Circular on Issues Concerning the Enterprise Income Tax Policy for Technology Transfers by Tax-resident Enterprises

关于居民企业技术转让有关企业所得税政策问题的通知

The Circular clarifies the scope of technology transfers, which includes the transfer by tax-resident enterprises of proprietary technology, copyrights in computer software, rights in layout-designs of integrated circuits, new varieties of plants and new biopharmaceutical products.

Clp Reference: 3230/10.12.31 Promulgated: 2010-12-31 Effective: 2008-01-01

(Issued by the Ministry of Finance and the State Administration of Taxation on December 31 2010 and effective as of January 1 2008.)

(财政部、国家税务总局于二零一零年十二月三十一日公布，自二零零八年一月一日起执行。)

Cai Shui [2010] No.111

Finance departments (bureaux), offices of the State Administration of Taxation and local taxation bureaux of the provinces, autonomous regions, municipalities directly under the central government and cities with independent development plans and the Finance Bureau of the Xinjiang Production and Construction Corp:

财税 [2010] 111号

Pursuant to relevant provisions of the PRC Enterprise Income Tax Law (the Tax Law) and the Implementing Regulations for the PRC Enterprise Income Tax Law (Order of the State Council No.512; the “Implementing Regulations”), we hereby notify you on issues relevant to the reduction or exemption of enterprise income tax on eligible technology transfer income as follows:

1. The scope of technology transfers includes the transfer by tax-resident enterprises of proprietary technology, copyrights in computer software, rights in layout-designs of integrated circuits, new varieties of plants, new biopharmaceutical products and other technologies as determined by the Ministry of Finance and the State Administration of Taxation.

各省、自治区、直辖市、计划单列市财政厅（局）、国家税务局、地方税务局，新疆生产建设兵团财务局：

The term “proprietary technology” means inventions, utility models and industrial designs (that are not merely a simple modification of the pattern on a product) to which exclusive rights are granted by law.

2. For the purposes of this Circular, the term “technology transfer” means the act whereby a tax-resident enterprise transfers ownership of, or grants a global exclusive licence of at least five years for, a technology satisfying Article 1 hereof that it owns.

根据《中华人民共和国企业所得税法》（以下简称企业所得税法）及《中华人民共和国企业所得税法实施条例》（国务院令第512号，以下简称实施条例）的有关规定，现就符合条件的技术转让所得减免企业所得税有关问题通知如下：

3. A technology transfer contract shall be entered into for a technology transfer. A domestic technology transfer shall require the recognition and registration of the science and technology department at the provincial level or above and a cross-border technology transfer shall require the recognition and registration of the commerce department at the provincial level or above. Where a transfer involves technology that was created with government financial support, the examination and approval of the science and technology department at the provincial level and above shall be required.

The export of technology by a tax-resident enterprise shall be examined by the relevant department in accordance with the List of Technologies the Export from China of Which is Prohibited or Restricted (Order of the Ministry of Commerce and the Ministry of Science and Technology No.12 of 2008) issued by the Ministry of Commerce and the Ministry of Science and Technology. A tax-resident enterprise shall not be eligible for tax breaks in the form of a reduction or exemption of enterprise income tax on a technology transfer for income derived from the transfer of technology the export of which is prohibited or restricted.

一、技术转让的范围，包括居民企业转让专利技术、计算机软件著作权、集成电路布图设计权、植物新品种、生物医药新品种，以及财政部和国家税务总局确定的其他技术。

4. A tax-resident enterprise shall not be eligible for tax breaks in the form of a reduction or exemption of enterprise income tax on a technology transfer for income derived from a transfer of technology to an affiliated person in which its direct or indirect equity holding totals 100%.

5. This Circular shall be effective as of January 1 2008.

clp reference:3230/10.12.31prc reference:财税 [2010] 111号promulgated:2010-12-31effective:2008-01-01

其中：专利技术，是指法律授予独占权的发明、实用新型和非简单改变产品图案的外观设计。

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