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Asia Newsletter
January 2013
C I VIL LAW N O TA RI E SATTORNEYS AT LAW TAX ADVISER S• •
The information below is produced by Loyens & Loeff in Singapore and Hong Kong. It is designed to alert those (interested in) doing
business in the Asian region to recent developments in the region. Such developments are discussed in brief terms and are based on
generally available information. The materials contained in this publication should not be regarded as a substitute for appropriate detailed
professional advice. The information below was assembled based on information available as at 31 December 2012.
1LOYENS & LOEFF Asia Newsletter – January 2013
China (PRC)In kind contributions to ForeignInvested Enterprises
• As of 22 October 2012, the Provisional Regulations on Equity
Capital Contributions to Foreign Invested Enterprises (“the
Regulations”) issued by the Ministry of Commerce entered into
force. The Regulations allow domestic or foreign investors to
make a capital contribution into a Foreign Invested Enterprise
(“FIE”, i.e. an enterprise incorporated in China with foreign
investment) by way of a contribution in kind of shares in a
domestic company. The Regulations apply to three types of
transactions. These are the contribution of equity in a domestic
company to (i) a newly incorporated FIE; (ii) an existing FIE;
and (iii) a non-FIE to convert that company into an FIE.
• Investors can only make such contributions if the following
requirements are met:
• the investor has full title to the equity interest in the subsidiary;
• the registered capital of the domestic company has been fully
paid-up;
• the equity interest is free of any pledge or other security
interest and has not been subjected to a court ordered freezing;
• the constitutional documents of the domestic company do not
prohibit or restrict the transfer of the equity interest;
• if the domestic company is an FIE, it must have passed its
annual inspection in the previous year;
• all corporate and governmental approvals required for the
transfer of the equity interest have been obtained; and
• the domestic company is not a real estate enterprise, a foreign
invested investment company or a foreign invested venture
capital (equity) investment enterprise.
• The shares being contributed must be valued by a licensed
valuator in China and the amount contributed to the registered
capital of the FIE by the shareholders may not exceed the value
on the report issued by the valuator. Such contributions and
other in kind, i.e. non-cash capital contributions may not exceed
70% of the FIE’s registered capital.
Administrative Review Committee of theSAT established
• On 26 October 2012, the Administrative Review Committee
(“Committee”) of the State Administration of Taxation (“SAT”)
was established. The Committee consists of 16 officials from
different divisions of the SAT and 8 external experts from
universities and tax firms. One of the main functions of the
Committee is to review taxpayers’ appeals on complex and key
tax issues.
New advance pricing agreements sign byBeijing tax authority
• It was reported by China Taxation News on 12 November
2012, after 4 rounds of negotiations in the past 3 years, that a
bilateral advance pricing agreement (“BAPA”) has been
concluded between Microsoft and the state/local tax authority
of the Haidian District of Beijing. In addition, the state/local
tax authority of the Chaoyang District of Beijing extended the
BAPA with Maersk, a wholly foreign owned company, for another
5 years. Both BAPAs provide the two companies certainty
about their profits allocation to China and the Chinese tax
treatment thereof. Until now, the (state) tax authority in Beijing
has concluded BAPAs with 3 companies.
New tax treatment on dividend income fromlisted company
• On 16 November 2012, the SAT, the Ministry of Finance
(“MOF”) and the Security Supervision Committee jointly issued
Caishui [2012] No.85 which will enter into effect as of 1 January
2013. It provides that dividends received by individuals from
companies listed on the Shanghai/Shenzhen Stock Exchange
are subject to 20% individual income tax on:
• 100% of the dividend income if the shares are held for 1
month or less;
2LOYENS & LOEFF Asia Newsletter – January 2013
• 50% of the dividend income if the shares are held for more
than 1 month but not more than 1 year; and
• 25% of the dividend income if the shares are held for more
than 1 year.
• Also it provides that dividends received by securities investment
funds from listed companies are subject to same individual
income tax treatment.
Securities Investment Funds Law amended
• On 28 December 2012 the amendment to the Securities
Investment Funds Law was approved which will enter into effect
as of 1 June 2013.
• Among others, the amendment brings privately offered funds
(“private funds”) within the scope of the regulation regime. As
a result, funds whose units are offered to no more than 200
qualified investors will become subject to regulations, be it less
stringent. For example, a private fund manager only needs to
register with the Fund Industry Association (“FIA”). After private
offering of a private fund, the fund manager should make a
filling at the FIA and the FIA will report to the Securities Regulatory
Commission (“SRC”) if the fund is qualified. Once approved
by the SRC, a private fund manager may also manage public
funds if certain conditions are met.
• The amendment also clarifies that publicly offered funds can
invest in derivatives determined by the SRC besides listed
shares and bonds and other form of securities regulated by the
SRC. By comparison, private funds are permitted to make
broader investments in publicly offered shares, bonds and fund
units, and other forms of securities and derivatives determined
by the SRC.
• Private equity funds and venture capital funds are not covered
by the amended law.
Supplementary notice to the VAT reform
• On 4 December 2012, the SAT and the MOF issued Caishui
[2012] No.86 as supplementary tax policy for the VAT reform.
Among others, it provides that:
• A zero VAT rate applies to transportation services provided
between mainland China and Taiwan/Hong Kong/Macau or
within Taiwan/Hong Kong/Macau by qualifying taxpayers
registered in the pilot areas;
• Immediate VAT refunds are available for domestic cargo
transportation, storage and loading services provided by
taxpayers registered in Dongjiang Bonded Port in Tianjin; and
• Shipping agency service falls within the scope of cargo
transportation agency service.
Treatment of overpaid VAT clarified inasset restructuring
• On 13 December 2012, the SAT issued the Notice [2012]
No.55 to clarify the treatment of overpaid VAT of a general
taxpayer in asset restructuring. If the general taxpayer transfers
all its assets, liabilities and personnel to another VAT general
taxpayer (“another taxpayer”) and cancels its tax registration
following procedures, its input VAT which has not been deducted
can be used by another taxpayer for deduction purpose. The
notice enters into effect as of 1 January 2013.
