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Salaries Tax - Disguised Employment

Section 9A of Inland Revenue Ordinance is to combat avoidance arrangements involving the use of service companies to disguise what are in substance master-and-servant employment relationships. It provides that if a “relevant person” pays remuneration for services rendered by a “relevant individual” to a limited company controlled by that individual, the remuneration is deemed to be employment income and assessed as such on that individual.

The use of service companies is to take advantage of the less stringent expenses deduction under Profits Tax vis-à-vis that under Salaries Tax. Under profits tax, in general expenses are deductible to the extent they are incurred in the production of profits. But under salaries tax, expenses are generally not deductible unless they satisfy the stringent conditions of Section 12(1)(a): they are not of a domestic, private or capital nature, and they are wholly, exclusively and necessarily incurred in the production of assessable income.

Section 9A applies if the following conditions exists:
(a) The relevant person carries on a trade, a profession or a business, or a prescribed activity;
(b) The relevant person enters into an agreement with the relevant individual for the services carried out by the relevant individual. The agreement may be in writing or implied; and
(c) Under the agreement, remuneration for such services is paid to a “service company” which is under the control of the relevant individual.

A prescribed activity under (a) is one prescribed in the Gazette by the Revenue under Section 9A(6). So far, the has been no such prescribed activity.

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