TIHK-CTA

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2 CONTENTS President's Message 1 Tax Updates (A) Hong Kong Tax Updates 2 (B) International Tax Updates 5 (C) China Tax Updates 9 Institute News 10 March 2017 EDITORIAL TEAM EDITOR-IN-CHIEF Ho Chi Ming EDITORS Jeremy Choi Patrick Kwong Vincent Lo Webster Ng Percy Wong PUBLISHER The Taxation Institute of Hong Kong 21/F, Kam Sang Building, Des Voeux Road Central, Hong Kong Tel: (852) Fax: (852) tihkadm@tihk.org.hk Website: DISCLAIMER The information, reports and statements in this Newsletter is for general information and reference only and should not be regarded, used or adopted as professional advices. Whilst the Taxation Institute of Hong Kong (the Institute ) will keep the contents of this Newsletter accurate and up-to-date, no warranty or guarantee, expressed or implied, is given as to the accuracy and completeness of the information, reports and statements contained therein. The views expressed by contributors to this Newsletter are the personal views of the contributors and do not necessarily represent the views of the Institute. Neither the Taxation Institute of Hong Kong, any contributor or the editors of this Newsletter shall assume liability, whether in contract, tort or otherwise, for any statement, opinion or information contained in this Newsletter. In no event shall the Institute, its members and Council Members, the contributors to and the editors of this Newsletter, be liable for any loss and damages arising from or related to the use of the contents of this newsletter.

3 PRESIDENT S MESSAGE Dear members The Institute is committed to apply our professional knowledge to contribute to our society. Our tax policy committee has put in a lot of effort to prepare our proposal to the Financial Secretary for the 2017/18 Budget. We conducted press conference and attended a series of media interviews in February to share our proposals. We are glad to see that many of our suggestions have been considered by the Financial Secretary in the budget this year. In particular, the Financial Secretary has mentioned that he will plan to set up a tax policy unit and one of the jobs is to actively study ways to foster development of our industries over which we have advantages through tax measures. Leading a group of tax professionals rooted in Hong Kong, we will continue to show our care to the community and use our expertise to provide continuous suggestions to the government. After the Chinese New Year, we led a delegate of over 20 members to visit various tax authorities in Guangdong Province. We were so glad to have received warm hospitality from various senior officials in Guangdong Province, Guangzhou, Shenzhen and Dongguan. We shared the latest development of both sides and exchanged knowledge on some hot topics on China Tax. We had also arranged the Chinese New Year members cocktail on 7 February. There were over 80 members joining us and we had good food and fun together. We discovered many talented members who did exceptionally well on our specially arranged Lantern Riddles Competition. In the same event, we presented certificate to our CTAs who have successfully completed the exam and obtained the CTA qualification in We also presented the highest score awards to our students. Please join me in congratulating the following students on their great achievement: CTA Graduates Shi Xiao Lei Wong Pui Lai Phyllis Kwong Fat Yuen 2016 Highest Score Award Shi Xiao Lei (Hong Kong Tax) Kwong Fat Yuen (International Tax) Fan Ho Kan (PRC Tax) Kwong Fat Yuen (Advanced Taxation Practice) 2016 TENCENT Award Kwong Fat Yuen (First Prize) Shi Xiao Lei (Second Prize) Wong Pui Lai Phyllis (Third Prize) Last but not least, I would like to thank our speakers on the various seminars and networking dinner who spent their invaluable time to share their knowledge with our members. Your supports are very important to help our members advance and maintain the reputation and standards of professional service of Hong Kong. I mentioned in the last edition of our newsletter that we will launch special promotion to celebrate the 45th anniversary of TIHK. As a heads up, we will start a membership referral program immediately. Please don t miss out the upcoming promotion and we call for your support to bring more new friends to our Institute! Best regards Karmen Yeung January

