Executive Summary. This paper discusses some of these key tax considerations that the Government should review closely:

Transcription

1 FSDC Paper No.26 A Paper on Tax Issues Affecting Hong Kong to Become a Preferred Location for Regional and International Financial Institutions to Originate and Trade International Financial Products December 2016

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3 Index Executive Summary Introduction and Key Issues Key Hong Kong Tax Challenges and Possible Improvements Interest Deductibility Regulated Capital Requirements and Total Loss Absorption Capacity Hong Kong Sourcing Rules and Offshore Claims Base Erosion and Profit Shifting (BEPS) and Transfer Pricing Double Tax Treaties with Tax Jurisdictions Where Financial Products are Issued or Where Clients are Resident Other Considerations Looking Ahead Appendix... 15

4 Executive Summary To strengthen Hong Kong s role as an international financial centre, Hong Kong should develop as a potential hub for originating and trading in global financial products. In light of recent global developments such as Brexit, Hong Kong should seize the opportunity to promote itself as an alternative centre for the origination and trading of international financial products. The report entitled "Enhancing Hong Kong's Role as a Centre for Regional and International Financial Institution Operations: Booking" issued by the Financial Services Development Council (FSDC) in September 2015 outlined some of the regulatory and licensing developments needed to strengthen Hong Kong s position as a centre for the origination and trading of international financial products. However, for Hong Kong to promote itself as a preferred financial origination and trading centre and to take advantage of the expertise and infrastructure that already exist, some refinements are required to the current taxation rules. This paper discusses some of these key tax considerations that the Government should review closely: To create a level playing field between financial institutions (i.e. banks) and nonfinancial institutions such as broker/dealers, the Government should consider amending the interest deductibility rules so that interest expense paid by a company licensed by the Securities and Futures Commission (SFC) should also satisfy one of the interest deduction conditions in the same way that a bank would fulfil the conditions. In addition to the SFC s recent Consultation Paper on Proposed Changes to the Securities and Futures (Financial Resources) Rules to update its financial resource requirements in the context of the new over-the-counter (OTC) derivative licensing regime in order to be more internationally competitive, the Government should consider introducing new rules on the deductibility of payments under a hybrid capital instrument paid by SFC licensed entities such as broker/dealers when issuing new types of regulatory capital securities under the SFC regime

5 The Government should give consideration to providing clearer guidance on how to interpret and apply the sourcing rules to complex global financial products origination and trading operations, taking into consideration the multiple locations of traders, salespersons, front and back offices in and outside Hong Kong supporting the same global trading book. The sourcing of derivative trades connected to or hedging principal trades should also be clarified. One suggestion to provide certainty and a pragmatic solution to the complex issue is to adopt a deemed onshore/offshore split similar to the 50:50 apportionment basis currently accepted by the Inland Revenue Department (IRD) to assess Hong Kong Profits Tax payable by Hong Kong enterprises in respect of certain situations. 1 The Government may consider issuing clearer guidance on appropriate transfer pricing methodologies for complex global book trading operations for taxpayers to follow as they consider placing their entity to originate and trade international financial products in Hong Kong. It is crucial that the guidance takes into account that no single method should apply in all cases, and there may be a list of acceptable alternative methodologies, having regard to different facts and circumstances of the Authorised Institutions (AIs) and SFC licensed entities. Vigorous ongoing efforts by the Government to push forth with treaty negotiations and conclusions with key jurisdictions like Australia, India, the Philippines, Singapore, Taiwan and other jurisdictions along the Belt and Road are of utmost strategic importance. We believe the recommendations advocated in this paper will help Hong Kong move toward being the preferred financial product origination and trading location for international and regional financial institutions, hence we respectfully request that the Government give these recommendations favourable consideration. 1 Please refer to Departmental Interpretation and Practice Notes No. 21 Locality of Profits issued by the IRD in July 2012 ( DIPN 21 ). The 50:50 apportionment basis currently accepted by the IRD includes (i) profits from sale of products processed by mainland manufacturing units under contract processing regime, and (ii) interest income from offshore loans initiated, etc. by an associated party outside Hong Kong but funded by the Hong Kong institution or offshore loans initiated, etc. by a Hong Kong institution but funded by offshore associates. However, the latter only applies to start-up positions where the Hong Kong institution has yet to establish a market presence

