Golding & Golding - International Business Tax Lawyers

Golding & Golding – U.S. and International Tax Lawyers

Hong Kong is a favorite location for individuals worldwide to conduct business. Even though there is no U.S. Tax Treaty with Hong Kong is becoming one of the world’s leading business hubs for U.S. investors. 

Unlike the United States that has a 34% or 35% tax rate, profits from Hong Kong have a corporate tax rate of 16.5%. Before incorporating in Hong Kong, it is important to understand the different business entities and corporate structures that are available in Hong Kong.

The following is a summary of the different types of companies a person can form in order to conduct business in Hong Kong or outside of Hong Kong as a nonresident Hong Kong business:

Sole Proprietorship

For an entrepreneur who is unsure if they are ready to take the plunge and formally structured their business, a sole proprietorship may be the best form to begin the business. While the biggest positive is that it is inexpensive to form the downside is that it is not a distinct and separate legal entity, and therefore the sole proprietor may be subject to personal liability and risk for any debts or lawsuits from the company.

Partnership

Hong Kong offers two different alternatives for partnership arrangements – General Partnership and Limited Partnership:

General Partnership

In a general partnership, all partners can be held liable for the debts and liabilities of the business,  as well as the debt and liability of other partners that stem from business operations. As in the United States, it does not take much paperwork or formalities to form a general partnership. The problem with the general partnership is that all partners can be liable for the debts, as well as the fact that there is no protection for a partner’s personal assets, With this type of structure partners are putting a lot of faith into the competence of their partners.

Limited Partnership

Similar to the United States, a limited partnership in Hong Kong is comprised of both general and limited partners. The limited partners have “limited liability” up to the amount of money they invested in the business and do not operate the day-to-day activities of the business. Therefore a Limited Partner’s personal assets are not at risk. 

Limited Liability Company

As in most countries, the limited company is a favorite business entity for many individuals looking to start a company in Hong Kong.  A limited liability company is a separate legal entity, and therefore investors are only subject to liability up to the amount of money they have invested in the business. In Hong Kong, there are two different types of limited liability companies – either a private limited company or a public limited company.

Private Limited Company

Most small companies are established as private limited companies. They are owned by shareholders who have shares in accordance with the investment capital that they made into the company. If the company does not do well, then the owner’s liability is limited to the his or her investment share. Some of the drawbacks of this type of company are that there are several reporting annual requirements as well as substantial procedures required in establishing the business; moreover, winding down the company is relatively expensive.

Public Limited Company

This type of company is similar to C Corporation and that it is the main option for large companies who want to “go public.” These type of companies are generally listed on the stock exchange and receive investments from the general public at large. Unlike a private limited company, a public limited company has various disclosure requirements and intense statutory compliance requirements, which would dissuade most small businesses.

*Since the company is considered an incorporated business is governed in part by the Closer Economic Partnership Arrangement (CEPA), which is an agreement involving free trade with Mainland China.

Branch Office of a Parent Company

If a parent company is located outside of Hong Kong but would like to form a branch in Hong Kong, the parent company will register the branch as a registered non-Hong Kong company. One reason for forming a branch office as opposed to a wholly-owned subsidiary is it may be easier for the Branch Office to obtain “Credit” by piggybacking off the prior success and good-will of the parent company.

Representative Offices

Similar to other Asian countries, a Representative Office represents an expansion of the nucleus of the business without using the office to sell products or services — or other direct profit motive activities. Many businesses will create a representative office at first in order to test the waters to determine whether Hong Kong is a viable option to expand their business – before making a full investment.

            

FATCA

FATCA is the Foreign Account Tax Compliance Act. It is an IRS International Tax Law that is designed to reduce offshore tax evasion and tax fraud. FATCA requires U.S. Taxpayers to disclose unreported foreign bank accounts, foreign financial accounts, and foreign income to the IRS; otherwise the Taxpayer can be subject to extremely high fines, penalties, and outstanding tax liabilities.Unfortunately, most people only learn of FATCA when they receive a letter (“FATCA Letter”) from their foreign bank or foreign financial institution requiring the U.S. Taxpayer to show proof that they are in FATCA compliance.Accounts subject to FATCA compliance include:

  • Foreign Bank Accounts
  • Foreign Savings Accounts
  • Foreign Investment Accounts
  • Foreign Securities Accounts
  • Foreign Mutual Funds
  • Foreign Trusts
  • Foreign Retirement Plans
  • Foreign Business and/or Corporate Accounts
  • Insurance Policies
  • Foreign Accounts held in a CFC (Controlled Foreign Corporation); or
  • Foreign Accounts held in a PFIC (Passive Foreign Investment Company)

If the Taxpayer cannot show proof that they have complied with FATCA, the bank or foreign financial institution will freeze or even forfeit the foreign accounts. 

I Have Overseas Accounts and Income, Now What?

To make matters worse, you or your friend probably conducted some quick online research and gathered enough misinformation to:

  • Assume that the IRS and Department of Treasury will be kicking in your door at any minute to interrogate you;
  • Resign yourself to the fact that your only options are either doing a hard 20 in federal prison, or escaping into the middle of the night under a cloak of darkness and assuming a new identity; or
  • Contact CPAs, enrolled agents, or inexperienced international tax attorneys (or any inexperienced attorney) who use fear and scare tactics in an attempt to sell you.

Under FATCA, Does the IRS Want to Arrest and Prosecute People?

As one of the few small international tax law firms in the country that has represented numerous taxpayers in both the offshore voluntary disclosure program (OVDP) and newly implemented modified streamlined program in the United States and overseas, we can tell you that there is almost nothing to be afraid of. The purpose of these international tax law programs is to “generate revenue” for the United States.

The IRS accomplishes this by mandating individuals who have not otherwise complied with US tax law involving overseas and foreign accounts to either enter one of the voluntary disclosure programs or risk facing significant monetary penalties and possible prison time for noncompliance (which can be resolved by entering one of these programs).

The Basics of FATCA, OVDP, and the “Streamlined” Program?

In an effort to try to ease your concerns, Golding & Golding put together a very basic FAQ list to try to clear up the misinformation you will find online:

What Does “Willful” Mean?  There is no specific definition for the term “willful”; rather, it is simply a fact-based test (aka “Totality of the Circumstances”). At its core, the IRS wants to know whether you knew you were responsible for filing these taxes and disclosing this information about your foreign accounts.

  • Based on a whole set of background facts, including: whether you are a US citizen (even if you reside overseas), US resident, how long you have been residing in the US, do you still reside in the US, did you file your taxes yourself, if you used a tax professional – did he or she ask you about your foreign accounts, and other type of background questions will determine whether you were willful or not.

If I Happened to be Willful, Can I Still Enter One of These Programs Yes, and this is where the misinformation online begins. Whether or not you were willful is not the threshold question to determine whether you can enter into one of these disclosure programs. Rather, willful will determine which program you are entitled to enter. If you are not willful, you may enter the streamlined program and have your penalties reduced to 5% or possibly completely eliminated depending on your country of residence and how long you resided overseas – if it all.

  • If you were willful, then you should enter the traditional OVDP and pay the 27.5% penalty or 50% (if any of your money was being maintained at one of the IRS’s “Bad Banks”). That is because as long as you are truthful (read: full compliance) in your disclosure, you will usually not be subject to criminal liability.  The modified streamlined program generally takes the place of the previous mechanism which was entering into the traditional OVDP and then “opting out” of the penalty, in order to risk audit.
  • The problem with “opting out” was that for individuals who were not willful, it is a very heavy burden to bear in terms of the paperwork that was required as well as penalties on taxes, which seemed highly unfair (20% tax on overdue income). Thus, for the non-willful individuals who would have ordinarily opted out of the traditional OVDP, the IRS modified the prior streamlined program — which was previously much more limited in scope.

What is The Difference Between OVDP and The IRS Streamlined Program?  In a nutshell, the traditional OVDP is for individuals who knowingly or otherwise were aware of the requirement of filing and disclosing offshore and foreign assets and tax information but chose not to.  On the other hand, if an individual was unaware of the requirement to disclose or otherwise file tax information for their overseas and foreign offshore accounts, then there was no intent and thus, generally no finding of ‘willfulness’.

What Does It Mean To Not Comply With FATCA?  FATCA Is the Foreign Account Tax Compliance Act, which is an act designed to promote and facilitate international tax compliance in accordance with US tax law.  As to individuals and businesses, there are specific withholding requirements when submitting payment to US tax persons and/or foreign individuals when the tax income and tax source is foreign. 
  • In addition, there are certain reporting requirements involving forms such as the 8938 and FBAR (FinCEN 114).  The breadth of FATCA is well beyond the scope of this basic FAQ article, but for the average ordinary citizen, it just means complying with IRS international tax law.

When Will These Programs Disappear?  Your guess is as good as mine. There is no way of knowing if or when the IRS  will discontinue these offshore voluntary disclosure programs.  But, it is important to keep in mind that the IRS can discontinue these programs at any time and they can increase the penalty at any time.

  • Moreover, word on the “tax street” is that because so many individuals who were willful are attempting to evade the larger penalty by entering into the streamlined program, the IRS is going to either increase scrutiny, withdraw the program, or increase the penalty for the modified streamlined program.
Why Hire an Experienced International Tax Law Attorney While either a tax attorney, CPA, or enrolled agent is licensed to enter individuals into these programs, a person must select an Attorney in order to get the most protection, including the attorney-client privilege (which is only afforded to clients who are represented by their attorneys). What is important to keep in mind is that only an attorney can provide you protection if the IRS Special Agents want to investigate you for potential criminal prosecution.
  • Moreover, while many enrolled agents and CPAs are experienced in preparing tax returns and otherwise have some tax knowledge, they do not have the experience in handling sophisticated negotiations with the IRS involving complex areas of law such as FATCA, OVDP, and related matters.
  • Finally, while there is a limited privilege in using an enrolled agent or CPA, there is no attorney client privilege between a CPA and/or enrolled agent and the client. Your CPA or EA (unless they are also an attorney) could be called to testify against you.