4 TAX UPDATES (A) Hong Kong Tax Updates Reported by Mr Ho Chi Ming, FTIHK, CTA, Council Member 2016/17 Tax Concession to Aircraft Leasing The Inland Revenue (Amendment) (No. 2) Bill 2017 was gazetted in Feb The object is to grant profits tax concessions to corporations carrying on aircraft leasing businesses. New ss 14G to 14N, s.15(1)(n) and Schedule 17F are to be added to the Inland Revenue Ordinance ( IRO ). A corporation that is a qualifying aircraft lessor or a qualifying aircraft leasing manager is entitled to have its profits derived from its qualifying aircraft leasing activity or its qualifying aircraft leasing management activity charged at one-half the profits tax rate. Departmental Interpretation and Practice Notes No.53 Tax Treatment of Regulatory Capital Securities ( RCS ) This practice notes is issued following the relevant enactment ss 17A to 17G of the IRO. The Basel III capital adequacy requirements prescribes that financial institutions ( FIs ) must hold certain amount of regulatory capital expressed as a % of their total risk-wighted assets. FIs may seek to comply with the Basel III requirements by issuing Additional Tier 1 or Tier 2 capital instruments. Before the aforesaid amendments to the IRO, such capital instruments were not regarded as debts and distributions therefrom are not deductible for tax purposes. (see Jan 2017 newsletter of TIHK). Flat Stamp Duty Rate of 15% The Stamp Duty (Amendment) Bill 2017 was 2

5 TIHK - TAX UPDATES gazetted on 27 Jan The bill aims to implement the new flat rate of 15% chargeable on residential property transactions. The new rate took effect from 5 Nov The existing concession of applying Scale 2 rates to a Hong Kong Permanent Resident who does not own any other residential property in Hong Kong at the time of acquiring residential property will continue to apply. Court Cases Commissioner of Inland Revenue v Pang Fai HCIA2/2016 This is the first case after the change in law in the procedure for appeal to the Court after the Board of Review stage. Before 1 April 2016, an appeal from the decision of the Board of Review is by way of a case stated by the Board for the opinion of the High Court on a question of law (s.69). Under the new regime, the Board is no longer responsible to state a case. Instead the appellant (whether the taxpayer or the Commissioner) must apply to the Court of First Instance (CFI) for leave to appeal on a question of law (see January 2017 newsletter of TIHK). The issue of this case is whether certain honorarium received from the Hong Kong Institute of Certified Public Accountants by serving as a Workshop Facilitator and Examination Marker for its qualifying program should be chargeable to profits tax or salaries tax. The Taxpayer s main occupation was teaching as a lecturer in HKU SPACE. The Board of Review allowed the Taxpayer s appeal. The Commissioner applied for leave to appeal. The CFI judge ruled that there was a question of law, namely whether it is any longer necessary to apply, or have regard to, the economic reality test and/or the control test in determining whether an employment relationship exists. Leave to appeal may be granted if the Court is satisfied that a question of law is involved in the proposed appeal; and the proposed appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the proposed appeal should be heard (the new section 69(3)(e)). The judge expressed that a proposed appeal has a reasonable prospect of success within section 69(3)(e) of the IRO if it is reasonably arguable ; it is not necessary to show that the proposed appeal will probably succeed. The other grounds of the Commissioner s proposed appeal related to the Board s treatment of the evidence. On their own, the judge would not be minded to grant leave to appeal. However the matters raised in those grounds could, arguably, be relevant to a holistic evaluation of the facts and circumstances in this case and therefore relevant to the catch-all ground to the effect that the Board came to a decision which no tribunal, properly directed, could reasonably have reached. The judge therefore did not propose to limit the sounds on which leave to appeal was granted. King Global Investments Ltd v Commissioner of Inland Revenue HCIA5/2016 This is the second case whereby an application was made to the CFI for leave to appeal against the decision of the Board of Review on a question of law. But this time the judge refused to grant leave. This issue was whether the gain on the disposal of a property was capital in nature. The Taxpayer sold the property within 13 days of completion of purchase. Its case was that an unsolicited, successive and surprisingly attractive offer was received and it decided to sell the property to swap for other properties. The judge explained the legal principles: Reasonable prospect of success means that the appeal has merits and ought to be heard and the prospect of success is more than fanciful but without having to be probable. An error of law is not confined to an error in understanding or applying the substantive law. It may be committed if: 3

