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Forming A China WOFE. Do It Right. Use A Good Accountant.

Posted in China Business, Legal News

Deleting old emails and came across this one, which I have greatly modified:

I moved to China this year and set up a trading company based in Hong Kong. I have real confidence in an idea for a ________ service similar to what www.______.com provides. I feel that a similar service based in Shenzhen could provide far greater cost savings and …. I am building contacts in this region, some of which have good experience in similar fields both from China and abroad. It is done a little bit from China and HK already (which I have participated in) though on a fairly small scale and not executed very well.

My question is this. With a WOFE, is it possible that after the minimum capital requirement is achieved, that the entity would only receive money to cover its costs in China? The plan is to have the main company in Hong Kong, which takes the payments from customers, though the Chinese company in Shenzhen would have to run/lease the warehouse space and employ local staff. If this was the case (keeping profits in Hong Kong), have you found the Chinese authorities are against such a model, or are they happy enough that the Chinese company would at least be employing Chinese staff and renting property etc?

I responded as follows:

This is a tax question and we do not give tax advice even if paid.  Generally, China wants to see its WFOEs make a reasonable profit and if they are not making a reasonable profit, they will attribute a reasonable profit to the WFOE and tax it accordingly. The fact that you have a Hong Kong entity and that you are employing a few locals is irrelevant.

It sounds like your China company is going to be engaging in transactions that involve transfer pricing.  We recommend people retain a good accounting firm to help them figure out what a reasonable profit is because that way you can get on the lower end of “reasonable” and probably keep the tax people away. But if your profits are too low (especially if you are engaging in transactions that implicate transfer pricing issues), the chances are good that the Chinese tax people will come in and they probably will not be very happy and so their definition of reasonable may not be reasonable at all.

One of the keys here is how you define your WFOE.  We get cases all the time where people come to us because the Chinese tax authorities think that X business should have much higher margins and the people tell us that they are not really even in X business but that the “idiot” (their word not ours) they used for their WFOE registration told them to describe themselves that way because the registration people like it. Well of course the registration people liked it. The registration people liked it because they figured the tax collections would be high. This is just one of about twenty reasons why how you define yourself from the get-go can be so important and that will certainly be the case here.

Good luck.

What do you think?

  • http://www.shenzhenparty.com Brad

    There is no need for transfer pricing between China and Hong Kong because both belong to the same Sovereign state and you can’t TP yourself. You should look at CEPA agreements and China-HongKong DTA. In the case described you need expertise in both China (Shenzhen) and HongKong so need people with offices in both.

  • http://www.icstrust.com Barrett Bingley

    In response to Brad’s comment, he is simply wrong. Hong Kong and China have completely different tax systems and a tax treaty between them. CEPA is irrelevant in this instance.

  • feng

    I paid around $5,000 USD to initiate a contract with ___________ to set up a company in China. It then turned out that I couldn’t use their services because we both learned that the building I was in was not suitable for company registration. So, they did no work for me, but did not return the initial payment. The contract stated nothing about a non-refundable deposit and they had no interested in any negotiation about returning the first payment.

    I’ve lived and worked in China for more than year. I researched this company a lot before signing up. I understand a lot of the complexities of setting up a company in China. So I’m not just an unhappy consumer that didn’t do their research or read the contract thoroughly.

    Complete waste of time – avoid this company as much as you can.

    • http://www.chinalawblog.com/ Dan Harris

      I edited out the name of the company you used because I did not think it fair to do otherwise. Once it became clear that your existing office would not work for a WFOE, why did you not get a new office and continue on with the WFOE formation?  Was that the reason this company gave for refusing to refund your payment?