2010年后代表处仍是外资进入中国所青睐的商业形式吗?

推荐阅读：摘要：自2010年起，中国政府部门陆续出台了一系列关于外国企业常驻代表机构（简称为代表处）的规定，使得代表处在合规性与税收等方面受到了更加严格的监管。本文旨在通过对代表处有关法规出台前后的法律规制环境的介绍与比较，分析了在上述法规实施后，代表处

摘要：自2010年起，中国政府部门陆续出台了一系列关于外国企业常驻代表机构（简称为“代表处”）的规定，使得代表处在合规性与税收等方面受到了更加严格的监管。本文旨在通过对代表处有关法规出台前后的法律规制环境的介绍与比较，分析了在上述法规实施后，代表处是否仍然是外资进入中国的一种有效的、便捷的商业形式。虽然，代表处仍具有其它外商投资商业形式（如外商投资企业）所不具备的优势，如无资金要求、设立流程相对简单等，但日趋严格的监管、大幅提高的罚款金额、提升的合规要求以及增加的税负在一定程度上降低了代表处的可利用性和受欢迎程度。

关键词：外商投资 商业形式 外国企业常驻代表机构 法律法规变化

Abstract: Since 2010 the Chinese government has issued a series of rules governing representative office of forEign enterprise. As a result, representative offices have been facing more stringent regulation and oversight in China in terms of compliance and taxation. This essay introduces the legal regimes governing representative offices in China before and after the enactment of the aforesaid relevant rules and compares the tes in order to reflect the neent, the essay analyzes ent (such as foreign-invested enterprise) do not have, for example, absence of capital requirement and relatively simpler set-up formalities, the more stringent administration and supervision by the Chinese government, steeper fines, increased administrative and regulatory burden, and increased tax liabilities may make the representative office a somepanies that entbusiness structurerepresentative office of foreign enterpriseevolvement of laent in 1980, this business structure ore than three decades. It is reported that roughly over 100,000 rep offices has been established by foreign investors in China over the past decades. Due to the easy access to set-up, preferential tax treatment, absence of capital requirements and other advantages that other business structures, such as a ong foreign investors arket. Hoatically changed recently thanks to the effectiveness of a series of rules governing representative offices. The neore rigid regulation frameent, and increase compliance burden. As such, is a rep office still a favorable business structure for foreign investors? The author aims to address this question through legal analysis and case studies.

II. aking activities related to the foreign enterprise's business.

中国 As an extension of forEign enterprises, Representative Offices are a commonly used business vehicle for forEIgn investors dash;and are not alloe unless Chinese government otherent, absence of capital requirements and other advantages that other business structures, such as a ong foreign investors arket.

From the tax perspective, representative offices are generally subject to income tax and turnover tax in China. Tax exemption ethods and tax rates vary depending on the different activities that representative offices conduct (details are discussed beloinistration of Residence Representative Offices of Foreign enterprises (《关于管理外国企业常驻代表机构的暂行规定》) plating tapping into the Chinese market inistration of Industry and Commerce promulgated the Administrative Measures of the Registration of Residence Representative Offices of Foreign enterprises (《关于外国企业常驻代表机构登记管理办法》) in March 1983 e then, representative offices ent of a representative office must be approved by an appropriate government agency; registration of the establishment of the representative office must be completed pany of the representative office must present a bank reference letter to the agency ent in order to evidence its financial position; the representative office pany aximum residence term of the representative office ent, including financial services, insurance, legal services, telecommunication, and maritime transportation. Laent in those sectors ulgated at this period of time. Meanent loosened its regulation on representative offices to the extent that prior approval for the establishment of a representative office erely registration of the establishment plification of the regulatory procedures reflected the government’s attempt to attract more foreign investment. Hos, insurance companies, las, maritime transportation enterprises and air transportation enterprises are still subject to stringent regulation and oversight.

(II) Taxation of Representative Offices before 2010

IV. Tightened Regulation and Increased Tax Liabilities on Representative Office since 2010

(I) Tightened Regulation

By 2010, it ated that over 100, 000 representative offices had been set up in China. It any representative offices itted boundaries. Regulatory authorities inistration of Industry and Commerce (SAIC) teamed inistration of Registration of Foreign Enterprise Resident Representative Offices (“Representative Offices Circular”) (《进一步加强外国企业常驻代表机构登记管理的通知》), made several key changes that affected representative offices.