6 (1) The decision was based on a finding of fact or inference from the facts which was perverse or irrational; (2) there was no evidence to support the decision; (3) the decision was made by reference to irrelevant factors; or (4) the decision was made without regard to relevant factors. Failure on the part of a judge or tribunal to give adequate reasons for its findings is an error of law. Three questions were posted by the Taxpayer before the CFI the gist of which is that the Board erred in law in (1) disregarding the subsequent purchase of the swap properties, (2) disregarding the evidence that the director had rejected the estate agent s approaches on various occasions telling her that the property was a long term investment, (3) wrongly relying on the reply by the purchaser of the property that the property was available in the market thus inferring that the offer had to be from the Taxpayer. to resolve the conflicting evidence of the Taxpayer and the purchaser, it cannot be said that the true and only reasonable conclusion must be contrary to that of the Board. In such circumstances, the Taxpayer has no reasonable prospect of success under Question 3. Regarding (1), the judge considered that the Board has taken a holistic approach so this question has no reasonable prospect of success. Regarding (2) the judge found that the Board has considered the evidence of the estate agent. Written reasons of a judgment could not have fully ventilated each and every relevant argument advanced at the hearing and the full reasoning process could not be adequately captured by written text. The important thing is for the judicial authority to state the reasons critical to its decision. Regarding (3) even if the Board failed 4

7 TIHK - TAX UPDATES TAX UPDATES (B) International Tax Updates Reported by International Tax Committee Mr Jeremy Choi, FTIHK, CTA, Chairman of International Tax Committee Ms Anita Tsang, ATIHK, CTA, Member of the International Tax Committee 1. OECD discussion draft on the interaction between BEPS Action 6 report and treaty entitlement of non-civ funds On 6 January 2017, the OECD released a discussion draft on the interaction between the treaty provisions in the final report on BEPS Action 6 (Preventing treaty abuse) and the treaty entitlement of non-collective investment vehicle ( CIV ) funds. The final report on BEPS Action 6 issued in October 2015 indicated that the OECD would continue to examine issues related to the treaty entitlement of non-civ funds to ensure that the new treaty provisions included in the BEPS Action 6 report address adequately the treaty entitlement of these funds. The discussion draft provided stakeholders with information on the follow-up work in this area, including consideration of the comments received on the consultation document on treaty entitlement of non-civ funds published by the OECD in March 2016 and the development of examples related to the application of the principal purposes test ( PPT ) rule with respect to some common transactions involving non-civ funds. The discussion draft invited comments, by 3 February 2017, on three draft examples under consideration by the OECD for inclusion in the Commentary on the PPT rule. Please refer to this <link> to the OECD s website for more details and a copy of the discussion draft. 5

8 2. The OECD released peer review documents for assessment of the minimum standards under BEPS Actions 5 and 13 On 1 February 2017, the OECD released key documents that will form the basis of the peer reviews of the minimum standards under BEPS Action 5 (Spontaneous exchange of information on tax rulings) and Action 13 (Country-by-country reporting). The documents set out: the terms of reference which specifies the criteria for assessing the implementation of the above minimum standards; and the methodology which specifies the procedural mechanism by which jurisdictions will complete the peer review, including the process for collecting the relevant data, the preparation and approval of reports, the outputs of the review and the follow-up process. All members of the Inclusive Framework on BEPS, including Hong Kong, have committed to implementing the minimum standards and are subject to the peer reviews. For more details, please refer to this <link> to the OECD s website. 3. Hong Kong to expand the list of reportable jurisdictions for implementing the CRS Based on the current provisions of the Inland Revenue Ordinance ( IRO ) for implementing the Common Reporting Standard ( CRS ) or automatic exchange of financial account information ( AEOI ) in Hong Kong, only jurisdictions that have signed (i) a tax treaty or tax information exchange agreement ( TIEA ) and (ii) a competent authority agreement ( CAA ) on AEOI with Hong Kong will be regarded as a reportable jurisdiction. Financial institutions in Hong Kong are then required to collect and furnish information of the financial accounts in Hong Kong that are held by the tax residents of the reportable jurisdictions. As of the end of, Hong Kong has signed a CAA on AEOI with nine jurisdictions only. In view of the mounting international pressure on having in place a sufficiently broad network for exchanging financial account information for year 2017, the HKSAR Government recently announced that the definition of reportable jurisdiction in the IRO will be amended so that the current list of reportable jurisdictions can be expanded to include a total of 74 jurisdictions, including China. The additional jurisdictions to be included in the expanded list are identified as prospective AEOI partners of Hong Kong, although Hong Kong has not yet signed a tax treaty or TIEA or a CAA on AEOI with these jurisdictions. Under the HKSAR Government s proposal, financial institutions will be required to collect and furnish financial account information (i) for the period from 1 January to 31 December 2017 for Japan and the UK and (ii) for the period from 1 July to 31 December 2017 for the remaining 72 reportable jurisdictions for the first reporting in In subsequent years, financial institutions are expected to collect and furnish full year data for all reportable jurisdictions. However, automatic exchange of the information collected will take place only after the necessary AEOI agreements with the reportable jurisdictions have been put in place. The amendment bill that seeks to implement the above proposal, namely Inland Revenue (Amendment) (No.3) Bill 2017, was gazetted 6

