Shell ordered to pay P7B in taxes

•November 16, 2009 • Comments Off

The Bureau of Customs has ordered Pilipinas Shell Petroleum Corp. to pay P7.34 billion in excise taxes  for unleaded gasoline imports from 2004 to October 2009 that it declared as a blending component rather than as a finished product.

The demand letter was signed by Customs Commissioner Napoleon Morales on Nov. 11 and was payable 10 days from its receipt. The amount does not include penalties.

The BOC order came 11 months after its Batangas district collector, Juan Tan, issued the first demand letter. The district uncovered Shell’s allegedly fraudulent scheme of passing off its unleaded gasoline as catalytic-cracked gasoline (CCG), which it claimed was a blending component not subject to tax.

But investigation by the office of Morales, Deputy Customs Commissioner Reynaldo Nicolas, and the Office of Presidential Adviser for Revenue Enhancement Narciso Y. Santiago Jr. upheld Tan’s recommendation that Shell pay P7.34 billion in taxes for the unleaded gasoline it started classifying as CCG five years ago.

The BOC noted that Shell had been paying value-added and excise taxes on its unleaded gasoline imports from 2001 to 2003.

The company stopped paying taxes, however, when it started bringing in CCG which it claimed was an intermediate product rather than a finished product and thus not subject to tax. Its position was upheld by Deputy Commissioner Jose Mario Buñag of the Bureau of Internal Revenue in a March 2004 opinion.

Then Revenue Commissioner Sixto Esquivias IV upheld Buñag’s ruling in June. Esquivias resigned as BIR chief on Oct. 30.

In its decision, the BOC ruled that “gasoline whenever imported shall be subject to excise tax and VAT based on the landed cost, whatever is the intention of the importer to the use thereof.”

The BOC pointed out that among the petroleum companies in the country, only Shell was not paying taxes on its unleaded gasoline imports. The BOC probers said the company had admitted that CCG was the same as unleaded gasoline.

The law does not qualify whether regular or unleaded gasoline will be used as a raw material or blending component to produce a finished product, according to the BOC.

In the petrochemical industry it has been expressly provided that naphtha, a raw material for plastic, would have zero excise tax if used as a raw material, the customs commissioner said.

Source: Inquirer.net 16 November, 2009

BoI plans incentives to triple overseas investment

•November 16, 2009 • Comments Off

The Board of Investment (BoI) is planning new incentives that it hopes will help Thai investment overseas triple in value over the next five years to US$10 billion.

BoI incentives currently apply only to projects in Thailand. The BoI’s new role supporting investment overseas was recently initiated by the government.

“The government’s move is aimed at getting local investors to tap into the opportunity overseas as the benefits and business opportunity are greater as a result of trade liberalisation through free trade agreements,” said Atchaka Brimble, the BoI secretary-general.

By the end of 2014, she said, the BoI hoped to lift local investment overseas to $10 billion from $2.83 billion recorded in 2008.

Target industries as well as high-potential destinations have been identified, while a sub-committee on overseas investment promotion will work out approaches to better support the business sector.

The targeted industries have three categories, according to whether they seek markets, resources or skills.

Consumer products, petrochemicals, plastics, hotels, restaurants and food products need new markets. Mining, power generation and processing agricultural products could benefit from foreign resources. Garments and jewellery need foreign manufacturing capability, as they face shortages of labour at home and high labour costs.

Targeted investment destinations include Asean, China, Africa, the Middle East, India and Central Asia.

Sorayud Phettrakul, an adviser to the Industry Minister, said investors would be supported with tax and non-tax incentives, on which BoI will need input from other government agencies.

Involved agencies include the Export Promotion Department, the Foreign Ministry, the Thai Trade Representative Office and the Agriculture Ministry.

Some incentives may need new laws or amendments. The BoI board chaired by the prime minister will determine if new Finance Ministry regulations would be required for promoting investment overseas through tax incentives, he said.

The BoI may also seek support from the Export-Import Bank of Thailand to help investors with financial difficulties.

The BoI will also encourage small business operators to take up these incentives. Large corporations invest successfully overseas because of their capital strength so SMEs should invest in clusters, taking a similar approach to Japanese SMEs in Thailand, he said.

To better handle the new role, a new working unit will be set up under the BoI. It will act as an information centre that supports businesses planning for overseas investment and improves co-operation with foreign trade agencies to facilitate doing business abroad.

Source: Bangkok Post 14 November, 2009

Malaysia: RPGT…

•November 16, 2009 • Comments Off

Exemption order an interim measure to a complete RPGT system

IN Malaysia, real property gains tax (RPGT) is imposed with the intention to curb property speculations. It is imposed on the gains on disposal of Malaysian landed properties and the rate varies from 5% to 30% depends on the holding period.

With effect from April 1, 2007, the Government decided to exempt RPGT in view of the economic slowdown and it was aimed at assisting property developers in disposing of their houses, and spearheading the economic progress.

Prime Minister Datuk Seri Najib Tun Razak, who is also Finance Minister, on Oct 23, however, reintroduced RPGT to put in place a fair administration of taxes.

In a nutshell, an equitable system will now be in place as income tax are imposed on income derived by any person in Malaysia while RPGT, on capital gains on disposal of landed properties. There will not be any loss of revenue to the Government.

In the Budget 2010 speech, the Government’s intention was clear. It is to ensure that the Malaysian tax system is equitable and continue to be able to generate revenue for development purposes. In line with this, the Government proposed that a tax of 5% be imposed on gains from the disposal of real property from Jan 1 2010. Any agreements signed between now till Dec 31 remains RPGT exempted.

Finance Minister II Datuk Seri Ahmad Husni Mohamad Hanadzlah then, exercising his power under section 9(3) of the Real Property Gains Tax Act 1976 (RPGTA), gazetted Real Property Gains Tax (Exemption) Order 2009 which will take effect from Jan 1, 2010. A fixed RPGT rate of 5% on gains from property gains is achieved through the application of this exemption order.

Malaysian individuals are accorded tax exemption of 10% of the chargeable gain (CG) from the computation of RPGT3. Thus, this would effectively mean that they will be paying less than 5% of RPGT rate while companies continue to pay 5%.

The RPGT Exemption Order exempts any person from the application of Schedule 5 of the RPGTA on the payment of tax on the CG arising from any disposal of assets on or after Jan 1, subject to the condition that the amount of CG exempted shall be determined in accordance with the following formula: A/B x C where:

A = Tax on CG at the appropriate tax rate reduced by the Tax on CG at 5%;

B = Tax on CG at the appropriate tax rate;

C = Amount of CG

Effectively, the exemption formula can be simplified as follows:

Chargeable gain x (Appropriate rate – 5%) / Appropriate rate

The appropriate tax rate to be applied on this exemption order depends on the holding period of the property which is summarised as per Table A.

