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1 transfer pricing insider tm onesource transfer pricing Volume 3, issue 1 april 2009 Author: YINGCHUN ZHAO is a Professor and Director of the Taxation Department at Shanghai Lixing University of Commerce, Shanghai. MICHAEL DONG is the Director of Taxation for Sega Holdings U.S.A., Inc., San Francisco. EFFECTS OF CHINA S NEW EN- TERPRISE INCOME TAX LAW ON MULTINATIONAL ENTERPRISES Source: Yingchun Zhao, Professor and Director of Taxation Department at Shanghai Lixing University of Commerce, Shanghai. Michael Dong, Director of Taxation for Sega Holdings U.S.A, Inc., San Francisco. The new enterprise income tax law does away with different tax treatment of domestic and international multinational enterprises, but uncertainties in the new rules on transfer pricing, contemporaneous documentation, thin capitalization, CFCs, and antiavoidance have temporarily slowed capital investment in China. The new Chinese Enterprise Income Tax Law (EIT Law), enacted on March 16, 2007, has ended different tax treatment for domestic and international multinational enterprises (MNEs), providing an equal tax environment and a level playing field for domestic companies competing with MNEs. On December 6, 2007, the China State Council passed the Implementation Regulations of the Enterprise Income Tax Law ( Regulations ). Both the EIT Law and the Regulations became effective on January 1, Since beginning to attract foreign capital investment in the 1970s, China has accumulated foreign capital in excess of $750 billion. China s foreign capital investment is the highest of all developing countries, and has played an essential role in China s rapid economic growth and will continue to be crucial for its future prosperity. The EIT Law and the Regulations were strongly debated in and among various legislative bodies (e.g., People s Congress) and administrative Effects of china s new enterprise income tax law on multinational enterprises Provisions Negatively Affecting MNEs Uniform rate decrease. Withholding tax. Deduction limitations. Uncertainty in the new provisions. Provisions That Might Affect MNEs Tax preferences for environmental protection and R&D. Repeal of the preferences for export manufacturing. Repeal of tax holiday for newly established production MNEs. Incentives for new technology enterprises in special zones. Transitional rules for existing enterprises. How the New EIT Law Keeps MNEs at Bay Number of permits issued. Number of MNEs from the United States and EU. Foreign capital use. U.S. and EU MNEs investment. Conclusion Exhibits 1-4 Footnotes About OneSource Transfer Pricing Tax & Accounting

2 branches (e.g., Ministry of Finance and the State Administration of Taxation) to avoid jeopardizing foreign capital investment. Prior to the enactment of the EIT Law, China maintained two separate tax systems for domestic enterprises and MNEs, 1 which put domestic enterprises at a competitive disadvantage. In 2005, the Ministry of Finance and the State Administration of Taxation (SAT) conducted a nationwide survey and found that domestic enterprises had a 24.53% effective tax rate, while MNEs had only a 14.89% effective tax rate, which created an overall preferential benefit for MNEs of nearly 10%. The EIT Law basically ended this preferential tax treatment by reconciling the two separate systems into one uniform system. This article reviews and analyzes the provisions within the EIT Law and Regulations that may negatively affect MNE investment in China, as well as provisions that may have neutral or positive effects. It also discusses the immediate reaction of MNEs after the enactment of the EIT Law, draws conclusions from statistics published by the Chinese Ministry of Commerce, and determines that the negative effects on MNE investment, if any, will be short lived. Provisions Negatively Affecting MNEs The EIT Law has unified the prior two separate tax systems and modified some provisions that might have an impact on foreign capital investment. The specific rules are discussed below. Uniform rate decrease. The EIT Law decreases the statutory enterprise income tax rate to 25%, and provides small enterprises with a preferential 20% tax rate. The prior tax law had a 30% statutory tax rate for MNEs, with a 3% local enterprise income tax. For MNEs that are not located in special zones, the new tax rate decreases by 5%, from 30% to 25%. However, for those located within zones, the MNE statutory income tax rate increases from either 24% or 15%. The main purposes of the rate decrease are to reduce the tax burden for domestic enterprises without unreasonably increasing the burden for MNEs, to keep the government s fiscal revenue decrease within a tolerable range, and to reconcile the tax rates with other countries, particularly neighboring countries. 