外籍人员在中国缴纳个税的咨询解答 中英对照版本.doc

外籍人员在中国缴纳个税的咨询解答（中英文对照）一、外籍人员在中国的纳税义务如何确定？外籍人员在中国的纳税义务，主要是考虑其是居民纳税人还是非居民纳税人。居民负有全面纳税义务，非居民只负有部分纳税义务。二、非居民纳税人纳税义务如何确定？在中国境内无住所又不居住或者无住所而在中国境内居住时间不满1年的个人，为非居民纳税人，具体纳税义务如下：1、无住所而在一个纳税年度在中国境内连续或累计居住时间不超过90日或税收协定规定的期限，属于境内短期停留人员，且不在境内常设机构担任固定职务的，就其实际在中国境内工作期间取得的由中国境内企业或个人支付或者由境内机构场所负担的部分征税。2、无住所而在一个纳税年度在中国境内连续或累计居住时间超过90日或税收协定规定的期限的，就其实际在中国境内工作期间取得的来源于中国境内和境外的所得缴纳个人所得税。三、居民纳税人纳税义务如何确定？在中国境内有住所，或者无住所而在中国境内居住满1年的个人，为居民纳税人，具体纳税义务如下：1、在中国境内有住所，应就其境内和境外一切所得一并缴纳个人所得税。2、在中国境内无住所，但居住时间在1年以上不满5年的，就其在中国境内工作期间取得的来源于中国境内和境外的所得以及在中国境外工作期间取得的来源于中国境内的所得缴纳个人所得税。3、在中国境内无住所，居住时间满5年的，从第6年起的以后年度，就其境内和境外的所得一并申报缴纳个人所得税。四、外籍人员取得的哪些所得应视为来源于中国境内的所得，依法征收个人所得税？外籍人员取得的支付地在中国境内的所得，视为来源于中国境内的所得。但下列所得不论支付地点是否在中国境内，也应视同为来源于中国境内的所得，照章征收个人所得税：（一）因任职、受雇、履约等在中国境内提供劳务而取得的所得；（二）将财产出租给承租人在中国境内使用而取得的所得；（三）转让中国境内的建筑物、土地使用权等财产或者在中国境内使用而取得的所得；（四）许可各种特许权在中国境内使用而取得的所得；（五）从中国境内的公司、企业以及其他经济组织或者个人取得的利息、股息和红利所得。五、外籍人员除享受个人所得税一般优惠规定外，还享受哪些特殊优惠待遇？（一）外籍人员个人所得税工资薪金税目每月扣除标准为4000元。（二）外籍人员下列收入暂免征收个人所得税：1、外籍个人以非现金形式或实报实销形式取得的住房补贴、伙食补贴、搬迁费、洗衣费；2、外籍个人按合理标准取得的境内、外出差补贴；3、外籍个人取得的探亲费、语言训练费、子女教育费等的合理开支部分；4、外籍个人从外商投资企业取得的股息、红利所得。六、哪些外籍专家取得的工资、薪金所得，可免征个人所得税？（一）根据世界银行专项贷款协议由世界银行直接派往我国工作的外国专家；（二）联合国组织直接派往我国工作的专家；（三）为联合国援助项目来华工作的专家；（四）援助国派往我国专为该国无偿援助项目工作的专家；（五）根据两国政府签订文化交流项目来华工作两年以内的文教专家，其工资、薪金所得由该国负担的；（六）根据我国大专院校国际交流项目来华工作两年以内的文教专家，其工资、薪金所得由该国负担的；（七）通过民间科研协定来华工作的专家，其工资、薪金所得由该国政府机构负担的。七、外籍人员在境外取得所得缴纳的个人所得税在中国境内能否抵扣？外籍人员在境外取得所得缴纳的个人所得税，低于依照我国税法计算出的扣除限额的，可以从应纳税额中扣除；超过扣除限额的，其超过部分不得作为税额扣除，但可以用以后年度税额扣除不超过限额的余额补扣，补扣期最长不得超过五年。八、外籍高层管理人员个人所得税有哪些特殊规定？外籍高层管理人员是指在中国境内企业担任正副（总）经理、各职能总师、总监及其他类型公司管理层职务的外籍人员。在中国境内担任董事或高层管理职务的外籍人员，应当自其担任该中国境内企业董事或高层管理职务起，至其解除上述职务止期间，不论其是否在中国境外履行职务，凡是由该中国境内企业支付的董事费或工资薪金，均应申报缴纳个人所得税，对于其在中国境外工作期间由境内企业支付的所得，不能因为是非居民而与普通人员一样免征个人所得税。外籍人员在中国境内企业担任董事取得的董事费，按照劳务报酬所得征收个人所得税，担任与董事职务无联系的因从事直接管理职务而取得的所得，按工资薪金所得征收个人所得税。对于外资企业的董事（长）同时担任企业直接管理职务或者名义上不担任企业的直接管理职务，但实际上从事日常企业管理工作的，应判定其在该企业具有董事（长）和雇员的双重身份，区分其取得的董事费收入、工资薪金收入和股息红利收入，按照相关规定，分别计算征收或免征个人所得税。九、驻华代表机构外籍人员个人所得税有哪些特殊规定？对在外国企业驻华代表机构中任职、受雇的外籍个人，其在中国境内提供劳务取得的所得，不论是由中国境内企业支付或负担，还是由中国境外企业支付的，均属于来源于中国境内的所得，应缴纳个人所得税。其中，凡是该驻华代表机构属于采用核定利润方法计征企业所得税或没有营业收入而不征收企业所得税的，任职的雇员实际在中国境内工作期间取得的工资薪金，不论在该机构会计帐簿中是否有记载，均应视为由外国企业驻华代表机构支付或负担。十、外籍演员、运动员个人所得税有哪些规定？（一）外国或港、澳、台地区演员、运动员以团体名义在我国（大陆）从事文艺、体育演出，对演出团体实际支付给演员或运动员个人的报酬部分，由该团体代扣代缴个人所得税。演出团体支付给演员、运动员个人的报酬，凡是演员、运动员属于临时聘请，不是该演出团体雇员的，应按劳务报酬所得，减除规定费用后，征收个人所得税；凡是演员、运动员属该演出团体雇员的，应依照个人所得税法的规定，按工资、薪金所得，减除规定费用后，征收个人所得税。对该团体在缴纳企业所得税时，没有申报支付给演员、运动员的个人报酬的或未履行代扣代缴个人所得税义务的，应按照70%的利润率核定该演出团体的应纳税所得额，征收企业所得税和地方所得税，对演员或运动员不再征收个人所得税。（二）对外国或港、澳、台地区演员、运动员以个人名义在我国（大陆）从事演出、表演所取得的收入，应以其全部票价收入或者包场收入减去支付给提供演出场所的单位、演出公司或者经纪人的费用后的余额为营业额，依的税率征收营业税；依照个人所得税法的有关规定，按劳务报酬所得征收个人所得税。 （三）演员、运动员个人应缴纳的个人所得税，应以其在一地演出所得报酬，在演出所在地主管税务机关申报缴纳。属于劳务报酬所得的，在一地演出多场的，以在一地多场演出取得的总收入为一次收入，计算征收个人所得税。 十一、外籍人员如何申报缴纳个人所得税？外籍人员应纳个人所得税税款，有扣缴义务人的，由扣缴义务人在向外籍人员支付应税款项时依法扣缴税款，并专项记载备查；没有扣缴义务人的，由外籍人员向取得所得地的主管税务机关自行申报纳税，并在次月七日内将应纳税款缴入国库。扣缴义务人或纳税人没有按规定申报缴纳税款的，按照税收征管法有关规定进行处理。十二、外籍人员在两处或者两处以上地方取得所得，纳税地点如何确定？外籍人员临时来华在我国几地工作或提供劳务取得所得的，统一按纳税人在税法规定的申报纳税日期时所在实际工作地为申报纳税地，即：在某一地达到申报纳税日期的，即在该地申报纳税。