rsm international conference, singapore 2007 sba stone forest corporate advisory company beijing...

RSM International Conference, Singapore 2007

SBA Stone Forest Corporate Advisory CompanySBA Stone Forest Corporate Advisory Company

Beijing Shanghai Shenzhen SuzhouBeijing Shanghai Shenzhen Suzhou

Latest Law Affecting In-bound Invesements Latest Law Affecting In-bound Invesements

Mr Ching Mia KuangMr Ching Mia Kuang


CONTENTSCONTENTS

• Latest Economic Statistics• New Labor Contract Law• Anti-Monopoly Law• New Customer VAT Deposit Policy• M&A Order No. 10


Latest Economic StatisticsLatest Economic Statistics• GDP Growth

– First Half Year: 11.5%– Q3 Forecasted: 11.4%

• Forecasted fixed-asset investment 26% to RMB 3.7 trillion in 2007 Q3

• FDI (Jan-Sep)– 10.87%, totaling US$47.21 billion

– 28,206 new foreign invested companies incorporated


• Trade Import/Export (Jan-Sep)– Export: 27.7%, totaling US$878 billion– Import: 19.6%, totaling US$693 billion– Trade Surplus: US$186 billion, 69%

• Forex Reserves– US$1.4 trillion– 2007 Sep vs. 2006 Sep: 45% – US$367 billion in 2007

Latest Economic StatisticsLatest Economic Statistics


• Effective from 01/01/2008• Key Points:

1. Non-compete Agreements2. Probationary Periods3. Training Costs4. Role of Labor Unions5. Mass Layoffs6. Severance

New Labor Contract LawNew Labor Contract Law


Anti-Monopoly LawAnti-Monopoly Law

• Effect from 1 August 2007• Apply to conduct of monopoly for both domestic and foreign

enterprises • Monopolistic conduct:

– Monopolistic agreements – Abuse of dominant market positions – Concentration of operators that eliminates or restricts competition.

• No stipulation on monopoly like banking, electricity, telecommunication, oil, tobacco and etc.


Anti-Monopoly LawAnti-Monopoly Law

• Operator concentration and national security check for foreign investor M&A in China

• Operator concentration and national security check

• 57 articles, the shortest of similar law of its kind in the world

• Details remains unclear.


New Customer VAT Deposit PolicyNew Customer VAT Deposit Policy

• With effect from 23 August 2007• 1,800 products has been added into value added restricted items.

E.g. chemicals, textiles, rosewood furniture, lighters and etc.• Deposit

– Type A and B companies: (Import Duty +VAT)×50%– Type C companies: (Import Duty +VAT)×100%

• Refund deposit on re-export of processed products• Estimated HK$120 billion deposit to be paid after the new policy


Order No. 10Order No. 10

Allowed Acquisition Ways• Equity acquisition• Asset acquisition

Legal Forms of Merger• An absorption merger • A new company merger• Split-off / spin-off de-merger



General Principles of Order No.10• Guideline on Foreign Investments applied - four

categories: encouraged, restricted, prohibited, permitted• The foreign capital should be over 25% resulting in being

qualified as a foreign investment enterprise (“FIE”) which would be eligible for tax incentives

• Tightened control on anti-monopoly transactions• Full remittance for equity or asset acquisition within 3

months after the business license is issued



Endorsement for Share Swap• Order No.10 is the first PRC regulation to set out the regulatory

framework for cross-border share swap as a form of payment for share acquisition of domestic enterprises

• The foreign investor (except for Special Purpose Vehicles) should be the overseas listed company

• To engage an M&A advisor is a must. The M&A advisor should be a reputable agency registered in China and perform a due diligence review on the foreign investor


