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  1. 2010年第08期 08 2010 Newsletter 江苏锦程律师事务所King’s Wisdom Law Office

  2. 目 录 ◆本刊特稿 *加强非居民企业股权转让所得企业所得税管理 * 外企注册资本三千万元人民币可冠名“中国” * 省内换工作医保能“带着走”了 ◆案例分析 * 谁应为学生实习期间的伤害事故负责? ◆实务问答 1.今年中秋和国庆放假是怎么规定的? 2.未订立劳动合同终止劳动关系是否有经济补偿金? 3.公司把年休假分段安排合法吗? 4.婚假如何规定?是否包含双休日、法定节假日? 5.什么是竞业禁止? 竞业禁止期间的补偿金应当如何发放? ◆新法速递 *江苏养老险缴费工资下限提至1794元 *最高法就审理外商投资企业纠纷案件出台司法解释 *示范城市离岸服务外包业务免征营业税 *四省市试点出口收入存放境外 CATALOGUE ◆Special Manuscript *The State Administration of Taxation on Strengthening Administration of Enterprise Income Tax on Non-Resident Enterprises' Equity Transfer Income *As long as the Registered Capital of Foreign-funded Enterprise could Reach 30 Million, “China” can be Used as part of Its Name * When Changing Job in Jiangsu Province, Medical Insurance can be Taken Away ◆Analysis of Case *Which Party should Assume Responsibilities for Student’s Injuries Happening during Practice Period? ◆ Practice of Labor Laws 1. How to Arrange the Mid-autumn Festival and National Day of 2010? 2. Should an Employer Pay Economic Compensation to an Employee without Written Employment Contract after Expiring Labor Relationship? 3. Whether can Annual Leave be Arranged at Different Period or not? 4. How to Stipulate the Marriage Leave? Whether Two-day Weekend and Legal Holidays are Included in? 5. What is the Meaning of Competition Restriction? How to Pay Financial Compensation during the Period of Competition Restriction? ◆New Laws and Regulations Express * The Minimum Wage for Contributing Endowment Insurance of Jiangsu has been Increased to RMB 1,794 * Judicial Interpretations has been Issued by the Supreme People’s Court on the Trial of Disputes Involving Foreign-Funded Enterprises * Off-shore Outsourcing Service in Model Cities to Be Exempted from Business Tax *Export Proceeds of Four Experimental Provinces and Cities has been Deposited outside Borders

  3. 刊 特 稿 Special Manuscript 国税总局加强非居民企业股权转让所得企业所得税管理The State Administration of Taxation on Strengthening Administration of Enterprise Income Tax on Non-Resident Enterprises' Equity Transfer Income 国税总局于2009年发布了《关于加强非居民企业股权转让所得企业所得税管理的通知》(即国税函〔2009〕698号),近期各地主管税务部门已开始全面核查。现对该通知解读如下: The State Administration of Taxation has promulgated the Notice on Strengthening Administration of Enterprise Income Tax on Non-Resident Enterprises’ Equity Transfer Income, namely Guo Shui Han [2009] 698 Hao and recently Competent Taxation Administrations at different localities have began comprehensive inspection. Now we hereby explain the Notice as follows: • 一、本通知所称股权转让所得是指非居民企业转让中国居民企业的股权(不包括股票)所取得的所得。 The equity transfer income herein refers to the income made by non-resident enterprises transferring the equity of Chinese resident enterprises (exclusive of stocks). 非居民企业:指依照外国(地区)法律、法规成立且实际管理机构不在中国境内,但在中国境内设立机构、场所的,或者在中国境内未设立机构场所,但有来源于中国境内所得的企业。 The term “non-resident enterprises” shall refer to Enterprises that are set up in accordance with the law of the foreign country (region) whose actual administration institution is outside China, but they have set up institutions or establishments in China or they have income originating from China without setting up institutions or establishments in China. King’s Wisdom Law Office www.kwlawyers.com.cn