Illustration: Malaysian citizen individuals

Chia Lat acquired a condominium in Bangsar for RM500,000 on Jan 1, 2008. On March 31, 2010 he decides to dispose the property for RM780,000. The RPGT to be paid by him would be as per Table B.

Illustration: Companies

Using the same example as above, and assuming the taxpayer is a Sdn Bhd, the RPGT payable would be as per Table C.

Mathematical confusion

The mathematical formula stipulated in the RPGT exemption basically restores to the fact that the RPGT is 5% on the CG. This is the mathematical equation:

Assuming the appropriate tax rate is y and CG is x, then the RPGT payable after the RPGT exemption would be :

[x – x(y - 5%)/y ] y =xy – xy + 5% x

= 5% of x

The Government has stated that the purpose of the RPGT is to have a fair administration of taxes. Thus the exemption is an interim measure to begin with RPGT of 5% taxes. In years to come, once the exemption order is revoked, RPGT payable would revert to the original position, ranging from 30% to 5%, depending on the holding period.

Policy reform: Currently, taxpayers are only required to keep accounting records for seven years under the law. It may not be feasible to impose 5% on the chargeable gain on gains derived from holding periods more than seven years. This would mean tax payers are required to keep their accounting records for an indefinite time to justify cost attributable to the acquisition.

It is therefore suggested that the Government impose 2% on selling price instead of holding periods exceeding seven years or as in the past, exempt these gains from RPGT. After all, the underlying purpose of RPGT is to curb speculation of properties rather than tax collection.

Moving forward, the Government may likely further align the taxes on landed transactions to be equitable with the income tax system. Therefore, it is crucial that the rakyat understand the Government’s overall objectives and appreciate that this exemption order is an interim measure to prepare the country for a complete restoration of the RPGT system when the time comes.

Once the country’s economy is paced and sustaining desired growth, this exemption may likely to be revoked and property gains will be back causing gains will be taxed at the appropriate rate.

Till then, this exemption order will continue to allow us to enjoy most of our short-term trading gains from real property transactions.

● Dr Choong Kwai Fatt is deputy dean, Research and Development, Faculty of Business and Accountancy, University of Malaya.

Source: The Star Online 16 November, 2009

From IRAS…

•November 14, 2009 • Comments Off

Media Releases:

Singapore signs tax protocol with France (13 Nov 2009)
http://www.iras.gov.sg/irasHome/page04.aspx?id=9660

Singapore and Brunei enhance tax cooperation (13 Nov 2009)
http://www.iras.gov.sg/irasHome/page.aspx?id=9658

Company director convicted of GST fraud (6 Nov 2009)
http://www.iras.gov.sg/irasHome/page04.aspx?id=9612

From OMM: New Indonesian Tax Regulations Have Significant Implications for Indonesian Bond Issuance Structures

•November 13, 2009 • Comments Off

The Indonesian Directorate General of Taxation issued two key tax regulations (the “Regulations”) dated 5 November 2009 (Director General of Tax Regulations Nos. 61/PJ/2009 and 62/PJ/2009). The Regulations provide long awaited clarification on the withholding tax treatment of the typical structure used for Indonesian bond issuances. Our initial impressions are that the Regulations will have significant implications for Indonesian bond issuances, and will likely affect existing issuances as well as new ones.

Typical Indonesian Bond Structures

Most international bond issuances by Indonesian corporations employ an ‘SPV issuer’ structure designed to limit withholding tax on interest income. Indonesian corporations are required to withhold tax on interest payments to offshore parties at the rate of twenty percent (20%), unless this rate is reduced by an applicable double taxation treaty. Under the usual SPV issuer structure illustrated below, an Indonesian corporation wishing to issue bonds sets up a special purpose subsidiary in a jurisdiction with a favourable double taxation treaty with Indonesia. The subsidiary then issues the bonds and on-lends the proceeds to the Indonesian parent company. Payments under the bonds are guaranteed by the Indonesian parent.

The concept is that interest payments on the loan would be subject to withholding tax at the rate specified in the double taxation treaty between Indonesia and the jurisdiction of the special purpose issuer. The intent of the structure is to reduce the withholding tax rate from twenty percent (20%) (the default position if no tax treaty applies) to the more favourable rate under the double taxation treaty. Variants on this structure were commonly used to reduce withholding tax payments on offshore bond interest payments to ten percent (10%), which was the best available treaty rate prior to ratification of the updated Netherlands-Indonesia tax treaty, which came into effect on 1 January 2004.

The commercial effect of the SPV issuer structure was to ensure that the withholding tax rate applicable to offshore bond issuances was at the same rate as that applicable to most offshore bank loans, as most offshore banks would be able to book their loans to Indonesian corporations through a branch office in a jurisdiction with a ten percent (10%) treaty rate. The turning point for the SPV issuer structure came with the ratification of the new Netherlands-Indonesia tax treaty, which provided for a zero percent (0%) withholding tax rate on interest payments. This created the potential for huge tax savings by Indonesian corporations, and the complete loss of an important revenue source for the Indonesian tax authorities. The Indonesian corporations were not slow to take advantage of the new treaty rate, and the Indonesian tax authorities responded with policy measures designed to mitigate the loss of this revenue stream.

Policy Response and Complications

The policy response by the Indonesian tax authorities was initially to issue two circular letters in 2005. The position taken in the first circular letter was that the zero percent (0%) rate under the new Netherlands-Indonesia tax treaty could not yet be implemented. This was on the basis that the treaty contemplated implementing measures which had not been agreed by the treaty parties, and accordingly the rate of ten percent (10%) under the previous treaty would continue to apply. The new Netherlands-Indonesia tax treaty closely followed the OECD model form, and this interpretation was challenged by the Netherlands (as well as Indonesian corporations) as being inconsistent with international OECD tax treaty practice.

The position taken in the second circular letter was to argue that the SPV issuer was not the ‘beneficial owner’ of the interest income as required by the treaty. If this position were correct, the SPV issuer would not be entitled to receive treaty benefits at all, and the default withholding rate of twenty percent (20%) would therefore apply. This argument was at the time being advanced before the English courts in the case of Indofood International Finance v JP Morgan Chase Bank, and was ultimately upheld by the English Court of Appeal. The English court held that the term ‘beneficial owner’ in the OECD model form tax treaty was to be given an ‘international fiscal meaning’, which essentially meant that Indonesia was entitled to adopt its own interpretation of the term, so long as it fell broadly within international norms.

