Hong Kong Scope of Profits Tax

Profits tax is levied under the Inland Revenue Ordinance on the "assessable profits" of corporate entities, partnerships, trusts and sole proprietorships. It is levied according to the "territorial principle" meaning that it is the source of the income rather than the residential or non-residential status of the entity that determines whether or not trading income is or is not subject to Hong Kong profits tax.

The territorial principle means that only income which meets the following 3 preconditions is subject to Hong Kong profits tax:

• The entity must trade in Hong Kong
• The income must arise from such a trade
• The income must arise in or be derived from Hong Kong

The residential or non-residential status of the entity is irrelevant as is the fact that the income is or is not exempt from tax in a foreign jurisdiction. Advance tax rulings are available in the SAR and are particularly favored and recommended on the question of whether or not for profits tax purposes trading income is deemed onshore and taxable or offshore and tax exempt.

"Source of income" for profits tax purposes has been defined as the geographical location of the operation which substantially gave rise to the income, but the Inland Revenue's Practice Note No 21 adds more precise criteria:

The establishment of an office in Hong Kong: does not of itself render a company liable to profits tax where that office is not generating profits from within the territory.

Place where the contract was negotiated and executed: A key criterion is the place where the contract was negotiated and signed. Income relating to a sale contract negotiated by the seller from the territory by way of facsimile or telephone where the negotiation did not require travel outside the territory is deemed Hong Kong source income for profit tax purposes. Likewise if the contract is negotiated and signed outside the territory and the goods sold are not sourced from within the territory then any income arising is not deemed Hong Kong source income for profits tax purposes. This is often achieved by utilizing an offshore company which re-registers in the territory as a foreign company but whose directors both remain non resident and negotiate and execute the contract from the offshore jurisdiction.

Booking Center: Where the Hong Kong entity is merely a booking center in the sense that it does not negotiate or draft the sale agreement (which is carried out abroad) but merely issues an invoice on instructions, operates a bank account and maintains accounting records covering the transaction then the income from such a transaction is not deemed Hong Kong source income for profits tax purposes.

Shares & Securities : Gains from shares and securities purchased and sold on the territory's stock exchange are deemed Hong Kong source income for profit tax purposes (assuming the entity is subject to profit tax on such an activity).

Cross Border Land Transportation: Income from cross-border land transportation is deemed Hong Kong source income if the passengers or goods are normally uplifted in Hong Kong.

Loans : Loan interest on a loan made available to the borrower within the jurisdiction of Hong Kong is deemed to be Hong Kong source income for profits tax purposes and taxable in the hands of the Hong Kong lender whereas loan interest on a loan made available to the borrower in a foreign jurisdiction is not deemed Hong Kong source income and is therefore not taxable.

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Hong Kong Calculation of Taxable Base

A number of factors including the territorial principle have created an extremely attractive fiscal regime exempting categories of income which in most other jurisdictions would normally be subject to a profits tax:

• Dividend income received by a Hong Kong parent company from either a resident or foreign subsidiary is not deemed income in the holding company's hands and is thus not subject to an assessment to profits tax.
• There is no separate schedule of capital gains tax in Hong Kong. Nor does the territory follow the practice of other jurisdictions and tax capital gains as trading income which is subject to profits tax. However by way of exception a business whose activities is to trade in capital assets is assessed to profits tax on any profits made on the sales of those capital assets as if these gains were trading income. Likewise if the asset is deemed a revenue asset as opposed to a capital asset then any profits made on its disposal are deemed trading income and assessed to profits tax. The absence of capital gains tax (often together with other factors) has had a number of fiscal consequences:
  • Profits remitted to a Hong Kong parent which represent the profitable disposal of its shareholding in a resident or non resident subsidiary are not assessed to tax in the territory both because the gains are capital gains and because (in the case of a non resident company) income arising outside jurisdiction is exempt from tax under the principle of territoriality.
  • The profitable disposal by a Hong Kong entity of foreign real estate is not assessed to tax in the territory both because the gains are capital gains and because of the principle of territoriality. This includes a disposal effected by means of the Hong Kong entity selling 100% of the shares in a company whose sole asset is the foreign real estate.
  • Since currency gains and losses are considered to have a capital nature they are neither taxable profits nor deductible losses.
  • The transfer by a Hong Kong entity of capital assets to a foreign or resident subsidiary or branch at market value and at a profit is considered a capital gain and thus does not attract tax in Hong Kong (unless the assets are classified as revenue assets).

