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Chinese tax structures and planning alternatives to prepare for Outbound Chinese Investments


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Title: Chinese tax structures and planning alternatives to prepare for Outbound Chinese Investments

  • Chinese tax structures and planning alternatives
    to prepare for Outbound Chinese Investments
    China's next export

Fiduciary Future Conference - Cyprus -
31st October 2012
Peter Guang Chen
Table of Contents
  • Current state and trend of private wealth growth
    in China
  • Private wealth planning PRC tax considerations
  • Private wealth planning Other PRC
  • PRC Outbound Investment Planning
  • Pre-IPO planning using trusts
  • Who we are and how we can work with you

Chinas Next Great Export
On 21st September 2012, a visitor to the China
Property Investment Show in Beijing, touring
booths of foreign property developers
Chinas Next Great Export
Two weeks ago, on 16th October 2012, the Wall
Street Journal (WSJ), in a story titled Cash
Leaks Out of China, reported Zheng Nan
recently spent 300,000 (390,000) on a
beachfront condo in Cyprus. At 50 years old, he
says he is retired from selling
telecommunications gear in China for foreign
manufacturers. "My plan is to spend winter there
because of the pollution in Beijing," he says.
"And we will be back for summer.
Chinas Next Great Export
According to a Wall Street Journal analysis, in
the 12 months through September 2012, about 225
billion flowed out of China, equivalent to about
3 of the nation's economic output last
year. Source Wall Street Journal, 16th October
Global Billionaires
  • Top 10 Sources of Billionaires

Ranking Country Number of Billionaires
1 United States 413
2 China (including Hong Kong and Taiwan) 176
3 Russia 101
4 India 55
5 Germany 52
6 Turkey 38
7 United Kingdom 32
8 Brazil 30
9 Japan 26
10 Canada 24
Source Forbes 2011
Billionaires in China
  • Top 10 Billionaires in China and their Global

Rank Name Net Worth (Billion USD) Age Source
95 Robin Li 9.4 42 Internet
114 Liang Wengen 8.8 54 Manufacturing
169 Zong Qinghou 5.9 66 Beverages
179 Li Li family 5.7 47 Pharmaceuticals
185 He Xiangjian 5.5 69 Appliances
185 Wu Yajun family 5.5 47 Real estate
200 Hui Ka Yan 5.1 53 Real estate
208 Zhang Jindong 5 48 Retail
208 Ma Huateng 5 40 Internet
232 Wang Jianlin 4.6 57 Real estate
Source Forbes
Growth of Wealth in China
  • Chinese High Net Worth Individuals

HNWIs with more than USD1.5 million in individual
investable assets
HNWIs with more than USD15 million in individual
investable assets
Source Private Banking White Paper 2012 (Bank of
China and Hurun Research Institute)
Growth of Wealth in China
  • Top Chinese Companies in Fortune Global 500
  • In 2012, China has 61 73 companies in the Fortune
    Global 500
  • Top Private Chinese Global 500 Companies

Ranking No. of Global 500 Companies
United States 133
Japan 68
China 61 73
Country Rank Company Global 500 Rank City Revenues (Million USD)
8 Noble Group 91 Hong Kong 80,732
17 Dongfeng Motor 142 Wuhan 62,911
16 Shanghai Automotive 130 Shanghai 67,255
19 China FAW Group 165 Changchun 57,003
22 Baosteel Group 197 Shanghai 48,916
33 HeBei Iron Steel Group 258 Shijiazhuang 40,023
Growth of Wealth in China
  • Overseas Listings

2000 June 2005 As at end of Sept 30 2012
No. of H Shares co. 52 124 (including 2 delisted co.) 171
  • Based on a recent survey, 165 domestic
    enterprises listed abroad with over cumulative
    capital raised of over USD 120 Billion
  • Target markets
  • Most listed on the HKEx
  • SGX
  • RTOs into smaller US exchanges and OTC
  • AIM

