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Ebner Stolz Asia

Download our year-end China law review

Topics include:

  • Adjustments to corporate law
  • Fair competition law
  • Data protection law
  • Key personnel code of conduct
  • Tax law
  • Customs law

Please click here to download our 2024 year-end China law review (Pdf)

Contributors

Catherine Yan

Catherine Yan is a Chinese lawyer, also holds a lawyer license of Australia. Before joining Ebner Stolz, she worked for seven years at a Top 5 Chinese law firm. Catherine is specialized on corporate law and all matters of company governance and labor law. Catherine Yan Partner

Dr. Gerald Neumann

Dr. Gerald Neumann is a German lawyer and partner of Ebner Stolz. He works in China for 17 years and focuses on legal and tax matters. He built up the China offices of Ebner Stolz. Dr. Gerald Neumann Partner

Do you have questions about law in China?

Catherine Yan

Partner

  • +86 21 6330 9962
  • catherine.yan@cn.ebnerstolz.com
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  • All team members

Deepening China’s Legal Framework on Data Protection: from the Cybersecurity Law to the Regulations on Promoting and Regulating Cross-border Data Flows

Back in year 2015, China made cybersecurity an integrated part of its national security with the introduction of the National Security Law (NSL). This laid the groundwork for further regulations, and on 1 June 2017, the Cybersecurity Law (CSL) came into effect. The CSL sets broad rules for companies to follow in managing and protecting their online networks. In 2021, China continued to strengthen its legal framework with the implementation of the Data Security Law (DSL) and the Personal Information Protection Law (PIPL). Together, these laws created clearer rules for how data should be handled. With additional guidelines and supporting regulations, China has built a comprehensive system to oversee both data security and cybersecurity for businesses.

In March 2024, the Cyberspace Administration of China (CAC) introduced the Regulations on Promoting and Regulating Cross-border Data Flows (the 2024 Regulation). This new regulation highlights the growing focus on data protection and marks a key step in China’s control over how data can move across borders. With this update, it is a good time to explore several important topics under China’s legal framework for data protection, including data classification, personal information protection and supervision of cross-border data transfers, especially to understand how these rules and changes would impact foreign businesses operating in China.

Obligations of Critical Information Infrastructure Operators (CIIOs) under CSL

The CSL governs the construction, operation, maintenance and use of networks, as well as the oversight of cybersecurity within China. A key provision, Article 31, emphasizes the protection of critical information infrastructures (CIIs) in vital sectors and industries, like energy, transportation, finance, public services, e-government, and communications and information services, as well as other CIIs where any data that, once tampered with, damaged or leaked, may significantly endanger national security, economic operation, livelihood of people and public interest.

CIIOs in China are required to store all personal information and important data collected and generated within the country. If there is a need to transfer abroad, CIIOs must first complete a data security review through CAC’s data export reporting system (https://sjcj.cac.gov.cn), following guidelines set by the CAC and the State Council. Additionally, CIIOs must perform an annual security and risk assessment of their networks, either by themselves or entrusting cybersecurity service agencies. The results, together with any recommended improvements, should be submitted to the relevant authorities, with the Ministry of Public Security currently leading CIIs protection nationally, whereas sectoral regulators will be responsible for developing rules for designating CIIs in their areas of responsibility, and the CAC plays a coordinating role.

DSL and data classification

The DSL governs data processing activities within China and related security check. It has extraterritorial reach with respect to data processing carried out outside China if such activities threaten national security, public interests, or the legitimate rights and interests of Chinese citizens and organizations.

The DSL introduces a data classification system that is structured hierarchically, categorizing data based on its significance. Different levels of protection standards and requirements are executed accordingly. At the top is “core data,” which is defined to include data crucial to national security, lifeline of national economy, important aspects of people’s livelihoods, and major public interests. Any data that is important enough to affect political security will also fall under the category of “core data.”

The next level is “important data,” the detailed definition and scope of which will be outlined in “important data catalogues.” National authorities, alongside regional, departmental and industrial regulators shall have the discretion to develop their own catalogues for important data within their respective domains. So far we note that a nationwide guideline for identifying “important data” has been published already and shall take effect from October 2024 whilst some industries (to name a few, industrial, automotive, telecommunications) have released their own rules or guidance on “important data” identification. Overall, as what is generally provided for in the DSL, “important data” should cover such critical data that, once tampered with, damaged, leaked or illegally obtained or used, may directly endanger national security, economic operation, social stability, and public health and safety.

“Important data” handlers are required to fulfil the following major obligations in their data processing activities: (1) designation of a specific responsible person and establishment of an internal management organization to handle data security, (2) data encryption and back-up, (3) conduct of risk assessment in respect of processing activities and report to regulators, (4) performance of data security review on data export, (5) filing of “important data” catalogue that is stipulated by the data processor itself with regulators. By now this last requirement only applies to handlers in industrial and informatization sectors. With the entry into effect of the upcoming Regulations on Network Data Security Management from 2025, all network data handlers will then be required to identify and file the “important data” they process with regulators.

PIPL and cross-border data transfer

China’s PIPL shares many goals with the EU’s General Data Protection Regulation (GDPR), aiming to strengthen individuals’ rights to control how their personal information is collected and used by third parties. The PIPL also has extraterritorial reach, applying to activities conducted outside China that are aimed at providing products or services to individuals in China or analyzing their behaviors. In the spirit of such enhanced protection for individual data subjects, “personal information” is broadly defined as information that is capable of identifying natural persons to the exclusion only of irreversibly anonymized information. A sub-category of “sensitive personal information” is also introduced which a higher level of protection is accorded to. The sensitiveness relates to data subjects’ biometrics, religious beliefs, health, finances, geographical locations and personal information of young children no older than 14 years.