The complications arose for a number of reasons. The first circular letter was never withdrawn and continued to be relied upon by the tax authorities from time to time, so Indonesian corporations were faced with two fundamentally inconsistent policy statements which would result in two different withholding tax rates for the same structure. In addition, the criteria for ‘beneficial ownership’ in the second circular letter were broadly expressed and difficult to apply in practice. An updated version of the circular letter in 2008 did not do much to clarify matters. To further complicate matters, the circular letters had no formal status under Indonesian law but only constituted guidance on the policy approach intended to be applied by the Indonesian tax authorities. Accordingly, the interpretations set out in the circular letters were open to challenge before the Indonesian tax courts.

As a result, the withholding tax position on Indonesian bond issuances has been unclear for some time. Issuers have generally taken two broad approaches. Some have gone ahead with a Netherlands SPV issuer and unilaterally apply the zero percent (0%) withholding tax rate, choosing to challenge the availability of such treaty benefits in the Indonesian tax courts. Others have chosen to establish an SPV in a jurisdiction which would result in a ten percent (10%) withholding tax rate under the relevant tax treaty. Based on our discussions with clients, we understand that the tax authorities have not generally challenged the application of a ten percent (10%) withholding tax rate. However, we have heard that corporations applying the zero percent (0%) rate have been informed that they will be charged at the full twenty percent (20%) rate (plus penalties) if they do not accept a compromise ten percent (10%) rate.

The New Regulations

The Regulations are intended to provide much needed clarification as to the criteria for a beneficial owner to obtain treaty benefits. They are a formal regulatory response and have binding force, unlike the earlier circular letters. The earlier circular letters have been repealed and superseded by the Regulations.

Under Regulation No. 62/PJ/2009, the conditions for income recipients to enjoy the treaty benefits include:

(a)    The company is not established in the jurisdiction of the relevant treaty’s counterparty merely to obtain the treaty benefits, and the transaction itself is not structured solely to take advantage of the treaty benefits.

(b)    The company has independent management with sufficient authority to conduct its business.

(c)    The company has employees.

(d)    The company has an active operation or business.

(e)    The company is subject to tax in its jurisdiction of residence on the Indonesia sourced income.

(f)     50% or more of the company’s income is not used to satisfy an obligation to another party in a form of e.g. interest, royalty or other reward.

It is clear that special purpose companies established for Indonesian bond issuances under the current ‘SPV issuer’ structure would not meet these criteria.

Regulation Number 61/PJ/2009 provides procedures for obtaining the tax benefits, which includes submission of an original tax residency certificate by the income recipient. This is a major practical obstacle to claiming treaty benefits under international bond issuances. Bonds frequently change hands and issuers are often unaware of the identity of the holders, and it is generally impractical as a logistical matter to collect tax residency certificates from bondholders. This means that Indonesian issuers may not be able to obtain treaty benefits even if the bondholders are located in jurisdictions that have double taxation treaties with Indonesia.

Initial Conclusions

Our initial impressions are that these rulings will have significant implications for Indonesian bond issuances, and will likely affect existing issuances as well as new ones.  This also seems to invalidate the commonly used practical approach of selecting an alternative jurisdiction to the Netherlands for the special purpose issuer and settling for a ten percent (10%) treaty rate.

With current Indonesian bond yields ranging from about seven point five percent (7.5%) to twelve point five percent (12.5%) (and higher for highly structured deals), the additional withholding tax burden will be significant. If our conclusions are correct, these rulings may make bond financing significantly less attractive to Indonesian corporations than bank financing. We are currently looking at alternative structures in compliance with the Regulations, with the intent of preserving the option of issuing bonds at a ten percent (10%) withholding tax rate – the rate which has historically been accepted by the Indonesian tax authorities. We are actively discussing alternatives with a number of onshore and offshore advisers and hope to provide an update on this soon.

Contacts:

Bertie Mehigan
Singapore
+65-6593-1888
bmehigan@omm.com <mailto:bmehigan@omm.com>

David <http://www.omm.com/michaelheinrichs/>  Makarechian
Singapore
+65-6593-1868
dmakarechian@omm.com <mailto:dmakarechian@omm.com>

Joel Hogarth
Singapore
+65-6593-1866
jhogarth@omm.com <mailto:jhogarth@omm.com>

Huey Yann Thong
Singapore
+65-6593-1828
hthong@omm.com <mailto:hthong@omm.com>

Ratih Nawangsari
Singapore
+65-6593-1822
rnawangsari@omm.com <mailto:rnawangsari@omm.com>

Siew Kam Boon
Singapore
+65-6593-1826
skboon@omm.com <mailto:skboon@omm.com>

Singapore Signs Double Taxation Agreement With France

•November 13, 2009 • Comments Off

Singapore has signed a double-taxation agreement with France.

The agreement with France is Singapore’s 12th, and was signed between the  French Finance Minister Christine Lagarde and Singapore’s Finance Minister Tharman Shanmugaratnam.

Source: NASDAQ November 12, 2009

CC asked to provide billing info as India tax dispute reaches Supreme Court

•November 12, 2009 • Comments Off

Clifford Chance’s (CC’s) India tax dispute has reached the country’s Supreme Court, with the firm asked to provide details of fees it received for advising on projects during the late 1990s.

The long-running dispute has been closely watched by lawyers hoping for greater clarity on how legal fees for India-related work are taxed.

In December last year the Bombay High Court ruled in favour of an appeal made by CC, with the court subsequently ruling that a foreign law firm may only be taxed in India on work performed in the country.

CC had previously been ordered by India’s Commissioner of Income Tax to pay taxes amounting to around $3m (£2m) on all of the fees the firm earned on work performed on four energy infrastructure projects undertaken in India during 1996-98.

The magic circle firm primarily advised non-Indian participants on UK law aspects of the projects, and much of the work was handled outside of India. CC challenged the assessment, arguing that only around $871,000 (£592,000) in fees actually billed in India should be taxable.

The Bombay High Court took up the case after India’s Income Tax Appellate Tribunal ruled in September 2001 that the nature of the work should determine its taxability in India.

CC said in a statement: “We do not comment on the details of our tax affairs. We take tax compliance very seriously and of course comply with orders made by the Indian courts. We are in the process of complying with this particular order which is a request for information in relation to a claim by the Indian income tax department.”

