount due. Where payments exceed the final liability, a refund can be claimed.
A royalty payment is required at the beginning of the year if the annual expected gross production exceeds 20% of the applicable exemption limit. The STB has provided quick calculation formulae for computing the amount of royalty payable.
The Chinese operator is responsible for filing the royalty return. In the case of late filing and payment, a penalty of 0.1% per day of the amount due is imposed.
In the case of oil and gas fields that have already entered into commercial production, exploiters are required to submit by January 15 of each year a statement showing the annual level of expected gross production. Within 15 days after the production quarter ends, such exploiters have to submit information to the competent tax authorities on the annual level of actual gross production, sales volume and other documents. Fines and penalties are imposed for failures to comply.
3.2.7. Resource Tax
Crude oil and gas are subject to resource tax, though production in offshore areas is temporarily exempt. [Page967:]
3.2.8. Customs duties
Based on a State Council notice issued in 1995, during the Ninth Five-Year Plan (1996 – 2000), equipment, machinery and materials used for sinoforeign cooperative exploitation of offshore petroleum are exempt from customs duty and VAT. During this period, imports of equipment, machinery and materials that China is not able to produce and that are used for sinoforeign cooperative exploitation of onshore petroleum are also exempt from customs duties and VAT.
3.2.9. Reinvestment tax refunds
Foreign oil companies using after-tax profits from contracts based on the production sharing system to reinvest in Chinese projects do not qualify for reinvestment tax refunds.
The SAT has stated that mining enterprises are governed by the general tax regulations applicable to other industries. However, certain special rules and tax incentives apply. The following taxes are imposed on mining enterprises:
The mineral resource royalty fee and the resource tax are specific taxes pertaining to the mining industry. The applicability and rates for these taxes depend on the resource mined. These industry specific taxes are discussed in detail below.
The Chinese tax authorities have indicated a willingness to issue advance rulings on tax issues related to mining operations. Because of the significant uncertainties of the tax law as it applies to mining, this is often a necessary step. [Page968:]
3.3.1. Royalty or production-sharing ratio
Pursuant to the Administrative Regulations governing the Collection of the Mineral Resources Compensation, effective as of April 1, 1994, mineral resource royalty fees are due on all natural resource mining within the territory of China. Such fees are calculated as a proportion of sales revenue from the mineral product. The total amount of the fee to be paid is computed as follows:
T = A x B x C
where:
A = sales revenue
B = fee rate
C = co-efficient of mining extraction rate
The rates vary for different resources and range from 0.5% to 4%.
Like other taxes and fees discussed herein, however, there are a number of exemptions and reductions available. Subject to approval from the appropriate authorities, exemptions and reductions can be awarded in a number of situations including where:
3.3.2. Resource tax
Mining enterprises are also subject to a resource tax. Pursuant to the Provisional Regulations on Resource Tax, all units engaged in the exploitation of mineral products in China are subject to the resource tax.
The amount of tax payable is determined as follows:
T = A x B
A = assessable volume of the taxable products
B = tax rate
Rates vary depending on the type of taxable items, for example:
Reductions and exemptions are available for taxpayers sustaining huge losses due to accidents or natural disasters or if stipulated by the State Council. [Page969:]
3.3.3. Income Tax
Like other FIEs, mining enterprises are subject to enterprise income tax. In accordance with the FIT Law, income tax must be paid by FIEs and FEs on their income derived from production (including mining activities), business operations and other sources within the territory of China.
Like a number of industries that the authorities wish to encourage, many mining enterprises qualify for income tax rate reductions and tax holidays.
For example, FIEs carrying on production activities (including most mining operations) scheduled to operate for a period of not less than ten years are exempted from income tax in the first and second profitable years, and allowed a 50% reduction in the third, fourth and fifth years. Such reductions and exemptions do not, however, apply to enterprises engaged in the exploitation of rare and precious metals.
Enterprises established in SEZs and Economic and Technological Development Zones enjoy a reduced tax rate of 15%. Those established in coastal economic open zones are taxed at a rate of 24%.
Further, where the investment is in the form of a CJV and not as a Chinese legal entity, the foreign party is allowed to consolidate the operations of different contracts in China. This allows for a deduction for failed exploration projects against successful projects, as well as offsets of profitable against loss-making mines. No consolidation is allowed if the investment takes the form of a Chinese legal entity in the form of an EJV, a limited liability CJV or a WFOE.
3.3.4. Exploration and development
Exploration and development activities are subject to an exploration usage fee of RMB 330 per square kilometre per year. Where a mining licence has been granted, the usage fee is RMB 3,000 per square kilometre per year. For tax purposes, exploration expenses and development expenses must be capitalized as pre-operating expenses. These expenses must be captured in a legal entity in order to obtain a future tax benefit. If that legal entity is not the entity that ultimately exploits the mineral deposit, it may be difficult to obtain a tax benefit for the expenses.
Chinese tax authorities have indicated that these expenses may be amortized over a period of not less than five years from initial production, with any unamortized balances being deductible in the final year of production. Although the normal method of amortization is the straightline basis, the Chinese authorities will consider allowing use of the units of production method.
The time at which production is considered to commence is unclear. If it is considered as when the minerals are produced and sold, difficulties might arise in obtaining benefits of tax losses due to the relatively short five-year loss carry-forward rules. Nevertheless, the tax authorities have indicated a willingness to consider practical interpretations of these rules within the principles of the law.
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Acquired mineral rights can be amortized over the life of the contract. If the contract does not have a time period, the amortization period may not be less than ten years starting with the year the mine commences production.
In an application for the exploration rights to a block that contains mineral deposits discovered by the State at the State’s expense, the applicant must pay a reimbursement fee. This fee is based on the costs incurred by the State as appraised by certain government organizations. It may be paid in full or in instalments in compliance with State regulations. The tax treatment of the reimbursement fee is not clear, but it is likely to be treated in the same manner as acquired mineral rights, although it may be possible to secure treatment similar to other exploration costs.
Fixed assets are to be depreciated using the straight-line method with a 10% residual value in accordance with the general provisions of the FIT Law and FIT Rules.
There were no taxation rules specially applicable to the insurance business in China until notices were issued by the SAT and the Ministry of Finance on April 26, 1996 and October 8, 1996, which became effective from January 1, 1996. The two notices clarify, among other matters, that the applicable corporate income tax rate is 55% (the normal rate of 33% plus an extra 22% of profit to be paid to the Ministry of Finance).
The State Council issued a notice, which became effective as of January 1, 1997, that sets out new tax rules for insurance companies, including those financed by foreign investment. The measures implemented the general rate of 33% (30% national tax plus 3% local tax).
