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Items filtered by date: August 2018
OLN is pleased to have been shortlisted as finalist in the following four categories:
Young Lawyer of the Year - Anna Chan
Firm of the Year categories:-
- Civil Litigation Law Firm of the Year
- Intellectual Property Law Firm of the Year
- Labour and Employment Law Firm of the Year
Congratulations to the teams!
by Anna Chan
The State Administration of Taxation of China (“SAT”) recently released Public Notice  No. 9 (“Public Notice 9”) which provides additional guidance in assessing the beneficial ownership for treaty purposes to be aligned with the international standards.
Impact of Public Notice 9
Public Notice 9 replaces Guoshuihan  No. 601 (“Circular 601”) and Public Notice  No. 30 (“Public Notice 30”) and has come into effect from 1 April 2018. The impact of Public Notice 9 are as follows:-
(i) Amendments to the unfavourable factors as listed in Circular 601
(ii) Extension to the Safe Harbour Rule for dividends as listed in Public Notice 30
Distribution of income: The recipient of the income is obligated to distribute more than 50% of such income (as opposed to 60% as stated in Circular 601) to a resident(s) of a third jurisdiction within 12 months after the receipt of such income.
In addition, the term “obligated” is now more broadly defined as “including having contractual obligation or actual payment even if no contractual obligation”
the following recipients of China-sourced dividends will automatically recognized as beneficial owners without the need to undergo an assessment based on the unfavourable factors:-
(1) Government of the contracting state (an extension from Public Notice 30);
(2) Company that is a resident of the contracting state and listed in the contracting state;
(3) Individual who is a resident of the contracting state (an extension from Public Notice 30); and
(4) Recipient that is directly or indirectly wholly owned by one or more parties listed above. In cases of indirect ownership, the intermediary shareholders must be either Chinese residents or residents of the contracting states (unless it falls into either the “same country rule” or “same treaty benefit rule” as detailed below).
Substantive business activities: Public Notice 9 now broadly states that it would be an unfavourable factor if the business activities conducted by the recipient of the income do not constitute substantive business activities, which is determined based on the functions performed and the risks assumed by the recipient
No tax in residence jurisdiction: Same as Circular 601, the income is not subject to tax or it would be taxed at a very low effective tax rate in the residence jurisdiction of the recipient
Existing of another loan agreement: Same as Circular 601, in addition to the relevant loan agreement of which interest is derived, the creditor has another loan agreement or deposit agreement with a third party with similar terms such as the loan amount, interest rate and date of execution
Existing of another agreement regarding ownership or right to use: Same as Circular 601, in addition to the relevant agreement in relation to copyright, patents or technology etc. of which royalty is derived, the recipient of the royalty has another agreement with a third party regarding the ownership or right to use the relevant copyright, patents or technology etc. (this factor remains the same as the one listed in Circular 601)
Our observations and application
The extension of the safe harbour rule provides more certainty to dividend recipients without the need to undergo the assessment based on the unfavourable factors as SAT considers that there should be less risk in treaty abuse.
For example, entities / individuals can now enjoy treaty benefits under the introduction of the “same country rule” or “same treaty benefit rule” as detailed below:-
(1) Same country rule
(2) Same treaty benefit rule
However, the unfavourable factors now have more stringent requirements in place. For example:-
- the percentage of the income to be distributed has now dropped from 60% to 50%;
- the term “obligated” is explicitly defined in Public Notice 9 as “including having contractual obligation or actual payment even if no contractual obligation”; and
- replacing the factor that “the recipient conducts no or very few other business activities” to “do not constitute substantive business activities”.
Entities / individuals with China-sourced passive income should carefully review their existing investment structures to ensure that they could enjoy or continue to enjoy the treaty benefits under Public Notice 9.
OLN provides a full range of tax advisory services. If you have any questions regarding the above or on any tax issues, please contact one of the members of the tax advisory team.
A relaxation of longstanding restrictions on hiring residents of Hong Kong, Taiwan and Macau (“HTM”) was among a list of official changes approved by China’s State Council on August 3, greatly expanding their employment opportunities in China.
Under the pre-existing system, mainland employers had to obtain approval from three separate government agencies before they could hire staff from any of these regions, a process that normally took more than a month to complete.
The restrictions continued after employment commenced, since the work permits were valid for only two years and were non-transferable. Employees wanting to change jobs would need to find employers willing to go through the approval process. As a result, many HTM residents worked illegally in China which meant that they were not eligible for social insurance benefits such as state-subsidised medical insurance.
The State Council decision means that such employees will now be entitled to the same employment freedoms as local residents and are more fully able to obtain social insurance coverage. Under the new arrangements being implemented in cities across China, employees simply apply for jobs in China and if hired, their new employer handles all of the filings needed to register for social security and other benefits. No vetting is required.
These changes only apply to Chinese nationals and will not impact expatriate HMT residents.
So far, most commentary about these new arrangements has been focused on their supposed economic benefits, pointing to, for example, opening up China’s vast employment market access to fresh talent, particularly in knowledge-based industries. However, for HMT residents, the benefits are more personal and potentially life-changing.
First, working in the mainland, in an industry of their choice, is now finally viable since employers there will be less likely to reject these candidates on the basis of overly complicated administrative procedures. Second, these changes level the playing field for HMT residents since they are now free to seek employment elsewhere and any time without having to wait for a new employer to obtain approval.