啟源顧問有限公司的部落格

美國新企業主的稅務小貼士

首先恭喜您在美國成功開辦了新企業！但是，作為企業所有者，瞭解開辦企業所伴隨的稅收責任也是十分重要的。本篇文章將根據美國國稅局官方資料，總結一些您需要注意的小貼士。

一、  選擇公司結構

公司的組成結構決定了企業納稅人所需要申報的所得稅表格。公司結構通常有以下幾種：

（1）   獨資企業：個人所有的非獨資法人實體。納稅個人與他們的企業無需單獨報稅。

（2）   合夥企業：兩個或兩個以上個人擁有所有權的非獨立法人企業。

如何通知國稅局地址變更

如果您的位址有變更（例如搬家），您需要通知國稅局，以確保您可以收到國稅局的退稅或信件。向國稅局通知地址變更有以下幾種方法：

1、    申報稅表

如果您在申報稅表之前更改位址，應在申報時將您的新地址填入稅表中。國稅局會在處理稅表時更新您的個人資訊。此外，如果您的稅表是代理人代報，請務必及時通知您的代報稅人。

2、    口頭通知

How to Notify IRS of Your Address Change

If your address has changed (e.g. moving), you need to notify the IRS to ensure you receive any tax refunds or IRS correspondence. There are several ways to notify the IRS of an address change:

1.      Tax Return

If you change your address before filing your return, enter your new address on your return when you file. When your return is processed, IRS will update our records. Be sure to also notify your return preparer.

2.      Oral Notification

China to Cancel MIIT Approval for Foreign Investment in Telecom Services

The State Council of the PRC released a circular on 21 September 2020, which announced that China will cancel requirement for government review on 29 items and delegate power on 4 items.

According to the circular, the first item of government review to be cancelled is the approval for foreign investment in telecom services. In the past, foreign investors shall apply for an approval for foreign investment in telecom services from the Ministry of Industry and Information Technology of the PRC (MIIT) before they are allowed to set up a foreign invested telecom company. The cancellation of this approval will greatly simplify and shorten the process to establish a foreign-invested telecom company. It is really good news to foreign investors who are planning to set up foreign-invested telecom companies in China.

Although the above pre-approval has been cancelled, the Ministry of Industry and Information Technology of the PRC and its provincial bureaus will still review the fulfilment of the shareholding ratio restrictions for foreign-invested telecom enterprises when examining the subsequent application for telecom service license. Supervision over the daily operation of the foreign-invested telecom enterprises will be strengthened at the same time.

In the next stage, the State Council of the PRC will submit a proposal to the Standing Committee of the National People's Congress of the PRC to amend the relevant laws and regulations in accordance with legal procedures. Kaizen will keep a close eye on the amendment of the relating laws and regulation and the release of the supporting measures.

中國取消外商投資經營電信業務審定意見書

中國國務院於2020年9月21日發佈了《國務院關於取消和下放一批行政許可事項的決定》（以下簡稱《決定》），明確了中國將取消29項行政許可事項並下放4項行政許可事項的審批層級。

其中，確定取消的第1項行政許可事項即為“外商投資經營電信業務審定意見書核發”。此前，外國投資者在申請設立外商投資電信企業時，需要先向中國工業和資訊化部申請《外商投資經營電信業務審定意見書》。取得該意見書後方可向登記部門申請設立外商投資電信企業。此項行政許可事項取消後，將大大簡化並縮短外商投資電信企業的設立流程。這對擬在中國投資設立外商投資電信企業的外國投資者而言無疑是一項重大利好。

雖然上述前置審批已被取消，但中國工業和資訊化部、省級通信管理局仍將在後續辦理“電信業務經營許可”時，對外商投資電信企業落實股權比例限制要求情況進行嚴格把關，同時會加強對外商投資電信企業日常經營活動的監管。

接下來，中國國務院將依照法定程式提請全國人民代表大會常務委員會修訂相關法律規定。啟源將密切關注相關法律規定的修訂情況以及相關政府部門出臺的配套措施。

OT Payment During 2020 Chinese National Day Holidays

According to the circular of holiday arrangements for the year of 2020 issued by the General Office of the State Council of the PRC, the National Day holidays and Mid-Autumn Festival will start from 1 October to 8 October 2020. The National Day overlaps with the Mid-Autumn Festival on 1 October 2020. How to calculate and pay the overtime wages if an employer arranges overtime work for its employees during the period from 1 October to 8 October?

