前稅局評稅主任楊輝洪 Qualifications

Raymond Yeung Tax Consultant former Assessor of Inland Revenue Department * Service charge $500/hr

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Profits Tax - Deemed assessable profits  

Section 14 of Inland Revenue Ordinance sets out the basic charge to profits tax. In addition, Section 15 deems the following to be taxable trading receipts in case Section 14 cannot bring the receipts to chargeable profits of a non-resident person / company  [ A non-resident is not generally chargeable to profits tax if he does not have a permanent establishment (i.e. fixed place of business) in Hong Kong. ]

(1)

Money received or receivable from the exhibition or use in Hong Kong of cinematography or television film or tape, any sound recording or any advertising materials connected with such film, tape, or recording [Section 15(1)(a)].

(2)

Money received or receivable for the use or right to use in Hong Kong a patent, design, trademark, copyright material or secret process or formula or other of a similar nature [Section 15(1)(b)].

(3)

Money received or receivable for the use or right to use outside Hong Kong a patent, design, trademark, copyright material or secret process or formula or other of a similar nature if the payment for such are deductible under profits tax.  [Section 15(1)(ba)]. This provision is to counteract the tax avoidance schemes following the decision of Emerson case.

(4)

Money received or receivable by or accrued to a person carrying on business in Hong Kong by way of grant, subsidy or similar financial assistance other than sums in connection with capital expenditure [Section 15(1)(c)].

(5)

Money received or receivable by way of hire, rental or similar charges for the use of movable property or the right to use movable property in Hong Kong [Section 15(1)(d)].

The deeming provisions of Section 15(1)(a), Section 15(1)(b) and Section 15(1)(b)(a) apply only where the transactions cannot be caught by the basic charge. In other words, they will not apply to those transactions that have already been assessable under Section 14. In general, they apply to non-residents who do not carry on a business in Hong Kong. Payments assessable includes lump sum payments or periodical payments. The assessable profits under these provisions are deemed to be 30% of the payment if the parties concerned are not related. If they are related (e.g. they are holding and subsidiary companies), then 100% of the payments are deemed to be the assessable profits of the non-resident company involved. 

The deeming provisions of Section 15(1)(c) and Section 15(1)(d) do not stipulate an assessable-profits rate. In other words, the actual net amounts received or receivable will be taken into the assessable profits. The deeming provision of Section 15(1)(c) concerns only those persons carrying on a trade or business in Hong Kong. However, the deeming provision of Section 15(1)(d) targets those persons who do not carry on a trade or business in Hong Kong.

 

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