• Rental income from foreign real estate is not assessable income in Hong Kong for profit tax purposes. (However depreciation & interest payments on loans made to finance the real estate tax are non deductible in the territory).
• The profits and losses of the foreign branch or subsidiary of a Hong Kong company are neither taxable profits nor deductible losses in Hong Kong owing to the territoriality principle.
• Interest income received by a resident or non resident business entity on deposits lodged with a financial institution are exempt from profits tax (By way of exception if the deposit was made by a "financial institution" then any interest received by the financial institution is deemed trading income for profits tax purposes and taxed accordingly).
• The tax treatment of loan interest payments and receipts requires a special mention. 3 situations apply:
  
  • Loan interest repayments made by a Hong Kong borrower to a foreign lender are only tax deductible in Hong Kong if the foreign lender is a "financial institution". If the foreign lender is not a financial institution but is the parent or subsidiary of the Hong Kong borrower the interest payments are not tax deductible in the territory unless the parent or subsidiary is a connected company and is subject to Hong Kong profits tax on the loan interest receipts.
  • Loan interest repayments received by a Hong Kong company on a loan made to a 3rd party are not taxable income in the hands of the Hong Kong lender if the loan was advanced to the borrower from a foreign jurisdiction such as Gibraltar. If the loan was advanced to the borrower from Hong Kong then the loan interest repayments are taxable in the territory.
  • A Hong Kong parent company which borrows money to set up a subsidiary or a branch in a foreign country cannot deduct the cost of the loan for profit tax purposes since the income earned by the borrower has a foreign source. Therefore the loan should always be sourced by the foreign subsidiary or the foreign branch in the foreign jurisdiction in which it will be tax deductible.
    
• Owing to the principle of territoriality there is no controlled foreign company legislation under which the profits and capital gains of non resident subsidiaries can be taxed as if they were the profits of a resident parent company.(The converse applies in both the United States and the United Kingdom).
• Consolidated group accounting under which the profits of one company in the group can be set off against the losses of another company in the group so as to reduce the over all profit subject to profits tax does not exist in Hong Kong.
• Losses can be carried forward indefinitely. This compares favorably with other jurisdictions which only allow losses to be carried forward for a fixed period of time (usually 5 years).
• Since there are no debt/equity thin capitalization rules in Hong Kong a foreign parent can set up a resident subsidiary with a minimum of share capital and a maximum of loan capital and thereby reduce taxable profits arising in Hong Kong through excessive interest payments.
• The repayment by a foreign subsidiary to its Hong Kong parent of the principal of loan capital or share capital is free of tax in the territory including where the repayment is by way of a capital reduction or a final dividend distribution in a liquidation.
• The following sources of trading income are exempted from profits tax:
  
  • Interest received or capital gains made on the purchase, retention or sale of a Government bond issued under the Loans (Government Bonds) Ordinance;
  • Exchange fund debt instruments;
  • Hong Kong dollar denominated multi – agency debt instruments;
  • Specified investment schemes which comply with the requirements of a government supervisory authority are exempt from tax. Specified investment schemes include investments in unit trusts and mutual funds.

Profits Tax Deductible Allowances

The following allowances are deductible from assessable profits for profits tax purposes.

• A deduction is allowed for a contribution (or provision for a contribution) by an employer amounting to not more than 15% of the employee's annual salary into a recognized retirement scheme registered under the Occupational Retirement Schemes Ordinance. (It is in any event an offence for an employer to operate a pension scheme that is not registered under this Ordinance). Since the Mandatory Provident Fund Scheme came into effect on 1st December 2000 allowable deductions are either 5% of an employee's gross salary or a maximum of USD2,560 per month.
• Charitable donations made to approved charitable institutions or trusts of a public character or to the government of the Hong Kong Special Administrative Region, amounting in aggregate not less than HKD100 but not exceeding 35% (10% for years of assessment up to and including 2002/03; and 25% for years of assessment 2003/04 to 2007/08) of the adjusted assessable profits before deduction of donations, are allowable for deduction in computing the assessable profits.
• Hong Kong tax paid on foreign income which by law is chargeable to profits tax in Hong Kong is an allowable deduction for profits tax purposes. (N.B. foreign source income is not normally subject to tax in the territory).
• Any property tax already paid is deductible from income for profits tax purposes;
• Depreciation allowances for capital equipment are as follows:
  
  • 60% of the cost of all other plant and machinery can be written off in the first year with a rate of 10-30% written off thereafter.
  • 20% of the cost of construction of an industrial building can be written off in the 1st year with 4% per annum thereafter.
  • Expenditure incurred refurbishing or renovating business premises can be written off in 5 equal installments.
  • In May, 2004, LEGCO expanded the scope of deduction for research and development expenses under profits tax to cover design-related expenses.

