Strategizing Multinational Tax Risks

Service fees & royalties: China’s SAT new (backward) focus

China’s State Administration of Taxation (SAT) issued an internal circular, instructing tax bureaus to review, and report, companies that have made large service fee or royalty payments between 2004 and 2013.  Tax bureaus will submit their findings to the SAT by September 15, 2014, followed by special investigations and potential tax adjustments.  The transfer pricing audit period is 10 years, thus the look-back period is within the statute of limitations.  The KPMG Tax Alert is provided for reference:

Click to access tp-china-aug25-2014.pdf

Key observations:

• SAT’s commentary to the UN in April 2014 sets forth stricter guidelines for payment and deductibility than the OECD guidelines suggest (i.e., if the beneficiary is not in need of such services or the provider also benefits, then benefit by the service recipient alone is not justification).
• Additionally, the SAT argues that the definition of shareholder services in the OECD Guidelines is too narrow.
• Payments made to “tax haven” jurisdictions will receive special attention.
• Economic substance in overseas entities will be reviewed.

Service fee and royalty payments are receiving global attention by tax authorities, although this retroactive review and narrow interpretation of deductible payments by the SAT will lead to additional assessments and the risk of double taxation going forward.  Multinationals should review transfer pricing documentation with respect to China, including the identification of any duplicative services as well as the benefits received from such services by major jurisdictions.