Chinas Next Great Export
  • 60 of Chinas HNWIs have completed steps to
    emigrate or are considering emigration
  • Primary reasons for emigration of HNWIs
    Childrens education asset protection better
    living environment flexibility
  • Most desired destinations for emigration
  • USA
  • Canada
  • Europe
  • Others

Private wealth planning PRC TAX CONSIDERATIONS
PRC Taxation on Individuals
  • Residents are subject to individual income tax on
    worldwide income nonresidents are taxed on China
    sourced income only
  • A resident is defined as a person whose domicile
    is in China or whose domicile is not in China but
    lives in China for a full calendar year
  • In general, a Chinese person who obtains foreign
    citizenship or permanent residency and doesnt
    live in China for a full calendar year is
    considered a nonresident
  • A person is not considered living in China for a
    full calendar year if the person makes
  • Any single trip overseas longer than 30 days or
  • Multiple trips overseas the total length of which
    are more than 90 days

PRC Taxation on Individuals
  • Current individual income tax system is income
    category based, not on a consolidation basis
  • Income is classified into 11 categories
  • Wages and salaries are taxed on a monthly basis
  • Partnership income is taxed on an annual basis
  • Other income such as investment income is taxed
    on a transaction basis, i.e. taxed each time when
    the income is received
  • Dividends, interest and capital gains are subject
    to income tax at 20
  • Capital gains from public stock and mutual fund
    investment is currently exempt from income tax
  • Insurance payment is tax exempt

PRC Taxation on Individuals
  • No exit tax on changing tax residency
  • No gift tax
  • No estate tax
  • No rules on trust taxation

Introduction to outbound investments
  • Current state of outbound investments
  • Total investment amount now exceeds US300
    billion (including both new investment and
    dividend reinvestment), which makes China the
    fifth largest capital export country (after the
    US, Germany, France and HK)
  • Investments in energy, natural resource and
    financial industry continue, but investments into
    other sectors such as manufacturing, logistics,
    technology, retail, agriculture, luxury brand,
    tourism, and entertainment grow very fast
  • Players now include many private held companies
    and investment funds
  • Investment destinations are all over the world,
    including developed countries

Introduction to outbound investments
  • Choice of legal entity for outbound investments
  • Branch office (not a legal person)
  • No deferral of the taxation in China
  • Profits of a foreign branch can be used to offset
    with domestic losses, but the losses of a foreign
    branch cannot be used to offset domestic profits
  • Subsidiary (a legal person)
  • Deferral of Chinese taxation until the
    distribution of dividends
  • Partnership (not a legal person)
  • No deferral of the taxation in China
  • People are not very familiar with this type of
    legal vehicle
  • Investing through an intermediate holding company
  • Typical structure for cross-border investment
  • Tax deferral exit flexibility
  • Enjoy treaty based lower withholding tax on

Common Corporate Tax Issues regarding
Cross-border Investments
  • Foreign incorporated Chinese tax resident
  • A foreign incorporated company is treated as a
    Chinese tax resident if its effective management
    is exercised in China
  • The four criteria under Circular 82
  • The senior management officers reside in China
    and perform their duties mainly in China
  • The finance decisions and human resource
    decisions are made or approved by the personnel
    in China
  • The main assets, accounting books, corporate
    seals, and the minutes of the board of directors
    and the shareholders are located in China
  • Half or more than half of the directors or senior
    officers who have voting power reside in China
  • It is not clear if similar criteria will apply to
    individual owned foreign entities

Common Corporate Tax Issues regarding
Cross-border Investments
  • Consequences of being a Chinese tax resident
  • The dividend/interest/royalty paid to a
    non-Chinese shareholder is subject to a 10
    Chinese withholding tax
  • The sale of the equity interest in such a company
    is subject to a 10 Chinese capital gains tax
    (see the case below)