ConclusionConclusion

• China economy is still expanding rapidly• New labor contract law gives more protection to employees.• Anti-Monopoly Law puts restrictions to foreign acquisitions that can

lead to monopolies• The new VAT deposit policy will influence processing industry in 2-3

years.• New regulation on M&A – Order No. 10 gives clear guidance on

M&A in China• Continuous challenges with the rapid changes in policies and

regulations


November 2007

RSMi Annual Conference 2007RSMi Annual Conference 2007

PRC TAX UPDATEPRC TAX UPDATE


TOPICSTOPICS

• New PRC Corporate Income Tax Law

• Recent Changes on PRC Transfer Pricing Rules

• Land Appreciation Tax

• After-tax Reserve Fund


I.I. Summary of New PRC Corporate Summary of New PRC Corporate Income Tax LawIncome Tax Law

Promulgation Date: March 16, 2007Effective Date: January 1, 2008Detailed Implementation Rules will be issued by the State CouncilCertain Implementation Measures will be issued by the PRC State Taxation BureauCoverage: 8 Chapters and 60 Articles• General Provisions• Taxable Income• Tax Payable• Tax Preference• Withholding Mechanism• Special Adjustments• Tax Administration• Supplementary Provisions


1. General Provisions1. General Provisions

• Applicability– All enterprises and organizations except Sole Individual-owned

Enterprise and Partnership• PRC Tax Residence

– Companies incorporated under the PRC laws and regulations– Companies with effective management and control in the PRC

• Non-PRC Tax Residence– Companies incorporated under the foreign laws and regulations

AND effective management and control outside the PRC– PRC sourced income


Concept of Residence• PRC Tax Residence

– Worldwide income subject to PRC tax

• Non-PRC Tax Residence– Profit from place of business or establishment in the PRC– PRC sourced income



Tax Rate• PRC Tax Residence

– 25% (except for tax preference)

• Non-PRC Tax Residence– 20%



2. Taxable Income2. Taxable Income

• Tax loss carry forward: 5 years• Cap on deduction of charitable donation: 12% of taxable

income• Passive income such as dividend, interest, rental, royalty

and capital gain derived by non-residents shall be subject to PRC tax

• In case there is inconsistency between accounting/financial management regulations and tax regulations, tax regulations shall prevail


3. Tax Administration3. Tax Administration• Compliance with the Tax Collection and Administration Law of the

People’s Republic of China • No consolidated tax filing for companies, unless otherwise stipulated by

the State Council• Consolidated tax filing is required for resident companies and its non-legal

entity establishments in the PRC• Tax fiscal year: January 1 to December 31• A company that is under liquidation shall use the period of liquidation as

its tax year• Tax prepayment: monthly or quarterly basis (15 days after the period end)• Annual tax payment: within 5 months after the year end• Tax de-registration: filing with 60 days upon cessation of business• Tax Payment: in Renminbi


4. Supplementary Provisions4. Supplementary Provisions

• Grandfather ProvisionIn general– Eligibility: companies established before the promulgation of the law

(March 16, 2007)– Period: From 2008 to 2012, gradually increase the applicable tax rate to the

rate set out in this law– Tax holiday: can continue to enjoy the approved tax holiday but if not yet

trigger the first profit-making year, 2008 will be deemed as the first profit-making year

• Additional implementation rules will be released by the State Council for the following companies – State-encouraged new technology and high technology companies located

within legally-established special zones for the promotion of foreign trade, economic and technological cooperation and other such zones

– Other companies in State-encouraged industries


• Application of Tax Treaty Where the provisions of a tax treaty/agreement concluded between the government of the People's Republic of China and a foreign government are different from the provisions of this Law, the provisions of the treaty/agreement shall prevail.

