How to understand that "when a taxable document is set up outside China and is not used in China, no stamp duty is required?"


On June 10, 2021, the 29th meeting of the Standing Committee of the 13th National People's Congress voted and passed the stamp tax law of the people's Republic of China Effective from July 1, 2022 ;Article 2 of the new stamp law stipulates that: Units and individuals who have written up taxable certificates for use in China outside the people's Republic of China shall pay stamp duty in accordance with the provisions of this law.

Therefore, it is concluded that the taxable certificates written outside China, which are not used in China, do not need to pay stamp duty.However, how to understand and define "use in China" from the practical point of view has always been a lot of controversy and confusion, which also brings difficulties and differences in the recognition and implementation of the tax-free preferential provisions in local tax authorities.In this regard, the author puts forward the following views, willing to discuss and discuss with the relevant parties, and also for the reference of the relevant departments, so as to clarify and define the stamp duty rules as soon as possible in the future.

The author understands that: the above-mentioned taxable documents are not used in China, and should not be understood mechanically, physically and formally as not bringing the above certificates into or showing them in China.But should the target of stamp duty be in China?The validity of the above certificates in China's laws and their connection with China's relevant economic interests, or whether they are protected by relevant Chinese laws.For specific identification and definition, the author thinks that we can refer to the following four points:

everything Check whether the relevant documents are written in accordance with relevant Chinese laws (such as China's civil and commercial law and contract law) If it is established in accordance with the relevant laws of a third country (region) outside China, the use of the relevant certificate in China has no legal basis and can be regarded as not used in China.

Second, it is Check whether the relevant certificates need to be reviewed and confirmed by the relevant government or professional functional departments in China And even approved.If necessary, the procedure is a prerequisite for the validity of the relevant documents, which can also be regarded as being used in China.For example, both parties have signed a property transfer agreement outside China to transfer the real estate located in China.After signing the agreement and establishing the relevant credentials, Party A and Party B shall also handle the property right change certificate of the relevant real estate in the real estate management department in China, so as to judge that the relevant taxable credentials are used in China.

Third, it is When there is a dispute over the relevant credentials, whether the way and place of dispute settlement is within the territory of China 。If there is a dispute or dispute over the relevant documents, the litigation court or arbitration place selected is not in China, but in a third country (region) outside China. That is to say, because the dispute judgment or award place of the relevant voucher is not under the jurisdiction of China, it can be regarded as not used in China.

Fourth, it is Check whether the text used in the relevant certificate is in Chinese. If two or more languages except Chinese are used in the relevant documents at the same time, if there are contradictions or conflicts in the understanding and use of the words, the final basis is not Chinese, but the language of other countries (regions). If Chinese has no final interpretation effect, it can be regarded as not used in China.

Based on China's current relevant tax policies and the encouragement and support of tax authorities for "going global" enterprises and individuals, tax reduction and fee reduction is still the guidance of China's "going out" related tax policies, especially for enterprises and individuals to sign relevant contracts and establish documents under the belt and road initiative.In addition, in view of the stamp duty has the characteristics of "small tax and heavy penalty".

The author suggests: the relevant departments can refer to the above four points, refine and define the relevant provisions of the taxable vouchers "not used in China" as soon as possible, and simplify and clarify the relevant tax-free procedures and collection and management.So that the new stamp law in practice, to avoid "going out" enterprises and individuals due to different understanding with the tax authorities, resulting in differences in tax collection and exemption, and even suffer heavy penalties.More "going out" enterprises and individuals can enjoy the tax-free preferential treatment of the relevant new stamp tax law as soon as possible.

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