China - Taxation of cross-border mergers and acquisitions

Over the past few years, new People’s Republic of China[1] tax rules affecting merger and acquisition (M&A) activities were issued by the State Taxation Administration (STA) and other government departments. While these new tax rules mostly enhance and update existing rules, they have brought significant changes for investors undertaking M&A activities in China. Specifically, tax rules released in 2020 are mainly measures aimed at facilitating China cross-border trade and investment. The government also introduced regional preferential policies in certain areas such as Hainan Free Trade Port. 

This report highlights recent M&A-related tax developments in China and then addresses the three fundamental decisions that a prospective buyer typically faces when undertaking M&A transactions:

• What should be acquired, the target’s shares or its assets?
• What will be the acquisition vehicle?
• How should the acquisition vehicle be financed?

For the purposes of this report, the terms ‘China’ and the ‘People’s Republic of China’ are used interchangeably and do not include the Hong Kong and Macau Special Administrative Zones nor Taiwan, which have their own taxation systems.

Incentives in Hainan Free Trade Port

Innovative Income Tax Policies

Following the 1 June 2020 issuance of the Overall Plan for the Construction of Hainan Free Trade Port (Hainan FTP Plan), the Chinese Ministry of Finance (MOF) and STA on 30 June 2020 set out detailed Corporate Income Tax (CIT) and Individual Income Tax (IIT) preferential policies for Hainan FTP. Businesses may find these tax rate reductions and administrative simplifications very attractive in deciding whether to establish operations in Hainan.

The Hainan FTP Plan outlined a range of innovative tax policies, many going well beyond those on offer in China’s existing pilot free trade zones. MOF and STA Circular CaiShui [2020] No. 31 and CaiShui [2020] No. 32 have now given concrete detail on these measures, including the following:

• Reduced CIT rate: A reduced 15 percent CIT rate (China standard rate is 25 percent) applies to enterprises (i) registered in Hainan FTP, (ii) engaged in substantive business activities, and (iii) in encouraged industries. Please note that Circular 31 requires establishment of the enterprise’s management body in Hainan FTP, which requires substantive local management and control over business operations, staff, accounting, assets, etc. Moreover, enterprise revenue from ‘encouraged industry’ business must be at least 60 percent of the total amount.
• Exemption for ‘new’ foreign-sourced income: Provided that the statutory CIT rate of the investee jurisdiction is not lower than 5 percent, qualified ‘new’ foreign-sourced income received by Hainan FTP enterprises in the tourism, modern services and high-tech industries is CIT exempted until end of 2024. New foreign-sourced income refers to (i) operating profits earned by newly established overseas branches of the Hainan company, or (ii) dividends repatriated from an overseas subsidiary in which the Hainan company has a shareholding of at least 20 percent. The dividends must arise from new direct investment made in the overseas subsidiary.
• 100 percent expensing and accelerated depreciation regimes: Eligible capital expenditures (i.e. newly purchased fixed assets (except for immovables) and intangible assets with a unit value less than RMB5 million) could qualify for the 100 percent expensing and accelerated depreciation regimes. There is no limitation on industry or usage of assets. However, note that buildings are excluded from the above scope and intangible assets are yet to be defined for the purpose of the relief.
• IIT incentive: Pursuant to Caishui [2020] No.32, IIT exemption has been designed to provide a maximum 15 percent IIT rate for income of personnel with high-end and urgently needed skills, working in Hainan FTP. As for the qualified income scope, comprehensive income, operating income and Hainan government subsidies are covered, while investment or asset transfer income is excluded. It is considered that exemption should cover income of partners in a fund, as operating income, though more clarity is needed. Detailed eligibility criteria and implementation measures on non-resident individuals are yet to be provided.

Many businesses are actively looking at establishing operations in Hainan FTP. The following should be considered:

• Strategy and planning: Some enterprises may look to leverage Hainan FTP’s innovative new policies for a thorough restructuring or adjustment of their existing investment holding structure and operating model, including redeployment of human resources to Hainan and optimized financing arrangements. While yet to be clarified, it is anticipated that the ‘substantive management’ requirement may be fairly robust, which might require the enterprise to have functions, including decision-making capacity commensurate with profitability. It could also require organizational resources, premises and personnel commensurate with enterprise functions.
• Tax optimization: The tax cost savings from establishing operations in Hainan should be carefully evaluated against the tax position under China’s standard tax rules, taking into account the costs of managing economic substance requirements and revised TP arrangements.
• Implementation: Enterprises will need to assess any potential challenges arising from redeploying human and material resources, and set and oversee a step plan for any move to Hainan.