Pursuant to the Amended Mineral Resources Law that went into effect on January 1, 1997, mining rights are now transferable under certain conditions. Where the rights are transferred at a price exceeding the total capitalized investment, gains resulting are subject to income tax at the ordinary tax rates. The tax authorities have indicated that they will generally allow transfers to wholly owned subsidiaries at cost meaning that no gain is effectively recognized.
Business tax is imposed on the transfer of mineral rights except in situations where the transfer is a capital contribution. The rate is 5% of the value of the rights transferred. Business tax may also apply to transfers of mineral rights in farm-out arrangements.
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In addition, all income from transfers of State-owned land-use rights, buildings and their attached facilities is subject to the land appreciation tax. The rates on such appreciation are:
There are no provisions in the Chinese tax laws dealing with mine reclamation costs. The tax authorities have indicated that such expenses should be deducted when paid. The absence of loss carry-back provisions may make it difficult to obtain tax benefits for these expenses.
In November 1996, the Ministry of Finance and the SAT issued rules on the taxation of income derived from the operation of foreign freight and passenger ships in Chinese ports. Meanwhile, the Regulations for Taxation of Vessels of Foreign Nationality issued in 1974 have been repealed. These rules are formulated on the basis of the FIT Law and Business Tax Law.
Under the new rules, income derived by foreign companies from freight and passenger transport in Chinese ports is subject to business tax and income tax. The tax is calculated on the total income per voyage, including income from passenger and goods transport from Chinese sources at a rate of 4.65%, which includes 1.65% corporate income tax and 3% business tax.
An authorized Chinese shipping company acting as a business agent for a foreign shipping company is responsible for reporting to the tax authorities the income of the foreign shipping company and other relevant information. The agent is also responsible for collecting shipping income on behalf of the foreign company and for withholding tax. If there is no agent, the foreign shipping company must pay tax and port charges before entering Chinese waters.
China has entered into many bilateral agreements with respect to international shipping. There are 37 separate agreements dealing with international shipping, and most of the double taxation treaties contain a clause with respect to the taxation of international transportation. In some cases, there is a clause in the agreement that neither party may levy any taxation on income derived from transportation by vessels (such as in the treaties with Bulgaria, Brazil, Cuba, Denmark, Finland, France, Germany, Greece, Italy, the Netherlands, New Zealand, Norway, Pakistan, Sweden, the United Kingdom and the United States); in other cases, a most-favoured nation treatment is granted (e.g. in the treaties with Indonesia and some of the Eastern European countries).
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The modernization of the electric power industry has occupied an important place in China’s development. To encourage development of this industry, several tax incentives are available to foreign investors and FIEs investing in such projects.
The build-operate-transfer (BOT) method of project finance is often used in electric power projects with foreign investment. Under article 40 of the FIT Rules, a CJV engaging in electric power plant construction can calculate the depreciation of fixed assets based on the contract period of the project, provided that approval by the competent authorities is obtained. In special circumstances, depreciation of fixed assets can be calculated ignoring any residual value.
Sino-foreign cooperative electric power projects situated in SEZs, Coastal Open Cities, and Economic and Development Zones enjoy:
In addition, projects located in the Hainan SEZ or Pudong New Area of Shanghai are exempt from income tax for up to five years, and enjoy income tax reductions for five more years following the end of the exemption.
Power projects located in areas where the normal tax rate of 30% is applicable qualify for a two-year tax exemption and a three-year income tax reduction.
Local governments on electric power projects normally waive the 3% local income tax levy.
Holding companies are subject to the general tax law of China. Prior to 2008, it seems that only domestic enterprises are allowed to file consolidated income tax returns. It is not clear whether FIEs and FEs may benefit from these special rules.65
Under the FIT Law, holding companies are not considered to be normal FIEs. Therefore, they are not entitled to most of the tax incentives, which are only available to production, exporting or technology-advanced FIEs.
However, a reinvestment tax refund of 40% is available for a fully foreign-invested holding company reinvesting profits received in the capital of subsidiaries (including FIEs). The refund is increased to 100% if the subsidiary receiving the reinvestment is technology-advanced or export-oriented.
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The Chinese tax laws contain no special provisions on mergers, takeovers and reorganizations of domestic enterprises. Such transactions involving FIEs are subject to specific provisions (the Reorganization Rules).66 Under the Reorganization Rules, the assets and liabilities of the new consolidated company must be evaluated based on their historical cost, ignoring any adjustments made to the value of the assets in the course of the merger. The operations of the enterprise before the merger are considered to continue after the merger for tax purposes. Therefore, the consolidated company after the merger is entitled to continue to enjoy any applicable tax exemptions or reductions until they expire if the absorbed companies and establishments of FIEs before the merger enjoyed preferential tax treatment on the same terms (for example, the same tax rates and incentives).
Where companies or establishments of FIEs were granted preferential treatment on different terms or subjected to different tax rates before the merger, the taxable income of the various establishments continues to be computed separately according to the method that was applicable pre-merger, and income tax continues to be imposed at different tax rates after the merger. If the preferential terms enjoyed by the enterprises before the merger have expired, the consolidated company after the merger cannot continue to enjoy them. Losses that were incurred by companies or establishments prior to the merger and have not been utilized may be set off against the income of the consolidated company after the merger and carried forward for a period not exceeding five years under the relevant provisions of the Reorganization Rules.67
Divisive reorganizations are also covered by the Reorganization Rules. Where a company enjoyed tax incentives before the division, the companies existing after the division can still enjoy any applicable preferential tax treatment until the period of the incentive expires. If the preferential terms have expired, the enterprises will not be entitled to such incentives after the division unless a change in the nature of the business results in qualification for new preferential tax treatment. Losses are carried forward in the same way as for mergers.68
Gains from asset transfers are generally taxable to the transferor under the relevant laws and regulations. The cost base of assets to the transferee is the assets actual transfer-in price. In situations where there are multiple assets or an amount is paid for goodwill, the cost base to the transferee is deemed to be the net book value of the assets to the transferor. The difference between the amount paid by the transferee and the transferor’s net book value is considered to be goodwill and may be amortized for tax purposes by the transferee within ten years from the date of transfer.
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Any preferential tax treatment enjoyed by the company prior to its assets transfer will remain the same after the transfer takes place, provided that the business which the company is engaged in after the transfer qualifies for the relevant tax incentives. Under article 11 of the FIT Law, business losses incurred before or after the transfer of activities can be carried forward independently by the transferor or the transferee for up to five years. However, a transfer of losses between the transferor and the transferee is prohibited under the Reorganization Rules.
FIEs are subject to specific taxation rules when they are liquidated. In accordance with article 18 of the FIT Law, when a taxpayer goes into liquidation, if the balance of net assets or the balance of property (that is, assets less liabilities) remaining after deduction of the undistributed profit, various funds and liquidation expenses exceeds the paid-in capital, the excess portion is treated as income subject to tax to the liquidating taxpayer. In addition, distributions to shareholders by a liquidator are treated as dividends under the FIT Law.
