Articles by Practice Area
By Dan Harris on January 6, 2012.
We lawyers are known as deal-killers. Most lawyers get offended by that moniker and vehemently deny it. Me, I am more than willing to own up to it. Clients go to lawyers all excited about a deal and it is the lawyer’s job to point out the risks and to explain which of those risks can be mitigated and which cannot. I am proud of the deals I killed because my killing the deal meant I was doing right by my client. In other words, I was just doing my job.
I have put the kibosh on many a China acquisition and that is what this post is about. The following is actually an amalgamation of many such potential acquisitions, but for ease of explanation and to camouflage the identities of those involved, I have amalgamated a bunch of them into one. Trust me when I say that the following is incredibly typical, including the retirement of the owner precipitating the need for the deal.
The potential deal was for a US manufacturer that had been receiving its product from the same China manufacturer for about fifteen years. The Chinese manufacturer had been providing about 90 percent of its product output to this one US manufacturer and the two companies had a “fantastic” relationship. The owner of the Chinese manufacturer had done very well over the years and he now wanted to retire and sell his China manufacturing business to the US manufacturer.
In theory, this made complete sense.
The US manufacturer told me of its plans to buy and we briefly discussed some terms and “the numbers.” They said that the Chinese company was clearing about “a million a year” but that was not why they were buying it. They were buying it because they wanted to be sure they would be able to keep getting the product.
I then told laid out the likely reality of what was to come. I told them that if they bought the Chinese manufacturing company their profits (if any) would likely be considerably lower. I proceeded to explain why this would probably be the case.
I said that there is a good chance the Chinese manufacturer is paying half of its employees completely under the table and reporting to the government only half of what it was paying the other half. I then talked of how there is also a good chance the Chinese manufacturer is underpaying its taxes and of how its rent also may be paid under the table. I then said that this sort of thing may be all well and good for Chinese companies, but that if the US manufacturer were to buy this Chinese manufacturer, it would need to do so as a WFOE and it would then immediately be on a “whole ‘nother level” with respect to China’s various tax authorities.
I then told the US manufacturer that if it were to buy the Chinese manufacturing business, it would need to bring every single employee onto the payroll and that would likely mean the payroll expenses would be close to doubled. I then gave my estimated numbers. All of the wages now being paid under the table would need to be paid above the table and that would mean that the US manufacturer would, in turn, need to pay all sorts of employer taxes, pensions, and insurance. I told the US manufacturer to figure that these items would be about 40% of all wages. So if you have an employee who is now getting $1000 a month under the table and you then report to the government that you are paying that employee $1000, you should figure on needing to pay about $400 on that to the government.
But it gets worse. Much worse.
You see, that employee who is receiving $1000 under the table is usually quite happy to be getting paid under the table. So when you tell that employee that you are now going to be reporting his or her wages/income to the government, that employee is going to demand a raise. You see, that employee has been able to avoid having to make his or her various employee contributions and to pay his or her income taxes and your now reporting his or her income will end all of that.
You should expect needing to raise employee salaries by maybe 40 percent. So now the employee who was getting $1000 is getting $1400 and you as the employer are going to need to pay an additional 40 percent on that, which equals around $560. So all of a sudden the employee that cost the Chinese manufacturer $1000 a month is going to cost you pretty close to $2000. In other words, double.
And let’s take rent. The Chinese manufacturer is probably paying the landlord under the table and the landlord is not reporting it. Heck, there is a very good chance the landlord is not even legally able to lease out the property, but for the sake of the numbers, let’s assume that the landlord is actually authorized to lease it. If you are going to buy the Chinese manufacturer’s company you are going to have to do so as a WFOE and to get a WFOE approved at all, you are going to need to have a legitimate lease. That means that before you buy this Chinese manufacturer, you are going to need to go to the landlord and tell it that you need to get your landlord-tenant relationship “on the grid” and that the landlord is going to need to register the lease with the appropriate authorities.
The landlord will likely call you an idiot (trust me on this) and initially balk. You will then need to explain that you absolutely must get on the grid and that you are prepared to cover the landlord’s increased costs to do so. Figure on this raising your rent by around 25%. Again though, this assumes that your being able to stay at this facility is even possible.
