Territorial source principle of taxation
Hong Kong adopts a territorial source principle of taxation. Generally, only profits or income arising in or derived from Hong Kong are chargeable to tax in Hong Kong. As taxes are not levied based on a person’s domicile, residence or nationality, a Hong Kong resident may derive profits from abroad without being subject to tax in Hong Kong, and a non-resident of Hong Kong may be chargeable to tax on profits arising in Hong Kong.
The question of where the profits or income arise in, or are derived from, is a practical matter of fact. Whether profits or income arise in or are derived from Hong Kong depends on the nature of the profits or income and of the transactions or activities which give rise to such profits or income. To determine the locality of profits or income, the broad guiding principle is that one looks to see what the taxpayer has done to earn the profits in question and where he has done it. The place where the day-to-day decisions are made in relation to the taxpayer’s business or activities is only one of the factors to be considered and is usually not the deciding factor.
Salaries Tax is imposed on all income arising in or derived from Hong Kong from an office, employment or pension. It is necessary to identify where the employment is located in order to decide whether income arises in or is derived from Hong Kong. Such income includes all forms of income and benefits from employment such as awards of shares or options and rental value of a place of residence provided rent-free to the employee.
Salaries Tax is calculated at progressive rates from 2% to 17% on the net chargeable income or at the standard rate of 15% of the net income (ie, without allowances), whichever is lower.
A taxpayer assessed to Salaries Tax is entitled to a basic allowance. For the 2018/2019 year of assessment, the amount of basic allowance is HKD132,000. There are other allowances that may be claimed provided that the prescribed conditions as specified in the Inland Revenue Ordinance are satisfied. These include married person’s allowance, child allowance, dependent brother or dependent sister allowance, dependent parent and dependent grandparent allowance, single parent allowance, disabled dependant allowance and personal disability allowance.
Certain deductions are allowed such as donations paid to recognised charities, expenses of self-education paid on fees in connection with certain courses of education and/or examinations, and mandatory contributions paid to a mandatory provident fund scheme.
Persons, including corporations, partnerships, trustees and bodies of persons, carrying on any trade, profession or business in Hong Kong, are chargeable to tax on all profits (excluding profits arising from the sale of capital assets) arising in or derived from Hong Kong from such trade, profession or business. To determine whether the profits arise in or are derived from Hong Kong, one would need to identify the operations which produced the relevant profits and ascertain where those operations took place. The source of profits must be attributed to the operations of the taxpayer which produced them and not to the operations of other members of the taxpayer's group. A person who carries on a business in Hong Kong but derives profits from another place is not required to pay tax in Hong Kong on those profits.
For corporations, the Profits Tax rates are 8.25% on the first HKD2,000,000 of assessable profits and 16.5% on any part of assessable profits exceeding HKD2,000,000. For unincorporated businesses, the Profits Tax rates are 7.5% on the first HKD2,000,000 of assessable profits and 15% on any part of assessable profits exceeding HKD2,000,000.
All expenses are allowed as deductions to the extent to which they have been incurred by the taxpayer in generating chargeable profits. These include, for example, interest on funds borrowed, rent of buildings or land occupied for the purpose of producing the profits, bad and doubtful debts, repairs of premises, plant, machinery or articles, etc, used in producing the profits, annual contribution to a fund under a recognised occupational retirement scheme, and donations made to recognised charities.
There are tax incentives in specific areas, such as tax concessions for gains derived from qualified debt instruments and exemption from tax for offshore funds (non-resident individuals, partnerships, trustees of trust estates or corporations) in respect of profits derived from transactions in securities, futures contracts, foreign exchange contracts, etc, in Hong Kong, which are carried out by corporations and authorised financial institutions licensed or registered under the Securities and Futures Ordinance.
Dividends received from a corporation are excluded from the assessable profits of the recipient.
The assessable value of any land or buildings situated in Hong Kong (with limited exceptions) is calculated by reference to the actual consideration payable to the owner in respect of the right of use of the property such as gross rent received or receivable and payment for the right of use of premises under licence. The net assessable value is the assessable value (after deduction of rates paid by the owner and certain other payments) less a 20% statutory allowance for repairs and outgoings. Property Tax is charged to the owner at the standard rate of 15% on the net assessable value of such land or buildings.
A corporation letting property in Hong Kong is regarded as carrying on business in Hong Kong and should be subject to Profits Tax in respect of its property income. However, if certain conditions apply, the amount of Property Tax chargeable can be set off against the amount of Profits Tax payable and any excess Property Tax paid will be refunded. Alternatively, corporations can apply for exemption from paying Property Tax which would otherwise be set off against their Profits Tax liabilities.
Stamp duty is chargeable on certain documents specified in the First Schedule to the Stamp Duty Ordinance. These documents largely relate to transactions of Hong Kong stock and immovable properties.
For the contract notes for the sale and purchase of Hong Kong stock, ad valorem stamp duty is chargeable at the rate of 0.1% of the consideration (or the market value if it is higher) for each of the buyer and the seller.