6 1. Introduction and Key Issues The FSDC in September 2015 released a report entitled "Enhancing Hong Kong's Role as a Centre for Regional and International Financial Institution Operations: Booking" (the Report). The Report outlines recommendations for enhancing Hong Kong's position as a preferred origination and trading centre, where regional and global financial institutions can enter into contracts for financial products, undertake primary obligations for delivery or payment with respect to financial products, or open and maintain accounts for their clients or counterparties. The Report noted that although Hong Kong has been actively introducing changes to its regulatory environment to align its standards with international benchmarks, there are still many tax and non-tax areas where the Hong Kong Government can do more to help further promote Hong Kong s position and reputation as a preferred origination and trading location for international financial products. This initiative is particularly timely as many financial institutions have been considering whether to relocate their origination and trading locations away from the traditional choices of London and New York amidst vastly changing regulatory landscapes in these financial centres. The UK s decision to leave the European Union has also prompted discussion as to whether financial institutions with operations in the City of London will look to relocate businesses away from the UK. Hong Kong is generally well-ranked as a global financial centre, with a highly developed and sophisticated financial services industry. However, historically it has not been seen as the world s leading origination and trading centre for financial products as in the case of London or New York. There have also been earlier reports of London based banks looking at relocating their derivatives trades from London to Hong Kong to take advantage of the city s favourable funding and regulatory environment. 2 Hong Kong has the potential of being the recipient of some of the relocated operations and the Government should be actively promoting Hong Kong s strengths and capabilities as a global financial centre while balancing its potential to accumulate risk as a result of increased origination and trading

7 To strengthen Hong Kong s role as an international financial centre, Hong Kong should develop as a potential origination and trading hub for trading in global financial products. In light of recent global developments such as Brexit, Hong Kong should respond now to promote itself as an origination and trading centre for international financial products to seize the opportunity. To carry out financial product origination and trading activities in Hong Kong, a multinational group would typically set up either a branch of a foreign corporation or a locally incorporated company that was either: (a) an AI, e.g. a licensed bank or restricted licensed bank, that is subject to banking capital requirements supervised by the Hong Kong Monetary Authority (HKMA); or (b) a licensed corporation, e.g. a securities company or brokerage company licensed by the SFC, that is subject to the capital requirements under the financial resources rules (FRR) supervised by the SFC. The Report issued by the FSDC in September 2015 outlined some of the regulatory and licensing developments needed to strengthen Hong Kong s position as an origination and trading centre. However, for Hong Kong to promote itself as a preferred financial origination and trading centre and to take advantage of the expertise and infrastructure that already exist, some refinements are required to the current taxation rules in order for Hong Kong to maximise its full potential as an origination and trading centre

8 2. Key Hong Kong Tax Challenges and Possible Improvements Hong Kong does have a favourable tax regime that encourages businesses to establish operations in Hong Kong. For instance, Hong Kong has a source based system of taxation such that only Hong Kong sourced profits are subject to tax. As well, dividends and capital gains are exempt from tax. However, there are certain aspects of the Hong Kong tax regime that may hinder the establishment of international financial product origination and trading centres in Hong Kong. We discuss below some key tax considerations that the Government should review closely in order to promote Hong Kong as a preferred location to establish regional or international origination and trading activities. 2.1 Interest Deductibility Reform to the existing interest deduction rules may be required in order to promote Hong Kong as a preferred international financial products origination and trading centre. Both banks and broker/dealers are generally subject to stringent regulatory capital requirements, which are amongst the main considerations for financial institutions looking to establish regulated trading activities in Hong Kong. As part of their trading operations, banks and broker/dealers would use a combination of debt and equity to support their trading activities including the funding of their financial product trading activities. The use of leverage is a fundamental part of a global trading business, as both banks and broker/dealers use leverage to enhance the returns they can achieve from their financial product trading operations. In order to ensure Hong Kong is a preferred location to carry out trading in financial products, there needs to be symmetry between the tax treatment of interest expense and the taxation of the related profits the interest expense should be deductible where the related profits are subject to tax. Hong Kong has strictly defined and long standing rules on the deductibility of interest expense. The interest expense deduction rules under the Inland Revenue Ordinance (IRO) also differ between financial institutions and non-financial institutions (i.e. banks versus - 5 -