Okay, so now that I have explained how the above will eat into your numbers, let’s talk about income taxes. You are going to have to pay income taxes on the money you make, even though the Chinese manufacturer maybe never did. Figure 25% of your profits will go to income taxes. And if you are now thinking that you are not going to have any profits, let me tell you that is likely going to matter less than you think for Chinese income tax purposes. You see, if you have no profits, the Chinese tax authorities will figure that is because your Chinese WFOE is intentionally under-pricing the product it is selling to your United States operations and it will then impute a profit to your Chinese WFOE. It’s a transfer pricing thing.
You need an accountant who understands China to look over the Chinese manufacturer’s books and to run the numbers to see if this deal is going to make sense.
A few months later, I received the following (doctored) email from our US manufacturer client:
Here is where we stand:
Our accountant is in the process of re-modeling the business from a top-down perspective, in an effort to clarify what the numbers would be for our China WFOE, while complying with the rules. We have good history on the revenue and most of the operating costs.
As you guessed, we will need to apply roughly a 2x factor to the labor costs that the Chinese manufacturer is showing, so as to properly book all of the official upcharges.
Also, as you suggested might be the case, the landlord of the factory space is not properly registered, so we will be increasing the booked rental costs as well.
The reality is that we probably will not be purchasing the Chinese manufacturing company did not sit well with its owner. He was offended when I reiterated my stance that I wouldn’t operate the business in the same manner as he has. He lost face.
A few weeks after that, I received the following email from the client (again doctored):
it is now clear that we shouldn’t consider buying [the Chinese manufacturer]. He [the owner of the Chinese manufacturer] had previously indicated that there were “a couple” more issues related to the accounting procedures. I pressed him to explain if there were any others. Of course, you know the answer to that.
In summary, it is becoming clear that we cannot be profitable in China if we follow all the rules. It is not completely clear this is really the case, since we can’t tell if [the owner of the Chinese manufacturing company] really understands the rules. What is certain is that the numbers on which we had been basing our valuations are simply not valid. The “profits” that the Chinese manufacturer was claiming to have achieved are not valid under our business model.
Amazingly enough, the US manufacturer and the Chinese manufacturer came up with a great solution which ended up working like a charm. The manager of the Chinese manufacturer bought the Chinese business and continued running it just as before and the US manufacturer and the Chinese manufacturer have maintained their “fantastic” relationship. All is well, except my law firm made a lot less money than if the deal had gone through.
To read the original China Law Blog article, please click here.
Over the past several years, there has been a significant rise in the number of foreign-invested businesses that have been downsized or have left China altogether and this seems to be a trend that will continue as competition and the cost of doing business here increases. This article is intended as a practical overview of how to handle the closure of a WFOE.
When an investor decides that its China subsidiary is no longer sustainable, a decision has to be made whether or not to close the business or sell it. Normally, a trade sale will only be feasible if the business is profitable or a strategic investor can be found. If a buyer cannot be found, the business will need to be closed.
The preferred method for closing a WFOE (known as voluntary or solvent liquidation) involves three stages: liquidation, tax clearance, and deregistration, which altogether will require a minimum of 10-14 months to complete regardless of the industry or location of the business. The process, described below, is complicated and will require assistance from experienced lawyers and accountants.
This is done by paying all existing debts, including all debts to employees and to the PRC government, in accordance with a precise timetable. The process starts with the WFOE’s board of directors and, more often than not, the board of the investing entity, drafting a resolution to terminate operations and appoint a liquidation committee. This is followed by notifications to local authorities and creditors, which in turn is followed by a long, drawn-out government audit carried out by a local accounting firm. A so-called liquidation plan is generated and if, at any stage, it is determined that the WFOE is insolvent, and the investor refuses to inject additional cash, the liquidation will continue as a bankruptcy, controlled by a local court. If the WFOE is solvent, all of its assets are sold and the proceeds are used to settle all outstanding liabilities. A second audit is then carried out and a final liquidation report will be submitted to authorities for approval before tax clearance can begin.