For transfers of immovable property in Hong Kong, ad valorem stamp duty either at Scale 1 rates (maximum of 15%) or Scale 2 rates (maximum of 4.25%) is chargeable based on the higher of the sale price and the market value of the property. For residential property disposed of within 36 months (if the property was acquired on or after 27 October 2012), Special Stamp Duty will be imposed in addition to the ad valorem stamp duty at regressive rates from 10% to 20% for different holding periods. Buyer’s Stamp Duty at the rate of 15% is payable on an agreement for sale or a conveyance on sale for the acquisition of any residential property executed on or after 27 October 2012 in addition to the existing ad valorem stamp duty and the Special Stamp Duty (if applicable) unless the purchaser or transferee is a Hong Kong permanent resident acquiring the property on his or her own behalf.
Certain exemptions and reliefs are available. For example, on application, transfer of Hong Kong immovable property or stock between associated companies can be exempted from stamp duty provided that they remain associated for at least two years after the transfer. Transfer of shares under stock borrowing and lending transactions may be exempted from stamp duty. Property inherited from a deceased person's estate under a will or the law of intestacy or right of survivorship by a beneficiary is exempted from stamp duty.
There is no capital gains tax, gift tax, sales tax or VAT in Hong Kong. No estate duty is payable in respect of estates of persons passing away on or after 11 February 2006.
Tax laws in Hong Kong are generally relatively stable. The more notable change which affects transfers of property was the introduction of the Special Stamp Duty and the Buyer’s Stamp Duty in the past decade. These measures were aimed to curb speculative activities in relation to residential property and to reduce the risks of a property bubble, as the private resident property market has been volatile.
General anti-avoidance rules
There are general anti-avoidance provisions in the Inland Revenue Ordinance to tackle abuses of the tax laws.
Where the Inland Revenue Department is of the opinion that any transaction which reduces or would reduce the amount of tax payable by any person is artificial or fictitious or that any disposition is not in fact given effect to, he may disregard any such transaction or disposition and the person concerned shall be assessable accordingly.
The term “transaction” includes the whole of any particular transaction, and not merely part of it. Although a part of the transaction may be real, the transaction as a whole may be held as both artificial and fictitious. The Inland Revenue Department would take into consideration all the surrounding circumstances in forming an opinion as to whether a transaction as a whole is artificial or fictitious.
Where a person enters into or carries out a transaction for the sole or dominant purpose of obtaining a tax benefit, the Inland Revenue Department may disregard or reconstruct any transaction and assess the tax liability accordingly. The term “tax benefit” means the avoidance or postponement of the liability to pay tax or the reduction in the amount thereof.
Where a tax avoidance arrangement has been made to take advantage of a specific relief or exemption in such a way that is not intended by the legislature, the above general anti-avoidance rules can be applied to deny the favourable tax consequences even if the taxpayer has on the face complied with the requirements of the relevant relief or exemption.
Hong Kong has implemented automatic exchange of financial account information (“AEOI”) and common reporting standards.
Under the AEOI standard, financial institutions are required to identify financial accounts held by tax residents of reportable jurisdictions or held by passive non-financial entities whose controlling persons are tax residents of reportable jurisdictions in accordance with due diligence procedures and to provide the required information of such accounts to the Inland Revenue Department. To assist financial institutions to identify such accounts, account holders may be required to provide self-certifications on their personal information including tax residence.
Hong Kong signed an intergovernmental agreement with the United States in 2014 to implement the Foreign Account Tax Compliance Act in Hong Kong. It requires participating financial institutions to identify and report account information of specified US persons to the Inland Revenue Service of the United States. Accordingly, banks may need to obtain additional information or documentation from their customers to achieve this.
Hong Kong has entered into Tax Information Exchanges Agreements with seven jurisdictions, namely, Denmark, Faroes, Greenland, Iceland, Norway, Sweden and the United States.
Succession planning for large families are usually more complex. Typically, their primary goal is to preserve the capital of the family wealth for as long as possible and therefore would tend to let family members enjoy the income only unless there is any emergency which calls for the need of capital. In many cases, older generations would encourage their younger generations to participate in the family business. However, they are usually reluctant to turn over full control of the family business to younger generations until they are starting to become less robust due to old age or sickness. It is not common for spouses of family members to take any active role in the family business or to be able to benefit from the family wealth directly, although some large families are willing to set aside a small portion of the family wealth for the spouses who have married into the family for many years in the event that they become widowed.
Small families are more inclined to distribute the capital and income of their wealth to their children and/or grandchildren directly after they pass away and therefore require relatively simpler succession planning strategy.
Nowadays, many family members in the younger generations are tax residents of high-tax jurisdictions. As Hong Kong is a relatively low tax jurisdiction with no foreign exchange control and no forced heirship laws, there is a driving force for families to place ownership and/or control of the family wealth into the hands of a family member in Hong Kong who has no or little exposure to taxes in high-tax jurisdictions with the expectation that he or she will exercise his or her rights and powers over the family wealth for the benefit of all family members.
Hong Kong does not have forced heirship laws.
However, under the Inheritance (Provision for Family and Dependants) Ordinance, certain categories of persons (such as spouse, children, parents of the deceased who were being maintained by the deceased immediately before his death) may apply to the court for an order, for example, to make periodic payments out of the net estate of the deceased to the applicant, on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
Further, if a person makes a gift or disposition for which the full valuable consideration was not given (eg, a contribution to a trust) within six years before his or her death and such gift or disposition was made with the intention of defeating an application for financial provision against his or her estate, the court may on application order the recipient (eg the trustees of a trust) to provide such sum of money or other property for the purpose of the making of that financial provision.
There is no matrimonial property regime in Hong Kong. Each spouse owns and administers the property he or she acquired whether before or during the marriage and he or she can freely transfer his or her property without the consent of the other spouse during the marriage.
In the unfortunate event of a divorce, division of matrimonial property will be made by the equitable distribution method by reference to common law. “Equitable” means a division of assets according to what the court deems fair under the unique situation of the parties.
In deciding how matrimonial assets are to be divided, Hong Kong Courts will consider all the circumstances of a case including the factors in section 7(1) of the Matrimonial Proceedings and Property Ordinance:
The Court of Final Appeal decision in LKW v DD  HKCFA 70 established a five-step process to guide all Family Judges on how to approach the above factors in exercising their discretion:
The Court of Final Appeal further identified the following four principles to be followed when deciding on each case:
Prenuptial and postnuptial agreements are not binding on the courts of Hong Kong. However, in the case of SA v SPH  3 HKLRD 497, the Court of Final Appeal held that the principles laid down in the UK Supreme Court decision of Radmacher v Granatino  AC 534 represents the position of the law on nuptial agreements in Hong Kong. In summary, marital agreements entered into by the parties with a full appreciation of its implication should be given effect unless it would be unfair to hold the parties to their agreement in the prevailing circumstances. In deciding whether the division of matrimonial assets should depart from equal division, Hong Kong courts will treat the nuptial agreement as part of all the circumstances of the case under section 7(1) of the Matrimonial Proceedings and Property Ordinance, but the weight to be attached to it in each case is subject to the Courts’ discretion.
As there is no capital gains tax in Hong Kong, there is no cost base adjustment on a transfer of property.
As there is no capital gains tax or inheritance tax in Hong Kong, there is no incentive to establish vehicles or planning mechanisms solely for the purpose of transferring assets to younger generations tax-free. However, discretionary trusts are commonly used for the purpose of family and succession planning.
Although there have been initiatives to regulate the investment and trading of virtual assets, there is no legislation yet in Hong Kong governing digital assets for the purposes of succession.
Discretionary trusts are commonly used for succession and estate planning purposes. There is no private foundation under Hong Kong law.
Major changes were brought to the Trustee Ordinance in 2013. A few examples include imposing a statutory duty of care on trustees in relation to certain powers and functions, introducing a regime of the control over professional trustees’ exemption clauses, providing a default charging provision for professional trustees and statutory protection of Hong Kong trusts against foreign forced heirship rules.
The Perpetuities and Accumulations Ordinance was amended at the same time. Under the new rules, the rule against perpetuities is abolished and a trust may continue in existence for an unlimited period unless the terms of the trust provide to the contrary.
Trusts are recognised and respected in Hong Kong. The Trustee Ordinance is an important piece of legislation on the law governing trustees in Hong Kong. English decisions, the rules of equity and common law rules are relevant to the interpretation and application of trust laws in Hong Kong.
Hong Kong taxation adopts a territorial source principle and is not dependent on a person’s domicile, residence or nationality. Therefore, there are no tax consequences arising by virtue of a Hong Kong citizen serving as a fiduciary or being a beneficiary of a foreign trust.
The Trustee Ordinance provides that reservation of powers of investment or asset management functions by the settlor does not invalidate a trust, and a trustee who acts in accordance with the exercise of that power or function is not in breach of the trust.
Discretionary trusts are increasingly common as a tool for asset protection planning. Once assets have been contributed into a trust, they are no longer owned by the settlor and are instead held by the trustees on behalf of the beneficiaries. With an appropriate structure, it can help assets to be distanced away from future claims that may be made against or through the settlor if this is done well in advance of any threatened or perceived claims arising. On the other hand, through the use of a trust, families can consolidate or maintain control over the bulk of family assets or business so as to allow family members to enjoy the family wealth (for example, by receiving income distributions) without taking titles or voting rights to any capital assets in the trust fund.
Discretionary trusts are useful for families to pass wealth and control of the family business from generation to generation. In many cases, they can also help mitigate the overall tax exposure of the family assets. Tax advice is therefore important in the setting up and administration of the trust. It is also possible to put in place detailed guidelines for the trustees as to how the trustees should position themselves in the event of a family conflict. In a more complex structure, there may be additional bodies (such as a family office, a family council, an investment committee and a philanthropy committee) which will assist the trustee in making major decisions. These bodies may consist of family members, non-family members of the senior management of the family business and/or professional advisors.
There is no transfer tax in Hong Kong. Stamp duty may be chargeable on the transfer of Hong Kong immovable property or stock which will be calculated at the higher of the sale price and the market value, and there will be no discount for lack of marketability and control.
Private wealth disputes in Hong Kong mainly revolve around divorce, estates and trusts.
In divorce proceedings, parties make ancillary relief claims against each other in terms of maintenance pending suit, periodical payments, secured periodical payments, lump sum orders, property adjustment orders, transfer of property orders, settlement of property orders, variation of settlement and sale of property orders. Third parties’ interests may be involved in some cases, such as arguments over the beneficial ownership of assets paid by parents and a party’s entitlement in a dynastic trusts structure.
With regard to disputes over estates, they largely concern either attacks to the validity of wills by claiming that the testator lacked mental capacity or was unduly influenced by third parties while making the will, or attempts to vary distribution of the estate through claims made under the Inheritance (Provision for Family and Dependants) Ordinance or common law.
Litigation involving contentious trusts, both offshore and onshore structures, mainly arise from actions for and against trustees over breach of trusts, asset disputes, and duties or conflicts issues.
Spouses in divorce proceedings may be awarded with various forms of ancillary relief orders summarised above.
For disputes over estates or trusts, typically aggrieved parties are seeking to set aside a will, make claims under the Inheritance (Provision for Family and Dependants) Ordinance, vary a determination made by the trustee, or to obtain information (in particular financial information) of the estate or the trust. A few examples of the remedies available to address these claims are to order for the making of periodical payments or lump sums or transfer of property out of the net estate of the deceased, for the recipient or holder of the assets (eg, trustee) to provide money or other property, for information to be provided, and for assets to be traced.
Corporate fiduciaries are prevalent in Hong Kong. Generally, a trustee must exercise the care and skill that is reasonable in the circumstances, having regard to any special knowledge or experience that the trustee has or holds out as having, and if the tustee is acting in a professional capacity, the standard would be by reference to any special knowledge or experience that is reasonably expected of a person acting in a professional capacity.
It is not possible to pierce the veil of a trust. Trustees are liable for the liabilities of the trust, but it is possible to limit their liabilities in the absence of a breach of trust arising from the trustees’ fraud, wilful misconduct or gross negligence by including appropriate exemption clauses in the terms of the trust.
Unless the trust instrument provides otherwise, trustees may only invest in the authorised investments specified in the Trustee Ordinance and, in exercising such power, trustees would not be responsible for any loss to the trust fund if they have discharged the statutory duty of care.
The list of authorised investments stipulated in the Trustee Ordinance that trustees may make in the absence of an express power of investment in the trust instrument is relatively conservative and limited, as the intention is to provide a default objective standard for less experienced trustees. Professional trustees may choose to opt out of the list and, generally, it is expected that professional trustees who have wide investment powers and are sophisticated in investment would adopt the modern portfolio theory which would usually require them to diversify investments.
Trusts may hold active businesses and (through an entity) participate in the running of that business. Depending on the nature of the business, there may be licensing requirements in order to conduct the business or relevant activities.
Generally, a person who does not have a domicile of origin in Hong Kong can acquire a domicile in Hong Kong if he is lawfully present in Hong Kong and he intends to make a home in Hong Kong for an indefinite period.
Becoming a permanent resident
There are six categories of persons who are eligible to enjoy the right of abode in Hong Kong and to apply for permanent resident status. They include:
Becoming a citizen
A person is eligible to apply for a Hong Kong passport if he or she is:
A person is regarded as of Chinese nationality if he or she is a Hong Kong resident:
There are no expeditious means for an individual to obtain citizenship in Hong Kong. All applicants will need to fulfil the criteria of citizenship specified above.
Parents and relatives can set up a special needs trust at an affordable fee by appointing the Director of Social Welfare Incorporated as the trustee to manage their assets in the form of a trust for their children or family members who have special needs or lack self-care capability.
After the passing away of the parents or relatives, the trustee will activate the trust account and disburse funds to the carer specified by the parents or relatives in accordance with the instructions laid down in the trust deed and letter of intent. The carer will implement the long-term care plan formulated by the parents or relatives for the beneficiary. The executor of the settlor’s will will deposit the cash derived from the settlor’s estate to the trust account. The trustee will pool together funds from different trust accounts for making investment, and allocate investment gains or losses to individual trust accounts on a pro rata basis.
Guardian for children
Parents can appoint a guardian for their children in the event that both of them pass away while their children are under the age of 18 years. Such an appointment may be made in writing by the parents and attested by two witnesses in accordance with the provisions of the Guardianship of Minors Ordinance without the need of court proceeding.
A person appointed as the guardian of a minor has, on assuming guardianship, parental rights and authority with respect to the minor.
A person appointed by a parent (or guardian) as the guardian will automatically assume guardianship over the minor on the death of the appointing parent (or appointing guardian) if the appointing parent (or appointing guardian) has a custody order over the minor immediately before he or she dies or if the appointing parent (or appointing guardian) lived with the minor immediately before dying and the minor does not have any surviving parent or surviving guardian when the appointing parent (or appointing guardian) dies.
In other cases, the person appointed as the guardian may, after the appointing parent (or appointing guardian) dies, apply to the court to assume guardianship over the minor and the court may order the person: to act jointly with the surviving parent or surviving guardian;
On being satisfied that it is in the best interests of the minor, the court may, in its discretion, remove any guardian and appoint another person to replace that guardian.
In making any order in relation to the guardianship of a minor, the court will regard the best interests of the minor as the first and paramount consideration, and in having such regard will give due consideration to the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so.
Guardian of a mentally incapacitated person
The guardian is appointed by the Guardianship Board and has statutory power to make decisions on accommodation and care arrangements for the mentally incapacitated person (“MIP”).
The Guardianship Board is a quasi-judicial tribunal consisting of a chairman with legal experience, at least three members who are barristers or solicitors, at least three members who have had experience in assessing or treating MIPs who may include registered medical practitioners or social workers, and at least three members who have had personal experiences with MIPs.
A family member, a friend or the Public Guardian may be appointed as the guardian who may have the following powers, subject to the Guardianship Order:
An assigned social worker will visit the MIP each month and the guardian will need to provide reports every month, including monthly accounts and all relevant information such as accommodation and medical treatment.
Committee of the estate of a mentally incapacitated person
The Committee of the estate of an MIP is appointed by the court and has statutory power to manage and administer the financial affairs and property of the MIP, such as bank accounts, stocks and investments, buying and selling properties, settling utility bills and tax payments.
The Mental Health Court of the High Court of Hong Kong will hear applications made by family members, the Director of Social Welfare, the Official Solicitor or the guardian for a Committee to be appointed.
Generally, the Committee will need to open a Committee bank account, prepare accounts every year or, as may be ordered by the court, inform the court about any changes in the MIP’s financial situation and general condition.
The Hong Kong Government launched the Mandatory Provident Fund (“MPF”) scheme in December 2000 whereby all employees and self-employed persons who are 18 to 65 years old, except for exempted persons, are mandated to join the MPF scheme. Each employee and employer are required to make regular mandatory contributions which amount to 5% of the employee’s relevant income. Employees have the right to choose among the constituent funds offered under the MPF scheme selected by their employer. Generally speaking, MPF scheme members can only withdraw their accrued benefits when they reach the age of 65 years old, but some would be allowed to do so provided specified conditions are met (eg, permanent departure from Hong Kong).
In July 2018, the HKMC Annuity Plan came into place, which allows retirees of 65 years old or above to receive guaranteed monthly annuity payments for life with the contribution of a single premium, as long as their policy remains in force.
Children born out of wedlock
The mother of an illegitimate child will enjoy custody rights of the child while the father can only enjoy the same with the order of the court. In other words, the illegitimate child will be automatically recognised as the child of his/her birth mother, but will only be treated as the child of his/her birth father after a court order is in place. Nonetheless, illegitimate children now enjoy the same succession rights as legitimate children if their parents die after 19 June 1993.
Generally speaking, and for the purpose of succession, adopted children are treated as the children of their adoptive parents once an adoption order is made.
Hong Kong only permits surrogacy arrangements which are non-commercial in nature. The surrogate mother is naturally regarded as the mother of the child under section 9 of the Parent and Child Ordinance (“PCO”). Under s.10(2) PCO, if the surrogate mother is married at the time of her insemination or when the embryo or the sperm and egg are placed in her, and the embryo is not brought about with the sperm of her husband, then her husband will be regarded as the father of the surrogate child, unless it is shown that he did not consent to the placing of the embryo or the sperm and egg or her insemination. Similarly under s.10(3) PCO, if the surrogate mother is not married but received the treatment with her male partner and the embryo carried by her was not brought about with his sperms, then her male partner will be regarded as the father of the surrogate child.
However, the court may make a parental order under section 12 of the PCO to make the intended parents the legal parents of the surrogate child and permanently extinguish the parenthood of the surrogate mother and her spouse/male partner.
Posthumously conceived children
For the purpose of succession, under s.10(6) PCO, where the sperm of a man is used after his death to conceive a child, or where an embryo was used after the death of the man with whose sperm the embryo was created, that man is not regarded as the father of the child.
Hong Kong does not recognise same-sex marriage, in the sense that a valid marriage in Hong Kong is heterosexual and monogamous.
However, under the Married Persons Status Ordinance, a married person’s status can apply to parties to a marriage celebrated or contracted outside Hong Kong, according to the law in force at the time and in the place where the marriage was performed. As there is no definition of “parties to a marriage”, same-sex couples appear to enjoy legal status in Hong Kong. Having said that, when it comes to divorce, nullity, judicial separation or presumption of death and dissolution of marriage, the Family Courts in Hong Kong have no authority or jurisdiction to make any order in respect of same-sex marriages.
Following the judgment of a case involving a same-sex couple in 2018, the Immigration Department revised its policy to allow a person who has entered into a same-sex civil partnership, same-sex civil union, same-sex marriage, opposite-sex civil partnership or opposite-sex civil union outside Hong Kong to apply for a dependent visa/entry permit for entry into Hong Kong, provided that all the other eligibility criteria are met, though this case did not involve any claim that same‐sex couples have a right to marry under the Hong Kong law.
Charities are exempt from tax under the Inland Revenue Ordinance, provided that certain requirements are met.
For the purpose of Profits Tax, the profits derived from any trade or business carried on by a charity are exempted if:
A donor can be granted deductions for the purposes of Personal Assessment, Salaries Tax and Profits Tax for money donated to charities.
Generally, stamp duty will not be chargeable on any conveyance of immovable property or any transfer of Hong Kong stock where such assets are donated to charities.
Any organisation wishing to seek exemption from tax as a charity will need to apply to the Inland Revenue Department to obtain the tax exemption status.
The most common types of structures used by private individuals and organisations for charitable planning are companies limited by guarantee and societies, and trusts are increasingly common.
A company limited by guarantee is quick, simple and inexpensive to set up. It is a separate legal entity and the legal liability of members are limited to the amount of their contributions. The general compliance requirements include holding annual general meetings, filing annual returns to the Companies Registry, preparing audited financial statements, etc.
A society is also quick, simple and inexpensive to set up and run, but it has no separate legal status and members are personally liable if assets are not sufficient to meet the liabilities. It is not subject to the general compliance requirements for a company mentioned above.
A trust is generally more expensive and takes more time to set up and run if it is going to be managed by a professional trustee. It may be able to afford more privacy for the founder and the assets in the trust fund. Trustees can be personally liable, although it is possible to limit their liabilities subject to the restrictions in the Trustee Ordinance.
By way of background and broadly speaking, Hong Kong applies a territorial basis of taxation, whereby tax is imposed on assessable income arising in or derived from Hong Kong sources, or deemed as such. Tax is not levied on the basis of a person’s nationality, domicile or residence. Under the so-called ‘two-tiered’ profits tax rates regime introduced in recent years, the tax rate for the first HKD2 million of (net) profits of incorporated or, respectively, unincorporated businesses is reduced by half (from 16.5% to 8.25%, or from 15% to 7.5%). The remainder of the profits continue to be taxed at the normal rate of 16.5% or 15%. Gains of capital nature (as opposed to revenue) are outside the charge of profits tax.
There is no specific tax on dividend income, and there is no withholding tax levied on dividends (or interest) paid to non-residents. As such, distributions from a Hong Kong company to shareholders, or to beneficiaries from a trust estate, out of income earned either in Hong Kong or outside Hong Kong are generally not taxable in Hong Kong or exposed to withholding tax leakage, regardless of whether they are resident in or outside Hong Kong. Furthermore, Hong Kong does not tax gifts, and estate duty was abolished in February 2006.
The relatively low tax rates and apparently friendly tax framework make Hong Kong an attractive location not only for income and wealth generation, but also as a centre through which wealth and assets are held and managed. Hong Kong is an international financial centre that has also established itself as a successful and prominent centre for asset management and financial services. It has also increasingly become a significant market in offering trust and wealth management services to high net worth and ultra-high net worth families in the region, including from Mainland China and other countries in Asia with emerging wealth.
Hong Kong Trusts
Hong Kong does not have specific charging provisions on income in respect of trusts. A trust has no separate legal personality and is not deemed a person subject to tax under the Inland Revenue Ordinance (IRO). However, the trustee of a trust estate is expressly defined as a taxable person in the IRO. In this connection, a person acting as trustee carrying on a trade, profession or business in Hong Kong would be subject to profits tax in Hong Kong in respect of the income in connection with that trade, profession or business, to the extent such profits are Hong Kong-sourced. Business and trading profits sourced in Hong Kong are chargeable to profits tax under the general charging provision of section 14 of the IRO if all of the following conditions are met:
On the basis of the above, in practice, the general consensus is that trust profits in the hands of the relevant trustee fall within the charge to tax under the generic charging provision of section 14 of the IRO. Nonetheless, it is sometimes argued by trust and tax practitioners that the application of this general charging provision to trading trusts is quite opaque. As such, amendments to the IRO have been proposed to create specific provisions for the taxation of trusts (similar to the United Kingdom or Singapore), which may help in further developing Hong Kong’s competitiveness as a trust jurisdiction.
Transfer of Hong Kong Assets
While there is no gifts tax or transfer tax in Hong Kong, assets settled into a trust would incur relevant stamp duty where it involves a transfer of shares in Hong Kong companies or Hong Kong real property from the settlor to the trustee generally, unless in circumstances where it can be established not to involve a transfer of beneficial interest. A gift would also be deemed to be a transfer for value and thus subject to stamp duty (except gifts made to charitable bodies or public trusts, which are exempt from tax under the IRO).
Stamp duty is chargeable on any instrument that transfers Hong Kong real property and shares. The transfer of shares in Hong Kong companies is chargeable to stamp duty at a total rate of 0.2% on the sale proceeds or the fair market value of the relevant shares, whichever is higher. Generally, the transfer of real property is charged at a progressive rate, with a maximum of 8.5% on the sale proceeds or the market value, whichever is higher.
To curb speculation in the Hong Kong real estate market, specific Ad Valorum Stamp Duty (AVD), Special Stamp Duty (SSD) and Buyer’s Stamp Duty (BSD) have been put in place with respect to residential properties. As of 5 November 2016, a flat AVD rate of 15% applies (instead of the above-mentioned 4.25% to 8.5% range) to purchases of any residential property by non-Hong Kong Permanent Residents and/or if the purchaser already owns another residential property at the time of the subsequent purchase (irrespective of the amount or value of consideration, and irrespective of whether the purchaser is an individual or a company).
Where a transaction involves the sale and purchase or transfer of a residential property, the seller and the buyer are jointly and severally liable for paying SSD, which arises if (i) the property is acquired by the seller/transferor on or after 20 November 2010; and (ii) the property is disposed of by the seller/transferor within 24 months (if acquired between 20 November 2010 and 26 October 2012) or 36 months (if acquired on or after 27 October 2012) from the date of acquisition.
The buyer or transferee is liable to pay the BSD, which is generally payable on any agreement for sale or a conveyance on sale for the acquisition of any residential property executed on or after 27 October 2012, except where the purchaser or the transferee is a Hong Kong Permanent Resident acquiring the property on his/her own behalf (ie, the person is both the legal and beneficial owner).
The Capital Investment Entrant Scheme (CEIS) has been suspended by the Hong Kong Government from 15 January 2015 until further notice. The CEIS was put in place to facilitate entry for residence in Hong Kong by persons making capital investment in Hong Kong of at least HKD10 million (the last investment threshold prior to the suspension of the scheme), and without a requirement for running a business in Hong Kong. Under the CEIS, permitted investments included shares of companies listed on the Hong Kong Stock Exchange and traded in Hong Kong dollars, debt securities denominated in Hong Kong dollars issued or fully guaranted by the Hong Kong Government, or by certain designated bodies (of a public nature), certificates of deposits in Hong Kong dollars issued by authorised banking institutions in Hong Kong, and certain approved eligible collective investment schemes.
As the CEIS is now not available, high net worth individuals may apply under the programme for investment as enterpreneurs, subject to meeting the requirements. This arrangement does not apply to Chinese residents of Mainland China, nor to nationals of Vietnam, Laos, Nepal, the Democratic People’s Republic of Korea, Cuba or Afghanistan, although overseas Chinese nationals holding People’s Republic of China passports may apply if they have permanent residence overseas, or have been residing overseas for at least one year immediately before the submission of the application. The criteria to be considered by Hong Kong immigration include whether the applicant is in a position to make a substantial contribution to the economy of the HKSAR, with consideration factors including, but not limited to, business plan, business turnover, financial resources, investment sum, number of jobs created locally and the introduction of new technology or skills. The Immigration Department will consider whether the capital investment amount is able to support the operation of the business.
An applicant who wishes to establish or join in a start-up business may be considered, especially if the start-up business concerned is supported by a government-backed programme with a rigorous vetting and selection process, and the applicant is the proprietor or partner of the start-up company or a key researcher of the relevant project. Examples of government-backed programmes include:
Other programmes for residence visas in Hong Kong are the Admission Scheme for Mainland Talents and Professionals (available for Chinese residents of Mainland China who possess special skills, knowledge or experience of value to and not readily available in Hong Kong), and the Technology Talent Admission Scheme (during the three-year pilot scheme), other than general employment visa applications under the Hong Kong General Employment Policy.
Wealth Management and Family Offices
As an established financial centre and asset management centre, Hong Kong has significant breadth and depth in its financial markets infrastructure in terms of the availability of financial instruments, products and platforms, as well as the expertise and experience of finance and wealth management professionals. Where an institution engages in the conduct of regulated activities in securities and futures business in Hong Kong or actively markets to the public, whether by itself or through another person on its behalf and whether in Hong Kong or from a place outside Hong Kong, will need to be licensed by or registered with the Securities and Futures Commission (SFC) to conduct the relevant regulated activity, unless any relevant exemption applies. The conduct of regulated activities includes carrying on the business or provision of services dealing in securities or futures, advising on securities or futures, and asset management. Failure to be licensed or registered where required would constitute an offence under the SFO. There are no specific licence exemptions for family offices, although it may be possible to structure single family offices to fall under certain exemptions.
Trust companies may be set up in Hong Kong to conduct trust services business in Hong Kong, which means they may act as corporate trustee of as many trusts as they wish and charge remuneration for doing so, subject to being approved as a licensed trust and corporate services provider. There is no minimum capital requirement, but to become a registered trust company and to become eligible to act as a trustee for certain trust arrangements as prescribed under law or as corporate executor of a will, there is a minimum capital requirement of HKD3 million to be issued and fully paid up in cash, and HKD1.5 million must be deposited with the Government's Director of Accounting Services or a bank guarantee must be issued to the Government for the same amount.
A Task Force chaired by the Hong Kong Monetary Authority and comprising representatives from the Private Wealth Management Association (PWMA), the Hong Kong Institute of Bankers, the Hong Kong Securities and Investment Institute and the Treasury Markets Association has introduced an Enhanced Competency Framework (ECF), which sets out an enhanced level of competency expected of relevant practitioners in the private wealth management industry and offers professional qualifications as certified private wealth, investment or trust professionals. Although the ECF is a voluntary scheme, it underlies the efforts of the industry bodies in Hong Kong to further develop the competency and expertise of private wealth management professionals in Hong Kong, in particular those who offer banking, dealing, advisory or portfolio management services to private banking customers.
While the offers of securities (also futures and other financial products) are tightly regulated under the SFO, Hong Kong has a private placement framework that permits limited offers in Hong Kong and allows unlimited offers to be made to “Professional Investors” as defined under the SFO. Broadly, there are three main categories of Professional Investors: Institutional Professional Investors, such as financial institutions and specific bodies as prescribed in the legislation, and Individual Professional Investors or Corporate Professional Investors that meet the relevant minimum net worth or net assets requirements (being individuals with a portfolio of at least HKD8 million, or a corporation or partnership with a portfolio of at least HKD8 million or net assets of HKD40 million).
Onshore vs Offshore
Whether in the conduct of family-owned businesses or trust structures using offshore companies for the holding of investments or real properties, or for investment management, traditionally, it is common to use entities in jurisdictions with no tax or nominal tax, such as the British Virgin Islands or the Cayman Islands. However, from 1 January 2019, under the “Resumption of Application of Substantial Activities Factor to No or only Nominal Tax jurisdictions” issued by the Organisation for Economic Co-operation and Development (OECD), the introduction of economic substance requirements in such traditional no or nominal tax jurisdictions has raised concerns. It is usual that most of the entities established in the no or nominal tax jurisdiction that are performing relevant activities (such as investment holding, caught under the substance requirements) actually do not have real or adequate substance there. It would now be necessary to consider the requirements with respect to having local directors, managers, suitable employees, premises, operating expenditure, and income-generating activities undertaken in the relevant jurisdictions.
On the other hand, in practice, users of offshore entities are also looking to consider whether the substance requirements may fall away where a relevant entity carries on a relevant activity through another jurisdiction where it is subject to tax or is tax resident, and with an expectation that there may be more ‘relocation’ of activities or entities to an ‘onshore’ jurisdiction, such as Hong Kong, which has a friendly tax regime (but not with nil or nominal tax rates) and is not on the European Union’s blacklist of non-co-operative jurisdictions.
