China Tax Center. China Tax & Investment Express. Tax circulars

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1 Issue No April 2015 China Tax Center China Tax & Investment Express (CTIE) * brings you the latest tax and business announcements on a weekly basis. CTIE provides a synopsis of each announcement including a weblink that leads you to the full content of the announcement (in Chinese). Please feel free to contact your Ernst & Young client service professionals for further assistance if you find the announcements have an impact on your business operations. This CTIE does not replace our China Tax & Investment News* which will continue to be prepared and distributed to provide more in-depth analyses of tax and business developments in China. * If you wish to access these previous issues of CTIE and China Tax & Investment News, please contact us. Tax circulars Notice regarding Individual Income Tax (IIT) collection and administration issues related to non-monetary assets investments by individuals (SAT Announcement [2015] No. 20) Synopsis Further to the recent Caishui [2015] No. 41 ( Circular 41, Notice regarding IIT policies related to non-monetary asset investments by individuals), the State Administration of Taxation (SAT) released SAT Announcement [2015] No. 20 ( Announcement 20 ) to specify the below issues related to the implementation of Circular 41 on 8 April 2015 (please refer to CTIE for details of Circular 41): Determination of in-charge tax bureaus and self-filing obligation of IIT taxpayers Individuals who contribute non-monetary assets for equities are subject to IIT and required to file IIT returns to the in-charge tax bureaus by themselves instead of through withholding agents. The individual should select the in-charge tax bureaus based on the below: Where an individual taxpayer contributes immovable assets for investment, the in-charge tax bureau should be where the immovable assets are located. Where an individual taxpayer contributes equities of invested companies for investments, the in-charge tax bureau shall be where the invested company is located. Where an individual taxpayer contributes other non-monetary assets for investments, the in-charge tax bureau shall be where the investee company is located.

2 Calculation of taxable income IIT Taxable income for non-monetary asset investments should be calculated as follows: Taxable income = Income derived from the transfer of non-monetary assets original costs of such assets 1 - reasonable taxes and expenses 2 IIT = Taxable income x 20% (i.e., taxed under the category of assets transfer) Where individual taxpayers contribute equities for investments, the original costs of such equities should be referenced to SAT Announcement [2014] No. 67 ( Announcement 67, i.e., the Administrative Measures of Matters Related to IIT on Income Derived from the Alienation of Shares (Trial) ). (Please refer to CTIE for details of Announcement 67.) However, where individual taxpayers fail to provide complete and accurate documents to prove the original costs of such assets, the in-charge tax bureaus are empowered to deem the deductible costs. Apply for payment by installments Where individual taxpayers intend to apply for tax payment by installments as prescribed in Circular 41, they should provide the following documents to in-charge tax bureaus within 15 days after the end of the month in which the investments were made: Installment plans formulated by the taxpayers Completed record filing form for installment tax payment (hereinafter referred to as the form, i.e., attachment of Announcement 20) Identity of taxpayers Investment agreements Valuation documents for non-monetary assets Documents to support original value of non-monetary assets and reasonable taxes and expenses. During the installment payment period, the individual taxpayers may revise their installment plans by resubmitting the revised plans and forms to the in-charge tax bureaus. For each installment IIT filing, the individual taxpayers should provide the filed forms as well as IIT payment receipts obtained for previous installments to in-charge tax bureaus. Other miscellaneous provisions Where the individual taxpayers transfer the equities during the installment period, tax filings with incharge tax bureaus should be completed within 15 days after the end of the month in which the transfer occurred. When non-momentary investments are made, the investee companies should report any changes made to the shareholding of such individual investors to the in-charge tax bureaus within 15 days. Individual taxpayers and investee companies shall be liable to sanctions and fines according to the Law of the People s Republic of China on Tax Collection and Administration if they fail to comply with the record filing, IIT filing or reporting requirements as prescribed in Announcement 20. For unsettled non-monetary asset investments incurred in less than five years until the effectiveness of Circular 41, i.e., 1 April 2015, individual taxpayers may apply for installment tax payment with in-charge tax bureaus within 30 days upon the issuance of Announcement 20, i.e., the deadline would be 7 May 2015 if no extension would be granted for the public holiday in May. Same as Circular 41, Announcement 20 became effective on 1 April

