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

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Salaries Tax - Separate employment contracts

Section 8(1) of Inland Revenue Ordinance levies tax on income from an employment in Hong Kong. From case law, an employment exists where there is a master and servant relationship in doing work. If the employment is in Hong Kong, all the income from the employment is taxable even though part of it is attributable to services outside Hong Kong.

It is very difficult for a person to convince the Revenue that he has separate employments with the same employer on the grounds that he has separate employment contracts: one for his work in Hong Kong and another for his work outside Hong Kong. This is because such artificial division of employment contracts will usually be regarded by the Revenue as a tax avoidance measure. In other words, the Revenue will strive to  impose tax on all the income from the same employer, whether or not part of such is from an employment contract with services outside Hong Kong.

If the taxpayer's employer is not a resident in Hong Kong, it is advisable for the taxpayer to arrange for his employer contract to be negotiated, signed and enforceable outside Hong Kong. It is also advisable to have the remuneration paid into a bank account outside Hong Kong. With all these arrangements, the taxpayer can argue that his employment is not in Hong Kong and so only the income attributable to his Hong Kong services taxable.

If the taxpayer is employed by a foreign company and he is required to work outside Hong Kong as well as work for an associated company in Hong Kong, then it is advisable for him to enter into two separate contracts of employment: one with his foreign employer for his work outside Hong Kong and one with the associated company in Hong Kong for his work in Hong Kong. As such, he can argue that they are indeed separate employments (2 different employers) and so only the income under the Hong Kong employment will be taxable.        

 

 

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