Articles

Tax Advisory Department

Tax Advisory Department

By Anna Chan

With Hong Kong being a signatory to the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information (“MCAA on AEOI”) and the Convention on Mutual Administrative Assistance in Tax Matters (“Convention”) entering into force in Hong Kong, Hong Kong has started exchanging financial account information with 41 jurisdictions commencing from 1 September 2018, including United Kingdom, France, Germany, Australia, Canada, Singapore and Japan.

This means the information of account holders who are subject to taxation as a resident in other jurisdictions other than Hong Kong including interest income, dividend income, gross proceeds from the sale of financial assets would be provided to the tax authorities of the other jurisdictions under the Automatic Exchange of Financial Account Information (“AEOI”) regime. Please refer to our Article “Is your personal data at stake because of the increased transparency in tax administration through Automatic Exchange of Information?” for a detailed discussion of the AEOI regime.

How it works?

(1) The Hong Kong Inland Revenue Department (“IRD”) has established a dedicated platform, i.e., the AEOI Portal, for reporting financial institutions (“FIs”) to electronically submit notifications and furnish Financial Account Information Returns for reporting the required information of reportable accounts.

(2) The IRD will exchange the financial account information collected from the reporting FIs with relevant jurisdictions via the Common Transmission System established by the OECD.

OLN’s observation

In the past Hong Kong had relied on a bilateral approach which involves signing bilateral Competent Authority Agreements (“CAA”) for AEOI with other jurisdictions that already have a comprehensive avoidance of double taxation (“CDTA”) or a tax information exchange agreement (“TIEA”) with Hong Kong. As at 13 September 2018, Hong Kong had 40 CDTAs and 7 TIEA, and signed 16 bilateral CAAs for AEOI. Hong Kong’s move of being a signatories to MCAA on AEOI and having the Convention entering into force in Hong Kong has demonstrated Hong Kong’s commitment to enlarging the scope of the exchange of tax information in the international community and to comply with the OECD’s requirement to have the first exchange of AEOI with a wide network of partners by September 2018.

With the continuous trend of the exchange of tax information between the tax authorities, taxpayers, in particular for the taxpayers that have presence in various jurisdictions, should carefully assess their tax obligations to ensure compliant with the tax laws of the relevant jurisdictions.

OLN is equipped to advise clients on tax issues arising from various jurisdictions. If you have any questions regarding the above or on any tax issues, please contact one of the members of the tax advisory team.

by Anna Chan

The State Administration of Taxation of China (“SAT”) recently released Public Notice [2018] No. 9 (“Public Notice 9”) which provides additional guidance in assessing the beneficial ownership for treaty purposes to be aligned with the international standards.

Impact of Public Notice 9

Public Notice 9 replaces Guoshuihan [2009] No. 601 (“Circular 601”) and Public Notice [2012] No. 30 (“Public Notice 30”) and has come into effect from 1 April 2018. The impact of Public Notice 9 are as follows:-

(i) Amendments to the unfavourable factors as listed in Circular 601

(ii) Extension to the Safe Harbour Rule for dividends as listed in Public Notice 30

Distribution of income: The recipient of the income is obligated to distribute more than 50% of such income (as opposed to 60% as stated in Circular 601) to a resident(s) of a third jurisdiction within 12 months after the receipt of such income.

In addition, the term “obligated” is now more broadly defined as “including having contractual obligation or actual payment even if no contractual obligation

the following recipients of China-sourced dividends will automatically recognized as beneficial owners without the need to undergo an assessment based on the unfavourable factors:-

(1) Government of the contracting state (an extension from Public Notice 30);

(2) Company that is a resident of the contracting state and listed in the contracting state;

(3) Individual who is a resident of the contracting state (an extension from Public Notice 30); and

(4) Recipient that is directly or indirectly wholly owned by one or more parties listed above. In cases of indirect ownership, the intermediary shareholders must be either Chinese residents or residents of the contracting states (unless it falls into either the “same country rule” or “same treaty benefit rule” as detailed below).

