GuoShuiHanFa [1994] No.644 December 6, 1994

The State Tax Bureau of Guangdong:

We have recently acknowledged the receipt of a letter from the Guangzhou Municipal Tax Bureau asking for Instructions on the Question Concerning the Levy of Business Tax on Cooperative Development of the Real Estate Sector, a document coded Shui Yi [1994] No. 327. The letter says that some domestic enterprises have cooperated with foreign businessmen in building commodity houses on the land where the supply of water, electricity and gas has been made available and the ground has been leveled, both parties set up cooperative companies and received business license, with the Chinese party transferring the land-use right to the cooperative companies, while the foreign party being responsible for all funds needed for the building of commodity houses and for the sales of commodity houses abroad, both sides adopted the distribution methods of distributing construction area and sales income and drawing fixed profits. The letter demanded that the question as to how to calculate and levy business tax related to the behavior of the transfer of land-use right involved in the above-mentioned business activities. After study, we now give the written reply as follows:

I. The taxation question concerning tax on Chinese-foreign cooperative construction of houses

After the Chinese side performs the procedures for the transfer of the land-use right in its cooperation with the foreign party on the land it obtains, the method of whether distributing the area of the completed commodity house, or distributing the income from the sales of the commodity house does not conform with the stipulations of the current policy that "business tax is exempt from the behavior of investing and buying shares with invisible assets, participating in and accepting the investor's profit distribution and jointly undertaking the investment risk"; therefore, business tax shall be levied in accordance with the tax category of "transferring invisible assets"; its business volume should be all the income actually gained, including charges not included in the calculated prices; the tax paying time should be the very day when the income is gained.

At the same time, tax shall also be levied on the sales of commodity houses. If the method of distributing houses (including the distribution of area) which are then sold respectively by each party is adopted, then business tax shall be levied on the incomes from the sales of commodity houses by both Chinese and foreign parties in accordance with the stipulation of "selling immovable property"; if the method of unified sales of houses and redistribution of sales income is adopted, then business tax is levied on the income from unified sales of commodity houses in accordance with the stipulation of "selling immovable property"; if the method of paying fixed profits to the Chinese party is adopted, then business tax is levied on all the incomes gained by the foreign party from the sales of commodity houses in accordance with the stipulation of "selling immovable property".

II. The taxation question concerning the development expenses gained from the first-phase project by the Chinese party

The development expenses for the first-phase project paid in advance by the foreign party to the Chinese party shall be regarded as the business income gained by the Chinese party by the method of receiving the money in advance, business tax is calculated and levied in line with the stipulation of the transfer of land-use right. With regard to this already taxed development expense, which shall be accurately deducted from the due income of the Chinese party, may directly eat up the current business income of the Chinese party.

III. The fixed profits gained regularly by the Chinese party shall be regarded as the income gained by the transfer of the land-use right, on which business tax is calculated and levied.

Promulgated by The State Administration of Taxation on 1994-12-6