The General Office of the Ministry of Human Resources and Social Security of the PRC has issued a circular on 18 September2020, which has clearly clarified the calculation and payment of overtime wages during the period from 1 October to 8 October. The detailed rules are as follows:

1.  The employer shall pay overtime wages at the rate of no less than 300% of the normal wages to the employee if the employee is arrange to work during the period from 1 October to 4 October.

2.   The employer shall first arrange the employee to rest afterwards if the employee is arranged to work during the period from 5 October to 8 October. If no rest is arranged, the employer shall pay overtime wages at the rate of no less than 200% of the normal wages to the employee.

中國2020年國慶節及中秋節假期加班工資應如何計算？

根據中國國務院辦公廳關於2020年節假日安排的通知，2020年的國慶節、中秋節將於10月1日至8日放假調休。其中，10月1日國慶節與中秋節重疊。如果用人單位在10月1日至8日期間安排員工加班，應該如何計算並支付加班工資呢？

中國人力資源社會保障部辦公廳於2020年9月18日發佈了一則函件，明確了2020年10月1日至8日期間加班工資的計算及支付問題，具體規定如下：

一、10月1日至4日，用人單位安排勞動者加班的，應按不低於工資的300%支付加班工資報酬。

二、10月5日至8日，用人单位安排劳动者加班的，应先安排补休；不能安排补休的，应按不低于工资的200%支付加班工资报酬。

U.S. 199A Qualified Business Income Deduction Introduction

Many individuals, including owners of businesses operated through sole proprietorships, partnerships, S corporations, trusts and estates may be eligible for a qualified business income deduction, also called the section 199A deduction, for years beginning after December 31.

The deduction allows them to deduct up to 20% of their qualified business income (QBI), plus 20% of qualified real estate investment trust (REIT) dividends and qualified publicly traded partnership (PTP) income. Income earned by a C corporation or by providing services as an employee is not eligible for the deduction.

The deduction has two components.

1.      QBI Component. This component of the deduction equals 20% of QBI from a domestic business operated as a sole proprietorship or through a partnership, S corporation, trust or estate. Depending on the taxpayer's taxable income, the QBI Component is subject to limitations including:
 

美國Section199A合格商業收入（QBI）扣除介紹

許多個人，包括通過獨資企業、合夥企業、S型股份有限公司、信託和遺產經營的企業所有者，可能有資格獲得合格的商業收入扣除額，該扣除也稱為199A扣除額，該條例適用於2017年12月31日之後的納稅年度。

扣除額允許他們扣除高達20％的合格營業收入（QBI），以及20％的合格房地產投資信託（REIT）股息和合格的公開交易合夥經營（PTP）收入。 C型股份有限公司或作為雇員提供服務所賺取的收入不符合扣除條件。

扣除由兩個組成部分。

1、    QBI 部分。 扣除的這一部分相當於作為獨資企業或通過合夥企業，S公司，信託或遺產運營的國內企業的QBI的20％。根據納稅人的應稅收入，QBI部分受到以下限制：

Guide to Audit Exemption for Small Companies in Singapore

The Singapore Companies (Amendment) Act 2014 brings in the concept of small company, which replaces the exempt private company for purposes of audit exemption. This article considers the features of this new regime and illustrates its application to existing as well as new companies.

1.       Small company

With the introduction of small company concept, more companies will qualify for audit exemption, thus reducing compliance costs and creating a more business-friendly environment.