  4. 刊 特 稿 Special Manuscript • 二、股权转让所得是指股权转让价减除股权成本价后的差额。 Equity transfer income herein refers to the balance of the equity transfer price deducted the equity cost price. 如被持股企业有未分配利润或税后提存的各项基金等,随股权一并转让留存收益权的金额,不得从股权转让价中扣除。为了降低税负,企业在实际进行股权转让时,可以考虑对有关留存收益先进行分配,再按照分配以后的股权作价转让。 If the share-held enterprise has the profits that has not been distributed or funds drawn after taxation and the amount an equity transferor transfers to which the shareholder owns the earning right shall not be deducted from the equity transfer price. Therefore in order to lower tax burden, enterprises can consider distributing relevant retained earnings firstly when actually transferring equity and then transferring the distributed equity at a price. • 三、由于间接转让中国居民企业股权可能存在不合理的避税安排,文件明确要求,境外投资方(实际控制方)通过滥用组织形式等安排间接转让中国居民企业股权,且不具有合理的商业目的,规避企业所得税纳税义务的,主管税务机关层报税务总局审核后可以按照经济实质对该股权转让交易重新定性,否定被用作税收安排的境外控股公司的存在。 Because there may be unreasonable tax avoidance when transferring equity of Chinese resident enterprises indirectly, the Notice clearly demands that in case an overseas investor (actually controller) makes indirect transfer of the equity of a Chinese resident enterprise in the forms including abusing organization without reasonable commercial purpose to dodge the obligation of paying enterprise income tax, the competent taxation administration may reconfirm the quality of the equity transfer trading in accordance with the economic substance after reporting to the State Administration of Taxation for the examination and approval to negate the existence of the overseas holding company serving as taxpayer. King’s Wisdom Law Office www.kwlawyers.com.cn

  5. 刊 特 稿 Special Manuscript • 四、非居民企业向其关联方转让中国居民企业股权,其转让价格不符合独立交易原则而减少应纳税所得额的,税务机关有权按照合理方法进行调整。 In case a non-resident enterprise transfer the equity of a Chinese resident enterprise to its related party but the transfer price is disqualified for the principle of independent trading with due taxable income lessened, the taxation organ has the right to make adjustments in accordance with reasonable approaches 所谓独立交易原则:是指没有关联关系的交易各方,按照公平成交价格和营业常规进行业务往来遵循的原则。即完全独立的无关联关系的企业或者个人,依据市场条件下所采用的计价标准或者价格来处理其相互之间的收入和费用分配的原则。 The term “principle of independent trading” means the principle that there is no incidence relation among parties and parties run the business according to fair knockdown price and business regulation, namely the principle that absolutely independent enterprises or individuals without any incidence relation deal with the income and cost distribution pursuant to the figure standard or price under market conditions. King’s Wisdom Law Office www.kwlawyers.com.cn

  6. 刊 特 稿 Special Manuscript 外企注册资本三千万元人民币可冠名“中国”As long as the Registered Capital of Foreign-funded Enterprise could Reach 30 Million RMB, “China” can be Used as part of Its Name 国家工商总局近日出台了《进一步做好服务外商投资企业发展工作的若干意见》,现对其中亮点解读如下: Recently the State Administration for Industry and Commerce has issued Some Advice on Doing a Better Job in Serving the Development of Foreign-funded Enterprises and hereby we will interpret the most important points of this Advice as follows: • 鼓励外商投资现在化服务业和高新技术企业发展。对使用外国(地区)出资企 业字号的外商独资企业、外方控股的外商投资企业,注册资本达到3000万元人民币,从事现在服务业和高新技术产业的,可以在名称中间使用“(中国)”字样。此前是要求注册资本不少于5000万元人民币。 Encouraging foreign-funded modern service industry and the development of High-tech enterprises. To those solely foreign-funded enterprises and foreign-funded enterprises controlled by foreigner or foreign companies who use the name of foreign company making the investment as their own name, as long as their registered capital can reach 30 million RMB and they are engaged in modern service industry and High-tech industry, “China” can be used as part of their name. The registered capital was stipulated not less than 50 million RMB before the Advice coming out. King’s Wisdom Law Office www.kwlawyers.com.cn