5. Supplementary Provisions5. Supplementary Provisions


6. Tax Planning Opportunities6. Tax Planning Opportunities

Existing Projects – Dividend out by the end of 2007 to avoid the 20% withholding tax– Review the investment structure: may use a Hong Kong company as the

investment vehicle to enjoy the lower (5%) withholding tax rate on dividend– Reinvestment by the end of 2007 to enjoy the refund on reinvestment: 40% or

100% depending on the business scope of the investee

New Projects– Location may still be an important factor in determining the applicable rate– The business scope may affect the eligibility for tax preference


7. WHT on Dividend7. WHT on Dividend

HK Co

PRC Co

100%

Dividend $72.25 PRC WHT <3.61> $68.64 Remittance

$68.64

Profit before tax: EIT: Profit after tax: After-tax reserve: Profit after tax-reserve: Dividend WHT @5%

$100 < 15 > $ 85

< 12.75 > 72.25

< 3.61 >


7. WHT on Dividend7. WHT on Dividend

Before 12/31/2007: Dividend from FIE to its foreign investments is exempt from WHT

New Corporate Income Tax Law:• Dividend WHT rate = 20%• China-HK tax arrangement: - investment in PRC entity > = 25% WHT rate = 5% - otherwise WHT rate = 10%


Dividend is exempt from Hong Kong profits tax Offshore in nature

The PRC WHT paid is not creditable/deductible

8. Hong Kong Tax Implications8. Hong Kong Tax Implications


• Deferred tax asset/liability be adjusted using new tax rate

• Deferred tax liability be provided on retired earnings of the PRC subsidiaries not distributed by December 31, 2007

9. HKAS/HKFRS9. HKAS/HKFRS


• New Corporate Income Tax Law

• Guo Shui Han [2007]236

• Guo Shui Han [2007]363

II. Recent Updates on PRC Transfer PricingII. Recent Updates on PRC Transfer Pricing


Article 41 TP Adjustment If a taxpayer enters into an arrangement 'without reasonable commercial purpose' which results in a reduction of the taxpayer or its related party’s taxable revenue or taxable profit (i.e. the arm's length principle is not followed), the PRC tax authority may disregard such arrangement and make necessary adjustment

Article 41 Cost Sharing Arrangements (“CSA”)

Cost-sharing arrangements are acceptable and cost sharing is allowed for intangible assets developed jointly within group companies as well as the provision and receiving of common services, provided that the sharing basis is at arm's length

Article 42 Advanced Pricing Arrangements (“APA”)

APA is an agreement signed between a tax authority and a taxpayer, whereby the tax authority accepts the transfer pricing policy adopted by the taxpayer as reasonable and in compliance with the arm’s length principle

II. Chapter 6 of New CIT LawII. Chapter 6 of New CIT Law


Article 43 TP documentation More stringent requirements on filing and submission of related party information for TP enforcement, including (i) related party transaction report to be attached to the annual CIT return (it is still not clear whether the nature of the disclosures will be expanded to include TP methodology, benchmarking, industry analysis, etc.); and (ii) taxpayer and its related parties are required to provide relevant information to the tax authority during a TP audit

Article 45 Controlled Foreign Company (“CFC”) Rules

Undistributed profits (or distributed in a reduced amount) derived by CFCs located in low-tax jurisdictions may be taxed in the PRC as a deemed dividend distribution

Article 46 Thin capitalisation Interest expenses from any excess debt associated with borrowings from related parties will be deemed to be non-deductible for tax purposes

Article 48 Interest levy Tax adjustments initiated by the tax authorities will be subject to late payment interest levy

II. Chapter 6 of New CIT LawII. Chapter 6 of New CIT Law


Guo Shui Han [2007]363 Guo Shui Han [2007]363

Form Completed by Submission

“Enterprise Functional and Risk Analysis Form” Functions/Risks in the following areas: - Research and development - Manufacturing - Marketing and promotion - Sales and distribution - Management and other services

Taxpayer Submit to the local tax authority

“Enterprise Functional and Risk Analysis Form (Assessed)”

Local tax authority based on the "Enterprise Functional and Risk Analysis Form" as well as other relevant information gathered

during the TP audits

Submit to the SAT together with the “Enterprise Functional and Risk Analysis Form” and the initial TP audit case report