9 TIHK - TAX UPDATES on 24 and introduced into the Legislative Council on 29. Once enacted into law, the amendments to the IRO will take effect from 1 July India issued a tax circular on implementation of the general anti-avoidance provisions Chapter X-A of the Income-tax Act, 1961 of India contains the general anti-avoidance rules ( GAAR ). The GAAR, which was incorporated into the tax law in 2013, will come into force from 1 April 2017 as its effective date has been deferred for several times. On 27 January 2017, the Central Board of Direct Taxes of India issued Circular No. 7/2017 entitled Clarification on implementation of GAAR provisions under the Income-tax Act, 1961 to provide further guidance on the interpretation and application of the provisions on GAAR. The guidance is set out in a question-and-answer format and covers issues such as: the interaction between GAAR and specific anti-avoidance rules; the interaction between GAAR and the limitation-on-benefits test in a tax treaty; the application of the grandfathering provision that is available to investments made before 1 April 2017; the computation of the tax benefit threshold of INR 30 million for invoking GAAR; whether GAAR will apply to arrangements that have been held as permissible by the Authority for Advance Ruling; and when a particular consequence is applied to a participant of an arrangement as a result of GAAR, whether a corresponding adjustment is available to the other participant of the arrangement. For more details, please refer to this <link> to the Indian Income Tax Department s website for a copy of the Circular. 5. Singapore released the fourth edition of transfer pricing guidelines On 12 January 2017, the Inland Revenue Authority of Singapore ( IRAS ) released the fourth edition of its transfer pricing guidelines. The IRAS has been updating its transfer pricing guidelines regularly to ensure they align with the latest international tax developments and accepted practices. In this new edition, the IRAS has further clarified certain aspects of the guidance given in the previous edition and set forth / reinforced Singapore s position on transfer pricing that is in line with the OECD s recommendations in respect of the following actions in the BEPS Action Plan: Actions 8 to 10 - the IRAS explicitly states in the latest guidance that it will subscribe to the principle that profits should be taxed where the real economic activities generating the profits are performed and where value is created. Action 13 - the IRAS has aligned its transfer pricing guidelines with its e-tax Guide on Country-by-Country (CbC) Reporting issued in October 2016 by incorporating the obligation of the ultimate parent entity of a Singapore multinational group to 7

10 file a CbC report if the reporting threshold is met. Action 5 the IRAS now requires that the contemporaneous transfer pricing documentation includes a copy of the existing unilateral and bilateral / multilateral advance ruling agreements ( APAs ) and other tax rulings to which IRAS is not a party and which pertain to related-party transactions subject to transfer pricing documentation requirement in Singapore. The IRAS has also spelt out, for the first time, the framework and timeline for the spontaneous exchange of information on tax rulings under BEPS Action 5. According to the schedule for exchange of cross-border unilateral APAs set out in the latest transfer pricing guidelines, the first exchange will take place by December 2017, covering cross-border unilateral APAs issued as early as in January For more details, please refer to this <link> to the IRAS s website for a copy of the latest transfer pricing guidelines. 8

