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（全國大專生稅務徵文比賽 2022 – 亞軍）

國家“雙碳”政策的提出，提高了社會降低碳排放的要求，也增加了社會節能減排的壓力，政府應當推出適當的政策引導、促進社會產業綠色轉型。全國已經開始進行碳交易市場試點，而碳交易市場作為市場主導的減碳措施，具有一定局限性，在國際社會中，碳稅則被作為另一種減碳措施被廣泛使用，中國未來也將可能開徵碳稅，以完成碳達峰碳中和目標。粵港澳大灣區作為中國最早開始碳交易市場試點工作的地區，憑著國內領先的經濟增長量和經濟增速，在節能減排工作方面走在國家前列。大灣區具有一定的社會經濟韌性，碳中和工作進展順利、成果較好，其產業特點明顯，將是一個良好的碳稅試點區域。基於粵港澳大灣區現狀，參考歷史研究成果，借鑒國際理論基礎、實踐經驗，研究粵港澳大灣區開徵碳稅的現實基點和必要性，並且根據粵港澳大灣區獨特的海關形勢分析歐美國家開徵碳關稅的影響，最後提出較完整的碳稅設計建議。

關鍵詞：粵港澳大灣區; 碳達峰碳中和; 碳稅

（全國大專生稅務徵文比賽 2022 – 冠軍）

推動粵港澳大灣區建設是我國“一國兩制”事業發展的新實踐，也是“一帶一路”建設的重要支撐，粵港澳大灣區經濟發展不僅關係到我國整體經濟，也對全球經濟發展具有不可忽視的作用。稅收是經濟發展的重要基礎，稅收政策的制定方向牽動著各國經濟命脈，而一國兩制下的稅制差異對於大灣區經濟發展產生的負面影響極待解決。數字經濟“雙支柱”方案出台，意味著BEPS2.0時代的到來，對中國來說機遇與挑戰並存，粵港澳大灣區的稅收協調與合作問題需要建立在新的稅收背景下研究。本文將基於BEPS2.0國際背景，從粵港澳地區稅收政策現狀、稅收協調與合作難點出發，對粵港澳大灣區的稅收協調與合作問題進行研究。

關鍵字：粵港澳大灣區、BEPS2.0、稅收協調與合作

Chilean tax law has witnessed several changes in its tax rules over the past few years.

On 29 January 2020, the Chilean Congress approved the so-called ‘Modernisation Tax Bill’ after a year and a half of discussion. The original bill went through substantial amendments both in the House of Representatives and in the Senate, incorporating the amendments agreed to in December 2019 in the so-called ‘Tax Agreement’ between the Senate’s Finance Commission and the Government, to finance the new social agenda. Chile published Law No. 21,210 on the modernisation of tax legislation in the Official Gazette on 24 February 2020.

Furthermore, on 4 February 2022, the Guaranteed Universal Pension Law No. 21,420, which, in order to finance a new pension law, contains a series of eliminations and modifications to existing tax exemptions in different regulations, was approved by the Chilean Government and published in the Official Gazette.

Currently, the left-wing government, led by President Gabriel Boric, is discussing a new Tax Reform Bill called “Tax Reform Towards a Fiscal Pact for Development and Social Justice”, which was introduced to Congress on 7 July 2022. The Bill introduces a series of amendments to income tax, incorporates a new wealth tax, and contains a set of provisions aimed at reducing existing tax exemptions.

After several sessions of the Finance Committee at the House of Representatives and announcements from the Government, on 4 October 2022, the Government introduced a series of amendments to the Tax Reform Bill (Bulletin No. 15170-5). Furthermore, on 17 October 17, the Government entered a second package of amendments into the Tax Reform Bill (Bulletin No. 15.170-05) after discussions with pro-government representatives and the opposition, among other parties.

The project has been under “Urgencia1 Suma2” (Supreme Urgency) since 28 November 2022 and under discussion in the Finance Committee of the Chamber of Deputies. The last package of indications was submitted on 21 November 2022.

Broadly speaking, the indications contain a set of proposals to modify the original draft bill. Specifically, changes are mainly introduced in the following areas: 1) restructuring of income tax; 2) wealth tax, 3) measures to reduce taxable income, 4) anti-avoidance rule, 5) taxation of investment funds, and 6) inheritance and donations tax law.