3 1 Original cost of such assets refers to the actual costs incurred for the acquisition of such assets. 2 Reasonable taxes and expenses refer to reasonable taxes and expenses incurred for transfer of non-monetary assets during the course of such asset s investments. According to examples shown in the Q&As regarding Announcement 20 and Circular 41, reasonable expenses may include reasonable valuation expenses, agency fees, etc. incurred by the individual taxpayers related to the non-monetary asset investments. You can click this link to access the full content of Announcement 20: You can click this link to access the full content of the Interpretation of Announcement 20 from the SAT: You can click this link to access the full content of the Q&As regarding Announcement 20 and Circular 41 by the SAT: You can click this link to access the full content of Circular 41: You may click this link to access full content of the Announcement 67: Notice regarding the implementation of the cancellation of administrative approval and adjustment of approval authority for certain administrative approval items (Shuizongfa [2015] No. 45) Synopsis In response to Guofa [2015] No. 11 ( Circular 11, i.e., Notice regarding the cancellation of administrative approval and adjustment of approval authority for certain administrative approval items), the SAT released Shuizongfa [2015] No. 45 ( Circular 45 ) on 2 April 2015 highlighting the removal of 13 tax administrative items that were previously required to be approved by the SAT. (Please refer to CTIE for details of Circular 11.) In addition, Circular 45 reiterates, according to article 15 of SAT Order [2014] No. 33 ( Order 33, i.e., the Measures of the Collection and Administration of Vehicle Purchase Tax (VPT)), tax refund verification and approval for vehicles rejected by the relevant authorities for vehicle registration as prescribed under the abolished SAT Order [2011] No. 27 ( Order 27, i.e., Decision for revisions made in Measures of the Collection and Administration of VPT) has been cancelled. (Please refer to CTIE for details of Order 33.) Since the abovementioned approval is cancelled, taxpayers are encouraged to consult with in-charge tax authorities for other necessary procedures which shall be followed such as record filing. You can click this link to access the full content of Circular 45: You can click this link to access the full content of Circular 11: You can click this link to access full content of Order 33: You can click this link to access full content of Order 27: 3

4 Business circular Notice regarding the reform of administrative measures on the settlement of foreign exchange in the capital accounts of foreign investment enterprises (Huifa [2015] No. 19) Synopsis To strengthen the reform of foreign exchange system, facilitate business operations of foreign investment enterprises (FIEs), and cater to their needs of capital operations, on 30 March 2015, the State Administration of Foreign Exchange (SAFE) released Huifa [2015] No. 19 ( Circular 19 ). Circular 19 is aimed to expand the pilot reform of administrative approach for the settlement of foreign exchange in the capital accounts of FIEs, previously applied in certain pilot locations, on a nationwide basis. Key points of Circular 19 include: Settlement of foreign exchange capital funds of FIEs according to the will of exchange settlement ( 意愿结汇, hereinafter referred to as wilful settlement ) Pursuant to Circular 19, foreign exchange capital funds of FIEs are allowed to be settled according to the wilful settlement principle. It means that foreign exchange capital funds in FIEs capital accounts can be settled with banks at the discretion of the FIEs according to their actual needs of business operations provided that the FIEs have obtained equity confirmation of monetary capital contributions ( 货币出资权益确认 ) from foreign exchange bureaus or performed the registration of monetary capital contributions ( 货币出资入账登记 ) with the banks. The percentage of a FIE s foreign exchange capital funds that are subject to the wilful settlement policies is provisionally set at 100%, subject to adjustments of the SAFE in due course according to the situation of international foreign exchange collection and payment. While the wilful settlement is adopted, FIEs can still choose the payment settlement 3 principle ( 支付结汇, i.e., a foreign exchange settlement system which is based on demands for payment) to use their foreign exchange capital funds. When each foreign exchange settlement of FIEs is being processed by the banks according to the principle of payment settlement, the use of funds previously settled (including wilful settlement and payment settlement) will also be subject to authenticity and compliance review. Domestic transfer in original currency ( 原币划转 ) and cross-border outbound remittance of foreign exchange capital funds of FIEs shall be processed according to prevailing foreign exchange rules. Management of exchange settlement accounts for subsequent payment purposes ( 结汇待支付账户, hereinafter referred to as settlement accounts ) In principle, FIEs shall open separate settlement accounts corresponding to respective capital items (e.g., capital funds, domestic assets realization and domestic reinvestments) with the banks. Settlement accounts shall be used for deposits of RMB funds derived from the wilful settlement; various payments shall be processed through these settlement accounts. RMB funds derived from the payment settlement are not allowed to be paid out through settlement accounts. RMB funds in settlement accounts are not allowed to be used for purchase of foreign exchange and further transferred back to capital funds accounts. Restrictions on the use of capital funds of FIEs Capital funds of FIEs shall be used within their business scope in accordance with the authenticity and self-use principles. Capital funds of FIEs and RMB funds derived from exchange settlement of the former are not allowed to be used for the following purposes: Directly or indirectly used for payments outside of FIEs business scope or payments as prohibited by state laws and regulations Directly or indirectly used for securities investments, unless otherwise prescribed Directly or indirectly used to grant RMB entrustment loans (unless otherwise permitted according to FIEs business scope), repay inter-company loans (including third-party advances) and repay RMB bank loans that were on-lent to third parties Used for payments of expenses related to the purchase of non-self-use real properties, except for foreign invested real estate companies 4

