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Extension of the Valid Period of a Hong Kong TRC for the Mainland- HK DTA Eases Taxpayers' Administrative Burden

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Extension of the Valid Period of a Hong Kong TRC for the Mainland- HK DTA Eases Taxpayers' Administrative Burden News Flash China Tax and Business Advisory Extension of the valid period of a Hong Kong TRC for the Mainland- HK DTA eases taxpayers’ administrative burden June 2016 Issue 19 In brief Effective from 15 April 2016, a Hong Kong tax resident certificate (HKTRC) issued by the Hong Kong Inland Revenue Department (IRD) under the comprehensive double tax arrangement between the Mainland and Hong Kong (Mainland-HK DTA) for a calendar year can serve as a proof of the Hong Kong resident status for that calendar year and the two succeeding calendar years. The issued HKTRC will not serve as a proof of the Hong Kong resident status for the two succeeding calendar years only if there are changes in the circumstances that render the applicant no longer a Hong Kong tax resident and/or eligible to the treaty benefits. Such streamlined administrative arrangement applies to all HKTRCs issued by the IRD to individual and non-individual taxpayers for the purpose of the Mainland- HK DTA, including those issued before 15 April 2016. In connection with the above revised administrative arrangement, the HKTRC application forms for use under the Mainland-HK DTA have also been revised to reflect these changes. The new forms are used from 20 June 2016. In this issue of China Tax News Flash, we would like to introduce the details on extension of the valid period of a HKTRC, changes to the HKTRC application forms, highlight implications on the eligibility of treaty benefit in China and provide take away points for companies to get better preparation in order to obtain Hong Kong resident status going forward. In detail Notice [2016] No. 352 (PN 35) tax benefits under the issued by the State Mainland-HK DTA are no Extension of the valid Administration of Taxation in longer met, the issued HKTRC period of a HKTRC China(SAT) on 6 June 2016, the will no longer be able to serve Prior to the adoption of the Mainland and Hong Kong as a proof of the Hong Kong 3 streamlined administrative exchanged notes on the resident status after the arrangement, HKTRCs are Mainland-HK DTA on 16 March changes. 2016 and 15 April 2016 to issued by the IRD on a The above streamlined extend the valid period of a “calendar year” basis. This administrative arrangement HKTRC issued by the IRD means that the IRD is only applies to all HKTRCs issued to under the Mainland-HK DTA certifying that the applicant is a individual and non-individual from one calendar year to three Hong Kong tax resident for that taxpayers by the IRD in respect in order to streamline the given calendar year. of the Mainland-HK DTA, implementation of the Accordingly, Hong Kong tax including those issued Mainland-HK DTA. residents wishing to make a before 15 April 2016. treaty benefit claim for different The IRD’s announcement and Changes to the HKTRC calendar years have to apply for PN 35 confirm that, effective application forms4 a HKTRC for each of the from 15 April 2016, a HKTRC calendar years concerned. issued by the IRD for a calendar In connection with the above According to the year can serve as a proof of the streamlined administrative announcement1 made by the Hong Kong resident status for arrangement, there are minor IRD on 15 June 2016 and Public that calendar year and the changes to the HKTRC two calendar years that application forms for use under follow. However, if there are the Mainland-HK DTA (i.e. changes in the Hong Kong tax Forms IR1313A for non- resident’s circumstances such individuals and IR1314A for that the conditions for enjoying individuals). www.pwccn.com News Flash — China Tax and Business Advisory The new forms are used from 20 June the PN 60 assessment form The takeaway 2016. The changes made to the forms together with a HKTRC (for are: calendar year 2015) as a The extension of the valid period of a supporting document in 2015, it HKTRC from one calendar year to Two new items have been added would have to submit a HKTRC three will ease the administrative to the forms requiring an again if it wants to apply for a burden on Hong Kong tax residents applicant to provide: (i) the treaty benefit claim on reduced seeking treaty benefits under the calendar year for which the withholding tax rate on dividends Mainland-HK DTA. This will also resident status was certified in the in 2016 (as the two claims are on reduce the number of HKTRC latest HKTRC issued (if any) and different types of income). applications received by the IRD, (ii) details of material changes in which will in turn allow the IRD to employment/business operation Under the streamlined examine