“The claim raises essentially the same issues as were raised in a case recently decided in our favour by the Bombay High Court. The Indian tax authorities are now appealing that decision but we have every expectation of prevailing.”

Source: legalweek.com 11 November, 2009

Thailand: Govt to strengthen capital market

•November 12, 2009 • Comments Off

In his special speech, Thai Capital Market drives Strong Thai Economy, presented at the opening function of the “Set in the City Fair” held by the Stock Exchange of Thailand at Siam Paragon, Mr Abhisit said the government realizes that there will be more fierce competition in the capital market in the future.

“This has prompted the government to map out a five-year capital market development plan. The plan will include the national savings fund setting up, the development of domestic bond market and the development of financial product to enhance its diversity.

“The government will restructure tax system to attract and encourage more investors to the capital market and will come up with measures to deal with possible negative consequences of the fierce competition in the future,” the premier said.

The government wants to see the capital market to increase its capitalisation from the current 80 per cent of GDP to 130 per cent within the next five years. The number of investors in the market will also be boosted from 2.4 per cent to 5 per cent, he said.

Mr Abhisit suggested there should be a close collaboration between Thai capital market and other markets in the region in order to attract more foreign investors and to create regional network of the capital market.

Source: Bangkok Post 12 November, 2009

A Comparative View of Debt v. Equity

•November 12, 2009 • Comments Off

Wolfgang SchoenTobias BeuchertAstrid ErkerAndreas GertenMaximilian HaagSabine HeidenbauerCarsten HohmannDaniel KornackNadia LagdaliChristine Osterloh-KonradCarlo PohlhausenPhilipp RedekerErik Roeder (all of the Max Planck Institute for Intellectual Property, Competition & Tax Law) & Lukas Müller (University of Zurich, School of Law) have posted Debt and Equity: What’s the Difference? A Comparative View on SSRN.  Here is the abstract:

The divide between debt and equity belongs to the focal points of national and international tax law. Under domestic individual income tax law, it is crucial for the distinction between a creditor-debtor relationship and a full partnership of taxpayers jointly carrying on a business. Under domestic corporate income tax law, it is decisive for the application of a two-layer taxation of corporate profits and dividends. Under international income tax law, the allocation of taxing rights and the application of withholding taxation follows largely the distinction between debt and equity. Against this background, this article analyses on a comparative basis the major features of debt and equity under corporate law, accounting law and tax law in six jurisdictions (Austria, France, Germany, Switzerland, United Kingdom, United States). It becomes clear that the debt-equity divide is shaped differently for purposes of individual income taxation, corporate income taxation and international income taxation. While individual or corporate income taxation largely looks at the similarities between a full partner or a full shareholder on the one hand and the holder of a hybrid debt instruments on the other hand, international tax rules tend to include all sorts of profit-dependent payments under the rules for corporate profits and dividends. It remains to be seen whether the dependency of payments on contingent profits (or other proprietary elements of a business entity like turnover) forms a convincing rationale for the existing distinctions between debt and equity in the international tax arena or whether tax policy should opt for full or near equal treatment of these financial instruments.

A Review of Tax Research

•November 12, 2009 • Comments Off

Michelle Hanlon (MIT) & Shane M. Heitzman (University of Rochester, Simon Graduate School of Business) have posted A Review of Tax Research on SSRN.  Here is the abstract:

In this paper, we present a critical review of tax research. We survey three main areas of tax research: 1) corporate decision-making including investment, capital structure, organizational form, and transfer pricing, 2) asset pricing, and 3) corporate reporting for GAAP and tax purposes. We summarize the research areas and questions examined to date and what we have learned or not learned from the work completed thus far. In addition, we provide our opinion as to the interesting and important issues for future research.

Tax Anti-Avoidance v. Abuse of Law

•November 12, 2009 • Comments Off

Zoë Prebble (LL.M. 2010, Michigan) & John Prebble (Victoria University of Wellington, Faculty of Law) have posted Comparing the General Anti-Avoidance Rule of Income Tax Law with the Civil Law Doctrine of Abuse of Law on SSRN.  Here is the abstract:

This article compares the general anti-avoidance rule of income tax law with the civil law doctrine of abuse of law (Rechtsmissbrauch, abus de droit) in eight jurisdictions: Germany, Croatia, New Zealand, Australia, France, the United States, the United Kingdom and the European Union. The article deals with the core concept of avoidance and addresses the statutory and judge-made general anti-avoidance rules in these jurisdictions. The article focuses on transactions that most people would recognize as avoidance and on how these eight jurisdictions either frustrate avoidance or allow it.

Writers who contributed to the article and the jurisdictions that they covered include: Séverine Baranger (France, general anti-avoidance rule), Dennis Becher (Germany, abuse of law), Svenja Brandt (Germany, general anti-avoidance rule) David Dunbar (Australia), Matthew Fountain (New Zealand), Franca Frenzel (European Union), David Pickup (United Kingdom), Philip Postlewaite (United States), Rebecca Prebble (Croatia), Viktoria Preusker (Germany, abuse of law), Yves-Louis Sage (France, abuse of law).

From “China Tax Insights”…(More on Circular 601)

•November 12, 2009 • Comments Off
By Matthew, November 10, 2009 6:41 pm

A significant new notice was issued by the SAT last week which will impact upon the application of withholding tax in China. Circular 601 is the latest interpretation by the SAT of China’s tax treaties. This Circular looks at  the concept of beneficial ownership as it is used in the treaties – in the withholding tax provisions (i.e. royalties, interest and dividends). To understand how the changes operate it is important to under the operations of Double Tax Agreements (DTA). DTAs operate so as to allocate or apportion taxing rights between two contries where both countries domestic laws provide a right to tax on a particular transaction or arrangement. The DTAs generally favour the country of residence and give limited rights of taxation source countries (effectively the country where the income is sourced from) except where the income is attributable to a permanent establishment in that source country. In the case of dividends the source country (that is, the country where the company paying the dividends is located) is usually entitled to tax a shareholder receiving such dividends but only at a specified rate (the same with royalties and interest). This rate is usually 10% in China’s DTAs but it varies from country to country. Importantly the rate between China and Hong Kong is 5%. As a result, and amongst other reasons, this has made HK a very favourable location in which to establish a shareholder company (usually termed a special purpose vehicle or SPV) for investment in China.