Chinese Tax Resident - Beijing Case
  • S Co. is a leading telecom company in the United
    Kingdom and T Co. is a red chip company
    registered and listed in Hong Kong
  • As a strategic investor, S Co. purchased a 2.5
    equity interest in T Co. at USD 2 billion in 2000
  • S Co. purchased more equity in T Co. later and
    its total interest in T Co. reached 3.2
  • S Co. sold its equity interest on September 8,
    2010 for a gain of USD 3.3 billion
  • The Chinese tax authorities found the sale
    taxable in China, because T Co. should be
    considered a Chinese tax resident under
    Guoshuihan 2009 No. 82
  • On October 27, 2010, a capital gains tax of RMB
    2.2 billion was paid to the Chinese tax

S Co.
United Kingdom
Hong Kong
T Co.
S Co.
United Kingdom
Hong Kong
T Co.
Common Corporate Tax Issues regarding
Cross-border Investments
  • Controlled foreign corporations (CFCs)
  • Article 45 of the PRC Enterprise Income Tax Law
  • With respect to enterprises that are located in
    tax jurisdictions where the effective tax rate is
    significantly lower than that of other tax
    jurisdictions as provided for in Paragraph 1 of
    Article 7 and are controlled by Resident
    Enterprises or controlled by Resident Enterprises
    and resident individuals, the share of profits
    attributable to the Resident Enterprises shall be
    booked as current year taxable income of the
    Resident Enterprises, if the profit is either not
    distributed or incompletely distributed absent a
    reasonable business operation need.
  • Definition of a CFC
  • Is a foreign company 100 owned by a Chinese
    individual a CFC?
  • How is the effective tax rate defined?

Common Corporate Tax Issues regarding
Cross-border Investments
  • Controlled foreign corporations (CFCs)
  • Consequences of becoming a CFC
  • Immediately taxable at the Chinese corporate
    shareholder level
  • Exceptions
  • CFCs located in a country listed on the White
  • Currently 13 countries
  • Companies that mainly conduct active trade or
  • CFCs with annual profit of less than RMB 5

Common tax issues regarding outbound investments
  • Other anti-avoidance rules
  • Transfer pricing rules in China and the
    destination country
  • Chinese general anti-avoidance rule
  • Other anti-avoidance rules in the destination
  • Thin capitalization rules
  • Anti-treaty shopping rules

Common tax issues regarding outbound investments
  • Foreign tax credit limitation
  • Per-country limitation
  • Only the income and losses from the same country
    can be offset with each other
  • Three-tier limitation
  • The credit is limited to three tiers below the
    Chinese parent

Common tax issues regarding outbound investments
Per-country limitation
Three-tier limitation
  • The tax paid in HK and the
  • tax paid in the US cannot be blended

  • The tax paid in the US cannot be credited

Common tax issues regarding outbound investments
Three-tier limitation issue
  • If HK is a partnership or a Chinese tax resident,
    can this solve the three-tier limitation issue?

Tax planning for outbound investments
  • Preparation before the investment
  • Understand the tax systems in China and the
    destination country
  • Have a big picture and be forward-looking
  • Leave planning flexibility for future investment
  • Use professional help

Tax planning for outbound investments
  • Effective use of tax treaties
  • Reduce the destination countrys withholding tax
    on dividends, interest and royalties
  • Reduce the destination countrys capital gains
    tax on exit
  • Save tax through the avoidance of a permanent
  • Use the tax sparing credit to truly enjoy the tax
    incentives offered by the destination country
  • Use the mutual agreement procedure to solve the
    tax disputes with the destination country

Tax planning for outbound investments
  • Holding company planning
  • Investing through a third country holding company
  • E.g. China-Cyprus-Europe, China-Singapore-Indonesi
    a, China-HK-Luxembourg-Canada, etc
  • Using a regional holding company or global
    holding company to invest
  • E.g. a regional holding company in Cyprus, HK or
  • Pros and cons of using a tax haven holding

(No Transcript)
Private wealth planning Other PRC CONSIDERATIONS
PRC Trust Law
  • PRC Trust Law became effective on Oct 1, 2001 and
    is similar to the trust laws of many other
  • However, there is a fundamental difference
    between a PRC trust and a foreign trust, i.e.
    whether or not the legal title of the trust
    assets is transferred to the trustee is not clear
    under the PRC trust law
  • A PRC trust is mostly used as an asset
    investment/management tool currently