11 TIHK - TAX UPDATES TAX UPDATES (C) China Tax Updates Reported by China Tax Committee 1. 全國人民代表大會常務委員會關於修改 中華人民共和國企業所得稅法 的決定 2017 年 2 月 24 日第十二屆全國人民代表大會常務委員會第二十六次會議決定對 中華人民共和國企業所得稅法 作如下修改 : 將第九條修改為 : 企業發生的公益性捐贈支出, 在年度利潤總額 12% 以內的部分, 准予在計算應納稅所得額時扣除 ; 超過年度利潤總額 12% 的部分, 准予結轉以後三年內在計算應納稅所得額時扣除 與修改之前比較, 新的修改增加了超過年度利潤總額 12% 的部分, 准予結轉以後三年內在計算應納稅所得額時扣除的安排 9

12 INSTITUTE NEWS Press Conference on Hong Kong Budget Proposals for 2017/18 A press conference was held on 6 February 2017 at United Centre in Admiralty to announce our Hong Kong Budget Proposals for 2017/18. At the press conference, we highlighted the key suggestions to the Government. The press conference was well covered by the media, including TV news in the same evening and next day's newspaper reports. The Budget Proposals were published in our website ( hk/v2/about/budget). Budget Proposal and Commentaries Media interviews on 2017/18 Budget Proposals Institute President, Ms Karmen Yeung and Past President, Mr Marcellus Wong were invited to attend the interviews on 18 and 19 February 2017 by Hong Kong Commercial Radio and News Channel, Television Broadcasts Limited ( HKTVB ). Institute President, Ms Karmen Yeung, was the guest in Commercial Radio Hong Kong Saturday Forum on Economic and Current Affair ( 政經星期六 ). Past President, Mr Marcellus Wong, was invited to share his views in the TVB program On the Record ( 講清講楚 ). If you would like to learn more about TIHK s budget submission and the commentaries, please visit our website at

13 TIHK - TAX UPDATES INSTITUTE NEWS Promotion of Tax Study The Annual Chinese New Year Guangdong Visit A delegation headed by our President, Ms Karmen Yeung together with Council Members and committee members attended the Annual Chinese New Year Guangdong Visit during 9-10 February Our delegations met officials of various tax authorities and associations in Shenzhen, Dongguan, Guangzhou and the Guangdong Province for Chinese New Year greeting as well as taxation knowledge exchange. Group photos with officials of Shenzhen Municipal Office SAT. Group photos with Shenzhen Local Taxation Bureau Officials Meeting with Shenzhen Local Taxation Bureau Officials Group photos with Dongguan Municipal Local Taxation Bureau Officials 11

14 Group photos with Dongguan Municipal Office, SAT Meeting with Dongguan Municipal Office, SAT Group photos with Guangdong Provincial Office, SAT Meeting with Guangdong Provincial Office, SAT Group photos with Guangdong Local Taxation Bureau Officials Meeting with Guangdong Local Taxation Bureau Officials Meeting with Guangzhou Local Taxation Bureau Officials Meeting with Guangzhou Provincial Office, SAT 12

15 TIHK - INSTITUTE NEWS INSTITUTE NEWS Members' Activities and Corporate Social Responsibility Spring Cocktail 2017 The Spring Cocktail for the Year of the Rooster was sucessfully held on 7 February 2017 at The Chinese Club. Institute President, Ms Karmen Yeung shared the latest development of the Institute. This year, the Institute has organised the Lantern Riddles Competition. At the same time, the Institute was pleased to present the highest score awards of CTA Exam 2017 and Tencent Sponsorship to the CTA graduates.. 13

16 Members' Activities and Corporate Social Responsibility (continued) Group photo with the CTA Graduate Awardees Vice President, Mr Vincent Lo (Left) and Ms Tso Lam Kwan (Right), the Champion of the Lantern Riddles Competitiors Ms He Yuan (Left), 1st Runner-up of the Lantern Riddles Competitiors, and Mr Alan Lau (Right), Vice President. Vice President, Mr Webster Ng (Left) and Mr Fan Ho Kan(Right), 2nd Runner-up of the Lantern Riddles Competitiors. 14