During tax clearance, the liquidation committee will be required to submit various tax returns and statutory audit reports. Depending on the nature of the business and number of years it has been operating, local tax officials may scrutinize 6-10 years of tax filings and supporting documents and will focus on any related party transactions and transfer pricing practices. Tax clearance normally takes at least 6-8 months to complete.
Once the WFOE has obtained tax clearance, it will cancel registrations with all of the government agencies that it registered with while being incorporated. As part of this process, the original registration certificates must be returned and a failure to find or submit any of these documents will invariably delay the process. Only after this process is completed, can any remaining funds be remitted back to the investors with the final step being cancellation of the business license.
Given that China’s liquidation process is so time-consuming and expensive, we are often asked whether it is worthwhile and whether there are any alternatives. The main advantage of closing a WFOE this way is that it avoids unpleasant outcomes such as detention of expatriate personnel and revocation of their passports. It also leaves open the possibility of both the investor and any foreign personnel being able to return to China in future. Abandoning a WFOE without liquidating it properly will invariably result in the investor being blacklisted and unable to re-establish in China and if the legal representative or other senior executives are expatriates, there is a risk that they will be detained if they return to China.
As it turns out, in most instances, there is a relatively safe, informal alternative to the above process (besides bankruptcy) but it is not sanctioned by the PRC government.
China’s corporate laws do not officially permit the existence of dormant companies but it is possible to discharge most of a WFOE’s liabilities, effectively mothballing it until the business can be restarted or officially closed.
Investors wanting to avoid the formal liquidation process will need to first ensure that all expatriate personnel leave the country and then lay off all of the WFOE’s Chinese employees, paying them agreed severance packages and obtaining signed releases from all of them against any and all claims they might have against the business. All trade debts will need to be settled and again, releases obtained to minimize the risk of creditors later suing. Inventory and excess equipment will need to be sold and any leases that the WFOE has will need to either be terminated or let expire, whichever is more cost-effective. The WFOE will need to be relocated to a low-cost ‘address of convenience’ within the same district to cut expenses. This will be easier for non-manufacturing businesses.
The WFOE will then need to choreograph payment of all government taxes while remaining current with them. If the business was engaging in related party transactions and/or transfer pricing practices, it will be useful to engage a CPA firm to assess the amount of underpaid taxes prior to self-disclosure so the investor will be ready to challenge the official tax bill when it is issued.
Once all of the above steps have been carried out, the WFOE will still exist, but will essentially be dormant. It will be necessary to continue making NIL tax filings and pay whatever minimal ongoing taxes are levied. It will also still need to comply with all other government reporting requirements but if all of this is done properly, the cost of compliance, like the cost of the new registered office, will be minimal.
It is important to note that an informal dormancy is at best a temporary solution. Eventually, within 12-20 months – depending on the location – the local government will either start to levy higher taxes or threaten to revoke the business license. However, for many businesses, this approach defers the expense and inconvenience of liquidating the business and a decision about whether or not to remain in China. In the meantime, all major debts will already have been cleared off the WFOE’s books so that any subsequent official liquidation will be quicker and easier. The main advantage of handling the closure this way, apart from keeping the investor’s options open, is that it avoids blacklisting and still affords the investor significant control over the process.
Voluntary liquidations are complicated and time-consuming but avoid the unpleasantness of bankruptcy and simply abandoning the business. Informal dormancies, once rare, have become fairly common and are increasingly regarded as a ‘halfway-house’ alternative between voluntary liquation and abandonment.
None of these arrangements are for the faint of heart and are best decided on after having taken professional advice and after all other alternatives, such as a trade sale, have been considered. As with everything else related to China, careful planning is vital to the success of a business closure.
By Richard Grams, Consultant, Oldham, Li & Nie.
Gift-giving and hospitality are time-honored traditions within mainland Chinese culture and still play a significant role in cultivating relationships, showing respect and appreciation. However, gift-giving in a business context is usually more nuanced due to the emphasis that Chinese place on hierarchy/social status and concerns about how actions reflect on themselves. Today’s more stringent anti-bribery enforcement climate also complicates business gift-giving in China.
What follows are some guidelines on gift-giving etiquette in Chinese business culture.
- Chinese place great emphasis on symbols and symbolic associations which may not be readily apparent to non-Chinese. Care must be taken in choosing gift items which are regarded as having symbolic significance.
