China’s New Thin Capitalization Rules

Excerpt from Practical China Tax and Finance Strategies by Peter Guang Chen (Deloitte Tax LLP, New York City). From http://www.wtexecutive.com/

Article 46 of China’s new Enterprise Income Tax Law (EITL) provides that a Chinese enterprise’s ability to deduct interest payments on borrowings from related parties is subject to a “prescribed standard.” However, the EITL, which became effective January 1, 2008, did not address what this “prescribed standard” would be. Without a clear answer on an acceptable debt-to-equity ratio in China, many financing and tax planning plans had to be put on hold, particularly for those multinational corporate groups doing cross-border intercompany financing of their subsidiary operations in China.
This important issue was addressed September 19, 2008 in a circular issued jointly by the Ministry of Finance (MOF) and the State Administration of Taxation (SAT) (Caishui [2008] 121). Entitled “Notice on the Tax Deductibility of Related Party Interest Payments,” the circular defines the “prescribed standard,” by setting out the debt-to-equity ratio for related party borrowings.
Circular 121 affects all companies in China that borrow from affiliated parties (such as a parent company or a brother-sister company).
Circular 121 provides two sets of debt-to-equity ratios for related party borrowings: one for financial institutions, another for all other
enterprises:
• For financial institutions, the debt-to-equity ratio cannot exceed 5:1; and
• For all other enterprises, the debt-to-equity ratio cannot exceed 2:1.
Any related party interest payment exceeding the specified ratios is not allowed as a deduction in the current or subsequent years on the borrower’s Enterprise Income Tax (EIT) return, unless an exception applies. Under the exception, interest expense may be deducted if the enterprise can produce supporting documentation demonstrating that the financing was at arm's length or that the effective tax rate of the borrowing entity is not higher than the tax rate of the domestic related party that receives the interest.

The Rise and Fall of Chinese Tax Incentives and Implications for International Tax Debates

Jinyan Li (York University) published in the Florida Tax Review, Forthcoming CLPE Research Paper No. 5/2008, the paper "The Rise and Fall of Chinese Tax Incentives and Implications for International Tax Debates".

Here is theAbstract:

China had no foreign direct investment (FDI) before 1979. Now, it is one of the world's largest recipients of FDI. China has been generous to a fault in granting tax incentives to foreign investors. As of January 1, 2008, however, these FDI-specific incentives are abolished or phased o ut. What explains the rise and fall? Were the tax incentives not effective in attracting FDI and promoting China's economic growth? What are the implications of the Chinese experience for international tax debates? This article examines these questions.

SSRN: http://ssrn.com/abstract=1087382

Uncertain Taxes in China

There is a very interesting article entitled "China's Uncertain Tax Positions" posted by chinalawblog.com:

"Donald Compton of Pricewaterhouse Coopers LLP just had published a nice introduction to some of the tax issues likely to confront multinational companies doing business in China. The article is entitled, "China: Determining Uncertain Tax Positions In China," [free subscription may be required] and its focus is on what such companies need to do to comply with Financial Accounting Standards Board Interpretation No. 48.

The introduction to the article nicely summarizes the article itself:
By now many multinational companies have begun the process of addressing how Financial Accounting Standards Board Interpretation No. 48 ("FIN 48") will apply to their global business. The challenge in understanding the FIN 48 implications for tax planning and local country compliance issues in foreign jurisdictions will be significant. FIN 48 requires companies to ascertain, evaluate, and conclude on discrete tax risks. Companies must not only account for the interest and penalties on these conclusions, but must also adhere to a new disclosure regime.

Companies may not have the wherewithal to fully appreciate the implications of their tax posture due to many factors, including lack of knowledge, time constraints, resource constraints, quality of the past compliance filings, and insufficient mechanisms to gather data. Many issues, including documentation, transfer pricing, arbitrary enforcement and inconsistent interpretation by regulators, are common in many jurisdictions, although each jurisdiction may have its own particular twist.
For companies operating in China, the tax planning environment creates another level of complex Uncertain Tax Positions ("UTPs") analysis. This complexity arises because many companies have negotiated at the provincial and local levels to reduce the national statutory rate, plus there are numerous local incentive regimes. This article provides the author's perspective on UTPs in China and suggests some areas that companies currently or potentially operating in China should consider."

Forex rules in China real estate ownership

I encourage readers to have a look a this article entitled "Foreign Ownership Of Real Estate In China/China's New Forex Rules" writed by Steve Dickinson, from chinalawblog.com:

"In July 2006, the Chinese government issued rules prohibiting foreign individuals and companies from directly owning commercial real estate in China. Just this month, China's State Administration of Foreign Exchange ("SAFE") issued new foreign exchange rules. In my experience dealing with real estate investors here in Shanghai and elsewhere in China, both of these rules are misunderstood.

The Opinion on Regularizing and Managing the Entry of Foreign Capital into the Real Estate Market ("Opinion") requires foreign participation in commercial real estate investment be through a Chinese commercial entity. This means foreign companies and individuals can own real estate in China only through a Foreign Invested Enterprise (FIE), such as a Wholly Foreign Owned Entity (WFOE) or through an Equity or Contractual Joint Venture (JV). Residential property not for personal use is considered commercial real estate and its ownership is similarly restricted. This is true even if the residential property is not rented to third parties.
This rule applies to all of China. The ramifications of this new rule are clear: foreign individuals and foreign companies can buy commercial real estate in China only if they do so in the name of a Chinese corporation (such as a WFOE or JV) established for this purpose. This is a clear and inflexible rule. It also is not actually a change in Chinese law, just a reaffirmation by opinion of what has always been the case.