New deduction rules of individualincome tax of lawyers
• On 7 December 2012, the SAT clarified expense deduction
of lawyers for individual income tax purpose in the Notice
[2012] No. 53. Among others, for shared income received from
a law firm, the limitation on deduction is increased from 30%
to 35%. In addition, when calculating taxable income, the
deductible expense should be based on legal and effective
receipts. If no such receipts available, deemed expense will
be deducted at 8% for annual individual income less than
RMB 500,000; 6% for the income more than RMB 500,000
but less than 1 million; 5% for the income more than
RMB 1 million. The deduction rules have effect from 1 January
2013 to 31 December 2015.
International Tax Developments
• Cayman Islands. On 15 November 2012, an Exchange of
Information Agreement between the Cayman Islands and China
entered into force which will have effect as of 1 January 2013.
• Denmark. On 27 November 2012, Denmark ratified the new
China-Denmark tax treaty, which will replace the current
treaty between two countries once in force and effective. Under
the new tax treaty, dividend withholding tax may be further
reduced to 5%. Capital gains derived from shares are generally
allocated to the shareholder state, unless the shares derive
their value mainly from immovable property.
3LOYENS & LOEFF Asia Newsletter – January 2013
• Japan. On 4 December 2012, the Notice [2012] No.49 issued
by the SAT clarifies that two newly added taxes in Japan, the
special reconstruction income tax (“SRIT”) and the special
reconstruction corporation tax (“SRCT”), fall within the scope
of taxes covered under the China-Japan tax treaty. On 7
December 2012, the SAT further clarified in an interpretation
note that these two taxes can be credited against Chinese tax
under the double taxation avoidance article of the tax treaty.
SRIT applies on the base income tax liability or withholding tax
liability of Japanese taxable persons at a rate of 2.1%, from 1
January 2013 to 31 December 2037. SRCT applies on base
corporation tax liability of taxable companies at a rate of 10%
from 1 April 2012 to 31 March 2015. Both taxes were introduced
for the purpose of funding reconstruction after the earthquake
in 2011.
• Korea. On 29 October 2012, China and Korea signed a new
social security treaty, which will replace the current one once
it becomes effective.
• On 20 November 2012, it was announced that a trilateral free
trade agreement among Japan, China and Korea is under
negotiations.
• Sweden. It was reported on 26 November 2012 that a social
security treaty between China and Sweden is under negotiations.
Hong KongBuyer’s Stamp Duty on residential propertiesintroduced
• On 26 October 2012, the Hong Kong Government announced
that a Buyer’s Stamp Duty (“BSD”) will be introduced. As a
result, the Stamp Duty (Amendment) Bill 2012 was published
in the Gazette on 28 December 2012 which amends the Stamp
Duty Ordinance (“SD Ordinance”) to introduce such BSD on
residential property transactions.
• Upon the enactment of the legislation, BSD is charged at a flat
rate of 15% of the price of residential property if the property is
acquired by any person who is not a Hong Kong permanent
resident (“HKPR”) on or after 27 October 2012 including
foreigners, local and overseas companies, unless an exemption
applies. The BSD is on top of the existing stamp duty and the
Special Stamp Duty (“SSD”), if applicable.
• On 10 October 2012, the Government clarified the exemptions
for the newly introduced BSD. Among others, exemptions
include the acquisition of residential property by a HKPR jointly
with one/more non-HKPR close relatives (i.e. spouse, parents,
children, brothers and sisters) and transfer of residential property
to one or more non-HKPR close relatives.
• The current SD Ordinance provides relief to the transfer of
immovable property within a group of associated companies.
On 30 October 2012, the Government clarified that BSD is not
exempt if a company (i) transfers its residential property to its
subsidiary on or after 27 October 2012; and (ii) after that indirectly
transfers the property by selling the subsidiary’s shares to a
non-associated party within 2 years.
Special Stamp Duty amended
• The Stamp Duty (Amendment) Bill 2012 published on 28
December 2012 further increases the SSD by adjusting its rates
and extending the holding period.
• Previously SSD was payable if any residential property was
acquired on or after 20 November 2010, either by an individual
or a company (regardless of where it is incorporated), and resold
within 24 months, unless exemptions apply. Under the amended
SSD regime, for any residential property acquired by an individual
or a company on or after 27 October 2012 and resold within
36 months, new rates apply: 20% if the property has been held
for 6 months or less; 15% if the property has been held for
more than 6 months but for 12 months or less; or 10% if the
property has been held for more than 12 months but for 36
months or less.
Tax and stamp duty relief for Islamic bonds
• The Inland Revenue and Stamp Duty Legislation (Amendment)
Bill 2012 was gazetted on 28 December 2012. The proposed
amendments will provide for tax and stamp duty relief for
issuance of relevant Islamic bond products, as these transactions
would normally not have existed in a comparable conventional
bond structure of similar economic substance. The Bill will be
presented to the Legislative Council for first reading on 9
January 2013.
International Tax Developments
• Canada. On 11 November 2012, the Canada-Hong Kong tax
treaty was concluded in Hong Kong. Once in effect, the tax
4LOYENS & LOEFF Asia Newsletter – January 2013
treaty reduces Canada withholding tax on dividend to 5%/15%,
interest to 10% and royalties to 10%. An anti-abuse rule is
included in each of these articles. Capital gains derived from
shares are generally allocated to the shareholder state, unless
the shares derive their value mainly from immovable property.
• France. On 27 December 2012, Hong Kong sought clarification
from France that a Hong Kong resident company is exempt
from 25% French branch remittance tax on its income earned
in France under the dividend article of the France-Hong Kong
tax treaty.
• Qatar. In November 2012, Hong Kong and Qatar initiated the
first round of negotiations for a tax treaty.
• South Africa. On 5 November 2012, the first round of negotiations
for Hong Kong-South Africa tax treaty was initiated.
• Switzerland. On 15 October 2012, the Hong Kong-Switzerland
tax treaty entered into force. The tax treaty generally has effect
as of 1 January 2013 in Switzerland and as of 1 April 2013 in
Hong Kong. The tax treaty reduces Swiss withholding tax on
dividends to nil/10% and interest to nil withholding tax. Royalty
withholding tax in Hong Kong is reduced to 3% and Swiss capital
gains upon sale of Swiss shares is generally prohibited under
the treaty. A general anti-abuse rule is included in the treaty.