Article 18 of the FIT Rules provides that profits received from other enterprises in China in which an FIE has invested are not included as its taxable income. Based on this article, dividend and other income received from subsidiaries is not subject to tax at the level of the holding company. Losses and expenses incurred on investments in subsidiaries are not deductible in computing the taxable income of the holding company.69 Such expenses include expenses related to conducting feasibility studies and evaluating investments in subsidiaries, interest expense on loans used for financing and investments in subsidiaries.
If a holding company makes capital contributions in kind by the transfer of assets to subsidiaries, the difference between the transfer value and the net book value is considered to be a gain or loss to the holding company arising from the transfer of assets. Provided that permission is obtained from the competent tax authority, the gains may be amortized over a maximum period of five years.
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Residents are taxed on income derived from both inside and outside China. The credit method is used to grant relief from the effects of international double taxation. The amount of the credit is limited to the amount of Chinese tax that would otherwise have been payable on the foreign income.70 There is, however, no limitation with respect to the type of income eligible for a credit.
5.1.1. Foreign tax credits
“Foreign tax” is defined as tax actually paid by a taxpayer on income derived from sources outside China. Foreign taxes include direct taxes levied on foreign-source income, such as taxes on business profits earned through a foreign branch, and withholding taxes on investment income. Foreign tax does not include any tax paid but later refunded or any tax borne by others.71
For Chinese taxpayers with foreign investments, income from abroad is generally calculated in the same way as income derived from domestic sources. In computing income from a foreign country, deductions may be made for costs, expenses and losses that are attributable to the obtaining of the income and allowed in accordance with the Chinese tax law and regulations.72 Foreign income is included in taxable income without deducting foreign tax paid on the income. It is not clear, however, whether a taxpayer may include in its income, and claim a tax credit for, the underlying foreign tax on dividends received from a non-resident company.
5.1.2. Computation of foreign tax credits
The amount of credit that can be claimed by FIEs is limited to the lesser
of:73
credit limit for tax on income derived from sources outside China=total tax sourced inside and outside China computed inaccordance with Chinese tax lawXincome sourced outside China/total income sourced inside and outside China.
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Where the foreign tax paid is less than the Chinese tax otherwise payable, the taxpayer can deduct only the amount of foreign tax paid from taxes payable. If the amount of foreign tax paid exceeds Chinese tax otherwise payable, the excess portion cannot be deducted as a credit nor as a business expense. In this situation, however, article 85 of the FIT rules provides that the amounts not exceeding the Chinese tax otherwise payable may be carried forward for a period of five years.
5.1.3. Foreign tax deductions
In computing income attributable to an establishment of a foreign enterprise, the foreign enterprise may deduct the amount of taxes paid to a foreign government on dividends, interest, royalties and rentals that are effectively connected with the establishment in China. Such income is subject a national tax rate74 of 25% under the Uniform EIT Law applicable from 2008, reduced from the previous level of 30%.
Whenever taxation has an international element, domestic rules may be modified by the provisions of applicable tax treaties. Although the Chinese laws governing the taxation of foreign investment and business have been in existence only for a short time, China has been remarkably quick to institute a programme for the negotiation of tax treaties. The first tax treaty China ever concluded was with Japan in 1983. By the beginning of 1997, China had concluded treaties with 54 countries of which 44 had entered into effect, and by 2005, over 82 treaties were in effect.
As a developing country endeavouring to attract foreign investment, China signed many treaties with developed countries in the 1980s that adhere fairly closely to the Organization for Economic Cooperation and Development (OECD) Model Convention. China’s treaties with developing countries in the 1990s adhere closely to the United Nations Model Conventions.
Throughout the years, China has shown its readiness to follow accepted international tax practice and has generally succeeded in achieving its goals: securing its tax jurisdiction and improving the foreign investment environment at the same time.
As with most treaties between developed countries, China’s treaties apply the “source principle” in order to protect its taxation rights on capital inflows from developed countries.
In most of the existing treaties it has signed with developed and developing countries, China has insisted on a broad definition of “permanent establishment” (chang she ji gou) and relatively high rates of withholding tax on investment income.
Owing to unilateral tax incentives offered to foreign investors, China has successfully persuaded most of its treaty partners, with the notable exception of the United States, to cooperate in making these incentives directly beneficial to investors by including “tax sparing credit” clauses in its treaties.
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5.2.1. Treaty provisions
China’s tax treaties all require that it provide credits to residents for foreign tax paid on foreign income and allow it to grant exemptions from Chinese tax for Chinese-source income.
Bilateral measures for the avoidance of double taxation contained in China’s tax treaties include provisions that define the tax jurisdiction of the treaty State and the amount of tax a source country may impose. The tax treaties also contain provisions that require each treaty State to grant tax credits or exemptions to income derived from the other State.
“Tax sparing” provisions have been included in the treaties with most other countries (notable exceptions being the United States and the Netherlands) whereby a foreign company that obtains a tax exemption in China can obtain a tax credit in the country of residence equal to the amount of tax that would have been paid but for the exemption.
Where a resident of a contracting State derives dividends, interest, royalties or rent in China (other than through a permanent establishment in China), the rate of withholding tax is reduced from 20% to either 15% or 10% and, in the case of Hong Kong, as low as 5% and 7%.
Many treaties provide exemptions from withholding tax on Chinese-source interest earned by established financial institutions of a treaty State. An SAT notice issued on February 9, 1996 specifies that such financial institutions must apply for the tax-exempt treatment to local tax authorities in China with proper documents. However, until the SAT grants tax-exempt status, tax on interest earned by such financial institutions must be withheld.
With regard to capital gains, China’s treaties normally give both the source and residence countries the right to tax gains on property held directly, and in some treaties the source country also retains the right to tax gains on the shares of companies owning real estate.
5.2.2. Tax Treaty Interpretation Circulars
The STB and the Ministry of Finance have issued circulars to provide guidance with respect to the interpretation of tax treaties.
In determining whether a foreign company is a resident of a treaty State, the Chinese authorities first rely on the place of residence as indicated on the company’s certificate of incorporation issued in the treaty State. In individual cases, additional verification may be required in the form of proof of residence issued by the taxation authorities of the foreign company’s home country. In determining whether a company is a resident of China, the only criterion to be used is the location of its head office.
Whether or not an individual is regarded as resident of a treaty State depends on where the individual has a residence or domicile. The tax authorities rely principally on the individual’s personal declaration supported by the appropriate documents. In situations involving an individual from a third country, proof may be required that the individual is liable to tax as a resident of the third country.
