By Steve Dickinson and Andrew Grieve
Since enactment of China’s new Corporate Income Tax (CIT) code at the first of this year, my firm has been working with a number of high-tech (mostly software, computer hardware, environmental technology, and medical technology) companies to figure out how they can benefit from these new laws.
With the promulgation of the new Corporate Income Tax (CIT) code in January, 2008, China set out on a entirely new approach to taxation. The new approach involved two major changes. First, all companies will be taxed at the same rate without consideration of the nationality of their owners; the new tax law sets the tax rate at 25% for all companies. Second, the right of specific regions to offer beneficial tax rates was revoked. In principle, all regions of China must provide for national taxes according to the same system. All tax benefits in the future will serve to promote specific industries, rather than specific regions. In accordance with this policy, the new CIT Law provides a number of reduced tax rates designed to encourage certain industries, including environmental protection and energy conservation, public infrastructure, agriculture and new and high technologies. Though both the CIT law and its implementing regulations explain the basic industries in which tax benefits apply, actual implementation of the benefit system requires the promulgation of detailed rules. To date, a preliminary step at implementing rules has been issued for new and high-tech industry. These rules are not complete and are waiting for further rulemaking for implementation. For all of the other tax benefit categories, nothing whatsoever has been issued and there is no indication when this will happen. Therefore, well into the first year under the new CIT, the tax benefit system is a hollow promise, much to the frustration of both Chinese domestic and foreign investors in China.
1. Sector/Project Based Tax benefits
Article 27 of the CIT Law states that income generated from engaging in environmental protection, energy conservation and water conservation, agricultural, forestry, husbandry, and fishing projects, and the investment and management of public infrastructure projects and facilities supported specifically by the State, is exempt from corporate income tax in the first three years of operation and a 50% reduction in CIT for the subsequent three years, starting from the year the project first generates operating income. These reductions apply only to income generated by these specific projects, not to the entire income of the company. The criteria for judging whether a project comes under the categories of environmental protection, energy conservation and water conservation have not yet been released, and no indication has been given of when this will occur.
Articles 86 to 88 in the Implementing Regulations for the CIT Law go into greater detail regarding the kind of projects that will receive these tax benefits. Article 90 of the implementation regulations provides for the first RMB 5 million of income from technology transfer to be exempt from tax, with any amount over RMB 5 million benefiting from a 50% reduction, for an effective tax rate of 12.5%. It is not clear to what extent consulting and training fees associated with the transfer fall under this scheme. .
2. Corporate Tax Benefits
Article 28 of the CIT Law provides for two beneficial tax rates. The first is a CIT rate of 20% for small scale and low profit enterprises that meet certain terms and conditions. Article 92 in the implementation regulations sets these conditions out as follows:
a. The corporation must not be in an industry restricted or prohibited by the state (this refers to the categories in the catalogue for the guidance for foreign investment industries released in 2007 and the Industrial restructuring catalogue released in 2005, with a new version to be released soon)
b. For industrial corporations, annual income should not exceed RMB 300,000, there should be fewer than 100 employees and total assets should not exceed RMB 30 million.
c. For non-industrial corporations, annual income should not exceed RMB 300,000, there should be fewer than 80 employees, and total assets should not exceed RMB 10 million.
The second benefit is a 15% CIT rate for New and High-tech Enterprises. The qualification requirements for new and high-tech enterprises were released in mid April 2008, and we will explain these in Section 5 below.
3. Location Based Tax Benefits
Circular 40 released by the State Council provides that additional tax breaks will be provided for enterprises that fall within the New and High-tech enterprise category in the five national economic development zones (Shenzhen, Zhuhai, Shantou, Xiamen, and Hainan) and in Shanghai’s Pudong district. This is a limited exception to the general rule against location based tax benefits. From the first year the company generates income, the first two years of income will be exempt from CIT, and tax will be at 50% rate (12.5%) for the next three years. After that, the normal 15% rate for New and High-tech enterprises will apply.
4. Sustainability/Environmentally based Tax Benefits
The new CIT Law lays out two areas where companies may benefit from tax reduction by using sustainable technologies or materials. The first area, in Article 33, states that revenue gathered from synergistic utilization of resources that are in line with state industrial policy may be reduced by 10% when calculating taxable income. Article 99 of the implementation regulations clarifies this as the use of materials contained in the catalogue of preferential corporate income tax treatments for synergistic utilization of resources in the production of goods not restricted or prohibited by the state (as outlined above in section 2a) and compliant with state or industry standards. This catalogue has not yet been released.
The second area is in Article 34, where a portion of the investment in technology for environmental protection, energy and water conservation or production safety can be credited against CIT payable. Article 100 of the implementation regulations defines this as 10% of the value of the investment for articles that fall under three further catalogues. None of these catalogues have been released.
5. Qualification for New and High-tech Enterprise Status
Basic rules for the New and High-Tech Enterprise system were issued in April of 2008. Under these rule, to be considered a New and High-tech Enterprise for tax purposes, a company must meet the following requirements:
1. The company must have been established in mainland China for at least one year.
2. The company possess the proprietary IP rights of core technology used in its major products or services, either through its own R&D, purchase, donation or merger within the last 3 years or with an exclusive license with a term of more than five years.
3. The company must provide a product or service that falls within the scope of fields listed in another document, the High and New Technology Fields with Key Support by the State, issued in tandem with the recognition measures. These are:
● electronic information technology
● biological and medical technology
● aviation and space technology
● new materials technology
● high-tech services
● new energy and energy conservation technology
● resource and environmental technology
● transformation of traditional sectors through new high-tech
4. Employees of the company with university degrees and above must account for at least 30% of the total staff. 10% of this 30% of employees must be engaged in R&D.
5. There is a strict minimum on R&D expenditure over the previous three fiscal years, or for companies that have been set up for less than three years, for the number of operating years, as follows:
Annual Sales ——–Percentage to be spent on R&D
Less than RMB 50,000,000……………………..6%
Between RMB 50m and RMB 200m………………4%
Over RMB 200,000,000…………………………3%
Of this minimum, at least 60% of the R&D expenditure should be incurred within China; a portion of it can therefore be outsourced to other countries.
6. Company sales revenue from high-tech products or services must be over 60% of total annual sales revenue.
The recognition measures also indicate that another document, Work Guidance for Recognition of New and High-tech Enterprises, will lay out additional requirements during the assessment process. This document has been released as a draft for public comment. The process requires a committee be formed to decide what companies qualify. What follows is a general description of the way this committee will work. The committee itself is made up of government officials and experts in a national office dedicated to this task and to maintaining a website (www.innocom.gov.cn). Each district is also required to set up an office for the assessment process and to ensure companies stay within the requirements. Companies will be required to first conduct a self-evaluation, then register on the website (which is not yet up and running) and submit the required materials. Since much of the required company information relates to the company’s financial situation,, the company is required to be audited by a certified third party.
In addition to these requirements, and to those listed in the recognition measures above, when applying for New and High-tech Enterprise status, the government committee responsible also will require an enterprise to receive at least 70 points, allocated across four categories as follows:
1. Core IP (30 points)
IP acquired in the last 3 years ———-Points
6 or more, or 2 invention……………………………..30
5 or 1 invention………………………………………..24
4………………………………………………………..18
3………………………………………………………..12
1-2……………………………………………………….6
0…………………………………………………………0
2. Commercialization (30 points)
IP commercialized in the last 3 years ———-Points
5 or more………………………………………………30
4………………………………………………………..24
3………………………………………………………..18
2………………………………………………………..12
1…………………………………………………………6
0…………………………………………………………0
3. Management Competency (20 points)
Number of management practices ———-Points
5…………………………………………………………20
4…………………………………………………………16
3…………………………………………………………12
2………………………………………………………….8
1………………………………………………………….4
0………………………………………………………….0
Management practices:
a. R&D reporting system
b. Budget system
c. Cooperative research activities
d. Establish research institution and equipment
e. Reward system for personnel engaged in R&D
4. Growth (20 points) (Note: this is a rough calculation)
Growth in sales and capital ———-Points
50%……………………………………………………..20
40%……………………………………………………..16
30%……………………………………………………..12
20%……………………………………………………….8
10%……………………………………………………….4
0%…………………………………………………………0
This point scoring system is quite vague and could be used to limit access to the high-tech category. However, the work document has not been finalized and the web site does not exist. Despite this, some regions (Pudong) have gone ahead and created committees and have approved some high tech ventures. Other regions have not yet taken any action. It will therefore be quite some time before the system begins to work on a national basis and an even longer before business owners and investors will have a clear sense as to how the system will work in practice.