• EFTA countries. Following ratification by all parties, the free
trade agreement between Hong Kong and the Member States
of the European Free Trade Association (“EFTA”) entered
into force on 1 October 2012 for Iceland, Liechtenstein and
Switzerland, and on 1 November 2012 for Norway. This broad-
based agreement covers trade in goods, trade in services,
investment, intellectual property rights, government procurement,
competition and trade and environment. It is the third agreement
that EFTA concluded with an Asian partner, after Singapore
and South Korea.
IndiaTax residency certificate
• On 17 September 2012, the Government of India issued a
Notification prescribing the format of the Tax Residency Certificate
(‘TRC’) to be obtained by a non-resident assessee for claiming
any Tax Treaty benefits entered into by India.
• A new Rule 21AB has been inserted in the Income-tax Rules,
1962. The Rule provides that a duly verified certificate should
be obtained from the Government of the country or the specified
territory, of which the non-resident assessee claims to be a
resident for the purposes of tax, and shall contain the following
particulars, namely:
• Name of the assessee;
• Status (individual, company, firm etc.) of the assessee;
• Nationality (in case of individual);
• Country or specified territory of incorporation or registration
(in case of others);
• Assessee’s tax identification number in the country or specified
territory of residence or in case no such number, then, a
unique number on the basis of which the person is identified
by the Government of the country or the specified territory;
• Residential status for the purposes of tax;
• Period for which the certificate is applicable;
• Address of the applicant for the period for which the certificate
is applicable; and
• In addition to the above, the Rule also provides for a format
for the application to be made by an Indian resident for
obtaining a TRC for India to claim any benefits under the Tax
Treaty entered into by India.
Conditions for lower interest withholding taxrate of 5%
• Courtesy IBFD it was reported that the Indian Central Board
of Direct Taxes issued Circular No. 7 of 2012 dated 21 September
2012 in relation to foreign borrowings by Indian companies in
respect of the lowering of the withholding tax rate from 20%
to 5% on interest payments by Indian companies for borrowings
made in foreign currency, i.e. under a loan agreement or issue
of long-term infrastructure bonds. Previously, the approval of
the Central Government was required in respect of the borrowings
and the rate of interest to be paid on such borrowings. With
the issuance of this Circular, the Central Government provides
automatic approval (no specific approval required) to all
borrowings that satisfy the following conditions.
• In respect of borrowings under a loan agreement:
• it should take place on or after 1 July 2012;
5LOYENS & LOEFF Asia Newsletter – January 2013
• it should be in compliance with External Commercial
Borrowings (ECB) Regulations issued by the Reserve Bank
of India (RBI) and should be for the entire term of the loan
agreement;
• the loan agreement should not be a restructuring of an
existing agreement to avail of the benefit of a lower
withholding tax rate; and
• the borrowing Indian company should have obtained a Loan
Registration Number (LRN) issued by RBI.
• In respect of the issue of long-term infrastructure bonds:
• it should be authorized under ECB regulations;
• it should have an original maturity term of 3 years or more;
• the end use of the proceeds of such bond issue should
be for the infrastructure sector as defined under ECB
regulations; and
• the issuing Indian company should have a LRN issued
by RBI.
• The Central Government provides automatic approval for interest
rates which are within all-in-cost ceilings specified under ECB
regulations. In respect of borrowings that do not satisfy the
above conditions, approval for the benefit of section 194LC of
the ITA would be provided by the Central Government on a
case-by-case basis.
Anti-avoidance guidelines
• The second round of GAAR guidelines consultation has not
yet resulted in a final set of guidelines with respect to the
application of the new GAAR (General Anti Avoidance Rule) in
the Indian income tax law.
International Tax Developments
• UK. Courtesy IBFD it was reported that the India Income Tax
Appellate Tribunal (ITAT) delivered its decision on 21 September
2012 in the case of ADIT v. Maersk Line UK Ltd (ITA No.
2150/Kol/2009) that the exercise of dividend distribution by its
Indian subsidiary, though tax advantageous to the recipient,
cannot be termed as a sham transaction and the receipt of
those dividends cannot be re-characterized as sale consideration
of shares received in advance. The Taxpayer (i.e. Maersk Line
UK Ltd) had earned long-term capital gains on the sale of shares
of its wholly-owned Indian subsidiary to its group company as
a part of a reorganization process. The tax authorities noted
the timing of distribution of dividends by the Indian subsidiary
to the Taxpayer which was immediate prior to sale. The dividends
are tax exempt in the hands of the Taxpayer under the Indian
Income Tax Act 1961 (ITA). However, the Indian subsidiary
will be liable to pay dividend distribution tax (DDT) on the amount
of distribution which is lower than the income tax on long-term
capital gains. The tax authorities contended that the distribution
of dividends is a “colourable transaction” which is in lieu of
capital gains arising to the Taxpayer on the sale of shares. It
further contended that the distribution of dividends reduces the
net worth of the Indian subsidiary which further reduces the sale
consideration as against the sale consideration in the event of
non-distribution of dividends. Accordingly, the tax authorities
recomputed the long-term capital gains and the taxes payable
thereon. The first appellate authority reversed the order and
the tax authorities went in appeal before the ITAT. The ITAT
held that the dividend is not a colourable transaction and cannot
be re-characterized as sale consideration. It justified its decision
by observing the following:
• Every tax advantageous action or inaction cannot be treated
as a colourable device unless and until such inaction or action
is not bona fide or conceals the true nature of a transaction
or is an exercise without any commercial justification.
• Distribution of dividends to the Taxpayer before the sale
transaction resulted in a substantial tax advantage for the
Taxpayer. However, the question to consider is whether such
distribution of dividends could be termed as a “colourable
transaction to avoid tax”.
• The Indian subsidiary had sufficient reserves which were
eligible for distribution as dividends.
• Further, DDT had been paid by the Indian subsidiary and was
accepted by the tax authorities.