“Enterprise Financial Analysis on Related Party Transactions Form”

Local tax authority Submit to the SAT together with the initial TP audit case report and final TP audit case report


PRC Foreign Investment Enterprises ("FIEs") and Foreign Enterprises ("FEs") undertaking purely manufacturing functions for their overseas parent companies, should not sustain losses but should maintain a reasonable level of profitability if:

• carry out production activities based on orders placed by related parties in accordance with business plans of their overseas parent companies;

• their overseas parent companies or affiliates are wholly responsible for strategic management, decision making, research and development, sales and marketing etc; and

• did not share the associated risks and losses arising from inefficient policies, under-utilisation of production capacity and poor market demand as they did not take part in the strategic management of their overseas parent companies.

Profit levels of those FIEs/FEs sustaining losses or achieving low levels of profit using economic analysis and appropriate benchmarks set for each industry

Guo Shui Han [2007]236 Guo Shui Han [2007]236


III. Land Appreciation TaxIII. Land Appreciation Tax

Relevant Regulations:

• the Provisional Regulations of the People’s Republic of China (“PRC”) on LAT (“LAT Law”) issued by the State Council on 13 December 1993

• the Implementation Rules (“LAT Rules”) issued by the Ministry of Finance and State Administration of Taxation on 27 January 1995

• Guo Shui Fa [2006] No.187


Land Appreciation TaxLand Appreciation Tax

LAT payable = value added amount x applicable tax rate – quick calculation deduction

“value added amount” = income derived from the transfer – allowable deductible items

Pursuant to Article 6 of the LAT Law, allowable deductible items includes:-• Payment made to acquire the real property• Costs of developing the land The assessed value of existing buildings and

constructions• Tax incurred in connection to the transfer of real property• Selling expenses, management expenses and financial expenses


Value added amount Tax Rate

Quick calculation deduction

Value added amount ≤ 50% of deductible items

30% Not applicable

Value added amount >50% of deductible items but ≤ 100% of deductible items

40% Deductible amount x 5%

Value added amount > 100% of eductible items but ≤ 200% of deductible items


Value added amount > 200% of deductible items


Land Appreciation Tax - TaxLand Appreciation Tax - Tax


Land Appreciation TaxLand Appreciation TaxGuo Shui Fa [2006] No.187 provides that property developers must perform LAT reconciliation

under the following situations:• The construction is completed and the property units are completely sold out; or • There is a transfer of the entire project which is still under construction; or • There is a transfer of land use right

The Circular have also built in some anti-avoidance measures where the in charge tax authorities can require a property developer to perform LAT reconciliation in the following cases:

• The construction work has been completed and over 85% of total saleable area is sold; or • Although the construction work has been completed and less than 85% (85% inclusive) of

total saleable area is sold, the remaining saleable area is leased out or occupied by the property developer for self-use purpose; or

• Three years after the issuance of sales permit of the subject project; or • The taxpayer has applied for tax deregistration before the LAT reconciliation; or • Other conditions required by the tax bureaus at the provincial level.


IV. After-Tax Reserve FundIV. After-Tax Reserve Fund

Company Law

WFOE Law/DRR

EJV Law/DRR

CJV Law/DRR

Effective Date 2006/1/1 2001/4/12 2001/7/22 1995/9/4

Statutory Surplus Reserve

10% N/A N/A

General Reserve 10% (not required when the accumulated balance reaches 50% of registered capital)

Yes N/A

Staff Welfare & Incentive

Determined by BOD Yes N/A

Enterprise Expansion N/A Yes N/A

Notes In general, FIEs shall follow

Allocation ratio determined by BOD

Not specified in the CJV Law/DRR


Circular 67[2006] issued by Ministry of FinanceCircular 67[2006] issued by Ministry of Finance

• From 2006/1/1, not required to provide 5% statutory welfare fund• Credit balance of welfare fund as at 2005/12/31: transfer to