Substantive business activities: Public Notice 9 now broadly states that it would be an unfavourable factor if the business activities conducted by the recipient of the income do not constitute substantive business activities, which is determined based on the functions performed and the risks assumed by the recipient

No tax in residence jurisdiction: Same as Circular 601, the income is not subject to tax or it would be taxed at a very low effective tax rate in the residence jurisdiction of the recipient

Existing of another loan agreement: Same as Circular 601, in addition to the relevant loan agreement of which interest is derived, the creditor has another loan agreement or deposit agreement with a third party with similar terms such as the loan amount, interest rate and date of execution

Existing of another agreement regarding ownership or right to use: Same as Circular 601, in addition to the relevant agreement in relation to copyright, patents or technology etc. of which royalty is derived, the recipient of the royalty has another agreement with a third party regarding the ownership or right to use the relevant copyright, patents or technology etc. (this factor remains the same as the one listed in Circular 601)

 

Our observations and application

The extension of the safe harbour rule provides more certainty to dividend recipients without the need to undergo the assessment based on the unfavourable factors as SAT considers that there should be less risk in treaty abuse.

For example, entities / individuals can now enjoy treaty benefits under the introduction of the “same country rule” or “same treaty benefit rule” as detailed below:-

(1) Same country rule

 Screen Shot 2018 08 15 at 09.19.38             

(2) Same treaty benefit rule

Screen Shot 2018 08 15 at 09.07.54            

However, the unfavourable factors now have more stringent requirements in place. For example:-

-        the percentage of the income to be distributed has now dropped from 60% to 50%;

-        the term “obligated” is explicitly defined in Public Notice 9 as “including having contractual obligation or actual payment even if no contractual obligation”; and

-        replacing the factor that “the recipient conducts no or very few other business activities” to “do not constitute substantive business activities”.

Entities / individuals with China-sourced passive income should carefully review their existing investment structures to ensure that they could enjoy or continue to enjoy the treaty benefits under Public Notice 9.

OLN provides a full range of tax advisory services. If you have any questions regarding the above or on any tax issues, please contact one of the members of the tax advisory team.

How would the new law on Significant Controllers Register concern you?

By Anna Chan and Victor Ng

 

The Anti-Money Laundering and Counter-Terrorist Financing (Financial Institution) (Amendment) Ordinance 2018 (the “AML (Amendment) Ordinance”) and the Companies (Amendment) Ordinance 2018 (the “Companies (Amendment) Ordinance”) has come into effect on 1 March 2018.

The SCR regime

The Companies (Amendment) Ordinance imposes a new obligation on HK companies to identify its beneficial ownership and members with significant control and to maintain a Significant Controller Register (“SCR”) which is to be kept together with the company kits and other registers such as the Registers of Members and Directors. If a company fails to comply with any of the requirements under the new SCR regime, the company and each of its responsible persons commit and offence and each will be liable to a fine of HK$25,000 and a further daily fine HK$700 whenever applicable. Please refer to our firm’s article on “The Companies (Amendment) Ordinance 2018” for more details.

There are a few salient points to note in relation to SCR:-

  • SCR requirement is not only applicable to limited companies but also to companies limited by shares, companies limited by guarantee or unlimited companies. Only companies listed on the Hong Kong Stock Exchange (but not listed overseas) are exempted.
  • SCR is not for public inspection. However, the SCR has to be ready for inspection by law enforcement agencies, including but not limited to the Hong Kong Police Force, the Customs and Excise Department and the Inland Revenue Department (the “IRD”).
  • It is not specified in the Companies (Amendment) Ordinance as to whether information contained in the SCR will be surrendered by the law enforcement agencies to tax authorities in other countries. It shall, however, be noted that as part of our tax reform initiatives, Hong Kong has entered into numerous Automatic Exchange of Information agreement (the “AEoI”) with other jurisdiction to exchange information with overseas tax authorities. More AEoIs with others are expected to come. Assuming the UK’s HM Revenue & Customs, which is already an AEoI partner of Hong Kong, requests the IRD to surrender information regarding the ultimate beneficiar(ies) or significant controller(s) of a HK company, IRD may theoretically forward the information gathered from the company’s SCR to the HMRC. To know more about AEoI, please refer to our related article “Is your personal data at stake because of the increased transparency in tax administration through Automatic Exchange of Information (“AEOI”)?
  • The new SCR regime also requests company to have at least one designated representative whose role is to provide assistance to the Companies Registry and the law enforcement agents on SCR related matters. The Companies Registry has made clear that there would be no personal liability associated with acting as a designated representative of an Applicable Company.

