Adopted at the Fourth Session of the Seventh National People's Congress
on April 9, 1991, promulgated by Order No. 45 of the President of the
People's Republic of China on April 9, 1991 and effective as of July 1,
1991
Article 1 Income tax shall be paid in accordance with the provisions
of this Law by enterprises with foreign investment within the territory of
the People's Republic of China on their income derived from production, business operations and other sources.
Income tax shall be paid in accordance with the provisions of this Law
by foreign enterprises on their income derived from production, business
operations and other sources within the territory of the People's Republic of China.
Article 2 "Enterprises with foreign investment" referred to
in this Law mean Chinese-foreign equity joint ventures, Chinese-foreign contractual
joint ventures and foreign-capital enterprises that are established in China. "Foreign enterprises" referred to in this Law mean foreign companies, enterprises and other economic organizations which have establishments
or places in China and engage in production or business operations, and which, though without establishments or places in China, have income from sources within China.
Article 3 Any enterprise with foreign investment which establishes its
head office in China shall pay its income tax on its income derived from sources inside and outside China. Any foreign enterprise shall pay its income
tax on its income derived from sources within China.
Article 4 The taxable income of an enterprise with foreign investment
and an establishment or a place set up in China to engage in production or
business operations by a foreign enterprise, shall be the amount remaining from
its gross income in a tax year after the costs, expenses and losses have been deducted.
Article 5 The income tax on enterprises with foreign investment and
the income tax which shall be paid by foreign enterprises on the income of
their establishments or places set up in China to engage in production or business operations shall be computed on the taxable income at the rate of thirty percent, and local income tax shall be computed on the taxable income
at the rate of three percent.
Article 6 The State shall, in accordance with the industrial policies, guide the orientation of foreign investment and encourage the establishment
of enterprises with foreign investment which adopt advanced technology and equipment and export all or greater part of their products.
Article 7 The income tax on enterprises with foreign investment established in Special Economic Zones, foreign enterprises which have establishments
or places in Special Economic Zones engaged in production or business operations, and on enterprises with foreign investment of a production nature in Economic and Technological Development Zones, shall be levied at the reduced rate
of fifteen percent.
The income tax on enterprises with foreign investment of a production
nature established in coastal economic open zones or in the old urban districts
of cities where the Special Economic Zones or the Economic and Technological Development Zones are located, shall be levied at the reduced rate of twenty-four percent.
The income tax on enterprises with foreign investment in coastal economic open zones, in the old urban districts of cities where the Special Economic Zones or the Economic and Technological Development Zones are located
or in other regions defined by the State Council, within the scope of energy, communications, harbour, wharf or other projects encouraged by the State,
may be levied at the reduced rate of fifteen percent. The specific measures shall
be drawn up by the State Council.
Article 8 Any enterprise with foreign investment of a production nature scheduled to operate for a period of not less than ten years shall, from
the year beginning to make profit, be exempted from income tax in the first
and second years and allowed a fifty percent reduction in the third to fifth
years. However, the exemption from or reduction of income tax on enterprises
with foreign investment engaged in the exploitation of resources such as petroleum, natural gas, rare metals, and precious metals shall be regulated separately
by the State Council. Enterprises with foreign investment which have actually operated for a period of less than ten years shall repay the amount of
income tax exempted or reduced already.
The relevant regulations, promulgated by the State Council before the
entry into force of this Law, which provide preferential treatment of exemption
from or reduction of income tax on enterprises engaged in energy, communications, harbour, wharf and other major projects of a production nature for a period longer than that specified in the preceding paragraph, or which provide preferential treatment of exemption from or reduction of income tax on enterprises engaged in major projects of a nonproduction nature, shall
remain applicable after this Law enters into force.
