2014

ISSUE No. 006

Editorial Team

Editor-in-Chief HO Chi-ming

Editors

Webster Ng

Patrick Kwong

Vincent Lo

Jeremy Choi

Percy Wong

Dear Fellow Members,

This is the 6th issue of TIHK newsletter and it comes with a series of events and activities during the past two

months.

To enhance our communication with the Inland Revenue and provide the opportunity for networking, a lunch

gathering with Mr. Wong Kuen Fai, the Commissioner of Inland Revenue was held in January. Mr. Wong has

updated the latest development of IRD and conduct exchanges with our members.

The press conference on Hong Kong Budget Proposal has been an annual event for the Institute. The Institute

addressed our key suggestions on coming budget proposal and reported on “Study on the competitiveness of

Hong Kong Tax System”. The press conference was well attended by media and published in various media

channel.

The other annual event worth mentioning was the Spring Cocktail on 11 February at The Chinese Club with more

than 100 participants. The CTA Graduate Award Presentation for 2013 was also held at the cocktail. Members

and guests took this opportunity to mingle with each other. More activities like Guangdong visit and also

Education & Career Expo at HKCEC will be reported in next issue.

Wish you a Happy, Healthy and Prosperous Year of the Horse!

Yours sincerely,

Joseph Yau

President

The Taxation Institute of Hong Kong

The President’s Message

Contents

I. Latest News

II. Recent Events (December 2013 - January 2014)

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P.1-3

III. Seminars

(a) Recent Seminars (December 2013 – January 2014)

(b) Forth-coming Seminars & Events

(February – March 2014)

P.4-5

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IV. Tax Updates

(a) Hong Kong Tax Updates

(b) PRC Tax Update

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I. Latest News Guangdong Visit (8 – 9 February 2014) The annual visit to Guangdong has been a tradition for the Institute for 30 years. The Institute will arrange a

2-day visit to various tax authorizes and associations in Shenzhen, Dongguan, Guangzhou & the Guangdong

Province. More information will be published in coming issue.

Education and Career Expo 2014 (13-16 February 2014) In order to raise the public awareness of the Institute and CTA exam, we will be joining the 4-day Education and

Careers Expo 2014 organized by the Hong Kong Trade Development Council from 13 to 16 February 2014 at

Level 3, the Hong Kong Convention and Exhibition Centre.

2014 PRC CTA Examination is Now Open for Application PRC CTA examination is now open for application. Please submit the application form on or before 28 March

2014. For more details, please visit our website: http://www.tihk.org.hk/v2/news or contact us at 2810 0438.

II. Recent Events (December 2013 - January 2014)

Beijing Visit

The Institute has arranged the visit to Beijing on 8 January 2014. Met by the officials from the State

Administration of Taxation and The China Certified Tax Agents Association, useful exchanges on our cooperation

and collaborative fronts were conducted during the discussion.

Group photos with Ms. Song Lan, Deputy Commissioner of SAT and President of The China Certified Tax Agents Association (the 4

th from the

left).

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Shanghai Visit Report

學會代表一行十多人於今年 1 月 13 日及 14 日前往上海拜訪了上海海外聯誼會、上海市財政局、

上海市國家稅務局、上海市地方稅務局、上海市稅務學會、上海市國際稅收研究會及上海市註冊

稅務師協會等，席間雙方談論了不少值得大家關心的課題如中國（上海）自由貿易試驗區的最新

情況、營業稅改徵增值稅的實施現況 、上海的最新財政稅收情況、OECD 所發表的“稅基侵蝕

與利潤轉移報告、行動計畫”在中國和上海稅務部門的迴響及加強上海市註冊稅務師協會與香港

稅務學會合作等。在這次訪問中我們暸解到根據初步統計，2013 年上海稅務部門完成稅收收入

8243.2 億元，同比長 9.5%。另外，上海市的稅收收入在 2013 年呈現五方面特點：經濟稅收協調

增長、第三產業領先發展、收入品質逐步提升、結構調整效應初步顯現及重點稅源企業支撐作用

明顯。與會雙方也交流了大陸及香港兩地在制定財政預算方面之問題。

Lunch Gathering with the Commissioner of Inland Revenue

A lunch gathering with Mr. Wong Kuen-fai, the Commissioner of Inland Revenue, was held on 7 January 2014 at

The Hong Kong Bankers Club. Over 70 members have joined the event to mingle with each other and share

their views on the latest tax issues with the CIR.

