China Individual Income Tax Guide (6) - Management of Individual Income Taxation on Foreign Individuals

1. Determination of Time on Which Labor Service Remunerations are Achieved

In accordance with the document Cai Shui Zi No. 185 issued by the Ministry of Finance, the time on which labor service remunerations are achieved shall be the time on which taxpayers derive the labor service remuneration or the paying units pay remuneration.

2. The Concrete Policy-related Business Questions Concerning Tax Levied on the Incomes Gained from Artistic and Sports Performances Staged in China (Chinese Mainland) by Troupes or Individuals Coming from Abroad and from the Regions of Hong Kong, Macao and Taiwan

In accordance with the stipulations of Guo Shui Fa [1994] No.106 issued by the State Administration of Taxation, for performers and athletes from abroad or from the regions of Hong Kong, Macao and Taiwan who stage artistic and sports performances in China (Chinese mainland) in personal name; tax shall be levied on the labor service remuneration gained by them in accordance with the relevant stipulations of the Tax Law; for the individual income tax which performers and athletes should pay, they shall declared tax payment with competent tax authorities at the location where performances are staged in accordance with the related stipulations of the individual income tax law for the remunerations gained from performances given at one locality. For income belonging to labor service remuneration and performances staged on several occasions at one locality, the total income gained from performances given on several occasions at one locality is regarded as a lump sum income on which individual income tax is calculated and levied.

Competent tax authorities can designate various venues, halls, theatres or chinese reception units to contract to provide spaces for the performing activities staged by performing troupes or individuals from abroad, or from hong kong, macao and taiwan, they should withhold various payable taxes for the performing troupes or individuals from the incomes settled with these troupes and individuals. If the performing troupes or individuals who have not yet cleared off various payable taxes in the locality where performances are staged, when paying for the income from performances to other units, the chinese reception units should withhold the payable tax owed by the performing troupes or individuals. Units which fail to withhold the payable tax in accordance with the related stipulations of this circular shall be dealt with strictly in accordance with the stipulations of the tax collection and management law of the people's republic of china.

Various chinese reception units shall, within seven days after signing performance contracts with units from outside, send the contracts and materials to competent tax authorities at the location where performing activities are staged, those who fail to provide contracts and materials by exceeding the time limit shall be dealt with in accordance with the enterprise income tax law and related regulations.

3. The Question Concerning Tax Credit on Individual Income

In accordance with Article 7 of the Tax Law and Article 31, 32 and 33 of the Regulations for the Implementation of the Individual Income Tax Law of the People's Republic of China , for income received by a taxpayer from outside the borders of China, he shall be allowed to deduct from his taxable amount any personal income tax already paid outside The borders of China, provided that such deduction does not exceed the taxable amount of the income received by this taxpayer from outside the borders as calculated according to the stipulations hereof. The term "income tax paid to foreign authorities" shall mean the amount of income tax payable, and actually paid, on income derived by a taxpayer from sources outside the People's Republic of China, according to the laws of the country or region from which that income was derived.

For the purposes of Article 7 of the Tax Law, the term "the amount of tax otherwise payable under this Law" shall mean the amount of tax payable on income derived by a taxpayer from sources outside the People's Republic of China, computed separately for each different country or region and for each different income category, in accordance with the standards for the deduction of expenses and the applicable tax rates stipulated in the Tax Law. The sum of the amounts of tax payable in the different income categories within the same country or region shall be the limit for deductions for that country or region.

If the actual amount of individual income tax paid by a taxpayer in a country or region outside the People's Republic of China is less than the limit for deductions for that country or region computed in accordance with the provisions of the preceding article, the balance shall be paid in the People's Republic of China. If the amount exceeds the limit for deductions for that country or areas, the excess portion may not be deducted from the amount of tax payable for that Tax Year; however, such excess portion may be deducted from any unused portion of the limit for deductions for that country or region during subsequent Tax Years, for a maximum period of five years.

When taxpayers apply for approval to deduct the amounts of individual income tax paid outside China, they shall provide the original tax payment receipts issued by the tax authorities outside China.

The document Cai Shui Zi No.185 issued by the Ministry of Finance [1981] stipulates:

(1) In respect of individual income tax which is paid abroad and can be applied for tax credit in China by the taxpayer, the individual income shall be derived outside China, on which individual income tax has been levied abroad. China shall levy taxes on the income derived inside China before wee hours of China. Provided that taxpayes have paid the income derived within China abroad, the individual income tax paid outside China shall not be applied for tax credit in China.

(2) If taxpayer apply for tax credit on tax paid in the country where he is from within the borders of China, the individual income tax credit shall be calculated according to tax rate prescribed by the Tax Law. For individual income tax paid abroad exceeds tax credit limit, the tax credit shall neither be allowed nor carried forward.