9 broker/dealers). A financial institution, such as a bank, would satisfy one of the conditions for an interest deduction simply because it is a bank. However, this is not the case for a broker/dealer regulated by the SFC. These differences could potentially give rise to concerns for non-financial institutions such as broker/dealers that carry on similar businesses to that of banks as broker/dealers may not be entitled to a deduction for interest that banks operating the same business would be entitled to. As such, a broker/dealer may not consider establishing financial origination and trading centre activities in Hong Kong if there was a risk of its funding costs not qualifying for a deduction while the related profits were subject to tax. As noted, the problem in Hong Kong arises because of the specific interest deduction rules. For a bank or deposit-taking company licensed under the Banking Ordinance, interest expense is generally deductible if it is incurred to generate assessable profits. This rule applies regardless of the source of funding and whom the interest is paid to. Furthermore, the rules have been extended for banks to allow them to claim a deduction in respect of certain funds raised through hybrid instruments under the new Inland Revenue (Amendment) (No. 2) Ordinance 2016 gazetted on June 3, A broker/dealer would not normally fall within the definition of a financial institution for Hong Kong Profits Tax purposes, and thus would not qualify for the same interest deduction rules that apply to banks and other financial institutions. As such, the interest expense would need to satisfy one of several other conditions contained within the interest deduction rules in order for the expense to be deductible. These other conditions include where the interest was paid to: a bank, either in Hong Kong or offshore; a person that was taxable on that interest in Hong Kong; in respect of an intra-group financing business, or a person that was taxable in a territory outside Hong Kong at a rate not lower than the applicable Hong Kong tax rate of 16.5% or 8.25%, and the payor is a qualifying corporate treasury centre (CTC) under the new Inland Revenue (Amendment) (No. 2) Ordinance

10 However, if the interest was paid to an offshore lender that was not a bank and that person was not taxed on the interest income in Hong Kong, the interest expense would be nondeductible. 3 It is therefore conceivable that a broker/dealer could be disadvantaged compared with a bank if they were to borrow from an offshore lender to finance the capital requirements needed to engage in financial trading activities in Hong Kong. While a bank would generally be entitled to a deduction for funding costs if they are subject to profits tax in Hong Kong on the related profits, the broker/dealer may not qualify for a deduction on the interest paid to the foreign lender. This is notwithstanding that the funding costs are being used in the same way i.e. that both the bank and the broker/dealer are using the loan funds to generate profits that may be taxed in Hong Kong. Such difference in taxation treatment between banks and brokers/dealers should be appropriately rectified. To create a level playing field between financial institutions (i.e. banks) and non-financial institutions such as broker/dealers, the Government should consider amending the interest deductibility rules so that interest expense paid by a company licensed by the SFC should also satisfy one of the interest deduction conditions in the same way that a bank would fulfil the conditions. Amending the interest deductions rules as described would put banks and SFC licensed entities on equal footing in that regardless of whom the interest was paid to, a deduction for the interest should be available to the extent that it relates to taxable profits in Hong Kong. Section 16(2)(a) of the IRO should be extended to include a person licensed under the Hong Kong Securities and Futures Ordinance and also stipulated conditions, similar to those as applicable to CTCs under the new Inland Revenue (Amendment) (No. 2) Ordinance The above proposed amendment to the IRO would be a relatively straight forward change to increase the competitiveness of Hong Kong as an origination and trading centre. Further, amending the legislation to enable a funding cost deduction for non-banks conducting financial product origination and trading activities can be achieved without the risk of the rules being subject to abuse. It is important to note that since the SFC licensed entities are 3 Please also refer to the conditions stipulated in Section 16(2)(f) of the IRO