‘Zero-tariff’ Incentive Policies

According to the Hainan FTP Plan, ultimately a zero-tariff rate will apply to a wide range of imports into Hainan island, which will be treated as a special customs bonded area. A simplified tax system (e.g. consolidation of various turnover taxes into a single ‘sales tax’) will also apply. Prior to this whole island regime coming into effect, certain categories of imports are entitled to import duty, import VAT and consumption tax exemptions. On 11 November 2020, the MOF, the General Administration of Customs (GAC), and the STA jointly released a Notice, in effect from 1 December 2020, to implement these exemptions.

To some degree, the Notice breaks with the traditional customs supervision model using special customs supervision zones and bonded importation for the processing trade. The Notice clarifies that the zero-tariff treatment for raw and auxiliary materials will be subject to a catalogue system and sets out a list of 169 items with their 8-digit HS Codes. This covers agricultural products (e.g. coconuts, barley, etc.), industrial raw materials (e.g. ores, coal, petroleum oil, liquified natural gas, wood, etc.), chemical raw materials (e.g. xylene, methanol, etc.), preformed bars for drawing optical fiber, base metal mountings, parts and components used for repair of aircraft and vessels (including repairs of relevant parts and components).

This Notice benefits agricultural processing, industrial manufacturing and energy enterprises by reducing their operational and capital costs. The ‘zero tariff’ policy for parts and components used for repairing aircraft and vessels will also benefit the development of the aviation industry, aircraft repair industry, vessel repair industry, and the relevant processing and assembly industries.

The Notice provides substantial benefit for enterprises in Hainan FTP. Enterprises inside/outside Hainan FTP should pay attention to the following issues:

• Enterprises outside Hainan FTP should evaluate the feasibility of establishing a platform company/regional headquarters with functions such as import and export trading, investment and financing, logistics/supply chain management, so as to improve overall operations including investment, taxation, customs and trade.
• Enterprises inside Hainan FTP should assess the relevant preferential tax policies and regulatory requirements of the Hainan FTP, and take full advantage of the preferential policies for the imported goods on the basis of compliance.
• It should be noted that imported equipment and transportation means for own use are not included in the current ‘zero-tariff’ product list. Separate lists to regulate imported production equipment for own use, imported transportation means for operation as well as imported goods for consumption within the Hainan island are expected; businesses should pay close attention to these.
• The Notice indicates that the MOF and the relevant government bodies will adopt dynamic adjustments to the ‘zero-tariff’ product list, and therefore, businesses may voice concerns and make suggestions on the list.

Foreign invested enterprise (FIE) investment in domestic equity

Huifa [2019] No. 28 (Circular 28), issued and effective on 25 October 2019, introduces 12 new measures to facilitate China cross-border trade and investment. This includes the removal of restrictions on FIEs from using their registered capital for domestic equity investments. Restrictions previously applied where these were not ‘FIE investment enterprises’ (i.e. FIEs with equity investment as a listed activity in their registered scope of business).

In view of this, FIE non-investment enterprises could become an alternative structure for making domestic equity investments, alongside QFLP, FIVCIEs, and other variants of FIE investment enterprises. Indeed, the tax rules are clearer for FIEs than for other investment platforms such as QFLP. FIEs can also benefit from the incentive in Circular 102 (2018) which defers the application of withholding tax (WHT) on dividends where profits are reinvested in China.

Moreover, red chip structures (i.e. Chinese companies with a Hong Kong or Cayman top company as listing entity) can also benefit. These companies can inject the foreign capital raised overseas into their onshore controlled entities, which can then make onward domestic equity investments.

The change, which builds on earlier pilot schemes, should facilitate the expansion of foreign business and investment in China. While some uncertainties remain to be further clarified, such as to what extent should registered capital in domestic investments be qualified as ‘genuine’ and reasonable, etc., it is observed that different local authorities might have different practical standards.

Offshore indirect disposals

China’s existing offshore indirect disposal reporting and taxation rules were completely revamped with Announcement 7 (which replaced Circular 698, which was abolished by Announcement 37).

The offshore indirect disposal rules seek to ensure that Chinese tax cannot be avoided through the interposition of an offshore intermediary holding entity that holds the Chinese assets. Under these rules, if an offshore indirect disposal of Chinese taxable property (discussed further below) by a non-Chinese TRE is regarded as being undertaken without reasonable business purposes with the aim of avoiding Chinese WHT, the transaction would be re-characterized as a direct transfer of Chinese taxable property and subject to Chinese WHT at the rate of 10 percent under the Chinese General Anti-Avoidance Rules (GAAR).

However, the tax basis for calculating taxable gains for indirect transfers has been unclear, and the practice varies between different locations and tax authorities.

Compared with Circular 698, Announcement 7 expands the scope of the transactions covered, enhances the enforcement mechanism and sets out a more specific framework for dealing with so-called ‘tax arrangements’ with the introduction of a safe harbor and a blacklist. The major aspects of the rules under Announcement 7 are as follows:

• Announcement 7 not only captures transfers of offshore holding companies that ultimately own equity interests of the Chinese resident companies, but also covers foreign companies holding Chinese immovable properties and assets belonging to Chinese PE of foreign companies. The types of offshore transactions that can trigger the rules span from simple offshore equity transfers to transfers of partnership interests/convertible bonds, as well as restructurings and potentially share redemptions.
• While the seller or the buyer are not required to report the offshore transactions to the tax authorities, Announcement 7 requires the buyer to act as the withholding agent and apply 10 percent WHT to the purported transfer gain. The withholding agent faces stringent penalties for failure to pay tax within the required timeframe if the seller also fails to pay its taxes to the Chinese tax authorities. However, the buyer can mitigate potential penalties by making a timely reporting of the transaction. Note that the seller, as the taxpayer, is still on the hook for tax not withheld by the buyer.
• Extensive new guidance was introduced on whether a transaction lacks ‘reasonable business purposes’ and thus should be subject to tax under the Chinese GAAR. This includes a ‘7 factors test’, which considers:
• whether the offshore company’s principal value or source of income is derived from China,
• the functionality and duration of existence of the offshore holding company and ‘substitutability’ of the offshore transaction with an onshore direct disposal of the Chinese taxable assets,
• the overseas taxation position of the offshore transfer, including the application of a tax treaty.

A parallel ‘automatic deeming’ test was introduced, which treats an indirect transfer transaction as lacking reasonable business purpose if, among other black-list factors, more than 75 percent of the value and more than 90 percent of the income or assets of the offshore holding company are derived from or attributable to China. New safe harbor rules to deem a transaction as having ‘reasonable business purposes’ or otherwise not taxable cover the following situations:

• foreign enterprises buying and selling securities on the public market,
• cases where a tax treaty would apply to cover a transaction re-characterized as a direct disposal,
• intragroup reorganizations within a corporate group that meet certain conditions.

In practice, Announcement 7 creates many challenges in its application to indirect transfer transactions due to the difficulties of aligning buyer and seller positions on the reporting and taxability of an indirect transfer M&A transaction. The seller and buyer sometimes find it difficult to agree on whether the Chinese tax authorities would consider an indirect transfer transaction as lacking reasonable business purposes, particularly where there is certain substance offshore. Given the potential stiff penalties that could apply, particularly for buyers as the withholding agents, and given the potential mitigation of penalties through timely voluntary reporting of the indirect transfer cases to the Chinese tax authorities, disputes can arise between transacting parties over whether transactions should be reported at all and whether, and how much, tax needs to be paid or withheld.

Historically, escrow and indemnity arrangements have been used in practice. Now, buyers increasingly tend to require sellers to timely report the transaction to the Chinese tax authorities as a condition for closing the deal.

Announcement 7 was supplemented by Shuizonghan [2015] No. 68 (Circular 68), which provides further implementation guidance and an improved reporting mechanism. The circular clarifies Announcement 7’s measures regarding formal receipts for taxpayer reporting (giving assurance in relation to the penalty mitigation measures), single reporting for transferred Chinese taxable assets in multiple locations in China, and GAAR procedures (including SAT review and appeal procedures). However, there is still a need for a clarified refund process, confirmation on the applicability of safe harbors and timeframes for the conclusion of the GAAR investigations.

Also, there have been cases in the past where the gains on the sale of offshore companies were regarded as Chinese- sourced on the basis that the offshore company’s tax residency is deemed to be in the Chinese under Chinese domestic tax laws (broadly based on the place of effective management). The approach was first applied in a Circular 698 reporting case in the Heilongjiang province of China in 2012 that was made public. Hence, the tax-resident status of foreign incorporated enterprises (particularly those controlled by Chinese residents) should be considered when assessing whether gains from the disposal of Chinese equities offshore by foreign investors in the M&A space could be taxable in the Chinese resident company simply under Chinese domestic tax laws.

This additional exposure needs to be monitored and factored into M&A transactions where foreign investors make offshore indirect acquisitions and disposals of Chinese investments.

Negotiations may be further complicated where investors seek to obtain warranties and indemnities that the deal target is not effectively managed from the offshore incorporation location.

Value Added Tax and land appreciation tax on onshore indirect disposals of properties situated in China

Under Chinese land appreciation tax (LAT) regulations, a transfer of an equity interest in Chinese TRE technically should not give rise to LAT as any underlying properties are not directly transferred. However, the tax authorities may seek to impose LAT on the transfer of an equity interest in a Chinese company that directly holds real estate if the transfer consideration is equivalent to the value of the real estate and/or the primary purpose of the equity transfer is to transfer the land use right and property (rather than the company). There have been some enforcement cases where transfers of equity interests in Chinese property holding companies were re-characterized as direct transfers of Chinese properties for LAT purposes and thus LAT was imposed on the sale of equity interests in the Chinese holding company as if the underlying property had been disposed of.

Further, a local tax circular issued by the Hunan tax authority (i.e. Xiang Di Shui Cai Xing Bian Han [2015] No. 3) clarifies that the ‘transfer of properties in the name of transfer of equity’ should be subject to LAT, because the transfer of Chinese company shares, which in substance represents a transfer of the underlying Chinese properties, should be subject to LAT.

Currently, only transactions that are deemed as ‘disguised’ property transfers would be subject to LAT, which would be assessed case-by-case. In making the assessments, the Chinese tax authorities would look at certain criteria to decide whether the nature of the transaction is, in substance, a property transfer transaction. These criteria include:

• whether the share transfer consideration was equal to or close to the valuation of the Chinese properties,
• the duration of the holding period,
• the transaction agreements.

The look-through of an equity transfer to impose LAT is not explicitly supported by existing LAT law (which, unlike the CIT law, does not have an anti-avoidance provision). Hence, these look-through cases are still rare in practice, but investors should closely monitor future developments as this approach could significantly affect investment returns.

The position under China’s new Value Added Tax (VAT) rules, in effect since 1 May 2016, is similar. That is, the transfer of unlisted equity interests is not subject to VAT. However, the transfer of real estate assets is generally subject to 9 percent[1] VAT (or a reduced rate of 5 percent, where certain grandfathering arrangements apply). The new VAT rules contain an anti- avoidance provision and the tax authorities could take a look-through approach similar to the above on LAT and impose VAT on disguised transfers of properties via equity transfers.

Treaty relief claims

In 2009, the Chinese tax authorities adopted measures to monitor and resist granting tax treaty relief in cases of perceived treaty shopping through the use of tax treaties to gain tax advantages. Guoshuifa [2009] No. 124 (Circular 124, issued in 2009, which is superseded by another tax circular; see below) introduced procedural requirements under which tax authority pre-approval may be required before treaty relief can be applied. This has made it easier for the tax authorities to identify cases where the taxpayer is relying on treaty protection.

Circular 601 and Announcement 30 (both of which will be superseded by Announcement 9 from 1 April 2018) and Shuizonghan [2013] No. 165 (Circular 165, issued in April 2013) set out the factors that the Chinese tax authorities should take into account in deciding whether a treaty’s BO requirements are satisfied. These circulars also provide guidance on the interpretation of the negative factors.

In 2015, the SAT issued SAT Announcement [2015] No. 60 (Announcement 60), which replaced Circular 124 and revamped the tax treaty relief system. The new system, which took effect as of 1 November 2015, abolishes the tax treaty relief pre-approval system under Circular 124. Instead, the taxpayer self-determines whether tax treaty relief applies and informs the withholding agent (or the tax authority directly where no withholding agent is involved) that it will be claiming the treaty relief.

To encourage the withholding agent to process the relief without taking on excessive risk and uncertainty, the detailed tax treaty relief forms, completed by the taxpayer, include a section requiring information that the withholding agent will check before applying the treaty rate and a separate, more detailed section that the tax authorities may refer to during their follow-up procedures. The withholding agent’s section includes, along with basic details on how the taxpayer satisfies the terms of the treaty, a BO test defined under Circular 601 (to be replaced by Announcement 9 from 1 April 2018), which is a control test along the lines of that applied in other countries.

Following the release of Announcement 60, on 29 October 2015, the SAT further issued Shuizongfa [2015] No. 128 (Circular 128) to clarify the follow-up procedures as emphasized in Announcement 60. Circular 128 stipulates that Chinese tax authorities would audit at least 30 percent of the tax treaty relief claim cases on dividends, interest, royalties and capital gain within 3 months after the end of each quarter and perform special audits to assess the risks of treaty abuse in various aspects. If the tax authorities discover on examination that treaty relief should not have applied and tax was underpaid, the tax authorities would instruct the taxpayer to pay the underpaid tax within a set time period.

If the payment is not made on time, then the tax authorities can pursue other Chinese-sourced income of the non-resident or take stronger enforcement action under the Chinese Tax Collection and Administration Law. The tax authorities may also launch anti-avoidance proceedings, either under the relevant anti-abuse articles of tax treaties or the domestic GAAR.

In view of Circular 128, there have been cases where Chinese tax authorities have sought to recover underpaid taxes from treaty relief claimants due to their improper treaty claims. In a recent case in Quanzhou City, Fujian Province, published in 2017, a Hong Kong company was regarded by the Chinese tax authorities as a conduit company that was established predominantly for the purpose of attaining the reduced WHT rate of 5 percent instead of 10 percent under the Hong Kong–China tax treaty. Consequently, the Chinese tax authorities have recovered the underpaid dividend WHT of RMB10.46 million and imposed a late payment surcharge of RMB423,600.

On 22 October 2019 the SAT released new tax treaty relief administrative guidance in SAT Announcement [2019] No. 35 (Announcement 35). This will take effect from January 2020 and replaces the existing guidance in Announcement 60.

Announcement 35 now simply requires that supporting documents are kept by the taxpayers on their files for review. Solely a short notification form is sent to the authorities, either directly from the taxpayer or via the WHT agent. Announcement 35 also makes clear that the WHT agent’s responsibility is just to check that the taxpayer has fully filled out the form, and submit the form to the tax authorities.

Most other provisions are unchanged from Announcement 60, such as those concerning the use of contracts, board resolutions and tax residence certificates as supporting documents, requirements on the taxpayer and WHT agent to assist the authorities with follow-up review, refund procedures, etc. This being said, the multiple complex relief forms, which were different for companies and individuals, and for different income types, are now replaced with a single simple form.

On 6 February 2018, the SAT issued Announcement 9, which replaced Circular 601 and Announcement 30 as of 1 April 2018 (see ‘Recent developments’ section).

In summary, the treaty relief system under Announcement 35 remains as an open and efficient channel to access treaty relief and aid the conduct of M&A and restructuring transactions. However, taxpayers have a greater burden to ensure that self-assessment is grounded in prudence and satisfies the relevant conditions, including those under Circular 601 and Announcement 30 (before 1 April 2018) and Announcement 9 (on and after 1 April 2018).

While Announcement 9 has set out the relevant rules and addressed certain issues pertaining to treaty benefit claims for foreign investors, there are still uncertainties regarding how the assessment of BO of dividends distributed from Chinese resident enterprises to their foreign shareholders would align with international practice and norms. For example, it is uncertain whether unincorporated entities such as partnerships and trusts that are paying foreign CIT in their own capacities would be eligible to apply for treaty benefits in their own right, rather than being treated by the Chinese tax authorities as a pass-through.

Reorganization relief

In 2014 and 2015, a number of key improvements to the Chinese tax restructuring reliefs were made to the STT that result in tax deferral treatment for corporate restructurings. The changes lowered the eligibility threshold and introduced new ways to access STT.

Circular 59, the principal tax regulation on restructuring relief issued in 2009, sets out the circumstances in which companies undergoing restructuring can elect for STT. Absent the application of STT, the general tax treatment (GTT) requires recognition of gains/losses arising from the restructuring. The STT conditions include two tests:

• a ‘purpose test’ akin to the Chinese GAAR (i.e. the transaction must be conducted for reasonable commercial purposes and not for tax purposes),
• a ‘continuing business test’ (i.e. there is no change to the original operating activities within a prescribed period after the restructuring).

The conditions also set out two threshold tests that aim to ensure the continuity of ownership and the continued integrity of the business following the restructuring. Under these tests:

• consideration must comprise 85 percent of equity,
• 75 percent of the equity or assets of the target must be acquired by the transferee.

Although Circular 59 was intended to provide favorable tax treatment to restructuring transactions, STT had not been widely used due to the high thresholds. Caishui [2014] No. 109 (Circular 109) was subsequently issued to lower the 75 percent asset/equity acquisition threshold to 50 percent. This facilitates the conduct of many more takeovers/restructurings in a tax-neutral manner. Circular 109 also introduces a new condition for STT that removes the 75 percent ownership test. The new condition permits elective non-recognition of income on transfer of assets/equity between two Chinese TREs that are in a ‘100 percent holding relationship’, provided no accounting gains/losses are recognized. Both the purpose test and the continuing business test from Circular 59 hold, and the tax basis of transferred assets for future disposal is their original tax basis. The supplementary SAT Announcement [2015] No. 40 (Announcement 40) clarifies certain terms used in Circular 109 and spells out in detail the situations to which the relief applies.

Given that China does not, unlike many other countries, have comprehensive group relief or tax consolidation rules, the introduction of this intragroup transfer relief is a real breakthrough in Chinese tax law. However, the relief does not cover transfers of Chinese assets by non-TREs (whether between two non-TREs or between a non-TRE and a TRE). Taxpayers also need to be aware of the emphasis being placed by tax authorities on the purpose test, particularly as the intragroup transfer relief opens the door to tax loss planning strategies that previously were not possible under Chinese tax law.

SAT Announcement [2015] No. 48 (Announcement 48) also abolishes the tax authority pre-approvals previously needed for STT to be applied, moving instead to more detailed STT filing at the time of the annual CIT filing. The transition from tax authority pre-approval to taxpayer self-determination on the applicability of STT (and on tax treaty relief claims as discussed earlier) is in line with the broader shift in Chinese tax administration away from pre-approvals. However, while the abolition of pre-approvals potentially expedites transactions, it also places a greater burden on taxpayer risk management procedures and systems to ensure that treatments adopted are justified and adequately supported with documentation.

VAT reform

China’s transition from business tax (BT) to VAT has been a major tax reform initiative, which was designed to facilitate the growth and development of the services sector and to relieve the indirect tax impact in many business-to-business transactions. Since 2012, the VAT reforms have been gradually expanded to sectors which were historically under the BT regime.

As of 1 May 2016, all transactions involving goods and/or services fall within the scope of VAT, and BT is no longer in operation. The following sectors are among the last major batch that transitioned from BT to VAT from 1 May 2016: real estate and construction, financial services, and lifestyle services (which is a general category capturing all other services).

In the context of M&A transactions, the VAT reform rules significantly affect how transactions are undertaken, whether by way of asset or business transfer or equity. Given the significant changes in VAT rates for some industries (compared with the previous BT rates), the ability to recover VAT under contracts that may be acquired or assumed as part of any M&A transactions is a significant area of focus. The funding of transactions also needs to take into account the VAT implications, given that China’s VAT system applies 6 percent VAT to financial services, including interest income.

The Chinese government issued a number of circulars during 2017 to clarify certain VAT-related uncertainties and adjust certain existing VAT rates. Therefore, it is expected that the Chinese VAT system will continue to evolve in the future, to further update and clarify various practical aspects of the Chinese VAT reform that remain uncertain.