• If dividends are not distributed, the undistributed profits will
be regarded as a capital appreciation on value of shares.
Merely because the Taxpayer decides to receive dividends
instead of capital appreciation, the transaction will not be
regarded as a colourable transaction. Also, it cannot be re-
characterized merely because it yields higher tax for the
tax authorities.
• The Netherlands. Ruling that supply of software is not liable
to tax as royalty or fees for technical services. The Authority
6LOYENS & LOEFF Asia Newsletter – January 2013
of Advance Rulings (AAR) delivered a ruling on 6 August 2010
in the case of GeoQuest Systems B.V. (AAR No. 774 of 2008)
that software transferred without a transfer of intellectual property
rights, including modifications and updates, would neither be
treated as royalty nor as fees for technical services under the
Income Tax Act 1961 (ITA) or under India - Netherlands Income
and Capital Tax Treaty (1988) (the Treaty).
IndonesiaIncrease of general allowances
• On 22 October 2012, effective 1 January 2013, the general
allowances for individual income tax for tax residents of Indonesia
were increased. The basic general allowance is Rp 24,300,000
with an additional Rp 2,025,000 for a married taxpayer.
Dependents (maximum 3) add Rp 2,025,000 to the allowance.
Fixed assets in forestry, plantations and cattlebreeding
• MOF Regulation 126 dated 6 August 2012 prescribes
depreciation that can be claimed in respect of fixed assets
acquired in the abovementioned sectors as per their prescribed
useful life as stipulated in the MOF regulation. Still, as per DGT
Regulation 21 effective 24 October 2012, a taxpayer may, prior
to claiming depreciations, write to the tax office and request the
use the actual useful life of an asset in calculating the depreciation.
Within one month after a complete set of information together
with the request has been submitted to the tax office, the latter
is required to give its decision.
VAT
• A number of MOF regulations have been issued in November
2012 on VAT matters, including a clarification of the VAT position
on labour/manpower services, in which a number of situations
are described which are not subject to VAT as well as a clari-
fication of the verification procedure to be followed in relation
to (1) VAT-able entrepreneur status, (2) revocation of a Tax or
entrepreneur status and (3) issuance of tax assessment letters.
• On 22 November 2012 the Director General of Taxation issued
Regulation 24 as a new administrative regulation regarding
VAT invoices (faktur pajak). The standard format for the
faktur pajak remains the same, but Regulation 24 provides
new procedures regarding systematic invoice numbering.
Based on Reg 24, the DGT also issued Circular 52 to provide
guidance on the new numbering procedure. Both Regulation
24 and circular 52 will be effective on 1 April 2013.
International Tax Developments
• Hong Kong. The DGT issued circular 50 on 21 November
2012 in which he confirms that as of 1 January 2013 the tax
treaty with Hong Kong has taken effect in Indonesia (from 1
April for Hong Kong tax purposes). The treaty contains the
lowest dividend withholding tax rate (5%) provided that the
Hong Kong shareholder holds at least 25% of the shares of
the Indonesian company and is the beneficial owner of the
dividends. The beneficial ownership requirement is also required
in order to enjoy the reduced withholding tax on interest (10%)
and royalties. An important attention point is the explicit
references to Indonesia being allowed to apply its domestic
anti-treaty shopping legislation and its general anti-avoidance
provision, where appropriate. The treaty will be especially
interesting for investment funds and private equity investors
provided that they satisfy Indonesia’s anti-avoidance tax
provisions. With proper planning in advance this may be feasible.
Japan
Tohoku Earthquake Restoration Surtaximplemented
• On December 2, 2011, “Special Measures to Secure the Financial
Resources to Implement the Restoration from the Tohoku
Earthquake” (“Special Tax Bill”) were promulgated and became
effective on April 1, 2012. It concerns a 10% surtax on the
corporate income tax liability as well as a 2.1% surtax on the
income tax liability as a so-called income surtax and withholding
surtax. It applies with effect from 1 January 2013.
National Tax Agency releases status ofMAP cases
• Courtesy IBFD it was reported that on 15 October 2012, the
National Tax Agency (NTA) released the status of mutual
agreement procedure (MAP) cases as follows:
• The number of MAP cases requested in FY2011 (1 July 2011
- 30 June 2012) was 143, which represents a decrease for
7LOYENS & LOEFF Asia Newsletter – January 2013
two years in a row. Of the MAP cases requested in FY2011,
the number of advance pricing agreement (APA) cases
comprised 80% (112 cases).
• The number of MAP cases requested in FY2011 has increased
1.6 times from FY2001 (88). The number of APA cases has
increased 2.7 times from FY2001 (42).
• The number of MAP cases closed in FY2011 was 157 (a 4%
decrease from FY2010). Of the MAP cases closed in FY2011,
the number of APA cases was 135 (a 5% increase over
FY2010), which was the largest ever.
• The regional breakdown of the number of closed MAP cases
in FY2011 was 72 with North American countries, 48 with
Asia-Pacific countries and 37 with European countries.
• The number of countries with which the NTA closed MAP
cases in FY2011 was 23, which has remained almost the
same as in recent years.
• The number of MAP cases with non-OECD countries in
FY2011 was 24 (requested cases) and 11 (closed cases).
• The average processing time for MAP and APA cases in
FY2011 was 25.1 months and 23.6 months, respectively.
Korea
Arbitration claim filed against theSouth Korea Government
• On 21 November 2012, the US company Lone Star Funds filed
arbitration claims with the International Centre for Settlement
of Investment Disputes (“ICSID”) against the South Korean
government. Lone Star Funds, a private equity firm head-
quartered in the US, invested in the Korea Exchange Bank
through a Belgium holding company. When the Belgian holding
company sold its 51% stake in the Korea Exchange Bank
in January 2012, the National Tax Service of South Korea
imposed 391.5 billion won as a 10% withholding tax on capital
gains from the sale. Although such gains should be exempt
under the Belgium-Korea tax treaty, the Supreme Court denied
that treaty benefit under the “substance-over-form” principle.
• The claims argued that South Korea violated the Bilateral Invest-
ment Treaty between South Korea and Belgium/Luxembourg.