Before handlers can process any personal information, one of the following conditions should be fulfilled:

  • obtain informed consent from data subject. Where consent is not required:
  • if the intended data processing is necessary for the conclusion or performance of a contract to which the individual concerned is a party, or for the implementation of human resource management
  • if it is necessary for the fulfilment of legal duties or obligations
  • if it is necessary for responding to public health emergencies or for protecting people’s life, health or property in emergency situations;
  • for news reporting on a matter of public concern and to the reasonable extent
  • processing of personal information that has been disclosed and to the reasonable extent
  • accurate and complete disclosure of all major details relating to the intended processing activities to the data subjects concerned. Major items include:
  • contact details of processors
  • how data will be processed and for how long it will be retained. Also, the purpose thereof and the scope of personal information to be involved
  • methods and procedures for individuals to exercise their rights to protect their personal information

When it comes to “sensitive personal information,” additional requirements are imposed. They are: (1) specific purpose and necessity for the intended processing activities must be identified, (2) separate prior consent is a must, and (3) pre-processing impact assessment should be conducted. This last procedural requirement will also come into play in other circumstances where there is an international data transfer, delegation of data processing activities or provision of the data concerned to other data handlers, or where data processing is required for automated decision making process.

In addition to these requirements that need to be fulfilled before data handlers can proceed with any processing activities, the PIPL imposes several rules on code of conduct when processing is performed.

For example, processing should be limited only to the minimum extent that is required for the purpose intended. Once the purpose is satisfied, data processed should be deleted from record. Several data protection mechanisms should also be put in place. Amongst others, personal data handlers are required to formulate internal management and operational protocols in respect of data processing, as well as contingency plans when security emergencies occur. Regular self-audits, training organization and technical measures implementation are also needed for personal information protection. The PIPL further requires data localization if the volume of data to be processed achieves certain threshold. This volume-based assessment also matters in determination of the question on whether an information protection officer should be appointed. Though for both cases, where the specific thresholds lie is yet to be confirmed by regulators.

International data transfer is another area of practice that may trigger biggest compliance risk for MNCs operating businesses in China, since more often than not and for many foreign investments we observe, the actual administration and management lies overseas.

Extra requirements and codes of conduct need to be followed by processors transferring personal data abroad:

  • approval from competent authorities is required for data transfer to foreign regulators and governmental authorities
  • pre-export impact assessment should be conducted and the results be recorded for three years
  • complete and accurate disclosure of information on overseas recipient(s), the purpose and manner of processing by the latter(s), scope of personal data involved as well as the methods and procedures for individuals to exercise their rights to protect their personal information
  • separate prior consent from data subjects is to be obtained
  • completion of one of the following administrative procedural requirements: i. security review, ii. personal information protection certification, or iii. execution of cross-border data transfer contract

Having said the above, we saw a legal trend with the introduction of the 2024 Regulation to relax the administrative procedural burden that was previously exerted on personal data exporter. Now an extensive list of exemptions has been implemented following the entry into effect thereof; to name a few:

  • to carry out cross-border human resources management in the company
  • to fulfill a contract to which the data subject is a party; this will cover a wide range of cross-border activities (e.g., shopping, courier, payment, bank account opening, visa application)
  • non-sensitive personal information transfers by data handlers that are not critical information infrastructure operators and the aggregate volume of data to be exported is less than 100,000 data subjects within the current year
  • to conduct international trade, cross-border transportation, academic cooperation, cross-border production and manufacture, as well as marketing, if no important data or personal information is involved in the export

Kindly note that the exemptions from the abovementioned procedural requirements do not however release data handlers from complying with other existing requirements mentioned above, which are obtainment of separate prior consent, completion of pre-export impact assessment, and full disclosure of information on recipient(s).

Practical implications

  • With the introduction of a categorical and hierarchical protection system based on the importance of data, it is advisable for multinational companies to implement ongoing monitor in terms of the type, significance and quantity of the data collected, stored, processed, transferred and used during their business operations, and implement the appropriate protection mechanisms
  • Due regard to be accorded to catalogues of “important data” that are or will be issued by regional and industrial authorities as basis for the assessment and identification in respect of the significance of data concerned
  • Multinational companies seeking to transferring data abroad including without limitation to foreign regulators would be prudent to seek legal advice before undertaking such activities
  • Marketing activities that use personal data to assess data subjects’ behavior, interest, financial and credit status, health conditions, and to ultimately form a decision through automated decision making systems are regulated under Chinese laws. Pre-processing impact assessment should be completed

How can we help you?

Catherine Yan

Partner

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  • catherine.yan@cn.ebnerstolz.com
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Social insurance alert

The Shanghai authorities recently issued several policies governing the new practice of social security collection and the contribution of employment injury insurance. We summarize the key points of these policies and their implications below.

I. Transition of social security collection from the Social Security Bureau to the Tax Authority

Announcement on the Optimization and Adjustment of the Process of Declaration and Payment of Social Security Premiums, Announcement No. 2 of 2023, by the State Administration of Taxation Shanghai Municipal Tax Authority, jointly with other competent authorities in Shanghai Municipality (effective from 1 December 2023)

According to the announcement, from 1 December 2023, employers shall make social security declaration and payment directly with the tax authority. In the past, the declaration and payment were handled separately with the social security bureau and the tax authority. 

This is a further step in the transition of the collection authority from the social security administration to the tax authority, which has been under discussion nationwide for years.

In addition to Shanghai, authorities in some other municipalities and provinces in China also made similar announcements to implement the new practice in their justifications from December 2023.

The new practice divides the responsibilities as follows. 

The Social Security Bureau is in charge of:

  • Social security registration for employers;
  • Social security registration for employees;
  • Social security contribution records;
  • Verification of social security benefits (e.g. pension, work-related injury insurance).

The Tax Authority is in charge of: 

  • Social security declarations by employers;
  • Social security payments by employers.