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Treaties concluded by China provide that a foreign enterprise is subject to Chinese tax on profits only if the enterprise has a permanent establishment in China, and only to the extent that profits are attributable to the permanent establishment. A construction site or installation project is regarded as a permanent establishment if it continues for more than six months. No foreign enterprise income tax is levied if the site or project continues for less than six months.
With some exceptions, for example the China-United Kingdom treaty, the tax treaties that China has concluded provide that the provision of personal services, including consulting services, for a construction project constitutes a permanent establishment if the services continue for over six months, either continuously or in the aggregate, within any 12-month period.
The term “personal services” means consulting services or services of a technical nature for a construction project that is already in progress. In addition, the term is broadly interpreted to include consulting services directed at improving engineering, production or managerial activities, as well as furnishing technical assistance for the redesign or adjustment of equipment.
With respect to income from contracting labour services in China earned by foreign enterprises that cannot provide accurate evidence of costs and expenses needed to compute their taxable income, the taxable income of the enterprise is deemed to be 10% of gross business revenue.
Unless a tax treaty provides otherwise, branch offices located in a third country that are part of the same legal entity as the head office located in a contracting State can enjoy the tax treatment accorded to branch office transactions conducted in China under the treaty.
Personnel employed in China are subject to Chinese tax on salary and other remuneration if they are present in China for an aggregate of more than 183 days in a calendar year. The 183-day rule does not apply to personnel of representative offices, even if the individual is in China to make preparations for the office prior to its establishment or if the individual is formally appointed after commencing work. However, if the individual is eventually not appointed as one of the resident personnel, he can take advantage of the treaty’s 183-day rule.
According to article 15 of the OECD Model Tax Treaty, remuneration derived by a resident of a contracting state in respect of employment excercised in another State is taxable in the contracting state if:
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Many foreign individuals placed by international employment agencies to work in China on a short-term basis (normally for less than 183 days), were claiming an exemption from Chinese tax on employment income under PRC tax treaty articles equivalent to article 15 of the OECD Model Tax Treaty. On July 30, 1997 the SAT issued a notice clarifying the definition of an employment relationship and ruling that such foreign individuals are liable to pay Chinese taxes, based on the SAT’s interpretation of article 15(2)(b) of the OECD Model Tax Treaty.
The SAT asserts that the economic relationship between the foreign individual and a company resident in China is a vital factor in determining the existence of an employment relationship, despite the fact that the individual is officially employed by an international employment agency in a treaty State. The term “employer” is thus understood as the person having rights over the work produced and bearing the relative responsibilities and risks. In the context of international hiring-out of labour, substance will prevail over form, and the SAT will examine each case to see whether the functions of the employer were indeed exercised mainly by the employment agency or rather by the Chinese enterprise for which the work is performed.
In addition, the notice lists several criteria used to determine the existence of an employment relationship in China (and therefore ineligibility for treaty benefits):
The measures contained in this notice are also stated to apply to nontreaty situations.
A resident of a treaty State is required to apply for treaty benefits only once in a calendar year. If new contracts are signed a year after the submission of the application, an amendment to the original application form suffices.
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It is asserted by the SAT that, as various tax incentives for a large number of FIEs have begun to expire, the improper use of transfer pricing has enabled many FIEs to reduce or avoid tax. To counter the perceived trend, the Chinese government and the SAT have developed a set of transfer pricing rules.
The general principle for transfer pricing is established by article 13 of the FIT Law, which authorizes the SAT to adjust the taxable income on transactions between enterprises in a manner consistent with transactions between independent enterprises. That article establishes that such transactions should be conducted on an arms’ length basis.
Detailed provisions on transfer pricing issues are set out in articles 52 to 58 of the FIT Rules, which were introduced in 1991. Two circulars issued in 1992 provided additional guidance on transfer pricing but were replaced with a comprehensive circular in May 1998 (TP Circular),75 which set out measures that became effective immediately upon announcement. The transfer pricing administration procedures set out in the TP Circular were further clarified in a circular issued in October 2004.76
The TP Circular sets forth a broad range of criteria for determining what constitutes a “related” enterprise for tax purposes. Two enterprises are deemed to be “related”
for tax purposes if:
Relationships with shareholders, creditors, management, control over the sale or supply of raw materials and family relationships can cause two parties to be related for tax purposes, even if the parties are legally “separated.” The substance of the relationship is more significant for these purposes than is its form.
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FIEs and their withholding agents are required to maintain books and accounting records in China together with other supporting documentation.77 Article 53 of the FIT Rules requires that related enterprises report transactions between them by using special information reporting forms. There are two forms; the first is designed for enterprises having only simple transactions, while the second is used in more complicated cases. Failure to file the form can result in penalties of RMB 2,000 to RMB 10,000. Neither the reporting requirement nor the forms are new, but the SAT now seems more intent on enforcing the information reporting requirements.
In respect of information disclosure to foreign tax authorities, most tax treaties China has concluded with foreign countries contain provisions on information disclosure. Thus, during a comprehensive tax audit, China is obliged to exchange information concerning taxes covered by the treaties with the competent authorities of its treaty partners.
The TP Circular also contains a list of criteria that make an enterprise more likely to be selected as an audit target, including the following where:
The presence of any of the above criteria could make an enterprise more likely to be selected for audit or investigation by the tax authorities.
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An appropriate method of adjustment will be selected and applied by the tax authority, depending on the type, nature and outcome of an audit. According to article 54 of the FIT Rules, methods of adjustment prescribed for transfer pricing include:
In practice, the SAT has difficulty using the comparable uncontrolled price method, since it generally does not know the arm’s length prices. As a result of this, other methods, like the cost-plus method, are preferred. But the SAT may adopt a very arbitrary view as to what profit rate should be used.
It is possible to obtain an advance ruling on the calculation of profits for transfer pricing purposes. For example, an enterprise could discuss transfer prices in advance with the tax authority and enter into an advance pricing agreement (APA) prior to the transaction. An APA is requested by submitting the required data and information to the SAT.
An APA is a “private” ruling because it generally addresses specific situations and circumstances. If all of the tax inspectorates take the same position, the common positions could be published in tax journals, tax newspapers or the tax gazette, and become public rulings, which normally represent the position of the SAT. The SAT and local tax offices are bound by such rulings.
In addition to studying and analyzing the information submitted by the taxpayer, the tax inspectorate is authorized to conduct audits at the taxpayer’s place of business.78 In such cases, the tax authority should notify the taxpayer in writing of the time, place and content of the investigation three to seven days before the investigation is carried out. All tax inspectorates can request assistance of other bureaus for the investigation by filing a form for an official application for assistance.
The SAT is responsible for collecting information on prices and fees on the markets in China and abroad using all means necessary, including the assistance of foreign tax authorities.