However, Circular 601 will significantly alter the benefits of using a HK SPV. The effect of the circular is that a HK SPV will be disregarded for determining the country of residence where it has limited functions and risk (basically where it does nothing but act as shareholder). Most SPV’s have very little functions and risk and this means that it is likely that such arrangements will no longer be entitled to obtain the benefits of the lower rate unde the China-HK  DTA. Instead one would need to examine the DTA of the country where the ultimate owner is located. If no such DTA exists, then a withholding tax rate of 10% will apply (withholding tax in China is 20% under the Enterprise Income Tax Law but this was reduced to 10% under the Implementing Regulations).

This Circular is the latest act by the SAT to aggresively reduce off-shore tax avoidance practices. It should also be noted how this Circular is linked to the transfer pricing rules (which examine a company’s functions and risks in determining if related party transactions are reasonable). The SAT will continue to place considerable emphasis on function and risk going forward. As I have said previously we now have a very different tax environment in China than 2 years ago. Interesting times.

Australia: Draft 1936 Tax Act rewrites released

•November 12, 2009 • Comments Off

The Assistant Treasurer, Senator Nick Sherry, has released draft rewrites of 149 pages of income tax law for public consultation in a further step towards a single Income Tax Assessment Act.

He said this rewrite will move 149 pages from the 1936 Act and simplify it to 110 pages under the 1997 Act.

Simmons & Simmons: Legal advice privilege limited to advice from lawyers

•November 11, 2009 • Comments Off

The High Court has held that legal advice privilege cannot be claimed in respect of tax advice received by a client from a tax accountant: R (on the application of Prudential PLC) v Special Commissioner of Income Tax (High Court, 14 October 2009). The court held that it was bound by the earlier Court of Appeal decision in Wilden Pump to reject Prudential’s contention that LPP should be construed as encompassing the advice of professionals other than lawyers on legal matters.

The case confirms, therefore, that, at common law, legal advice privilege will not be available for other professionals who advise on the law: whether accountants, insolvency practitioners, patent and trade mark attorneys, loss adjusters etc. Accordingly, it remains the case that it is only the clients of lawyers who are protected from disclosure of legal advice under legal advice privilege.

Background

HM Revenue & Customs (HMRC) served Prudential with notices under the Taxes Management Act 1970 (TMA 1970) seeking disclosure of documents relating to a commercially marketed tax avoidance scheme. Prudential sought judicial review of the decision to serve these notices and, in particular, argued that (1) the notices sought material subject to legal professional privilege (LPP) in the form of tax advice on the scheme received from PwC and (2) the notices sought material that was not relevant to the determination of any tax liability.

LPP defence

The House of Lords held in Morgan Grenfell that the TMA 1970 provisions authorising HMRC to require disclosure of material did not override LPP. Prudential sought to argue that LPP applies whenever “a person obtains skilled legal advice about tax law from an accountant, as opposed to a lawyer”, such that the legal advice on the tax avoidance scheme received from PwC was protected from disclosure.

It was common ground that there was no decided case in which the precise issue put forward by Prudential had been addressed and answered after a detailed examination of matter. Accordingly, the court went back to first principles and considered the intrinsic nature of LPP and its public policy justification. It was important to recognise the distinction between two aspects of LPP, legal advice privilege and litigation privilege. Importantly, the court was only concerned with legal advice privilege in this case. (Although Prudential argued that legal advice privilege and litigation privilege are integral parts of a single privilege right, and that, since litigation privilege can extend beyond lawyers in some circumstances so could legal advice privilege, the judge rejected the contention that the two aspects of LPP could not have separate requirements.)

The judge, Charles J, recognised that LPP is a common law principle and therefore can be developed by the courts to have regard to changing circumstances. Nevertheless, his review of legal advice privilege case law indicated that LPP is clearly linked to the legal profession and not just to the purpose and nature of the advice and assistance given. Indeed, the judge noted that all relevant textbooks (including Passmore: Privilege) “speak with a common voice that LPP applies to communications with lawyers and not other professionals” and that Parliament has proceeded on the basis that special provision needs to be made if an equivalent right is to be conferred clients of persons who are not members of the legal profession.

Ultimately, however, the judge held that he was bound by the earlier Court of Appeal decision inWilden Pump (curiously not referred to by either side in argument) to decide that legal advice privilege is, as currently determined, limited to legal advice from lawyers. Wilden Pump involved a claim that privilege applied to legal advice provided by patent agents. The Court of Appeal rejected that contention and the invitation to extend the common law privilege to other professionals with an important specialist knowledge of the law.

Relevance defence

Prudential pointed out that earlier guidance from HMRC (since withdrawn) had accepted that “pure legal advice”, that is advice concerned with whether specific pieces of legislation apply to a given transaction, is simply opinion on the law and would be exempt from disclosure except in exceptional circumstances. Prudential argued that departure from this practice was unlawful. The judge rejected this.

Firstly, there was no practice or policy to be departed from (it had been withdrawn, albeit without any fanfare).

Secondly, HMRC did accept that in many cases pure legal advice would not be disclosable as it would be irrelevant. However, the test for Prudential to overcome was whether HMRC had reasonable opinion that the documents contained or could contain information relevant to the tax liability in question. Information which may be relevant is not limited to factual material and it does not need to be necessary for the determination. To show that there was no possibility that the documents could contain relevant information is clearly a difficult burden.

In any event, based on documents already disclosed by Prudential, HMRC had formed the view that not all relevant documents had been disclosed. In particular, disclosed documents pointed to the existence of earlier drafts and proposals which would have relevance to how the scheme developed and correspondence with accountants dealing with implementation of the arrangements. These earlier documents suggested the careful omission of references to certain dividend payments, for example, to bolster arguments they were not an inevitability. The Special Commissioners had concluded that the officer was entirely reasonable to consider that the true purpose of the transactions had been glossed over in documents provided and that a decision to declare the dividend had already been made. That conclusion could not be impeached and, indeed, the court considered that what was being requested was not pure legal advice but information concerning the nature of the transactions and in particular what was or was not preordained.

Comment

Although the judge held himself bound by the decision in Wilden Pump, he did also accept that Prudential had put forward a “compelling, and indeed unanswerable, case” that in modern conditions accountants do what lawyers do in cases that establish LPP. He also expressed the view that “there is real strength in the argument that the extent of the right to refuse disclosure should not relate to the nature of the legal qualification of the person giving the advice”. The implication appears to be that, whilst the High Court could not amend the ambit of LPP, perhaps the Supreme Court might.

However, interestingly, the judge also suggested that rather than giving clients of accountants the same rights as clients of lawyers, a level playing field might also be achieved by reducing the rights of clients of lawyers to those of other professionals providing legal advice. Indeed, this appears to be the judge’s preference and he explicitly suggested that “the conclusion underlying LPP that there is a need for absolute confidentiality in respect of legal advice may need revisiting”. How this fits with Lord Hoffmann’s description of LPP is a “fundamental human right” is unclear.