2 The EIT Law repeals preferential tax rates for MNEs located within special zones and replaces them with industry-based preferences. Many MNEs were established in those special zones to benefit from the favorable tax rates (either 24% or 15% before the enactment of the EIT Law). With the repeal of these special rates, MNEs are subject to the new 25% rate phased in over five years (the expected phase-in period is 18% in 2008, 20% in 2009, 22% in 2010, 24% in 2011, and 25% in 2012). Therefore, MNEs in special zones are facing an effective income tax rate increase, while the enterprise income tax rate decreases under the EIT Law. In addition, the preferential 20% tax rate for small enterprises applies only to those with taxable income of less than RMB 300,000, fewer than 100 employees, and total assets of RMB 30 million or less. The majority of MNEs in China are much larger, so it is unlikely that they will benefit from this provision. Withholding tax. The Regulations impose a withholding tax at a flat 10% rate on China-source passive income including dividends, royalties, interest, rents, and capital gains derived by an MNE. 3 This regulatory rate applies to all MNEs unless it is reduced or exempted by a tax treaty. Several of China s tax treaties provide for a lower 5% withholding rate for dividends. However, it is unlikely that the withholding tax can be avoided by restructuring or liquidating an MNE s Chinese subsidiaries or ownership. For example, if an MNE is exiting a Chinese enterprise, the withholding tax applies to the capital gain that is calculated on the difference between the gross proceeds and the sum of the cost basis of the share or other equity interest being sold and the owner s percentage interest in undistributed earnings. Since the withholding tax applies to dividends, it no longer makes sense to reduce the gain on sales by distributing dividends to decrease the owner s percentage interest in undisturbed earnings. The prior law exempted nonresident MNEs from Chinese dividend withholding tax. MNEs of countries that do not have a tax treaty with China will be subject to 10% withholding on dividends and other Chinasource passive income, which will undoubtedly increase their tax burden and overall effective tax rate. Deduction limitations. The Regulations limit entertainment, advertising, and charitable deductions. Business entertainment expenses. The Regulations substantially modify the business entertainment expense deduction by providing a deduction of 60% of the expense incurred, not exceeding 0.5% of the annual sales revenue in the current year. 4 This limit may substantially decrease an MNE s deduction and, therefore, increase its income tax liabilities. The prior tax law allowed MNEs to deduct (1) 0.5% of annual net sales if they did not exceed RMB 15 million, and 0.3% of the amount in excess of RMB 15 million; and (2) 1% of annual gross revenue if it did not exceed RMB 5 million, and 0.5% of any excess over RMB 5 million. Advertising/promotion expenses. The Regulations limit advertising and business promotion expense deductions to 15% of the annual sales revenue for the 2

3 current year. 5 Any nondeductible excess may be carried forward to future years (the number of years allowed is not specified). Prior law allowed MNEs to deduct actual advertising and business promotion expense as incurred. This limitation was put in place because China considers an advertising expense a one-time charge that benefits future periods. Therefore, it is treated as a long-term capitalized expense and may not be deducted in the period incurred. The same reasoning and treatment apply to business promotional expenses. 6 The new provision limits these deductions substantially for certain MNEs, particularly those with hefty advertising and business promotion expenses for cosmetics, food and beverages, entertainment, and health and fitness. Charitable contributions. The Regulations provide that an enterprise may deduct actual charitable contributions as incurred up to 12% of its annual profit. Annual profit refers to the annual accounting profit before income tax. 7 The prior law allowed MNEs to deduct actual charitable contributions as incurred. The limitation 8 will likely reduce deductions for MNEs and increase their income tax liability. China Charity Federation statistics show that approximately 75% of annual charitable contributions are from MNEs, while 15% come from wealthy domestic individuals, 10% from other domestic taxpayers, and only about 1% from domestic enterprises. Uncertainty in the new provisions. The new rules create uncertainty regarding transfer pricing, thin capitalization, controlled foreign corporations (CFCs), and anti-avoidance. Transfer pricing, contemporaneous documentation. 