Circular 698

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By Zhao Yan and Daisy Duan , King & Wood Mallesons’  Taxation Group

赵炎段桃After several rounds of revisions and consultations in the past few years, the State Administration of Taxation (“SAT”) has recently promulgated the Bulletin on Several Issues concerning the Enterprise Income Tax (“EIT”) on Indirect Asset Transfer by Non-Resident Enterprises (“Bulletin 7”)[1]. Tax matters occurred but have not been settled before 3 February 2015, the date of implementation of Bulletin 7, shall be governed by Bulletin 7. Meanwhile, the relevant provisions of Guo Shui Han [2009] No. 698 (“Circular 698”)[2] and SAT Bulletin [2011] No. 24 (“Bulletin 24”)[3] concerning indirect equity transfers shall be revoked accordingly.

In accordance with Bulletin 7, indirect transfer of China taxable assets conducted by non-resident enterprises through arrangements that do not have reasonable commercial purposes, which results in avoidance of EIT, shall be deemed as direct transfer of China taxable assets and thus subject to tax in China. As an upgrade to Circular 698, Bulletin 7 shall have profound impacts on the tax costs, investment structuring and exit plan of foreign enterprises making investments into China and of domestic enterprises setting up “red-chip” structures for overseas listings.
Continue Reading A New Milestone for Taxation on Indirect Asset Transfer by Non-resident Enterprises — A Review of the Past and Present of Bulletin 7

By Stephen Nelson, Partner and Head of King & Wood’s Taxation Practice

It is not uncommon for foreign investors to sell the shares of intermediate holding companies that hold the equity in Chinese companies as a way to exit their investments in China, in order to get around government approval procedures, as well as to avoid PRC tax on their capital gains. It certainly appears that these offshore transfers may be examined by the China tax authorities going forward, and may no longer escape the Chinese tax net. Recently, the State Administration of Taxation (the “SAT”) issued the circular Guoshuihan [2009] No. 698, “Strengthening the Tax Administration of Equity Transfers by Non-resident Enterprises” ("Circular 698”), which, for the first time, explicitly requires disclosure to the tax authorities of offshore indirect transfers of equity in PRC companies. The tax authorities may then examine the transferred offshore holding company in order to ascertain whether the structure has a reasonable commercial purpose – if not, the offshore gain could be held subject to Chinese tax.Continue Reading Offshore Equity Transfers – Next Target for PRC Tax Anti-avoidance Attack