Official Reply on the Issue of the Handling of Preferential Income Tax Treatment of Foreign-invested Enterprises that Have Been Shut Down by the Government
关于政府关停外商投资企业所得税优惠政策处理问题的批复
Liquidated FIEs should pay back preferential income tax.
(Issued by the State Administration of Taxation on February 12 2010.)
(国家税务总局于二零一零年二月十二日发布。)
Guo Shui Han [2010] No.69
国税函 [2010] 69号
Jiangsu Provincial Office of the State Administration of Taxation:
江苏省国家税务局：
Your Request for Instructions on the Issue of the Handling of the Preferential Income Tax Treatment of Foreign-invested Enterprises that Have Been Shut Down by the Government (Su Guo Shui Fa [2009] No.88) has been received. With respect to the issue of handling the preferential tax treatment of foreign-invested enterprises that have been shut down and liquidated as a result of revisions in state development plans (including urban construction plans etc.), resulting in their no longer satisfying the conditions of the former PRC Income Tax Law Concerning Foreign-invested Enterprises and Foreign Enterprises and transitional policies, we, after consideration, give our official reply as follows:
你局《关于政府关停外商投资企业所得税优惠政策处理问题的请示》（苏国税发[2009]88号）收悉。关于外商投资企业因国家发展规划调整（包括城市建设规划等）被实施关停并清算，导致其不符合原《中华人民共和国外商投资企业和外国企业所得税法》及过渡性政策规定条件税收优惠处理问题，经研究，批复如下：
1. Pursuant to Article 79 of the former Implementing Rules for the PRC Income Tax Law Concerning Foreign-invested Enterprises and Foreign Enterprises, they shall pay back or return the amounts of the preferential enterprise income tax treatment that they enjoyed pursuant to such article.
一、根据原《中华人民共和国外商投资企业和外国企业所得税法实施细则》第七十九条的规定，应当补缴或缴回按该条规定已享受的企业所得税优惠税款。
2. If a foreign-invested enterprise or foreign enterprise leases out or transfers a piece of Chinese-made equipment purchased on or before December 31 2007 within five years from the date of the purchase thereof and it credited the investment against income tax in accordance with relevant provisions of the Ministry of Finance and the State Administration of Taxation, Circular on Issues Relevant to Crediting of Investments in Chinese-made Equipment Purchased by Foreign-invested Enterprises and Foreign Enterprises Against Enterprise Income Tax (Cai Shui Zi [2000] No.049), it shall, at the time of the leasing or transfer thereof, pay back the amount credited against its enterprise income tax for the purchase thereof, regardless of whether the lease or transfer occurred before, on or after January 1 2008.
二、外商投资企业和外国企业依照原《财政部 国家税务总局关于外商投资企业和外国企业购买国产设备投资抵免企业所得税有关问题的通知》（财税字[2000]049号）有关规定将已经享受投资抵免的2007年12月31日前购买的国产设备，在购置之日起五年内出租、转让，不论出租、转让行为发生在2008年1月1日之前或之后的，均应在出租、转让时补缴就该购买设备已抵免的企业所得税税款。
3. If, pursuant to Article 10 of the PRC Income Tax Law Concerning Foreign-invested Enterprises and Foreign Enterprises, the foreign investor in a foreign-invested enterprise directly reinvested profits derived from such enterprise into the enterprise to increase its registered capital or used the same as its investment in the establishment of another foreign-invested enterprise on or before December 31 2007, and if the term of operations thereof was not less than five years and, with the approval of the tax authority, 40% of the enterprise income tax paid on the portion of the profits that were reinvested were refunded, and it withdraws its reinvestment before the lapse of five years, it shall return the tax refund.
三、外商投资企业的外国投资者依照《中华人民共和国外商投资企业和外国企业所得税法》第十条的规定，将从企业取得的利润于2007年12月31日前直接再投资于该企业，增加注册资本，或者作为资本投资开办其他外商投资企业，如经营期不少于五年并经税务机关批准已退还其再投资部分已缴纳所得税的40％税款，再投资不满五年撤出的，应当缴回已退的税款。
cc Offices of the State Administration of Taxation and local taxation bureaux of provinces, autonomous regions, municipalities directly under the central government and cities with independent development plans
clp reference:3210/10.02.12prc reference:国税函 [2010] 69号promulgated:2010-02-12This premium content is reserved for
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