However, in most areas, the transition of certain crucial responsibilities such as the determination of the social security contribution base and the conduct of social security inspection, is still pending. The exception is Guangdong Province (excluding Shenzhen and Dongguan), which has taken a regulatory step further by assigning the entire chain of social security responsibilities from social security information registration, declaration, determination of contribution base, collection, inspection, dispute settlement etc. to the relevant tax authorities. 

What are the implications of this new practice?

  • Late payment interests
    Let’s take Shanghai as an example. In the past, supplementary social security declarations and payments were handled by the social security authority and were not subject to late payment interest. With the integration of social security declaration and payment into the tax system, supplementary social security payments will be subject to a late payment interest at a daily rate of 0.05%. 
  • Social security inspection
    In the long term, the transition of social security collection function to the tax authority implies the possibility that the tax authority will be able to identify irregularities in the social security contribution base on the basis of the income information collected in the tax system and thus, if necessary, carry out a social security inspection. This may result in further restrictions on the flexibility of the social security arrangement for certain employers.   

II. Work-related injury insurance relationship is effective upon successful registration by the employer

Opinions of the Shanghai Municipal Bureau of Human Resources and Social Security on Several Issues Concerning the Implementation Measures for Work-Related Injury Insurance of the Shanghai Municipality, Announcement No. 28 of 2023, by Shanghai Municipal Human Resources and Social Security Bureau (effective from 1 December 2023)

The Opinions aim to clarify the uncertainties and resolve the problems in the implementation practice of the work-injury insurance in Shanghai. 

According to the Opinions, the work-related injury insurance relationship of the employees shall take effect from the time the employer registers them for work-related injury insurance. 

This implies a potential liability for work-related injuries in the period upon employment start before the registration with the social security authority, despite the fact that the full social security declaration for the first employment month can be made in the month following the start of employment. This can be seen as an indication that employers shall make the registration for onboarding employees as early as possible.

III. Work-injury insurance for Overage Employees and Interns in Shanghai

Opinions on the Trial Implementation of Participation in Work-Related Injury Insurance by Employees Beyond the Statutory Retirement Age and Interns in Shanghai, Announcement No. 30 of 2023, by the Shanghai Municipal Human Resources and Social Security Bureau, jointly with other competent authorities in Shanghai Municipality (effective from 1 December 2023)

According to the Opinions, from 1 December 2023, employers within the jurisdiction of Shanghai Municipality may register their overage employees (not over 65 years old) and interns (enrolled students in Shanghai) for the work-related injury insurance under a specific type of insurance.

Adapting to the needs in the practice of the new era, this will further strengthen the work-related injury insurance system, protect the legitimate rights of employees and diversify the work-related injury risks at the employers.

In the context of these new regulations, we recommend that employers conduct regular compliance checks to review their social security declaration practice and make corrections where appropriate and necessary.

How can we help you?

Lena Li

Manager

  • +86 21 6330 9962, ext. 809
  • lena.li@cn.ebnerstolz.com
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15-day China visa-free policy for France, Germany, Italy, Netherlands, Spain and Malaysia

On 24 November 2023, the spokesperson of the Chinese Ministry of Foreign Affairs announced that, China has decided to expand the scope of its unilateral visa-free policy and implement unilateral visa-free entry for six more countries on a trial basis. According to the official notice, from 1 December 2023 to 30 November 2024, travelers with ordinary passports of France, Germany, Italy, the Netherlands, Spain and Malaysia may enter China on a visa-free basis for the purposes of business, tourism, visiting relatives and friends, transit through China. The visa-free stay must not exceed 15 days.

Travelers that do not meet the conditions of visa-free entry shall still apply for a Chinese visa before entering the country.

This is a major step in a series of loosened entry policies by the Chinese government in the post-pandemic period in order to further promote the exchange of people and to maintain a high level of opening up to the world.

Following the announcement by the Ministry of Foreign Affairs, Chinese embassies in France, Germany, the Netherlands and Malaysia also released information on their official websites to notify the policy.

How can we help you?

Lena Li

Manager

  • +86 21 6330 9962, ext. 809
  • lena.li@cn.ebnerstolz.com
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Webinar invitation: Supply Chain Diversification in the Far East

On 16 November, Gerald Neumann will share his opinion in the webinar themed in “Supply Chain Diversification in the Far East – Managing Risks in China and Seizing Opportunities in ASEAN Countries”.

What to expect in the webinar

Gerald will focus his topic on “Trends and case studies on tax practice in China”. And especially he will address the questions raised up by a majority of companies with Chinese subsidiaries – “Are there still tax incentives for foreign investments or foreign employees?” and “What is the current practice in tax offences?”

Besides Gerald’s part, the topic “Corporate De-risking in China” delivered by Dr. Jörg-Michael Scheil from SNB Law will give an overview of current legal risks, and topics of “investment in Vietnam and Thailand” will be introduced to enable a general understanding.

How to join the webinar

This is a half day webinar from 09:30 AM to 12:30 PM.

Please feel free to contact Gerald (gerald.neumann@cn.ebnerstolz.com) for more details if you are interested in the webinar.

How can we help you?

Dr. Gerald Neumann

Partner

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  • gerald.neumann@cn.ebnerstolz.com
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Carry out business activities throughout China – Are you well prepared for the branch registration?

On 27 July 2021, the State Council of the People’s Republic of China published the “Administrative Regulation on the Registration of Market Participants” (State Council Order No. 746), which will come into effect on 1 March 2022. The regulation now standardizes a unified registration obligation for all types of market participants as well as their branches in China. The term of “market participants” is defined as the natural persons, legal persons and unincorporated organizations that engage in profit-oriented business activities in the People’s Republic of China.