Group photo with Mr. Wong Kuen-fai, the CIR (the 5th

from the left).

Mr. Wong Kuen-fai, the CIR, highlightd the latest development of Inland Revenue at the lunch gathering.

Mr. Joseph Yau, our President (right), presenting a souvenir to Mr. Wong Kuen-fai, the CIR.

Mr. Ashley Tam, Deputy Commissioner of IRD (the 3

rd

from the left )

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Press Conference on Hong Kong Budget Proposals for 2014/15 & Study on the Competitiveness of the Hong Kong Tax System

A press conference was held on 21 January 2014 at United Centre in Admiralty to announce our proposals on

Hong Kong Budget Proposals for 2014/15 and also report on “Study on the Competitiveness of the Hong Kong

Tax System” attended by over 25 media organizations. At the press conference, we highlighted the key

suggestions to the government and provided a comprehensive reporting on our tax survey of Hong Kong Tax

System. The subject was also widely published in all major media on subsequent dates.

(From left to right) Mr. Marcellus Wong, Past President, Mr. Joseph Yau, our President and Mr. Patrick Kwong, Past President.

At the press conference

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III. Seminar (December 2013 to January 2014) December 2013 “Recent Developments in Hong Kong Tax Law and Practice” (5 December 2013)

Speakers: Mr. Fergus Wong, Director, Tax Services - National Tax Policy Services, PwC

Ms. Anita Tsang, Senior Manager - National Tax Policy Services, PwC

Chairman: Mr. Wilson Cheng, Chairman of CPD Committee

Mr. Wilson Cheng, Chairman of CPD Committee (right) , presented a souvenir to Mr. Fergus Wong (left)

The seminar was well received by the participants

January 2014 “Common Tax Disputes between Taxpayers and the IRD under the Evolving Tax and Accounting

Environment” (7 January 2014)

Speakers: Mr. Jeremy Choi, Partner - Tax Services, PwC

Ms. Emily Chak, Senior Manager - Tax Services, PwC

Chairman: Mr. Wong Shun Loy, Committee member of CPD

About 150 participants attended the seminar

Mr. Wong Shun Loy, presented a souvenir to Ms. Emily Chak

Mr. Jeremy Choi shared his experience in handling common tax disputes his views on future tax challenges.

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“OECD’s BEPS Action Plan – How will it affect Hong Kong” (17 January 2014)

Speakers: Mr. David Russell, AM QC, Barrister, Sydney and London

Chairman: Mr. Wilson Cheng, Chairman of CPD Committee

Mr. Wilson Cheng, Chairman of CPD Committee, presenting a souvenir to Mr. David Russell.

Forth Coming Seminars & Events (February – April 2014)

Seminars:

Date & Time Venue Topic Speaker

19 February 2014

6:30pm-8:30pm

Room UT, SCOPE, 8/F,

United Centre, 95

Queensway Road,

Admiralty, Hong Kong

The New Companies

Ordinance – Key Changes

Mr. Joseph Vaughan,

Barrister at law

1, 8, 15 March

2014

9:30am-12:30pm

Room UT, SCOPE, 8/F,

United Centre, 95

Queensway Road,

Admiralty, Hong Kong

Tax Field Audit and

Investigation workshop

Mr. Philip Hung, Tax

Director of PwC

12 March 2014

6:30pm-8:30pm

Room UT, SCOPE, 8/F,

United Centre, 95

Queensway Road,

Admiralty, Hong Kong

China Custom Issue Mr. Adrien Chen

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IV. Tax Updates (A) Hong Kong Tax Updates

Proposed incentive for taxing captive insurers at half the normal rate

Background

Captive insurance is a form of self-insurance by companies. A captive insurer normally only underwrites

insurance and reinsurance of risks relating to its fellow group companies. One main reason for a group to

establish a captive insurer is generally that some companies within the group may find it difficult or

cost-inefficient to approach the market for insurance coverage of their specific risks.

