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外国公司出售境内房地产之解决方法

[时间:2017/3/22 19:28:03  查看次数:119  作者:田杰律师  来源:原创]

上海涉外房产律师这是田杰律师最近在协助一家境外公司出售上海境内不动产时的经验总结。鉴于田律师目前的客户群体以外国客户为主,所以文章首先以英文写成(http://www.sinoblawg.com/wp-admin/post.php?post=2104&action=edit)。有兴趣的朋友,可以阅读一下。文章中的基本观点是,目前,2007年之前外国公司直接购买中国境内房地产的,该等外国公司房屋权利人在出售境内房地产时面临无法解决的困难:即该等外国公司在境内没有人民币账户,因此无法收取买房人支付的人民币房价款,而且即便授权股东或董事个人收取该等人民币房价款,依然面临无法购汇并汇出。这似乎是个目前无解的困境。但颇为滑稽的是,经咨询外汇管理局,上述通过外国公司的股东或董事个人账户收款并购汇汇出的做法是可行的,但实践中没有任何一家银行愿意如此执行。所以,目前可行的办法有:(1)有外国公司房屋权利人直接将房地产出售给外国人,并由该外古人在境外付款给外国公司,这是最为简单和直接的方式。但鉴于目前的房地产市场,外国人购房者几乎绝迹于市场了。(2)先将房地产出售给一个外国人个人(可以有该外国公司指定),而后再讲房地产出售给最终的买家。但这么做显然也存在一系列问题,但田律师认为,该等问题均是可以解决的。其中最大的问题在于,会让外国公司产权人凭空多支付很多税费,主要是指定的外国个人再行出让时会面临较高的所得税和增值税(因为不满两年,均按照房地产出售价格全家征收)。还有一个问题是,从外国公司转让给外国工人的过程中,毕竟要支付很多的税费,如土地增值税、增值税和企业所得税。然而,田律师经过测算,实践中对于税负增加的问题并非没有解决的办法,可以通过一定渠道帮助客户减少税负,并达到与直接出售给买方税负相当的水平。而支付税费的问题,在国内资金充足的情况下,采用过桥贷款等也并非难事。上海涉外律师,涉外房地产律师,上海房产律师,上海房地产律师。

There has been quite a few inquiries in the past from foreign companies that own properties in China (either residential or commercial) on how they can sell their China properties and then convert the sale proceeds into foreign hard currencies such as USD or Euros and take the same out of China.

I wrote a post regarding foreign corporate owners intending to sell their China properties:Issues related to sale of Chinese properties by foreign corporate owners.

I.  The Current Plight for Foreign Corporate Owners

I know those companies hate China a lot. They were somehow lured into purchasing China properties when China started real estate reforms and sold properties to foreigners, and they paid money to China developers (mostly state-owned companies) without knowing they would now end up with a big fortune and trouble. But when they want to cash in on those properties, they find themselves in a very difficult situation where they don't have a RMB bank account to receive sale proceeds which renders it impossible for them to sell their properties, and even if they can manage to receive the sale proceeds in RMB through a personal bank account, then they cannot convert the RMB money into USD or Euro and wire the money out of China. The reason is that no bank will have the guts to help to wire the money in a personal bank account to a corporate account because of possible repercussions from China foreign exchange authority, despite that there is a clear authorization from the foreign company to the individual to receive, convert and transfer the sale proceeds to overseas account in the foreign company's name and that the officials at China foreign exchange authority have indicated this route through personal bank account is ok.

The only good and simple way out of the predicament is to find a foreign buyer to buy the property, and this foreign buyer can pay foreign currency directly to the foreign company owner. But given the current property market condition in China, nobody but Chinese people only will be willing to spend millions of dollars to purchase properties in Shanghai, Shenzhen and Beijing, so this is good but virtually impossible solution indeed.

Feel cheated indeed? But sorry, you will have to figure out a way to get out of the trap yourselves.

II. Tax Burden of Direct Sale

So the foreign corporate owners have such problems as mentioned above, it seems that the only way out of the plight is to transfer the title to an individual who will then sell it and transfer the money out of China, as this route of receiving and taking money out of China by foreign individuals is so far smooth and without barriers.