According to the regulations, a market participant shall only register one domicile or main business premise as a basis for the business registration. A market participant may render services or carry out business activities outside its registered place in a different province or city. If such activities reach a certain level, the market participant shall file the business registration of a branch.

If a company (or other type of market participant) fails to file for branch registration in accordance with the regulations, the local authorities (i.e., Administration of Market Regulations, in brief “AMR”) have right to order the company to complete the branch registration or to close the unlicensed business operation. It can also impose on the company a penalty up to CNY100,000 or, if the operation adversely impacted society or human safety up to CNY500,000.

However, the critical level at which branch registration becomes necessary is not clearly defined in the available rules. Since the end of 2020, the local AMR authorities have been increasingly taking action against companies that hire field staff for purpose of business operations in the locations without officially registered branches. Recently, some companies are requested by the local authorities to register a branch for any business activities outside the company’s registered place. According to our opinion, once the company rents an office in a different city, then the company shall register a branch.

According to the tax administration rules, upon the completion of the branch registration with AMR, the branch shall file its registration with the tax authority. The tax authority will assess the applicable taxes of the branch and determine the routine tax filing formalities to be fulfilled by the branch.

Although the branch registration is not a new requirement provided by State Council Order No. 746, we estimate the local authorities would intensify their administration on branches registration in their jurisdictions. We suggest you review your business activities in China (particularly services and sales activities) that are carried out by your staff located outside the registered address of your headquarter and seek professional advices from your advisors regarding the legal and tax implications of the branch office registration.

Please feel free to contact us if you need further information or assistance.

How can we help you?

Lena Li

Manager

  • +86 21 6330 9962, ext. 809
  • lena.li@cn.ebnerstolz.com
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  • All team members

Noteworthy changes of the tax implications to the cross-border remittance of services fees and other non-trade items

The payment of service fees, interest, royalties and dividend shall be subject to a tax withholding mechanism and declared with the tax authority (regulatory basis: article 37 of the Corporate Income Tax law). If the payment is above USD 50,000, the Chinese payer shall complete the requested tax formalities and obtain the tax filing notice from the tax bureau before making the bank remittance (regulatory basis: STA and MOF Public Announcement [2013] No. 40).

Recently, the State Taxation Administration (“STA”) has stipulated a couple of tax circulars which introduce changes to the tax treatment pertaining to the settlement of the above mentioned items. We hereby summarize the noteworthy points for your reference as follows:

  1. Starting from 1 September 2021, the Chinese payer is NOT required to withhold the surcharges when withholding VAT for its payment of service fees, interest and royalties.

The above-mentioned “surcharges” generally refer to three types of miscellaneous taxes and charges, i.e., the urban maintenance and construction tax, education fee and local education fee. Those surcharges are currently calculated based on the amount of VAT and consumption tax payment with an aggregate rate ranging from 6% to 12%. Starting from 1 September 2021, those surcharges are not applicable to the import of services, interest and royalties.

According to the Urban Maintenance and Construction Tax Law (President Decree No. 51, “Circular 51”) which takes effect on 1 September 2021, the VAT and consumption tax paid for the import of goods, services or intangible assets are not subject to urban maintenance and construction tax (regulatory basis: article 3 of Circular 51).

On 28 August 2021, the Ministry of Finance (“MOF”) and the STA have jointly stipulated a regulatory circular (MOF and STA Public Announcement [2021] No. 28, “Circular 28”) to further clarify the implementation of Circular 51. According to Circular 28, the above principle in calculating the urban maintenance and construction tax shall apply in a consistent way to the calculation of the education fee and local education fee (regulatory basis: article 2 of Circular 28). In other words, the import of goods, services or intangible assets is not subject to the calculation of the education fee and local education fee.

  1. Starting from 29 June 2021, the put-on-record filing formalities are further simplified when making multiple payments under the same contract.

On 29 June 2021, the STA and the State Administration of Foreign Exchange (SAFE) have jointly stipulated a regulatory circular (STA and SAFE Public Announcement [2021] No. 19, Circular 19). According to Circular 19, for multiple payments under the same contract, the Chinese entity is only required to conduct the put-on-record filing for the first payment that reaches the USD 50,000 threshold.

In view of the above, the Chinese entity’s filing formalities will be simplified when making the subsequent payments under the same contract, which were required to conduct the put-on-record filing whenever the single payment reaches USD 50,000 (regulatory basis: STA and SAFE Public Announcement [2013] No. 40). Kindly note that the above rule is only about the filing procedure for multiple payments under the same contract. The tax declaration and payment obligation shall be assessed based on the relevant tax rules and are not exempted due to the simplified process.

  1. Starting from 29 June 2021, the foreign investor’s dividend reinvestment in China is NOT required to conduct the put-on-record filing with the tax authority.

As stipulated in Circular 19, the dividend reinvestment by the foreign investor is NOT required to be filed with the tax authority starting from 29 June 2021. To give you more background in this regard, starting from 1 Jan 2018, the foreign investor, when using its dividend derived from the Chinese subsidiary to reinvest in China (including setting up new FIEs or the capital increase to the existing subsidiaries), can claim a deferral of the payment of the withholding income tax (“WHT”). Before the promulgation of Circular 19, the dividend reinvestment was required to be filed with the tax authority of the Chinese entity which distributes the dividend to the foreign investor (regulatory basis: STA Public Announcement [2018] No. 53). You may consider approaching the competent tax authority to confirm the local practice and properly keeping the supporting documents internally in case of a review by the tax authority.

If you have any questions of the above or need further information, please feel free to contact us.

How can we help you?