As one of the measures to foster co-operation between the Mainland and Hong Kong, the Central People’s

Government announced in June 2012 a policy of encouraging Mainland enterprises to form captive insurers in

Hong Kong to enhance their risk management.

Against this backdrop, the Financial Secretary indicated in his 2013/14 Budget delivered in February last year

that he would propose to reduce by half the normal tax rate applicable to the profits of the business of

insurance of offshore risks of captive insurers. This proposal would accord captive insurers the same tax

concession currently available to companies deriving profits from the business of reinsurance of offshore risks

as a professional reinsurer.

The legislative bill implementing the above proposal, the Inland Revenue (No. 3) (Amendment) Bill 2013 (the

Bill), was gazetted on 27 December 2013. The Bill was presented to the Legislative Council for first reading on 8

January 2014.

Provisions of the Bill

The amendments to the Inland Revenue Ordinance (IRO) proposed by the Bill include the following:

► Clause 4 of Bill amends section 14B of the IRO to allow authorized captive insurers as defined in section

23A of the IRO to be taxed, by an irrevocable election in writing, at one-half of the normal profits tax rate

(i.e., 8.25%, being 50% of the current profits tax rate of 16.5%) in respect of their assessable profits

derived from their business of insurance of offshore risks.

► Clause 6 amends section 23A of the IRO by setting out the formula for ascertaining the assessable profits

derived from the business of insurance of offshore risks of an authorized captive insurer. The formula is

basically the same as that applicable for ascertaining the assessable profits derived from the business of

reinsurance of offshore risks of a professional reinsurer.

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► Clause 5 proposes certain consequential amendments to section 19CA of the IRO. Under the proposed

amendments, section 19CA will work to the effect that any losses derived from the business of insurance

of offshore risks of an authorized captive insurer will have to be scaled down by a factor of 1/2 when such

losses are used to offset against other profits of the authorized captive insurer which are taxed at the

normal rate.

As a corollary, any losses suffered by the authorized captive insurer in its other business which are taxed

at the normal rate will need to be multiplied by a factor of 2 when such losses are used to offset against

profits of the authorized captive insurer which are taxed at the concessionary tax rate.

► Clause 3 proposes that the profits tax concession applies in relation to the year of assessment

commencing on 1 April 2013 and to all subsequent years of assessment.

New FAQs on shared-based expenses On 6 January 2014, the Inland Revenue Department (IRD) published 4 FAQs (i.e. Q10, Q11, Q12 and Q13) on the

tax position for recharged share-based expenses under a group recharge arrangement. The IRD’s position is

summarized as follows:

Question 10 - the amount of deduction

A parent company has acquired its own shares from the market for the purpose of discharging its obligation

under a group share-based payment arrangement. The company then recharges its subsidiary at fair value at

the end of each year during the vesting period of the share award. The following amounts, which may be

considered for deduction, are different:

The actual acquisition costs incurred by the parent company

The recharge on the subsidiary

The market value of the shares when they vest on the employees

IRD’s view: The subsidiary can claim deduction based on the amount of recharge given that such amount is not

excessive. It is expected that adjustment of the recharge amount to account for the market circumstances

should be provided under the terms of a commercial realistic recharge agreement.

Question 11 - the timing of deduction

Following Question 10, the subsidiary settles the recharge at the end of each year during the vesting period.

IRD’s view: The subsidiary can only claim deduction after the lapse of the vesting period. The subsidiary is only

liable and has a definite liability for the expenses in connection with the provision of share benefits upon

vesting of the shares in or exercise of the share options by the employees.

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Question 12 - taxability of the recharge

For the purpose of discharging its obligation under a group share-based payment arrangement, a parent

company, which carries on business in Hong Kong, acquires its own shares from the market or issues new shares.

Then, the parent company receives recharge from its subsidiaries.

IRD’s view: If the parent company issues new shares for the said purpose, the recharge payment received is

capital in nature and not taxable. If the parent company acquires its own shares from the market, taxability of

the recharge payment depends on whether the parent company was trading in the shares concerned. However,

if the sole purpose of the acquisition is to discharge the above obligation, the IRD generally would not regard

the recharge as a trading receipt.

