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

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Salaries Tax - Pensions

Under Section 8(1) of the Inland Revenue Ordinance, pension arising in Hong Kong is chargeable to salaries tax.

No definition of “pension” is made in IRO. So, the Literal Rule applies so that its ordinary meaning will be adopted. In short, pension is a periodical payment to a person in consideration of his past services.

Section 9(3) extends the charge to cover a pension which is voluntary or is capable of being discontinued. This provision was to overcome the decision in Stedeford v. Beloe 16 TC 505 in which pension was held to be excluding voluntary payments.

Like employment income, only the pension arising in or derived from Hong Kong is assessable. This follows that we have to determine the location of the source of the pension. From case law, the location of the fund from which the pension is paid is the decisive factor in determining whether the pension is arising in Hong Kong or not. But this does not mean that the place where the assets making up the fund determines the location of the pension. In fact, regard should be made to the place where the fund is managed and controlled. Normally, this is situated at the place of the business that employed the pensioner. But in some special cases, it can be located at the place where the trustee has power to control the fund.

As far as Hong Kong government pensioners are concerned, all the pension based on total length of service is chargeable to salaries tax, even though part of which is attributable to services done outside Hong Kong. In all other cases, the pension attributable to services outside Hong Kong is not taxable.

 

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