Perhaps the biggest feature of the tax landscape in Hong Kong in recent years has been the number of double tax treaties the territory has signed. The figure is now 22, the latest having been with Mexico, Spain, Czech Republic and Malta.The plan is to ...
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Perhaps the biggest feature of the tax landscape in Hong Kong in recent years has been the number of double tax treaties the territory has signed. The figure is now 22, the latest having been with Mexico, Spain, Czech Republic and Malta.
The plan is to enter into even more DTAs in the future as negotiations with the UAE have been finalised but not yet signed and negotiations are under way with Bangladesh, Canada, Finland, India, Italy, South Korea, Macau, Malaysia and Saudi Arabia.
"It is a good move to have more and more tax treaties. It helps to maintain HK as a competitive location for business," says David Kan of PwC. The move is in line with HK's innate character as an international financial centre where a majority of companies inevitably engage in international tax matters; these agreements assist to reap maximum economic benefits.
Hong Kong's decision to pursue DTAs was triggered by an OECD report in 2009 where HK was almost grey listed as a not fully cooperating tax jurisdiction. The territory proceeded to enter into multiple DTAs to be regarded as fully compliant.
"In reviewing HK's progress in signing DTAs, the OECD commented on HK's lack of legal framework in entering into stand-alone tax information exchange agreements (TIEAs). The government is now seeking consultation on whether HK should enter into TIEAs, to avoid being labelled as an uncooperative jurisdiction," says Ryan Chang from Deloitte.
On March 29 2012, the Inland Revenue Department (IRD) released Departmental Interpretation and Practice Notes (DIPN) 48, which marked the introduction of the advance pricing arrangement (APA) programme on April 2 2012 and served as a guideline for taxpayers about its operation. .
"The HK IRD has really stepped up in terms of their resources in managing transfer pricing, and they now have a dedicated team of officials focusing on APA and TP," says Cecilia Lee from PwC. "Now that HK has set out TP and APA programme requirements a lot of taxpayers will be looking at this opportunity and try to be the first mover for advantage, reason being the IRD is eager to find a couple of good poster-child cases to come to agreement on.Given limited resource and experience, bilateral agreements are the main focus but after signing a few, they may be ready for unilateral APAs," explains Lee.
"This HK APA programme offers an opportunity for taxpayers to seek and conclude a binding agreement with the IRD, and one or more tax authorities of different jurisdictions, on the transfer pricing methodology to be adopted for a specified set of related party transactions for a prospective period of 3 to 5 years," says Chang. "It can minimise risk of double taxation, thereby securing certainty for significant tax positions (for example, FIN 48) and manage risk of tax audit and penalties. For taxpayers currently under transfer pricing audit, the APA may offer an opportunity to resolve the transfer pricing dispute.".
Like many countries near it, Hong Kong has experienced an increase in tax disputes. One of the larger cases to dominate the headlines last year concerned Li & Fung, the trading company,. The Court of First Instance (CFI) had held that while the management of overseas affiliates was important, it was not the profitable transaction and therefore the source of its commission income came from outside of HK, exempting Li & Fung from profits tax in the jurisdiction.
The IRD appealed the CFI's decision to the Court of Appeal which upheld the lower court's judgment. "This is a very successful win. Whilst attempting to restrict the wider application of the case to other source cases, the IRD has also been looking to attack other areas now for more revenue," said Elaine Chen from Clifford Chance. "We have seen a much closer scrutiny on offshore claims in particular by re-invoicing and payment processing centres in Hong Kong, and on capital gains claims."
Some practitioners allude to the possibility of a goods and services tax (GST) becoming law and this may be on the horizon for the IRD.
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