The opinion has one limited exception to its no foreign ownership rule and that is for residential real estate as a personal residence. This exception is limited to Representative Offices or to foreign individuals who have been legally resident in China for at least one year while employed or as a student. These foreign individuals are limited to one residence. There are somewhat less restrictive rules for residents of Hong Kong and Taiwan.

Following on the Opinion, the relevant authorities issued detailed rules on foreign exchange issues related to the foreign individual purchase and sale of real estate. These rules were issued on September 1, 2006 as the Notice on Various Issues Relating to the Management of Foreign Exchange in Connections with the Regularization of the Real Estate Market ("Forex Notice"). The Forex Notice recognizes that most individual purchasers of real estate in China will be using foreign exchange form their home country for the purchase. These rules require proof of the real estate purchase in China, proof of identity, and proof of residence for at least one year. The exchange of funds must be made at the real estate buyer's bank, with the fund directly transferred to the seller's bank. No cash can be withdrawn.

The Forex Notice also provides rules for converting Renminbi (RMB) proceeds from a real estate sale by foreign individuals. The Forex Notice provides that RMB proceeds can be converted to foreign exchange if the foreign individual provides an application, a copy of the sales agreement, and proof of payment of all taxes related to the property and the sale.

The local tax offices with which I have discussed this tell me "all taxes" means any capital gains tax resulting from the sale and all taxes accrued during the foreign individual's ownership of the property, including the stamp taxes due on rental payments and individual income tax on any income earned from the property. Without proof of payment of taxes, conversion of foreign exchange will not be permitted. One of the tax officers with whom I discussed this told me that taxes are not a major issue in foreign exchange conversion since the sale itself would not be approved absent proof of payment of taxes.

I am aware of many foreign residents in China who are going to be facing a very unpleasant reality when they try to sell their China properties. Many foreign owners of real estate in China ignore the requirements of Chinese individuals income tax law and fail to file the appropriate tax return. Since taxes are owed on income earned from real property, the Chinese government will not approve the property's sale until the tax issue is resolved. This is another example of China starting to take a very serious approach to tax compliance.

I am also aware of a number of foreign residents who are violating Chinese law by buying more than one property. They tell me they feel safe in doing so because the Chinese government does not effectively track foreign real estate ownership. These people are taking large and unnecessary risks. The risk is unnecessary because all they need do to buy multiple properties legally is to form a WFOE and make the purchases through it. I view the risks as huge because I fully expect China to have effective tracking mechanisms in place before most of these people are able to sell.
This month, SAFE also issued new rules concerning the conversion of foreign exchange to RMB, called the Method for Management of Foreign Exchange by Individuals ("Forex Method") and the Detailed Rules on the Method for Management of Foreign Exchange by Individuals ("Detailed Rules"). The new system works as follows:
a. Individuals can freely convert foreign exchange to RMB up to an annual limit of $50,000 US.
b. When individuals exceed the $50,000 US annual limit, they must obtain permission for the exchange, which permission is automatic, provided the individual provides proof the exchange is for a specific and legitimate purpose.
c. The Forex Method provides that a foreign individual's sale and purchase of real estate is a legitimate purpose and should be processed according to existing rules. Section 21 of the Detailed Rules provides that such transactions should be processed according to the Forex Notice discussed above.

Accordingly, the new Forex system established this month has no impact on the purchase and sale of real estate in China by foreign individuals. Despite this, many people who contact me incorrectly believe the new rules imposed an absolute limit on foreign exchange conversion or prohibit foreign exchange conversions for buying real estate. The new rules are actually a liberalization of the old rules, not an attempt to impose new restrictions.

For those wishing to learn more on China real estate, mark May 3 and 4 on your calendar as both Steve and I will be speaking in San Francisco on those days at a seminar on China real estate investments. Steve will be speaking on China's new real estate regulations and I will be moderating a session on China's second tier cities. More information on this seminar will be forthcoming shortly."

Unified Corporate Income Tax in China

Forbes Magazine published an article entitled "China to Enact Unified Corporate Income Tax Law This Year." Once I read the entire article, I think the unification will take years to realize. For example, "Jiang Enzhu, spokesman for the National People's Congress, .... played down the impact of the planned new ruling."
"Jiang indicated that the new, standardized tax regime would not take effect immediately on enactment. We [China's Parliament] will also adopt some transitional steps and bear in mind the carrying capacity of the foreign-funded enterprises,' he said."

Furthermore, "within the government, opinion is divided on tax unification. While some government bodies call for a fair tax system, others fear this could deter future investment from overseas."

According to Chinalawblog.com, "Forbes' assumption that a "fair" tax system equates to one with equal tax rates between foreign and domestic companies completely ignores the wealth of subsidies given to Chinese domestic companies and not given to foreign companies in China. I, and many others, view the lower foreign tax rate as fair because it helps equalize competition between foreign and domestic companies in China by counteracting the subsidies given to domestic companies.
Interestingly enough, there are murmurs that if and when China's corporate tax rate becomes unified, it will be at a rate between the present rates for foreign and domestic companies. I am hearing it will be at around 20 percent."

'With the further implementation of the policy of reform and opening up, the investment environment in China will be further improved. Therefore to make unified arrangements for corporate income tax for both domestic and foreign funded enterprises will not have a big impact on China's efforts to attract foreign investment.'