This case is the first time that South Korea will go through
arbitration trials under the Investor State Dispute mechanism.
Foreign limited partnership ruled as substantiveowner of income
• According to a decision of the Supreme Court on 25 October
2012, a Cayman Islands limited partnership (“LP”) is treated
as a foreign corporation for Korean tax purpose and should be
taxed as the substantive owner of income.
• In the case, a Belgian holding company holds the shares in a
Korean company. The Belgian holding company was held by
a Cayman Islands LP. The Korean company claimed that the
Belgium-Korea tax treaty should apply to the dividends and
capital gains derived by the Belgian holding company from
Korea; alternatively, the ultimate investors of the Cayman LP
should be considered as owner to the income. However, the
Supreme Court rejected the claims and ruled that the Cayman
LP is the real transaction party and should be treated as a
foreign corporation based on its legal features rather than its
tax treatment in its residence state. The court also considered
the Cayman LP as the substantive owner of income rather than
its ultimate investors.
Property acquisition tax cuts approved
• In order to stimulate the property market, on 2 October 2012
the Korean government approved a bill to temporarily reduce
the acquisition tax rate for properties purchased by the end
of 2012:
• to 1% from 2%, for a residential home valued less than KRW
900 million;
• to 2% from 4%, for a residential home valued at between
KRW 900 million and KRW 1.2 billion; or
• to 3% from 4%, for a residential home valued more than KRW
1.2 billion.
• In addition, a total tax exemption will be provided for residential
homes valued less than KRW 900 million if purchased within
this year and sold within the next five years.
Tax incentives for high-tech foreign investments
• It was reported by the Ministry of Strategy and Finance that
newly revised tax incentives are provided to foreign investments
in high-tech businesses and related services as of 4 December
2012. Under these incentives, tax exemptions from corporate,
8LOYENS & LOEFF Asia Newsletter – January 2013
income and acquisition taxes are available for the first 5 years
and a 50% reduction for another 2 years thereafter.
• The scope of qualifying high-tech businesses is amended in
the revision. 33 new high-tech businesses are added in, such
as large-scale date processing technology and mobile game
technology with cloud computing, while some are removed or
changed according to technology development. Applications
for such tax incentives will be reviewed and decided upon
within 20 days by competent authority.
International Tax Developments
• Bahrain. On 27 November 2012, Bahrain’s parliament approved
the Bahrain-Korea tax treaty which was signed 1 May 2012.
Under the tax treaty, withholding tax on dividend is reduced to
5%/10%, interest to 5% and royalty to 10%.
• Brazil. A social security treaty was signed by Brazil and Korea
on 22 November 2012.
• China. A new social security treaty was signed by China
and Korea which will replace the current one once it becomes
effective.
• Ecuador. On 8 October 2012 Ecuador announced that the
Ecuador-Korea tax treaty was signed.
• India. On 2 November 2012 negotiations took place in Seoul
to revise the current India-Korea tax treaty.
• Kyrgyzstan. A negotiation for the Korea-Kyrgyzstan tax treaty
was completed on 14 December 2012.
• On 20 November 2012, Korea, China, and Japan agreed to
hold first-round negotiations of a trilateral Free Trade Agreement
in early 2013.
Malaysia
Clarification of reinvestmentallowance rules
• Malaysia’s Inland Revenue Board (IRB) published Public Ruling
(PR) 06/2012 on 12 October 2012 clarifying the reinvestment
allowance (RA) rules.
• A qualifying company or qualifying person may claim an RA
of 60% of the capital expenditure which relates to a qualifying
project in the basis period for a year of assessment (YA).
Qualifying projects are:
• expansion, modernization or automation projects undertaken
by a company for its existing manufacturing business or any
related product within the same industry or to diversify its
existing business into any related product within the same
industry; and
• agricultural projects undertaken by a company to expand,
modernize, or diversify its cultivation and farming business,
excluding the business of rearing chicken and ducks.
• The RA should in principle be deducted against the statutory
income of the business with a limit of 70% of the statutory
income. The RA may be deducted against 100% of statutory
income if the qualifying project has achieved the level of
productivity prescribed by the finance minister. The level of
productivity will be measured by using a process efficiency ratio
and should be compared with the level prescribed by the finance
minister for the same YA. However, deduction up to 100% of
statutory income is not permitted for companies undertaking
qualifying projects in the agricultural sector.
• Any RA not used in a YA as a result of insufficient statutory
income can be carried forward and deducted against the
statutory income of the business in the following YAs until the
RA is fully used. Generally, RA that is carried forward may
be deducted in subsequent years up to 70% of the statutory
income of the business. In cases when the current-year RA is
to be deducted up to 100% of the statutory income, the amount
of RA carried forward may also be deducted up to 100% of the
statutory income.
• Companies may claim the RA for 15 consecutive YAs. The
qualifying period commences from the YA the company first
makes the claim. The RA will be withdrawn if an asset is
disposed of within five years from the date of acquisition of
the asset.
Taxation of real estate investment trusts (REITs)and property trust funds (PTFs)
• The IRB issued guidance on the taxation of unit holders of
REITs and PTFs (PR 7/2012) and on the tax treatment of
REITs and PTFs themselves (PR 8/2012).
9LOYENS & LOEFF Asia Newsletter – January 2013
• PR 7/2012 explains the tax treatment of the income distributed
by REITs/PTFs to their unit holders. REITs/PTFs distribute three
types of income, and the tax treatment varies accordingly:
• Income that is exempted at the REIT/PTF level. A REIT/
PTF which distributes at least 90% of its total income in
a basis year is exempted from tax for that year. However,
this income would still be taxable in the hands of the unit
holders and there is no credit available to be offset against
the tax imposed.
• Income that has been taxed at the REITs/PTF level.
Such income would also be taxable in the hands of the
unit holders but a credit is available to be offset against the
tax imposed.
• Exempt income. Tax exempt income received by REITs/
PTF which is subsequently distributed to unit holders continues
to be exempt in the hands of the unit holders.
• Unit holders are taxed in the YA the distribution is received
and taxation is based on their residence status. Tax filing
obligations may also vary.
• PR 8/2012 provides a general description of (Islamic) REITs
and PTFs in Malaysia as well as their regulatory framework.