Dealing with an Offshore Trust
  • Is it recognized under the PRC law?
  • Does the transfer of assets require any PRC
    government approval (including foreign exchange
  • Offshore assets
  • Onshore assets

Other PRC Considerations
  • Matrimonial property
  • Community property Property acquired by husband
    and wife during marriage is jointly owned
  • Other assets are generally personal properties
  • Marital agreements are recognized
  • Wills are recognized
  • Statutory inheritance order in the absence of a
  • Estate first goes to Spouse, children and
  • If there is no first tier, estate goes to
    siblings, grandparents and grandchildren
  • Equal distribution within each tier
  • No probate required

Tax Issues regarding Trusts
  • There are no rules on trust taxation
  • No rules on putting assets into the trust
  • No rules on distributing income/assets to the
  • No rules on holding assets and income produced by
    the underlying assets
  • No rules on tax reporting

Using Trusts
  • Tax
  • Asset Protection
  • Succession Planning
  • Flexibility in Future Planning
  • Employee Benefit Planning

Typical Structure
Tax Without Trust
Distributions to major shareholders or families
PRC individual income tax at 20
Holdco 1 PRC EIT at 25 if management is
controlled by PRC resident.
Distribution should be structured to attract no
Distribution should be structured to attract no
Distribution withholding tax at 5 or 10
(depending on jurisdiction of foreign Holdco)
Tax Without Trust
Tax With Trust
Distribution to major Shareholders or families
NO PRC tax
Trust No PRC tax
Holdco 1 NO PRC tax because it is not managed or
controlled by a PRC resident
Distribution should be structured to attract no
Holdco 2 NO PRC tax because it is not managed or
controlled by a PRC resident
Distribution should be structured to attract no
Distribution should be structured to attract no
Distribution withholding tax of 5 or 10
(depending on jurisdiction of foreign Holdco)
Tax With Trust
For every 100 distributed from China, 90 - 95
net is received. Calculated as 100(1-5 or 10)
Asset Protection
  • Protect family asset against
  • Creditors
  • Beneficiaries spouses
  • Other related claimants
  • Settlors spouse - matrimonial property on
  • "Ringfence" beneficiaries

  • Unify majority shareholding
  • Unify management and control
  • Protect control block value
  • Separate ownership from control and economic
  • Provide flexibility in determining management and
  • Beneficiaries can enjoy economic benefits WITHOUT
    dilution of value or control

  • Can add or remove beneficiaries as determined by
    settlor or as planned
  • Can adjust to changes in
  • Family composition
  • Tax residence of beneficiaries
  • Laws

Employee Benefit Plans
  • Allow employees to benefit based on shares
    WITHOUT having to open brokerage accounts
  • Individual income tax neutral
  • Enterprise income tax neutral
  • Company ensures compliance for tax and
    withholdings on payments to employees

Disclosure Requirements
  • Add additional layer for reporting
  • Need coordination
  • Timing of reports
  • Consistency of reports
  • BUT trustee can handle reporting obligations for

  • Need to put personal planning structure in place
    in coordination with pre-IPO reorganization for
  • If NOT done BEFORE IPO, the transaction will be
    subject to lock-up, general offer and additional
    disclosure requirements

Examples of Offshore Listings with Trusts
  • SOHO China Limited (HK Stock Code 410)
  • SITC International Holdings Company Ltd. (HK
    Stock Code 1308)
  • Goodbaby Holdings Ltd. (HK Stock Code 1086)
  • Trony Solar Holdings Company Ltd. (HK Stock Code
  • Sateri Holdings Ltd. (HK Stock Code 1768)
  • China ZhengTong Auto Services Holdings Limited
    (HK Stock Code 1728)
  • Greatview Aseptic Packaging Co. Ltd. (HK Stock
    Code 468)
  • Sihuan Pharmaceutical Holdings Group Ltd. (HK
    Stock Code 460)
  • International Taifeng Holdings Ltd. (HK Stock
    Code 873)
  • Costin New Materials Group Ltd. (HK Stock Code
  • E-Commerce China DangDang (NYSE Stock Symbol
  • Soufun Holdings Limited (NYSE Stock Symbol SFUN)
  • JinkoSolar Holding Co. Ltd (NYSE Stock Symbol
  • Camelot Information Systems Inc. (NYSE Stock
    Symbol CIS)
  • China Lodging Group Limited (NASDAQ Stock Symbol
  • Shanda Interactive Entertainment Ltd (NASDAQ
    Stock Symbol SNDA)
  • Vimicro International Corporation (NASDAQ Stock
    Symbol VIMC)