Paragraph 2 of the Thirteenth Schedule of the amended Companies Act (Cap 50, 2006 Rev Ed) (hereafter the “Thirteenth Schedule”) states that a company is a small company from a particular financial year if:

新加坡小型公司審計豁免指南

新加坡“小型公司"是自2014年修改後生效的公司法（Companies (Amendment) Act 2014, 公司法（修訂）2014）中引進的概念。就財務報表審計而言，“小型公司”取代了舊公司法中的“豁免私人公司"。本文旨在簡單介紹“小型公司”之定義及相關豁免審計之事宜。

一、   小型公司

小型公司廣泛的適用標準，令到更多公司可以獲得審計豁免，從而減低合規成本及營造一個更為友善的營商環境。

根據公司法附表十三第二段（下稱“附表十三"）之規定，一家公司於某個財政年度屬於小型公司，如果該公司：

Taiwan Business Tax and Profit-Seeking Enterprise Income Tax for the Cross-Border E-commerce

In the modern age, with the popularization of the internet and mobile technology, purchasing of the services online such as the usage of Cross-Border E-commerce advertisements, purchasing of online games, and videos are getting popular. When there are sales of electronic service to the natural person within the territory of Taiwan, the Cross-Border E-commerce should in accordance with the Articles No. 2-1 of the Value-added and Non-value-added Business Tax Act, the E-commerce shall be the taxpayer of the business tax, has the obligation to pay for the business tax. If the sales target is not the natural person within the territory of Taiwan, the sales person of the E-commerce should in accordance with the Articles No.36 of the Value-added and Non-value-added Business Tax Act. Unless the purchaser is a business entity which computes its tax in accordance with the provisions of Section 1 of Chapter 4 of the Value-added and Non-value-added Business Tax Act (Purchaser is the business person belongs to the General Tax Computation), the purchased services are used solely in conducting business in taxable goods or services, such services are exempted from the business tax, else, prior to the fifteenth day of the period following the period in which the payment is made, the purchaser should compute the business tax based on the payment amount in accordance with the regulated tax rate and pay for the business tax.

A non-individual purchaser that purchase the foreign services, the payment of business tax could be differentiated in two: (1) The purchaser is the business person that self-declare and pay the business tax by using the Form of “Declaration of Sales and Business Tax by a Business Entity (Form 401, 403, 404)”, for the purchasing of foreign services, the purchaser will only need to fill the relevant fields in Form 401, 403, 404 and file consolidated. (2) The purchaser which is not the business person self-declare and pay the business tax (such as the small scale business entities, business executives, government agencies, etc.), if there is purchasing of the foreign services, they could visit the e-Tax Portal of the Ministry of Finance (http://www.etax.nat.gov.tw/) > Online Service > Electronic Filing and Payment of Tax > Print the tax bill with three-stage barcode (online version) > Business Tax, download “Business Tax Payment Form for the Purchasing of Foreign Services (Form 408)”, self-payment for the business tax.

At the stage of the Profit-Seeking Enterprise Income Tax, the Cross-Border E-commerce sells the electronic services within the territory of Taiwan, if the income of E-commerce is the “Income received in the Taiwan”, according to the Article No. 3-1 of the “Income Tax Regulations for the Cross-Border Sales of Electronic Service for the Foreign Profit-Seeking Enterprise” (The official document No. 10700522870 issued by Ministry of Finance on 11 May 2018), E-commerce should pay for the profit-seeking enterprise income tax according to the regulations. According to Article No. 3-2 of the regulations pre-mentioned,  the foreign profit-seeking enterprise that provides the patents, trademarks, copyrights, secret formulas and franchises by virtue of their being made available for use by other persons in Taiwan through the internet or other electronic means, it does not belongs to the scope of the electronic service, the remuneration is counted as the "royalty". The remuneration is not applicable to the “Income Tax Regulations for the Cross-Border Sales of Electronic Service for the Foreign Profit-Seeking Enterprise”, therefore, it could not compute the income tax according to the net profit ratio and profit contribution ratio, it should be taxed in accordance with the Income Tax Act.