Question 13 - deduction when employees are transferred

An employee, who received share-based benefit, is transferred from one subsidiary to another during the

vesting period. The parent company recharges each subsidiary for the respective amount of share-based

payments to the employee.

IRD’s view: Both subsidiaries can claim deduction of the respective amount when the stock option is exercised

by or when the stock award vests in the employees, provided that the recharge arrangement is properly

documented and the terms of the recharge are at arm’s length.

Hong Kong and Vietnam sign second protocol to comprehensive agreement on

avoidance of double taxation The Second Protocol to the Agreement between Hong Kong and Vietnam for the Avoidance of Double Taxation

and the Prevention of Fiscal Evasion with Respect to Taxes on Income was signed on 13 January 2014. The

second protocol upgrades the Exchange of Information Article in the Agreement to the 2004 version of the

Organisation for Economic Co-operation and Development (“OECD”). The Article requires the contracting

parties, upon receiving a request for information, to exchange information even when there is no domestic tax

interest involved. The second protocol will come into force after the completion of ratification procedures and

notification by both sides.

Departmental Interpretation and Practice Note No. 47 (DIPN 47) (Revised) Recently, the IRD revised its DIPN 47 to set out its current practice on exchange of information (“EoI”) under a

tax information exchange agreement (“TIEA”) and comprehensive avoidance of double taxation agreement

(“CDTA”). The revised DIPN 47 was issued in January 2014. Certain salient points are set out below.

CDTA is preferred over TIEA

The OECD requires a jurisdiction to make available both CDTA and TIEA as instruments for EoI. The IRD states

that it will remain a policy priority to seek to conclude CDTAs with other jurisdictions. However, it cannot

preclude the possibility of entering into TIEAs but not CDTAs with some jurisdictions.

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Information “in possession or in control” can be obtained

Sections 51 and 52 clarify that the power of the Commissioner to obtain information is exercisable not only in

respect of information possessed by a person, but also in respect of information in a person’s control. It may be

worth to pay attention to the meaning of “possession”. Paragraph 16 of DIPN 47 (Revised) states that the term

“possession” does not mean physical possession only, but also bears the meaning of legal possession (i.e.

possession which is recognized and protected by law). If a person is the owner of the information which is kept

by other party, the person is still in possession of such information.

Exchange of information upon request only

The IRD confirms that the information will only be exchanged upon request. The other two forms of

information exchange, i.e. (a) automatic, and (b) spontaneous, are not adopted. Also information will only be

supplied upon specific and bona-fide requests being received from the competent authority of a treaty partner.

Scope of exchange of information

Following the OECD standard, generally Hong Kong shall exchange such information that is foreseeably relevant

for carrying out the provisions of the CDTA, or to the administration or enforcement of the domestic laws of the

treaty partners concerning taxes as agreed between Hong Kong and the treaty partners. The exact scope will be

defined in the treaties signed by Hong Kong with other jurisdictions. Nevertheless, the treaty partners are not

allowed to engage in “fishing expeditions”. The 2012 version of OECD Model EoI Article and its commentary

provided more detailed interpretation of the prevailing standard of “foreseeable relevance” including request

for a group of taxpayer. Referring to this 2012 version, the IRD states that it would accede to a group request if

the treaty partner could substantiate that the request is related to tax purposes and that it could meet the

standard of “foreseeable relevance”.

Taxes covered

After enactment of the 2013 Amendment Ordinance, the coverage of tax types for exchanging information is

extended to any tax imposed by the laws of Hong Kong or the treaty partners. A positive listing approach will

be adopted to set out the tax types to be covered in each CDTA and TIEA.

Persons covered

Exchange of information is not limited to information relating to the affairs of residents of Hong Kong and the

treaty partners. The information on activities carried on in Hong Kong by a resident person of a third jurisdiction

can be exchanged changed if the tax liability of that person as a non-resident taxpayer of the treaty partner is at

issue.