  7. 刊 特 稿 Special Manuscript • 规范外商投资企业的出资行为。对已缴付首期注册资本,无违法记录,因资金暂时紧张无法按时出资的外商投资企业申请延长出资期限的,经审批部门批准,可办理出资期限变更登记。 Regulating capital contribution of foreign-funded enterprises. To those foreign-funded enterprises without illegal record who has contributed first part capital and could not contribute the remaining capital on time due to temporal financial strain, in case they apply for extending the period of contributing capital, the capital contribution period can be extended after approved by relevant department. • 工商部门在登记中严格把好市场主体准入关。积极支持外商投资鼓励类产业,对国家限制和禁止外商投资的项目,一律不予登记。依法纠正外商投资企业擅自从事限制类产业的行为,坚持取缔任何从事禁止类产业的外商投资企业,坚决查处外商投资企业违反国家利用外资产业政策的行为,逐步淘汰落后的外商投资企业。 Industry and Commerce Department should check on the admittance of main market players during the registration procedures strictly. Supporting foreign-funded industries in encouraged category actively and forbidding the projects restricted or prohibited by nation being registered. Correcting the behavior engaging in the industries in restricted category without permission conducted by foreign-funded enterprises legally, banning on the foreign-funded enterprises which are engaged in the industries in prohibition category insistently, investigating and punishing the behaviors violating national policies on utilization of foreign-funded industries made by foreign-funded enterprises resolutely and eliminating unenlightened foreign-funded enterprises. King’s Wisdom Law Office www.kwlawyers.com.cn

  8. 刊 特 稿 Special Manuscript 省内换工作医保能“带着走”了 When Changing Job in Jiangsu Province, Medical Insurance can be Taken Away • 跳槽到省内其他城市工作的劳动者,终于可以带着自己的医保关系走了。热议了大半年的“医保关系转移接续”问题,有了最新进展。省人力资源和社会保障厅等部门于8月26日联合下发通知,江苏省流动就业人员医疗保障关系转移接续办法即日起开始实施,先期实现省内转移接续。 Those employees who change their jobs from one city to another city in Jiangsu Province can take their medical insurance away. The theme on the transfer and connection of medical insurance relationship has made new progress. Human Resource and Social Security Department of Jiangsu and other relevant departments jointly issued notification on Aug 26, 2010 to declare that the Measures for Transferring and Connecting Floating Employees’ Medical Security Relationship of Jiangsu Province would take into effect from that day and the transfer and connection of employees’ medical insurance relationship have been achieved firstly. • 这意味着,参加城镇职工医保的流动就业人员(包括被用人单位调动到外地工作的员工,找到更好的就业机会的跳槽者,以及到处打工的农民工等),在省内各城市间流动就业时,可以将原就业地的职工医保关系连同个人账户里的钱一并转到新就业地,其转出地的参保年限,转入地将予以承认。参保(合)凭证由国家统一设计,身份证号码是参保人员的唯一识别码。 It means when those floating employees who have attended urban employees medical insurance, including the employees who are transferred to another city by employers, the employees who have find a better job and peasant-workers, change their jobs from one city to another city, they can transfer their medical insurance relationship to new city with the money in individual medical insurance account and the total years used for calculating how long the employees have attended the medical insurance also will be admitted by new city. The certificate proving attending medical insurance will be designed by nation and personal ID number will become exclusive ID code. King’s Wisdom Law Office www.kwlawyers.com.cn