The Cross-Border E-commerce sales the electronic service to the individual (B2C) or enterprise (B2B), there are differences on the taxation method. If the sales of electronic services are to the individual, the tax authority reminds that the Cross-Border E-commerce shall declare for the income tax in the declaration period in May. If the sales of electronic services are to the enterprises, the business person within the territory of Taiwan should deduct the tax by using the Withholding and Non-withholding Tax Statement in accordance with the Income Tax Act, before the payment of tax. For example, Company A arranges employee to go for a business trip, booking a room in the website of Agoda, before the payment of room rate, it should deduct the tax and declare at the tax authority by using the Withholding and Non-withholding Tax Statement.

U.S. Corporation Foreign Tax Credit Introduction

Domestic corporations that have paid or accrued qualified foreign income taxes to a foreign country or U.S. possession may generally credit those against their U.S. income tax liability on foreign source income.

The goal of the foreign tax credit is to keep a U.S. taxpayer’s worldwide effective tax rate from exceeding the U.S. statutory tax rate, which is accomplished through the foreign tax credit limitation.

You can claim a credit only if your foreign taxes are qualified:

1.      The tax must be imposed on you: you can claim a credit only for foreign taxes that are imposed on you by a foreign country or U.S. possession.

美國公司外國稅收抵免介紹

于美國境內成立的公司，如果已向外國或美國海外領地繳納了當地的所得稅，則他們可能可以將其作為外國稅收抵免，來抵扣美國的應納所得稅。

外國稅收抵免的目的是通過外國稅收抵免限制，使得美國納稅人的全球有效稅率不超過美國法定稅率。

如果您的公司已繳納或應計的外國稅款滿足以下條件，則可能適用於外國稅收抵免：

1、    您只能對由外國或美國海外領地向您的公司所徵收的外國稅款申請抵免。

Accelerated Expiry of Shareholders' Capital Contribution in China

The shareholders of a China company are allowed to freely agree on the amount of the subscribed capital and term of capital contribution under the subscribed registered capital system as stipulated in the Company Law of the PRC. If the term of capital contribution of the shareholders has not expired, is it possible for the company creditors to ask for the accelerated expiry of shareholders’ capital contribution obligation so as to realize their creditor rights?

In judicial practice, the Chinese courts generally do not uphold the claim made by a creditor of the company for accelerated expiry of shareholders' capital contribution obligation. However, under special circumstances such as the bankruptcy, dissolution of the company or the shareholders maliciously extend the term of capital contribution to avoid fulfilling the capital contribution obligation, the court may consider to uphold the claim for accelerated expiry of shareholders' capital contribution obligation. Provisions relating to the accelerated expiry of shareholders’ capital contribution obligation are mainly contained in the following laws and regulations.

1.    Enterprise Bankruptcy Law of the PRC

According to Article 35 of the Enterprise Bankruptcy Law of the PRC, where after the people’s court accepts an application for bankruptcy, any of the debtor’s capital contributors that fails to fulfill the obligation of capital contribution in full, the administrator shall require the capital contributor to contribute the subscribed capital, irrespective of the time limit set on capital contribution.

中國公司股東出資義務是否可以加速到期？

根據中國現行公司法的規定，中國公司實行註冊資本認繳登記制，允許股東自由約定認繳出資額及出資的期限。如果公司股東的出資期限未到期，債權人能否要求股東出資義務加速到期以實現債權？

在司法實踐中，中國法院一般不支持股東出資義務加速到期，但在公司破產、解散或者股東存在惡意延長出資期限以逃避履行出資義務等特殊情形下，法院會考慮支持股東出資義務加速到期。中國現行法律體系中關於股東出資義務加速到期的規定主要體現在：

一、企業破產法

根據《中華人民共和國企業破產法》第三十五條規定，人民法院受理破產申請後，債務人的出資人尚未完全履行出資義務的，管理人應當要求該出資人繳納所認繳的出資，而不受出資期限的限制。

Liabilities for Breach of Precontract in China

Precontract is a contract whereby the parties agree to conclude a contract within a certain period of time in the future. Precontract is quite common in practice. However, it is not stipulated in the General Principles of the Civil Law of the PRC and the Contract Law of the PRC. The provision of precontract has been formally included in the Civil Code of the PRC (hereinafter referred to as the Civil Code), which will come into force on 1 January 2021.

