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China – Qidong Case: Taxes Paid In Prior Indirect Transfers Recognized.

17 November, 2014

On August 27, 2014, China Taxation News1 reported that the Qidong State Tax Bureau (“QSTB”) of Jiangsu province collected RMB30 million of EIT on the indirect transfer of two Chinese resident enterprises in Qidong city of Jiangsu province. Tax officials became interested in the indirect transfer when the deal was disclosed to the public by the buyer’s listed parent company (“ListCo”).

 
The target company (“BVI Target”) wholly owned a Hong Kong company (“HK Co.”), which in turn had 100 percent direct ownership interests in the two Chinese resident enterprises. Before the indirect transfer deal, the BVI Buyer held 51 percent of the BVI Target while the BVI Seller held 49 percent of the BVI Target. After acquiring 49 percent for USD 550m, the BVI Buyer became the sole shareholder of the BVI Target. The corporate structure before the indirect transfer is depicted in Diagram Two below.


(Click to enlarge)

 
bakerchart2

 

According to the China Taxation News, the QSTB found that the intermediate holding companies had no employees, no substantive business activities, and no assets other than the ownership interest in the two Chinese resident enterprises. Consequently, according to Article 6 of Guo Shui Han [2009] No. 698 (“Notice 698”), the QSTB recharacterized the indirect transfer as a direct transfer of the two Chinese resident enterprises. The 49 percent interest in the BVI Target was acquired by the BVI Seller for US$500 million in a previous indirect transfer deal in 2012.Therefore, the QSTB only assessed capital gains of USD 50m at a 10% EIT rate on this indirect transfer.

 
Observations

 
One noteworthy point of this case is that the QSTB recognized the purchase price (USD 500m) paid by the BVI Seller in a previous indirect transfer as the tax basis for calculating the capital gains of this indirect transfer.

 
Another noteworthy point of this case is that the QSTB appeared to disregard the reasonable commercial purpose of the indirect transfer and instead focused on the economic substance of the intermediate holding companies. In doing so, the QSTB ignored plausible arguments for reasonable commercial purpose, including: (i) as a minority shareholder of the BVI Target, the BVI Seller had no authority to compel the HK Co. to sell the two Chinese resident enterprises to the BVI Buyer via a direct transfer; and (ii) the BVI Seller was not involved in establishing the BVI Target or the HK Co and did not establish the current corporate structure, which the BVI Seller merely inherited in 2012 when it acquired the 49 percent interest in the BVI Target in the previous indirect transfer deal.

 
The final noteworthy point of this case is that even without a formal withholding obligation, the BVI Buyer was asked by the QSTB to assist in collecting EIT from the BVI Seller. At last, upon the BVI Seller’s delegation, the BVI Buyer withheld and remit EIT to the QSTB. Therefore, prudent buyers may feel the need to protect themselves and guard against withholding risk by requiring a certain degree of Notice 698-related compliance from sellers.

 

End Notes:

 

1 http://www.ctaxnews.net.cn/images/2014-08/27/10/zgswb2014082710_b.jpg .

 

Baker McKenzie

 

For further information, please contact:

 

Jon Eichelberger, Partner, Baker & McKenzie

jon.eichelberger@bakermckenzie.com 

 

Jinghua Liu, Partner, Baker & McKenzie

jinghua.liu@bakermckenzie.com

 

Brendan KellyPartner, Baker & McKenzie
brendan.kelly@bakermckenzie.com

 

William MarshallPartner, Baker & McKenzie
william.marshall@bakermckenzie.com 

 

Glenn DeSouza, Baker & McKenzie
glenn.desouza@bakermckenzie.com 

 

Shanwu Yuan, Baker & McKenzie
shanwu.yuan@bakermckenzie.com

 

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