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China's Tax Preferences to Foreign Investment: Policy, Culture and Modern Concepts Zhaodong Jiang

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China's Tax Preferences to Foreign Investment: Policy, Culture and Modern Concepts Zhaodong Jiang Northwestern Journal of International Law & Business Volume 18 Issue 3 Spring Spring 1998 China's Tax Preferences to Foreign Investment: Policy, Culture and Modern Concepts Zhaodong Jiang Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njilb Part of the International Law Commons, and the Tax Law Commons Recommended Citation Zhaodong Jiang, China's Tax Preferences to Foreign Investment: Policy, Culture and Modern Concepts, 18 Nw. J. Int'l L. & Bus. 549 (1997-1998) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons. ARTICLES China's Tax Preferences to Foreign In- vestment: Policy, Culture and Modern Concepts Zhaodong Jiang* I. Introduction ......................................................................................... 550 II. An Overview Of Chinese Tax Preferences To Foreign Investment ...559 A. Post-Mao China's New Attitude Toward Overseas Private Investm ent .................................................................................... 559 B. Nationwide Enterprise Income Tax Regimes And Preferential Treatm ent ..................................................................................... 563 C. Regional Develoment Strategy and Enterprise Income Tax Preferences ................................................................................... 567 1. Special Economic Zones ........................................................ 567 2. ETDAs, OUDs and COERs ................................................... 572 3. New Waves of Regional Preferences in the Early 1990s ....... 575 4. G o West ................................................................................. 580 Associate Professor of Lav and Taxation, School of Accountancy, Faculty of Business Administration, The Chinese University of Hong Kong. SJD, University of Michigan. The author wishes to thank Michael J. Moser, Esq. and Professor Wang Zhiwu for their invalu- able comments and suggestions on early drafts. Mistakes are, of course, the author's own responsibility. Research has been supported by a grant from the Faculty of Business Ad- ministration of The Chinese University of Hong Kong. Northwestern Journal of International Law & Business 18:549 (1998) D. Hi-Tech and Industry Specific Enterprise Income Tax Preferences ................................................................................... 583 E. Enterprise Income Tax Preferences to Overseas Chinese Investors ....................................................................................... 586 F. Turnover Taxes and Preferential Treatment for Foreign Investm ent .................................................................................... 589 III. Policy Factors ..................................................................................... 600 A. Domestic Experiences and Precedents ......................................... 600 B. International Practice and Profit Maximization ........................... 605 C. Policy Targets and Changes ......................................................... 607 D. Capitalist Profit Motive and Chinese Control .............................. 610 IV . Cultural Factors ................................................................................... 611 A. Tax Leniency and Trust ................................................................ 612 B. Expression of Largess and Hospitality ......................................... 618 C. Generosity, Moral Example and State Coercion .......................... 621 D . Im age and Substance .................................................................... 625 E. Friendship/Relationship Approach ............................................... 628 V. Economic Efficiency And Chinese Assumptions ............................... 637 VI. Tax Equities, Domestic Discontents And Revenue Concerns ............ 646 V II. Conclusion ......................................................................................... 653 I. INTRODUCTION China first offered preferential tax treatment to overseas investors when it opened its door to foreign direct investment in the late 1970s.1 Over the next several years, the country's foreign tax preference regime grew in complexity with the proliferation of schemes based on criteria as diverse as a foreign party's form of investment,2 geographic location,3 in- ' On July 1, 1979, the Chinese legislature adopted the Law of the People's Republic of China on Chinese-Foreign Joint Ventures, which, for the first time since 1949, legally per- mitted private foreign capital investment in Mainland China. Zhonghua Renmin Gongheguo Zhong Wai Hezi Jingying Qiye Fa [Equity Joint Venture Law], 1979 FAGUI HUMiAN 125 [hereinafter Equity Joint Venture Law or EJV Law]. The EJV Law promised tax reductions and exemptions for joint ventures using advanced technology by world standards as well as tax refunds for reinvestment ofjoint venturer profits. EJV Law, art. 7. 