It is recommended to conduct careful evaluation of the impact on affected entities, from assessing whether the economic substance requirements are applicable and can be satisfied, to assessing the feasibility of any possible options involving the conduct of activities or having entities in another jurisdiction. An entity that is established or relocated to Hong Kong may then, in principle, be subject to tax in Hong Kong on any income arising in or derived from Hong Kong sources under its territorial basis of taxation, and the potential tax implications that may arise should be considered.
Hong Kong Resident Entities
Generally, the Inland Revenue Department (IRD) may issue a ‘Certificate of Resident Status’ (ie, a tax residency certificate) to a company that is incorporated in a no or nominal tax jurisdiction if it can be proven to the IRD’s satisfaction that the company in question is normally controlled and managed in Hong Kong. As such, the above-mentioned relevant entities incorporated in a no or nominal tax jurisdiction may become eligible for Hong Kong’s network of agreements for the avoidance of double taxation (DTAs), subject to establishing its tax residency in Hong Kong. With that, similar to Hong Kong incorporated companies, entities incorporated in a no or nominal tax jurisdiction can potentially also enjoy tax treaty benefits (eg, reduced withholding tax rates with respect to the receipt of overseas dividends, interest and royalties, as well as protection against capital gains tax in the relevant investee country), provided that the relevant conditions are satisfied.
Hong Kong’s Attitude Regarding Tax Transparency
As a responsible member of the international community and in order to maintain its international reputation and competitiveness as an international financial and business centre, Hong Kong has kept up efforts to adopt the latest global standards on tax transparency.
Since 10 July 2013, when the IRO was amended to enable the Commissioner of the Inland Revenue to conclude stand-alone tax information exchange agreements (TIEAs) with other jurisdictions, it is no longer necessary for a country to conclude a DTA with Hong Kong before it is able to submit an exchange of information request, as Hong Kong follows the OECD Model TIEA and, in terms of scope of the exchange of information, there is no difference in substance between a TIEA and the exchange of information article in double taxation agreements ("DTAs"). Accordingly, the Inland Revenue Department has expressed its view that, in terms of safeguards on the confidentiality of information exchanged and taxpayers’ right of privacy, a TIEA and the exchange of information article (in a DTA) offer the same level of protection, since both the TIEA and the DTA are enacted as subsidiary legislation. On 25 March 2014, Hong Kong signed its first TIEA (notably with the United States). So far Hong Kong has concluded TIEAs with seven jurisdictions, and DTAs with 41 other jurisdictions.
Hong Kong has changed its attitude from providing information (only) upon request (based on TIEAs or DTAs) to the automatic exchange of information. Hong Kong has entered into a Model 2 intergovernmental agreement (IGA) in connection with the Foreign Account Tax Compliance Act (FATCA), under which financial institutions in Hong Kong are obliged to report information on their US clients and relevant transactions directly to the US Internal Revenue Service. The commitment to FATCA was one further step towards Hong Kong becoming compliant with the global initiative to exchange tax information on an automatic basis.
Furthermore, in 2016 Hong Kong adopted the new international standard for the automatic exchange of financial account information in tax matters – ie, the Common Reporting Standard (CRS) promulgated by the Organisation for Economic Cooperation and Development (OECD) – and in 2017 enabled its participation in the Multilateral Convention on Mutual Administrative Assistance in Tax Matters and also amended the IRO to implement the CRS.
On 1 March 2018, new law came into effect (ie, the Companies (Amendment) Ordinance 2018), requiring certain Hong Kong companies to collect and retain information about their beneficial owners, intended to enhance transparency related to corporate beneficial ownership and in accordance with recommendations published by the Financial Action Task Force (FATF). Essentially, it requires any incorporated company (except listed companies) in Hong Kong to identify people or entities that have significant control over the company (known as “significant controllers”) and to maintain a register of significant controllers. Broadly speaking, a significant controller is either a person with significant control over a company or a registrable legal entity (such as another company) which is a shareholder of the company and has significant control over it – for example, a person who directly or indirectly holds more than 25% of a company’s issued shares or is entitled to share in more than 25% of a company’s capital or profits is deemed to have significant control.
Notwithstanding this, at present, there is no register for ultimate beneficial owners or trustees in Hong Kong, and the registers of significant controllers are not made available to the public. However, the online system of the Companies Registry (CR) allows the public to conduct searches (only) on data of registered companies and records of documents registered with the CR, including information on shareholders and directors of Hong Kong companies as filed with CR.
Following the recent Plenary of the FATF held in June 2019, the FATF has commended Hong Kong for its strong legal foundation and effective system for combating money laundering and terrorist financing following a mutual evaluation undertaken by member jurisdictions. Under the Mutual Evaluation Report of Hong Kong, the compliance and effectiveness of Hong Kong's anti-money laundering and counter-terrorist financing regime was assessed to be compliant and effective overall against international standards. This makes Hong Kong the first jurisdiction in the Asia-Pacific region to have achieved an overall compliant result. As noted in the press statement of the Hong Kong Government, the Report finds that Hong Kong has a strong legal and institutional framework for combating money laundering and the financing of terrorism, and is particularly effective in the areas of risk identification, law enforcement, asset recovery, counter-terrorist financing and international co-operation.