Use of information for other purposes

Any information exchanged shall be disclosed only to persons or authorities concerned with the assessment or

collection of, the enforcement or prosecution in respect of, or determination or appeals in relation to the taxes

referred in the EoI Article in a CDTA or a TIEA. Such persons or authorities shall use the information only for

such purposes. Unless the new requirement in the 2012 version of the OECD Model EoI is adopted in a CDTA,

the information exchanged shall not be used for purposes other than those for which it has been exchanged.

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The information obtained cannot be used for non-tax purposes. If the new requirement in the 2012 version

of the OECD Model EoI is adopted, the use of information exchanged for other purposes should be allowed

provided that such use is allowed under the laws of both Hong Kong and the treaty partner and the competent

authority of the supplying party authorizes such use. Under the laws of Hong Kong, tax information may only be

used for limited non-tax related purposes, such as recovery of proceeds from drug trafficking, organized and

serious crimes and terrorist acts. The non-tax related purposes, if agreed, will be specified in the CDTAs and

their protocols.

Confidentiality of information exchanged

Information received under CDTAs and TIEAs shall be treated as confidential and may be disclosed only to

persons or tax authorities concerned with the assessment, collection and enforcement of the taxes. Whilst the

OECD standard permits disclosure of information exchanged to the oversight authorities, Hong Kong adopts a

more prudent approach that disclosure to oversight authorities is not permitted in general. Also, the IRD will

not give any consent to allow any treaty partner to disclose information exchanged to any third jurisdiction.

(B) China Tax Updates

PUBLIC NOTICE [2013] 40 - TAX RECORD-FILING FOR CERTAIN OUTBOUND REMITTANCES IN THE PRC

China maintains a strict foreign exchange control system. In the 2000’s, tax clearance system for the remittance of cross border current account items was introduced. PRC enterprises have to submit the relevant tax clearance documents (as well as other related supporting documents) to the designated foreign exchange bank or the local branch of State Administration of Foreign Exchange (SAFE) for remittance of foreign currency exceeding USD 1,000 before the bank could proceed with the remittance application. Such remittance threshold was adjusted by the circulars in later years, e.g. Circular [2006]19 (waiver of tax clearance requirement if the remittance is not exceeding USD 50,000) and Public Notice [2008]64 (if the remittance is not exceeding USD 30,000)

On 9 July 2013, the State Administration of Taxation (SAT) and State Administration of Foreign Exchange (SAFE) jointly issued “Notice of SAFE and SAT on Issues relating to the Tax Record-Filing for Payments to Foreign Parties under Service Trade, etc.” (“Public Notice [2013]40”). It prescribes a new tax record-filing system to replace the advance tax clearance certificate system for the following outward remittances effective 1 September 2013:

(a) Income derived by non-residents from

services (e.g. transportation, tourism, telecommunications, construction, installation, insurance, finance, information technology and entertainment)

intangible licensing finance lease real estate transfer equity transfer equity investment (e.g. dividend) foreign loan (e.g. interest) guarantee; and various current transfer items

(b) Expatriates’ PRC-sourced employment income

(c) Reinvestment of PRC-sourced earnings by foreign investor

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Pursuant to Public Notice [2013]40, the new tax record-filing system is as follow:

a. If the foreign exchange remittance under the service trade is not exceeding USD 50,000, it can be processed

directly at the banks. In general, no document verification is required.

b. If the foreign exchange remittance under the service trade is exceeding USD 50,000:

The PRC enterprise needs to perform a tax record-filing with its in-charge state tax bureau (unless the remittance falls into the exemption list)

Three copies of the tax record-filing form (the form can be obtained from the in-charge state tax bureau or its government homepage) should be submitted to its in-charge state tax bureau

For the first time transaction’s tax record-filing, supporting documents such as legal agreement should also be provided to the in-charge state tax bureau

One stamped copy of the tax record-filling form will be returned to the PRC enterprise by the in-charge state tax bureau. The PRC enterprise should then present the stamped form to the designated bank to apply for the remittance

For subsequent remittance related to the same transaction, the PRC enterprise needs to provide an updated tax record-filing form with its in-charge state tax bureau

The tax record-filing package submitted will be reviewed by the in-charge state tax bureau within 15 days of stamping, and the tax officials will focus on (i) whether the information contained in the record filing package is true and accurate; (ii) if all PRC taxes have been properly paid; and (iii) in case tax treaty benefit was claimed, whether the taxpayer and the transaction is qualified. In cases where taxes have not been properly paid, the in-charge state tax bureau will issue a tax demand note to the taxpayer (or the withholding agent), and may impose a late payment penalty and surcharge(s).