AML (Amendment) Ordinance

Apart from imposing the new requirement on Trust or Company Service Providers (the “TCSP”) to obtain a license from the Companies Registry for carrying on their business, the AML (Amendment) Ordinance also extends the obligations to conduct customer due diligence (“CDD”) and to do records-keeping to the legal professional, accounting professional, real estate agents and TCSP licensees.

Since 1 March 2018, enhanced CDD measures shall be implemented by the TCSPs to (1) identify and verify the identity of their customers and their beneficial owners; (2) obtain information on the purpose and the intended nature of the business relationship before establishing business relationship with their customers; and (3) identify and verify the identity of the person purporting to act on behalf of their customers.

Accordingly, companies shall be prepared for more KYC and due diligence from its company secretarial service providers in the future.

What can OLN do for you?

OLN can help by reviewing your companies’ structure and identifying the significant controllers of your companies to ensure compliance with the new SCR regime. Please feel free to contact our Anna Chan at anna.chan@oln-law.com or our Victor Ng at victor.ng@oln-law.com

Does the Hong Kong 2018/2019 Budget have any impact on you and your business?

By Anna Chan and Victor Ng

 

 

The Financial Secretary of Hong Kong (“FS”), Mr. Paul Chan Mo-po, announced his budget for 2018/19 yesterday, providing a blueprint for the long-term development of Hong Kong. As explained by FS, the main objectives to be achieved are (1) to diversify Hong Kong’s economy; (2) to invest for the future; and (3) to share with the people of Hong Kong at large the fruitful economic achievements of Hong Kong for the past few years.

Some of the key features are outlined below:-

 

  Key features OLN’s observations/ comments
Diversified Economy
Innovation and Technology
  • Set aside HK$20 billion for the first phase of the Hong Kong-Shenzhen Innovation and Technology Park in the Lok Ma Chau Loop.
  • Inject HK$10 billion into the Innovation and Technology Fund to support applied research and development.
  • Earmark HK$10 billion for the establishment of two research clusters on healthcare technologies and on artificial intelligence and robotics technologies.
  • Allocate HK$10 billion to upgrade facilities of the Science Park and enhance support for enterprises in the Park.
  • Allocate HK$200 million to Cyberport to enhance support for start-ups.

We welcome the government’s recognition for and the setting aside of funds for the development of innovation and technology, which shall be a driving force for the Hong Kong’s economy.

We believe that with properly formulated policies, the start-ups and enterprises in the industry will have more funding and incentive to undergo more research and development and make Hong Kong a more competitive region for healthcare technologies and on artificial intelligence and robotics technologies.

We hope to see more favourable tax treatments to be in place so that the intellectual property rights resulting from the research and development would stay in Hong Kong and further diversify the economy.

Please refer to our article “How to Catch the Candies for Start-ups in Innovation and Technology under the Budget 2018-2019” for a more detailed discussion.

Tourism

  • Allocate HK$226 million for the Hong Kong Tourism Board to implement the Development Blueprint for Hong Kong’s tourism industry to broaden markets and attract high value-added overnight visitors.

Whilst we appreciate the government and the industry’s effort in attracting more visitors to Hong Kong (especially those high value-added overnight visitors), we await to any concrete plans or measures to resolve some of the key issues facing hotel and tourism development in Hong Kong, for example, human capital, infrastructure, tourism attractions and activities.

Trading and Logistics Industry

  • Expand trade, investment and tax treaty networks to open up new markets.

We are happy to see the government’s continuous emphasis and effort on expanding Hong Kong’s tax treaty networks, as evidenced by the many DTAs or double tax agreements concerning aviation and shipping income over the past few years.

We expect to see Hong Kong to conclude and sign more DTAs with countries along the Belt and Road to provide a more favourable tax environment for Hong Kong enterprises doing business in those countries.

