The Complexity of Transfer Pricing for Intercompany Services

By

By Shirley Chu
Editor: Jake Liddle

Most MNCs will charge for services provided to other entities within the same company or business. These are classed as intercompany service fees. Often, while trying to protect its tax base, China’s tax authorities will regularly encounter inconsistencies in transfer pricing for intercompany services, such as lack of access to necessary information due to opaque business structures, unclear rules under Enterprise Income Tax (EIT) laws, and difficulty determining whether selected transfer pricing methods for services comply with the arm’s length principle. Companies found guilty of these inconsistencies can be penalized by China’s tax authorities, making it essential to understand the country’s regulations connected to intercompany services.

Transfer pricing analysis of intra-group services

While China’s transfer pricing regulations do make provision for a selection of intercompany services, guidance is limited to a select amount of company structures, and lacks a wider analysis for services provided by the Chinese subsidiaries of MNCs. Tax authorities have also traditionally upheld that fees charged for intercompany services by parent companies are not deductible for CIT under EIT law.

Case Study: Tax Exemption Under the China-Hong Kong Double Tax Arrangement – Part 1

By

Case study bannerBy Ines Liu

Hong Kong entered into a Double Taxation Arrangement (DTA) with China in 2006. The treaty acts as a way to avoid double taxation and clamp down on tax evasion, improving ties between both jurisdictions by reinforcing their respective tax laws, encouraging competition, and promoting investment. A fourth protocol was signed on April 1, 2015, amending four key aspects of the DTA. One of those aspects was tax exemption for capital gains derived by foreign investors that sell shares of a China based company, which we explore in detail below.

Scenario

A global high profile venture capital holding company has a subsidiary incorporated in Hong Kong (Company A). Company A holds an aggregate of shares (above 25 million) of a China listed company (Company B). After a 12-month restricted stock trade period, Company A looks to sell shares of Company B, but wants to know how to meet the requirements for capital gains tax exemption under the tax treaty.

Analysis

Overall, withholding tax applies to capital gains derived from transferring Company B’s shares. However, the DTA states that:

  • “Income or gains derived by a resident of a Contracting Party from the alienation of shares or comparable interests in a company, the assets [Asset value] of which consist wholly or principally [No less than 50 percent] of real property in the other Contracting Party, may be taxed in that other Party.”

Successfully Resolving Commercial Disputes: An Overview of Arbitration in ASEAN

By

By: Marquise ClarkeArbitration-Singapore-

International arbitration centers have become the preferred location for the resolution of corporate disputes in ASEAN. The use of these centers is preferred due to their affordability, speed, privacy, and neutrality. As investors ramp up investment in ASEAN or enter the region for the first time, understanding where international arbitration is available and how to access it can provide significant protection from regulatory uncertainty.

In recent years there has been substantial economic growth and development among emerging markets within the ASEAN region. Within most jurisdictions, the increase in development, along with transnational transactions creates a high chance that commercial disputes will increase, in terms of both quantity and complexity. Any foreign investor thinking about investing in the ASEAN region should therefore carefully think about what options are open to them if commercial disputes do occur.

Brexit Implications for ASEAN Based Investors

By

by

ASEAN BrexitBy: Maxfield Brown

In a victory that stunned analysts around the world, the UK has voted to exit the European Union (EU) by a margin of 52 to 48 percent. In addition to producing significant implications for investors across Europe, the interconnected nature of the global economy leaves businesses across the world exposed. ASEAN is no exception. Currency markets within the South East Asian bloc have already seen swift valuation changes, and the pending exclusion of the UK from the EU’s network of trade negotiations in ASEAN is likely to have a long term impact on trade within the region.

For European investors maintaining operations throughout ASEAN or British parties considering investment, it will be of utmost importance to monitor developments within the region closely in order to ascertain their likely exposure to Brexit fallout.

Short-Term Considerations: Foreign Exchange Volatility

As markets within ASEAN know all too well, currency volatility is one of the most immediate externalities associated with economic crisis. Despite the Pound Sterling being separated from the Euro, the mere threat of a Brexit was enough to depreciate the Pound by 7 percent against the US dollar during voting. As polls closed, ASEAN currencies have also seen substantial rises in their value against the United Kingdom.

Screen Shot 2016-06-24 at 5.03.53 PM

For those purchasing goods or servicing debts within the UK or using British Pounds as a medium of denomination or exchange, the prevailing headwinds within currency markets strongly favor currencies from within ASEAN. In the near term, this will allow consumers to purchase goods from UK based suppliers at a significant discount, however, it will also curtail the ability of British based consumers to purchase goods from a variety of markets including those within ASEAN. This is likely to constrain liquidity of British buyers and runs the risk of disrupting existing purchase agreements that these parities may have signed with ASEAN based suppliers.

While the British Pound has been hit hardest by its exit from mainland Europe, Brexit has created significant tensions within the Eurozone as a whole and decreased confidence that the Euro will continue to be used within the region. Reflecting these concerns, all currencies within ASEAN have appreciated significantly against the Euro with the exception of Malaysia. Investors flooding out of the Eurozone have instead taken refuge in Dollar denominated assets resulting in an appreciation of the US dollar against ASEAN markets.

Although muted when compared to the Pound, the movement of the Dollar and Euro will have tangible impacts on the cost of goods being purchased and sold to these markets. Exports to the European Union will likely see reduced demand as cost adverse Eurozone buyers are priced out of ASEAN markets. Buyers from within ASEAN on the other hand will benefit from discounted Eurozone goods brought on by the relative rise in their home currencies. Those exporting to US markets will likely see demand increase, with countries such as Malaysia and Indonesia particularly well positioned to benefit.

A final area of consideration for investors should be those nations within ASEAN that have chosen to control their currencies. Given the large volatility and volume of trading in international markets, countries such as Laos, Myanmar, and even Vietnam may struggle to maintain steady parity with the Pound and other currencies such as the US Dollar.

Malaysian Tax Stoppages: Understanding Liability and Maximizing Mobility

By

By: Dezan Shira & Associates
Editor: Eugenia Lotova

With the passing of Ruling No. 12/2015, it is time for Malaysian residents to double check their taxes. Section 104 of the Income Tax Act of 1967 had established that individuals with outstanding tax dues would be forbidden from leaving the country until the debt was settled, but this law was never enforced—until last year. Since a large portion of the government’s revenue is generated from taxes, the Inland Revenue Board of Malaysia (LHDN) has decided to partner with the Immigration Department to collect unpaid taxes. As a result, since 2015, over 100,000 Malaysian taxpayers have been forbidden from leaving the country, sometimes unaware that they had outstanding liabilities. This article discusses how this new ruling may affect your company and how to ensure tax compliance.

Stoppage Issuance: Reasons and Notification

Under the law, the job of tax calculation is on each individual, not the authorities and anyone who owes taxes to the Malaysian government may be blacklisted and prevented from leaving the country. In the case of companies, the director is liable for the company’s taxes, including money withheld from employees and to be paid to the LHDN. If a company is covering a portion of taxes on behalf of the employee and has an outstanding balance, the employee will be held responsible. .

The method by which exit from Malaysia is prevented is via the issuance of a stoppage. A stoppage order will be issued to the individual either in person or by mail. It is effective from the date of issuance stamped on the certificate and the individual is only responsible for the amount specified.

Considering the employer’s possible exposure, it is absolutely necessary to consult with the appropriate authorities or an expert to mitigate the risks of receiving a stoppage.