- Give gifts to key business executives you visit, as a way to thank them for meeting you.
- Gifts exchanged in the context of an ongoing negotiation are acceptable but wait until avoid negotiations are finalized before giving gifts to avoid giving the impression that the gift is given for the purpose of influencing the outcome of negotiations.
- Colors carry great symbolism in China. Limit color of wrappings to Red, Gold, Silver and Pink. Colors such as white, blue, black or yellow wrapping with black text printed on should be avoided. To avoid wrapping being torn or creased from travel, wait until you arrive in China before wrapping the item. Speak with hotel staff about nearby gift-wrapping services.
- If giving multiple items, avoid giving 4 of any items as Chinese associate the number with death. The number 6 (六) sounds similar to the character for 'flow' (流), which indicates fluidity and that everything will go smoothly. The number 8 is considered the most auspicious number for the Chinese, mostly because the word 'eight' (八) in Chinese somewhat resembles the word for 'prosperity' or 'wealth' (发). A gift of either 6 or 8 items will be appreciated.
What to Give as Gifts
The ideal gift need not be big or expensive. It should, however, be something that the recipient will appreciate. Keep the following tips in mind:
- A gift that represents where you are from or an item which is not accessible in China will usually be highly appreciated.
- Avoid giving any gift that may regarded as extravagant as this may place undue pressure on the recipient to reciprocate. Reciprocity is a very important facet of Chinese culture and if the recipient feels unable to reciprocate, he/she will usually refuse to accept the gift offered.
- The more practical the gift, the better, as it will serve as an oft-used reminder of you and your thoughtfulness.
Suggested Gift Items:
- A bottle of good or very good wine, cognac or scotch whiskey since apart from the material value these represent, they also symbolize a toast to the good health of the recipient so regarded as very sincere
- A fine pen
- Memorabilia of a sports team near your company’s operations (a jersey with name printed – be careful with the colors)
- A coffee table book on symbolic moments in your country’s history or on wildlife, landscapes or art culture
- Good quality foreign cigarettes or cigars if the intended recipient is a smoker
- A small basket of apples is a popular tradition in China is to give apples especially on Christmas Eve. This is because Christmas Eve is called ‘Ping An Ye’ (平安夜), which sounds similar to the word for apple, and literally translates to ‘Peaceful, Silent Night’
- A leather wallet or other practical local handicraft especially if handcrafted in the country, region or city you are from
Items to avoid giving
- The word for ‘Shoes’in Chinese (鞋) sounds a bit like the Chinese word for ‘evil’‘heretical’(邪). It also giving them the tools to ‘walk away’and could be misinterpreted as you wanting to part ways, thus ending your relationship
- Avoid giving umbrellas, scissors, handkerchiefs or pens containing red ink and avoid signing cards with red ink.
- While most Chinese people would welcome receiving most fruit, especially apples, don’t give pears because the Chinese word for 'pear' (梨) sounds the same as 'to separate' or 'to part from' (离) and might imply that you hope the recipient's family will separate (through death or divorce).
- Flowers are generally fine but if you decide to give these, avoid white ones, especially Chrysanthemums, which are only used when visiting graves or during funerals.
- The Chinese word for 'four' (四) sounds similar to the character for 'death' (死) so avoid giving any item in a set of four.
Proper Etiquette for Giving a Gift
Chinese people believe that the manner in which a gift is given is sometimes worth more than the gift. The most common gift-giving faux pas can be avoided by following the tips below:
- Hierarchy is a treasured concept in China, with people at the higher levels of social strata receiving a great amount of deference. When making a gift to a company or to a group of people within a company, present it to the most senior ranking person in the room.
- In general, to avoid possible embarrassment, give the same type of gift to recipients at the same level within their organization.
- Giving a gift to an individual as a gesture of friendship rather than as a token of appreciation to the group that the recipient represents is usually best done in private.
- Chinese people are typically reserved and your gift is likely to be received with a reserved demeanor particularly if you give it in the presence of the recipient’s staff. Do not take this is a lack of enthusiasm for the gift; the recipient simply does not want to be cast as greedy.