11 subject to strict SFC regulations and scrutiny on capital and various aspects of business activities, it would be highly unlikely for them to be able to (or be motivated to) manipulate their origination and trading location and related trade flows to abuse the interest deductibility rules. The more borrowing and hence debt that the broker/dealer has on its balance sheet, the more capital it would be required to hold. The strict and complex capital rules imposed by the SFC and the current anti-abuse rules in the tax legislation would be sufficient to address any potential abuse arising from such arrangements or transactions. 2.2 Regulated Capital Requirements and Total Loss Absorption Capacity Following the financial crisis in 2008, Hong Kong regulators, like many others, are increasing their capital requirements for banks and broker/dealers. The recent focus on Total Loss Absorption Capacity (TLAC) is also forcing banks and broker/dealers to issue new instruments such as contingent capital (loss absorbing instruments) to meet the local regulatory requirements. For banks in Hong Kong, we welcome the promulgation of the Inland Revenue (Amendment) (No. 2) Ordinance 2016 mentioned above to clarify the Hong Kong Profits Tax treatment of new types of regulatory capital securities issued by banks to meet the requirements imposed by the Banking (Capital) Rules. In essence, the new rules allow Additional Tier 1 or Tier 2 capital instruments issued by a bank, other than in the form of a share to be treated for their purposes as if it were a debt security. Thus a payment in respect of such regulatory capital securities other than a repayment of principal is to be treated as interest payable on the security and deductible for Hong Kong Profits Tax purposes. This new provision was introduced to address the need for banks to raise additional regulatory capital that has debt like characteristics. The changes to the tax treatment of the regulatory capital rules do not cover non-bank entities carrying on similar financial product origination and trading activities. As noted in the Report, broker/dealers are subject to strict capital requirements by the SFC which is a liquidasset based regulatory capital regime that gives rise to a much heavier regulated capital burden than the Basel-based regime adopted by banks in Hong Kong and other international markets. Nevertheless, if SFC licensed entities were to use hybrid capital instruments, we - 8 -

12 would propose that the tax treatment of such hybrid capital should be the same as those hybrid capital instruments used by banks. Thus, in addition to the SFC s recent Consultation Paper on Proposed Changes to the Securities and Futures (Financial Resources) Rules to update its financial resource requirements in the context of the new over-the-counter (OTC) derivative licensing regime in order to be more internationally competitive, the Government should consider introducing new rules on the deductibility of payments under a hybrid capital instrument paid by SFC licensed entities such as broker/dealers needing to issue new types of regulatory capital securities under the SFC regime. 2.3 Hong Kong Sourcing Rules and Offshore Claims Hong Kong is a source-based tax jurisdiction whereby only profits derived from business activities carried out in Hong Kong are subject to Hong Kong Profits Tax. Ascertaining the source of a profit is largely determined based on the facts and circumstances of the transaction in question and there is a vast body of precedent case law on the principles of source, as well as detailed guidance from the IRD. However, difficulties can still arise in determining the source of profits from complex trading transactions and this is particularly relevant in the context of a global trading book of financial products. For simple financial product trading transactions, the sourcing rules are relatively clear. For example, the source of trading in listed equities is generally determined by either where the securities are traded or the location of listing. For example, trading of stocks listed on the Hong Kong Stock Exchange would be considered Hong Kong sourced gains. Whereas, the source of gains made on trading in Tokyo listed shares would generally be offshore sourced. It is inevitably more complicated to apply the sourcing rules to global trading activities. For example, the trading of a global book may involve people located in different jurisdictions with traders in different countries trading parts of an overall transaction and all trading off the one global platform. The global book may involve traders in Hong Kong that have a general - 9 -

13 authority to transact on behalf of the book. Traders in other locations may have a similar authority to transact. The trading can be complex such as the principal trade executed in one location, whilst the hedge trade takes place in a different location. Both trades may be connected and are integral to the overall trading strategy. Likewise, there may be multiple traders in multiple locations trading amongst themselves and with their respective clients. These scenarios make the task of assessing whether profits of the global book should be subject to Hong Kong Profits Tax a potentially very complicated and problematic one. Examples of the complexity of determining the source of a profit are shown in the Appendix. To encourage multinational groups to choose Hong Kong as their international financial products origination and trading location, the Government should give consideration to providing clearer guidance on how to interpret and apply the sourcing rules to complex global origination and trading operations. These should take into consideration the multiple locations of traders, salespersons, front and back offices in and outside Hong Kong supporting the same global trading book. The sourcing of derivative trades connected to or hedging principal trades should also be clarified. In the absence of clearer guidance, the risk is that potentially some trades could give rise to taxable profits, whilst other trades could give rise to offshore sourced losses (and vice versa). This potential mismatch of profits and losses would not be a forwarded outcome to Hong Kong s effort to be the international financial products origination and trading location of choice. One suggestion to provide certainty and a pragmatic solution to the above complex issue is to adopt a deemed onshore/offshore split similar to the 50:50 apportionment basis currently accepted by the IRD to assess Hong Kong Profits Tax payable by Hong Kong enterprises 4 or variations thereof depending on the specific facts of the financial product origination and trading entity. Notwithstanding the absence of a specific statutory provision for apportionment in the IRO, section 14 of the IRO provides the legal authority to apportion profits if some of the essential profit-generating activities of the taxpayer are performed outside Hong Kong. This would be a practical approach to dealing with the source of profits 4 See footnote

