TIHK Newsletter Issue No.001 January 2013 Forward 40 years have passed with 16th November 2012 as the date to celebrate the 40th Anniversary of the In

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1 香港稅務學會THE TAXATION INSTITUTE OF HONG KONG 2013 ISSUE NO. 001 NEWS LETTER

2 TIHK Newsletter Issue No.001 January 2013 Forward 40 years have passed with 16th November 2012 as the date to celebrate the 40th Anniversary of the Institute. At the same time, with the enhancement of the website of the Institute, the Newsletter of the Institute is delivered to our members on the website. In this January issue, some tax update articles on Hong Kong tax and PRC tax have been contributed by our editors. Readers can also enjoy some memories on the events of the Institute held in the past 3 months or so. Editorial Team Editor-in-Chief Editors: Ho Chi Ming Philip Hung Godwin Ng Patrick Kwong Vincent Lo Webster Ng Ann Liang

3 Content Hong Kong Tax Update P.1 PRC Tax Update P.2 - P.3 Events & Activities P.4 - P.8 Latest News P.9

4 Hong Kong Tax Update Decision of the Court of First Instance Turner Entertainment Networks Asia, Inc for Muse Communication Company Limited v CIR (2012) HCIA4/2010 the Court held that license fees received by a non-hong Kong resident for its grant of rights to exhibit certain television programs outside Hong Kong are chargeable to tax in Hong Kong under section 15(1)(ba) of the IRO. In this regard, the Court held that the exhibition of the relevant television programs involved the use of, or right to use the copyright materials which subsisted in the television programs and the payer was entitled to claim the fees as tax deductible in Hong Kong. s. 15(1)(ba) is imposed if a taxpayer is not otherwise chargeable under s. 15(1)(b). The taxpayer's argument was that the royalty was received for the exhibition of television programs, fell within s. 15(1)(a), not s. 15(1)(b). The Court supported the CIR's case that exhibition rights of television programs can fall within the meaning of copyright materials or other property of a similar nature" in s. 15(1)(b) and that the existence of s. 15(1)(a) does not preclude the application of s. 15(1)(b) to the royalty for the said exhibition of television programs. The taxpayer has lodged an appeal against the decision to the CA. Decisions of the Court of Appeal Li & Fung (Trading) Limited v CIR (2011) CACV86/2011 the Court of Appeal (CA) upheld the lower court s decision that commission income, earned by the taxpayer through the buying agency services performed by the overseas affiliates of the taxpayer for the taxpayer s customers outside Hong Kong, was non-taxable offshore income in Hong Kong. The CA s decision is now final as the CIR has decided not to appeal further. Aviation Fuel Supply Company v CIR (2012) CACV150/2011 the CA upheld the lower court s decision that a contractual compensation payment received by the taxpayer in respect of an early termination of a franchise and lease agreement in respect of a fuel supply facility that the taxpayer built for the Airport Authority under a build-operate-and-transfer type arrangement was a non-taxable capital receipt. This is the case despite the fact that compensation payment was calculated based on the expected facility payments that the taxpayer would have received for the remaining term of the franchise and lease agreement discounted at a pre-determined rate of 12% and that the taxpayer s previous receipt of the facility payments was agreed to be taxable. As yet, the CIR has not indicated whether he will further appeal the decision to the CFA. Nice Cheer Investment Limited v CIR CACV135/2011 the CA held that year-end unrealized revaluation gains in respect of listed securities held by the taxpayer for trading purposes are not profits for the purposes of section 14 of the Inland Revenue Ordinance (IRO). As such, the unrealized revaluation gains were not chargeable to tax although they were recognized in the taxpayer s accounts as profits in accordance with the relevant accounting standards. The CIR has lodged a further appeal against the CA s decision to the Court of Final Appeal (CFA). Braitrim (Far East) Limited v CIR (2012) CACV 45/2012 the CA upheld the decision of the Board of Review (BOR) that the provision of moulds by the taxpayer to its contract manufacturers located outside Hong Kong for the specific purposes of enabling the latter to manufacture goods ordered by the taxpayer, constituted a lease arrangement. As such, the CA also upheld the BOR s decision that the moulds are excluded fixed assets not qualifying for any tax deductions under section 16G of the IRO. As yet, the CA judgment has not been published and it is not known whether the taxpayer will further appeal.

5 中國稅法最新動向 1) 財政部和國家稅務總局頒布了關於交通運輸業和部分現代服務業營業稅改徵增值稅試點應稅服務範圍等若干稅收政策的補充通知 ( 財稅 [2012]86 號 ) 根據財稅 [2011]111 號文件規定, 具備一般納稅人身份的試點融資租賃企業提供有形動產融資租賃服務, 對其增值稅實際稅負超過 3% 的部分實行增值稅即徵即退政策但該文件並未對增值稅實際稅負的計算方法作出明確, 因而導致各種不同的理解自 2012 年 1 月 1 日試點以來, 上海地區的稅務機關一般運用以下公式計算試點融資租賃企業的實際稅負 : 增值稅實際稅負 = 實際繳納的增值稅稅額 / 增值稅稅基增值稅稅基 = 租賃收入 - 出租方承擔的出租貨物的實際成本 ( 包括採購成本運雜費安裝費保險費等但不包括貸款利息 ) 但隨著財稅 [2012]86 號的頒佈, 上述公式將不再適用財稅 [2012]86 號第八條明確, 上述增值稅實際稅負是指納稅人當期實際繳納的增值稅稅額占納稅人當期提供應稅服務取得的全部價款和價外費用的比例換而言之, 在計算實際稅負時, 由出租方承擔的多項支出將不能從租賃收入中扣除與上海地區之前採用的公式相比, 這一新的方法對納稅人更不利值得注意的是, 由此項變化帶來的額外稅負仍可以通過財政補貼的方式解決財稅 [2012]86 號的規定將極大地提高上海地區試點融資租賃企業的稅負計算基礎, 許多企業可能會因此無法享受增值稅的即徵即退待遇 2) 國家稅務總局發布了關於納稅人資產重組增值稅留抵稅額處理有關問題的公告 ( 國家稅務總局公告 2012 年第 55 號, 以下稱 55 號公告 ) 根據 55 號公告規定, 自 2013 年 1 月 1 日起, 在資產重組過程中, 允許增值稅一般納稅人將其在辦理註銷登記前尚未抵扣的進項稅額結轉至其他增值稅一般納稅人處繼續抵扣 55 號公告的發布明確了資產重組增值稅留抵稅額的處理方法, 該文件的執行或有助於降低納稅人在資產重組中可能發生的涉稅成本國家稅務總局在 2011 年發布的第 13 號公告 ( 以下稱 13 號公告 ) 明確了在資產重組過程中, 納稅人將全部或部分實物資產以及與其相關聯的債權負債和勞動力一併轉讓的行為, 不屬於增值稅的徵稅範圍然而,13 號公告並未提及上述交易中轉讓方留抵稅額的處理根據 55 號公告的規定, 增值稅一般納稅人 ( 以下稱轉讓方 ) 將尚未抵扣的進項稅額結轉至其他增值稅一般納稅人 ( 以下稱受讓方 ) 必須同時滿足以下兩項條件 : 轉讓方在資產重組過程中, 將全部資產負債和勞動力一併轉讓給受讓方轉讓方按程序辦理註銷稅務登記在程序方面, 轉讓方主管稅務機關應核實轉讓方在辦理註銷稅務登記前尚未抵扣的進項稅額, 填寫增值稅一般納稅人資產重組進項留抵稅額轉移單 ( 以下稱轉移單 ), 並將轉移單傳遞給受讓方主管稅務機關受讓方主管稅務機關則應將轉讓方主管稅務機關傳遞來的轉移單與受讓方報送資料核對確認無誤後, 才能允許受讓方繼續申報抵扣這意味著留抵稅額的結轉必須經過轉讓方受讓方雙方主管稅務機關的審核

6 3) 國家稅務總局部署 2013 年所得稅工作任務國家稅務總局副局長王力在 12 月 20 日在北京舉行的 2012 年全國稅務系統所得稅工作視頻會議上指出當前和今後一個時期, 所得稅工作要著力做到五個推進 : 一是以建立科學完備的所得稅政策體係為前提, 著力推進所得稅職能作用有效發揮 ; 二是以風險管理為導向, 著力推進所得稅專業化管理 ; 三是以落實所得稅政策為重點, 著力推進所得稅納稅服務 ; 四是以規範化一體化為核心, 著力推進所得稅信息化建設 ; 五是以健全人才培養使用機制為抓手, 著力推進所得稅專業人才隊伍建設王力又指出, 2013 年是全面貫徹落實十八大精神的開局之年, 所得稅工作要按照總局黨組工作部署, 加強領導, 健全機制, 完善措施, 明確責任, 重點抓好六項工作 : 一是積極發揮所得稅職能作用要進一步完善所得稅政策, 規範所得稅政策執行, 建立健全所得稅政策執行的國稅局地稅局定期溝通協調機制, 確保所得稅政策執行口徑統一二是切實加強企業所得稅專業化管理要積極探索所得稅風險管理, 進一步抓好分類管理, 深入開展納稅評估和後續管理, 加強彙算清繳和匯總納稅管理三是不斷深化個人所得稅管理要繼續做好明細申報等管理基礎工作, 紮實推進全員全額扣繳明細申報, 強化涉稅信息管理, 繼續探索推進個人所得稅與企業所得稅社保費的聯動管理要突出管理重點, 完善徵管手段, 創新管理方式, 切實加強高收入者徵管, 重點加強股權轉讓所得徵管要進一步提高認識, 拓展工作廣度, 挖掘工作深度, 深入推進自行納稅申報工作四是優化所得稅納稅服務要落實所得稅政策, 完善服務舉措, 減輕納稅人負擔, 維護納稅人合法權益五是推動所得稅信息化建設要完善所得稅管理平台, 強化所得稅信息採集, 拓展所得稅信息應用六是加快所得稅專業人才隊伍建設要構建專業化人才培養的長效機制, 建立所得稅專業人才團隊, 加強所得稅隊伍黨風廉政建設 4) 結構性減稅及擴大營改增試點行業範圍財政部部長謝旭人在 2012 年 12 月 20 日開幕的全國財政工作會議上表示,2013 年將堅持穩中求進的工作總基調, 繼續實施積極財政政策積極財政政策的主要著力點包括結合稅制改革完善結構性減稅政策, 促進經濟結構調整擴大營業稅改徵增值稅試點地區和行業範圍, 促進現代服務業發展和產業結構升級, 支持企業特別是小微企業健康發展清理取消不合理不合法的收費項目, 降低偏高的收費標準, 減輕企業負擔謝旭人亦透露,2013 年將加快推進營改增試點工作, 抓緊研究交通運輸業和部分現代服務業在全國試點的方案, 適時將郵電通信鐵路運輸建築安裝等行業納入試點範圍 2012 年 1 月 1 日, 營改增試點改革率先在上海市交通運輸業和部分現代服務業啟動, 目前試點已擴至 9 個省直轄市和 3 個計劃單列市

Events&Activities TIHK Events (October 2012 January 2013) Asian Oceanic Tax Consultants Association (AOTCA) Conference 2012 in Seoul, Korea - 17-19

Thomas Lee, our Past President (1999-2002) and current Council Member was elected President of AOTCA in 2012. Mr.

knowledge and experience. TIHK representatives attended the AOTCA Annual Conference 2012 in Seoul Congratualtory message on SCMP to Mr.

2012, the Institute organized the 40th Anniversary Dinner at the City Hall Maxim s Palace on 16 th November 2012. Ms.

7 Events&Activities TIHK Events (October 2012 January 2013) Asian Oceanic Tax Consultants Association (AOTCA) Conference 2012 in Seoul, Korea October 2012 Mr. Thomas Lee, our Past President ( ) and current Council Member was elected President of AOTCA in Mr. Philip Hung, President of TIHK and other TIHK representatives attended the AOTAC annual conference 2012 in Seoul for exchanges of professional knowledge and experience. TIHK representatives attended the AOTCA Annual Conference 2012 in Seoul Congratualtory message on SCMP to Mr. Thomas Lee for his election as President of AOTCA in 2012 TIHK 40 th Anniversary Dinner - 16 November 2012 To celebrate our 40 th anniversary in 2012, the Institute organized the 40th Anniversary Dinner at the City Hall Maxim s Palace on 16 th November Ms. Julia Leung, the Under Secretary for Financial Services and the Treasury was invited as our Guest of Honor. Group photo of Guest of Honour Ms. Julia Leung (6 th from the left) taken with the TIHK Council Members at the Anniversary Dinner (Left) Mr. Philip Hung, President of TIHK, presenting the Long Service Award to Mr. Kenneth Chau (Founding Member & Past President)

(Left) Mr. Philip Hung, President of TIHK, presenting the highest Score Award to Mr.

Julia Leung, Under Secretary of Financial Services and the Treasury hosting the

2012-16 November, 2012 The 7 th Cross Strait Tax Conference 2012 was hosted by TIHK

Held in the Harbour Grand Hong Kong on 16 Nov 2012, the Conference attracted over 200

The Institute was honored to have invited Mr.

8 (Left) Mr. Philip Hung, President of TIHK, presenting the highest Score Award to Mr. William Wong (CTA Graduate) Ms. Julia Leung, Under Secretary of Financial Services and the Treasury hosting the eye-dotting ceremony at TIHK 40th Anniversary Dinner 7 th Cross Strait Tax Conference November, 2012 The 7 th Cross Strait Tax Conference 2012 was hosted by TIHK this year. Held in the Harbour Grand Hong Kong on 16 Nov 2012, the Conference attracted over 200 guests and participants to the full day event. The Institute was honored to have invited Mr. Chu Yam Yuen, JP, the Commissioner of Inland Revenue (CIR) to officiate at the opening ceremony. Mr. Chu Yam Yuen, JP, CIR delivering the opening speech for the 7 th Cross Strait Tax Conference (From left to right) Mr. Wu Der-Fung, Mr. Chu Yam Yuen, Mr. Cui Junhui, Ms. Wong Wai Pan, Mr. Philip Hung and Mr. Ning Xu Ping Presidents of overseas Taxation Institutions and TIHK Council Members Participants were eager to throw questions to the speakers at the 7 th Cross Strait Tax Conference

Visit to the LegCo Complex - 16 December,2012 To enhance member s understanding of the work of the

the Legislative Council Complex was organized on a Sunday afternoon in mid December by the TIHK

Group photo of members taken at the lobby of the Legislative Council Hon.

of Wine Appreciation for Business Executives - 25 January, 2013 25 January 2013 Joint event with

9 Visit to the LegCo Complex - 16 December,2012 To enhance member s understanding of the work of the Legislature and to serve as an opportunity for member s networking, a 1-hour guided tour to visit the Legislative Council Complex was organized on a Sunday afternoon in mid December by the TIHK Secretariat in collaboration with the Office of the Hon Kenneth Leung. Group photo of members taken at the lobby of the Legislative Council Hon. Kenneth Leung and TIHK members taken at Chamber of LegCo Complex Chamber of LegCo Complex The Art of Wine Appreciation for Business Executives - 25 January, January 2013 Joint event with CPA Australia - The Art of Wine Appreciation for Business Executives Speaker: Mr. Louis Wong Mr. Louis Wong walked through the participants with the basis of wine

Education & Careers Expo 2013-31 Jan -3 Feb 2013 In order to raise public awareness of The Taxation Institute of Hong Kong (TIHK) and the Certified Tax Adviser (CTA) Examination, TIHK

Opening hours: 31 Jan 2013 (Thu) 10:30am 7:00pm 1 Feb 2013 (Fri) 10:00am 7:00pm 2 Feb 2013 (Sat) 10:00am 7:00pm 3 Feb 2013 (Sun) 10:00am 6:00pm Seminars (October 2012 January 2013) Come

Dicky To, Tax Partner of RSM Nelson Wheeler. Seminar s Chairman: Mr. Webster Ng 21 November 2012 A Tax Lawyer s Perspective of Topical Tax Issues in Hong Kong Speaker: Mr.

10 Education & Careers Expo Jan -3 Feb 2013 In order to raise public awareness of The Taxation Institute of Hong Kong (TIHK) and the Certified Tax Adviser (CTA) Examination, TIHK has joined the Education & Careers Expo 2013 organized by the HKTDC. The Expo is to be held at Level 1, the Hong Kong Conversion and Exhibition Centre, 1 Expo Drive in Wan Chai. Opening hours: 31 Jan 2013 (Thu) 10:30am 7:00pm 1 Feb 2013 (Fri) 10:00am 7:00pm 2 Feb 2013 (Sat) 10:00am 7:00pm 3 Feb 2013 (Sun) 10:00am 6:00pm Seminars (October 2012 January 2013) Come & visit our booth at Hall 1C-1E Booth No. 1C-E10 31 October 2012 Business and Tax Issues to Consider in Structuring an Employee Long Term Incentive Plan Speaker: Mr. Dicky To, Tax Partner of RSM Nelson Wheeler. Seminar s Chairman: Mr. Webster Ng 21 November 2012 A Tax Lawyer s Perspective of Topical Tax Issues in Hong Kong Speaker: Mr. Michael Olesnicky, Head of Baker & Mckenzie s Tax Group in Asia and Chairman of JLCT. Seminar s Chairman: Mr. Marcellus Wong (Left) Mr. Dicky To and (Right) Mr. Webster Ng (Left) Mr. Marcellus Wong and (Right) Mr. Michael Olesnicky

27 November 2012 Meaning of Without Reasonable Excuses in Section 82A Mr. Godwin Ng, Barrister-at-law, Chartered Account and Vice President of TIHK. Seminar s Chairman: Mr.

11 27 November 2012 Meaning of Without Reasonable Excuses in Section 82A Mr. Godwin Ng, Barrister-at-law, Chartered Account and Vice President of TIHK. Seminar s Chairman: Mr. Bryan Chan 12 December 2012 Re-run due to over-subscription (Left) Mr. Godwin Ng, Vice President of TIHK and (Right) Mr. Bryan Chan Forth-coming Seminars February February 2013 at 6:30 pm at TIHK s office Tax Discussion Forum Mr. Godwin Ng, convener 22 February 2013 at 6:30pm at SCOPE, 8/F, United Centre, Admiralty Representative Office Good Enough for China Business Plans Mr. Caesar Wong, Partner Tax & Business Advisory Services, Deloitte 28 February 2013 (12:30pm), 20/F, CPA Australia, Tai Yau Plaza,181 Johnston Road, Wanchai March March 2013 at 6:30 pm at TIHK s office Budget Talk Luncheon Re-run Tax Discussion Forum Mr. Marcellus Wong Senior Consultant, PwC Mr. Godwin Ng, convener 8 March 2013 at 6:30pm at SCOPE, 8/F, United Centre, Admiralty Introduction to China Customs Rules and Practices Mr. Derek WC Lee, Partner, PwC Early March 2013 Joint seminar with CPA Australia - China Tax Update Speaker to be confirmed

Latest News Online Services for Members Member Login is now available! Members are able to login your personal member s account at www.tihk.org.

12 Latest News Online Services for Members Member Login is now available! Members are able to login your personal member s account at for updating your personal information kept by the Institute. Also, you may submit your CPD declaration form through your member s account. New Appointment of Chief Executive Our new Chief Executive Ms. Ann Liang was on board in late October With extensive experiences in serving the government as well as the utility companies and tertiary education sector, her appointment would help strengthening the function of the Secretariat and providing enhanced and expanded services for the Council and members. CTA Examination 2012 It is encouraging to see that 8 candidates had completed our CTA Examination in In addition, the number of candidates enrolled for the examination is on steady increase as it reflected the rising importance of the CTA examination. In Memoriam A Tribute to Mr. Chiu Shin Koi, Samuel ( ) Mr. Chiu, a past Vice- President of TIHK, passed away on 8 December The funeral service was held on 16 December The Institute is grateful to Mr. Chiu for his contribution in the field of taxation. He will be remembered as being an important member of TIHK. 21 Floor, Kam Sang Building, Des Voeux Road Central, Hong Kong Tel: (852) Fax: (852) tihkadm@tihk.org.hk Website:

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