- To avoid appearing greedy, the recipient may decline the gift the first time it is offered. Persist and ask again. It is customary for a gift to be declined up to 3 times before it is accepted so be prepared for this. If the gift has been absolutely refused, do not press on but politely acknowledge the refusal.
- Gifts are usually not unwrapped when they are received so do not be offended if the recipient does not open the gift in front of you. Chinese people do not usually open a gift in front of the giver to avoid possible embarrassment. Instead, a recipient will open it later and then call or write to thank the giver.
- Once the gift is accepted, express your gratitude that they have accepted the gift and proceed from there.
- Wrap gifts well and ensure that the wrapping is presentable before giving a gift. Never present a gift in the store bag the gift was purchased from.
- When presenting a gift, offer it facing the correct way to the recipient and do so with both hands. It signifies that respect and care has been taken. This is similar to the process of exchanging business cards.
- Unless the occasion is symbolic, do not photograph the gift-giving.
Proper Etiquette for Receiving a Gift
The procedure for receiving a gift is similar to that for giving one. Please note:
- You may be expected to initially decline the gift, 3 times customarily, before eventually accepting it and expressing your gratitude.
- When you do accept the gift, take it with both hands. As earlier noted, it symbolizes respect and gratitude for the gift and the thoughtfulness of the person giving it.
- Chinese people who have had previous contact with Americans or other Westerners may expect you to follow the American custom of opening the gift when it is received (ie: in front of the person giving). To avoid confusion, you can always ask, "Would you like me to open this now?
- Call or send a thank-you note. And, if possible, bring a gift of roughly similar value to give the giver on a subsequent occasion.
By Elodie Dellavolta, Foreign Qualified Lawyer
China has its own Intellectual Property (“IP”) rules so you need to learn these quickly!
Here are 10 “Key Rules” to enable you to properly protect your IP in the PRC and so reduce your business risk.
1. Rule No.1: Registration of your Trade Mark in your country of origin gives you no similar Protection in the PRC.
Trade Mark rights are territorial and the ownership of a Trade Mark in one country generally provides no advantage when seeking to enforce that Trade Mark in another country. You must register your Trade Mark without delay in the PRC, and ideally within the 6 months of its application in another country, to possibly back date the PRC application.Protection by registration in the PRC does not cover Hong Kong, Taiwan, Macau. So, registration of your Trade Mark in Hong Kong, Taiwan and Macau does not give you any protection in the PRC. You must separately register your Trade Mark in each of those separate legal jurisdictions.
2. Rule No.2: Be the first to file in the PRC. There is no substitute for this.
Unlike in the US where the Law tends to favour the user of a Trade Mark, China’s IP Law favours the first party to file. There is no effective protection without registration in the PRC. Also remember never to rely on others to register your Trade Mark; indeed if another party registers a Trade Mark in its own name, it may even be able to claim against you!
3. Rule No.3: Check your Trade Mark is available for registration and use
Take professional advice on the registrability of your Trade Mark before making any application. Conducting a comprehensive search on the availability of the Trade Mark in the PRC is recommended.
4. Rule No.4: Enforcement of your Trade Mark can only be effected, once your Trade Mark is registered in the PRC.
You don’t have recourse to the different methods of enforcement in the PRC until you actually have a PRC Trade Mark Registration Certificate. However, be aware that the turnaround time to obtain Trade Mark registration in China (PRC) is 12 to 24 months, from application.
If entering into any collaboration with a Chinese partner, do ensure that the relevant contract protects your Trade Mark rights and do ensure that there is a clear written agreement as to who owns what IP.
5. Rule No.5: Registration of your western language Trade Mark does not protect the Chinese character version of the same Trade Mark.
English is still not widely spoken in the PRC and so Chinese consumers often find that a Chinese name is much easier to pronounce and remember. The Chinese characters version of your brand name may have even more value than the original foreign-language name.
If you do not protect the Chinese language version of your Trade Mark, a third party could register such and prevent you from using it, as recently experienced by HERMES, the French luxury brand company, which lost an appeal to trademark the Chinese language version of its name in China.
So, consider filing a translation and or transliteration of your Trade Mark, in addition to its English character version.