14 from a global trading book, and that would acknowledge that the global trading activities can give rise to multiple sources. Instead of ascertaining the sources of profits from complex trading on an actual basis, a simpler approach would be to adopt a 50:50 split. Taxpayers would then make an election either to adopt the 50:50 apportionment for the total profits or determining the source and/or apportionment based on a detailed examination of all the relevant operations on an actual basis. 2.4 Base Erosion and Profit Shifting (BEPS) and Transfer Pricing BEPS continues to be a topic of considerable focus, with the Organisation for Economic Cooperation and Development (OECD) recently issuing its final reports on a range of deliverables to address perceived abusive arrangements. Hong Kong, along with Mainland China, has stated its support of those initiatives and the global development on tax transparency and automatic exchange of information. BEPS could have a significant impact on the choice of origination and trading jurisdiction. One of the principles of the BEPS initiatives is to ensure that the profits are recorded where the value is created. BEPS would therefore be especially relevant to Hong Kong based origination and trading entities in relation to the way they are funded, what these entities do for other members of the group visa-vis clients in other locations and the substance, capital and risks of the origination and trading entities residing in Hong Kong. Examples of BEPS actions impacting on an origination and trading location proposal could include the following: Action 4: Interest deductions. This action is intended to recommend best practice in the design of rules to limit deductibility of interest (or financial payments economically equivalent to interest). Debt ratios are being recommended to limit tax deductibility going forward. Such rules could have an adverse impact on a highly leveraged financial product origination and trading platform in Hong Kong and would require further analysis should the Government implement new tax law changes to limit deductibility. Action 7: Definition of Permanent Establishment and the expanded definition. This action has particular relevancy on the role of a dependent agent in concluding contracts, and hence how the multiple locations of traders, salespersons or other agents in the

15 running of a global financial product trading book affect the tax treatments in these multiple locations (including Hong Kong) when the origination and trading entity is in Hong Kong. This would have a significant impact on the methodology to allocate profits amongst the Permanent Establishments. Actions 8 to 10: Intellectual Property and Transfer Pricing outcomes. These actions are possibly the most impactful to the international financial products origination and trading location proposal of Hong Kong especially in the area of determining an arm s length allocation of profits relating to risks and capital, based on the principle of aligning returns with value creation for the complex operation of a global trading book. The country-by-country reporting will increase the transparency of the transfer pricing methodologies and resulting profit/loss allocation among all relevant jurisdictions. We therefore advocate that, if Hong Kong is to promote itself as a preferred international products origination and trading location, then the BEPS implications need to be recognized and acted upon to ensure that having an origination and trading location does not give rise to any adverse consequences. In other words, we should expect the economic substance of the banks or broker/dealers to increase in Hong Kong to support the change of origination and trading location to Hong Kong, and a bigger share of the profit or loss be attributable to Hong Kong. The Government may therefore need to consider issuing clearer guidance on appropriate transfer pricing methodologies for complex global book trading operations for taxpayers to follow as they consider placing their origination and trading entity in Hong Kong. Such can be the commonly seen revenue or profit split methodology utilizing drivers such as compensation expenses, capital funding costs, overhead costs etc. among the participating tax jurisdictions, or variations thereof. It is crucial that the guidance takes into account that no single method should apply in all cases, and there may be a list of acceptable alternative methodologies, having regard to different facts and circumstances of the AIs and SFC licensed entities