5 Facilitating FIEs domestic equity investments using RMB funds derived from foreign exchange settlement In addition to equity investments through the transfer in original currency, FIEs mainly engaging in investments (including foreign invested Chinese holding companies, foreign invested venture capital enterprises and foreign invested equity investment enterprises) are allowed to directly settle foreign exchange capital funds or transfer the RMB funds in settlement accounts to the accounts of the investee companies according to actual investment scale, on the foundation of authenticity and compliance of domestic investment projects. For general FIEs (excluding the abovementioned FIEs mainly engaging in investments), domestic equity investments through the transfer of capital funds in original currency shall be conducted according to domestic reinvestment rules. Where RMB funds derived from foreign exchange settlement are used for domestic equity investments, the investee companies shall perform domestic reinvestment registration with local foreign exchange bureaus and open corresponding settlement accounts. The investor companies then transfer the RMB funds according to approved investment scale to settlement accounts of the investee companies. Standardizing the administration of capital funds payments Foreign investors, FIEs and other relevant applicants are required to submit documents substantiating the authenticity of relevant transactions and complete a payment order form as attached in Circular 19 when applying with banks for the payment and use of RMB funds derived from foreign exchange settlement of capital funds. Banks shall assume the responsibility of authenticity review according to the principle of understand the clients, understand their businesses and due diligence review when processing the above payment requests for FIEs. When processing each payment of capital funds, banks shall also review the authenticity and compliance status of supporting documents for the previous payment. Documents related to the exchange settlement and use of FIEs capital funds should be retained for five years by banks. Effective date Circular 19 will become effective on 1 June 2015, and in case of any conflicts between Circular 19 and any other previously issued circulars, Circular 19 shall prevail. In addition, the following circulars shall be abolished at the same time: Huizongfa [2008] No. 142 ( Circular 142 ), i.e., notice regarding several operational issues related to the improvement of administration of the payment settlement of foreign exchange in FIEs capital accounts Huizongfa [2011] No. 88 ( Circular 88 ), i.e., supplementary notice regarding several operational issues related to the improvement of administration of the payment settlement of foreign exchange in FIEs capital accounts (please refer to CTIE for details of Circular 88) Huifa [2014] No. 36 ( Circular 36 ), i.e., notice regarding several issues related to the pilot reform of administrative approach for the settlement of foreign exchange in the capital accounts of foreign investment enterprises in certain locations (please refer to CTIE for details of Circular 36) Our observations The reform of administrative approach for the settlement of foreign exchange in the capital accounts of FIEs (including the wilful settlement policies) was first launched in the China (Shanghai) Pilot Free Trade Zone in 2013 and extended to 16 other pilot areas in Based on the experience from the pilot run, the SAFE further expand the pilot reform to the entire nation through Circular 19. The following areas in Circular 19 are worth noting: Circular 19 allows foreign exchange capital funds of FIEs to be settled according to the wilful settlement principle, which makes a major breakthrough in foreign exchange administration by giving the relevant autonomy and discretion to FIEs, and simplifies the convertibility of capital items. FIEs can choose to settle or retain foreign exchange capital funds at their sole discretion and according to their business needs. This would help FIEs to use their capital in a more effective and efficient way and manage their exchange risks with lesser restrictions. 5

