Official Reply on the Issue of the Income Tax Treatment of Sale-leaseback Transactions by Foreign-invested Enterprises that Engage in Real Property Development
关于从事房地产开发的外商投资企业售后回租业务所得税处理问题的批复
The Reply clarifies under which case an enterprise assigns interests in, or risks attaching to, an asset through a sale-leaseback transaction it shall be deemed to have transferred all or part of the ownership of the immovable property.
(Issued by the State Administration of Taxation on May 31 2007.)
(国家税务总局于二零零七年五月三十一日发布。)
Guo Shui Han [2007] No.603
国税函 [2007] 603号
Hunan Provincial Office of the State Administration of Taxation:
湖南省国家税务局：
Your Request for Instructions Concerning the Issue of Enterprise Income Tax on the Sale-leaseback Transactions of Real Property Developers (Xiang Guo Shui Fa [2006] No.106) has been received. We give our official reply as follows:
你局《关于房地产开发经营企业售后回租业务有关企业所得税问题的请示》（湘国税发〔2006〕106号）收悉。批复如下：
1. A foreign-invested enterprise engaging in real property development that transfers by way of a sale the premises, building or other such immovable property that it produced and developed and leases back such assets from the buyer by way of a lease, shall, regardless of the lease method adopted, separate the sale-leaseback transaction into its separate sale and lease transactions for tax treatment purposes. The difference between the income derived by the enterprise from the sale or transfer of ownership of the relevant immovable property and the costs and expenses relating to the ownership thereof shall be treated as a gain or loss for the period during which the transaction occurred and be included in the enterprise's taxable income for the period in question.
一、 从事房地产开发经营的外商投资企业以销售方式转让其生产、开发的房屋、建筑物等不动产，又通过租赁方式从买受人回租该资产，企业无论采取何种租赁方式，均应将售后回租业务分解为销售和租赁两项业务分别进行税务处理。企业销售或转让有关不动产所有权的收入与该被转让的不动产所有权相关的成本、费用的差额，应作为业务发生当期的损益，计入当期应纳税所得额。
2. If an enterprise assigns one or more of the following interests in, or risks attaching to, an asset through a sale-leaseback transaction, it shall be deemed to have transferred all or part of the ownership of the immovable property, regardless of whether it carried out the procedures for the change of legal title thereto (e.g. procedures for title registration or change of ownership):
二、 企业通过售后回租业务让渡了以下一项或几项资产权益或风险的，无论是否办理该不动产的法律权属变更（如产权登记或过户），均应认定企业已转让了全部或部分不动产所有权：
(1) the right to obtain the returns from the increase in value of the asset;
（一） 获取资产增值收益的权益。
(2) bearing the losses arising from various types of damage (including physical damage and decrease in value);
(3) the right to possess the asset;
（二） 承担发生的各种损害（包括物理损害和贬值）而形成的损失。
(4) the right to use the asset during the remaining period of its life; and/or
（三） 占有资产的权益。
(5) the right to dispose of the asset.
（四） 在以后资产存续期内使用资产的权益。
3. If an enterprise conducts an immovable property sale-leaseback transaction with an affiliate, tax administration provisions relating to business transactions between affiliated enterprises shall apply, in addition to this Official Reply.
（五） 处置资产的权益。
4. If tax treatment carried out in accordance herewith involves the payment of previously unpaid taxes or a tax refund, matters shall be handled in accordance with the relevant provisions of the PRC Law on the Administration of the Levy and Collection of Taxes and the Implementing Rules therefor.
clp reference:3210/07.05.31prc reference:国税函 [2007] 603号promulgated:2007-05-31三、 企业与其关联方进行不动产售后回租交易的，除适用本批复规定外，还应适用有关关联企业业务往来的税务管理规定。
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