16 2.5 Double Tax Treaties with Tax Jurisdictions Where Financial Products are Issued or Where Clients are Resident In order for Hong Kong to actively promote itself as a preferred international financial products origination and trading location, it needs to ensure that cross border payments and product flows (e.g. dividends, interest, fees, derivative settlements) do not represent any unnecessary costs to a Hong Kong resident origination and trading entity and/or its clients (such as suboptimal withholding taxes, foreign tax credit availability and profit attribution to a permanent establishment). Having robust double tax treaties in place between Hong Kong and as many of the jurisdictions where financial products are issued and where clients are tax resident as possible is crucial to help eliminate or mitigate these costs. The fact that Hong Kong has an ever expanding double tax treat network with 35 treaties concluded to-date is encouraging news. Nonetheless, competing origination and trading entity location choices like London in the United Kingdom, New York in the United States and Singapore each has an even wider tax treaty network. Hence, vigorous ongoing efforts by the Hong Kong Government to push forth with treaty negotiations and conclusions with key jurisdictions like Australia, India, the Philippines, Singapore, Taiwan and jurisdictions along the Belt and Road are of utmost strategic importance. 2.6 Other Considerations We support Hong Kong in becoming a key international financial products origination and trading centre because we believe it would offer both quantitative and qualitative benefits for Hong Kong flowing from greater economic activity. For example the increased asset allocation, liquidity and volume of transactions will not only translate into significant financial revenues for Hong Kong but will also promote an increased pool of talent, and in turn, job creation in areas of operations, risk management and compliance. However, that greater economic activity needs to be commensurate with Hong Kong s potential to accumulate risk as a result of increased origination and trading activities in the city. In focusing on refining the current tax rules as proposed in this paper, Hong Kong will better position itself to attract transactions with a real Hong Kong nexus or connection

17 3. Looking Ahead In the current environment of significant political and economic uncertainties following Brexit and political developments in other economies, fiscal stimulus in the major economies as well as growth consolidation in many emerging markets and Mainland China, it is pertinent that Hong Kong continues to enhance its competitiveness as a key financial centre so as to maintain its status as a key regional and global financial hub. Since the global financial crisis, Hong Kong has actively implemented and proposed changes to its regulatory environment to align its standards with international benchmarks while monitoring a robust level of investor protection. In promoting Hong Kong as a leading international financial products origination and trading hub, it is crucial that Hong Kong s tax rules do not deter global businesses from considering Hong Kong as a jurisdiction in which business should carry on and further develop. Hong Kong s source based tax system is generally favourable to companies that set up business in Hong Kong; however, certain changes are needed to promote the use of Hong Kong as an international origination and trading hub for financial products transactions. We believe the recommendations advocated in this paper will help Hong Kong move toward being the preferred financial product origination and trading location for international and regional financial institutions, hence we respectfully request that the Government give these recommendations favourable consideration

18 Appendix Example 1: A Hong Kong based broker/dealer may issue a derivative in the form of a put option to a client providing exposure to the price fluctuation in a Mainland China company listed on the Shanghai Stock Exchange. As a hedge, the Hong Kong based broker/dealer may buy and sell the relevant Mainland China company shares on the Shanghai Stock Exchange under the Shanghai-Hong Kong Stock Connect program. This may give rise to gain from the call option be taxable in Hong Kong while the corresponding loss on the hedge position not deductible as the latter may be considered offshore sourced when transacted on an exchange outside of Hong Kong under current rules. Example 2: The commodities trading department of a Hong Kong bank may take a proprietary position in some physical copper through their Hong Kong team. As a hedge, the Hong Kong bank may enter into a copper futures contract over the Chicago Mercantile Exchange in the United States. Similar to Example 1, there may be a risk that the physical position leg of the transaction is considered Hong Kong sourced and subject to Hong Kong tax, while the futures leg executed on an offshore exchange is considered non-hong Kong sourced, thus the opposing economic outcomes of the primary trade versus the hedge trade may give rise to a Hong Kong tax leakage

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20 About the Financial Services Development Council The Hong Kong SAR Government announced in January 2013 the establishment of the Financial Services Development Council (FSDC) as a high-level and cross-sector platform to engage the industry and formulate proposals to promote the further development of Hong Kong s financial services industry and map out the strategic direction for development. The FSDC advises the Government on areas related to diversifying the financial services industry, enhancing Hong Kong s position and functions as an international financial centre of our country and in the region, and further consolidating our competitiveness through leveraging the Mainland to become more global. Contact us Units , 31/F, Sunlight Tower 248 Queen s Road East Wan Chai, Hong Kong (852)