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If the tax inspectorate decides to adjust prices based on the results of an investigation, the case will be discussed by a group comprised of selected tax officials familiar with transfer pricing issues. The taxpayer will be informed of the outcome of the discussions of the group of tax officials. If the taxpayer disagrees with the findings of these tax officials, the taxpayer can submit evidence that rebuts their position.
Detrimental results of a transfer pricing adjustment include that:
to tax incentives; and
The TP Circular puts the burden on taxpayers to defend their transfer prices. The related enterprise must therefore document the market prices of its products. The taxpayer must provide the following information, depending on the type of transaction involved:
The TP Circular contains provisions regarding transfer pricing disputes. Within 60 days following the receipt of the tax payment certificate, taxpayers may request an administrative review by a higher tax bureau by submitting supporting documents on prices and fees. However, the application for review does not relieve the taxpayer of the obligation to pay the amount due.
If penalties are involved, the taxpayer may, within 15 days of the decision of the relevant higher tax bureau, commence proceedings in the local people’s court. In practice, the SAT is the sole authority for interpreting tax legislation; the power of the courts in this regard is limited. They are empowered only to judge the fairness of the penalty, and not the tax issue on the basis of which the adjustment was made. Consequently, there is likely to be no advantage in appealing to the courts for relief.
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With the introduction of the Uniform EIT Law, China is seeking to standardize the rate applicable to both domestic enterprises and FIEs and FEs at a rate of 25% (other than Chinese source income of non-resident enterprises that is not connected to a permanent establishment in China, which is taxable at a rate of 20%). In practice, the Uniform EIT Law will mean the elimination of most of the tax rate preferences enjoyed by FIEs and FEs and described in sections 7.5 to 7.7 below. A general description of these preferences, available until 2008, is contained in the material that follows.
The general statutory rate of taxation prior to 2008 was 30%, applicable nationwide for enterprise income derived from production and business operations.79 To this was added a 3% local surcharge, resulting in a 33% effective rate of tax.
However, prior to 2008, various incentives were offered to taxpayers engaged in productive ventures and/or established in special open areas. The above-mentioned general statutory rate was reduced to 15% for:80
The statutory rate was 24% for other productive enterprises in the Coastal Open Areas (and other zones, areas, or cities designated by the State Council).82
Since more than 80% of foreign investment in China is in the SEZs and other special areas, the effective rates applying to foreign investment were generally 15% or 24%.
Generally speaking, tax incentives have been granted to FIEs and FEs, provided that they meet stipulated requirements. There are five general qualification criteria for tax incentives.
The entity must be a so-called FIE. FIEs include sino-foreign EJVs, CJVs and WFOEs as well as Taiwanese- and Hong Kong-invested enterprises.
Only designated industries have been eligible for tax incentives. Designated industries include those that are production-oriented, advanced technology-oriented or exportoriented. Sectors like the financial industry, agriculture, forestry and animal husbandry or infrastructure (such as harbour, highway, railway, airport power generation and coal mines) have also been designated.
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The location in which the enterprise is established (or going to be established) is generally relevant. The tax incentives do not apply uniformly across the territory.
The operating period of the enterprise is often a consideration.
The investment amount must generally be of a certain level. Incentives for FIEs have been available in three broad forms: tax exemptions, tax reductions and refunds of income tax.
Terms that are relevant in determining whether a certain FIE qualifies for a tax incentive under Chinese law are given specific statutory definitions as described below.
7.3.1 Production-oriented enterprises
The FIT Rules define “FIEs of a production nature” as those operating in the following industries:
Non-production-oriented enterprises refer to service activities, including hotels, restaurants, tourism, legal services, banking and insurance.
7.3.2. Technologically advanced enterprises
Article 73 of the FIT Rules does not define the meaning of some key concepts, such as “technology-intensive or knowledge-intensive”, and “long payback period” that are relevant for certain tax reductions. Taxpayers may have to negotiate with the local tax authorities to explore the possibilities of qualifying for the tax concession.
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Normally, “technologically advanced enterprises” possess advanced technology supplied by foreign investors and are engaged in developing new products, or upgrading and replacing products in order to increase foreign exchange generated by exports or for import substitution purposes. The criteria for qualifying as “technologically advanced” are normally set by the local governments. Generally, an applicant has to meet the following conditions:
7.3.3. Export-oriented enterprises
An FIE is an export-oriented enterprise if, in any year, the value of its exports constitutes 70% or more of its total output value for that year.
Being classified as an export-oriented enterprise is relevant for an additional reduction of tax under article 75(7) of the FIT Rules. The determination of this status is made on an annual basis.
To qualify as an export-oriented enterprise for any year, a FIE must meet the following conditions:
All FIEs are required to seek annual confirmation and examination of their export-oriented status. The following documents must be submitted with the application.
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7.3.4. Technology-intensive projects
The SAT stated in a notice issued on July 21, 1995 that “technology-intensive, knowledge-intensive” FIEs for tax purposes must meet the standards set by the State Science and Technology Committee for “technology advanced enterprises”. The FIEs must first apply for “technology-intensive, knowledge-intensive” status and the application must be reviewed, inspected and approved by the provincial science and technology committee. The application must also be submitted to the competent provincial tax authorities for further inspection and to the SAT for final approval.
7.3.5. Location and profits
If an enterprise has its headquarters in a designated preferential location and it also operates through a branch in other non-designated locations, the enterprise’s profits derived from those non-designated locations do not qualify for the tax incentives available in the designated location. Similarly, if an enterprise operates in both designated and non-designated industries, the enterprise will be required to keep separate accounts and books to specify the income from each industry.84 Profits derived in the period during which the enterprise is being liquidated do not qualify for tax incentives. The reason is that only profits derived in the normal course of operations will apply.
There are 13 types of zones/areas, where preferential treatment (including tax incentives) has applied. They are:
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7.4.1. Special Economic Zones
SEZs are located in the cities of Shenzhen, Zhuhai, Shantou and Xiamen, Hainan Province, and Pudong New Area in Shanghai, and are established with the approval of the State Council. Establishment in an SEZ may qualify the enterprise for tax reductions, certain tax holidays and certain incentives under the profit reinvestment provisions.
7.4.2. Open Coastal Economic Zones
OCEZs are the cities, counties and districts established as OCEZs with the approval of the State Council. There are several dozen OCEZs along the Chinese coast.
7.4.3. Open Cities
These include Open Old Coastal Cities, the Provincial Capital Cities and Major Open Cities.
There are a large number of open cities where FIEs can enjoy preferential tax treatment. The STB has designated more cities to be “open cities” for the purposes of the FIT Law and FIT Rules. Under the Notice of the STB Concerning Foreign Tax Policy Regarding Further Opening of Border, Coastal, and Provincial Capital Cities to Foreign Investment,85 these cities include Changchun, Changsha, Chengdu, Chongqing, Guiyang, Harbin, Hefei, Huhhot, Jiujiang, Kunming, Langzhou, Nanchang, Nanning, Shijiazhuang, Taiyuan, Urumqi, Wuhan, Wuhu, Xian, Xining, Yinchuan, Yueyang and Zhengzhou.