Who We Are
  • Peter Guang Chen
  • Peters practice covers all tax aspects of
    cross-border investments and transactions,
    investment structuring and restructuring, MA,
    financing, pre-IPO restructuring, transfer
    pricing, and tax planning for private individuals
  • Peter is both a certified public accountant and
    an attorney with more than 25 years of
    experience. His has advised China , Hong Kong
    and US corporations on their inbound and outbound
    transactions China and international tax issues,
    investment structuring, regulatory, and business
    issues mergers , acquisitions and the
    reorganizations of multinationals in China and
    the Asia Pacific region. He has represented
    companies and individuals to resolve tax disputes
    with tax authorities in China and the US.
    Previously, Peter was a with a major economic
    consulting firm and also was a tax partner at
    Deloitte, where he was responsible for the China
    Desk in NYC, and served as China leader of the
    Deloitte International Core of Excellence. He is
    fluent in English and Chinese (Mandarin,
    Shanghai, and Cantonese dialects).
  • .
  • 852 2298.7637

Who We Are
  • Clifford S.M. Ng
  • Clifford is a partner in Zhong Luns Hong Kong
    office. He has been working with some of Asia's
    leading business families for over 20 years.
    Clifford started his practice in Canada and
    returned to Hong Kong in 1995. He provides
    strategic advice to private clients including
    major shareholders of listed companies to address
    asset preservation, corporate, securities,
    succession and tax issues.
  • Clifford is recognized by Chambers as one of the
    leading private client lawyers in China.
  • Clifford is a solicitor in Hong Kong, England and
    Wales and a barrister and solicitor in British
    Columbia, Canada. Clifford graduated with a
    Bachelor of Arts degree in Economics from the
    University of British Columbia. He obtained his
    LL.B from Dalhousie University, Canada. Clifford
    articled and practiced with one of Canada's
    leading firms before moving to that firm's Hong
    Kong office in 1995. He practiced with a global
    firm in Hong Kong from 2003 leading their Asia
    offices until 2011 when he joined Zhong Lun.
  • 852 2298 7603

Who We Are
  • Yongjun Peter Ni
  • Peters practice covers all tax aspects of
    cross-border investments and transactions, with a
    focus on market entry and exit strategies,
    investment structuring and restructuring, MA,
    financing, pre-IPO restructuring, import and
    export, transfer pricing, tax-efficient supply
    chain management, tax dispute resolution,
    executive compensation, and private wealth
  • Peter is recognized by Chambers as one of the
    leading tax lawyers in China.
  • Peter is the head of Zhong Lun Law Firms tax
    practice. Before joining Zhong Lun, he led White
    Cases Greater China tax practice. Prior to
    that, he led the International Tax Practice of
    Ernst Young China. Peter has more than 15 years
    of international tax experience, including nine
    years in the US. Trained as a lawyer, he is able
    to provide tax advice in the proper legal
    context. Peter has been ranked as a Leading
    Individual in China Tax by many international
    directories. Peter graduated from Harvard Law
    School, New York University School of Law and
    Fudan University in China. He is qualified to
    practice law in both the US and China.

  • 8621 6061 3568

Zhong Lun Law Firm
  • Zhong Lun was founded in 1993 as one of the first
    private partnership firms in China. Since then,
    Zhong Lun has emerged as one of Chinas leading
    law firms with approximately 800 lawyers in
    offices in Beijing, Shanghai, Shenzhen,
    Guangzhou, Wuhan, Chengdu, Hong Kong and Tokyo.

