Announcement of the State Administration of Taxation on Issues of Imposing Enterprise Income Tax on Dispatched Personnel of Non-Resident Enterprises Providing Services in China

	内容分类： 税务	实 效 性：现行有效
	文    号：Announcement of the State Administration of Taxation 2013 No.19	发文机关：国务院
	发文日期：2013-04-19	生效日期：2013-06-01

　　According to the provisions in Enterprise Income Tax Law and Implementation Rules of the People’s Republic of China, agreement on avoidance of double taxation signed by Chinese government (including the tax arrangement signed with Hong Kong Special Administrative Region and Macao Special Administrative Region, hereinafter referred to as “tax agreement”) and Notice of the State Administration of Taxation on Issuance of ‘Agreements on Avoidance of Double Taxation and Prevention of Smuggling of Taxes and Interpretation of Protocol Between the Government of the People’s Republic of China and the Government of the Republic of Singapore’ (G.S.F. [2010] No.75), the State Administration of Taxation hereby announce on issues of imposing enterprise income tax on dispatched personnel of non-resident enterprises providing services China as follows:
　　I. The dispatched personnel of non-resident enterprise (hereinafter referred to as the “dispatching enterprise”) provide services in China. If the dispatching enterprise bears part or all of the responsibilities and risks in terms of the work result of dispatched personnel and usually evaluates the work performance of the dispatched personnel, it is considered that the dispatching enterprise has organizations and workplaces set up in China for providing services. If the dispatching enterprise is the other contracting party and the organization and the workplace providing services have relative stability and durability, the organization and the workplace are standing institutes set up in China.
　　When making the above judgments, the following factors should be considered:
　　(I) The resident enterprise receiving services (hereinafter referred to as the “receiving enterprise”) pays the money, such as management fees and service charges, to the dispatching enterprise;
　　(II) The sum of money paid by the receiving enterprise to the dispatching enterprise exceeds the wages, salaries, social insurance charges and other charges paid by the dispatching enterprise to dispatched personnel;
　　(III) The dispatching enterprise does not give out all related charges paid by the receiving enterprise to the dispatched personnel but has kept a certain amount of money;
　　(IV) In terms of the dispatched personnel’s wages and salaries borne by the dispatching enterprise, the dispatching enterprise does not pay individual income tax in full in China; 
　　(V) The dispatching enterprise confirms the number of dispatched personnel, their qualification, salary standard and working places in China;
　　II. If the dispatching enterprise only exercises stockholder’s right for the receiving enterprise and guarantees the receiving enterprise’s legal stockholder equity and dispatches the personnel to provide services in China which include the dispatched personnel providing relevant suggestions on the investment of the receiving enterprise for the dispatching enterprise, participating in such activities as general meeting of shareholders or board meeting of the receiving enterprise on behalf of the dispatching enterprise, it should not be regarded as the organization, workplace or standing institute of the dispatching enterprise set up in China due to the activities carried out in the business premises of the receiving enterprise.
　　III. The dispatching enterprise and the receiving enterprise as provided in Article I should conduct tax registration, filing, tax payment declaration and other matters involved in tax according to the provisions in Interim Measures of Tax Management on Non-Resident Contract Engineering and Services Providing (No.19 order of the State Administration of Taxation).
　　IV. The dispatching enterprise as provided in Article I should accurately calculate its income according to law and report to pay enterprise income tax according to the facts; as for those enterprises that fail to report accurately, the tax authority has the right to verify the taxable income in accordance with related provisions.
　　V. The competent tax authority should strengthen the tax management on dispatching, mainly review the following materials relevant to dispatching and economic essence and implementation of dispatching arrangement, and confirm the tax obligation of non-resident enterprise income tax:
　　(I) Contracts or agreements among the dispatching enterprise, the receiving enterprise and dispatched personnel;
　　(II) Administrative regulations of the dispatching enterprise or the receiving enterprise on dispatched personnel, including specific provisions of such aspects as responsibilities, duties, performance appraisal, and risk tolerance of the dispatched personnel;
　　(III) The payment of the receiving enterprise to the dispatching enterprise and the related accounting handling information, as well as the materials on declaration and payment of individual income tax of dispatched personnel;
　　IV. The situation that whether the receiving enterprise elusively pays related charges on dispatching by offsets, free of encumbrances, connected transaction or other forms.
　　VI. When confirming the dispatching enterprise’s tax obligation according to Enterprise Income Tax Law and the provisions in this announcement, the competent tax authority should strengthen coordination and communication with the competent tax authority of individual income tax and business tax involved in the services providing of the dispatched personnel, exchange relevant information of the services providing of the dispatched personnel and ensure the exact implementation of tax policy.
　　VII. When conducting tax treatment on the services provided by non-resident enterprise dispatched personnel by enforcing the provisions in this announcement, all parts of the country should complete related procedures of external payment in time for the dispatching enterprise or the receiving enterprise by strictly complying with relevant provisions.
　　VIII. This announcement shall come into force as of June 1, 2013. The matters occurred before the implementation of this announcement but without tax treatment shall be carried out according to this announcement.
　　It is hereby announced!
　　Announced on 19 April, 2013 By State Administration of Taxation