each application in greater after that calendar year for which administrative arrangement under details to prevent treaty abuse in the resident status was certified. PN 35, the Hong Kong tax post-BEPS environment. As there is A new note has been added to the resident in the above situation can generally an expectation for the IRD to forms to explain the new 3-year now submit the HKTRC act as a “gatekeeper” against treaty valid period of a HKTRC. previously issued for calendar abuse in the context of the Mainland- year 2015 as a proof of its Hong HK DTA, it is expected that more Implications of the streamlined Kong tax residency when lodging stringent assessment of HKTRC administrative arrangement the treaty benefit claim in respect applications will be made by the IRD In the following two examples, the of the dividend income and does going forward. not need to apply for a HKTRC streamlined administrative Companies wishing to claim a treaty arrangement will ease the from the IRD again (provided that there is no change in its benefit under the Mainland-HK DTA administrative burden of applying a should better prepare for the HKTRC for Hong Kong tax residents: circumstances rendering it to become ineligible for the treaty increasingly stringent approach If a Hong Kong tax resident has benefit). adopted by the IRD in assessing their previously obtained a HKTRC Hong Kong resident status and allow issued by the IRD under the The streamlined administrative for more time to obtain a HKTRC. Mainland-HK DTA for say, arrangement will also reduce the Before submitting an application, they calendar year 2014 and it wants to number of HKTRC applications that should perform a self-assessment on apply for a treaty benefit under need to be processed by the IRD. whether, in addition to being qualified the Mainland-HK DTA in respect Given prevention of treaty abuse is as a Hong Kong tax resident under the of an income earned in 2016, it one of the IRD’s concerns in the post- Mainland-HK DTA, other conditions can now use the HKTRC for BEPS environment, it is expected the for enjoying the benefits under the calendar year 2014 and does not IRD will devote the resources released Mainland-HK DTA (e.g. sufficient need to apply for a HKTRC for to process each application in greater substance, valid commercial purpose calendar year 2016 (provided that details. and being the beneficial owner of the income received) are fulfilled. there is no change in its While the streamlined administrative circumstances rendering it to arrangement should ease the become ineligible for the treaty administrative burden on Hong Kong Endnotes benefit). tax residents to apply for treaty 1. The IRD’s announcement dated 15 Pursuant to Public Notice [2015] benefits under the Mainland-HK DTA, June 2016 can be accessed in the No. 60 (PN 60)5 entitled a practical issue pertaining to HKTRC following link: “Administrative Measures for application still exists and more http://www.ird.gov.hk/eng/new/inde Non-resident Taxpayers Claiming guidance from the IRD will be x.htm Tax Treaty Benefits” issued by the welcomed. 2. PN 35 regarding the use of HKTRCs in SAT which became effective on 1 the Mainland issued by the SAT on 6 November 2015, a non-resident At present, it is not absolutely clear June 2016 can be accessed in the taxpayer applying for a treaty whether the IRD will issue a HKTRC following link: benefit related to permanent for a full calendar year to an applicant http://www.chinatax.gov.cn/n810341 establishment and business submitting a HKTRC application in /n810755/c2178550/content.html profits, dividends, interest and the middle of a calendar year, say in 3. The notes exchanged between the royalties, etc. from the Mainland July of the relevant year. Apparently, Mainland and Hong Kong have will generally only need to submit the current practice of the IRD is to currently not yet been available on the the supporting documents consider each application submitted in IRD’s or the SAT’s website. (including a HKTRC to support its the middle of a year on a case-by-case 4. The revised application forms can be Hong Kong tax residency) to the basis based on the specific facts and accessed on the IRD’s website via this in-charge Mainland tax authority circumstances of that application. It link: every three years for similar treaty has yet to see whether the IRD will http://www.ird.gov.hk/eng/tax/dta_ benefit claims lodged to the same become more reluctant to issue a cor.htm#form in-charge Mainland tax authority. HKTRC for a full calendar year in the 5. For a discussion of the revised treaty above situation given that a HKTRC, benefit claim procedures in China Before the issuance of PN 35, if a once issued, can now be used for three under PN 60, please refer to our China Hong Kong tax resident has calendar years in general.
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