Announcement on Issues Relevant to the Levy of Enterprise Income Tax on the Provision of Services in China by Personnel Assigned by Non-tax-resident Enterprises
关于非居民企业派遣人员在中国境内提供劳务征收企业所得税有关问题的公告
SAT sets standards for levy of enterprise income tax on personnel assignment to China of non-tax-resident enterprises.
(Issued by the State Administration of Taxation on April 19 2013 and effective as of June 1 2013.)
(国家税务总局于二零一三年四月十九日发布，自二零一三年六月一日起施行。)
SAT Announcement [2013] No.19
Pursuant to provisions such as the PRC Enterprise Income Tax Law, its Implementing Regulations, agreements for the avoidance of double taxation executed by the Chinese government with foreign countries (including the tax arrangements executed with the Hong Kong and Macao Special Administrative Regions; hereinafter collectively referred to as “Tax Agreements”) and the State Administration of Taxation, Circular on the Issuance of the Interpretation of the Agreement Between the Government of the People's Republic of China and the Government of the Republic of Singapore for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion With Respect to Taxes on Income and the Protocols Thereto (Guo Shui Fa [2010] No.75), we hereby make the following announcement on issues relevant to the levy of enterprise income tax on the provision of services in China by personnel assigned by non-tax-resident enterprises:
1. When a non-tax-resident enterprise (Assigning Enterprise) assigns personnel to provide services in China, if it bears part or all of the liability and risks associated with the results of the work done by the assigned personnel and regularly assesses and evaluates the work performance of such assigned personnel, it shall be deemed as having established in China an establishment or a place to provide services. If the Assigning Enterprise is an enterprise of the other contracting party to a Tax Agreement, and its establishment or place that provides services is of a relatively fixed and persistent nature, such establishment or place shall constitute a permanent establishment established in China.
国税发〔2013〕19 号
When making a determination on the foregoing, the following factors shall be taken into account to support the determination:
(1) the domestic enterprise receiving the services (Recipient Enterprise) makes payments to the Assigning Enterprise of a management fee or service fee nature;
(2) the amount paid by the Recipient Enterprise to the Assigning Enterprise exceeds the wages, salaries, social insurance premiums and other expenses of the assigned personnel advanced or paid on its behalf by the Assigning Enterprise;
根据《中华人民共和国企业所得税法》及其实施条例、中国政府对外签署的避免双重征税协定（含与香港、澳门特别行政区签署的税收安排，以下统称税收协定）以及《国家税务总局关于印发〈中华人民共和国政府和新加坡共和国政府关于对所得避免双重征税和防止偷漏税的协定及议定书条文解释〉的通知》（国税发〔2010〕75 号）等规定，现就非居民企业派遣人员在中国境内提供劳务征收企业所得税有关问题公告如下：
(3) the Assigning Enterprise does not pay to its assigned personnel all of the relevant expenses paid by the Recipient Enterprise, but retains a certain amount for itself;
(4) individual income tax is not paid in China on the entire amount of the wages or salaries of the assigned personnel borne by the Assigning Enterprise; and
(5) the Assigning Enterprise determines the number, qualifications, remuneration rates and the place of work in China of its assigned personnel.
一、非居民企业（以下统称“派遣企业”）派遣人员在中国境内提供劳务，如果派遣企业对被派遣人员工作结果承担部分或全部责任和风险，通常考核评估被派遣人员的工作业绩，应视为派遣企业在中国境内设立机构、场所提供劳务；如果派遣企业属于税收协定缔约对方企业，且提供劳务的机构、场所具有相对的固定性和持久性，该机构、场所构成在中国境内设立的常设机构。
2. If an Assigning Enterprise assigns personnel to provide services in China solely for the purpose of exercising its shareholder rights or safeguarding its lawful shareholder rights and interests, including activities such as the assigned personnel providing to the Assigning Enterprise relevant advice on investment in the Recipient Enterprise and representing the Assigning Enterprise by attending shareholders' general meetings or board meetings of the Recipient Enterprise, the Assigning Enterprise shall not be deemed as having an establishment, place or permanent establishment in China as a result of carrying out such activities in the place of business of the Recipient Enterprise.
3. Assigning Enterprises and Recipient Enterprises satisfying the provisions of Article 1 shall carry out tax registration and record filing, tax filings and other tax related matters in accordance with the Tentative Measures for the Administration of the Levy of Taxes on the Contracting of Projects and the Provision of Services by Non-tax-residents (Order of the SAT No.19).
4. An Assigning Enterprise satisfying the provisions of Article 1 shall accurately calculate in accordance with the law the income it has derived, and truthfully file and pay enterprise income tax thereon. If it fails to truthfully file the same, the tax authority shall have the right to determine its taxable income in accordance with relevant provisions.
在做出上述判断时，应结合下列因素予以确定：
5. A competent tax authority shall strengthen its tax levy administration in respect of the act of assigning personnel, and focus on reviewing the following documentation relating to the act of assigning personnel as well as the substantiality of the economic activities relating to, and the implementation of, the assignment arrangement to determine the enterprise income tax payment obligation of the non-tax-resident enterprise
(1) the contract or agreement among the Assigning Enterprise, the Recipient Enterprise and the assigned personnel;
(2) the administrative provisions of the Assigning Enterprise or Recipient Enterprise in respect of the assigned personnel, including the specific provisions in respect of the assigned personnel's job duties, job description, work assessment and risk bearing;
（一）接收劳务的境内企业（以下统称“接收企业”）向派遣企业支付管理费、服务费性质的款项；
(3) the payments made to the Assigning Enterprise by the Recipient Enterprise and relevant accounting treatment details, and documentation for the filing and payment of individual income tax by the assigned personnel; and
(4) whether the Recipient Enterprise has covertly paid expenses relating to the act of assigning personnel by way of an offsetting transaction, relinquishment of claims, affiliated transaction or otherwise.
6. When a competent tax authority determines an Assigning Enterprise's tax obligation in accordance with the Enterprise Income Tax Law and this Announcement, it shall strengthen its coordination and liaison with the competent tax authorities in charge of the individual income tax and business tax relating to the provision of services by the assigned personnel and exchange with them relevant information on the provision of services by the assigned personnel so as to ensure the accurate implementation of tax policies.
（二）接收企业向派遣企业支付的款项金额超出派遣企业代垫、代付被派遣人员的工资、薪金、社会保险费及其他费用；
7. When implementing this Announcement to carry out tax treatment in respect of the services provided by the assigned personnel of non-tax-resident enterprises, every region shall carry out for Assigning Enterprises and Recipient Enterprises the relevant procedures for payments to foreign parties in strict accordance with relevant provisions in a timely manner.
8. This Announcement shall be effective as of June 1 2013. Matters that arose before the implementation hereof but for which tax treatment has not been carried out shall be handled in accordance herewith.
（三）派遣企业并未将接收企业支付的相关费用全部发放给被派遣人员，而是保留了一定数额的款项；
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