Raymond Yeung Tax Consultant former Assessor of Inland Revenue Department 前稅局評稅主任楊輝洪

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Tax avoidance and tax evasion

The Inland Revenue Ordinance has the following provisions to counteract tax avoidance:-

(1) Section 61: The assessor may disregard any transaction that  is artificial or fictitious, or any disposition that is not  given effect to.  Press here for more

(2) Section 61A: It applies to any transaction having the sole or dominant purpose of enabling a person to obtain a tax benefit. This section empowers the Revenue to make an assessment as if the transaction had not been carried out or in such manner as to counteract the tax benefit.  Press here for more

(3) Section 61B:  It is to restrict the trafficking in loss companies for tax avoidance. To avoid tax,  a profitable company buys a company with accumulated tax losses, and then it injects profitable business into the loss company to absorb the losses. This section empowers the Revenue to deny setting off the losses brought forward if it is satisfied that the sole or dominant purpose of the purchase is to obtain a tax benefit. Press here for more 

(4) Section 9A: It is to combat tax avoidance scheme in which an employee disguised himself as an independent service provider ---  Press here for more 

(5) DIPN 24 (this is an administrative pronouncement only): It is to restrict deduction for management fee paid to a related company. The legal backing for the pronouncement is Section 16 that grants deduction to an expense only to the extent it is incurred in the production of assessable profits and Section 61 and 61A that concerns tax-avoidance schemes.  Press here for more 

(6) Section 20: It is to combat tax avoidance scheme involving pricing arrangements with non-residents ---  Press here for more

(7) Section 16(2): It is to combat tax avoidance involving payment of interest.  Press here for more 

(8) Section 39E: It is mainly to deny depreciation allowance on plant and machinery under certain lease arrangements including sale and lease back, machinery transferred to a permanent establishment in mainland China and leasing of assets financed by non-recourse debt.

On this topic, I would like to offer the following advice:-
  1. Do not make a simplistic and blatant tax avoidance scheme.
  2. Disclose all the required information to the Revenue in accordance with the law.
  3. Make full use of the tax exemptions and relief available in the tax law.
  4. Consult a tax consultant or a lawyer before you decide a big financial deal.

 

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