POINTS TO NOTE

Since remittance can take place right after the PRC enterprise obtains the stamped tax

record-filing form, the new policy will make it easier to process frequent transactions of a small amount.

The in-charge state tax bureau will examine the transaction after the remittance which will not hold up the remittance process. PRC restrictions on international payments under service trade items are eliminated and the approval requirement for forex purchases and payments under service trade is removed.

On the other hand, less frequent transactions of a large amount (i.e. >US$50,000) are still subject to document verification by banks.

PRC enterprises should ensure that their remittance applications are well supported by relevant documentation on the related tax positions.

PRC enterprises should not overlook the regulatory and tax compliance requirements for forex transactions. Late payment penalty and surcharges could be imposed by the in-charge state tax bureau.

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OUR COMMENTS

The old tax clearance system creates inefficiency, especially in the cross-border service transactions. Public Notice 40 eliminates the existing requirement that tax clearance must be secured before outbound remittance can be carried out. The conversion from the advance tax clearance system to the tax record-filing system could significantly accelerate the outbound remittance process. However, PRC enterprises should be aware that they may still have the obligation to obtain the required license or to register the agreement with relevant authorities (e.g. registration of know-how agreement with the Ministry of Commerce) even though such documentation may no longer be required to be verified during the outbound remittance process.

Public Notice [2013]40 is a welcome development for most of the MNCs doing business in China. PRC enterprises are encouraged to proactively communicate with their in-charge tax bureau to understand any local practices and make corresponding changes to their internal procedures (e.g. preparing and keeping of transaction documentation).

