Although you may be working in China, does the ATO still consider you an Australian resident? It’s just one of the things you need to get absolutely right.

The tax requirements for Aussies working overseas vary from region to region. Aussies working in Hong Kong will find last month’s tax guide useful in determining their tax requirements. This month, Tom O’Sullivan, a tax specialist at Wolters Kluwer, has put together this overview of important tax issues for Australians working in China.

Australian tax resident or Chinese?

If an Australian employee is sent on a work assignment to China, their liability to Australian tax depends on whether they remain an Australian tax resident or become a tax resident of China.

This is because, broadly speaking, Australian tax residents are subject to Australian tax on their worldwide income.

If the employee no longer resides in Australia while on assignment, and the Australian Taxation Office (ATO) is satisfied they have established a permanent place of abode in China while working there, the employee might not be regarded as an Australian tax resident.

This means the employee’s foreign salary is unlikely to be subject to Australian tax if the salary has a Chinese source. However, this depends on the employee’s circumstances, and several criteria apply. Appropriate advice should be sought before making any final decisions.

Alternatively, should the employee remain an Australian tax resident, their foreign salary will be subject to tax in Australia, although a foreign income tax offset may be available to prevent any double taxation of salary.

There is also an exemption for income earned in overseas employment for a continuous period of more than 90 days where the foreign service is directly attributable to certain specified activities.

Chinese taxation

China applies the same tax rates to salaries derived by residents and non-residents. This means the employee’s salary will be subject to Chinese tax at the following progressive rates:

The tax is normally withheld from the employee’s salary before it is paid to them.

A tax exemption of 4800 RMB per month is available for expatriates.

Salary packaging

It is possible for an Australian employee on assignment in China to receive a total remuneration package that includes salary and other benefits. If the employee is a non-resident for Australian tax purposes, then there is unlikely to be Australian fringe benefits tax (FBT) payable when providing non-salary benefits to the employee while they are at work in China.

Chinese taxation

For expatriate employees, accommodation, meals, laundry, relocation and reasonable travel allowances received in a non-cash form, or as reimbursement for expenses incurred, are provisionally exempt from individual income tax in China.

(1) Payment of relocation costs. The reimbursement of relocation costs is provisionally exempt from income tax for expatriate employees. The costs need to be reasonable and may be reviewed by the local tax authority. Costs paid over the reasonable amount are subject to tax. However, regular (monthly or periodical) payments under this category are still fully taxable, regardless of the amount.

(2) Family holidays in home country. Family holiday costs incurred by an employee and paid by an employer are taxable to the employee. However, transportation costs incurred between China and the home country for family visits are not taxable. The transportation costs of up to two such holidays a year is considered reasonable. Costs paid above the reasonable amount are subject to tax. Copies of transportation receipts must be submitted to the local tax authority for review.

(4) Living away from home allowances. Such allowances paid in cash are fully taxable to an employee.

(5) Free board and accommodation. Board and accommodation costs (both home and abroad) incurred by an employee and paid by an employer are provisionally exempt from income tax for expatriate employees. The costs must be reasonable and are subject to review by the local tax authority. Costs paid above the reasonable amount are subject to tax. Copies of receipts or business plans must be submitted to the local tax authority for review.

(6) Language training fees and school fees. Language training fees paid by an employer for an employee, and school fees paid by an employer for the education of an employee’s children, are provisionally exempt from income tax for expatriate employees. The fees must be reasonable and are subject to review by the local tax authority. Fees paid above the reasonable amount are subject to tax. Copies of receipts and education details provided by education institutions must be submitted to the local tax authority for review.

(7) Accommodation allowance, meal allowance and laundry costs.Accommodation allowances, meal allowances and laundry costs received in a non-cash form or as reimbursement for expenses incurred are provisionally exempt from income tax for expatriate employees if the costs are reasonable. Allowances or costs paid above the reasonable amount are subject to tax.

Retirement plans

The fact a person has worked in China for a period will not affect their superannuation accumulated in Australia.

A person who has worked overseas and has accumulated superannuation in a foreign superannuation fund may transfer such superannuation amounts in a lump sum back to an Australian fund when the person becomes an Australian resident on their return to Australia.

Chinese taxation

The balance of any occupational retirement account accumulated by an employee while working in China can be withdrawn in a lump sum if their Chinese residency terminates. The withdrawal is subject to individual income tax.

Legal precedents 

Employees need to be careful to ensure that various case law principles do not result in them retaining their Australian tax residency status despite having lived outside Australia for two or more years. While many employees who work in China for two or more years should be regarded as non-resident for Australian tax purposes, this isn’t always the case. The following factors may have a bearing on whether the employee retains their Australian tax residency:

• The employee’s family, business and employment ties in Australia.
• The employee’s social and living arrangements. Whether the employee maintains assets in Australia while they are on assignment.
• The intention and duration of any return trips to Australia while on assignment.

Many Australian employees will need to satisfy the ATO they have established a permanent place of abode outside of Australia to ensure they cease being an Australian tax resident from departure. The ATO has published a tax ruling on this matter (Income Tax Ruling IT 2650) to assist employees in deciding this question.

If an individual is regarded as a tax resident of both countries, the tie-breaker rules in the Australian-Chinese Double Tax Agreement can establish the tax residency of the individual.

If the employee becomes a non-resident for Australian tax purposes, yet they continue to derive Australian sourced income while overseas (such as rental income from an Australian property investment), they need to be mindful that they are:

• Not entitled to a tax-free threshold on their Australian taxable income. In fact, non-residents commence paying tax at 32.5 per cent on their first dollar of Australian taxable income.
• Liable to the 2 per cent temporary budget repair levy if their yearly taxable income exceeds A$180,000.
• Not subject to the Medicare levy or surcharge.
• Not eligible for personal rebates against their Australian tax liability.
• Subject to a final withholding tax on their Australian sourced bank interest and unfranked dividends paid to them by an Australian resident company (the payer). The payer withholds tax at 15 per cent on unfranked dividends and at 10 per cent on interest, if the employee is a resident of mainland China.
• Deemed to have disposed of some of their capital gains tax assets (such as shares in Australian companies) for their market value on the date they stop being an Australian tax resident. This means a capital gain or loss might arise on that date which needs to be included in their Australian tax return. There are rules which enable the employee to choose deferring the taxation on such assets until they are eventually sold.
• As a non-resident, the employee will generally no longer be able to access the 50 per cent capital gains tax discount.

What if you’re an Australians tax resident living overseas?

If the employee remains an Australian tax resident while overseas, then their worldwide income (including their Chinese salary) is subject to tax in Australia. The employer may also have a fringe benefits tax (FBT) obligation for certain non-salary benefits provided to the employee if the employer also has a sufficient connection with Australia. The Australian resident employee should be aware that they are:

• Entitled to a tax-free threshold of up to A$18,200.
• Liable for the 2 per cent temporary budget repair levy if their yearly taxable income exceeds A$180,000.
• Potentially subject to the 2 per cent Medicare levy, and the Medicare levy surcharge if they are high income earners without private health insurance.
• Possibly entitled to credits for the foreign taxes paid in China on their overseas employment income. This will reduce the employee’s Australian tax liability and stop them from being double-taxed on their foreign salary.
• Eligible for personal rebates to reduce their Australian tax liability if certain conditions are met (the employee will be entitled to a low income tax offset if their yearly taxable income is below A$66,667).
• Entitled to franking credits on the franked dividends received on their investments in Australian shares which reduces their Australian tax liability.
• Required to continue to pay off any unpaid university debts through the tax system if their HELP repayment income is above the minimum repayment threshold (A$53,345 for 2014-15).

The Chinese tax regime at a glance

KPMG’s Liam Branagan, manager, global mobility services, tax, summarises what Australian expats need to know.

What if you’re still an Australian tax resident?

An Australian in China

KPMG’s Liam Branagan looks at how much tax an Australian might be liable to pay when working in China.

Assumed facts:

• Australian employee sent on work assignment to China for two-plus years
• Single employee (no partner or children)
• Chinese employer pays employee a salary of RMB 1,175,000
• Exchange rate of A$1 = RMB 4.70
• Australian tax rates used are for the income year ended 30 June 2015
• Chinese tax rates used are for the income year ended 31 December 2015

This document has been reviewed by tax experts at ShineWing Australia

Daren Yeoh, ShineWing Australia

Partner – Tax

Daren has over 20 years’ experience advising corporate and multinational groups on all aspects of Australian and International tax law.

 Yang Shi, ShineWing Australia

Senior Manager – Tax

Yang’s experience in global transfer pricing in both China and Australia makes him an expert in his field. He has over eight years’ experience in “Big 4” accounting firms.

The list above is not exhaustive and you should always speak to a CPA-registered tax agent about your specific circumstances.

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