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On Sep 29, 2018, Ministry of Finance, State Administration of Taxation,
National Development and Reform Commission, and Ministry of Commerce of the
People’s Republic of China co-distributed the Circular on Expanding the
Applicable Scope of the Policy of Temporarily Not Levying the Withholding Tax
on Distributed Profits Used by Overseas Investors for Direct Investment (the
"Circular"), retrospectively effective from January 1, 2018.
According to the
Circular, the policy under which profits received by an overseas investor from
a resident enterprise within the territory of China will temporarily be exempt
from the withholding tax, if such profits are used for direct investment in
China, will be applicable to a larger extent, covering not only the encouraged
category of foreign-invested projects but also all projects and fields from
which foreign investments are not banned. Further, the Circular clearly states
that, an overseas investor must satisfy three requirements to be eligible for
the privilege of temporary exemption from withholding tax. One of the three
requirements is that "direct investments made by the overseas investor
with distributed profits cover equity investments made by this overseas
investor with profits it receives, including the capital increase for a
domestic resident enterprise, the incorporation of a new resident enterprise in
China and the acquisition of equities of a domestic resident enterprise, but
excluding the increase in, the conversion into, and the acquisition of, a
listed company's shares". An
overseas investor that meets the given requirements shall file for the above
exemption with the supporting documents, which shall be subject to review of the
competent Tax Administration. Furthermore, if an overseas investor eligible for
exemption has paid the withholding tax, such investor shall be allowed to file
for tax return within three years from the payment date of such withholding
tax.
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