Subject to the aforesaid tore stringent administration and supervision by the Chinese government, and exposed to steeper fines, increased administrative and regulatory burden. Key points are summarized belopliance pliance of conducting profit-making activities, the penalties are as high as RMB500, 000.

• The Representative Office Registration Regulations provide that a Representative Office must have one chief representative, and may have one to three additional representatives as needed. Previously, there itation on the number of representatives that a representative office may have.

• In order to guarantee the creditability and stability of a representative office, the Representative Office Registration Regulations require that the forEign enterprise must have been in existence for tit annual reports to registration authority betation of the representative office. Given that previously there ents obviously increase the regulatory burden and administrative cost of operating a representative office.

• The Representative Office Registration Regulations establish a information sharing system among multiple government agencies, such as registration agencies, customs, public security bureaus, and tax bureaus. Registration agencies are directed to share information regarding representative offices ong different authorities ore stringent regulation.

Due to the limitation on the number of representatives that a representative office may have, one of clients had to restructure their business structures in China to keep their business in China compliant ents. The client had five representative offices ore than four representatives, and the representative office in Shanghai itself had a dozen of representatives. In order to maintain the ongoing business, the client decided to restructure their existing business structures by nepany and branches. Finally, the client closed doinistration and Increased Tax Liabilities

Six ent of the Representative Offices Circular, the State Administration of Taxation (SAT) issued the Provisional Measures for the Administration of Taxation of ForEign Enterprises' Resident Representative Offices (“Representative Office Tax Measures”) (《外国企业常驻代表机构税收管理暂行办法》) that effectively increase tax rates on representative offices and eliminate previously available tax exemptions. The Representative Office Tax Measures repeal previous tax rules regarding representative offices.

According to the Representative Office Tax Measures, representative offices are required to maintain complete accounting books and records and to exactly record the amount of taxable turnover. They are required to submit Enterprise Income Tax returns and Business Tax returns quarterly and to submit Value-Added Tax returns in accordance plementing rules.

Tax Calculation Methods

The Representative Office Tax Measures alloethods of calculating taxes oaintains complete accounting books and records, it should pay tax based on its actual amount of turnover (actual amount method).

If a Representative Office does not maintain complete accounting records and cannot accurately account for its turnover or costs but is able to accurately record its operating expenses, tax authorities have the right to determine taxable turnover based on the office's operating expenses (expense-based method).

If a Representative Office does not maintain complete accounting books and records and cannot provide an accurate accounting of its operating expenses but is able to accurately account for the office's turnover, authorities have the right to determine taxable turnover of the Representative Office based on its revenue (revenue-based method). Both the expense- and turnover-based methods of calculating taxes rely on the concept of a "deemed profit rate" that is calculated by the government based on the operating situation of Representative Offices across China as ic situation.

It is noteed profit rate from 10 percent to 15 percent. This increase in the deemed profit rate ethod—obviously a significant deterrent.

If, hoethods but later maintains complete accounting records and is able to accurately account for its taxable turnover, it can file petent tax authority and pay taxes under the actual amount method.

Tax Exemption Treatment For foreign investors that already have representative offices in China, if the business in China is expected to be groay consider restructuring their business structures by closing the representative offices and establishing ent and the like.

If foreign Investors continue their business in the form of representative offices, they must pay greater attention to issues of compliance. Actions to correct non-compliance are highly recommendable. Such actions include, but not limited to, ceasing any unallober of representatives to four or less, and checking ents have been met. From the tax perspective, foreign investors should examine ption under the neption should apply for approval as soon as possible. eet the neents for exemption, converting the representative office to a pany may be an alternative. References : [6] China’s Use of ForEign Investment in 2005, Guidance Book of Chinese Economy and Trade, from ForEIgn Investment Utilization Department, National Development and Reform Commission, Page 78, 2006 (30)

[7] 《外商投资参考手册》，著者王永平，广东出版社，2007

[8] Quantitative Analysis of the Correlation betent and Economic Groonth), 2010 (06), by Liu Shan [9] Thoughts on the Improvement of China’s System on Foreign Investment Entry in Finance Crisis [J], Intelligence, Issue 06, 2010, by Hu Xinlei

【】