9 The Regulations provide transfer pricing methodologies for related-party transactions. The rules are based on the arm s-length principle, which means that related parties must abide by the same standards as unrelated parties carrying out business transactions in accordance with fair market prices and common business practices. Six methods are provided: (1) comparable uncontrolled price; (2) resale price; (3) cost plus; (4) transaction net margin; (5) profit split; and (6) other methods that are in compliance with the arm s-length principle. Cost-sharing arrangements are covered in a separate article of the Regulations. Although the methods in the Regulations are familiar to MNEs, there are no specific provisions regarding how to calculate and implement them. For example, the Regulations indicate that a cost-sharing arrangement may cover the joint development of intangible assets and labor services, and acknowledge that an enterprise may share costs with related parties based on the principle that costs and expected benefits are to be matched. However, without further details, it is not clear what criteria and guidelines MNEs must follow, such as what constitutes the costs and benefits. The Regulations also require contemporaneous documents and a related-party transaction report when filing annual tax returns with the tax authority, which should include pricing, standards for determining expenses, computation methods, and explanations. It is unclear what must be filed with the annual tax return as opposed to merely held for a future examination. The statute of limitation is ten years from the year in which the transaction takes place. Thin capitalization rule. 10 The EIT Law introduced a thin capitalization rule that disallows an interest deduction on interest-bearing debts or loans from related parties if the debt-to-equity investment ratio exceeds a prescribed percentage. The Regulations define debt and equity. Debt refers to financing directly or indirectly obtained by an enterprise from its related parties that requires repayment of principal and interest. Equity refers to investment obtained by an enterprise without the need to repay principal and interest, and in respect of which the investor is entitled to the appropriate proportion of the net assets of the enterprise. The Regulations do not provide the prescribed ratio for the disallowance. The definition of equity is unclear and may be based on a cost-of-investment approach rather than a fair-market-value approach. The Regulations also do not provide safe harbor debt-to-equity ratios. CFCs. 11 The EIT Law definition of a CFC follows the U.S. statutory definition. The Regulations state that an MNE will be a CFC when China-resident enterprises directly or indirectly hold 10% or more of the total voting shares, and jointly hold more than 50% of the total shares. There is also a substantial control provision when the percentage tests are not met. The Regulations state that the MNE s effective tax rate must be less than 12.5% (less than 50% of China s tax rate) for it to be subject to the CFC provisions. However, there are no detailed guidelines for CFC treatment in the Regulations. General anti-avoidance rule. 12 The EIT Law introduced a general anti-avoidance rule, which says that if an enterprise engages in an arrangement without a reasonable commercial purpose that results in reducing its taxable income, the tax authority has the right to make adjustments based on reasonable methods. The Regulations clarify that without a reasonable commercial purpose applies when the main purpose is the reduction, exemption, or deferral of tax payments. Other than this definition, the Regulations are silent on the essence of anti-avoidance. As shown, the Regulations do not clarify significant issues in the EIT Law. Further interpretation, 3

4 explanation, and implementation details are expected from the Ministry of Finance and the SAT in the form of Tax Circulars and similar releases. However, resolving these ambiguities may take years. Until then, MNEs may be reluctant to dive into the great uncertainty brought by the new EIT Law and the Regulations. Provisions That Might Affect MNEs In his 2007 State of the Union address, Chinese Premier Wen Jiabao called for government efforts to improve economic infrastructure, increase economy efficiency, conserve energy and natural resources, reduce environmental pollution, and rapidly increase economic growth. The EIT Law closely reflects this focus by modifying tax preferences. Tax preferences for environmental protection and R&D. 13 The EIT Law extends preferential tax treatment to enterprises investing in environmental protection, energy