According to Article 495 of the Civil Code, if the parties agree to conclude a subscription contract, subscription order, reservation order and so on within a certain period of time in the future, such contracts shall constitute precontracts. Where one party fails to perform the obligation to conclude a precontract as agreed, the other party may request it to bear the breach of contract liability in relation to the precontract.

The Civil Code enumerates several common forms of precontract such as subscription contract, subscription order, reservation order and so on in the above provision. But it shall not be limited to those forms. Whether a letter of intent or a framework agreement that is commonly used in commercial activities constitutes a precontract shall be determined according to the specific contents of the document. It shall not be deemed as a precontract if it is only the expression of the parties' intention to cooperate and it is not explicitly agreed that a formal contract will be concluded within a certain period of time in the future.

The Civil Code does not stipulate the remedies for breach of precontract. However, if the precontract has explicitly stipulated the remedies and liabilities for breach of contract, the non-breaching party may require the breaching party to bear the liability for breach in accordance with the contract. Therefore, in order to avoid the uncertainty of remedies for breach of contract in the future, you are advised to clearly set forth the remedies for breach of contract, for example, to specify the amount of damages for breach of contract or to define the calculation method of losses, when drafting the precontract.

違反中國預約合同須承擔違約責任

預約合同，系指當事人約定于將來一定期限內訂立本約合同的合同。預約合同在實務中頗為常見，但此前在《中華人民共和國民法通則》及《中華人民共和國合同法》中卻並未對預約合同作出規定。即將於2021年1月1日生效的《中華人民共和國民法典》（以下簡稱《民法典》）將預約合同正式納入了合同編，確認了預約合同的效力。

根據《民法典》第四百九十五條規定，當事人約定在將來一定期限內訂立合同的認購書、訂購書、預訂書等，構成預約合同。當事人一方不履行預約合同約定的訂立合同義務的，對方可以請求其承擔預約合同的違約責任。

《民法典》在上述規定中列舉了“認購書、訂購書、預定書等”常見的預約合同形式，但預約合同的表現形式並不局限於這幾種形式。在商事活動中常見的意向書、框架協議等是否構成預約合同，應根據文書記載的具體內容來判斷。如果僅為當事人合作意向的意思表示，未明確約定在將來一定期限內另行訂立正式的合同，則不應認定為預約合同。

《民法典》雖明確了預約合同的違約方須承擔違約責任的後果，但並未對預約合同違約責任的承擔方式作出規定。如果預約合同中明確約定了違約責任，則守約方可以要求違約方按照預約合同的約定承擔違約責任。因此，為避免將來違約責任承擔的不確定性，建議在起草預約合同時，明確約定違約責任的承擔方式，如約定具體的違約金數額或明確損失的計算方式。

U.S. Foreign Investment in Real Property Tax Act (FIRPTA) Introduction

The disposition of a U.S. real property interest by a foreign person (the transferor) is subject to the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) income tax withholding. FIRPTA authorized the United States to tax foreign persons on dispositions of U.S. real property interests.

A disposition means “disposition” for any purpose of the Internal Revenue Code. This includes but is not limited to a sale or exchange, liquidation, redemption, gift, transfers, etc. Persons purchasing U.S. real property interests (transferees) from foreign persons, certain purchasers' agents, and settlement officers are required to withhold 15% (10% for dispositions before February 17, 2016) of the amount realized on the disposition (special rules for foreign corporations).

In most cases, the transferee/buyer is the withholding agent. If you are the transferee/buyer, you must find out if the transferor is a foreign person. If the transferor is a foreign person and you fail to withhold, you may be held liable for the tax. For cases in which a U.S. business entity such as a corporation or partnership disposes of a U.S. real property interest, the business entity itself is the withholding agent.

The transferee must deduct and withhold a tax on the total amount realized by the foreign person on the disposition. The rate of withholding generally is 15% (10% for dispositions before February 17, 2016).

The amount realized is the sum of: