With Hong Kong being a signatory to the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information (“MCAA on AEOI”) and the Convention on Mutual Administrative Assistance in Tax Matters (“Convention”) entering into force in Hong Kong, Hong Kong has started exchanging financial account information with 41 jurisdictions commencing from 1 September 2018, including United Kingdom, France, Germany, Australia, Canada, Singapore and Japan.

This means the information of account holders who are subject to taxation as a resident in other jurisdictions other than Hong Kong including interest income, dividend income, gross proceeds from the sale of financial assets would be provided to the tax authorities of the other jurisdictions under the Automatic Exchange of Financial Account Information (“AEOI”) regime. Please refer to our Article “Is your personal data at stake because of the increased transparency in tax administration through Automatic Exchange of Information?” for a detailed discussion of the AEOI regime.

How it works?

(1) The Hong Kong Inland Revenue Department (“IRD”) has established a dedicated platform, i.e., the AEOI Portal, for reporting financial institutions (“FIs”) to electronically submit notifications and furnish Financial Account Information Returns for reporting the required information of reportable accounts.

(2) The IRD will exchange the financial account information collected from the reporting FIs with relevant jurisdictions via the Common Transmission System established by the OECD.

OLN’s observation

In the past Hong Kong had relied on a bilateral approach which involves signing bilateral Competent Authority Agreements (“CAA”) for AEOI with other jurisdictions that already have a comprehensive avoidance of double taxation (“CDTA”) or a tax information exchange agreement (“TIEA”) with Hong Kong. As at 13 September 2018, Hong Kong had 40 CDTAs and 7 TIEA, and signed 16 bilateral CAAs for AEOI. Hong Kong’s move of being a signatories to MCAA on AEOI and having the Convention entering into force in Hong Kong has demonstrated Hong Kong’s commitment to enlarging the scope of the exchange of tax information in the international community and to comply with the OECD’s requirement to have the first exchange of AEOI with a wide network of partners by September 2018.

With the continuous trend of the exchange of tax information between the tax authorities, taxpayers, in particular for the taxpayers that have presence in various jurisdictions, should carefully assess their tax obligations to ensure compliant with the tax laws of the relevant jurisdictions.

OLN is equipped to advise clients on tax issues arising from various jurisdictions. If you have any questions regarding the above or on any tax issues, please contact one of the members of the tax advisory team.

Major amendments to China’s Individual Income Tax Law (“IIT Law”) were proposed by the Standing Committee of the 13th National People’s Congress in June 2018 and after a period of public consultation which ended in July, the Draft Amendment (“Draft”) will likely take effect in October and be fully implemented in January 2019. 
The key reforms include:

• New definition of tax residency with revised criteria for determining tax residency status for foreigners
• Augmenting current system of taxing individual income
• Revised tax rates and reshuffling of taxable income brackets
• Expanding standard basic deduction and introducing additional specific deductions
• Introducing new anti-avoidance rules for individuals
• Implementing a taxpayer identification system

Changes to Tax Residency

The Draft introduces the concept of resident and non-resident for IIT purposes and will reduce the threshold for tax residency from 1 year to 183 days. This means that any foreign individual who has stayed in China for 183 days or longer in any tax year will be considered a resident, with income sourced within or outside China subject to IIT.

This shortened tax residency will, if passed, repeal China’s longstanding “5-year tax rule”. Under the 5-year tax rule, a foreign resident’s worldwide income only becomes subject to IIT after the resident remains in China continuously for five years. Foreign individuals were able to avoid having their overseas income subject to IIT by temporary absences from China prior to the 5-year threshold.

Reclassification of Taxable Income

Under the current IIT Law, all income received by individuals taxable was lumped together for IIT purposes. The Draft designates 4 categories of employment-related income (including income from salary and wages), income from independent personal services, income from author’s remuneration and royalties, as “Comprehensive Income”. These will now be subject to one set of progressive tax rates in determining the IIT payable on them. All tax residents will be taxed on an annual basis for these while non-residents will continue to be taxed on a monthly or as and whenever taxable income arises.

Income from business operations conducted by self-employed taxpayers will now be reclassified as “Business Operations Income”, and all income from contractual/leasing operations will either be treated as Comprehensive Income or Business Operations Income depending on the circumstances.

Income from interest income, dividends, income from property leasing, income from transfer of assets, incidental income and other income will continue to be taxed separately at the rate prescribed for those categories.

Revised IIT Rates & Tax Brackets

In an effort to alleviate the IIT burden on low and middle-income earners, the Draft consolidates certain taxable income categories and revises both the rates of IIT and tax brackets that will apply to these income categories, as illustrated in the 2 tables below:

Under Current IIT Law		Under the Draft
Categories	Tax rates	Categories	Tax rates
Income from wages & salaries	3%-45%	Classified as “Comprehensive Income”	3%-45%
Income from remuneration for personal services	20%-40%
Income from authorship	20%
Income from royalties	20%
Income from operations by individual and commercial households	5%-35%	Classified as “Business Operation Income”	5%-35%
Income derived from contractual or leasing operations	5%-35%	treated as either Comprehensive Income or Business Operation Income
Income from interest, dividends & bonuses	20%	unchanged
Income from lease of property	20%
Income from sale/transfer of assets	20%
Other income	20%