Zhong Lun was named by Chambers Asia as National
Law Firm of the Year for China for 2011
  • Major Practices Areas include
  • Banking and Finance
  • Competition/Antitrust
  • Dispute Resolution
  • Foreign Direct Investment
  • Intellectual Property
  • Mergers and Acquisitions
  • Real Estate and Construction
  • Structured Finance and Securitization
  • Bankruptcy and Corporate Reorganization
  • Corporate Finance and Capital Markets
  • Employment

Zhong Lun Law Firm
  • International Financial Law Review The Guide to
    the Worlds Leading Financial Law Firms 2012
  • Tier One Firm in capital markets, MA and private
  • Tier Two Firm in banking and project financing
  • Top rankings from Chambers and Partners
  • Winner, International Trade Law Firm (Chambers
    China Awards 2011)
  • Winner, Real Estate Law Firm (Chambers China
    Awards 2010, 2011)
  • China Law Firm of the Year 2011 (National) at
    the Chambers Asia Pacific Awards 2011.
  • Banking and finance (band 1)
  • Capital markets securitization and structured
    finance (band 1)
  • Competition/antitrust (band 1)
  • Construction (band 1)
  • Corporate/M A (band 1)
  • International trade (band 1)
  • Private equity (band 1)
  • Real estate (band 1)
  • Restructuring insolvency (band 1)
  • IT, telecommunications, media and entertainment
    (band 1)
  • Capital markets debt securities (band 2)
  • Asia Law and Practice Leading Lawyers (2007-2010)
  • A number of Zhong Lun partners were rated Leading
    Lawyers for several consecutive years
  • Excellent results in ChiNext Listings
  • As at 31 October 2010, Zhong Lun acted for 13
    enterprises in applying for listing on the
    ChiNext (the growth enterprise market of Shenzhen
    Stock Exchange), 12 of which have been approved
    by the China Securities Regulatory Commission
    (CSRC), which earned Zhong Lun a No.2 position in
    terms of market share among law firms. According
    to ChiNext statistics 2010, Zhong Lun also has
    the highest rate of ChiNext listing application
  • Pacific Business Press (PBP) China Best Real
    Estate Law Firm Award
  • One of the Best Real Estate Law Firms of China,
    Asian-Counsel Firms of the Year 2009
    Representing Corporate Asia Survey
  • Practical Law Company (PLC) Highest Ranking in
    the China Region
  • Zhong Luns real estate practice was awarded the
    highest ranking in the China region for the year
    2009/2010. Zhong Lun was the only PRC-based law
    firm among the 4 recommended firms.

Our Tax Practice and Private Client Practice
Our Private Client Practice As the private sector
grows within the Chinese economy, the planning
for private wealth will become more important for
entrepreneurs and business people in China.
Zhong Lun is unique among domestic firms with a
dedicated private client practice focused on the
issues faced by high net worth clients. We
advise clients on asset protection, succession
planning, philanthropy, business continuation and
governance, tax and other issues. Through our
Hong Kong office, we also advise clients on
compliance regimes for securities regulations
and tax and other laws applicable to listings
overseas. Our professionals have extensive
experience working with business people with
family members, businesses and assets in
different countries under different legal
regimes. We work with leading international
financial institutions and advisors around the
world to ensure families achieve their business
and family objectives.
  • Our Taxation Practice
  • Zhong Lun is one of the very few law firms in
    China that offer comprehensive tax services with
    a focus on international tax. Our tax lawyers
    have extensive experience on cross border as well
    as domestic transactions in China and overseas.
  • Zhong Luns tax services cover all the areas
    related to cross-border investments and
    transactions, with a focus on
  • Tax planning for private clients and corporate
  • Investment structuring
  • Restructuring and MAs, including pre-IPO
  • Financing structuring
  • Tax efficient supply chain management planning
  • Tax advisory services on day to day company
  • Tax planning for import and export
  • Transfer pricing
  • Tax dispute resolution

Thank You