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英文虎報發表了一篇題為 "美國新稅務條例的警示"文章（2016年12月5日），文中引述了德勤中國稅務與商務諮詢協同主管及企業併購服務全國領導人葉偉文先生的評論。
美國財政部制定了公司法第385條有關外國企業在美國投資的新規則。新規則將於2018年1月生效，預期對外國公司如何為其美國業務或併購活動融資帶來深遠影響。新規則或會導致法律上的'債務'項目被視為'權益'，即利息扣除將不被允許﹐結果為企業的資本成本和投資回報將造成不利影響。如何確保適當的債務用於美國稅務報告中將成為很多外國企業放眼美國市場的挑戰。
在這個重要發展下，企業須保存適當的文件、信用分析和其他憑據，以證明如何為其美國子公司進行確實的債務融資。
如果您想閱讀該本章的更多內容，請查看以下轉載自英文虎報的全文（僅英文版本）。
Warnings on US tax rules
Hong Kong and mainland companies with subsidiaries in the United States might have to re-capitalize them after the US Treasury Department and the Internal Revenue Service finalized new rules relating to American units of foreign firms.
Those rules, under Section 385 of the Internal Revenue Code, recharacterize certain debt instruments issued to related parties as equity for US federal income tax purposes.
When the new rules kick in in 2018, the debt financing of the US units of Hong Kong and mainland companies will no longer enjoy the tax benefits they used to have, said Patrick Yip Wai-man, Deloitte China deputy tax managing partner. He said the choice of debt or equity as financing tool will become more critical for all outbound transactions into the US as the new rules are finalized.
As the US represents a huge market and since many US retailers do not want to bother clearing customs and warehousing, many Hong Kong and mainland companies have set up subsidiaries in the States, said Yip.
"The question is when you set up subsidiaries in the US, do you capitalize them using all equity or part stock and part debt? Let's say you capitalize your US unit with all equity and you make a US$100 (HK$780) income. That income would be subjected to a federal income tax of 35 percent and a state income tax of let's say another 10 percent. After that, you're left with only US$55," he explained.
If this US$55 is to be paid to its parent company in Hong Kong or China, that would be subject to a 30 percent withholding tax. That means, the company will be able to pocket US$38.5 only.
"In another situation, you can capitalize your US unit partly with stock and partly with debt. Let's say your subsidiary makes US$100 and in an extreme situation it pays out all of the US$100 as interest. That entire amount will only be subjected to a 30 percent withholding tax and this means the unit will get back US$70," said Yip.
The two scenarios above illustrates why many companies favor capitalizing their units in the US with debt instead of straight capital.
"If you are the US government, you will not be happy about it as companies are basically stripping income from the US by way of interest," said Yip.
With the IRS due to implement new rules under Section 385 from January 2018, debt may be regarded as equity for US tax purposes. The new regulations have expanded the ability of the IRS to recast debt into equity.
Yip said the new rules have stirred up much concern in the local business community as many companies favor using debt to capitalize their US subsidiaries.
For debt to remain classified as debt for tax purposes, under the new rules US units of Hong Kong and mainland firms will need to show proof, such as loan agreements, that they can pay back debt that has been incurred.
"If you have intercompany financing unsupported by any documentation, such as loan agreements with fixed repayment terms and a fair interest rate, it is very likely those loans will be considered as equity," Yip said. He said the new regulations will also have an impact on merger and acquisition transactions.
A case in point is a company, which took out a loan from a bank in Hong Kong and then lent the money to its US unit for the purpose of buying assets in that country. Under the new regulations, the US unit may be asked if it has the ability to pay back its parent.
If the loan is not covered by a collateral or documentation, the Hong Kong or mainland company will run the risk the loan to its US unit will be considered as capital rather than as debt. In the latter scenario, the internal rate of return of the M&A transaction may be adversely affected.
Yip said local and mainland companies need to scrutinize the new tax regulations to ensure they have proper documentation, credit analysis and other documents that will show that their US units won't have difficulties availing of tax benefits in the US that they wish to enjoy.
Meanwhile, Deloitte data shows that Chinese outbound M&A deals in the US amounted to about US$42.60 billion (HK$332.28 billion) between January and September this year. The amount represented 24.2 percent of total Chinese outbound investments during the period and it was up from 15.7 percent for the whole of last year.
Yip believes the US will remain one of the top destination of mainland firms for asset acquisitions, amid a weak yuan.
(Source: The Standard - http://www.thestandard.com.hk/section-news.php?id=177058&fc=1)
如有更多垂詢，請聯繫：
葉偉文
德勤中國稅務與商務諮詢協同主管及企業併購服務全國領導人
電話：+852 2852 1618
郵件：patyip@deloitte.com.hk
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