RSM Nelson Wheeler Tax Advisory Limited Samuel Chan, Tax Director

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金融商品轉讓營業稅新處理方法

國家稅務總局於 2013 年 11 月 6 日發佈了《有關金融商品營業稅處理的稅務公告》（國家稅務總

局公告 2013 年第 63 號，以下簡稱“63 號公告”）。63 號公告取消了分類計算金融商品轉讓營業

稅的規定；不同種類的金融商品買賣出現的正負差，將可在同一個納稅期內相抵。63 號公告自

2013 年 12 月 1 日起施行，2002 年發佈的金融商品轉讓相關營業稅處理的對應規定（即國稅發

[2002] 9 號文件第 14 條，以下簡稱“9號文”）將同時廢止。原 9 號文規定金融商品轉讓業務，按

股票、債券、外匯、其他四大類劃分。同時，計稅營業額為金融商品轉讓的正負差相抵後的餘額，

但該抵消僅限於同一大類下的金融商品，且在同一個納稅期內。正負差相抵後仍出現負差的，可

結轉下一個納稅期相抵；但年末時仍出現負差的，不得轉入下一個年度。63 號公告統一現行營

業稅關於金融商品轉讓的稅務處理，同時適用於金融和非金融機構納稅人。如前所述，63 號公

告執行後，不再對金融商品進行分類，從而將消除金融商品分類上的爭議。同時，在計稅營業額

時，可不分類別合併計算計稅營業額；不同金融商品的轉讓正負差在同一納稅期可以相抵；相抵

後仍出現負差的，可結轉至下一個納稅期相抵，但不得轉入下一年度 。

鐵路運輸和郵政業營改增試點政策

根據國務院常務會議決定，財政部和國家稅務總局在 2013 年 12 月 12 日聯合印發《關於鐵路運

輸和郵政業納入營業稅改徵增值稅試點的通知》，明確從 2014 年 1 月 1 日起鐵路運輸和郵政業

納入營改增試點的相關政策。鐵路運輸和郵政業適用 11%的稅率。

非居民企業股權轉讓適用特殊性稅務處理有關問題

國家稅務總局 2013 年 12 月 12 日發佈了《關於非居民企業股權轉讓適用特殊性稅務處理有關問

題的公告》 （國家稅務總局公告 2013 年第 72 號，以下簡稱“72 號公告”）。72 號公告就《財政

部、國家稅務總局關於企業重組業務企業所得稅處理若干問題的通知》（財稅[2009]59 號，以下

簡稱《通知》）第七條第（一）、（二）項規定的兩類跨境股權轉讓的情形（即(1)轉讓方和受讓方

均為非居民企業的情形及(2)轉讓方為非居民企業、受讓方為居民企業的情形）做出具體指引。

72 號公告自發佈之日起施行，但實施之前發生的非居民企業股權轉讓適用特殊性稅務處理事項

尚未處理的，仍可依據 72 號公告規定辦理。《國家稅務總局關於加強非居民企業股權轉讓所得

企業所得稅管理的通知》（國稅函[2009]698 號）第九條（即要求省級稅務機關對特殊性稅務處

理進行核准的規定）同時被廢止，但 72 號公告仍要求主管稅務機關就稅務處理層報省級稅務機

關。未進行特殊性稅務處理備案或備案後經調查核實不符合條件的，應適用一般性稅務處理的規

定。

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72 號公告正文全文如下：

為規範和加強非居民企業股權轉讓適用特殊性稅務處理的管理，根據《中華人民共和國企業所得

稅法》及其實施條例、《財政部、國家稅務總局關於企業重組業務企業所得稅處理若干問題的通

知》（財稅[2009]59 號，以下簡稱《通知》）的有關規定，現就有關問題公告如下：

一、 本公告所稱股權轉讓是指非居民企業發生《通知》第七條第（一）、（二）項規定的情形；

其中《通知》第七條第（一）項規定的情形包括因境外企業分立、合併導致中國居民企

業股權被轉讓的情形。

二、 非居民企業股權轉讓選擇特殊性稅務處理的，應於股權轉讓合同或協議生效且完成工商

變更登記手續 30 日內進行備案。屬《通知》第七條第（一）項情形的，由轉讓方向被

轉讓企業所在地所得稅主管稅務機關備案；屬《通知》第七條第（二）項情形的，由受

讓方向其所在地所得稅主管稅務機關備案。

股權轉讓方或受讓方可以委託代理人辦理備案事項；代理人在代為辦理備案事項時，應向主管稅

務機關出具備案人的書面授權委託書。

三、 股權轉讓方、受讓方或其授權代理人（以下簡稱備案人）辦理備案時應填報以下資料：

（一）《非居民企業股權轉讓適用特殊性稅務處理備案表》（見附件 1）；

（二）股權轉讓業務總體情況說明，應包括股權轉讓的商業目的、證明股權轉讓符合特殊性

稅務處理條件、股權轉讓前後的公司股權架構圖等資料；

（三）股權轉讓業務合同或協議（外文文本的同時附送中文譯本）；

（四）工商等相關部門核准企業股權變更事項證明資料；

（五）截至股權轉讓時，被轉讓企業歷年的未分配利潤資料；

（六）稅務機關要求的其他材料。

以上資料已經向主管稅務機關報送的，備案人可不再重複報送。其中以複印件向稅務機關提交的

資料，備案人應在複印件上註明“本複印件與原件一致”字樣，並簽字後加蓋備案人印章；報送中

文譯本的，應在中文譯本上註明“本譯文與原文表述內容一致”字樣，並簽字後加蓋備案人印章。

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四、主管稅務機關應當按規定受理備案，資料齊全的，應當場在《非居民企業股權轉讓適用特殊