(3) If individual income tax payment paid by taxpayers abroad is less than tax credit limit calculated pursuant to the Tax Law, the balance of tax payment shall be made up in China. However, if exorbitant living expenses or other special causes bring about the aforesaid situation, and it is difficult to make up for the balance of tax payment in China, the taxpayer may apply deduction and exemption for local tax authorities with attached certificates, the amount of deduction and exemption shall not exceed the balance which the taxpayer shall make up for.

4. The Question Concerning how to Determine the Place and Time for Tax Declaration by a Foreign Taxpayer

(1) In accordance with the stipulations of the document Guo Shui Fa[1994] No.148 issued by the State Administration of Taxation, the individuals without residence within the territory of China but who, within the tax year, work continuously or for an accumulated period exceeding 90 days within China or who, during the period as set in the tax agreement, live continuously or for an accumulated period exceeding 183 days but less than one year within the territory of China, shall all declare payment of individual income tax on the wage and salary income gained during the period of the actual work in China paid by the enterprises or individual employers within China and by enterprises or individual employers outside China. The above-mentioned individuals shall declare payment of the monthly payable tax in accordance with the time limit as stipulated in the Tax Law. Individuals, who have wage and salary income paid by employers outside China and not borne by the organizations within China, may predetermine that within the tax year they live continuously or for an accumulated period exceeding 90 days or live continuously or for an accumulated period exceeding 183 days within the period as specified in the tax agreement, they shall declare payment for the monthly payable tax within the time limit specified in the Tax Law; individuals, who cannot predetermine that within the tax-paying year or during the related period as set in the tax agreement, live continuously or for an accumulated period exceeding 90 days or 183 days, may, within seven days of the following month after reaching 90 days or 183 days, declare tax payment together with the payable tax of the previous month.

(2) In accordance with the stipulations of the document Cai Shui Zi [1981] No.185 issued by the Ministry of Finance, foreigners who work or provide labor services within the borders of China and obtain the income from sources outside the borders of China shall declare tax payment where labor services are rendered according to the Tax Law. For taxpayers who work or provide labor services in more than one place within the borders of China for more than 90 days, the income derived from sources outside the borders of China shall be declared where the labor services are rendered. For the place where individuals work or provide labor services are more than one, individuals could declare tax payments in local tax authorities within the time limit prescribed by the Tax Law. But he is allowed to file an application for local tax authorities, after the application is granted approval, he may declare tax payment at a fixed place.

(3) In accordance with the stipulations of the document Cai Shui Wai Zi [1988] No.059 issued by the Ministry of Finance and the State Administration of Taxation, for residence days during which foreign personnel who temporarily come to China, the day of arrival should be counted and the day of departure could be ignored.

If foreign personnel, who temporarily come to China, could predetermine that they will reside for more than 90 days, the tax payment could be paid according to the Tax Law; if it is not the case, the tax payment could be paid until it is predicted that they will reside for more than 90 days or actually reside for more than 90 days. For the tax payment is not paid until he resides for more than 90 days, the tax payable shall be paid within 7 days as of the next day in excess of 90 days. Where the last day happens to be Chinese holiday, it can be postponed.

(4) Foreign personnel, who temporarily come to China, shall pay individual income tax in the place where he works or provides labor service. If foreign personnel works or provides labor service in more than one place, he shall declare taxable income and pay tax subject to the date and place for declaration and tax payment prescribed by the Tax Law. Foreign personnel is allowed to file application for paying tax in a fixed place upon approval.

5.Certificates Issued by Foreign Individuals for Declaration

In accordance with the stipulations of the document Cai Shui Wai Zi [1986] No.027 issued by the Ministry of Finance and the State Administration of Taxation, all taxpayers shall declare individual taxable income arising outside and inside the borders of China on the basis of facts according to the Tax Law, meanwhile they shall submit for tax authorities original detailed payroll (including bonus and allowance certificate) issued by dispatching units or provide certificates issued by certified public accoutant of China commissioned by dispatching units. Taxpayers from some certain countries shall provide necessary certificates such as "Stipulations on Personnel Stationed Abroad" and "Stipulations on Business Trip" in direct connection with the taxation. Tax authorities and executive in charge shall maintain confidentiality on tax return and relevant certificates submitted by taxpayers without permission of external disclosure.

In accordance with the stipulations of the document Guo Shui Han Fa [1995] No.125 issued by the State Administration of Taxation, tax authorities could require taxpayers to provide proof of tenure of an office outside the borders of China issued by dispatching units or to provide project contract on business offices set outside the borders of China and proof on being dispatched to work in the business office when verifying working days arising outside China submitted by taxpayers.

Individuals shall declare wage and salary income borne or paid by enterprises or establishments outside and inside the borders of China and onperiods inside the borders of China on the basis of facts according to the Tax Law; meanwhile, they shall provide evidence of income payment and necessary notarial certificates and valid voucher of residence length. Valid voucher of residence length shall include passport, card for returing to native place held by Hong Kong, Macao and Taiwan compatriots, permit for coming to the mainland held by Taiwan compatriots and other proofs that competent tax authorities considers it necessary to be rendered.