Statutory Surplus Reserve• Debit balance of welfare fund as at 2005/12/31: transfer to Statutory

Surplus Reserve, Capital Reserve, Retained Earnings• In case of FIEs which provide staff welfare and incentive reserve

according to board of directors’ resolution, the specific purpose of the fund, conditions and procedures for utilization shall be well defined and be recorded as “liability” but not “reserve”

• Effective Date: 2006/4/1


Staff Welfare Fund – PRC GAAP Accounting Treatment

Before 2006/1/1 After 2006/1/1

Income statement-FIEs

-Non-FIEs

Net income appropriation (after-tax)Net income appropriation

Expenses or net income appropriationExpenses (before tax)

Balance Sheet(All) Reserve fund Liability

Circular 67[2006] issued by Ministry of FinanceCircular 67[2006] issued by Ministry of Finance


An Overview Of China Outbound An Overview Of China Outbound InvestmentsInvestmentsPresented by: Lim Lee MengPresented by: Lim Lee Meng6 Nov 20076 Nov 2007


CONTENTCONTENT

1. The impetus for outbound direct investments (ODI)

2. The objectives of China ODI

3. China ODI todate

4. Outlook for China ODI


The Impetus For ODIThe Impetus For ODI

• China foreign reserves have exceeded US$1.4 trillion, with the same growth rate, it could reach US$2 trillion in 3 years’ time

• Chinese government announced the establishment of a new investment agency with initial fund of US$200 billion.


The Objective Of China ODIThe Objective Of China ODI

• Acquisition of raw materials and energy supplies

• Acquisition of advance technology and IP

• Acquisition of market shares

• Relocation of production base


China ODI TodateChina ODI Todate1. As at end of 2005, China total cumulative ODI exceeded

US$50 billion. US$60 billion is projected to be outbound by 2010

Year 2002 2003 2004 2005 2006

Outward FDI (Bil US$)

2.7 2.9 5.5 6.9 16.6

Year-on-year Increase (%)

- 7.4 89.6 25.8 141

Projects approved by

China’s Trade Department (Numbers)

- 510 829 1067 -

Sources: China Commerce Department & China National Statistical Bureau 2005/2006

announcements; 2003 approved enterprises figures from Commerce Department; Economic Info Daily, China No. 1363, 18 Jan 2007


2. China ODI Destinations

Table 3: 2005 China's ODI Destinations

00.5

11.5

22.5

33.5

44.5

Asia

Latin

Americ

a

North A

mer

icaAfri

ca

Europe

Ocean

iaTot

al

Inve

stm

ents

(U

S$

Bil

)

020406080100120

Pro

po

rtio

ns

(%)

Investment

Proportion

Sources: China Commerce Department & China National Statistical Bureau 2005/2006

China ODI TodateChina ODI Todate



3. Most of China ODI Enterprises are large state-owned enterprises (SOEs)

4. Average size of each ODI projects– 2002 – US$2.81 million– 2004 – US$ 4.8 million– 2005 – US$ 10 million

5. According to research,– 30% of China ODI made losses– 40% broke even– 30% made profit


6. China government hopes that the global community does not regard China ODI as a threat. It wants to show that all ODI are market driven

7. From 1986 to 2006, out of 213 cases of Chinese companies’ mergers abroad, 67% failed due to incomplete due diligence on company debts, lack of knowledge of foreign law and culture, and inability to deal with foreign governments’ protectionism policy

8. Forms of ODI– Acquisition . eg., Lenovo’s acquisition of IBM’s PC business– Joint investment. eg., TCL and Thomson– Investment in green field



Some examples of China ODISome examples of China ODI

• Bank of China acquired Singapore Aircraft Leasing Enterprises for US$965 million

• China CITIC Group and Chinese Development Bank, and Indonesia Artha Graha and Sinar Mas Group jointly invest US$567 million to establish a 1.8 million hectres palm oil plantation