and water conservation, and production safety, and the income from these activities will be taxed favorably. For example, qualified income will be entitled to a three-year exemption followed by a three-year tax reduction beginning in the year that the enterprise starts generating business income. The enterprise s R&D expense is deductible at the rate of 150% of the actual expense incurred, with no limitation for incremental increases each year. This deduction provides enterprises with an incentive for new technology R&D to improve China s technological competitiveness. Repeal of the preferences for export manufacturing. The prior tax law provided export MNEs (as well as domestic enterprises) with favorable tax treatment 50% of the applicable income tax rate if the value of the export products was at least 70% of the value of the products manufactured after the tax holiday expired. Those that qualified for the 15% income tax rate were taxed at an even lower 10% rate if they satisfied the 70% requirement. The repeal of this provision will have an adverse effect on manufacturing export enterprises, both domestic and foreign. Repeal of tax holiday for newly established production MNEs. The prior tax law provided production MNEs with a board tax incentive consisting of a two-year exemption followed by a three-year half tax. For the first two years, an MNE s taxable income was exempted if it had been in business for ten years; it would then be taxed at 50% of the applicable income tax rate from the third through the fifth year. This incentive was a tremendous tax benefit for MNEs, and was highly successful in attracting foreign capital into China. With its repeal, an MNE s tax burden will likely increase. However, a 15% tax rate for high and new technology enterprises should apply to a significant number of MNEs. Also, MNEs should be able to alleviate the burden by using the more traditional international tax planning strategies to which they are accustomed. Incentives for new technology enterprises in special zones. The two-year exemption followed by the three-year tax reduction still applies to newly established highand new-technology enterprises (both domestic and MNEs) in some economic special zones. To stimulate and stabilize foreign capital investment in these enterprises, the China State Council recently issued The Notice of Transitional Favorite Tax Treatment for the Newly Established High and New Technology Enterprises in Economic Special Zones and Shanghai Pudong New District. 14 The Notice provides that a high- and new-technology enterprise that is registered after December 31, 2007, will still qualify for a tax exemption for the first two years after the year that the enterprise became profitable, followed by three years of taxes at 25% of the applicable income tax rate for the income generated within the special economic zones and Shanghai Pudong New District. The special economic zones include Shengzhen, Zhuhai, Shantou, Xiamen, and Hainan. Transitional rules for existing enterprises. 15 To reduce possible adverse tax effects on, and avoid possible business interruptions of, existing enterprises as a result of the EIT Law, the law provides transitional rules for MNEs that were established prior to its enactment. MNEs formed after the EIT Law became effective are not entitled to the transitional rules. The rules give existing MNEs the preferences during the transition period to which they would have been entitled under the prior law, including favorable income tax rates and certain exemptions and tax benefits. MNEs that received 24% or 15% preferential tax rates will have their rates increase to 25% over five years. The transitional rules give MNEs a window for strategic international tax planning. How the New EIT Law Keeps MNEs at Bay Since the enactment of the EIT Law, the effect on MNEs can already been seen. These consequences are discussed below. Number of permits issued. During January-February 2007, prior to the enactment of the EIT Law, the number of permits issued nationwide to MNEs was 5,716, an increase of 11.29% compared with the same period in the previous year. However, the number of the permits issued in March 2007, when the EIT Law was enacted, was 3,581, a decrease of 5.09%, and it has continued decreasing, as illustrated in Exhibit

