Announcement on Enterprise Income Tax Issues Relevant to the Payment of Expenses by Enterprises to Overseas Affiliates
关于企业向境外关联方支付费用有关企业所得税问题的公告
The tax authority may proceed with an adjustment for any expenses paid to an overseas affiliate not in compliance with the arm's length principle.
(Issued by the State Administration of Taxation on, and effective as of, March 18 2015.)
SAT Announcement [2015] No.16
With a view to further regulating and strengthening the administration of transfer pricing in connection with the payment of expenses by enterprises to overseas affiliates we, pursuant to relevant provisions of the PRC Enterprise Income Tax Law (the Enterprise Income Tax Law) and its Implementing Regulations, hereby announce to you transfer pricing issues relevant to the payment of expenses by enterprises to overseas affiliates as follows:
(国家税务总局于二零一五年三月十八日公布施行。)
1. Pursuant to Article 41 of the Enterprise Income Tax Law, the payment of expenses by an enterprise to an overseas affiliate shall comply with the arm's length principle, and the tax authority may proceed with an adjustment for any expenses paid to an overseas affiliate not in compliance with the arm's length principle.
国家税务总局公告 [2015] 第16号
2. Pursuant to Article 43 of the Enterprise Income Tax Law, when an enterprise pays expenses to an overseas affiliate, the competent tax authority may require the enterprise to provide for the record the contract or agreement executed with the affiliate and relevant documentation evidencing that the transaction genuinely occurred and complied with the arm's length principle.
为进一步规范和加强企业向境外关联方支付费用的转让定价管理，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）及其实施条例的有关规定，现就企业向境外关联方支付费用有关转让定价问题公告如下：
3. The expenses paid by an enterprise to an overseas affiliate that does not perform functions or bear risks and has no substantive business activities may not be deducted when calculating the enterprise's taxable income.
一、依据企业所得税法第四十一条，企业向境外关联方支付费用，应当符合独立交易原则，未按照独立交易原则向境外关联方支付的费用，税务机关可以进行调整。
4. Where an enterprise pays an expense for the service provided by an overseas affiliate, such service shall enable the enterprise to obtain direct or indirect economic benefits. The expenses paid by an enterprise to an overseas affiliate for the services set forth below may not be deducted when calculating the enterprise's taxable income.
二、依据企业所得税法第四十三条，企业向境外关联方支付费用，主管税务机关可以要求企业提供其与关联方签订的合同或者协议，以及证明交易真实发生并符合独立交易原则的相关资料备案。
(1) service activities with no connection to the bearing of functions or risks by, or the operations of, the enterprise;
三、企业向未履行功能、承担风险，无实质性经营活动的境外关联方支付的费用，在计算企业应纳税所得额时不得扣除。
(2) service activities, such as control, management and supervision, exercised over the enterprise by the affiliate in order to safeguard the investment interests of a direct or indirect investor in the enterprise;
四、企业因接受境外关联方提供劳务而支付费用，该劳务应当能够使企业获得直接或者间接经济利益。企业因接受下列劳务而向境外关联方支付的费用，在计算企业应纳税所得额时不得扣除。
(3) service activities provided by the affiliate that the enterprise has already purchased from a third party or itself carried out;
（一）与企业承担功能风险或者经营无关的劳务活动；
(4) although the enterprise secures additional benefits by virtue of being part of a group, specific service activities directed its way by an affiliate in the group not accepted by it;
（二）关联方为保障企业直接或者间接投资方的投资利益，对企业实施的控制、管理和监督等劳务活动；
(5) service activities paid for in other affiliated transactions; and
（三）关联方提供的，企业已经向第三方购买或者已经自行实施的劳务活动；
(6) other service activities that cannot lead to direct or indirect economic benefits for the enterprise.
（四）企业虽由于附属于某个集团而获得额外收益，但并未接受集团内关联方实施的针对该企业的具体劳务活动；
5. If an enterprise is required to pay royalties for intangible assets provided by overseas affiliates, consideration shall be given to the extent of the contribution made by each affiliate toward creation of the value of the intangible asset to determine the economic benefits that ought to be received by each of them. If an enterprise pays royalties to an affiliate that only has legal ownership of an intangible asset without having made any contribution to the creation of its value and such payment does not comply with the arm's length principle, it may not deduct the same when calculating its taxable income.
（五）已经在其他关联交易中获得补偿的劳务活动；
6. If an enterprise establishes a holding company or financing company overseas with financing or listing as the main objective, the royalties that it pays the overseas affiliate in connection with the fringe benefits derived from the financing or listing activities may not be deducted when calculating its taxable income.
（六）其他不能为企业带来直接或者间接经济利益的劳务活动。
7. Pursuant to Article 123 of the Implementing Regulations for the PRC Enterprise Income Tax Law , where the expenses paid by an enterprise to its overseas affiliate do not comply with the arm's length principle, the tax authority may impose a special tax adjustment for a period of 10 years from the tax year in which the transaction occurred.
五、企业使用境外关联方提供的无形资产需支付特许权使用费的，应当考虑关联各方对该无形资产价值创造的贡献程度，确定各自应当享有的经济利益。企业向仅拥有无形资产法律所有权而未对其价值创造做出贡献的关联方支付特许权使用费，不符合独立交易原则的，在计算企业应纳税所得额时不得扣除。
8. This Announcement shall be effective as of the date of issuance.
clp reference:3230/15.03.18prc reference:国家税务总局公告2015年第16号promulgated:2015-03-18effective:2015-03-18六、企业以融资上市为主要目的，在境外成立控股公司或者融资公司，因融资上市活动所产生的附带利益向境外关联方支付的特许权使用费，在计算企业应纳税所得额时不得扣除。
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