tp presentation china 260712

16
Intercompany Transactions with Related Chinese Entities Yariv Ben-Dov LLB, BA (Eco), MBA

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Pricing and Taxation of Transactions between Related Companies in Israel and China – Transfer Costs MBA Yariv Ben-Dov, Partner economist in BAR ZVI & BEN DOV LAW OFFICES, international expert in Transfer Costs

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Page 1: Tp presentation   china 260712

Intercompany Transactions with Related Chinese Entities

Yariv Ben-Dov LLB, BA (Eco), MBA

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About BarZvi & BenDov

o Established in 2006

o Unparalleled results - 100% acceptance rate of the studies by international tax authorities

o Intercompany agreements

o Implementation

o Global Reach: Transfer Pricing Associates – affiliates in Shanghai and Hong Kong & additional representatives in over 50 countries

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China – Quantum Leaps

o No longer merely a source for cheap labor and contract manufacturing

o Significant national R&D spending (#3 in the world) with 20% annual increase

o Tax incentives for companies engaged in R&D

o Governmental “Made in China” requirements

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China – General Corporate Taxation

o One law for domestic and foreign owned companies

o Corporate tax rate – 25%

o Tax withheld on interest paid to foreign companies – 10(7)%

o Tax withheld on royalties & technical services fees – 10%

o Withholding tax on dividends – 10%

o Net operating losses carry forward – 5 years

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Introduction to Transfer Pricing

o (Cross border) transactions between related parties

o The “arm’s length” principle: transactions between related parties should be under the same terms as transactions between third parties.

o Strong focus by Tax Authorities worldwide (“Fair Share”)

o Arm’s length is the predominant principle in major TP legislations such as US, OECD, Israel, China, etc.

o Documentation requirements

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Intercompany Transactions

o A broad definition which includes:

● Sale (transfer) of tangible property

● Utilization/transfer of intangible assets

● Provision of services (e.g. management, marketing, tech. support, assembly/manufacturing etc.)

● Financial transactions (e.g. loans, capital notes, ESOP, etc.)

● Business restructuring

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“Special Relationship” Threshold

o Israel – 50% or control

o China – broad definition which incorporates control over business decisions/intangibles

o Documentation requirements & disclosure forms

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Transfer Pricing Legislation

o Regional and Local TP legislations - US, OECD, Israel, EU, etc.

● Israel – Section 85A of the Income Tax Ordinance

● China – Chapter 6 of the New Corporate Income Tax Law

o Documentation requirements:

● TP Study

● Intercompany agreements

● Implementation

● Compliance forms (Form 1385 in Israel, 7 forms in China)

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Chinese TP Regulations Overview

o OECD methodology is generally accepted

o No “reversed burden of proof”

o 7(!) annual disclosure TP related forms

o Limited loss making companies must submit documentation

o Max thin capitalization – 2:1

o No standard approach by tax authorities

o Management fees not deductible

o APA program

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Common Audit Targets (Circular 2)

o Intercompany transactions with tax havens

● Israel may be treated as a Tax Haven due to various tax incentives (OCS, approved enterprise, etc.)

o Did not submit TP related disclosure forms

o Numerous intercompany transactions

o Low risk entity with consecutive losses

o Low profitability levels

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Penalties in China

o Special interest on adjusted amounts

o Adjustments to financial reports

o Surcharge on unpaid tax accrued on a daily basis

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related TransactionUn

3rd party

Manufacturer Israel Co.

3rd Party

Customer

Products Products

o Transaction is at arm’s length

o “Fair Share”

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Contract Manufacturing Transaction

China Co.

[Manufacturer] Israel Co.

3rd Party

Customer

Products

Products

o Is the transaction at arm’s length?

o “Fair Share”?

o How to determine the arm’s length price?

Transfer

Price

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Contract Manufacturing + Sales

China Co.

[Manufacturer] Israel Co.

3rd Party

Customer in

China

Products

Products

o Is the transaction at arm’s length?

o “Fair Share”?

o Sales rep. – permanent establishment?

o Intercompany finance (loan)

Transfer

Price Sales Rep.

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Independent Transaction?

Israel Co.

[IP Holder]

China Co. [Manufacturing

+ Distribution]

3rd Party

Customer in

China

Products

o Is the transaction at arm’s length?

o “Fair Share”?

o What about Israel Co.?

Know How

Royalties

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Questions?