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Dan Harris

I am a founder of Harris Bricken, an international law firm with lawyers in Los Angeles, Portland, San Francisco, Seattle, China and Spain.

I mostly represent companies doing business in emerging market countries. It has taken me many years to build my network and it takes constant communication and travel to maintain it. My work has been as varied as securing the release of two improperly held helicopters in Papua New Guinea, setting up a legal framework to move slag from Canada to Poland’s interior, overseeing hundreds of litigation and arbitration matters in Korea, helping someone avoid terrorism charges in Japan, and seizing fish product in China to collect on a debt.

I was named as one of only three Washington State Amazing Lawyers in International Law, I am AV rated by Martindale-Hubbell Law Directory (its highest rating), I am rated 10.0 by AVVO.com (its highest rating), and I am a SuperLawyer.

I am a frequent writer and public speaker on doing business in Asia and I constantly travel between the United States and Asia. I most commonly speak on China law issues and I am the lead writer of the award winning China Law Blog (www.chinalawblog.com). Forbes Magazine, Fortune Magazine, the Wall Street Journal, Investors Business Daily, Business Week, The National Law Journal, The Washington Post, The ABA Journal, The Economist, Newsweek, NPR, The New York Times and Inside Counsel have all interviewed me regarding various aspects of my international law practice.

I am licensed in Washington, Illinois, and Alaska.

In tandem with the international law team at my firm, I focus on setting up/registering companies overseas (via WFOEs, Rep Offices or Joint Ventures), drafting international contracts (NDAs, OEM Agreements, licensing, distribution, etc.), protecting IP (trademarks, trade secrets, copyrights and patents), and overseeing M&A transactions.