2 On September 10, 1980, the Chinese legislature adopted the Income Tax Law of the People's Republic of China Concerning Chinese-Foreign Joint Ventures. Zhonghua Renmin Gongheguo Zhong Wai Hezi Jingying Qiye Suodeshui Fa, 1980 FAGUl HuIBiAN 13 [herein- after JVITL]. This law creates a new income tax for Chinese-foreign equity joint ventures. In addition, the Income Tax Law of the People's Republic of China Concerning Foreign Enterprises, which was adopted on December 13, 1981, set up a separate income tax for for- eign investments in forms other than equity joint ventures. Zhonghua Renmin Gongheguo Waiguo Qiye Suodeshui Fa, 1981 FAGUI HUIAN 21 [hereinafter FEITL]. For differences between the two laws, see text accompanying infra notes 49-56. 3 According to the Provisional Regulations of the State Council of the People's Republic of China Regarding the Reduction of and Exemption from Enterprises Income Tax and Con- solidated Industrial and Commercial Tax in the Special Economic Zones and the Fourteen China's Tax Preferences to Foreign Investment 18:549 (1998) dustry/sector classification4 and even ethnic background. The Chinese concept of shuishou youhui, or "tax preferences,' 6 encompasses reduced tax rates, tax exemptions, reductions, investment refunds, accelerated deprecia- tion, carry-over loss and other tax burden reducing measures. 7 The gov- Coastal Cities, promulgated by the State Council on November 15, 1984, for instance, for- eign investment in certain coastal cities was granted special tax benefits not available in other parts of the country. Zhonghua Renmin Gongheguo Guowuyuan Guanyu Jingji Tequ he Yanhai Shisi Ge Ganggou Chengshi Jianzheng Mianzheng Qiye Suode Shui he Gong- shang Tongyi Shui de Zhanxing Guiding, 1984 FAGUI HUIBIAN 218 [hereinafter 1984 Tax Reduction and Exemption Regulations]. For various regionally based preferential schemes, see text accompanying infra notes 89-170. 4 See, e.g,, Guowuyuan Guanyu Guli Waishang Touzi De Guiding, 1986 FAGUI HUMLBAN 501 [hereinafter 22 Articles], promulgated on October 11, 1986. 22 Articles give special treatment to foreign investment enterprises which export most of their products or use ad- vanced technology. 5 A 1985 State Council Circular provided preferential treatment for investments made by Huaqiao, or Chinese residing abroad. Guowuyuan Guanyu Huaqiao Touzi Youhui De Zhanxing Guiding [1985 Regulations on Preferences for Overseas Chinese Investment], Apr. 2, 1985, in GUOWUYUAN FAZmJU BANGONGSHI ZUIGAo RENMIN FAYUAN RENMIN FAYUAN CHUBANSHE [OFFICE, STATE COUNCIL LEGAL DEPARTMENT & PEOPLE'S COURT PUBLISHING HOUSE, SUPREME PEOPLE'S COURT], ZHONGGUO JINGJI KAIFANG DIQu FALU GUIFAN QUANJI [COLLECTION OF LAWS AND RULES OF CHNA'S ECONOMIC OPEN AREAS] 775 (1996) [herein- after LAWS OF ECONOMIC OPEN AREAS]. 6When describing special tax provisions conferring benefits on taxpayers, the Chinese prefer the expression shuishou youhui which literally means "tax preferences." In the West, tax preferences refer to differences between taxable income and the theoretical concept of accretion which provides a method to define the tax base by looking at the income of a tax- payer; accordingly, income "should be thought of as a person's entire accretion to his or her wealth." RICHARD A. MUSGRAVE & PEGGY B. MUSGRAVE, PUBLIC FINANCE IN THEORY AND PRACTICE 224 (5th ed. 1989). The expression "tax incentive" refers to tax reliefs for invest- ment. Id. at 601-02. In economist terms, "incentive" equates "desire for satisfaction", and tax incentive means "the influence of taxation on the actions which a person takes as a result of his incentive, i.e., desire for satisfaction." Gershon Cooper, Taxation and Incentive in Mobilization, in COMMITTEE OF THE AMERICAN ECONOMIC Ass'N, READINGS IN THE ECONOMICS OF TAXATION 470,471 (1959) (emphasis added). 7 See LIU ZHICHENG ET AL., SHEHUI ZHUYI SHUISHOU LiLUN RUOGAN WENTI [SOME ISSUES CONCERNING THE SOCIALIST TAX THEORY] 464-69 (1992). Other preferences include tax credits, tax sparings, and installment tax payments. Id. The Chinese concept of shuishou youhui or tax preferences may not exactly coincide with the Western concept of "tax expen- ditures." For instance, a low tax rate is identified by the Chinese as preferential tax treat- ment, although, according to the traditional western classification, a rate change is part of the so-called normative elements
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