Guidance is provided on the special tax treatment accorded
to the rental income received by REITs/PTFs, the exemption
of REIT/PTF income, and the treatment of rental income of
a unit trust.
Deferral of thin capitalization rules
• The Ministry of Finance issued a statement on 11 December
2012 informing that the implementation of thin capitalization
rules has been deferred to 31 December 2015.
International Tax Developments
• Ukraine. The Ukrainian Finance Ministry announced on
26 October 2012 that it has initialled an income tax treaty
with Malaysia earlier that month, which is expected to be
signed soon.
• New Zealand. The protocol to amend the income tax treaty
between Malaysia and New Zealand of 19 March 1976, has
been signed on 6 November 2012. The Protocol includes an
update of the exchange of information provision.
Philippines
Taxation of professional services
• On 31 October 2012, the Bureau of Internal Revenue (“BIR”)
released Revenue Memorandum Circular No. 64-2012 clarifying
the tax treatment of self-employed professionals, which provides:
• If the gross professional fees for last 12 months exceed
PHP 1,919,500, a professional is subject to 12% VAT besides
other income taxes. Furthermore, if the gross fees exceed
same threshold again in next 12 months, VAT registration
is required.
• If the gross professional fees for the last 12 months are no
more than the threshold and the professional is not registered
for VAT purpose, he is subject to 3% profit tax.
• Professionals who are not required to register for VAT may
opt to register, however that registration is not allowed to be
cancelled for the next 3 years.
• Once registered for VAT, professionals are subject to 12%
VAT upon registration regardless the amount of gross receipts.
Withholding tax on interest income fromfinancial instruments
• On 7 November 2012, the BIR issued Revenue Regulations
No. 14-2012 clarifying withholding tax levied upon interest
income from financial instruments and similar transactions.
Main points are summarized as below.
• Government debt instruments and securities are treated as
“deposit substitutes”. Interest income derived there from is
subject to a 20% final withholding tax (“FWT”) if earned by a
citizen, a resident alien, a non-resident alien engaged in trade
or business (“NRAETB”), a domestic corporation or a resident
foreign corporation; 25% by a non-resident aliens not engaged
in trade or business in the Philippines (“NRANETB”); or 30%
by a non-resident foreign corporation.
• Long-term time deposits or investment certificates issued by
banks with a maturity of not less than 5 years, are not subject
to FWT if the depositor or investor is a citizen, a resident alien
or NRAETB and other conditions are met; otherwise 20% FWT
10LOYENS & LOEFF Asia Newsletter – January 2013
applies. Interest income derived by NRANETB is subject to
25% FWT, while the rate is 30% if received by domestic or
foreign corporations. If such instruments are pre-terminated by
the depositor or investor, entire interest income is subject to
different FWT based on the remaining maturity:
• 4 years to less than 5 years: 5%;
• 3 years to less than 4 years:12%; and
• Less than 3 years: 20%.
• Interest income derived from a depository bank under the
expended foreign currency deposit system is subject to 7.5%
FWT if received by a citizen, a resident alien, a domestic
corporation or a resident foreign corporation; or is exempt from
FWT if received by a non-resident (individual/corporation).
• Interest income derived from foreign currency loans granted
to residents other than offshore banking units (“OBUs”) or
local commercial banks is subject to 10% FWT. Interest
income derived by authorized OBUs from foreign currency
transactions with non-residents, other OBUs, local commercial
banks and authorized branches of foreign banks is exempt
from tax.
• Interest income derived from any other debt instrument not
covered within the definition of ‘deposit substitutes’ and the
Regulations No. 14-2012 is subject to 20% creditable with-
holding tax.
VAT on sales of adjacent real properties
• On 12 October 2012, the BIR issued Revenue Regulations
No. 13-2012. It clarifies the threshold amount to levy VAT on
sale of adjacent residential lots, house and lots or other residential
dwellings like condominium units which are actually utilized
as one residential unit.
• The sale is subject to VAT if: (i) the same seller sells two or
more adjacent residential lots, house and lots or other residential
dwellings (“adjacent properties”) in favour of 1 buyer within 12
months; (ii) the purpose is to utilize the adjacent properties as
one residential area; (iii) the aggregate value of the adjacent
properties exceeds PHP 1,919,500 for residential lots and
PHP 3,199,200 for residential house and lots or other residential
dwellings. Adjacent residential lots, house and lots or other
residential dwellings although covered by separate titles and/or
separate tax declarations, when sold or disposed to one and
the same buyer, whether covered by one or separate deeds of
conveyance, shall be presumed as a sale of one residential lot,
house and lot or residential dwelling.
• Sales of the adjacent properties with aggregate value below
the threshold will be exempt from VAT. However, the sale of
parking lots in a condominium units is a separate transaction
and subject to VAT regardless of amount of selling price.
International Tax Developments
• Armenia. On 4 October 2012, the Armenia-Philippines tax
treaty was approved by Armenia.
• France. The protocol concluded on 25 November 2011 to the
France-Philippines tax treaty was ratified by France on 29
November 2012. Under the protocol, a new exchange of infor-
mation article replaces the previous one.
• Netherlands. In September 2012 it was reported that the
Netherlands intends to revise the current Netherlands-Philippines
social security treaty.
Singapore
High Court decision on anti-avoidancecase AQQ
• In our Summer 2011 edition we announced the first anti-
avoidance case in Singapore, AQQ v Comptroller of Income
Tax, and that appeal against the case had been filed by the
taxpayer. On 18 December 2012 the High Court decided on
the appeal in favour of the taxpayer.
• AQQ is a Singapore incorporated and tax resident company
and used for a group restructuring, issued notes to generate
funds to purchase subsidiaries. As shown in the chart below,
the Notes were subsequently on-sold twice and the final purchase
by the group company was (indirectly) financed by AQQ’s
purchase of the subsidiaries, for which it issued the Notes in
the first place.
11LOYENS & LOEFF Asia Newsletter – January 2013
• As a result of this financing structure, AQQ’s income tax
computation was as follows:
• Dividend income -/- interest expenses = chargeable income;
• Chargeable income * tax rate = tax liability;
• Tax liability -/- dividend tax credits = negative tax liability =
tax refund.