As regards relevance, the decision supports HMRC’s current approach that, whilst pure legal advice is not normally relevant, in tax avoidance cases where the purpose of the parties is important, communications between adviser and client that go to the structuring of the scheme, the purpose of the scheme and whether certain elements are preordained are in a different category.

Ultimately, the decision means that clients of tax accountants, or indeed any other non lawyers that advise on legal issues, cannot claim legal advice privilege. As such, they will receive less protection from disclosure of legal advice than the clients of lawyers.

Indonesia: New tax regulations on double tax avoidance agreement

•November 11, 2009 • Comments Off

The Directorate General of Taxes of Republic of Indonesia (“DGT”) has issued two new tax regulations concerning the implementation of the Procedure of Double Tax Avoidance (DTA) agreement and the Prevention of Misuse of DTA agreement. In the regulations, DGT defines beneficial owner, agent, nominee and conduit company, as well as introducing two forms to be completed by the foreign taxpayers as a certificate of domicile. The tax regulations also govern the qualifyingforeign tax resident that can benefit from the reduced withholding tax tariff of tax treaty. The two new regulations will take effect on 1 January 2010.

Singapore Becomes Second Largest Investor In India

•November 10, 2009 • Comments Off

Singapore has emerged the second largest investor in the Indian economy, contributing about nine per cent of the total foreign direct investment (FDI) into the country.

India received a total of US$35.16 billion (RM123 billion) from April 2008 through March 2009, with Singapore investing about US$3.4 billion (RM11.9 billion).

The Department of Industrial Policy and Promotion, under the Ministry of Commerce and Industry, has listed the island state behind Mauritius, while the United States was trailing after Singapore.

Most of Singapore’s investments were in the telecommunication, services, electrical equipment, power generation, oil refinery and transportation sectors.

Bulk of India’s FDI flows was via Mauritius, a tax haven due to its less than three per cent corporate tax, which attracted many foreign companies to channel their investments through the tiny Indian Ocean state.

Funds from Mauritius were estimated at about US$11 billion (RM38.5 billion), which was about 44 per cent of India’s total FDI.

American investments amounted to US$1.8 billion (RM6.3 billion) for the same period.

Source: Bernama 6 November, 2009

ROC Tax Treaty Policy

•November 10, 2009 • Comments Off

The ROC’s general policy toward tax treaties is to avoid double taxation, prevent fiscal evasion and strengthen substantive relations. The tax treaties that the ROC has entered into follow the OECD model and take into consideration matters relating to the political and fiscal status, economics, and trade of the mutual parties.

As of 31 December, 2008, there are 16 comprehensive income tax treaties and 14 international transportation income tax agreements which have been signed and brought into force. All tax treaties are listed below:

1. Comprehensive income tax treaties which cover all income flows: Australia, Belgium, Denmark, Gambia, Indonesia, Macedonia, Malaysia, the Netherlands, New Zealand, Senegal, Singapore, South Africa, Swaziland, Sweden , Vietnam and UK

2. International transportation income tax agreements: Canada, the European Union, Germany, Israel, Japan, Korea, Luxembourg, Macau, the Netherlands (Shipping, Air Transport), Norway, Sweden, Thailand and the United States.

The ROC’s withholding tax rate on dividends, interest, and royalties payable to a non-resident is 20%, but the dividend withholding rate is 30% for non-resident individuals and 25% for non-resident enterprises for investments not approved under the Statute for Investment by Overseas Chinese or the Statute for Investment by Foreign Nationals. However, with respect to dividends, interest, and royalties, reduced withholding tax rates ranging from 5-15% are provided for by treaty.

Source: Good Earth 9 November, 2009

Vodafone tax saga (re)surfaces

•November 9, 2009 • Comments Off

From Business Standard

By: Mukesh Bhutani

Early last week, the Mumbai revenue department issued show cause notices to Vodafone, proposing to tax offshore transaction, as a result of which Vodafone acquired a controlling interest in GSM licences from Hutch.

This battle seems to be entering a climax, given developments in the past 18 months since the deal. Essentially, the dispute surrounds Indian tax administration’s claim to levy tax on controlling interest acquired by Vodafone (from Hutch) via a complex chain of offshore companies. Vodafone and Hutch claim that India does not have a right to tax such offshore sale transactions, given the interpretation of law on ‘transfer of assets’ located in India.

On the other hand, the tax administration continues to hold that such ‘indirect transfer of assets’ would be liable to tax in India, based on strict source based interpretation. As a matter of fact, several offshore transactions, including international takeovers and mergers have come under the tax administration’s scanner and multiple investigations are under way.

Recapping SC verdict
The last we heard on Vodafone was when, early this year, the Supreme court while declining to intervene in the matter, directed that Vodafone submit the relevant documentation to the revenue authorities such that a point of view can be formulated if indeed (the revenue) has the jurisdiction on such a deal. Remember, Vodafone besides challenging the withholding tax obligation, also challenged the jurisdiction (of revenue) to issue notices and seek information on the grounds that it is extra territorial.

Other grounds of challenge included constitutional validity of a retrospective amendment in 2008 budget to treat Vodafone as an “assessee in default” with respect to withholding tax obligation. The retrospective amendment, as most believe, was ostensibly intended to fasten withholding tax liability on Vodafone (as acquirer of interest in underlying Indian assets), should the tax administration fail in recovering tax from Hutch (alleged beneficiary of capital gains). To that, the courts declined to give its judement and felt that the most important aspect was ‘jurisdiction’ and not taxability or withholding obligation.

Whereas Vodafone seems to have rightly interpreted the apex court’s order that the revenue has merely assumed rights to determine the question of jurisdiction, the tax administration viewed it as a right to raise the tax demand, besides establishing jurisdiction. The fact that the revenue has issued a show cause suggests to me that the spirit of apex court’s decision is being adhered to.

Options before Vodafone
Though the contents of show cause notice are not public, in an unprecedented move, the revenue department issued a press release informing about the developments in the Vodafone case and in no uncertain terms, made its intent known to the world at large. The said release also mentions that Vodafone is being allowed time until November 16, to respond to the show cause.