Business and Professional Services

  • Enhance the network of Economic and Trade Offices to .
  • Provide a total of HK$250 million to Hong Kong Trade Development Council to assist local enterprises in seizing opportunities arising from the Belt and Road Initiative and Bay Area, and to promote development of e-commerce.

We strongly believe that Hong Kong enterprises, especially those in the finance, accounting, legal, engineering, management and architecture sectors can substantially benefit from Belt and Road initiatives and opportunities.  

We hope to see more tax treaties and investments agreements to be concluded and signed by Hong Kong and those countries along the Belt and Road. Hong Kong enterprises can play a major role in those initiatives.  We also expect to see more companies to be set up by foreign investors in Hong Kong who wish to benefit from those initiatives.

Creative Industries

  • Inject HK$1 billion into the CreateSmart Initiative to support development of the creative industries.
Please refer to our observations/ comments above.
Caring and Sharing

Abolishing the MPF “offsetting” arrangement

  • The Government is striving to put forth as soon as possible a proposal to effect the abolition of the MPF “offsetting” Severance Payment or Long Service Payment against MPF Contributions arrangement and will set aside HK$15 billion in relation to its financial commitment.
Hong Kong employers shall keep an eye on the continuous development on this topic as it might potentially increase their labour costs and evaluate the impact sooner rather than later.
Reducing Tax Burdens on Individuals
  • Various tax measures to alleviate the tax burden on salary earners.

Please refer to our article “Are you getting your slice of the “generous” tax measures as outlined in the 2018/2019 Hong Kong Budget?for a detailed discussion of the various tax measures.

Environment

Tax Concessions for Eligible Energy Efficient Building Installations

The Government will enhance tax concessions for capital expenditure incurred by enterprises in procuring eligible energy efficient building installations and renewable energy devices by allowing tax deduction to be claimed in full in one year instead of the current time frame of five years.

We welcome the incentivized measure on “green operation” and urge the government to provide more incentives to encourage the Hong Kong business sector to have a “green operation”, including, for example, by providing extra tax deduction or allowances.

 

OLN has tax advisors who have dual qualification in both accounting and law. We are happy to assist on any matters as mentioned above.

How to Catch the Candies for Start-ups in Innovation and Technology under the Budget 2018/2019

By Anna Chan and Victor Ng

 

In recent years, the Hong Kong Government has shown a determination to promote the development of start-ups in Hong Kong. One of the notable measures could be seen in the Chief Executive’s 2017 Policy Address (CE 2017 Policy), where the Hong Kong Government proposed a new two-tiered profit tax regime for enterprises. Under the new regime, the profit tax rate for the first $2 million of profits of enterprises will be lowered to 8.25%, which is half of the standard profits tax rate of 16.5%. The said reform is now part of the Inland Revenue (Amendment) (No. 7) Bill 2017 that was gazetted on 29 December 2017 and is pending the Second Reading at the Legislative Council.

In the Budget 2018-2019, the Hong Kong Government further recognized the innovation and technology (I&T) as one of the major driving forces of the global economic development. With a surplus of $138 billion in 2017-2018, the Hong Kong Government made a bold commitment and earmarked more than $50 billion to support I&T development both in Hong Kong and the greater Guangdong-Hong Kong-Macau Bay Area with Hong Kong taking on a central role. Below we will look at some of the upcoming opportunities available for I&T start-ups to kick-start their businesses.

Developing the Hong Kong-Shenzhen Innovation and Technology Park

  • $20 billion will be spent on developing the first phase of the Hong Kong-Shenzhen Innovation and Technology Park (HKSIT Park) in the Lok Ma Chau Loop.
  • The HKSIT Park will be administered by a subsidiary of the Hong Kong Science and Technology Park Corporation (HKSTPC).
  • The HKSIT Park will provide ample office and research and development (R&D) space for I&T enterprises
  • We anticipate that the HKSIT Park will adopt similar funding schemes and incubation programmes currently in place at the Hong Kong Science and Technology Park (Science Park) to attract I&T talents and entrepreneurs.

 lok ma chau

Illustration of the Lok Ma Chau Loop.