5 Number of MNEs from the United States and EU. From January through February 2007, the number of new MNEs from Asian countries increased 17.16% compared with the same period in the previous year. The Asian countries included Hong Kong, Macau, Taiwan, Japan, Philippines, Thailand, Malaysia, Singapore, Indonesia, and Korea. The number of newly established U.S. MNEs increased slightly by 3.85%, while the number of EU MNEs decreased 3.51%. In March 2007, the number of U.S. MNEs in China was down 6.5%, and EU MNEs decreased 5.83%, compared to the same period in the previous year. The number of MNEs from both the United States and EU has continued dropping (see Exhibit 2). 17 Foreign capital use. During the first two months of 2007, MNE actual use of capital reached $9.709 billion, up 13.04% compared with the same period in the previous year. In March 2007, the use of capital was $6.184 billion, an increase of 9.32%. The overall use of MNE capital from January through October 2007 rose to $ billion, an increase of 11.15%. The use of MNE capital was $4.466 billion in April, up 5.49%, and $4.899 billion in May 2007, up 8.65% (see Exhibit 3). U.S. and EU MNEs investment. During the first two months of 2007, the actual foreign capital invested by U.S. MNEs increased 15.77%. However, the investment increase was only 13.07% in March. Investment in China by MNEs from the 15 EU countries decreased 39.6%. From April through October 2007, U.S. MNE investment was low, while EU MNEs showed a steeper decline with a temporary bounce in September and another decline in October (see Exhibit 4). The exhibits demonstrate that U.S. MNE investment in China hovered at a low level, while EU MNE investment declined sharply, since the enactment of the EIT Law. The EIT Law has had some negative effects on U.S. and EU MNE investment in China, and China must improve its fiscal environment for capital investment. The current level of investment by U.S. and EU MNEs is the direct result of the EIT Law. However, indirect factors also contribute to MNE hesitancy, such as inconsistencies between China s manufacturing-focused capital demand structure and U.S. and EU service-focused capital exportation, as well as China s Greenfield Investment mentality (investment in ground-up production)y and the U.S. and EU MNE investment preference for mergers and acquisitions. 18 In the long run, there should be no cause-and-effect relationship between MNE capital inflow into China and the enactment of the EIT Law. 19 Capital investment by MNEs is not governed by tax laws, but rather by a business-friendly investment environment size of the market, growth of the economy, skilled workforce, and infrastructure. As long as China remains competitive in these areas, the high level of MNE capital investment will be restored and increase in the near future. Conclusion The new EIT Law and the Regulations, particularly uncertainties in the rules on transfer pricing, contemporaneous documentation, thin capitalization, CFC, and anti-avoidance, have made a temporary dent in MNE capital investment in China. The 2007 domestic statistics show a decrease in the number of MNEs formed in China, especially from the United States and the EU. However, this should be short-lived. China is currently working on detailed implementation rules and guidelines, primarily by the Ministry of Finance and SAT, to clarify provisions within the EIT Law and the Regulations. The near-term focus will be on bilateral and multilateral negotiations to provide specific-sector MNEs with benefits that were taken away by the EIT Law and Regulations and to stimulate and maintain the desired level of international capital investment. At present, MNE capital investment is primarily from the countries with low enterprise income tax rates, 20 which make up approximately 76% of total investment in China among the top ten countries. The Chinese government has begun to pay particular attention to the balance of different policies and laws to avoid a possible substantial reduction in international capital inflow or the withdrawal of this investment. Further, an emphasis has been placed on attracting investment from more developed countries, while maintaining the current level of investment from Asia, to improve the quality of investment. U.S. and EU MNE capital investment usually comes with technology and other intellectual property, as well as management expertise, which China desperately needs. In addition, the Chinese government will encourage bilateral and multilateral negotiations and agreements that mutually benefit China and MNEs (e.g., profitability and market share). It will also proactively seek international capital inflow through mergers and acquisitions. These approaches will likely increase investment from MNEs in developed countries, including the United States, Europe, and Japan. In implementing the EIT Law and the Regulations, the Chinese government is expected to provide more detailed guidelines in the form of notices, announcements, and circulars. More desirable provisions for MNEs through bilateral and multilateral agreements, such as Competent Authority agreements, advance pricing agreements, and letter rulings, will be negotiated. China s economy and tax system are very dynamic. MNEs should expect many more new developments that will fill in the tax framework created by the EIT Law and Regulations. 5