Furthermore, the chapters that have been approved by the Commission and sent to the Chamber for discussion are as follows:

1. Chapters related to the procedure before the Chilean General Treasury of the Republic.
2. Increased control faculties of the Chilean Internal Revenue Service (“IRS”):
– Anonymous whistle-blower: Increase penalties for those who make false reports.
– Reduction of penal interest for delay in the payment of taxes.
– The Chilean IRS will be authorised to audit taxpayers domiciled in other territories of the country.

The main topics of the Tax Reform Bill proposed by the Government are described in this article.

In March 2021, the Indian parliament passed legislation that inserted a new section 89A into the Indian Income Tax Act, 1961 (“Indian IT Act”). The new section 89A empowers India’s Central Board of Direct Taxes (“CBDT”) to issue rules that specify how India will tax income that accrues in specified non-Indian retirement accounts owned by a tax resident of India. The CBDT announced these new rules in April 2022. This article discusses and analyses the implications of the new section 89A and the new rules announced by the CBDT for the Indian taxation of private US retirement accounts. It then applies this discussion and analysis to concrete taxpayer case scenarios.

Keywords: US Retirement Accounts; Indian Income Tax; Cross-Border Taxation, Expatriate Taxation

《關於應對經濟數字化稅收挑戰“雙支柱”方案的聲明》的“支柱二” 規則作為國際稅收改革多邊方案的重要內容，旨在通過全球反稅基侵蝕（GloBE ）規則及應稅規則（STTR）來設定全球最低稅，解決大型跨國集團利用低稅地轉移利潤和稅收逐底競爭問題。隨著“支柱二”立法模板、註釋和案例說明的正式發佈，“支柱二”規則設計基本完成。本文通過分析“支柱二”規則對我國企業所得稅優惠政策激勵效應的衝擊、對我國吸引利用外資的影響、對稅收立法及征管等方面帶來的影響，提出應對思路和建議，為“支柱二”規則在我國的落地實施建言獻策。

關鍵字：支柱二　全球最低稅率　稅制改革

The Inland Revenue (Amendment) (Taxation on Specified Foreign-sourced Income) Ordinance 2022 (“Amendment Ordinance”) was passed by the Legislative Council in late December 2022 and came into operation on 1 January 2023. The Amendment Ordinance was triggered by the European Union (“EU”) adding Hong Kong to its watchlist on tax co-operation1 in October 2021 due to concerns of possible risks of double non-taxation arising from the exclusion of offshore passive income from Hong Kong profits tax in the absence of any economic substance requirements, following a review of the foreign-sourced income exemption (“FSIE”) regimes in a number of jurisdictions as part of the EU’s work on harmful tax practices.

In fact, work on this area is not new. Back in 1996, the Committee on Fiscal Affairs of the Organisation for Economic Cooperation and Development (“OECD”) launched a project on harmful tax competition. The results of the project were published in the 1998 report Harmful Tax Competition: An Emerging Global Issue. The report set out the framework of the OECD’s work in the area of harmful tax practices, the factors to be used in determining whether a preferential regime is potentially harmful, and the factors to be used in defining a “tax haven”.

In 2015, as part of the work under Base Erosion and Profit Shifting (“BEPS”) Action 5 on Countering Harmful Tax Practices More Effectively, Taking into Account Transparency and Substance, the Forum on Harmful Tax Practices revamped the work with a priority and renewed focus on improving transparency, including compulsory spontaneous exchange on rulings related to preferential regimes, and on requiring substantial activity for any preferential regime.

In 2018, as a follow-up work under BEPS Action 5, the OECD published a document entitled Resumption of Application of Substantial Activities Factor to No or only Nominal Tax Jurisdictions which imposed a global standard requiring no or nominal tax jurisdictions to introduce substantial activities requirements in order for their tax regimes not to be considered harmful. Following the release of the document, a number of no or nominal tax jurisdictions, including the British Virgin Islands (“BVI”), the Cayman Islands, and Bermuda, responded swiftly by introducing their own domestic economic substance legislation.

In 2019, the EU commenced its assessment of FSIE regimes in different jurisdictions. Thirteen jurisdictions, including, among others, Hong Kong, Malaysia, and Singapore, were identified as having FSIE regimes with harmful features. Whilst a territorial tax regime is not viewed as necessarily problematic, problems arise when such regimes create the situation of double non-taxation in the absence of any requirement for the recipient of offshore passive income to have a substantial economic presence. The EU was mainly concerned about possible exploitation of the tax arrangement by shell companies for tax benefits.

On the basis of its review, the EU concluded that the regimes of some of these jurisdictions were harmful. Given that five of these jurisdictions, including Hong Kong and Malaysia, committed to amend or abolish the harmful regimes by the end of 2022, the EU added them to the watchlist in October 2021. If the EU’s concerns are not adequately addressed by the agreed timeline, these jurisdictions on the watchlist will be moved to the EU’s blacklist, with the consequence of defensive measures being imposed by EU member states, such as the denial of deduction of costs, higher withholding tax rates, and higher audit risks, with respect to transactions with business entities in the blacklisted jurisdictions.
Following this, the Hong Kong SAR Government (“the Government”) engaged in close discussions with the EU to explore the changes required to be made to Hong Kong’s tax regime in order to address the EU’s concerns. Upon reaching mutual common ground on the overall framework with the EU, a consultation on a proposal to refine Hong Kong’s FSIE regime for passive income was conducted by the Government in June 2022. After the closing of the consultation in mid-July, the Government continued to proactively engage in discussions with different stakeholders to explain the proposed changes, address questions, and seek feedback.

After consultation with stakeholders and further discussions with the EU, the Inland Revenue (Amendment) (Taxation on Specified Foreign-Sourced Income) Bill 2022 (“Amendment Bill”) was gazetted on 28 October 2022 and introduced into the Legislative Council on 2 November 2022 to provide a new framework for the refined FSIE regime, with a view to bringing the regime into force from 1 January 2023 with no grandfathering arrangement. It is notable that the Amendment Bill reflects a number of positive changes as compared with the framework communicated during the consultation, showing that the Government has worked hard to address stakeholders’ concerns. Having regard to the EU’s comments on the Amendment Bill on 4 November 2022 and the overarching objective of ensuring that Hong Kong is on a level playing field with other jurisdictions with reference to the relevant standards, as well as avoiding the blacklisting of Hong Kong by the EU, certain amendments to the Amendment Bill were subsequently made through proposed Committee Stage amendments (“CSAs”). The Amendment Bill, together with the CSAs, was passed on 14 December 2022 and gazetted as the Amendment Ordinance on 23 December 2022 which became effective on 1 January 2023.

On 14 February 2023, the EU released an updated watchlist. In light of the updated guidance on FSIE regimes promulgated by the EU in December 2022 which explicitly requires an FSIE regime to include capital gains as a general class of income, Hong Kong is required to fine-tune its FSIE regime to include disposal gains on other types of assets (in addition to equity interests which are already covered by the refined FSIE regime effective from 1 January 2023 as elaborated below) by the end of 2023 for implementation with effect from 1 January 2024. Therefore, Hong Kong is kept on the watchlist despite the refinements made to its FSIE regime in 2022 under the Amendment Ordinance.

The Government reassures that the retention of Hong Kong on the watchlist will not result in any adverse impact on Hong Kong enterprises and has announced that a consultation exercise will be conducted to seek stakeholders’ comments on the proposed changes, likely in March 2023. The Government has already communicated with the EU to ascertain the specific requirements entailed by the updated guidance and is also actively exploring different options to fine-tune the refined FSIE regime that will be in the best interest of Hong Kong taxpayers.

Since December 2021, only one issue of Board of Review Decisions has been published in August 2022. There are eight cases reported in the First Supplement to Volume 36, four salaries tax cases and four profits tax cases. Three of the salaries tax cases were related to sums received or paid upon termination of employment, and all of these appeals were dismissed by the Board. Another salaries tax case relating to a claim for personal allowance was successful. Of the profits tax cases, one concerned profits apportionment while the rest involved appeals which were out of time. All of these cases were dismissed by the Board.

Background
The relationship between China and South Korea dates back centuries. There were trade and cultural exchanges between the two countries through the Silk Road. In recent years, China and South Korea have endeavoured to boost their strategic and cooperative partnership in various sectors. South Korea is among China’s top trading partners. Both countries are members of the Regional Comprehensive Economic Partnership, a free-trade agreement between 16 countries to strengthen economic links and to enhance trade and investment related activities, which entered into force in January 2022 and took effect in South Korea in February 2022.
From a Hong Kong perspective, South Korea was ranked Hong Kong’s 6th largest trading partner in 2020. Hong Kong is an important entrepôt for merchandise trade between South Korea and mainland China. Re-export trade between the two economies through Hong Kong amounted to HK$251.5 billion in 2020.
South Korea has emerged as a soft power in Asia. It is Asia’s fourth-largest economy, famous for its exports of computer chips, smartphones, cars, and ships. According to the Hong Kong Trade Development Council, South Korea ranked third in terms of GDP among the Belt and Road countries and ninth in terms of GDP per capita in 2018. Despite the COVID-19 pandemic, South Korea achieved a 4 per cent increase in GDP in 2021, and the Organisation for Economic Co-operation and Development (“OECD”) forecasted GDP growth of around 3 per cent in 2022 and 2.7 per cent in 2023.
The country’s fiscal policy has been pivotal in shoring up growth through the pandemic, helping the economy to expand 4 per cent in 2021. The South Korean government has continued to intensify its efforts, and in December 2021, it introduced a KRW607.7 trillion budget for 2022, with a focus on strengthening the pandemic support for small businesses and boosting consumption. Two sizeable supplementary budgets were subsequently announced in January and February 2022 to increase support for small business owners and vulnerable groups as well as to enhance disease control. The government has also allocated a lot of resources to support research and development (“R&D”). In 2019, South Korea was placed among the OECD countries that provided the largest level of total government support to business R&D as a percentage of GDP, at a rate equivalent to 0.29 per cent of GDP.
South Korea is stepping up its efforts in soliciting foreign direct investment (“FDI”). South Korea’s capital city, Seoul, rolled out the “Asian Financial Hub Seoul” plan in November 2021. The basic plan of “Asian Financial Hub, Seoul” consists of 15 key missions in four areas, namely designing an ecosystem where the financial industry can grow, improving the city’s digital financial competitiveness, creating a business environment, and promoting Seoul’s status as a financial hub. The vision is to bring Seoul into the global top five financial hubs. On 7 February 2022, the city launched Invest Seoul, a foreign investment promotion agency to attract foreign investment and overseas companies. Invest Seoul’s aim is to promote the investment environment of Seoul to attract leading global companies and provide a one-stop service for foreign investment. It aims to attract USD30 billion of FDI by 2030.

Under the introduction of a global minimum tax proposed by the Organisation for Economic Co-operation and Development (“OECD”), jurisdictions all over the world have been prompted to consider whether they should implement response measures in the form of domestic minimum taxes. Domestic minimum taxes should ensure that any top-up taxes that would otherwise be due under the global minimum tax are paid locally rather than to the tax jurisdiction where the multinational enterprise (“MNE”) group is headquartered.
The global minimum tax rules (“GloBE Rules”) contain a definition of domestic minimum tax, and the commentary to the GloBE Rules (“Commentary”) provides a degree of technical guidance. However, jurisdictions will be required to make difficult policy decisions, including the approach to implementing a domestic minimum tax in accordance with the definition provided by the GloBE Rules.
A critical question jurisdictions face is whether to treat certain foreign taxes, such as controlled foreign corporation (“CFC”) taxes, as covered taxes (effectively creditable taxes) when determining the amount of top-up tax that should be paid under a domestic minimum tax. An ordinary application of the GloBE Rules suggests that they should. However, should these rules be flexed in the context of a domestic minimum tax implementation? Also, is it fair from a policy perspective for a jurisdiction implementing a domestic minimum tax to reduce the tax it collects because of tax collected under a CFC regime by another jurisdiction? This article considers the innate nature of a domestic minimum tax and its interaction with the global minimum tax.