Home -> Law Blog Directory -> International Law Blogs -> China Law Blog

International Law

: China Law Blog

China: Don't Let The Tail Wag The Dog.

By Dan Harris and Steve Dickinson

Excellent post over at the China Tax Insight Blog, based largely on a couple of comments on this blog to which I had not yet gotten around to responding. The China Tax Insight post is entitled, "A Seeming Solution to the China PE problem" and it relates to businesses trying to avoid having to set up a presence in China for tax or other reasons. A few years ago, a pretty successful US based international company came to my firm regarding an ownership dispute regarding one of its overseas companies. This US based company is a mid-sized company (maybe USD$600 million or so a year in business) with on the ground operations in five countries. It had at least fifty companies and about ten companies relating to the particular country in which it was having the dispute. I asked them how things were working for them with so many companies and they said, "not well." Over the years, their accountants and lawyers had formed new companies as a solution for just about everything and now their situation was unwieldy and expensive. I asked if it was saving them money on their taxes and they said, they doubted it. We counseled them on what we thought they should do, which was to reduce their "empire," to six companies with one holding company. We did that for them and they thank us just about every time we see them. When small or start-up company comes to us with grand ideas for elaborate corporate structures to avoid taxes or liabilities, I become very skeptical their business will make it. The tail is wagging the dog for these people. Their initial focus should be on building a solid but simple corporate foundation and on making money. It should not be focused on acrobatic and expensive gyrations to avoid taxation on money that may never come in the door. That's sort of what Matthew over at China Tax Insight is saying as well. He starts out his post by saying how we wrote a post, entitled, "The China Representative Office (RO). Got WFOE?" on "the representative office problem in China" that did not raise any tax issues. He then notes the following comment left on our rep office post:

One of the thoughts was that not only would there be a flight to WOFE but that arrangements whereby foreign companies aren't carrying on business in China or don't have a permanent establishment for tax purposes will become more prevalent. On review, it may be be that foreign companies do not now require a presence in China and 'agency' or similar arrangements with Chinese companies may be sufficient.

Matthew then notes how the first sentence in this comment "only looks at the Chinese tax impact of a China investment," while completely ignoring how it ignores the overall tax rate, which will likely include the company's home country. As Matthew so nicely points out, the result of not setting up operations in China may result in little to no tax savings, while at the same time it will likely mean incurring the"risk of penalties and interest" from China. Matthew then comments on how the second sentence of this comment is even "more problematic in that it suggests an agency relationship can remove a permanent establishment risk." He then does a nice (and somewhat complicated) analysis of why this is not correct and points out how because the agent will need to make a profit too, such an arrangement will not usually make business sense either. I completely agree. I cannot tell you how many times people have come to me with convoluted schemes to avoid having to establish a WFOE or Joint Venture in China. Within about two minutes, I am usually explaining to them why their plan will end up costing them more in both the short term and the long term, and saddle them with much greater risk than if they just did things the right way. For another take on this issue, check out "The Fake China Joint Venture, Made Real Through Marriage?" The reality is that Chinese tax and company laws are quite sophisticated and the Chinese authorities generally understand (and do not appreciate) the various methods foreign companies try to employ to escape from Chinese taxes and jurisdiction. It is pretty much time for foreign companies from countries like the United States, Canada, Great Britain, and Australia (among others) to start thinking of China and its tax and company laws pretty much the same way they think of those laws in their own countries. What do you think?

Full post as published by China Law Blog on March 18, 2010 (boomark / email).