  9. 例 分 析 Case Analysis 谁应为学生实习期间的伤害事故负责?Which Party should Assume Responsibilities for Student’s Injuries Happening during Practice Period? • 案情简介:Details of Case 小王是某职业学校的学生,暑假期间学校安排推荐小王到某汽修厂实习。在单位上班时,小王被驾驶员刘某倒车时撞伤,他随即被送往医院救治。小王的受伤被认定为属于工伤性质,并被鉴定为伤残等级七级。 Wang was one of students of School A and during the summer vacation, School A recommended Wang to Company B to do practice. When working in Company B, Wang was knocked by Company B’s car and finally the injury of Wang had been determined as work-related injury and the grade of body impairment was 7th class. 小王以要求职业学校支付其工伤待遇为由,向劳动争议仲裁委申请劳动仲裁。劳动争议仲裁委以双方未形成劳动关系,该争议不属于劳动争议为由决定终止审理。 Wang applied to Labor Dispute Arbitration Commission for claiming work-related injury treatment to School A, however Labor Dispute Arbitration Commission considered there was no labor relationship between Wang and School A, so finally refusing Wang’s claims. 2个月后,小王向法院起诉,请求判令汽修厂、职业学校和驾驶员刘某赔偿其医药费、残疾赔偿金、误工费、精神抚慰金等共7万余元。 2 months later, Wang sued Company B, School A and driver to claim medical expenses, body impairment compensation, charges for loss of working time and mental injury compensation, totally amounting RMB 70,000. King’s Wisdom Law Office www.kwlawyers.com.cn

  10. 例 分 析 Case Analysis • 各方意见:Opinions of Parties 在法院审查中,汽修厂认为,驾驶员刘某倒车符合操作规范,小王受伤是因其违反作业规则所致,应自行承担损害后果。同时,职业学校未尽到组织、管理义务,应承担相应的赔偿责任。 During the court hearing, Company B considered that driver’s operation was correct and the reason for Wang’s injury is Wang’s own faults, therefore relevant responsibilities shall be borne by Wang. Meanwhile, because School A had not performed its management obligations completely, it also should bear some liabilities. 而职业学校认为,职业学校与小王存在教育合同关系,可学校并非侵权行为人,所以学校没有赔偿义务。 School A considered that School A had not infringed on Wang’s any rights, therefore it should not assume any liabilities. 驾驶员刘某认为自己对损害发生并无过错,所以不承担责任。 Driver considered that he had not made any faults, so he should not bear any responsibilities. • 法院判决:Awards of Court 最后法院判决认为,小王基于学校的安排到汽修厂实习,是其课堂教学内容的延伸。小王与汽修厂之间无劳动关系,也未建立实质意义上的劳动者与用人单位间的身份隶属关系,双方的权利义务不受劳动法的调整。小王在实习单位虽然是因实习受伤,但不能享受工伤待遇,其所受损害应按一般民事侵权纠纷处理。据此,汽修厂向小王赔付人身损害赔偿金4万余元。 Court finally considered that Wang’s practice in Company B only could be regarded as the extension of education, so there was no labor relationship between Wang and School A and the relationship between Wang and School A could not be governed by labor laws. Although Wang suffered from injury during the practice period, it could not be deemed as work-related injury and this case only could be regarded as civil tort dispute. At last the court ruled Company B should pay RMB 40,000 to Wang as body impairment compensation. King’s Wisdom Law Office www.kwlawyers.com.cn