Eloise Yao

Director

  • +86 21 6330 9962, ext. 805
  • eloise.yao@cn.ebnerstolz.com
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Tax incentives for Small-scale and Low-profit Enterprises are extended to year 2021

Business-Data-Audit

Since 1 Jan 2019, small-scale and low-profit enterprises that are not engaged in industries prohibited or restricted by the State and that meet the following conditions:

  • taxable profit for the year shall not exceed RMB 3 million;
  • employees shall not exceed 300;
  • assets shall not exceed RMB 50 million;

can enjoy certain tax incentives (regulatory basis: Caishui [2019] No. 13, or “Circular 13”).

On 7 April 2021, the State Taxation Administration (“STA”) has issued a new notice which further reduced the Corporate Income Tax (CIT) burden for the small-scale and low-profit enterprises during the period from 1 January 2021 to 31 December 2022. According to the tax circular (STA Public Notice [2021] No. 8), the CIT for small scale and low profit enterprises is calculated as follows:

  • For the part of the profit within RMB 1 million: effective CIT rate 2.5% (i.e., 12.5% * 20%);
  • For the exceeding amount (i.e., the profit above RMB 1 million but not higher than 3 million): effective CIT rate of 10% (i.e., 50% * 20%).

In view of the above, the small-scale and low-profit enterprises are subject to CIT at maximum 7.5% during 1 Jan 2021 to 31 Dec 2022. If the qualified enterprise’s total profit does not exceed RMB 1 million per year, the effective CIT burden will be 2.5%.

We advise the smaller enterprises in China to review their financial results and assess whether they are eligible to enjoy the above mentioned tax benefits. In addition to CIT, a enterprises classified as small scale VAT payer are exempted from VAT, provided that the revenue does not exceed RMB 150k per month (valid from 1 April 2021 to 31 December 2022). Kindly note that such VAT exemption does not apply to the enterprises that have obtained the general VAT payers status (i.e., general VAT payers are the type of VAT payers that can claim the input VAT credit against the output VAT).

Please feel free to contact us if you need further information or assistance.

How can we help you?

Eloise Yao

Director

  • +86 21 6330 9962, ext. 805
  • eloise.yao@cn.ebnerstolz.com
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Legal Representative and Bank Account Opening

According to our observation, more banks require now the actual presence of the legal representative during bank account opening in the respective branch in China. Before, banks often agreed to have the statutory interview with the legal representative by video which seems now to be obsolete.

We were informed that this new practice is based on a recent instruction by the Chinese central state bank.

With regard to the ongoing travel restrictions due to the Covid 19 outbreak, the regulation is particularly inconvenient for such overseas invested companies which keep the legal representative at the headquarter.

Some branches of foreign banks in Shanghai currently still accept that account opening applications are submitted by another person who has been formally authorized by the legal representative, and only request that the original passport of the legal representative is presented to the bank. However, foreign banks may be quite selective with regard to the opening of new corporate accounts.

How can we help you?

Lena Li

Manager

  • +86 21 6330 9962, ext. 809
  • lena.li@cn.ebnerstolz.com
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  • All team members

Tax Planning for Small-scale and Low-profit Enterprises during the 2019 Year-end Closing

On 17 January 2019, the State Taxation Administration (“STA”) and the Ministry of Finance (“MOF”) released a new announcement regarding the tax reduction policy for Small-scale and Low-profit Enterprises (“Cai Shui [2019] No. 13”). Cai Shui [2019] No. 13 is valid from 1 January 2019 to 31 December 2021.

In this newsletter, we have summarized the tax reduction policy stipulated by Cai Shui [2019] No. 13 for your reference, as well as our suggestions about the issues to be considered during your year-end closing.

1. Background

According to Cai Shui [2019] No. 13, during the period of 1 January 2019 to 31 December 2021, a small-scale and low-profit enterprise can compute its taxable income at a reduced rate of the taxable profit before applying the 20% enterprise income tax rate. To be specific, if its revenue does not exceed RMB 1 million, the taxable income is computed at 25% of the taxable profit (i.e., the effective tax rate is 5%). If the revenue exceeds RMB 1 million but does not exceed RMB 3 million, the taxable income is computed at 50% of the taxable profit (i.e., the effective tax rate is 10%).

The above-mentioned “small-scale and low-profit enterprises” are defined as those entities that having taxable profit no higher than RMB 3 million, staff no more than 300 person and assets no higher than RMB 50 million.

2. Issues to be considered during your 2019 Year-end closing

Referring to the tax reduction policy mentioned above, we suggest you take the following actions to check whether your accounts have been properly kept for 2019 and whether you are eligible to claim the tax reduction policy as a small-scale and low-profit enterprise:

  • Check and ensure the accruals have been properly booked (e.g. Dec reimbursement, unpaid audit fee for 2019, unpaid salary & annual bonus for 2019, etc.);
  • Check the retained earnings and ensure the amount agree with last year’s audited report;
  • Follow up the inter-company reconciliations;
  • Ensure the financial accounts of inventory agree with physical inventory list;
  • Ensure the goods in transits can be tied with the commercial invoice sent by head office in the latest months;
  • Obtain the bank statements and check with the trial balance (during year-end closing, suppose no reconciliations);
  • Check the foreign exchange valuation for monetary assets and liabilities;
  • Check the long-aging receivables and liabilities and confirm with clients. If it is necessary to charge to P/L, please make adjustment;
  • Accrual of enterprise income tax and prepare the supporting filing documents;
  • Ensure no revenue cut off mistake;
  • Relevant supporting documents for year-end accruals shall be obtained in order to present a true and fair financial statement.

3. Summary

To summarize the above, in order to claim the tax relief stipulated by Cai Shui [2019] No. 13 on a timely basis, all small-scale and low-profit enterprises need to pay more attention to their year-end closing to make sure the revenue and expenses are properly accounted in order to justify the claim of the tax relief policy.

If you have any questions regarding the above, please feel free to contact us.