6 Previously, RMB funds derived from foreign exchange capital funds are not allowed to be used for equity investments in China under Circular 142, unless otherwise prescribed. Foreign exchange capital funds have to be transferred in original currency to the investee companies by FIEs, while the investee companies have to perform foreign exchange registration and apply for the exchange settlement and use of capital funds. This restriction has been relaxed by Circular 19 and FIEs mainly engaging in investments are allowed to directly settle foreign exchange capital funds before transferring the same to accounts of the investee companies. This provision facilitates FIEs equity investments in China, extends and deepens convertible contents of capital items. Circular 19 specifies the principle for using FIEs capital funds and introduces a Negative List management system. FIEs should be aware of restrictions on the use of FIEs capital funds, e.g., securities investments and RMB entrustment loans. Although Circular 19 gives autonomy and discretion of foreign exchange settlement of capital funds to FIEs, foreign exchange bureaus and banks can still supervise the use of FIEs capital funds through their settlement accounts. In fact, the focal point of supervision would be shifted from the settlement of foreign exchange capital funds to the use of RMB funds derived from the exchange settlement. FIEs that wish to enjoy the more friendly and convenient foreign exchange policies should study Circular 19 carefully and comply with new provisions when executing investment plans. If in doubt, consultations with professionals or foreign exchange bureaus are always recommended. 3 Pursuant to Circular 142, the banks shall implement the payment settlement system when processing foreign exchange settlement of capital funds for FIEs, i.e., the exchange settlement would be subject to banks review of the authenticity and compliance status of the use of RMB funds to be settled. You can click this link to access the full content of Circular 19: jtzwhgl/node_zcfg_zbxm_kjtz_store/f4be0f0047efabb79cb1bceee2a1794d You can click this link to access the full content of Circular 36: jtzwhgl/node_zcfg_zbxm_kjtz_store/b f9ac668af2ae04091e83bf/ You can click this link to access the full content of Circular 142: 09Pr0BXLy8PQyNPI_2CbEdFAKLWUno!/?WCM_GLOBAL_CONTEXT=/wps/wcm/connect/safe_web_store/safe_ web/zcfg/zbxmwhgl/zjtzwhgl/node_zcfg_zbxm_kjtz_store/cbe00e00483a082db9a8bb362e8d3913 You can click this link to access the full content of Circular 88: 6

7 Customs circulars Notice regarding the launch of integrative customs clearance for goods imported/exported via customs areas on the Silk Road Economic Belt (GAC Announcement [2015] No. 9) Notice regarding the launch of integrative customs clearance for goods imported/exported via customs areas in the Northeast China (GAC Announcement [2015] No. 10) Synopsis To implement the national strategy of One Belt, One Road ( 一带一路 )and rejuvenate the Northeast China, and accelerate the reform of integrative regional customs clearance for goods imported/exported via customs areas in the region whose economy is closely connected (hereinafter referred to as Reform ), on 30 March 2015, the General Administration of Customs (GAC) released GAC Announcements [2015] No. 9 and No. 10 ( Announcement 9 and Announcement 10 ) which will extend the Reform to two other regions (i.e., the Silk Road Economic Belt and Northeast China) from 1 May Key points of Announcements 9 and 10 are as follows: Items Reform in the Silk Road Economic Belt Reform in the Northeast China Applicable Customs Applicable goods Ten Customs including Customs of Qingdao, Jinan, Zhengzhou, Taiyuan, Xi an, Lanzhou, Yinchuan, Xining, Urumqi and Lhasa (hereinafter referred to as Customs of the Silk Road Economic Belt ) that are located in nine provinces including Shandong, Henan, Shanxi, Shaanxi, Gansu, Ningxia, Qinghai, Xinjiang and Tibet (hereinafter referred to as Silk Road Economic Belt ) Six Customs including Customs of Dalian, Shenyang, Changchun, Harbin, Hohhot and Manchuria (hereinafter referred to as Customs of Northeast China ) that are located in four provinces including Liaoning, Jilin, Heilongjiang and Inner Mongolia (hereinafter referred to as Northeast China ) The customs clearance mode under the Reform would be applicable to goods imported/exported by enterprises in the Silk Road Economic Belt/Northeast China via port Customs in the respective region. Contents Enterprises in the Silk Road Economic Belt/Northeast China can choose to go through customs formalities of declaration, tax payments, examinations and release with the Customs in the place of their registrations or the place where goods actually enter into/exit from China or the corresponding centralized declaration sites of the Customs at their sole discretion. Based on actual needs, enterprises can choose to adopt any one of the customs clearance modes at their sole discretion, which include: Port clearance ( 口岸清关 ) Customs transit ( 转关 ) Customs clearance mode under the Reform For enterprises engaging in the customs declaration with cross-location operations in the Silk Road Economic Belt/Northeast China, Announcements 9 and 10 remove restrictions on their cross-location business operations and allow them to register in one area but conduct customs declaration businesses in other areas within Silk Road Economic Belt/Northeast China. Specialized recognition results (e.g., pre-classification of commodities, price pre-approval, predetermination of country of origins, classification, prices) and administrative licensing decisions (e.g., temporary import and export) would be mutually recognized by the Customs of the Silk Road Economic Belt/Northeast China. Upon completion of customs system upgrade and subject to certain conditions, the tax guarantee letter would be mutually recognized by and applicable to the Customs of the Silk Road Economic Belt/Northeast China. Customs declaration forms under the Reform shall be subject to customs examinations at the port Customs or customs supervision areas where enterprises are located, which can be selected by enterprises at their sole discretion based on their actual logistics needs. Customs of the Silk Road Economic Belt/Northeast China shall go through the formalities of releasing commodities based on electronic information, i.e., to perform automatic verification and release at customs checkpoint. 7