7.4.4. Economic and Technology Development Zones
ETDZs refer to areas in the 14 coastal port cities established with the approval of the State Council. The cities are Beihai, Dalian, Fuzhou, Guangzhou, Lianyungang, Nantong, Ningbo, Qingdao, Qinhuangdao, Shanghai, Tianjin, Wenzhou, Yantai and Zhanjian.
In each of the cities, different ETDZs are established (usually in the urban districts far from the city centre). For example, in Shanghai alone, more than 20 ETDZs have been opened.
7.4.5. High and New Technology Zones
High and New Technology Industrial Development Zones (HNTZs) have been established in many cities, including Beijing and Shenzhen.
7.4.6. Suzhou Industrial Park
The Suzhou Industrial Park is a joint project set up by Singaporean and Chinese companies with strong links to the government. The park was opened in 1994 and is intended to cover 70 square kilometres with development over a 20-year period at an investment cost of USD 20 billion.
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Article 8 of the FIT Law provides for tax holidays applying to different types of enterprises. The duration of the tax holidays varies from three to ten years. The type of the enterprise and the length of its operations are decisive when determining tax incentives, while location is considered only in certain situations. It is understood that, in the case of an enterprise with a business licence allowing operations in both “productive” and “non-productive” activities, the tax incentives will be available if more than 50% of the FIE’s income is from “productive” activities.
7.5.1. Five-year tax incentives
Article 8 of the FIT Law provides for a general two-year tax exemption, followed by a three-year 50% tax reduction for all foreign investment enterprises engaged in production that operate for a period of ten years or more. Enterprises engaged in the exploitation of natural resources are specifically excluded. A further tax reduction of 15% to 30% for an additional ten years may be granted if the enterprise operates in agriculture, forestry, animal husbandry or is located in a remote or economically underdeveloped area.86
7.5.2. Ten-year tax incentives
Article 75 of the FIT Rules provides for a ten-year tax incentive, comprised of a tax exemption for the first five years and a 50% tax reduction for the following five years with respect to the following types of enterprise:
7.5.3. Three-year tax incentives
A one-year tax exemption followed by a two-year 50% tax reduction is granted to:
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Also included under article 75 of the FIT Rules are CJVs with a term of operation of ten years or more that have been recognized as high or new technology enterprises and that are established in HNTZs. Such enterprises are exempt from enterprise income tax for the first two years.
7.5.4. First profit-making year and operating period
All tax holidays begin with an enterprise’s first profit-making year, which is defined as the first profitable year after the enterprise has commenced production or operations and when earlier losses have all been carried forward and set off against profits.
The period of the tax holiday is calculated without interruption from a taxpayer’s first profit-making year and may not be postponed as a result of losses suffered during subsequent years.88 Where an enterprise commences actual production operations in the second half of a taxation year and becomes profitable in the same year, it may choose to pay income tax on profits earned during that year and to deem the subsequent year as the first profit-making year.89
To qualify for the tax holiday, a taxpayer must be engaged in production and business operations for the specified minimum period of ten or 15 years. If a taxpayer has been granted a tax holiday and terminates the operation within the minimum period, the taxpayer must pay back the amount of income tax exempted and reduced, unless it suffered serious losses due to a natural disaster or accident.90
If an enterprise is engaged in a production business as well as a nonproduction business, the operating period does not begin until the income from the production business exceeds 50% of the total income of the enterprise.
If a FIE needs to divide its total investment into phases and the construction for each phase of the investment can be separately carried out, operating income from each individually completed investment phase may qualify for separate tax exemption periods, provided that each phase can be operated separately with its own set of books and accounts. Therefore, if a foreign investor is contemplating a long-term investment, it may wish to consider if the total investment could be phased in over a period of time to maximize the period of tax exemptions.
In addition to the tax holidays, the FIT Law and FIT Rules in force until 2008 provided for reduced tax rates of 24% and 15% for certain enterprises doing business in the special areas of China, which include the SEZs, the ETDZs, the OCEZs and HNTZs.
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The 24% reduced rate applied to:
The 15% reduced rate was applicable to:
Certain tax incentives are granted only to enterprises that qualify as export-oriented or technologically advanced. If an enterprise qualifies under both categories, it may choose whichever treatment is more advantageous.
7.7.1. Export-oriented enterprises
After the expiration of the standard tax holidays, export-oriented enterprises may be granted a 50% reduction in the applicable tax rate, resulting in a rate of 15% if no other tax concession is available. For export-oriented enterprises established in the SEZs or ETDZs, or other enterprises that already pay tax at the reduced rate of 15%, the applicable rate is only reduced to 10%.98 The tax reduction applies without time limitation as long as the enterprise qualifies as export-oriented.
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7.7.2. Enterprises using advanced technology
Enterprises that continue to be technologically advanced following the expiration of the general tax exemptions and reductions may be granted an additional 50% reduction in their tax rate for three years.
FIEs in SEZs engaged in manufacturing are regarded as technologically advanced and export-oriented. Therefore, they are exempt from foreign income tax for the first two profit-making years and are taxed at 7.5% (the normal rate applicable in an SEZ, 15% x 1/2) for the next three years. From the sixth year, the tax rate is 10% and this rate continues to apply during the rest of the operational years.
Article 10 of the FIT Law provides for a refund of the income tax already paid on profits that are reinvested in China. To obtain the refund, a foreign investor must use profits derived from an FIE to increase that enterprise’s registered capital (before such profits have been distributed) or use the profits to establish another FIE.
When calculating the tax refund, the foreign investor must provide evidence that confirms the taxation year to which the reinvested profits are attributable. The foreign investor must also provide to the tax authorities a certificate evidencing the capital increase or new capital contribution to another enterprise.99 The funds must be reinvested in China for at least five years. If the reinvestment is withdrawn within five years, the refunded tax must be paid back.100 The foreign investor must apply to the tax authorities for the refund within one year from the date of reinvestment and in the place where the tax was actually paid.101 It is the foreign investor in an FIE that qualifies for the refund, not the FIE itself.
Under most circumstances the refund is 40% of the income tax already paid. However, a 100% tax refund is provided where profits are reinvested in the establishment or expansion of an export-oriented or technologically advanced enterprise. If the enterprise established or expanded with the reinvested funds fails to fulfil the requirements for an export-oriented enterprise, or is no longer recognized as a technologically advanced enterprise, 60% of the tax refund obtained must be paid back within three years, that is to say that only the regular 40% refund is applicable.102
A 100% tax refund is also available to foreign investors with respect to profits from enterprises established in the Hainan SEZ that are reinvested in the same enterprise, or in other enterprises that are engaged in construction projects involving infrastructure facilities or in agricultural development in the Hainan SEZ.103
The amount of the tax refund for reinvestment is computed by applying the following formula:104
Tax refund= [reinvested amount divided by (1 – original combined central and local tax rates
actually applied)]Xthe original combined central and local tax rates actually appliedXthe refund rate.