Loosening foreign investment administrations

On 3 September 2016, the Standing Committee of the National People’s Congress announced the decision on Revising Four Laws including the PRC Laws on Wholly Foreign-owned Enterprises, Sino-Foreign Equity Joint Ventures, Sino-Foreign Cooperative Joint Ventures and the Protection of the Investments of Taiwan Compatriots. On the same day, the Chinese Ministry of Commerce disclosed the Interim Measures for the Record-filing Administration of the Establishment and Change of Foreign-invested Enterprises (Draft for Comment) for public comments as supporting measures (the final version is to be announced).

According to this new amendment on Four Laws, for foreign invested enterprises the relevant approval items not involving the special access administrative measures prescribed by the State shall be subject to record-filing administration. Since 1 October 2016, the record filling under negative list mode for investment administration, which was only adopt by China Pilot Frees Trade Zones, implement throughout the whole China. With loosening the administration on foreign invested enterprise, the benefits of new system are expected to encourage more and more foreign investment national wide.

FCN Join the Congress on Investing in Germany and Sino-German Cooperation

On 22 September 2016 the congress on investing in Germany and Sino-German cooperation was held at Jiaozuo, a major industrial hub in central China, Henan province. Around 100 guests attended the conference including speakers of the German Trade and Invest (GTI), the representatives of German provinces North Rhine-Westphalia and Baden-Wuerttemberg, consulting firms and key leaders from local enterprise and government bureaus. Dr. Neumann spoke about investors requirements for overseas investments.

Myths and necessary adjustments in the “New China”

Guest Article by Dr. Timo Wiegmann (TMG China)

THE “NEW NORMAL” IN CHINA IS FORCING FOREIGN COMPANIES TO RETHINK AND ADAPT TO NOTICEABLY CHANGING CIRCUMSTANCES

Dr-Timo-Wiegmann

Dr. Timo Wiegmann

For companies in the manufacturing industry, China has become over the past three decades an increasingly important production footprint. Initially, the goal was purely to exploit the huge reservoir of cheap Chinese labor in order to produce cost-effectively for the world market. Today, entirely different topics are for most companies on their China-Agenda. The goal: to strengthen their own competitiveness in China and to be locally successful with products and services specially tailored to the Chinese market. With the announcement of the “Made in China 2025” strategy, the Chinese government has now set a clear indication of the future environment and the resultant requirements for the China-Engagement of foreign companies in the coming years: significantly reduced growth rates and an economy that shall be especially stimulate by domestic consumption, sustainability, innovation and a consistent high-tech orientation. For manufacturing companies, this realignment provides a multitude of new growth potential that should be exploited.
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Whenever the Media reports about the Chinese economy in recent weeks and months, it would usually be done in a way that the reader could almost inevitably get only one single impression: China is having serious problems.

It is correct, that the gross domestic product (GDP) of the second largest economy in the world is currently growing slower than it has been in the last 25 years. The country can today only fulfill contigently it’s in recent years determined role as the global growth engine. Foreign trade is weakening. The debt has reached a dimension with most recent 28 billion US dollars which corresponds to almost three times of its own economic performance. In addition to that, mid of 2015 turbulences on the stock market came on top with falling stock prices up to 40 percent within a few weeks – with the result that a market value worth about four billion US dollars have been lost.

Well, should we be genuinely worried about the second largest economy in the world?

In our view, definitely not. Most of what is being commonly spread to the public about the Chinese economy and its future outlook is based on a number of prejudices:

Myth 1: The prospects of the Chinese economy are gloomy and the country is facing a longer period of stagnation.

It is true that China has abandoned the double-digit growth rates of the past. The overall economic performance shall probably rise this year by nearly seven percent. For the upcoming years, economic growth in a range between five and seven percent is expected from today’s perspective. Designating this development as “a long period of stagnation” is absurd, at least on totally unsubstantiated grounds especially if one considers the growth rates we talk about in Germany, Europe and the US.

Today’s growth of around seven percent generate a higher economic output than the fourteen percent from the year 20071 because the economic performance is today many times higher than at that time. This is pure mathematics. It is also interesting to note in this context, that the current decline in overall economic growth rate is accompanied by an increase in the growth rate in the service sector by more than eight percent (8.4 percent). Private consumption lay in the first half of 2015 by more than 10 percent (10.4).2 Perspectively, this is mainly a good sign.

In 2013, the Chinese per capita income (calculated at the official market exchange rates) amounted to the equivalent of almost 7,000 US dollars to just 13 percent of the US per capita income (53,000 US dollars). The disposable income was not sufficient for excessive consumption. For about five years now, this has begun to change more and more. Income has been continuing to rise for years (see Figure 1).

The population in China is becoming increasingly richer, even though the potential for income growth in the household sector is still very large: In 2010, only eight percent of the Chinese population belonged to the middle-class (defined as a category with an annual income between 15,000 and 33,000 US dollars). According to forecasts, by 2020, nearly 60 percent of the population would belong to this group. The foreseeable or expected trend in personal income may be considered a reliable indication that the economic outlook for China shall be anything but gloomy.

Figure 1: Development of the per capita income in China over the past ten years

Myth 2: China’s economic miracle is based on extensive planning by the state and not on the performance of the private sector

It is true that the state and state-owned enterprises together account for around a third of China’s total investment expenditures3. In highly developed industrial nations, this proportion amounts to less than 5 percent. However, the private sector in China is nowadays already responsible for two thirds of the economic performance. The Chinese economic miracle is therefore not majority based on government investment programs. Furthermore: The efficiency of investment in the private sector is significant higher than that of state enterprises. All of the approximately 250 million additional jobs created in China since 1980 were created in the private sector. And also, in the end, the private sector draws predominant responsibility for export. Myth 2 is therefore likewise not able to withstand a fact check. Lastly it remains myth three:

Myth 3: Chinese companies are good at copying, but not at generating their own substantial innovations4

In Chinese culture, to copy something is imposed as a particial expression of mutual recognition, like a homage to something good. Copying has therefore been a long tradition in China. The annoying problem of piracy is thereby not alleviated; it will be greatly enhanced by a good knowledge why imitating in many sectors within China is part of typical business practice.