• Although initially the tax officer accepted AQQ’s tax filings,
after a few years he revised his view and issued additional
tax assessments to retrieve the tax refunds. The additional
assessments were issued based on the anti-avoidance provision
(section 33) in the Income Tax Act (ITA): the tax officer took
the view that the financing arrangement was a scheme put in
place to avoid tax. As a result, he disregarded both the dividend
income (which justified the tax credits under the previous tax
system) and the deduction of interest expenses.
• While the High Court found that the financing arrangement
fell within the scope of section 33 (i.e. it regarded the financing
arrangement as abusive), it was of the view that only the interest
expense incurred and not the dividend income received by
the taxpayer should be disregarded. As such the High Court
found that the tax officer has not fairly applied section 33 ITA.
Consequently, the High Court allowed the appellant's appeal
and ruled to disregard the additional assessments.
High Court ruling denying right toexchange information
• Upon request for an exchange of information about two bank
accounts in Singapore by the Indian tax authority, the Singapore
tax officer filed an application for a court order requiring the
bank concerned to provide the information.
• The information request by the Indian tax authority was made
under the exchange of information clause of the India/Singapore
income tax treaty, and was based on poor evidence (i.e. unsigned
bank transfer instructions for transferring funds to the bank
accounts in Singapore) that an Indian tax national would be
connected to the overseas companies that were the bank
account holders.
• The test applied by the High Court was whether the requested
information was “foreseeably relevant” to the Indian tax authority
for carrying out the treaty provisions. This test requires the tax
officer - on behalf of the requesting state - to show some clear
and specific evidence that there is a connection between the
information requested and the enforcement of the requesting
state’s tax laws.
• In this case there was insufficient evidence provided by the
Indian tax authority to prove the connection between the Indian
national and the two companies, and therefore the application
for the court order was dismissed by the High Court.
Consultation paper on tax crimes
• From 9 October to 9 December 2012 the Monetary Authority of
Singapore (MAS) issued a consultation paper on thedesignation
of a broad range of serious tax crimes as money laundering
predicate offences in Singapore as of 1 July 2013. This would
oblige financial institutions to apply all the Anti-Money Laundering
/ Countering the Financing of Terrorism measures as contained
in the relevant MAS Notices to prevent the laundering of proceeds
from serious tax crimes and would involve the conduct of
rigorous customer due diligence, transactions monitoring, and
proper reporting of suspicious transactions.
International Tax Developments
• Italy. The amending protocol to the income tax treaty between
Singapore and Italy of 29 January 1977, signed on 24 May
2011, did not enter into force on 30 August 2012 as reported
in our Autumn 2012 Newsletter, but entered into force and
generally applies as of 19 October 2012.
• Germany intends to renegotiate its income and capital tax
treaty with Singapore of 28 June 2004 in relation to the provision
for the exchange of information.
• Poland. The income tax treaty between Singapore and Poland
has been signed on 4 November 2012 and will replace the tax
Holdco
Bank GroupcoAQQ(appellant)
Singaporesubsidiaries
SellsNotes Sells
Notes
Dividend
Notesissuance
Interest
Loan to finance thepurchase of Notes
Purchase price forshares of subsidiaries
Mauritiusbranch
12LOYENS & LOEFF Asia Newsletter – January 2013
treaty of 23 April 1993. The treaty contains maximum withholding
tax rates of (i) 10% on dividends in general, but 5% if the
beneficial owner is a company (other than a partnership) which
controls directly at least 10% of the capital of the company
paying the dividends on the date the dividends are paid and
has done so or will have done so for an uninterrupted 24-month
period. Dividends paid to certain public bodies are exempt from
withholding tax (currently, one rate of 10% applies); (ii) 5% on
interest, subject to exceptions (currently, 10%); (iii) 5% on
royalties in general, but 2% for the use of, or the right to use
any industrial, commercial, or scientific equipment (currently,
one rate of 10% applies); and for service fees (managerial and
technical), there are no provisions. The dividend, interest and
royalty articles furthermore include anti-avoidance clauses, and
the treaty contains a remittance clause. Capital gains include
gains from the alienation of shares deriving more than 75%
(50% under the OECD Model) of their value directly or indirectly
from immovable property to be taxed in the state where the
property is situated.
• Jersey, Liechtenstein, Belarus. Singapore signed tax treaties
with Jersey (17 October 2012), Liechtenstein (6 December
2012), and Belarus (initialled on 22 November 2012).
• Ecuador, Uruguay. Singapore held negotiations for a tax treaty
and an investment protection treaty with Uruguay on 9 November
2012, and Ecuador intends to start negotiations for a tax
treaty with Singapore.
• Bermuda. Singapore and Bermuda signed an Exchange of
information agreement on 29 October 2012, which entered
into force on 6 December 2012 and generally applies as of 1
January 2013.
• United Kingdom. The second protocol to the income tax treaty
between Singapore and the UK of 12 February 1997, signed
on 15 February 2012 as highlighted in our Summer 2012 edition,
entered into force on 27 December 2012.
TaiwanNew anti-avoidance rules will be introduced
• It has been reported by the Ministry of Finance that on 6
December 2012 the Executive Yuan of Taiwan passed the
amendments to the Income Tax Act which will be further
subject to approval by the Legislative Yuan of Taiwan. In the
amendments, controlled foreign company (“CFC”) rules and
effective management (“EM”) concepts are introduced. They
will enter into force as of 2015 once approved.
• Under the proposed CFC rules, if a Taiwanese profits seeking
enterprise directly or indirectly owns more than 50% capital or
has substantial control over a qualifying associated enterprise
in a tax haven or low tax country, undistributed profits of the
foreign enterprise will be taxable in Taiwan in proportion to the
investment held by the Taiwanese company.
• According to the EM concept, a foreign enterprise with its
effective management in Taiwan will be treated as a tax resident
and thus subject to tax in Taiwan.
International Tax Developments
• Germany. On 7 November 2012, the Germany-Taiwan tax
treaty entered into force, which will apply as of 1 January 2013.