It seems that the show cause notice runs into several hundred pages in addition to equal pages devoted to annexures. It will be interesting to observe how and when Vodafone responds to the show cause notice. If I paint a scenario, firstly, I feel the 16 day time period to respond is inadequate and I won’t be surprised if a suitable extension is sought. Secondly, what if Vodafone considers challenging the show cause? Plain reading of the Supreme court order suggests that Vodafone can challenge the jurisdiction (now that it has established it) and the jurisdictional High Court (Mumbai) shall have to admit the plea. It will not surprise me if Vodafone seeks a stay of proceedings until the high court gives its verdict on jurisdiction.

What would be the revenue department’s approach?
By thoroughly investigating the case and assembly of detailed facts (pursuant to supreme court’s order), the revenue seems to be bracing up for a long battle. The length of its show cause notice suggests a level of preparedness and spells out its intent loud and clear. The first step would be to establish jurisdiction and thereafter, raise the tax demand.

It is also clear that the revenue by not raising the issue on the taxability of income (in the hands of Hutch) shall successfully circumvent the dispute resolution panel (DRP) procedure, as mandated in the 2009 budget. The panel process suggests that all demands on foreign companies be subject to an approval by the panel, comprising of a collegium of 3 commissioners. Interestingly, the DRP provisions do not apply where a demand is being raised by invoking withholding tax provisions. Had the revenue pursued its case against Hutch, it would have been obligatory to follow the DRP process and thereafter, an appeal would lie with the tax tribunal.

International Developments
The international tax fraternity is anxiously observing the developments on Vodafone case as they continue to believe that India can exercise its fiscal jurisdiction to businesses that have a personal link or to income or assets which have a real or proprietary link to India. Further, taxation of capital gains has been intensively dealt with in model tax conventions, providing that the state of residence of a tax payer shall have primary jurisdiction to tax gains, subject to certain exceptions. However, despite established precedents, tax administrations in select jurisdictions are questioning international reorganisations.

Recently, Chinese tax authorities have asserted to impose tax on transfers by non-residents of equity interest that would otherwise appear not to be taxable in China. To me, these cases seem to have a treaty abuse undertone and do not in any way establish that China intends to tax all such transactions. Similarly, Brazil has been expanding its application of ‘substance over form’ doctrine in its tax law. Nevertheless, there are no reported instances of taxability of offshore transactions. Russian law allows tax authorities to disregard entities or recharacterise transactions, where there is ‘unjustified tax benefit’.

These provisions seem similar to proposals mooted in the direct tax code by way of general anti-avoidance rules. If the DTC provisions have to be viewed in its context, should India be imposing tax on such offshore sale transactions is a question in minds of the international tax fraternity? Though, the proposals under direct tax code clearly suggest that India would prospectively exercise its jurisdiction on such transfers (either by expansion of direct and indirect transfer of capital assets located in India or by invoking GAAR), it still doesn’t answer the question for past transactions under question.

Vodafone has become a case study in its own right, and it is anticipated that the case study be taken to a logical close. The question is how and when?

(The author is a Partner with BMR Advisors and views are entirely personal)

Source: Business Standard 9 November, 2009

G-20 MINISTERIAL MEETING: IMF to Assess G-20 Progress on Recovery, Mulls Financial Levy

•November 7, 2009 • Leave a Comment

Finance officials from the Group of 20 (G-20) industrialized and emerging market economies pledged to maintain economic stimulus measures until recovery from the global crisis is assured and asked the IMF to assess whether countries were on track for delivering strong, sustainable, and balanced growth to avoid future problems.

“Economic and financial conditions have improved following our coordinated response to the crisis,” the G-20 officials said in a statement. “However, the recovery is uneven and remains dependent on policy support, and high unemployment is a major concern. To restore the global economic and financial system to health, we agree to maintain support for the recovery until it is assured.”

Mutual assessment timetable

G-20 finance ministers and central bankers, gathered in the Scottish town of St. Andrews November 6-7, committed to a timetable for a new system of keeping an eye on each others’ economies, under which countries would present national and regional plans by the end of January to support sustainable recovery and job creation.

At their last meeting in Pittsburgh in September, G-20 leaders agreed a framework for peer review, assisted by the International Monetary Fund, that is designed to ensure that national economic policies are consistent with promoting balance in the global economy.

Officials want to avoid derailing the recovery by withdrawing the stimulus too soon or by leaving it so long that the resulting debt encourages investors to push up market interest rates. The IMF says the debt ratio of the advanced G-20 nations could be 40 percentage points above the pre-crisis level by 2014, threatening to drive up borrowing costs as much as 2 percentage points. The IMF outlined in a note to the G-20 leaders a series of seven principles to consider for unwinding the stimulus when appropriate.

The fragility of the rebound was highlighted by a report on November 6 showing the U.S. unemployment rate climbed to a 26-year high of 10.2 percent in October.

Financial sector tax

The G-20 officials—representing around 90 percent of the world’s wealth, 80 percent of world trade, and two-thirds of the world’s population—emphasized the need for quick implementation of banking industry reform, saying that stronger standards should be developed by the end of 2010, with the aim of implementation by the end of 2012 as financial conditions improve.

British Prime Minister Gordon Brown said it was time to consider a global financial levy, such as a tax on transactions or an insurance fee, to build up a “resolution fund” as a buffer against future bailouts. Banks needed “a better economic and social contract” that reflected their responsibilities to society. Any measures must be implemented by all major financial centers, Brown noted.

Following the Pittsburgh summit, the IMF has been working on suggestions for such a levy and plans to have some initial ideas by its Spring Meetings in April, to be held in Washington.

Several options

IMF Managing Director Dominique Strauss-Kahn told reporters the IMF was considering several options for the G-20 to look at. “We can’t go on with a system where some individuals take risks that finally all taxpayers, like you and me, have to pay for. The financial industry has made such big innovations that it is probably impossible to find a transaction tax that will not be avoidable by potential taxpayers. So it will be based not on transactions but on something else.”

He made it clear that there was no consideration of a currency transactions tax.

He said there were two possibilities for a financial sector tax, including a “possible windfall tax for 2009, a one shot thing.” The other would be a more long-term tax. Some trade off between regulation and taxation could be made: the more regulated a country, the less taxation would be needed. For example, European countries may need to tax the financial sector less because their banks were more regulated, while the less-regulated United States may want to impose a higher levy.

He said he was personally in favor of such a levy, that he referred to as “an IMF tax,” but countries could follow their own approach. “We don’t want an extra-simplistic solution that will not be effective. I am very pragmatic: I would prefer a second best solution we can all implement.”

“Think of it as a two-fold objective: (i) incentive for markets to take less risk; (ii) provide resources to an insurance fund if risk materializes.”