This impression overlook, that China has always been a center of innovation. Whether paper, silk, the compass, printing with movable characters, gunpowder or the melting of iron: Many inventions of global importance have their roots in ancient China.

But even today, managers should have China on the radar for their ability to innovate: manufacturing simple products in large quantities and cheaply selling them all over the world – the political leadership of the country has this strategy long past. By 2025, they rather intend to have achieved the transformation from low-cost producers to a high-tech country. But that is not enough: Upon the 100th anniversary in 2049, the People’s Republic should ascend to being the leading “industrial superpower”.5

And that is only possible through innovation. One of the cornerstones of the “Made in China 2025” strategy, which was personally presented by Premier Li Keqiang during the People’s Congress in March 2015, is also the promotion of innovation. China already invested around 200 billion US dollars per year toward innovation. The volume has quadrupled in ten years and is roughly equivalent to two percent of the gross domestic product. Furthermore: Companies are consistently and devotedly supported by the government – by its own admission – due to their innovation activities. According to the future strategy, the aerospace, mobile communications, data processing, e-commerce, biotechnology, high-speed trains and renewable energy fields shall be particularly encouraged in the future6.

That means: China shall no longer only be the workbench of the world but shall seek salvation in selected fields of high technology. The government has recognized that the wage and labor cost increases in recent years no longer quite fit the existing business model of its economy, which produces preferably cheap mass-produced goods. The “Made in China” brand should mainly stand for innovation, quality and efficiency in the future.7 The second-largest economy shall therefore to play a leading role the near future with pioneering technologies and innovations and create additional business opportunities. In some areas such as telecommunications or consumer electronics, this has already been attained. And also: The country has been the world leader in patent applications for years now.

Figure 2: Patent applications in major countries

Figure 3: Trend of patent applications with the five major global patent offices

Even though the quantity and rapid rise in patent applications still does not provide information on the quality of underlying innovations – the bias of a technologically backward China as always referred to this context by western industries should be quickly adopted. As the Mercator Institute for Chinese Studies, one of the world’s largest institutions for research and knowledge about the current China, recently put it in a nutshell: “If China succeeds in implementing its plans, then the country will be on equal footing a competitor with Germany in the field of leading-edge technology”.8

ON THE PATH TO A HIGH-TECH LOCATION

On the path to become a top leading economic power that not only plays a dominant role because of its sheer size and huge domestic market, but also wants to be play at the forefront in innovation and in the high technology, China still has to do some homework. The “Made in China 2025” strategy describes the roadmap to modernize the country and transform the economy from the former low-wage country to a high-tech location. In the course of the planning the Chinese government normally considers an average growth in the gross domestic product of five to seven percent per year. From the political leadership, this dimension has been called the “new normal”. At least 30 to 50 percent of the projected growth shall come from improved factor productivity or from higher automation. This means: in the future, China will more develop better jobs while the supply of cheap labor shall continue to decline. Foreign companies can instead expect a larger number of higher educated and skilled workers. Nearly one in five of the world’s “Technical Graduates” is toady a Chinese nationality.

The planned transformation of the economy and the implementation of the “2025” strategy should be considered against the background of some basic trend developments that shall shape the further progress of the country to a large extent:

Trend 1: Urbanization

China’s society was characterized as traditionally rural. In the course of reform and economic opening, more and more residents were then attracted from the countryside to the cities. Such strong migratory pressures which will particularly acute in tier 2 and tier 3 cities in western China. Following example shall show the expected dimension in the urbanization: Every year, 18 million people are attracted to the cities. It means, that every eight years a new Japan is created. For foreign companies, these cities are becoming more attractive – also and especially in view of the improved infrastructure and the availability of higher qualified potential employees.

Trend 2: Efficiency

In the past, China was the factory of the world and of course will keep this meaning in the future. However, in the next years, we will see a much higher degree of automation in production in Chinese companies. Thus leads to substantial positive economies of scale. Already, 80 percent of air conditioning units, 90 percent of global PCs, 75 percent of solar panels and 60 percent of all shoes are produced today in China. This will not change. But, we shall see in other industries that Chinese companies will exploit the the economies of scale in mass production and will threaten the global market – often on a competitive technological level.

Since labour supply in the face of the imminent decline in working age population and at the same time, the income of workers is continuously increasing, the trend toward higher technicalization and automation in production is logical. This is also officially expressed with the “Made in China 2025” strategy. The political leadership bases its automation and digitization efforts to a large extent on the German “Industry 4.0” approach. And even if the country still has a long way to go: companies should assume that the automation process shall proceed quickly. A patent analysis of the Fraunhofer IAO from March 2015 shows that China especially is a nose ahead in basic technologies for Industry 4.0. Even with the number of patent applications, the country is well ahead of the USA and Germany.9 China is leading not only in terms of the number of patents, but, according to the IAO analysis, also in some highly innovative developments, especially in the fields of energy efficient wireless sensor networks and network structures.

Today, the Middle Kingdom is also the largest market for robotics – one of the most important business regions of foreign suppliers such as Kuka and ABB Robotics. As part of the further spread of robots and other technologies, more and more jobs for simple routines shall disappear. At the same time, there shall be a noticeable increase in higher-value jobs.