Under the tax treaty, in general withholding taxes on dividends,
interest and royalties are reduced to 10% and capital gains from
sale of shares are in general protected. A “most-favoured-
nation clause” is included in the dividend article, which may
reduce the 10% Taiwan dividend withholding tax if Taiwan
in future concludes a more beneficial dividend rate with another
OECD member state.
• Thailand. On 30 November 2012, Taiwan and Thailand signed
a tax treaty.
ThailandNo changes to the personal income taxsystem (yet)
• The Revenue Department (RD) will await the results of already-
approved cuts in the corporate tax system before considering
any changes to the personal income tax rates. Thailand
promulgated a reduction of the corporate income tax rate from
30% to 23% this year and 20% as of 1 January 2013.
• The RD will wait to assess the impact of the corporate tax
reductions on the fiscal 2013 budget before considering any
changes to the personal income tax system. The government’s
fiscal year 2013 started October 2012 and will end 30
September 2013.
13LOYENS & LOEFF Asia Newsletter – January 2013
• The RD had previously floated an idea to expand the current
five-tier personal tax system to offer greater tax relief to middle-
income earners. Currently, personal income tax rates range
between 0% (below 150,000 baht) and 37% (above 4 million
baht). The proposed changes would see rates of 15-25%,
resulting in lower overall taxes for many middle-class taxpayers.
International Tax Developments
• Thailand recently signed income tax treaties with Estonia
(September 2012) and Taiwan (30 November 2012).
Vietnam
Advance Pricing Agreement introduced
• On 20 November 2012, the National Assembly of Vietnam
approved amendments to the Tax Administration Law introducing
the possibility to obtain an Advance Pricing Agreement (“APA”),
which will take effect as of 1 July 2013.
• Based on the amended law, an APA is a binding written
agreement between the tax authority and taxpayers over a
period of time. Such APA determines the tax calculation basis,
applicable transfer pricing method, or arm’s length price in a
related party transaction, and will be issued before the taxpayers
submit their tax declaration documents.
• The APA can be on an unilateral, bilateral, or multilateral basis
among the Vietnamese tax authority, the taxpayers, and the
tax authorities of foreign jurisdictions. Under the amendments,
the Vietnamese tax authority will apply an APA with taxpayers,
tax authorities in foreign jurisdictions with which Vietnam
concluded a tax treaty. Currently Vietnam has concluded
around 60 tax treaties. Further clarifications will be issued in
the implementation guidance of the amended Law.
Corporate tax reductions proposed
• The Ministry of Finance of Vietnam proposed a draft bill on 12
December 2012 to lower corporate income tax, which will be
submitted to the National Assembly for approval early next year.
Main points of the proposal are summarized below:
• Current corporate tax rate of 25% in Vietnam would be reduced
to 23% from 1 January 2014.
• Small-and-medium-size enterprises, with employees less
than 200 and turnover not exceeding VND 20 billion (about
$960,000), would be subject to a further reduced rate
of 20%.
• Preferential rates of 10 to 20% would be granted to incentivize
specific sectors such as education, healthcare and environment.
• Limitation on allowable deductible expenses for advertising
and promotion would raise from 10% to 15% of all costs of
the enterprise.
• Thin-capitalization rules would be amended to disallow
deduction of interest exceeding debt-to-equity ratios of 4:1
(10:1 for banks and credit institutions), which will enter into
force in 2016.
Foreign contractor tax
• Courtesy IBFD it was reported that the General Department
of Tax recently issued clarifications on the Foreign Contractor
Tax (FTC) as follows:
Purchase of software
• Official letter (OL) 3738/TCT-CS dated 26 October 2012 provides
that where a piece of equipment, with software (and the right
to use that software), is purchased from a foreign supplier,
the purchase of that software will be subject to FCT at 10%
(CIT only). The value of the software and the right to use must
be identifiable and the payment must qualify as a royalty for the
transfer of technology or intellectual property.
Loan interest
• Pursuant to OL 3929/TCT-CS dated 8 November 2012, loan
interest which is incurred before 1 March 2012 (i.e. based on
the loan contract) is subject to the deemed CIT rate of 10%
even if payment is made after 1 March 2012. Therefore, loan
interest arising after 1 March 2012 will be subject to deemed
CIT at 5%.
Re-insurance
• OL 3998/TCT-CS dated 12 November 2012 states that the
applicable deemed CIT rates for payments in respect of re-
insurance contracts depend on when the payments are incurred
and not paid. Thus payments incurred up to 29 February 2012
are subject to a deemed CIT rate of 2%, whereas a deemed
CIT rate of 0.1% will apply to payments incurred from 1 March
2012 onwards.
14LOYENS & LOEFF Asia Newsletter – January 2013
Although great care has been taken when compiling this newsletter, Loyens & Loeff N.V. does not accept any responsibility whatsoever
for any consequences arising from the information in this publication being used without its consent. The information provided in the
publication is intended for general information purposes and cannot be considered as advice.
Business licence tax
• OL 3639/TCT-KK dated 17 October 2012 clarifies that foreign
contractors who do not have a presence in Vietnam (as per
the Law on Investment and the Law on Commerce), despite
generating income in Vietnam, are not required to pay business
licence tax.
International Tax Developments
• Morocco. The Morocco-Vietnam tax treaty entered into force
in September 2012 which will take effect as of 1 January 2013.
Under the tax treaty, the withholding tax on dividends, interest
or royalties is reduced to 10%. Capital gain tax may be levied
upon transfer of a shareholding of 10% or more in a company.
• Russia. Russia clarified that bonus (income) received by
employees resident in Vietnam from Russian sources should
be treated as other income under Article 22 of the Russia-
Vietnam tax treaty, rather than employment income in Article
15. Therefore, such bonus income may be subject to Russian
individual income tax at 30%.
• A first round of negotiations for an European Union-Vietnam
Free Trade Agreement (“FTA”) took place in Hanoi from 8 to
12 October 2012. This is the third FTA that the EU currently
negotiates with countries of the Association of Southeast
Nations (“ASEAN”), following Singapore and Malaysia.
w w w . l o y e n s l o e f f . c o m
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