6. Rule No.6: Apply for the Trade Mark for your existing goods/services and also for goods/services to be developed over the next 3 years
Note that the protection of your Trade Mark is limited to the relevant goods/services that the registration covers.
The Chinese system divides each 45 international classes of goods/services into subclasses. To efficiently prevent others from registering/using the same or a similar Trade Mark in the PRC without your prior consent, it is very important that the specifications of goods/services under the registered Trade Mark is appropriately sub classed. The Chinese Registrar appreciates the similarity between the goods/services (E.g: protection of a trade mark for “jeans” will not enable you to prohibit registration/use of a similar Trade Mark for “socks” by a third party), since they fall within different sub-classes.
7. Rule No.7: Monitor your Trade Mark
We recommend you to subscribe to a “watch service” so that you receive a report of all similar Trade Marks once advertised.
Also proactively record your Trade Mark with the PRC General Administration of Customs (GAC) to access a 7-years period of PRC Customs protection in the course of the import and export of goods bearing the Trade Mark.
8. Rule No.8: Use your Trade Mark within 3 years of registration
Use your Trade Mark to prevent your right being cancelled for non-use. Ask for our advice to keep your registration alive before it is challenged by a third party.
9. Rule No.9: Protect your Trade Mark through domain name registration under the Chinese top level domain “.cn”
10. Rule No.10: Adjust your Trade Mark licensing agreements to fit into the PRC legal system
Remember, certain clauses of any IP licence may be considered invalid under the Chinese legal system, so again, take legal advice in advance!
IP protection is a critical part of ensuring your business success, so get it right. Mistakes can be time-consuming and expensive to resolve.
IP protection is a complex legal area, so obtain professional advice as early as possible.
For enquiries related to this, please contact Chris Hooley (firstname.lastname@example.org), Vera Sung (email@example.com) or Elodie Dellavolta (firstname.lastname@example.org).
By Richard Healy, Partner.
You may have read recently that the People's Republic of China ("PRC") Ministry of Justice has recently issued a directive requiring lawyers in mainland China to take an oath of loyalty to the Communist Party. Accordingly, all newly admitted lawyers, or lawyers renewing their practicing licences are required to swear an oath of loyalty which includes the following wording:
"I promise to faithfully fulfill the sacred mission of socialism with Chinese characteristics….. be loyal to the motherland its people and to uphold the leadership of the Communist Party of China."
The justification for requiring this oath is that it is supposed to increase the integrity of Chinese lawyers. Whilst that aim seems doubtful, this requirement has drawn criticism from many quarters within China suggesting that it will hinder the development of the Chinese legal system and damage the rule of law in the PRC.
This situation should, however, be contrasted to situation in Hong Kong, which has the status of a Special Administrative Region within the PRC and applies principles of "one country two systems". The Hong Kong rules of professional conduct do not require the taking of any such oath and indeed the fundamental principles of professional practice emphasize the duty to the client as set out in Rule 2 of the Solicitors' Practice Rules:-
"A solicitor shall not, in the course of practicing as a solicitor, do or permit to be done on his behalf anything which compromises or impairs or is likely to compromise or impair-
(a) his independence or integrity;
(b) the freedom of any person to instruct a solicitor of his choice;
(c) his duty to act in the best interest of his client;
(d) his own reputation or the reputation of the profession;
(e) a proper standard of work; or
(f) his duty to the court."
It should also be noted that common law principles that still apply in Hong Kong, including the principle of confidentiality between lawyer and client and legal professional privilege. The directive by the Chinese Ministry of Justice requiring lawyers to swear an oath of loyalty to the Chinese Communist Party perhaps does no more than reiterate what many overseas have long suspected, that mainland Chinese lawyers first and foremost obligation is to the State and the Chinese Communist Party. For this reason many overseas clients prefer to take advice as to their overall strategy and structuring of China operations from Hong Kong lawyers where they know they will receive independent advice based solely upon the client's best interests.
OLN can assist you with PRC matters
OLN is happy to assist you with China related matters. With our team of experienced lawyers and our years of experience in helping our clients strategize and structure deals in China, OLN is able to serve your needs comprehensively.
OLN offers a wide range of services including the establishment and maintenance of business presences in China and all that is associated with such a business.