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For instance, if , prior to 2008, a joint venture was subject to the combined central and local tax rate of 33% and the foreign partner in the venture was eligible for a 40% tax refund for RMB 100 reinvested in the same venture, the amount of the tax refund is equal to (100/(1 – 0.33)) 33% x 40% = 19.7.
It also appears that the refund is now also available to wholly foreign-owned investment holding companies in China for their investments in FIEs.
In addition to the reduction of withholding tax rates under the tax treaties, a withholding tax exemption or reduction may be available under the FIT Law and the FIT Rules.
7.9.1. Dividends
Dividends are exempted from Chinese withholding tax if they are received by foreign investors from FIEs.105 Also, intercompany dividends received by FIEs from other PRC enterprises are exempt from the foreign income tax. However, expenses and losses of the PRC enterprises are not deductible for the investors.106 After-tax profits can be distributed to foreign investors without withholding tax.
7.9.2. Interest
Interest income is exempted from withholding tax if it is paid on loans extended to the Chinese government and China’s State banks by international financial organizations107 or on loans given at a preferential rate by foreign banks to China’s State banks.108 China’s State banks include the PBOC, the Industrial and Commercial Bank of China, the Agricultural Bank of China, the Bank of China, the People’s Construction Bank of China, the Bank of Communications, the China Investment Bank, and other financial institutions approved by the State Council to engage in credit operations such as foreign exchange deposits and loans.109
Interest on other loans made at preferential rates to approved trust and investment corporations in China, the China National Offshore Oil Corporation and Chinese enterprises and organizations to finance the purchase of technology or equipment may also be exempted.
Interest on loans, advances and deferred payments provided under credit or trade contracts signed between 1983 and 1995 by foreign enterprises with Chinese enterprises is taxed at the reduced rate of 10% during the effective term of the contract.110
Interest paid from SEZ sources to investors who have no establishment in China is taxed at a reduced rate of 10%.
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7.9.3. Rent and royalties
Royalties are exempt from withholding tax or taxed at a reduced rate of 10% in the following situations.111
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In many situations, withholding tax may be waived or reduced on royalties received by non-resident enterprises. For example, the 10% reduced rate applies to royalties derived from scientific research, development of resources, infrastructure, agriculture, forestry and animal husbandry. Royalties earned in respect of the use of advanced technology are exempt.112
Rents and royalties received from sources in the SEZs and other preferred areas are taxed at the reduced rate of 10%.
Leasing fees for equipment under contracts entered into between 1983 and 1995 are taxed at the reduced rate of 10% during the effective term of the contract.
7.9.4. Guarantee fees
Guarantee fees are fees paid by a taxpayer to a financial institution or other third party for providing a loan. Such guarantee fees are considered to be interest income for tax purposes in China. As a general rule, withholding tax is levied on guarantee fees paid to a non-resident guarantor.
According to the SAT notice on tax treatment of guarantee fees of February 25, 1998, FEs are taxable under article 19 of the FIT Law on their income derived from guarantee fees. This applies to FEs that do not have an establishment in China or have an establishment in China but where guarantee fees cannot be attributed to it. The paying enterprises in China must withhold tax payable on guarantee fees effective as of March 1, 1998.
The nominal rate of income tax prior to 2008 on FIEs and FEs of 33% consists of 30% national tax and 3% local tax; however, local governments generally waive the 3% local tax. Under certain circumstances local governments are willing to give tax concessions on grounds of mandatory regulations stipulated by the State Council.
Indeed, the negotiation with the local government can result in more tax concessions than provided under the Chinese tax law and regulations.113
The Ministry of Finance has issued a circular governing the preferential tax treatment of joint venture projects involving township corporations from inland areas and coastal areas. With the permission of the relevant tax authorities, income tax may be waived for up to three years. Furthermore, the depreciation period for fixed assets may be shortened, but cannot be less than:
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If the expenses incurred by profitable enterprises for the research and development of new products, new technology and new crafts have increased by 10% or more from the previous year, and provided that permission is obtained from the competent tax authority, the current year’s taxable income may be reduced by 50% of such current year’s expenses. If 50% of the current year’s expenses exceed the current year’s taxable income, the excess may not be carried forward to subsequent years. This provision does not apply to enterprises with losses.
Investors in port or wharf development and construction businesses may be able to accelerate the payback of their investments through accelerated depreciation. For example, if the foreign investment is in the form of a CJV and its fixed assets will be turned over to the Chinese partner at the end of the term of the joint venture, the foreign investor’s capital investment may be returned, on a tax-free basis, in the form of a depreciation claim. Where the depreciation claim is accelerated, the foreign investor’s return of investment will also be accelerated.
Property tax, agriculture tax and other taxes can be waived for limited periods. Exemptions from these taxes, normally collected by the local tax bureaus for the local revenue purposes, are mentioned in the foreign investment booklets issued by the local governments.
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The favourable tax treatment for FIEs has been a topic of controversy among policy makers within the tax authorities and the Uniform EIT Law aims to bring the tax position of FIEs in line with that of domestic enterprises beginning in 2008. Nevertheless, China’s priority remains the attraction of foreign investment. Moreover, domestic companies have also enjoyed tax incentives (many listed Chinese companies pay income tax at a reduced rate of 15%).
The tax law in China changes quickly and it is likely that the tax incentive regime will evolve once the Uniform EIT Law comes into effect. In particular it is expected that revisions to the tax incentive regime will be focused on the holding of valuable intellectual property as China pursues its goal of moving from a manufacturing economy to a knowledge-based economy. Therefore, it is essential that FIEs reach an understanding with the relevant tax authority before making their investments on the availability of any tax incentives.
1 The Enterprise Income Tax Law was adopted by the Fifth Session of the Tenth National People’s Congress (NPC) and was promulgated on March 16, 2007.
2 Detailed Rules and Regulations for the Implementation of the Income Tax Law for Enterprises with Foreign Investment and Foreign Enterprises issued by the State Council of China on June 30, 1991.