Expanding the Innovation and Technology Fund

  • $10 billion will be injected into the Innovation and Technology Fund (ITF), which provides various forms of funding schemes to encourage Hong Kong companies to develop their technological capabilities and introduce business innovations.
  • The ITF offers a wide range of I&T programmes that are available to start-ups, including the following:-
    • the Enterprise Support Scheme, which offers up to $10 million funding support for each approved project with further financial assistance to hire up to 2 additional staff;
    • the Technological Start-up Support Scheme for Universities, which provides funding up to $1.2 million per enterprise per year (up to three years) to universities to support their professors and students in starting technology businesses and commercialising R&D results;
    • the Patent Application Grant which provides funding support (up to $250,000 per application) for local enterprises which do not previously own any patent in any jurisdiction, among others, to apply for patents of their own technological inventions;
    • the University-Industry Collaboration Programme, which provides funding support for R&D studentship at local companies (up to $270,000 over three years per studentship), R&D collaboration projects between universities and private companies (up to 50% of the project costs), and industry-oriented R&D projects in the natural science or engineering fields (up to 50% of the project costs);
    • the Research and Development Cash Rebate Scheme, which provides cash rebate equivalent to 40% of the R&D expenditures to projects under the ITF or projects fully funded by the enterprise and conducted by designated local public research institutions;
    • the Technology Voucher Programme, which provides funding support to local enterprises for up to $200,000 per enterprise for technology consultancy, software purchase and subscription and project auditing needs. The eligibility requirements for this program has recently been relaxed; and
    • the Innovation and Technology Venture Fund, which is used to co-invest with partner venture capital funds in local I&T start-ups incorporated no more than 7 years prior to the application with a total number of employees (including those employed by subsidiaries) being less than 250.

Establishing Technology Research Clusters

  • $10 billion will be set aside to support the establishment of two research clusters on healthcare technologies and on artificial intelligence and robotics technologies.
  • It remains to be seen how the funding will be split between hardware and software development in these fields.

Science Park and Cyberport

  • $10 billion will be allocated to Science Park, with about $3 billion to be used for developing physical infrastructure and facilities while about $7 billion will be spent on strengthening tenant support and enhancing the existing incubation programmes, etc.
  • $200 million will be allocated to Cyberport to enhance support for start-ups and promote digital technology environment development. This will enable Cyberport to launch a new marketing support scheme for start-ups and increase the financial support under its incubation programme by 50 percent.
  • A further $100 million will be allocated to Cyberport to develop the Cyberport Arcade as an e-sports and digital entertainment cluster.

Tax incentives for R&D

  • At present, tax deduction for domestic R&D expenditure is 100 percent under s. 16B of the Inland Revenue Ordinance (Cap 112).
  • In conjunction with the ongoing profit tax reform, the Government is proposing further tax deduction for domestic R&D expenditure (300 percent tax deduction for the first $2 million qualifying R&D expenditure and 200 percent tax deduction for the remainder) incurred by local enterprises. Drafting of the legislation is underway.

Other Industry-specific Support

  • For the construction industry, an initial $1 billion in funding is proposed to be used set up a new Construction Innovation and Technology Fund to encourage enterprises and practitioners in the construction industry to upgrade their technological capabilities, both in terms of knowledge and equipment.
  • An $1 billion increase in funding to the CreateSmart Initiative (CSI) is proposed to encourage development of the creative industries, with one of the focuses being to assist start-ups. The funding is anticipated to help expand CSI’s incubation and business collaboration programs that are currently in place.

Conclusion

With a surge in I&T funding support, FinTech and other I&T start-up enterprises in Hong Kong are well positioned to both contribute to and benefit from Hong Kong’s strife to become a regional and international I&T hub. While the current trend lasts, start-ups are encouraged to grasp the opportunity to bring their business to the next level.

How OLN Can Help

At OLN, we offer one-stop services for fintech and other start-up enterprises. If you require any assistance in corporate and commercial advisory, tax planning, intellectual property protection or regulatory issues, please feel free to contact our partner, Anna Chan.

第1页 共3页