17 TIHK - INSTITUTE NEWS Members' Activities and Corporate Social Responsibility (continued) 3rd Members Networking Dinner The Institute held the Members' Networking Dinner on 20 February 2017 at the Chinese Club. We had invited Mr Edmond Chan, Co-head of Capital Market Services, to share updates on the Hong Kong IPO Market. Barbecue at Lung Kwu Tan The BBQ gathering at Lung Kwu Tan was successfully held on 26. Members and their families enjoyed the holiday as well as the tasty BBQ food. Forthcoming Members' Activities Date Time Event 11 April :30pm - 8:00pm Accredited Employer Program (AEP) Tax Sharing Session 28 April :00pm - 5:00pm Lunch Tour Hong Kong Airport For details of forthcoming members' activities, please visit the Institute's website: 15

18 Professional Development 16 Jan The Corporate Treasury Centre Incentive in Hong Kong and Common Reporting Standards Speaker Ms Candy Chan, International Tax Partner, Tax & Business Advisory, Deloitte China Ms Samantha Tan, Tax Senior Manager, International and M&A Tax Services, Deloitte China Chair Ms Agnes Cheung, CPD Committee Member 4,11,18 25 Feb Workshop - A Step By Step Approach To Tax Audit Handling Speaker Mr Philip Hung, Director, Tax Controversy Services, PricewaterhouseCooper 16

19 TIHK - INSTITUTE NEWS Professional Development (continued) 20 Feb The Carry Forward of Losses Following a Court-Free Amalgamation a New and Critical Assessment of Departmental Guidance Speaker Chair Mr Stefano Mariani, MA (Oxon.), MSc (LSE), of Lincoln s Inn, Barrister. Mr Victor Lee, CPD Committee Member 22 Feb How Exchange of Information Impacts Hong Kong Companies Be Proactive & Reactive Speaker Ms Emily Chak, Tax Director, PricewaterhouseCoopers Ms Deborah Li, Senior Tax Manager, PricewaterhouseCoopers Chair Mr Philip Hung, CPD Committee Member 17

20 Professional Development (continued) 16 Mar Individual Income Tax Speaker Chair Ms Angie Ho, Global Mobility Services Partner in Charge, South China region, KPMG Shenzhen Mr Alan Cheung, CPD Committee Member 20 Mar China New Contemporaneous Transfer Pricing Documentation Requirements and Hong Kong Consultation Paper to Counter BEPS Speaker Mr Martin Richter, Transfer Pricing Partner, Ernst & Young Greater China Ms Monica Leung, Transfer Pricing Manager, Ernst & Young Greater China Chair Mr Simon Wang, CPD Committee Member 18

21 TIHK - INSTITUTE NEWS Forthcoming Seminars Date Time Topic Speakers 8 April :30am- 12:30pm 深圳市地稅局對中國轉讓定價最新發展及案例分享研討會 陳友倫先生, 深圳市地方稅務局涉外稅務處副處長 鄧昌平先生, 深圳市保稅區地方稅務局副科長 CPD point 3 12 April :45pm- 8:45pm Implications of CRS on Offshore Claims Ms Polly Wan, Director, DTT 2 26 April :45pm- 8:45pm UK Tax Update Mr Graham Moore, Director and Founder, Lusk Moore Group Limited 2 For details of forthcoming seminars, please visit the seminar section of the Institute s website at: calendar. CPD Requirements A CTA holder is reminded to observe the CPD deadlines set out below. The Council accepts, as a recognised seminar, an accredited or recognised seminar organised by accredited bodies. The accredited bodies are TIHK, Hong Kong Institute of Certified Public Accountants ( HKICPA ), Hong Kong Institute of Chartered Secretaries ( HKICS ), the Hong Kong Branch of the Association of Chartered Certified Accountants ( ACCA ), Hong Kong Bar Association, Law Society of Hong Kong, the Hong Kong Branch of CPA (Australia), The Society of Chinese Accountants and Auditors ( SCAA ), the Hong Kong Branch of Association of International Accountants ( AIA ) and such other professional bodies accredited by TIHK from time to time. CPD year CPD points required Declaration deadline 2014/ (at least 8 CPD points should be on tax related topics) 31 January / (at least 8 CPD points should be on tax related topics) 31 January

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23 21/F, Kam Sang Bldg, Des Voeux Road, Central, HK (Sheung Wan MTR Exit B) Tel: Fax: TIHK-CTA The Taxation Institute of Hong Kong