  11. 例 分 析 Case Analysis • 律师分析:Analysis of Attorney • 本案焦点:谁应对学习期间发生的伤害事故承担责任以及应承担何种责任? • Focus of this case: which party should assume responsibilities for student’s injuries happening during practice period and which kind of responsibilities should be assumed? 劳动者获得工伤赔偿的前提是劳动者与用人单位之间形成劳动关系。我国法律对在校实习生与实习单位直接的关系还没有作出专门的规定。根据认定劳动关系的几个标准来看,实习生与实习单位严格意义上不存在劳动关系。原劳动部《关于贯彻执行<劳动法>若干问题的意见》第十二条明确规定,“在校生利用业余时间勤工助学,不视为就业,未建立劳动关系”。小王作为实习的在校学生,不属于《工伤保险条例》中所称的“职工”,不能通过工伤赔偿来获得救济,只能依据教育部的《学生伤害事故处理办法》以及《民法通则》及相关司法解释的规定,按照一般人身侵权向汽修厂和学校主张权利。 In case an employee wants to acquire compensation for work-related injury, the premise is there is labor relationship between an employee and an employer. The laws of PRC still have not stipulated the nature of the relationship between students and practice enterprise. According to the standards for determining labor relationship, there is no labor relationship between students and practice enterprise. Article 12 of Opinions of Original Labor Ministry on Several Issues concerning the Implementation of Labor Law stipulates that taking a part-time job while studying at school should not be regarded as employment and there is no labor relationship. In this case, Wang is not the employee stipulated by Work-related Injury Insurance Regulation as student, so he cannot acquire compensation in the name of work-related injury and he only can claim civil tort pursuant to Measures for the Handling of Student Injury Accidents, General Principles of the Civil Law and other judicial interpretations to Company B and School A. King’s Wisdom Law Office www.kwlawyers.com.cn

  12. 务 问 答 Practice of Labor Laws 1、今年中秋和国庆放假是怎么规定的?How to Arrange the Mid-autumn Festival and National Day of 2010? • 根据《国务院办公厅关于2010年部分节假日安排的通知》,今年中秋节放假日期为9月22日至24日,9月19日(星期日)、25日(星期六)上班;国庆节放假日期为10月1日至7日,9月26日(星期日)、10月9日(星期六)上班。 According to the Notification of General Office of the State Council on the Arrangement of Part of Holidays of 2010, the period for Mid-autumn Festival will be from Sept 22 to Sept 24 and Sept 19 (Saturday) and Sept 25 (Sunday) still should go to work; and the period for National Day will be from Oct 1 to Oct 7 and Sept 26 (Sunday) and Oct 9 (Saturday) still should go to work. King’s Wisdom Law Office www.kwlawyers.com.cn

  13. 务 问 答 Practice of Labor Laws 2、未订立劳动合同终止劳动关系是否有经济补偿金? Should an Employer Pay Economic Compensation to an Employee without Written Employment Contract after Expiring Labor Relationship? • 根据《劳动合同法》的相关规定,用人单位自用工之日起即与劳动者建立劳动关系。用人单位自用工之日起超过一个月不满一年未与劳动者订立书面劳动合同的,应当向劳动者每月支付二倍的工资,并与劳动者补订书面劳动合同;劳动者不与用人单位订立书面劳动合同的,用人单位应当书面通知劳动者终止劳动关系,并依照劳动者在本单位工作的年限支付经济补偿。 • According to relevant stipulation of Employment Contract Law, an Employer’s employment relationship with an Employee is established on the date it starts using the Employee. If an Employer concludes a written employment contract with an Employee more than one month but less than one year after the date on which it started using him, it shall each month pay to the Employee twice his wage and concludes a written employment contract. In case an Employee is not willing to conclude a written employment contract with an Employer, an Employer shall terminate the labor relationship with written notice and pay severance pay to an Employee according to the Employee’s working years. King’s Wisdom Law Office www.kwlawyers.com.cn

  14. 务 问 答 Practice of Labor Laws 3、公司把年休假分段安排合法吗?Whether can Annual Leave be Arranged at Different Period? • 根据年休假的有关规定,单位根据生产、工作的具体情况,并考虑职工本人意愿,统筹安排职工年休假,天数根据职工累计工作时间确定,在1个年度内可以集中安排,也可以分段安排。 • According to relevant legal statutes, an employer may, in light of the actual production and work situation, plan the annual leave of its employees as a whole on the basis of employees’ own wills and the days of an employee’s annual leave shall be confirmed according to his accumulative working time and an employer can either arrange all days of annual leave at the same time or arrange all days of annual leave at different period. King’s Wisdom Law Office www.kwlawyers.com.cn