• In 2006, the Construction Bank of China bought the Bank of America (Asia) at HK$9.7 billion


Some Examples of China ODISome Examples of China ODI

• In 2005, Chinese electronic giant, Haier failed in its bid to merge with American Metec

• In 2004 – 2005, China largest PC Company Lenovo invested US$1.75 billion in its merger with IBM’s PC business unit

• In 2003 – 2004, China TCL merged with Thomson’s television business in a 450 million Euros J.V., TCL also established a J.V. with French Acatel to enter the European market


Some Examples Of China ODISome Examples Of China ODI

• In Nov 2004, Shanghai Automobile Group (SAG) bought 48.9% of shares in Ssang Yong Motor at US$0.5 billion

• In 2005, SAG bought Rover’s IP for 2 types of cars at £67 million.• Nanjing Automobile Group bought MG Rover and Rover’s factories

in UK at £50 million• In march 2007, Chinese Business Newspaper reported that China

FAW Group is negotiating to buy Chrysler at 1 billion Euros, and Dongfeng Motor is trying to merge with Volvo’s truck business



• Russian government has approved Zhenjiang Kangnei Group’s investment of RMB 2 billion in an Economic Trade Zone in Ussuriysk. 60 Chinese enterprises in manufacturing leather shoes, spectacles, leather jackets, lighters, lamps and consumer electronics will be introduced

• At beginning of the 1990, China Capital Steel Corporation bought 98.4% of Peru’s Iron Ore Corporation

• In 2001, Bao Steel Corporation entered into J.V. with Brazil’s Companhia Vale do Ris Doce, and another one with Australia’s Hamusli Iron Ore Co. Ltd in 2002



• Wu Steel, Tang Steel, Ma Steel and Sha Steel have a J.V. with Australia’s Brokenhill – Biliton Corporation operating Jimblebar Iron Ore Mine in Australia

• CNPC, SINOPEC, CNOOC and other Chinese companies invested in 139 projects in 30 countries with over US$7 billion

• China CITIC Holdings acquires the Karazhanbas oil field in Kazakhstan in a US$1.9 billion deal

• In April 2007, Zhejiang Wanxiang Holdings bought ACH Company, a subsidiary of Ford Motor

• China provides 80% of capital (US$250 million) and technology to build Pakistan’s 3rd deep water port, Gwadar



• 800 projects involving 600 Chinese companies have been set up in Africa for oil exploration, mining and infrastructure development

• China Minmetal Corporation (CMC) bought 25% shares in Chili EABY Copper Mine for US$550 million, which will scale up to US$2 billion. CMC also invested in Brazil for iron ore and Australia for uranium

• In Feb 2007, HK listed Fujian Zhijiu Ore Group acquired London listed Moterrico for £94 million


Outlook For China ODIOutlook For China ODI

1. Survey of future ODI of China EnterprisesIndustries Number of Replies Proportion (%)

Manufacturing 159 38.8

Agriculture & Aquaculture 40 9.8

Construction 34 8.3

Mining 28 6.8

Food & Beverages 23 5.6

Real Estate & Property 20 4.9

Transportation 19 4.6

Scientific Research Services 16 3.9

Social Services 8 2.0

Postal & Communications 5 1.2

Finance & Insurance 2 0.5

Others 56 13.7

Source: Guojimaoyi (International Trade) issue no. 7, China 2006.


Outlook For China ODIOutlook For China ODI

2. Chinese government encourage China Enterprises to invest abroad collectively in the same industrial parks or export processing zones.

3. In the 2007, Government Guide for ODI, investments in oil and gas fields in Kuwait, Kadar, Ameu,Morocco, Libya, Niger, Norway, Ecuador, Bolivia are being encouraged

4. The US$200 billion investment agency will have to look for investment targets to channel its fund

5. ODI in developed countries will be targeting at acquisition of technology, IP and distribution channel


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