6 Exhibit 1. Decrease in Number of New MNE Permits in 2007 Exhibit 1 Exhibit U.S. and EU New MNEs Exhibit 2 Exhibit Actual Use of Foreign Capital Percentage Change Exhibit 3 Exhibit U.S. and EU MNE Investment in China Exhibit 4 Footnotes 1 Wang Degao and Li Jianbo, Tax Preferential Theory for Foreign Direct Investment and Economic Impact Analysis, J. Wuhan U. of Technology (December 2006). 2 A survey conducted by PricewaterhouseCoopers in March 2007 showed that the average enterprise income statutory tax rate for 159 countries is 28.6%, and the average tax rate for China s 18 neighboring countries is 26.7%. 3 Implementation Regulations of Enterprise Income Tax Law of the People s Republic of China (2007) ( Implementation Regulations ), ch. 5 (Withholding at Source); Enterprise Income Tax Law (2007) (EITL), Article Implementation Regulations, Article 43, section 3 (Deduction), ch. 2 (Taxable Income). 5 Implementation Regulations, Article 44, section 3, ch Explanations of Implementation Regulations, China Taxation News, December 17, Implementation Regulations, Article 53, section 3, ch A charitable contribution limitation is common among countries including the U.S. (10%), Korea (7%), Netherlands (6%), and Belgium (5%). 9 Implementation Regulations, Article 110, ch. 6 (Special Tax Adjustments). 10 Implementation Regulations, Article 119, ch. 6; EITL, Article Implementation Regulations, Article 117, 118, ch. 6; EITL, Article Implementation Regulations, Article 120, ch. 6; EITL, Article Implementation Regulations, Article 95, ch. 4 (Tax Incentive); EITL, Article PwC In & Out, 18 JOIT 14 (March 2008). 15 EITL, Article China Ministry of Commerce Information Office, December 14, China Ministry of Commerce statistics indicate that from January-October 2007, the overall number of U.S. MNEs in China decreased 15.93%, and the overall number of EU MNEs decreased 7.28% in the same period of the previous year. 18 China Economy Forecast in 2008, China Science Institute, Center for Forecasting Science. 19 China domestic statistics show that among lowincome tax rate countries, only China has attracted substantial international capital investment. Korea, Malaysia, and Vietnam have relatively low international capital investment, although they have low enterprise income tax rates. In comparison, the United Kingdom and the United States have attracted tremendous foreign capital even though their enterprise income tax rates are comparatively high. 20 The Ministry of Commerce published a list of the top ten countries from January-October 2007: Hong Kong ($ billion), British Virgin Islands ($ billion), Korea ($2.945 billion), Japan ($2.81 billion), Singapore ($2.245 billion), United States ($1.987 billion), Cayman Islands ($1.788 billion), Samoa ($1.457 billion), Taiwan ($1.294 billion), and Mauritius ($907 million). The actual foreign capital investment was 87.05% of the nation wide actual use of foreign capital. 6

7 KEEP TRANSFER PRICING PENALTIES AT ARM S LENGTH! Important Guidance from WG&L! The United States has targeted transfer pricing as an issue of major importance, for both inbound and outbound investments. Therefore, one of the most crucial business and tax considerations for any multinational corporation is how it prices goods, services, and intangibles. WG&L s U.S. International Transfer Pricing examines the case law and regulations and applies those principles to such topics as: Transfer planning studies Presenting positions in the context of litigation or controversy Obtaining an advance pricing agreement (APA) Responding to a summons or examination It explores transfer pricing at work under the constraints of state taxation, customs laws, and other relevant areas. U.S. International Transfer Pricing includes detailed coverage of: The arm s-length standard Essential premises of transfer pricing law The transfer pricing penalty APAs IRS examination and controversy process Don t get caught in the web of complex regulations, risking huge penalties for noncompliance. Let the expert authors of U.S. International Transfer Pricing help you through the planning processes to make the right decisions. Call or visit ria.thomson.com now to learn more about this critical guidance. About the Authors: Sewell, LLP. Associates, New York, New York. Wynne Sewell LLP. INTP6/ Thomson Tax & Accounting. Checkpoint, RIA, PPC and WG&L are registered trademarks of Thomson Professional & Regulatory Inc. Other names and trademarks are properties of their respective owners. TAX & ACCOUNTING

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