3 Article 3 of the Enterprise Income Tax Law.
4 The Regulations were promulgated on December 13, 1993.
5 Article 2 of the Enterprise Income Tax Regulations.
6 Article 4 of the Enterprise Income Tax Regulations.
7 Article 5 of the Enterprise Income Tax Regulations.
8 Article 6 of the Enterprise Income Tax Regulations.
9 Article 7 of the Enterprise Income Tax Regulations.
10 Article 3 of the Enterprise Income Tax Regulations.
11 Article 11 of the Enterprise Income Tax Regulations.
12 Article 12 of the Enterprise Income Tax Regulations.
13 Article 15 of the Enterprise Income Tax Regulations.
14 Article 16 of the Enterprise Income Tax Regulations.
15 Article 3 of the Enterprise Income Tax Law.
16 Article 3 of the FIT Law and article 5 of the FIT Enterprise Income Tax Law.
17 The law was adopted on April 12, 1986 by the Fourth Session of the Sixth NPC, and entered into effect as of January 1, 1987.
18 Article 7 of the FIT Rules.
19 Article 8 of the FIT Rules.
20 Article 8 of the FIT Rules.
21 Articles 12 and 13 of the FIT Rules.
22 Articles 19(1) and (2) of the FIT Rules.
23 Article 10 of the FIT Rules.
24 Article 20 of the FIT Rules.
25 Article 58 of the FIT Rules.
26 Article 21 of the FIT Rules.
27 Article 21 of the FIT Rules.
28 Article 22 of the FIT Rules.
29 Article 24 of the FIT Rules.
30 Article 25 of the FIT Rules.
31 Article 26 of the FIT Rules.
32 Article 25 of the FIT Rules.
33 Article 27 of the FIT Rules.
34 Articles 19(1) and (2) of the FIT Rules.
35 Article 30 of the FIT Rules.
36 Article 30 of the FIT Rules.
37 Article 30 of the FIT Rules.
38 Article 33 of the FIT Rules.
39 Article 42 of the FIT Rules.
40 Article 32 of the FIT Rules.
41 Article 37 of the FIT Rules.
42 Article 37 of the FIT Rules.
43 Article 37 of the FIT Rules.
44 Article 37 of the FIT Rules.
45 Article 38 of the FIT Rules.
46 Article 39 of the FIT Rules.
47 Article 43 of the FIT Rules.
48 Article 43 of the FIT Rules.
49 Article 44 of the FIT Rules.
50 Article 47 of the FIT Rules.
51 Article 46 of the FIT Rules.
52 Article 47 of the FIT Rules.
53 Article 49 of the FIT Rules.
54 Article 48 of the FIT Rules.
55 Article 47 of the FIT Rules.
56 Article 49 of the FIT Rules.
57 Article 50 of the FIT Rules.
58 Article 51 of the FIT Rules.
59 Foreign investment financial institutions include foreign banks, branches of foreign banks, sino-foreign joint-equity banks, foreign financial companies and sino-foreign joint-equity financial companies.
60 The measures contained in the notice became effective as of January 1, 1997.
61 Article 12 of the FIT Rules.
62 STB, Notice on Tax Matters Relating to Joint Exploration of Oil Resources and Labour Services with respect to Offshore Oil Engineering Projects by Foreign Investment Enterprises and Foreign Enterprises, issued on November 27, 1991.
63 Regulations on Levying Royalties on Offshore Oil Exploration, issued by the Ministry of Finance on January 1, 1989.
64 Provisional Regulations on Levying Royalties on Chinese-Foreign Joint Exploitation of Onshore Oil, issued by the Ministry of Finance on January 15, 1990, as amended.
65 Notice on Several Issues of the Tax Consolidation, Guo Shui Fa [1998] No. 127 issued on August 13, 1998.
66 Provisional Regulations for Income Tax on Enterprises with Foreign Investment and Foreign Enterprises, Tax Treatment for Transfer of Assets, Guo Shui Fa [71] 1997.4.28.
67 Provisional Regulations for Income Tax on Enterprises with Foreign Investment and Foreign Enterprises, Tax Treatment for Transfer of Assets, Guo Shui Fa [71] 1997.4.28.
68 Provisional Regulations for Income Tax on Enterprises with Foreign Investment and Foreign Enterprises, Tax Treatment for Transfer of Assets, Guo Shui Fa [71] 1997.4.28.
69 Article 18 of the FIT Rules.
70 Article 12 of the FIT Law and article 84 of the FIT Rules.
71 Article 83 of the FIT Rules.
72 Article 84 of the FIT Rules.
73 Article 84 of the FIT Rules.
74 Article 28 of the FIT Rules.
75 Tax Administration and Procedures for Transactions between Related Parties (May 20 1998 Guo Shui Fa [1998] No. 59).
76 Administration of Tax on Business Transactions between Affiliated Enterprises Rules (October 22 2004 Guo Shui Fa [2004] No. 143).
77 Article 100 of the FIT Rules.
78 Article 20 of the FIT Law.
79 Article 5 of the FIT Law.
80 Article 7 of the FIT Law.
81 Article 73 of the FIT Rules.
82 Article 7 of the FIT Law.
83 Article 72 of the FIT Rules.
84 Article 71 of the FIT Rules.
85 September 18, 1992, Guo Shui Fa, [1992] No. 218.
86 Article 8 of the FIT Law.
87 To qualify, the banks must have foreign investment capital or, in the case of branches, head office working capital allocations exceeding USD 10 million, article 75 of the FIT Rules.
88 Article 76 of the FIT Rules.
89 Article 77 of the FIT Rules.
90 Article 79 of the FIT Rules.
91 Article 8 (1) of the FIT Law.
92 Article 73(1) of the FIT Rules.
93 Article 73(2) of the FIT Rules.
94 Article 73(3) of the FIT Rules.
95 Article 73(4) of the FIT Rules.
96 Article 73(5) of the FIT Rules.
97 Article 73(6) of the FIT Rules.
98 Article 75(7) of the FIT Rules.
99 Article 80 of the FIT Rules.
100 Article 10 of the FIT Law.
101 Article 80 of the FIT Rules.
102 Article 81 of the FIT Rules.
103 Article 81 of the FIT Rules.
104 Article 82 of the FIT Rules.
105 Article 19(1) of the FIT Law.
106 Article 18 of the FIT Rules.
107 Article 64 of the FIT Rules. “International financial organizations” in article 19 of the FIT Law refers to organisations such as the International Monetary Fund, the World Bank, the Asian Development Bank, the International Development Association and the International Fund for Agricultural Development.
108 Articles 19(2) and (3) of the FIT Law.
109 Article 65 of the FIT Rules.
110 Ministry of Finance Notice on Extending the Period for Exempting or Reducing Tax on Interest and Royalties Obtained by Foreign Enterprises, issued on November 19, 1990.
111 Article 19(4) of the FIT Law and article 66 of the FIT Rules.
112 Article 19(4) of the FIT Law.
113 However, some local authorities exceed their authority and grant foreign investors illegal tax concessions. It has been reported that the Chinese government is determined to take action against such “illegal” tax concessions, and also that some foreign companies have been forced to pay back tax due to these concessions being revoked with retroactive effect.