	Comparison of Tax Brackets for IIT
	on Monthly & Annual Taxable Income
Bracket	Amount (RMB) under Current IIT Law	Amount (RMB) under Draft	IIT rate (%)
1	up to 1,500/month	up to 3,000/month	3
	up to 18,000/yr	up to 36,000/yr
2	1,501-4,500/month	3,001-12,000/month	10
	18,001-54,000/yr	36,001-114,000/yr
3	4,501-9,000/month	12,001-25,000/month	20
	54,001-108,000/yr	114,001-300,000/yr
4	9,001-35,000/month	25,001-35,000/month	25
	108,001-420,000/yr	300,001-420,000/yr
5	35,001-55,000/month	35,001-55,000/month	30
	420,001-660,000/yr	420,001-660,000/yr
6	55,001-80,000/month	55,001-80,000/month	35
	660,001-960,000/yr	660,001-960,000/yr
7	over 80,000/month	over 80,000/month	45

IIT payable by lower and middle-income earners will be significantly reduced under the reforms. So, for example, a resident national with a taxable income of RMB 40,000 per month currently paying RMB 8,195 in IIT will see her tax burden fall to RMB 6,090 or less depending on which specific deductions she and her family qualify for.

Augmented Statutory Deductions

The standard basic deduction (i.e. the first part of the salary that is not subject to IIT) is to be increased slightly from RMB 3,500/month for Chinese employees (and RMB 4,800/month for foreigners) to RMB 5,000/month for both.

Arguably the single most important amendment to the IIT Law is the long overdue augmentation of deductible expenses for Chinese taxpayers. Under pre-existing implementing rules, expatriates have long been allowed to deduct 5 categories of expenses from IIT but since the Draft is silent about several of those categories, it is uncertain whether or not all of those expenses can still be claimed after the Draft becomes law. If not, the new IIT rules will significantly increase the tax burden of expatriates working in China。

The new categories of expenses that the Draft does allow as deductions are as follows:

• Children’s education expenses
• Expenses for taxpayer’s own continuing education
• Health care expenses for serious/major illness
• Mortgage interest (on principal residence)
• Rental expense (for principal residence)

These new deductions are in addition to those that Chinese taxpayers can already claim for social insurance and housing fund contributions and commercially-sourced medical insurance.

Those familiar with HR practices in China will know how time-consuming it is to track, account and make filings for employee deductions, many of which vary from month to month. In the coming months, employees will need to work closely with their employer’s finance / HR departments to ensure that all claimable special deductions are taken into account.
 

New Anti-avoidance Rules for Individuals

Under the current IIT Law, the collection and administration of IIT is governed by the Administrative Law of the PRC on Tax Revenue Collection. These are being reinforced by provisions contained in the Draft which address, among other issues, tax evasion/avoidance. In particular, Article 8 of the Draft introduces General Anti-tax Avoidance Rules (“GAAR”) for individuals which gives tax authorities wide latitude for reviewing situations under which individuals are seeking to reduce their IIT burden. Unless a justified business-related purpose can be demonstrated for those arrangements, they may be disallowed.

Art. 8 also outlines specific scenarios which are liable to challenge by China’s tax authorities (e.g.: non-arm’s length transactions; business arrangements channeled through tax havens; arrangements deriving tax benefits but lacking reasonable commercial substance, etc.).

The new GAAR are only the most recent step that China is taking to step up tax enforcement efforts and tax authorities are, no doubt, hoping to rely on the tax agreements that China has put in place with 103 countries including the USA, the UK and Canada.

To avoid expensive tax audits and penalties, resident taxpayers should review their sources of income and obtain whatever professional advice they need to ensure their arrangements comply with the new rules.
 

New Administrative Arrangements 

The Draft outlines new administrative arrangements aimed at, among other things, modernizing the collection process and incentivizing/penalizing taxpayers.

Under the new system, all taxpayers will be allocated unique identification numbers to facilitate IIT collection and internal administration arrangements.

The Draft also includes measures aimed at streamlining the tax refund claim process. In situations where taxpayers have paid too much IIT (e.g.: due to under-reporting of deductions), they can file claims and (hopefully) be paid out after the annual tax reconciliation on March 31st.
 

Final Remarks

These reforms are some of the most important and comprehensive since the passing of the original IIT Law in 1980 and will impact nearly all working age individuals in China.

Expatriate residents should expect to be paying significantly more IIT and their overseas income will be subject to far greater scrutiny. At the same time, the tax burden of millions of local working class and middle-income taxpayers will experience a windfall as their IIT burdens are reduced.

Since employers remain statutory IIT withholding agents for their employees, the reforms will certainly impact the payroll/finance operations of every company in China. Given the scope of the reforms, adapting to them will require complex adjustments that will require months to implement properly.

The new tax rates and brackets will be effective from October 1, 2018. Foreign companies with operations in China will then have only a few months to review their payroll and IIT declaration processes and communicate whatever changes are needed with their expatriate and local employees to ensure a smooth transition. Tax equalisation arrangements with expatriate employees need to be reviewed and to the extent that any of these employees incur additional taxes due to loss of deductions, employers will need to formulate a policy and plans for addressing these.

In the meantime, all taxpayers with outside sources of income and/or expenses to claim should begin gathering together supporting documents and obtaining whatever professional advice they need to prepare for these reforms.

The State Administration of Taxation of China (“SAT”) recently released Public Notice [2018] 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 [2009] No. 601 (“Circular 601”) and Public Notice [2012] 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:-

However, the unfavourable factors now have more stringent requirementsin 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.