Trend 3: Consumption

An increasing number of Chinese people can afford more and more consumption. Today, there are around 300 million consumers in the “Middle Class” with an annual income between 15,000 and 33,000 US dollars. Another 250 million are on the way there. In 2025, according to planning by the political leadership of the country, already 60 percent of the population has reached this income level. Furthermore: Since almost five years, a trend for consumption in China is quite clearly being recognized. This means: More and more Chinese people can not only afford, but they also want to consume more. How the consumer behaviour shall evolve in the future, it is currently not possible to forecast seriously. The fact is, however, that a total of far more income – and hence income for consumption purposes – shall be available. But even if a growing number of people become consumers on the market, it does not mean that sales shall be simple: The Chinese are very selective and very difficult to assess in their individual consumer behavior.

Trend 4: Financial Power

In China, an enormous amount of money is in bank accounts – of companies and of individuals: 15 billion US dollars in the form of bank deposits and in capital accounts. These funds could increasingly flow in future investments. In China, it is already not particularly difficult for investors to come across financial resources. They are plentiful. The challenge for consumers is rather that potential investors are unsure of what to do with their wealth and exactly where to be involved financially. Innovative foreign companies here offer very interesting options to acquire capital and to benefit from the enormous financial power of China. For this purpose, however, they must succeed in order for it to distinguish itself as an attractive potential partner.

Trend 5: Tremendous Availability of Qualified Talents

With more than one billion people, it is only logical that a number of well-trained talents can be found within. There are many things to accuse the Chinese education system, but for sure not of it being without strictness and rigor. Whoever manages to get through it with good grades is highly qualified and smart.

Meanwhile, a growing number of qualified young people from universities are pushing into the market. This year, there were already 17.5 million graduates who left Chinese universities with successful results.10 This growing pool of qualified young academics offers foreign companies interesting opportunities in order to take some of the sting out of the shortage of skilled labor and the associated “competition for highly qualified heads” mainly among mathematicians, scientists, computer specialists and people of related disciplines. Foreign companies, however, should keep in mind that despite the increasing number of qualified young people in individual disciplines, the competition when recruiting shall become harder and also the retention of qualified professionals to their own companies – depending on industry and location – shall remain an ongoing challenge: In China, the targeted headhunting of key personnel belongs to the recruitment culture.

Trend 6: Internet as Economic Factor

Of the approximately 1.37 billion inhabitants of China, almost half are connected to the Internet. China has therefore more than twice as many Internet users than, for example, in the US. One in five Internet users worldwide comes from the Middle Kingdom.11

To whoever takes the metro in China, for example, it immediately becomes apparent: Everyone is somehow involved with his or her smartphone. And the Chinese using the Internet not just for fun, figures from Electronic Commerce showing: The number of online shoppers has already exceeded 300 million. Sales on the Internet are extremely high. The Commerce Department estimates that transactions worth 3 trillion RMB (around 430 billion euros) were made via Internet platforms in 2015. That makes a total of more than 10 percent of the total trade turnover of the vast nation.12

Whoever wants to be successful in business as a company in China needs a convincing web presence. The Internet is a real economic factor in China – especially for businesses that sell to end users. Here, a professionally designed, functioning Online-Shop is now one of the fundamental success factors. Every business in China is therefore required to consider how it can use the Internet in the best possible way as part of its business strategy implementation.

Abb4

Figure 4: Number of online buyers in China and their proportion to the entirety of all buyers

With the political leadership classifying the Internet and the continued development of the Chinese industry to be of eminent importance, it made the presentation of the “Internet Plus” action plan apparent in July of this year. It foresees the application of advanced online technologies – mobile Internet, cloud computing, Big Data and the Internet of Things – in traditional industries.13 The action plan elaborates the development objectives as well as supporting measures for a more efficient use of the Internet in selected key sectors. Namely it includes the agriculture, energy, finance, public utilities, logistics, e-commerce, transport, biology and artificial intelligence. As it seems, the government’s aim is the integration of the Internet in the economic and social sectors to further strengthen and make new industry methods as from 2018 for a main driving force of growth.

The pictures of crisis on the state of the Chinese economy that are particularly drawn in Western media are, in our view, appear badly exaggerated in part. To speak of a crisis or even an economic crash is entirely unfounded with growth of around six to seven percent. China’s economy shall also take a leading role in the global economy with a deceleration in growth – though on the basis of changing industrial structures and as part of a “new” normal.

Manufacturing companies need to rethink their China strategy:

Innovative product and service portfolios combined with an effective sustainability strategy determine future success with increasingly nascent sophisticated Chinese consumers

Partnership conditions ensured for financing and mobilizing capital in the implementation of innovative products and services

The significant increase in the degree of automation and the adjustment of production structures enable a cost-effective provision of services with wages that continue to rise mainly in coastal industrial centers

The continual balancing of the operations network or production footprint to compensate regional factor cost differences between East and West China increases and secures future income in and outside China

Long-term strategy and business model hedging is primarily determined by the willingness and ability to inspire, bind and promote Chinese talents

Only those who are really laying a foundation can successfully act in China in the future, thus ensuring growth and profitability.
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Sources:

1 Source: “The Economist”, 9/12/2015

2 Source for both figures: GIGA Institute of Asian Studies, 7/9/2015

3 “The Economist”, 9/12/2015

4 On the importance of China as a center for R&D and innovation, also see the interview on page 26: “Choosing the right R & D location is critical to success in China”

5 The challenge to Germany, Die Zeit/Online 5/27/2015

6 Source: Handelsblatt/Reuters 5/19/2015

7 The Mercator Institute for Chinese Studies: How does China’s innovation policy prepare for the future, September 2015

8 http://www.zeit.de/wirtschaft/2015-05/china-industrie-technologie-innovation

9 “Industry 4.0: China in the fast lane”, IAO Press Release, 3/30/2015

10 By comparison: in 1998, there were just 1 million university graduates in China

11 http://www.internetlivestats.com/internet-users-by-country/

12 Source: Hong Kong Trade Development Council, March 2014

13 Innovation News DIHK, August 2015/Consulate General of the People’s Republic of China in Munich

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