China Lawyers

 

China has become quite adept at spotting and hunting down foreign companies that are doing business in China without a required Chinese entity. What exactly constitutes doing business in China at a level requiring a Chinese corporate entity ? That is a question far too complicated to answer in a blog post, but suffice it to say that the Chinese government has a very expansive definition of that simply because such a definition increases its tax coffers.

I bring this up because as China continues/accelerates its crackdown on foreign companies doing business in China without a Chinese entity, our China lawyers are seeing a concomitant rise in foreign companies setting up companies in Hong Kong and paying taxes there will bring them into compliance with Chinese law even though 9999 out of 10,000 it doesn’t.

In fact, whenever a client asks whether their setting up a company in Hong Kong will solve the problem of their operating on the Mainland without a company, I respond by saying: “Think of Hong Kong as New York. Having a Hong Kong company will no more help you get legal in China than setting up a new company in New York. When it comes to business law, you need to think of Hong Kong as a completely different country than the PRC.”

We most often see the Hong Kong company problem with foreign companies that have Chinese “employees” in China but no company there. This is 100% illegal in China. Yet this is also very common and it is also very common for the Chinese government to catch foreign companies that do this and then come down on those companies like a ton of bricks. For a more complete explanation of this, check out my Forbes article, China’s Tax Authorities Want You. The reason companies with employees in China so much want to avoid having a China entity is because China employer taxes and required benefit payments are really high and if you have can keep your China employees off the grid, you can avoid paying those taxes and benefits.

Oftentimes, the “Hong Kong excuse” is actually generated by the Chinese employee who very much wants its foreign “employer” to stay off China’s grid as well. The employee likes its foreign employer to operate illegally in China because the employee’s pay can be higher (because there are no employer taxes) and its take home percentage is also higher (because he or she is not paying income taxes). So the employee convinces its foreign employer that forming a Hong Kong company will be both cheaper and equally effective as forming a PRC company.

But it isn’t. Sorry. If you have employees in China or if you are otherwise doing business in China at a level that requires an entity  (there’s that vague line again) and you don’t have a registered PRC entity, you have a legal and a tax problem and there are no two ways about it. All of the above is true of Macau and Taiwan as well.

For more on the China-Hong Kong distinction when it comes to corporate entities, check out How to Form a China WFOE: What’s Hong Kong Got to Do with It?

And while we are discussing how Hong Kong entities do not satisfy PRC entity requirements, I might as well remind you that having a trademark in Hong Kong or Taiwan or Macau does not give you any trademark rights in the PRC and vice-versa. Again, you must think of these jurisdictions as being legally separate as that is the case when it comes to trademark rights as well. For more on this, check out China Legal. Not Hong Kong Legal. Not Taiwan Legal. Not Macau Legal and China And Hong Kong Trademarks. Think Puerto Rico.

One last area where we often have to deal with the differences between Hong Kong and China is on all of our contracts relating to manufacturing, such as NNN Agreements and Product Development Agreements. Many Chinese manufacturing companies want their agreements with their foreign customers to be with the manufacturer’s Hong Kong entity, not its China entity. This creates all sorts of complicated ownership and liability and jurisdictional and venue issues that must be resolved correctly to prevent a legally nonsensical or invalid agreement or equally bad, an agreement that makes perfect legal sense, but provides no protections to the foreign buyer. Again the key issue here is that Hong Kong and the PRC are legally separate when it comes to commercial transactions.

Just curious. How many of you were aware of the above and for how many of you is this above a revelation?

 

 

Print:
TweetLikeEmailLinkedInGoogle Plus
Photo of Dan Harris Dan Harris

Dan Harris is internationally regarded as a leading authority on legal matters related to doing business in China and in other emerging economies in Asia. Forbes Magazine, Business Week, Fortune Magazine, BBC News, The Wall Street Journal, The Washington Post, The Economist, CNBC, The New York Times, and many other major media players, have looked to him for his perspective on international law issues.

  • bystander

    Well, since there are no other takers so far: this wasn’t surprising to me in the least, but then I lived in China a good long time. I have heard, however, that there are some other ancillary benefits to having a Hong Kong company in addition to a mainland one, when it comes to certain banking and payment issues, i.e., moving money across borders. I don’t know any details as I never had to set up a Hong Kong firm, and I also don’t know whether those things are still true. I do know from first-hand experience that the whole matter of moving money between the mainland and China has been changing rapidly in the past several years. In particular Hong Kong banks are much more nervous and attentive about accounts that are held by mainland customers.

  • Scoopster888

    Dan I would love to see you write about Taiwan / HK being “not” China, but from a different perspective. What advice do you give to a foreign company that plans to engage TW-based (or truly HK-based, e.g. been based in HK for 30-40 years) manufacturer, and said TW/HK company owns (though often, especially in the case of TW companies, via some Cayman/BVI/offshore entity) it’s own factory in China where the goods will actually be produced.

    For many good business and tax reasons, the TW/HK company wants their HQ office to be the supplier of record to the foreign (e.g. US/UK) customer, and for the customer to pay the HQ office for the goods (usually so the factory can keep most profits outside of China and not have the problem of extracting money from China, which you write about so well).

    So the US/UK customer will buy goods from (and pay money to) a TW/HK HQ operation, which in turn will sub-contract the manufacturing to their China-mainland subsidiary. In these cases, does your firm typically advise the client to have a contract with the TW/HK HQ, or solely with the China factory (even though they are not paying the China factory directly), or separate contracts with both entities?

    You’ve written so much wonderful work on working with “Chinese suppliers” but in so many cases these suppliers are the product of FDI from TW or HK (or Korean, Japanese, US, German, etc) companies. Are the rules of Development Agreements and OEM contracts fundamentally different when a) the china factory has a foreign owner) and b) the customer will pay the foreign owner (rather than factory directly) for the goods?