  15. 务 问 答 Practice of Labor Laws 4、婚假如何规定?是否包含双休日、法定节假日?How to stipulate the marriage leave? Whether two-day weekendand legal holidays are included in? • 根据《婚姻法》以及《计划生育条例》的规定,按法定结婚年龄(女20周岁,男22周岁)结婚的,可享受3 天婚假。符合晚婚年龄(女23周岁,男25周岁)的,延长婚假十天。再婚的可享受法定婚假,不能享受晚婚假。婚假假期连续计算,包含双休日、法定节假日,遇到双休日、法定假日不顺延。 • According to relevant regulations of Marriage Law and Family Planning Regulation, if a person gets married in legal age (female is 20 years old and male is 22 years old), he/she can enjoy 3 days’ marriage leave. In case in accordance with late marriage age (female is 23 years old and male is 25 years old), the marriage leave can be extended 10 days. The person who gets married again can enjoy legal marriage leave other than late marriage leave. The marriage leave shall be calculated continuously, including two-day weekend and legal holidays. King’s Wisdom Law Office www.kwlawyers.com.cn

  16. 务 问 答 Practice of Labor Laws 5、什么是竞业禁止?竞业禁止期间的补偿金应当如何发放? What is the meaning of competition restriction? How to pay financial compensation during the period of competition restriction? • 根据《劳动合同法》的有关规定,竞业禁止是指在解除或者终止劳动合同后,负有保密义务的劳动者不得到与本单位生产或者经营同类产品、从事同类业务的有竞争关系的其他用人单位,也不得自己开业生产或者经营同类产品、从事同类业务。若劳动者履行竞业禁止义务,用人单位应当向劳动者支付经济补偿,年经济补偿额不得低于该劳动者离开用人单位前十二个月从该用人单位获得的报酬总额的三分之一,同时,用人单位应当按月向劳动者支付经济补偿。 • According to relevant provisions of the Employment Contract Law of the PRC, competition restriction means after the termination or ending of the employment contract, an Employee who has a confidentiality obligation shall not work for a competing Employer that produces the same type of products or is engaged in the same type of business as his current Employer, and shall not in terms of his establishing his own business to produce the same type of products or engage in the same type of business. In case an Employee performs competition restriction, his Employer shall pay financial compensation to the Employee and the total amount of yearly financial compensation shall not less than one third of the Employee's total reward for the 12 months prior to leaving his Employer obtained from his Employer and the Employer shall pay the financial compensation on a monthly basis during the term of the competition restriction. King’s Wisdom Law Office www.kwlawyers.com.cn

  17. 法 速 递 New Laws and Regulations Express 江苏养老险缴费工资下限提至1794元The Minimum Wage for Contributing Endowment Insurance of Jiangsu has been Increased to RMB 1,794 • 近日,省人力资源和社会保障厅发布了2010年度社会保险有关基数,从今年9月1日起,我省在岗职工养老金缴费基数将上调。其中养老保险的月缴费工资的下限,从上年度的1583元提高至1794元,增加了211元,这意味着参保人每月至少要多缴16.88元保险费。失业、医疗、工伤和生育保险的缴费工资基数由各市确定。通常情况下,各地医疗、工伤、生育、失业等保险的缴费基数和待遇也参照这一标准。 • Recently, Human Resource and Social Security Ministry of Jiangsu Province has promulgated the payment base of social security of 2010 and clarified that the payment base of endowment insurance for workers at their posts shall be increased from Sept 1 of 2010. The minimum wage for contributing endowment insurance will be increased from RMB 1,583 per month to RMB 1,794 and it means every person who attends the endowment insurance should contribute extra RMB 16.88 per month as insurance premium. The payment base of unemployment insurance, medical insurance, work-related injury insurance and maternity insurance shall be confirmed by every city. In normal conditions, the payment base of unemployment insurance, medical insurance, work-related injury insurance and maternity insurance always will refer to the standard of endowment insurance as reference. King’s Wisdom Law Office www.kwlawyers.com.cn

  18. 法 速 递 New Laws and Regulations Express 最高法就审理外商投资企业纠纷案件出台司法解释Judicial Interpretations has been Issued by the Supreme People’s Court on the Trial of Disputes Involving Foreign-Funded Enterprises • 最高人民法院公布了《最高人民法院关于审理外商投资企业纠纷案件若干问题的规定》,自2010年8月16日起施行。 根据《规定》,当事人在外商投资企业设立、变更等过程中订立的合同,依相关法规的规定应当经外商投资企业审批机关批准后才生效的,自批准之日起生效;未经批准的,法院应当认定该合同未生效。当事人请求确认该合同无效的,法院不予支持。《规定》还明确规定了认定外商投资企业股东出资责任的规则,规定对于出资股东已将标的物实际交付使用,而未办理登记手续的,出资股东如果在法院指定的期限内办理了登记手续,应认定履行了出资义务。 • The Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Disputes Involving Foreign-Invested Enterprises (I) have been promulgated by the Supreme People's Court and will come into effect as of August 16, 2010. According to these Provisions, if a contract concluded between the parties during the establishment or change of a foreign-invested enterprise shall, pursuant to the relevant regulations, become effective after being approved by the competent approval authorities, the contract shall take effect as from the date of approval. If it fails to be approved, the court shall hold that it has not taken effect and reject a party's request for recognizing its invalidity. The Provisions also specify the rules for determining the capital contribution obligations of shareholders of a foreign-invested enterprise. According to the Provisions, if a shareholder has delivered the property contributed but has not undertaken registration formalities, the court shall recognize its performance of the capital contribution obligations as long as the registration formalities have been completed within the period prescribed by the court. King’s Wisdom Law Office www.kwlawyers.com.cn

  19. 法 速 递 New Laws and Regulations Express 示范城市离岸服务外包业务免征营业税Off-shore Outsourcing Service in Model Cities to Be Exempted from Business Tax • 日前,财政部、国家税务总局、商务部联合发布《关于示范城市离岸服务外包业务免征营业税的通知》。自2010年7月1日起至2013年12月31日,对注册在北京、上海、南京、苏州、无锡、广州等21个中国服务外包示范城市的企业从事离岸服务外包业务取得的收入免征营业税。2010年7月1日至《通知》到达之日已征的应予免征的营业税税额,在纳税人以后的应纳营业税税额中抵减,在2010年内抵减不完的予以退税。《通知》还明确了享受免税的服务外包业务具体范围,包括信息技术外包服务(ITO)、技术性业务流程外包服务(BPO)和技术性知识流程外包服务(KPO)。 • According to the Circular on Exempting Business Tax on the Offshore Outsourcing Service in Model Cities (Circular) jointly promulgated by the Ministry of Finance, State Administration of Taxation and the Ministry of Commerce, from July 1, 2010 to December 31, 2013, the income from offshore outsourcing service provided by enterprises registered in 21 China Model Outsourcing Service Cities, including Beijing, Shanghai, Nanjing, Suzhou, Wuxi and Guangzhou, will be exempted from business tax. The amount of business tax exemptible of a taxpayer from July 1, 2010 to the date when the Circular is served will be deducted from the amount of business tax payable by the taxpayer. If such exemptible amount cannot be deducted within the year 2010 in full, the balance should be refunded to the taxpayer. The Circular also specifies the scope of service outsourcing business entitled to tax exemption, which includes information technology outsourcing (ITO), business process outsourcing (BPO) and knowledge process outsourcing (KPO). King’s Wisdom Law Office www.kwlawyers.com.cn

  20. 法 速 递 New Laws and Regulations Express 四省市试点出口收入存放境外Export Proceeds of Four Experimental Provinces and Cities Depositing outside Borders • 近日,国家外汇管理局发布《货物贸易出口收入存放境外管理试点办法》,自10月1日起在北京、广东、山东、江苏四个地区开展出口收入存放境外政策试点,试点期限一年. 试点期间每个试点分局核定的试点企业总量不超过10家.试点企业存放境外出口收入的年度总额不得超过其上年度出口收入总额的一定比例.该比例由试点分局确定和调整.主要政策内容包括: • Recently, the State Administration of Foreign Exchange has promulgated the Experimental Measures for Management of Goods Trade Export Proceeds Depositing outside Borders. Beijing, Guangdong, Shandong and Jiangsu has been confirmed as four experimental provinces and cities to implement the policy of export proceeds depositing outside borders and the term will be one year. During the experimental period, the experimental enterprises of every experimental province and city should not exceed 10 and the total annual amount of the export proceeds depositing outside borders of experimental enterprise should not exceed relevant proportion of the total income of last year of experimental enterprise. The proportion shall be confirmed and adjusted by some bureau. The main content of the policy is as follows: King’s Wisdom Law Office www.kwlawyers.com.cn

  21. 法 速 递 New Laws and Regulations Express • 境内企业将出口收入存放境外应当具备以下条件:(一)进出口规模较大,具有出口收入存放境外的真实需求;(二)财务状况良好;(三)近两年内无违反外汇管理规定行为;(四)诚信记录良好;(五)境内企业为企业集团的,应在境内有资金集中收付或集中管理的经验和条件。 In case the enterprise insider borders needs to deposit export proceeds outsider borders, it should meet the following conditions: (a) the scale for export and import is a bit large and it really need to deposit export proceeds outside borders; (b) good financial situation; (c) there is no the violation of foreign exchange management in the near two years; (d) good integrity record; (e) in case the enterprise insider borders is enterprise group, it shall possess the experience and condition on centralization of collection and management funds. • 该境外账户用于存放境内企业具有真实、合法交易背景的出口收入,并用于货物贸易和部分服务贸易对外支付,以及经外汇局核准或登记的资本项目对外支付。 The bank account outside borders shall be used for depositing true and legal export proceeds of the enterprise insider borders, for the payment of goods trade and part of service trade and for the payment of capital project approved or registered by foreign exchange bureau. King’s Wisdom Law Office www.kwlawyers.com.cn

  22. 法 速 递 New Laws and Regulations Express • 外汇局对境内企业存放境外资金总量实行规模管理;简化进出口核销、联网核查等业务操作,实行企业和银行事后报告制度;对境外账户收支实施非现场监测,对异常情况实施现场核查。 Foreign exchange bureau will carry out scale management to the total amount deposited outside borders, simplify the operation of export and import writing-off and on-line inspection, implement the system of reporting after fact to enterprise and bank and conduct off-site supervision to the bank account outside borders and field monitoring to abnormal situation. • 境内企业可以根据自身经营需要将存放境外资金调回境内经常项目外汇账户或关闭境外账户,并应当保留与境外账户收支相关的交易合同、凭证等文件资料五年备查。 The enterprise inside borders can shunt the funds deposited outside borders back to the regular foreign exchange bank account inside borders or close the bank account outside borders according to its business situation and should keep the contracts, receipts related to the bank account outside borders for 5 years for future reference. • 具有对外贸易经营权的个人与保税监管区域内企业不适用该办法。 The Measures should not be applied to the person who is entitled to be engaged in foreign trade and the enterprise in tariff-free zone. King’s Wisdom Law Office www.kwlawyers.com.cn

  23. 江苏锦程律师事务所 King’s Wisdom Law Office bill@kwlawyers.com.cn