Any enterprise with foreign investment which is engaged in agriculture, forestry or animal husbandry and any other enterprise with foreign investment which is established in remote underdeveloped areas may, upon approval
by the competent department for tax affairs under the State Council of an application filed by the enterprise, be allowed a fifteen to thirty percent reduction
of the amount of income tax payable for a period of another ten years following
the expiration of the period for tax exemption or reduction as provided for
in the preceding two paragraphs.
After this Law enters into force, any modification to the provisions
of the preceding three paragraphs of this Article on the exemption from or reduction
of income tax on enterprises shall be submitted by the State Council to the Standing Committee of the National People's Congress for decision.
Article 9 The exemption from or reduction of local income tax on any enterprise with foreign investment which operates in an industry or undertakes
a project encouraged by the State shall, in accordance with the actual situation, be at the discretion of the people's government of the relevant province, autonomous region or municipality directly under the Central Government.
Article 10 Any foreign investor of an enterprise with foreign investment which reinvests its share of profit obtained from the enterprise directly
into that enterprise by increasing its registered capital, or uses the profit
as capital investment to establish other enterprises with foreign investment
to operate for a period of not less than five years shall, upon approval
by the tax authorities of an application filed by the investor, be refunded forty
percent of the income tax already paid on the reinvested amount. Where regulations
of the State Council provide otherwise in respect of preferential treatment,
such provisions shall apply. If the investor withdraws its reinvestment before
the expiration of a period of five years, it shall repay the refunded tax.
Article 11 Losses incurred in a tax year by any enterprise with foreign investment and by an establishment or a place set up in China by a foreign enterprise to engage in production or business operations may be made
up by the income of the following tax year. Should the income of the following tax
year be insufficient to make up for the said losses, the balance may be made up
by its income of the further subsequent year, and so on, over a period not exceeding five years.
Article 12 Any enterprise with foreign investment shall be allowed,
when filing a consolidated income tax return, to deduct from the amount of
tax payable the foreign income tax already paid abroad in respect of the income derived from sources outside China. The deductible amount shall, however,
not exceed the amount of income tax otherwise payable under this Law in respect
of the income derived from sources outside China.
Article 13 The payment or receipt of charges or fees in business transactions between an enterprise with foreign investment or an establishment or a place set up in China by a foreign enterprise to engage in production
or business operations, and its associated enterprises, shall be made in
the same manner as the payment or receipt of charges or fees in business transactions between independent enterprises. Where the payment or receipt of charges
or fees is not made in the same manner as in business transactions between independent enterprises and results in a reduction of the taxable income, the tax authorities shall have the right to make reasonable adjustment.
Article 14 Where an enterprise with foreign investment or an establishment or a place set up in China by a foreign enterprise to engage in production
or business operations is established, moves to a new site, merges with another enterprise, breaks up, winds up or makes a change in any of the main entries
of registration, it shall present the relevant documents to and go through
tax registration or a change or cancellation in registration with the local
tax authorities after the relevant event is registered, or a change or cancellation in registration is made with the administrative agency for industry and commerce.
Article 15 Income tax on enterprises and local income tax shall be computed on an annual basis and paid in advance in quarterly instalments. Such
payments shall be made within fifteen days from the end of each quarter and the
final settlement shall be made within five months from the end of each tax year.
Any excess payment shall be refunded and any deficiency shall be repaid.
Article 16 Any enterprise with foreign investment and any establishment
or place set up in China by a foreign enterprise to engage in production
or business operations shall file its quarterly provisional income tax return
in respect of advance payments with the local tax authorities within the
period for each advance payment of tax, and it shall file an annual income tax return together with the final accounting statements within four months from
the end of the tax year.
Article 17 Any enterprise with foreign investment and any establishment
or place set up in China by a foreign enterprise to engage in production
or business operations shall report its financial and accounting systems
to the local tax authorities for reference. All accounting records must be complete
and accurate, with legitimate vouchers as the basis for entries. If the financial and accounting bases adopted by an enterprise with foreign investment and an establishment or a place set up in China by a foreign enterprise to engage in production or business operations contradict the relevant regulations on tax of the State Council, tax payment shall be
computed in accordance with the relevant regulations on tax of the State Council.