This will entail two consecutive title transfers in a row:(1) from the foreign company to a nominated foreign individual, and  (2) from the nominee foreign individual to the real buyer. However the possible tax burden is daunting and many foreign corporate owners may not be willing to accept the huge economic loss of paying dual taxes.

To make readers clear about the tax burden, let me give you an illustration here. Assuming the foreign corporate owner bought the property at a price of RMB two million ten years ago, and now can sell it at a price of RMB 10 million.

1.  Taxes in a Direct Sale by the Foreign Company Owner

(1) Enterprise Income Tax: basically, the tax base is the difference of the sale and purchase prices, it is RMB 8 million in our hypo case. Tax rate applicable to foreign company (as opposite to companies incorporated within China) is 10%, which will lead to an income tax RMB 800,000;

(2) VAT Tax: basically, the tax base is the still the difference of the sale and purchase prices, and tax rate is 5.38%, so the VAT tax amount is RMB 430,400 (including VAT-affiliated taxes);

(3) Land VAT Tax: this is the most formidable tax burden that will snap up a substantial portion of the capital gain. The computing of the land VAT is complicated, and this is where leeway or manipulation can be made to help clients in reducing their tax burden.

Land VAT=Value Added Amount* LVAT rate

Value Added Amount is the difference of the sale price and the deduction items. Deduction items include:

  • Costs and expenses for land development;
  • Costs and expenses for construction of new buildings or the appraised price for old buildings;
  • Taxes related to the assignment of the real property;
  • Other deductions as determined by the Ministry of Finance.

An alternative way of calculating the deduction amount is the following formula:  original purchase price (1+5%*N)+deed tax paid at the time of purchase, in which N stands for the number of years from purchase to the sale now.

LVAT rates are four progressive rates, which are determined by reference to the ratio of Value-added Amount against the Deduction Amount.

No. Value Added Rate=Added Amount/Deduction Amount LVAT Rate Shortcut Deduction Rate
1 not more than 50% 30%  
2 more than 50%, not more than 100% 40% 5%
3 more than 100%, not more than 200% 50% 15%
4 more than 200% 60% 35%

(4) Property Tax: unlike the taxes listed above which are only levied upon transaction or title transfer, property tax is levied annually for holding property.

In Shanghai, the annual property tax = purchase price*80%*1.2%. I believe many of the foreign corporate owners have been delinquent in paying this tax. After all, they don't have any person to take care of this tax.

(5) Urban Land Use Tax: as in the case of property tax, this is a tax levied on holding properties in China.

Annual urban land use tax = area (sqm)*(1.5~30).

The area of land is generally indicated on the title deed of the property. For purpose of collection of this tax, land in a city is usually classified into different grades according to location, for example in Shanghai, land is divided into six classes. For first grade area, the urban land use right per square meter is RMB 30, and RMB 20 for grade two area......

(6) Stamp Duty: this is a simple tax calculated as sale price multiplied by 0.05%.

2. Taxes For Sale  from One Individual to Real Buyer

Assuming the nominated foreign individual owner sells the property immediately after the property title is transferred from the foreign company to him, then the seller will be subject to the following tax levies:

(1) Personal Income Tax: 2% of the sale price; this income tax may be calculated differently in other cities such as Beijing where this income is always calculated as 20% of the difference of sale and purchase prices.

(2) VAT Tax: 5.38% of the sale price

There are no other taxes involved in the sale of properties by individual owners. Given the taxes equal to 7.38% of the sale price, a 10 million sale price will result in the payment of RMB 738,000, which can be otherwise avoided in the direct sale.

III.  Way out of the Dilemma

Given the bank account problem faced by foreign corporate property owners, the two-transfer approach seems to be the inevitable way out of the dilemma despite the loss of the additional payment of taxes. Now if there is a way to reduce the tax burdens at either stages (first transfer or the second one), that will be definitely a big benefit.

That is not impossible. As mentioned, the land VAT arising in connection with the sale by the foreign corporate owner can be manipulated a bit to decrease the tax burden, which could well outnumber the amount of additional taxes arising from the second transfer from nominee.

田杰 律师
中国石油大学英语学士,华东政法大学法律硕士,曾在Clifford Chance上海代表处任高级翻译,在中伦上海分所和中银上海分所任专业房地产律师。现为北京大成(上海)律师事务所执业律师,主营房地产交易、投融资业务[详细]

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