More recently, as of 1 January 2018, new VAT rules were introduced to reduce the applicable VAT rate for the operation of asset management products, such as trusts and funds, to 3 percent (from 6 percent) for Chinese asset managers but without the ability to claim input VAT credits. This change affects interest income derived from such asset management products, as well as gains on trading of financial products (among other things). However, whether the new VAT rate would also apply to foreign investors that qualify as a ‘qualified foreign institutional investor’ or ‘Renminbi qualified foreign institutional investor’ is currently unclear, given that such an investor cannot register itself as a VAT taxpayer for Chinese VAT purposes.

In addition to tax considerations, the execution of an acquisition in the form of either an asset purchase or a share purchase in the PRC is subject to regulatory requirements and other commercial considerations.

Some of the tax considerations relevant to asset and share purchases are discussed below.

Purchase of assets

A purchase of assets usually results in an increase in the cost base of those assets for capital gains tax purposes, although this increase is likely to be taxable to the seller. Similarly, where depreciable assets are purchased at a value greater than their tax-depreciated value, the value of these assets is refreshed for the purposes of the buyer’s tax depreciation claim but may lead to a clawback of tax depreciation for the seller.

Where assets are purchased, it may also be possible to recognize intangible assets for tax amortization purposes. Asset purchases are likely to give rise to relatively higher transaction tax costs than share purchases, which are generally taxable to the seller company (except for stamp duty, which is borne by both the buyer and seller, and deed tax, which is borne by the buyer of land and real property). Further, for asset purchases, historical tax and other liabilities generally remain with the seller company and are not transferred with the assets. As clarified in ‘Choice of acquisition funding’, it may be more straightforward, from a regulatory perspective, for a foreign invested enterprise to obtain bank financing for an asset acquisition than for a share acquisition.

The seller may have a different base cost for their shares in the company as compared to the base cost of the company’s assets and undertaking. This, as well as a potential second charge to tax where the assets are sold and the company is liquidated or distributes the sales proceeds, may determine whether the seller prefers a share or asset sale.

Caishui [2014] No. 116 (Circular 116) allows for deferral of tax on gains deemed to arise on a contribution of assets by a TRE into another TRE in return for equity in the latter. The taxable gain can be recognized over a period of up to 5 years, allowing for the payment of tax in instalments. This relief, potentially also extending to the contribution of assets by minority investors into a TRE, complements the intra-100 percent group transfer relief under Circulars 59 and 109 (see ‘Recent developments’ section).

According to SAT Announcement [2015] No. 33 (Announcement 33), where applicable, taxpayers can elect to apply either the relief under Circular 116 or the intra-100 percent group transfer relief under Circulars 59 and 109.

Further, SAT Announcement [2011] No. 13 (Announcement 13), issued in February 2011, provided a VAT exclusion for the transfer of all or part of a business pursuant to a restructuring.

However, certain limitations in the practical applicability of the relief still exist.

Purchase price

For tax purposes, it is necessary to apportion the total consideration among the assets acquired. It is generally advisable for the purchase agreement to specify the allocation, which is normally acceptable for tax purposes provided it is commercially justifiable. It is generally preferable to allocate the consideration, to the extent it can be commercially justified, against tax-depreciable assets (including intangibles) and minimize the amount attributed to non-depreciable goodwill. This may also be advisable given that, at least under old Chinese generally accepted accounting principles (GAAP), goodwill must be amortized for accounting purposes, limiting the profits available for distribution.

Goodwill

Under CIT law, expenditure incurred in acquiring goodwill cannot be deducted until the complete disposal or liquidation of the enterprise.

Amortization is allowed under the CIT law for other intangible assets held by the taxpayer for the production of goods, provision of services, leasing, or operations and management, including patents, trademarks, copyrights, land-use rights, and proprietary technologies, etc. Intangible assets can be amortized over no less than 10 years using the straight-line method.

Depreciation

Depreciation on fixed assets is generally computed on a straight-line basis. Fixed assets refer to non-monetary assets held for more than 12 months for the production of goods, provision of services, leasing, or operations and management, including buildings, structures, machinery, mechanical apparatus, means of transportation and other equipment, appliances and tools related to production and business operations.

The residual value of certain fixed assets (i.e. the part of the asset value that is not tax-depreciable) is to be reasonably determined based on the nature and use of the assets.

Once determined, the residual value cannot be changed. The minimum depreciation periods for relevant asset types are as follows: