In 2010, the Hong Kong government passed a law that enabled the country to adopt the international standards for the exchange of tax information. This enhanced Hong Kong's ability to enter into double taxation agreements (DTAs) with other countries.As ...
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In 2010, the Hong Kong government passed a law that enabled the country to adopt the international standards for the exchange of tax information. This enhanced Hong Kong's ability to enter into double taxation agreements (DTAs) with other countries.
As a result, there has been a marked increase in DTA negotiations involving Hong Kong. France, Japan, New Zealand and Switzerland signed treaties in late 2010, with Portugal, Spain, and the Czech Republic following suit in early 2011.
Hong Kong now has 22 treaties, with at least 13 more in negotiation with other countries including India, Italy, South Korea, Malaysia, Denmark and Canada.
As Hong Kong enters into an increasing number of DTAs with other countries, taxpayers are able to benefit from a reduction in withholding taxes, permanent establishment (PE) protection and increased tax rate certainty.
Taxpayers have noticed more scrutiny from the tax authorities over the last year, which has been accompanied by a rise in the number of tax disputes going to court.
A key case in Hong Kong involves Li & Fung, a sourcing, distribution and retailing company. The dispute is centred on the commissioner of Inland Revenue's (CIR) argument that since Li & Fung's profitable activities were carried out both in Hong Kong and overseas, the commission the taxpayer receives should be apportioned accordingly. The CIR claimed that the management of the overseas affiliates by Li & Fung in Hong Kong were also vital profitable factors.
The Court of First Instance (CFI) however, upheld the Board of Review's decision in favour of Li & Fung, stating that while the management of the overseas affiliates was important, it was not the profitable transaction. Therefore, the source of its commission income came from outside Hong Kong, exempting Li & Fung from profits tax in the jurisdiction.
The implications of the CFI ruling reiterate the approach that one must first identify the profitable transactions when determining the source of a profit.
"If the Li & Fung decision is upheld, [the tax authorities] in Hong Kong are going to look to bring in a sales tax of some type," commented Brian Gilchrist of Clifford Chance.
"No one will dispute that the tax base in Hong Kong is very narrow," said Tracy Ho, partner at Ernst & Young. "About 85% of tax revenue comes from the top 10% of Hong Kong taxpayers. How do we increase the tax base? It seems the only considerable way is to increase the sales tax."
The Inland Revenue Department has become more conscious of transfer pricing.
"Transfer pricing is becoming a more and more popular topic. After the financial crisis, the tax authorities have been aggressive in increasing their tax revenue. Transfer pricing will typically be one of the means to raise revenue," said Ho.
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