备注：外籍人员个人所得税应纳税所得税和适用税率表应纳税所得项目应纳税所得额适用税率工资、薪金所得每月收入额减除4000元费用后的余额5-45%超额累进个体工商户的生产、经营所得每一纳税年度收入总额减除成本费用及损失后的余额5-35%超额累进对企事业单位承包经营、承租经营所得每一纳税年度收入总额按月减除800元费用后的余额5-35%超额累进劳务报酬所得每次收入不超过4000元的，为收入减除800元费用后的余额；每次收入超过4000元的，为收入减除20%费用后的余额20%；收入畸高的，加征50%或100%稿酬所得20%并减征30%特许权使用费所得20%财产租赁所得利息、股息、红利所得每次收入额财产转让所得转让财产的收入额减除财产原值和合理费用后的余额偶然所得每次收入额其他所得每次收入额Q1. How shall the foreign individuals obligation to pay tax in the Peoples Republic of China be determined?A1. Whether the foreign individual is a resident taxpayer or non-resident taxpayer shall be the main consideration for determining his obligation to pay tax in PRC. Residents have full obligation to pay personal income tax and non-residents only have partial obligation.Q2. How shall the non-resident taxpayers obligation to pay tax in PRC be determined?A2. Individuals who are neither domiciled nor resident in the Peoples Republic of China, or who are not domiciled and reside for less than one year in the Peoples Republic of China are defined as non-resident taxpayers. The specific obligations to pay tax are as followings:(1) For the individuals who are not domiciled in the Peoples Republic of China, but who reside inside the Peoples Republic of China consecutively or accumulatively for not more than 90 days or for not longer than the period regulated in the tax treaty in any one tax year, belonging to the domestic temporary residents, and who dont take on regular posts in a permanent establishment within the Peoples Republic of China, personal income tax may be paid on only that part which was paid by domestic enterprises, individuals, establishments or business place within the Peoples Republic of China during their actual working period inside the Peoples Republic of China.(2) For the individuals who are not domiciled in the Peoples Republic of China, but who reside inside the Peoples Republic of China consecutively or accumulatively for more than 90 days or for longer than the period regulated in the tax treaty in any one tax year, their income derived from sources within and outside the Peoples Republic of China during their actual working period inside the Peoples Republic of China shall be subject to tax.Q3. How shall the resident taxpayers obligation to pay tax in the Peoples Republic of China be determined?A3. Individuals who are domiciled in the Peoples Republic of China, or who are not domiciled but have resided in the Peoples Republic of China for one year are defined as resident taxpayers. The specific obligations to pay tax are as followings:(1) Individual income tax shall be levied by individuals who have domicile in the Peoples Republic of China on their income derived from sources within and outside the Peoples Republic of China.(2) Individual income tax shall be levied by individuals who are not domiciled in the Peoples Republic of China but resident for more than one year and less than five years on their income derived from sources within and outside the Peoples Republic of China during their working period inside the Peoples Republic of China and on their income derived from sources within the Peoples Republic of China during their working period outside the Peoples Republic of China.(3) Individuals who are not domiciled in the Peoples Republic of China, but who reside for more than five years shall, commencing from the sixth year, file tax returns and pay individual income tax on the whole amount of income derived from sources within and outside the Peoples Republic of China.Q4.Which income the foreign individuals gain shall be deemed to be the income derived from sources within the Peoples Republic of China and be levied individual income tax in accordance with provisions of tax law?A4.The income the foreign individuals gain, the place of whose payment is inside the Peoples Republic of China, shall be deemed to be the income derived from sources within the Peoples Republic of China .But the following income, whether the place of payment is inside the Peoples Republic of China or not, shall be income derived from sources inside the Peoples Republic of China.(1) Income from personal services provided inside the Peoples Republic of China because of the tenure of an office, employment, the performance of a contract ,etc.;(2) Income from the lease of property to a lessee for use inside the Peoples Republic of China;(3) Income from the assignment of property such as buildings ,land use rights ,etc. inside the Peoples Republic of China or the assignment inside the Peoples Republic of China of any other property;(4) Income from the licensing for use inside the Peoples Republic of China of any kind of licensing rights;(5) Income from interest, dividends and extra dividends derived from companies, enterprises and other economic organizations or individuals inside the Peoples Republic of China.Q5. Besides enjoying the general preference of individual income tax, which special preferential treatment can be enjoyed by the foreign individuals?A5. (1) For income obtained by foreign individuals from wages and salaries, a monthly deduction for RMB 4000 shall be allowed for expenses. (2) The following income obtained by foreign individuals shall be exempt from individual income tax temporarily:a. the housing ,meal, housing transfer and cloth washing allowance are exempt, provided they are not paid by cash and the amount is in proof of invoice;b. the allowance of trip at home and abroad are exempt, provided they are paid in rational standards;c. the home leave fare, educational expense for children, language training expense are exempt, provided both the amount of fare and the frequency each year are considered reasonable by the tax authority;d. incomes obtained by foreign individuals from dividends and extra dividends derived from foreign-invested enterprise are exempt.Q6.Which types of foreign experts are exempt from paying individual income tax on their wages and salaries?A6. a. the foreign experts sent directly to the Peoples Republic of China to work by World Bank in accordance with World Banks specific item loan agreement; b. the foreign experts sent directly to the Peoples Republic of China to work by the UN organizations; c. the expert who come to the Peoples Republic of China to work for the aid program of the United Nations; d. The expert sent to the Peoples Republic of China by aid-giving countries to work for the program of aid given gratis of the aid-giving countries; e. the culture and education experts who come to the Peoples Republic of China to work within two years because of the cultural exchange program signed by the governments of the Peoples Republic of China and the related country, whose income from wages and salaries were borne by that country; f. The culture and education expert that come to China to work within two years because of the international exchange program of universities and colleges of China, whose income from wages and salaries were borne by that country; g. the expert who come to the Peoples Republic of China to work through the folk scientific research protocol, whose income from wages and salaries is borne by the government of the related country;Q7. Shall the income tax paid to foreign tax authorities by the foreign taxpayer on income derived from sources outside the Peoples Republic of China be allowed as credit against the amount of income tax payable? A7. If the actual amount of individual income tax paid by a foreign taxpayer in a country or region outside the Peoples Republic of China is less than the limit for deductions for that country or region computed in accordance with the provisions of the tax law of the Peoples Republic of China, the income tax paid to foreign tax authorities by the foreign taxpayer on income derived from sources outside the Peoples Republic of China shall be allowed as credit against the amount of income tax payable; if the amount exceeds the limit for deductions for that country or area, the excess portion may not be deducted from the amount of tax payable for that tax year; however, such excessive portion may be deducted from any unused portion of the limit for deductions for that country or region during subsequent tax years, for maximum period of five years. Q8. Which special regulations are applicable to the individual income tax of foreign top management personnel?A8. The term “foreign top management personnel” shall mean foreign personnel undertaking a post of chief manager, vice (general) manager, general instructor or director of every functional department, or undertaking other types of posts of management in enterprise inside China. Irrespective of whether the foreign personnel undertaking a post of general director or top management in enterprise in the Peoples Republic of China perform the duty of their post outside the Peoples Republic of China or not, they should file tax returns and pay individual income tax on the director fee or the salary which is paid by the enterprise inside the Peoples Republic of China from the day they undertake the post of general director or other top management in the enterprise inside the Peoples Republic of China to the day they are removed from their post. For the income paid by the enterprise outside the Peoples Republic of China during the period of their working outside the Peoples Republic of China, they cannot free from paying tax like ordinary personnel just because they are non-resident. If the foreign individual gains the director fee from undertaking a post of general director, individual income tax should be paid according to the tax item of “income from remuneration for personal service”. If the foreign individual gains the income from undertaking a post of direct management, which bear no relevance to the post of general director, individual income tax should paid according to the tax item of “income from wages and salaries”. The general director of a FDI (Foreign Direct Investment)enterprise who undertakes a post of direct management as well, or who does not undertake a post of direct management in name but engages in daily enterprise management in fact, should be determined as the one has dual identity of director (general director) and employee in the enterprise ,and individual income tax shall be paid or exempt respectively on the director fee, the salaries, the dividends and extra dividends ,which are divided from the income , according to the existing tax law of the Peoples Republic of China. Q9. Which special regulations are applicable to the individual income tax of the foreign personnel in the representative institution stationed in the Peoples Republic of China? A9. Individual income tax should be paid when the foreign personnel working in the representative institution stationed in the Peoples Republic of China by virtue of their tenure of an office or employment obtain income, which shall be the income derived from sources inside the Peoples Republic of China no matter the income is paid or borne by the enterprise inside the Peoples Republic of China or by the enterprise outside the Peoples Republic of China, from offering personal service in China. And if the representative institution stationed in China adopts the method of counting and paying enterprise income tax by assessing the amount of its profit or the one without any operating income free from paying enterprise income tax, the income from wages and salaries obtained by its employees during their actual working period inside the Peoples Republic of China shall be deemed to be paid or borne by the representative institution stationed in the Peoples Republic of China, irrespective of whether the income has been recorded in its accounting book or not. .Q10. Which regulations are applicable to the individual income tax of foreign actors and athletes?A10.a. If foreign, Hong Kong, Macao and Taiwan actors and athletes engage in art and sports performance in the Peoples Republic of China (mainland) in the name of a group, the performance group should withhold and remit the tax on the remuneration obtained by the actors or athletes which is actually paid by the performance group. If the actors or athletes are hired temporarily not the employees of the group, the individual income tax shall be levied on the remuneration obtained by the actors or athletes, which is actually paid by the performance group, after the deduction of prescribed expenses according to the tax item“income from remuneration for personal service”. If the actors or athletes are the employees of the group, the individual income tax shall be levied on the remuneration obtained by the actors or athletes, which is actually paid by the performance group, after the deduction of prescribed expenses according to the tax item“income from wages and salaries”. If the group fails to report the remuneration paid to the actors and athletes or fails to withhold and remit the individual income tax while paying enterprise income tax, the taxable income of the group shall be assessed at the profit rate of 70%, and the enterprise income tax and local income tax shall be levied for the group with the individual income tax not being levied any longer for the actors and athletes. b. If foreign, Hong Kong, Macao and Taiwan actors and athletes gain income by engaging in art and sports performance in the Peoples Republic of China (mainland) in the name of a group, the business tax shall be levied at a rate of 3% on their business turnover, which is the amount remaining from the gross ticket income or income from booking all or most of the seats in the theatre or cinema after the fee which is paid to unit or performance company offering show site and the expenses of broker has been deducted; individual income tax shall be levied under the tax item of “income from remuneration for personal service” in accordance with the relevant regulations of the individual income tax law.c. The actors and athletes should report and pay individual income tax on the remuneration derived from performing at one place to the competent taxation authority ,which is located at the place of stage performance. In case of income from remuneration for personal services and the actors and athletes give several performances at one place, the amount of the taxable income shall be the total income derived from giving several performances at one place and subject to individual income tax.Q11.How do foreign individuals file tax returns and pay individual income tax?A11. The withholding agent of the foreign individuals shou