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Hong Kong Sales Taxes

Hong Kong does not currently have a sales tax, but there has been much discussion of the need for one. In March, 2004, then Financial Secretary Henry Tang announced that the introduction of a sales tax was likely to be at least three years away. But the Hong Kong government said in December 2006, that it will abandon plans for a goods and services tax.

Tang used his maiden budget speech to make the case for the introduction of a GST-style indirect tax. “Hong Kong's tax base is narrow. In the long run, we need to broaden it to secure a steady source of revenue,” he observed, adding that:

“In Hong Kong, non-tax revenue accounts for about 40 per cent of total revenue, whereas the figure for OECD economies is around 14 per cent. This shows that Hong Kong has a far heavier reliance than those economies on non-tax revenue, such as land revenue and investment income.”

He continued: “Hong Kong is the only developed economy that does not have one. GST is broad-based and equitable, and is capable of yielding a sizeable and steady revenue. Depending on any exemptions, a GST of 5 per cent would generate around $20-30 billion revenue for the government in a full year."

“Besides, being less sensitive than direct taxes to the cyclical movement of the economy, GST can enhance the government's ability to withstand the pressure on public finances brought about by an economic downturn.”

Tang announced at the time that the government had established an internal committee to conduct a detailed survey into the implementation of a sales tax in the territory, drawing upon the experiences of other nations. The committee was expected to report to the Financial Secretary by the end of 2004. “After that, I will announce what will be done next. We are likely to need at least three years to implement GST.”

In his 2006 budget speech, Mr Tang said that while Hong Kong's financial position had been improving gradually, the jurisdiction still faced the problem of a narrow tax base: At the time, about one in three employed people paid tax and most of the revenue from salaries tax comes from the minority of taxpayers.

To broaden the tax base, Mr Tang reiterated that he will consider introducing a goods and services tax - after publishing a consultation paper on the subject later in the year to seek the public's views.

In a surprising about turn, the Hong Kong government said in December 2006, that it will abandon plans for a goods and services tax in the face of widespread public hostility to the idea.

Public consultation has showed that people have concerns that a GST would be inflationary, would be regressive and would discourage tourists.

“We have heard clearly a strong opposition to the GST from the public,” said Financial Secretary Henry Tang Ying-yen. He said that the government would still put forward ideas for widening the tax base, something that has been strongly urged on Hong Kong by the IMF and other bodies, but that they would not include the GST as an option.

Commenting on the motion at the time, Henry Tang said that: "We are disappointed at the outcome. Actually the biggest difference between the government and the Hon Yeung Sum's motion, that this Council opposes the introduction of a Goods and Services Tax, is that the actual effect of the motion will suffocate further discussion on broadening the tax base and a Goods and Services Tax. I hope in this incident, that LegCo members have not misjudged public sentiment nor have they lost a valuable chance to discuss a very important subject in the community."

He continued: "Actually, there was a lot of discussion today regarding various different types of taxes. New taxes, for example capital gain tax, progressive tax or dividend tax and indeed they have raised a number of questions as well as concern about the GST. This is exactly why we should continue this discussion and we should continue to consult."

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Hong Kong Property Tax

Property tax is levied annually on the owner or occupier of real estate located in Hong Kong. Since ownership may be split (eg an entity with a 100 year lease may grant a 50 year sublease to a 3rd party) separate assessments may be made on the same parcel of land. Property tax which is governed by the provisions of the Inland Revenue Ordinance has the following characteristics:

• The annual assessment to property tax is based on 100% of the annual rental income of the property less any rates paid, any bad debts, a repairs and outgoings allowance constituting a maximum of 20% of the annual rental income (irrespective of whether or not more was actually spent) and other allowable deductions. In determining "rental income" the Inland Revenue will include any premiums, service charges, management fees, rates, repairs and outgoings paid by the tenant either to the owner or on behalf of the owner under the terms of the lease. In order to assist the inland revenue to assess the rental income the owner is obliged to keep records for up to 7 years and inform the tax authorities of the actual sums received.
• Property tax is based on the territorial principle and is levied on buildings, parts of buildings, wharves, piers and other structures located in Hong Kong. The fact that the owner is non resident, non domiciled or a national of a foreign country is completely irrelevant and does not exempt him from having to pay this tax.
• The tax rate is 15% (2008/9 onwards) of the assessed annual rental income.
• Property tax is levied on a provisional assessment basis which takes into account the previous year's rental income with a tax credit being granted where the previous year's rental income exceeds the current year's rental income. Relief is also given where part of the assessed rental income is a bad debt.
• The following types of property are exempted from this tax:
  
  • The properties of foreign governments;
  • Charitable bodies exempted from taxation;
  • Business entities who derive profits from and pay profits tax on rental income derived from ownership of real estate are entitled to a set-off of property tax against profits tax with a tax credit being granted where the property tax exceeds the profits tax;
  • A corporation which purchases a property for its own occupation does not pay property tax on the deemed rental income which it could have earned if it had rented out the building.
    
• It is advisable for properties to be owned by Hong Kong corporate entities since property tax does not make allowances for either depreciation or interest costs on a loan to finance the purchase, while such costs are deductible for corporate profits tax purposes. A foreign company cannot own real estate in Hong Kong unless it is registered as a foreign company under the provisions of the Companies Ordinance.

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Hong Kong Stamp Duty

In November 2010, Financial Secretary Mr John C Tsang proposed to introduce a Special Stamp Duty (SSD) on residential properties as part of the the government's attempts to curb speculation and cool the property market (see below).

The laws on stamp duty are set out in the Stamp Duty Ordinance. Stamp duty is either a fixed fee or is calculated ad valorem depending on the nature of the transaction. It is payable on:

• Leases, assignments and conveyances of immovable property.
• The transfer of shares or marketable securities
• The transfer of bearer instruments (being instruments under which ownership is transferred through physical delivery).

Immovable Property Stamp Duty Rates

2 separate rates of stamp duty are payable on immovable property:

• The Conveyance of a Freehold or the Assignment of a Leasehold: With effect from April 1, 2010, the rate of stamp duty is progressive and varies from HKD100 to 4.25% if the value of the transferred interest is more than HKD21,739,120. The 2007 Finance bill reduced the stamp duty rate on transactions of properties with a value between HKD1 million and HKD2 million from 0.75% to a fixed amount of HKD100.
  
• The Granting of a Short-Term Lease: The stamp duty rate is progressive and varies between 0.25% and 1% of the annual rental value depending on whether the lease is for less than one year or more than 3 years. Any agreement which increases the rent reserved by a chargeable stamped lease is itself chargeable to stamp duty in respect of the additional rent which it makes payable.

Immovable Property Transactions Exempted from Stamp Duty:

The following immovable property transactions are exempt from stamp duty:

• Non-Residential Property: Instruments transferring "non residential property" are exempt from stamp duty. Non-residential property is defined as property which may not by law be used at any time for residential purposes.
• Gifts to Charitable Institutions or Public Trusts: Instruments transferring immovable property by way of gift to a charitable institution or public trust are exempt from stamp duty.
• Approved conveyances on sale to diplomatic or consular bodies.
• A transaction conveying an interest in immovable property between "associated corporate bodies". Entities are defined as associated corporate bodies when one entity holds over 90% of the share capital of the other or when a 3rd entity holds over 90% of the share capital of both entities. The association must remain for 2 years after the transfer in default of which the full level of stamp duty must be paid over retrospectively. The financing of the transaction cannot come from an unassociated body.
• Mortgages: Mortgages are free of stamp duty.

Immoveable Property Stamp Duty Anti-Avoidance Provisions

There are elaborate anti avoidance provisions in place aimed at deterring speculation. Thus where the beneficial owner of real estate executes an instrument in favor of a third party under which he undertakes to hold the real estate on trust for the third party duty is payable on this instrument as if a conveyance had taken place. Likewise stamp duty is payable where under an uncompleted contract of sale the vendor is deemed by law to hold on trust for the purchaser.

Stamp Duty Payable on Shares & Marketable Securities

Stamp duty of 0.2% is payable on the transfer of shares or marketable securities whereas 0.1% stamp duty is payable on the issued share capital of a company.

Securities Transactions Exempted from Stamp Duty

The following transactions are exempt from stamp duty:

• Loan capital transactions, bills of exchange, promissory notes, certificates of deposit, exchange fund debt instruments and Hong Kong multilateral agency debt instruments.
• Transactions involving debentures, loan stocks, funds bonds or notes that are not denominated in Hong Kong currency except to the extent that they are redeemable in that currency.
• Stock donated to charitable bodies or public trusts which are exempt from taxation in Hong Kong.
• A transaction conveying stock between "associated corporate bodies". Entities are defined as associated corporate bodies when one entity holds over 90% of the share capital of the other entity or when a 3rd entity holds over 90% of the share capital of both entities. The association must remain for 2 years after the transfer, in default of which the full level of stamp duty must be paid over retrospectively. The financing of the transaction cannot come from an unassociated body.

Stamp Duty Payable on Bearer Instruments

The amount of stamp duty payable is 3% of the value of the instrument transferred.

Stamp Duty Concession in Respect of ETFs

The Financial Secretary proposed in the 2010/2011 budget to extend the stamp duty concession in respect of the trading of exchange traded funds (ETFs) to cover ETFs with the value of Hong Kong stock not exceeding 40% of the aggregate value of the underlying portfolio. The measure was to be implemented with immediate effect. ETFs satisfying the requirement can apply to the Inland Revenue Department for the concession under section 52 of the Stamp Duty Ordinance.

Special Stamp Duty (SSD) on Residential Properties

Following a significant inflow of hot money, leading to substantial increases in asset prices in Hong Kong, the Financial Secretary, John C Tsang, announced new anti-property speculation measures in November 2010. Among them was the SSD on residential properties, charged on top of the current ad valorem property transaction stamp duty.

Any residential property acquired on or after November 20, 2010, either by an individual or a company, listed or unlisted, and regardless of where it is incorporated, and resold within 24 months will be subject to the proposed SSD.

The SSD will be payable jointly and severally by both the buyer and the seller in the resale transaction, and will be calculated based on the consideration for the resale transaction at regressive rates for different holding periods.

It will be charged at 15% if the property is held for six months or less; 10% if the property is held for more than six months but for 12 months or less; and 5% if the property is held for more than 12 months but for 24 months or less.

It is also proposed to disallow deferred payment of stamp duty, including SSD, for residential property transactions of all values, while, to deter non-compliance, the existing statutory sanctions will be extended to cover the SSD. Any person who fails to pay the SSD by the deadline for payment shall be liable to penalties up to 10 times the amount of the SSD payable.

Not long after Tsang's announcement, Secretary for Transport and Housing, Eva Cheng, told the Legislative Council that it will introduce additional measures to cool the property market if the stamp duty and other curbs on speculative buying are not successful.

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Hong Kong Filing Requirements and Payment of Tax

The tax year starts on April 1. The assessment to profits tax is provisional and is based on the previous year's assessable profits with 75% of the assessment being due by the 3rd quarter and the final 25% being due at the year-end. Tax payments delayed less than 6 months are subject to a 5% non-deductible surcharge whereas payments overdue by more than 6 months are subject to a 10% non-deductible surcharge. A tax credit is granted where the previous year's assessment exceeds the currents year's assessable profits.

Corporations and partnerships may be able to file their profits tax returns for 2009/10 and 2010/11 electronically using the eTAX system. However, businesses must satisfy a number of conditions in order to use this internet filing service. These conditions include: a corporation’s gross income should not exceed HKD2m (USD257,000); it should not be claiming a foreign tax credit; it should not have obtained an advance ruling on any of its tax matter in relation to that year of assessment; and it should not have paid or accrued to a non-resident person any sum for the use of intellectual property.

A partnership must satisfy all of the conditions applicable to a corporation. In addition, it cannot have more than six partners during the basis period for that year of assessment (including those partners who have retired); and all of its partners should be individuals.

Hong Kong Withholding Tax

There are no withholding taxes in Hong Kong as such, but there are certain circumstances in which a company making a payment to a foreign associate (subsidiary or holding company) which is deemed to be Hong Kong source income needs to withhold the tax.

For instance, when a Hong Kong entity pays royalties for the use of intellectual property to its own offshore licensing affiliate, then tax is due of 30% of 16.5% = 4.95% (4.5% for an unincorporated business) and this must be withheld by the Hong Kong paying company.

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