IMF First Deputy Managing Director John Lipsky is leading the group within the IMF to prepare a report for the G-20 on the issue. “It is widely accepted that deposit insurance should be funded by a tax on the banking system,” said Lipsky last month. “This can be viewed as a mandatory insurance plan. In the wake of the current crisis, it is appropriate to consider the same issues more broadly across the financial system.” The IMF’s report would cover how potential mitigation costs could be borne and whether it was right to think about specifically charging the financial sector.

Preventing the next crisis

Strauss-Kahn said the IMF was engaged with the G-20 in its deliberations on how the mutual assessment can be conducted and how the Fund could support and assist the G-20 efforts.. “We will ask countries to provide the overview of their policies for the next 2-3 years, and will check whether they add up—if they don’t we will provide scenarios and advice.”

G-20 leaders expect members to have completed their mutual assessment by April, with the aim of providing options to discuss when they meet in June. By November, they intend to refine those policy options “and develop more specific policy recommendations.”

“This will be the main job of the G-20 after this crisis: to prevent the next crisis,” Strauss-Kahn said. “We need to see how policies are consistent together or not.”

Asked by reporters what will happen if policies are not consistent, Strauss-Kahn said he did not expect to find that all G-20 countries’ policies were consistent with each other at present. “We need to provide advice to bridge the gap. It’s in the interest of all countries to avoid crises. If that’s true, they will work on this framework.”

Climate change

G-20 leaders also committed to take action to tackle the threat of climate change and work towards “an ambitious outcome” at a major UN conference in Copenhagen next month.

Officials are considering a finance package to help poorer nations develop green industries and adapt to climate change.

The G-20 comprises Argentina, Australia, Brazil, Britain, Canada, China, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, Saudi Arabia, South Africa, South Korea, Turkey, the United States, and the rotating EU presidency.

Source: IMF Survey 7 November, 2009

From OMM: SAT Sets First Criteria to Enforce Anti-Tax Treaty Shopping Legislation: Holding Company Structures to be Denied Tax Treaty Benefits

•November 5, 2009 • Comments Off

Background

Many investments into China are typically structured with the use of offshore holding companies located in countries or territories that have tax treaties with China.  Popular holding company jurisdictions for China include Hong Kong, Macau, Singapore, Barbados, Cyprus,  Ireland, Luxembourg, Mauritius, and Seychelles.  Benefits of using a holding company structure include the reduction of PRC taxes with respect to PRC source income generated by the investment.  This includes dividends, capital gains, interest, royalties, and other income.  China generally taxes such income at a rate of 10% under domestic law.  With the right holding company structure, however, this tax may be reduced or even avoided entirely. 

Gradually, the SAT has upgraded its domestic tax law to combat perceived abuses in connection with tax treaty planning.  This began with a general anti-abuse provision in Article 47 of the Enterprise Income Tax Law, effective January 1, 2008 and was followed up by the SAT’s Implementation Regulations for Special Tax Adjustments rules on January 8, 2009 which specifically targets tax treaty shopping for anti-abuse sanctions.  Subsequent developments included a number of striking cases in late 2008 where local State Tax Bureaus in Chongqing and Xinjiang actually denied tax treaty benefits using different means (ignoring the holding company in Chongqing and denying treaty residence for Xinjiang).  More recently, the SAT issued procedural rules on August 24, 2009 which took effect from October 1, 2009 (i.e., Administrative Measure on Treaty Benefit Application for Non-resident Enterprises [Trial]) regarding applications for tax treaty benefits.  Under this guidance, holding companies seeking benefits must produce residency certifications and follow other formalities relating to the analysis of their bona fide residency status.  However, until today, no further guidance had been offered on how to conduct such an analysis regarding the tax authorities’ use of the 2008 anti-abuse provision in a tax treaty context. 

The Notice on the Interpretation and Recognition of “Beneficial Ownership” under Tax Treaties (“Circular 601”), issued on October 27, 2009 and released on November 5, 2009 now addresses this issue.  A summary of this major international tax development is set out below.

“Beneficial Owner” Concept is Defined

·            The “beneficial owner” entitled to benefits under an income tax treaty is defined as any person who owns or has control and dominion over the income or the rights or assets which may give rise to such income. 

·            A beneficial owner must be engaged in “substantive” business activities (e.g., manufacturing, distribution or management) in the form of “individuals, cooperation or other forms.”  A pure “conduit” company or shell company that is formed merely to fulfill legal registration obligations in a foreign jurisdiction does not qualify for treaty benefit as a beneficial owner.  Conduit companies refer to companies incorporated for the purposes of the “evasion or reduction of tax, the transfer or the accumulation of income.”

·            The PRC tax authorities will evaluate and determine beneficial ownership based on their “substance-over-the-form” concept. 

Identification of Typical Conduit/Shell Company Structures

Circular 601 sets out the following as negative factors which could determine unfavorable tax benefit treaty status for the applicant:

·            the applicant has the obligation to pay or distribute all or a substantial part of its income (e.g., more than 60%) to a third country resident within a prescribed time (e.g., within 12 months after receiving such income);

·            the applicant has no or almost has no other business activities other than holding the assets or interests pursuant to which such incomes are derived;

·            the applicant’s nature is such that its assets, size, and personnel is relatively small and not commensurate with the income it derives;

·            the applicant has no or almost has no rights of control or disposal with respect to the income, assets, or rights based on which income is derived, and the applicant does not assume any risks or rarely assume risks; 

·            certain income is not taxable or otherwise exempt from tax in the treaty country, or taxed at a very low effective rate;

·            there exists a back-to-back loan through the applicant with terms similar to those for the loan agreement with respect to which is relevant to treaty benefits; and

·            there exists back-to-back royalties through the applicant with terms similar to those for the IP license agreements which are relevant to treaty benefits such as for copyrights, patents, and technology transfer agreements.

In addition, in order to qualify as a “beneficial owner” entitled to tax treaty benefits, the burden will fall upon the applicant to provide supporting documentation showing that it does not fall within any of these factors typical of a conduit/shell company structure.

Circular 601 is a major development in connection with the structuring of investments into China and will have significant implications for existing structures.  Firms will need to re-evaluate the efficacy of certain holding company structures in the first instance, restructure existing structures which may have been based on earlier assumptions, and consider how longer term planning with respect to creating more substance and re-deployment features into holding companies can be used to maintain beneficial treatment. 
O’Melveny & Myers unofficial translation – Notice of the State Administration of Taxation Regarding Interpretation and Recognition of Beneficial Ownership under Tax Treaties (Circular 601)