性稅務處理備案表》上簽字蓋章，並退 1 份給備案人；資料不齊全的，不予受理，並告知備

案人各應補正事項。

五、非居民企業發生股權轉讓屬《通知》第七條第（一）項情形的，主管稅務機關應當自受理之

日起 30 個工作日內就備案事項進行調查核實、提出處理意見，並將全部備案資料以及處理

意見層報省（含自治區、直轄市和計劃單列市，下同）稅務機關。

稅務機關在調查核實時，如發現此種股權轉讓情形造成以後該項股權轉讓所得預提稅負擔變化，

包括轉讓方把股權由應徵稅的國家或地區轉讓到不徵稅或低稅率的國家或地區，應不予適用特殊

性稅務處理。

六、非居民企業發生股權轉讓屬《通知》第七條第（二）項情形的，應區分以下兩種情形予以處

理：

（一）受讓方和被轉讓企業在同一省且同屬國稅機關或地稅機關管轄的，按照本公告第五條規

定執行。

（二）受讓方和被轉讓企業不在同一省或分別由國稅機關和地稅機關管轄的，受讓方所在地省

稅務機關收到主管稅務機關意見後 30 日內，應向被轉讓企業所在地省稅務機關發出《非

居民企業股權轉讓適用特殊性稅務處理告知函》（見附件 2）。

七、非居民企業股權轉讓未進行特殊性稅務處理備案或備案後經調查核實不符合條件的，適用一

般性稅務處理規定，應按照有關規定繳納企業所得稅。

八、非居民企業發生股權轉讓屬《通知》第七條第（一）項情形且選擇特殊性稅務處理的，轉讓

方和受讓方不在同一國家或地區的，若被轉讓企業股權轉讓前的未分配利潤在轉讓後分配給

受讓方的，不享受受讓方所在國家（地區）與中國簽訂的稅收協定（含稅收安排）的股息減

稅優惠待遇，並由被轉讓企業按稅法相關規定代扣代繳企業所得稅，到其所在地所得稅主管

稅務機關申報繳納。

九、省稅務機關應做好轄區內非居民企業股權轉讓適用特殊性稅務處理的管理工作，於年度終了

後 30 日內向國家稅務總局報送《非居民企業股權轉讓適用特殊性稅務處理情況統計表》（見

附件 3）。

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十、本公告自發佈之日起施行。本公告實施之前發生的非居民企業股權轉讓適用特殊性稅務處理

事項尚未處理的，可依據本公告規定辦理。《國家稅務總局關於加強非居民企業股權轉讓所

得企業所得稅管理的通知》（國稅函[2009]698 號）第九條同時廢止。

特此公告。

附件：1.非居民企業股權轉讓適用特殊性稅務處理備案表（略）

2.非居民企業股權轉讓適用特殊性稅務處理告知函（略）

3.非居民企業股權轉讓適用特殊性稅務處理情況統計表（略）

國家稅務總局

2013 年 12 月 12 日

全國稅務工作會議

全國稅務工作會議於 2013 年 12 月 26 日在北京召開。會議總結回顧了 2013 年稅收工作，並對

2014 年的稅收工作進行了全面部署。

回顧 2013 年，我國加強了在稅收管理方面的措施，包括通過堵塞漏洞增收、科技管理增收，實

施海關進口增值稅專用繳款書“先比對後抵扣”管理辦法、改革車輛購置稅徵管模式、加強土地增

值稅徵管、強化股權轉讓稅收管理等。於推進稅制改革方面，除了將營改增擴大到全國 22 個省

區市及推進金稅三期的試點外，亦落實了暫免徵收部分小微企業增值稅和營業稅政策，加大鼓勵

高新技術、區域發展、節能環保等稅收政策落實力度。

展望 2014 年，我國將實施鐵路運輸和郵政業營改增試點工作，落實企業年金和職業年金個人所

得稅遞延納稅、擴大研發費用稅前扣除範圍、治理大氣污染、鼓勵居民消費、支持棚戶區改造、

推動上海自貿區發展、擴大國家自主創新示範區先行先試政策實施範圍等稅收措施。稅務機關亦

致力完善“先比對後抵扣”管理辦法，優化出口退稅管理，加大小微企業發展政策支持力度，完善

促進就業創業、企業重組與股權投資、支持走出去、服務外包等方面稅收政策。

另一方面，我國亦會加快推動徵管改革，實施《多邊稅收徵管互助公約》涉及的國內法修改工作

及加大反避稅行業聯查和跨區域聯查力度，積極參與 G20 框架下和其他國際稅收規則制定。

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