8 Our observations In 2014, the Reform has been launched in three regions, i.e., the region covering Beijing, Tianjin and Hebei province, the Yangtze Economic Zone and Guangdong Region. With the expansion of the Reform to cover the Silk Road Economic Belt and Northeast China from 1 May 2015, the Reform will be implemented in five regions covering the entire nation. The Reform aims to form an integrated management mechanism and operation mode for customs clearance in the respective region through establishing a single center (i.e., regional customs clearance center) and four platforms (i.e., unified declaration platform, risk prevention and control platform, specialized document examination platform and on-site operation platform). The focus of the Reform is to promote cancellation of administration approval procedures and delegation of approval authority to lower levels and give enterprises more discretion in customs clearance. This would enhance customs clearance efficiency and reduce customs clearance costs of enterprises. Enterprises importing and exporting goods via ports of the locations covered in the Reform should study the above circulars carefully to enjoy the simplified and convenient customs clearance treatments. If in doubt, consultations with professionals are always recommended. You can click this link to access the full content of Announcement 9: You can click this link to access the full content of Announcement 10: Other tax, business and customs related circulars recently announced by central government authorities: Notice regarding the reinforcement of export tax refund (Shuizonghan [2015] No. 184) Notice regarding the 2015 plan for importation of seeds (seedlings), animal and poultry breeders, fish roe and fry, and wild animals and plants used for breeding eligible for import-level Value-Added Tax exemption treatments (Caiguanshui [2015] No. 9) Notice regarding certain issues related to further regulating the related-party transactions of insurance companies (Baojianfa [2015] No. 36) Notice regarding the public opinion consultation on the "Implementation Measures on Administrative Licensing Items for Foreign-funded Banks (Discussion Draft)" Notice regarding the public opinion consultation on the "Implementation Measures on Administrative Licensing Items for Chinese Commercial Banks (Discussion Draft)" Notice regarding the abolishment of certain customs regulations (GAC Order [2015] No. 226) Notice regarding the submission of documents proving the place of origin of import goods transited via a third party under the Free Trade Agreement Between the People's Republic of China and the Swiss Confederation (GAC Announcement [2015] No. 8) 8

9 Contact us For more information, please contact your usual EY contact or one of the following of EY s China tax leaders. Office Tax Leaders Henry Chan (Beijing) henry.chan@cn.ey.com Alan Lan (Tianjin) alan.lan@cn.ey.com Samuel Yan (Dalian/Shenyang) samuel.yan@cn.ey.com Lucy Wang (Qingdao) lucy-c.wang@cn.ey.com Vickie Tan (Shanghai/Wuhan) vickie.tan@cn.ey.com Patricia Xia (Hangzhou) patricia.xia@cn.ey.com Chuan Shi (Chengdu) chuan.shi@cn.ey.com Rio Chan (Guangzhou/Xiamen) rio.chan@cn.ey.com Lawrence Cheung (Shenzhen) lawrence-f.cheung@cn.ey.com Clement Yuen (China South) clement.yuen@cn.ey.com Audrie Xia (Suzhou) audrie.xia@cn.ey.com Service Line Tax Leaders Andrew Choy (International Tax & Transfer Pricing) andrew.choy@cn.ey.com Paul Wen (Human Capital) paul.wen@hk.ey.com Becky Lai (Tax Policy) becky.lai@hk.ey.com David Chan (Transaction Tax) david.chan@hk.ey.com Robert Smith (Indirect Tax) robert.smith@cn.ey.com Greater China Tax Leader Walter Tong walter.tong@cn.ey.com Author China Tax Center Jane Hui jane.hui@hk.ey.com 9

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