Article 18 When any enterprise with foreign investment goes into liquidation, and if the balance of its net assets or the balance of its remaining property after deduction of the enterprise's undistributed profit, various funds and liquidation expenses exceeds the enterprise's paidin
capital, the excess portion shall be liquidation income on which income tax shall
be paid in accordance with the provisions of this Law.
Article 19 Any foreign enterprise which has no establishment or place
in China but derives profit, interest, rental, royalty and other income from sources in China, or though it has an establishment or a place in China,
the said income is not effectively connected with such establishment or place,
shall pay an income tax of twenty percent on such income. For the payment of income tax in accordance with the provisions of the preceding paragraph, the income beneficiary shall be the taxpayer and
the payer shall be the withholding agent. The tax shall be withheld from the amount
of each payment by the payer. The withholding agent shall, within five days,
turn the amount of taxes withheld on each payment over to the State Treasury
and submit a withholding income tax return to the local tax authorities. Income tax shall be exempted or reduced on the following income: (1) the profit derived by a foreign investor from an enterprise with foreign investment shall be exempted from income tax; (2) income from interest on loans made to the Chinese government or Chinese State banks by international financial organizations shall be exempted
from income tax; (3) income from interest on loans made at a preferential interest rate
to Chinese State banks by foreign banks shall be exempted from income tax;
and (4) income tax of the royalty received for the supply of technical know-how in scientific research, exploitation of energy resources, development
of the communications industries, agricultural, forestry and animal husbandry production, and the development of important technologies may, upon approval
by the competent department for tax affairs under the State Council, be levied
at the reduced rate of ten percent. Where the technology supplied is advanced
or the terms are preferential, exemption from income tax may be allowed. Apart from the aforesaid provisions of this Article, if preferential treatment in respect of reduction of or exemption from income tax on profit, interest, rental, royalty and other income is required, it shall be regulated
by the State Council.
Article 20 The tax authorities shall have the right to inspect the financial, accounting and tax affairs of enterprises with foreign investment
and establishments or places set up in China by foreign enterprises to engage
in production or business operations, and have the right to inspect tax withholding of the withholding agent and its payment of the withheld tax into the
State Treasury. The entities and the withholding agents being so inspected must
report the facts and provide relevant information. They may not refuse to report
or conceal any facts.
When making an inspection, the tax officials shall produce their identity documents and be responsible for confidentiality.
Article 21 Income tax payable according to this Law shall be computed
in terms of Renminbi (RMB). Income in foreign currency shall be converted
into Renminbi according to the exchange rate quoted by the State exchange control authorities for purposes of tax payment.
Article 22 If any taxpayer fails to pay tax within the prescribed time limit, or if the withholding agent fails to turn over the tax withheld
within the prescribed time limit, the tax authorities shall, in addition to setting
a new time limit for tax payment, impose a surcharge for overdue payment,
equal to 0.2 percent of the overdue tax for each day in arrears, starting from
the first day the payment becomes overdue.
Article 23 The tax authorities shall set a new time limit for registration or submission of documents and may impose a fine of five thousand yuan
or less on any taxpayer or withholding agent which fails to go through tax registration or make a change or cancellation in registration with the tax authorities
within the prescribed time limit, or fails to submit income tax return, final accounting statements or withholding income tax return to the tax authorities within the prescribed time limit, or fails to report its financial and accounting systems to the tax authorities for reference. Where the tax authorities have set a new time limit for registration or submission of documents, they shall impose a fine of ten thousand yuan
or less on the taxpayer or withholding agent which again fails to meet the time
limit for going through registration or making a change in registration with
the tax authorities, or for submitting income tax return, final accounting statements
or withholding income tax return to the tax authorities. Where the circumstances are serious, the legal representative and the person directly responsible
shall be investigated for criminal responsibility by applying mutatis mutandis
the provisions of Article 121 of the Criminal Law.
Article 24 Where the withholding agent fails to fulfil its obligation
to withhold tax as provided in this Law, and does not withhold or withholds
an amount less than that should have been withheld, the tax authorities shall
set a time limit for the payment of the amount of tax that should have been
withheld, and may impose a fine up to but not exceeding one hundred percent of the
amount of tax that should have been withheld.
Where the withholding agent fails to turn the tax withheld over to the
State Treasury within the prescribed time limit, the tax authorities shall set
a time limit for turning over the taxes and may impose a fine of five thousand
yuan or less on the withholding agent; if the withholding agent fails to meet
the time limit again, the tax authorities shall pursue the taxes according to law
and may impose a fine of ten thousand yuan or less on the withholding agent. If
the circumstances are serious, the legal representative and the person directly responsible shall be investigated for criminal responsibility by applying mutatis mutandis the provisions of Article 121 of the Criminal Law.
Article 25 Where any person evades tax by deception or concealment or
fails to pay tax within the time limit prescribed by this Law and, after the
tax authorities pursued the payment of tax, fails again to pay it within the prescribed time limit, the tax authorities shall, in addition to recovering
the tax which should have been paid, impose a fine up to but not exceeding
five hundred percent of the amount of tax which should have been paid. Where
the circumstances are serious, the legal representative and the person directly responsible shall be investigated for criminal responsibility in accordance
with the provisions of Article 121 of the Criminal Law.
Article 26 Any enterprise with foreign investment, foreign enterprise
or withholding agent, in case of a dispute with the tax authorities on payment
of tax, must pay tax according to the relevant regulations first. Thereafter,
the taxpayer or withholding agent may, within sixty days from the date of
receipt of the tax payment certificate issued by the tax authorities, apply to the
tax authorities at the next higher level for reconsideration. The higher tax authorities shall make a decision within sixty days after receipt of the application for reconsideration. If the taxpayer or withholding agent
is not satisfied with the decision, it may institute legal proceedings in the
people's court within fifteen days from the date of receipt of the notification
on decision made after reconsideration.
If the party concerned is not satisfied with the decision on punishment
by the tax authorities, it may, within fifteen days from the date of receipt
of the notification on punishment, apply for reconsideration to the tax authorities
at the next higher level than that which made the decision on punishment.
Where the party is not satisfied with the decision made after reconsideration, it
may institute legal proceedings in the people's court within fifteen days
from the date of receipt of the decision made after reconsideration. The party
concerned may, however, directly institute legal proceedings in the people's court
within fifteen days from the date of receipt of the notification on punishment.
If the party concerned neither applies for reconsideration to the higher tax authorities, nor institutes legal proceedings in the people's court within
the time limit, nor complies with the decision on punishment, the tax authorities which made the decision on punishment may apply to the people's court
for compulsory execution.
Article 27 Where any enterprise with foreign investment which was established before the promulgation of this Law would, in accordance with
the provisions of this Law, otherwise be subject to higher tax rates or enjoy
less preferential treatment of tax exemption or reduction than before the entry
into force of this Law, in respect to such enterprise, within its approved
period of operation, the law and relevant regulations of the State Council in effect before the entry into force of this Law shall apply. If any such enterprise
has no approved period of operation, the law and relevant regulations of the
State Council in effect before the entry into force of this Law shall apply
within the period prescribed by the State Council. Specific measures shall be drawn
up by the State Council.
Article 28 Where the provisions of a tax agreement concluded between
the government of the People's Republic of China and a foreign government
are different from the provisions of this Law, the provisions of the agreement
shall prevail.
Article 29 Rules for implementation shall be formulated by the State Council in accordance with this Law.
Article 30 This Law shall enter into force on July 1, 1991. The Income
Tax Law of the People's Republic of China for ChineseForeign Equity Joint
Ventures and the Income Tax Law of the People's Republic of China for Foreign Enterprises shall be annulled as of the same date. |