中华人民共和国营业税暂行条例实施细则 PRC, Business Tax Tentative Regulations Implementing Rules

（Promulgated by the Ministry of Finance on 25 December 1993 and effective as of 1 January 1994.）
颁布日期：19931225 　实施日期：19931225 　颁布单位：财政部

　　Article 1　These Rules are formulated in accordance with Article 16 of the PRC， Business Tax Tentative Regulations.

　　Article 2　For the purposes of Article 1 of the Regulations， the term “taxable labour services” shall refer to labour services within the scope of the following business tax items： transport industry， construction industry， finance and insurance industries， post and telecommunications， culture and sports， entertainment business and service industry.

　　For the purposes of the Regulations， the term “taxable labour services” shall not include processing， repair and replacement （“non-taxable labour services”）。

　　Article 3　For the purposes of item 5 of Article 5 of the Regulations， the term “the business of purchasing and selling foreign exchange， negotiable securities and futures” shall refer to the business of purchasing and selling foreign exchange， negotiable securities and futures engaged in by financial institutions （including both banks and non-banking financial institutions）。

　　The purchase and sale of foreign exchange， negotiable securities or futures by non-financial institutions or individuals shall not be subject to business tax.

　　Article 4　For the purposes of Article 1 of the Regulations， the phrase “provide taxable labour services， assign intangible assets or sell immovable property” shall refer to acts of providing taxable labour services for consideration， assigning intangible assets for consideration or assigning the ownership of immovable property for consideration （“taxable acts”）， except for taxable labour services provided by staff and workers of work units or individual operators for their own work units or employers.

　　For the purposes of the preceding paragraph， the term “for consideration” shall include the gain of currencies， goods or other economic benefits.

　　If a unit or an individual sells a building that is newly constructed by itself or himself （hereafter， “constructed by oneself”）， the act of constructing by oneself shall be regarded as a provision of taxable labour services.

　　The assignment of restrictive property rights or perpetual use rights of immovable property as well as the grant of immovable property without consideration to another party by a work unit shall be regarded as a sale of immovable property.

　　Article 5　A sale that involves both taxable labour services and goods shall be a mixed sale. Mixed sales by enterprises， enterprise-type work units and individual operators engaged in production， wholesale or retail of goods shall be regarded as sales of goods and shall not be subject to business tax. Mixed sales by other work units or individuals shall be regarded as a provision of taxable labour services and shall be subject to business tax.

　　Whether or not a taxpayer's sale is a mixed sale shall be determined by the collection authorities under the State General Administration of Taxation.

　　For the purposes of the first paragraph， the term “goods” shall refer to tangible movable property that include electric power， heating power and gases.

　　For the purposes of the first paragraph， the phrase “enterprises， enterprise-type work units and individual operators engaged in production， wholesale or retail of goods” shall include enterprises， enterprise-type work units and individual operators engaged mainly in production， wholesale or retail of goods and concurrently in non-taxable labour services.

　　Article 6　Where a taxpayer is concurrently engaged in taxable labour services and goods or non-taxable labour services， separate accounts shall be kept for the amount of business of the taxable labour services and the sales amounts of the goods or non-taxable labour services. I

f no separate accounts are kept or if accounts are not kept accurately， value added tax shall be levied on the taxable labour services as well as on the goods or non-taxable labour services. Business tax shall not be levied.

　　Whether or not value added tax shall be levied on the taxable labour services concurrently engaged in by a taxpayer as well as on the goods or non-taxable labour services shall be determined by the collection authorities under the State General Administration of Taxation.

　　Article 7　Except where provided otherwise in Article 8 of these Rules， any of the following situations shall be regarded as the provision of taxable labour services， assignment of intangible assets or sale of immovable property within the People's Republic of China （hereafter， “China”） as mentioned in Article 1 of the Regulations：

　　1. labour services provided that occur in China；

　　2. the carrying of travellers or goods in China out of China；

　　3. organizing travellers in China for travelling outside China；

　　4. assignment of intangible assets used in China； or

　　5. sale of immovable property located in China.

　　Article 8　Any of the following shall be regarded as provision of insurance labour services in China：

　　1. insurance labour services provided by an insurance institution in China， except for insurance provided for export goods by an insurance institution in China； or

　　2. insurance labour services provided by an insurance institution outside China for articles in China as the subject matter.

　　Article 9　For the purposes of Article 1 of the Regulations， the term “work units” shall refer to State-owned enterprises， collective enterprises， private enterprises， share system enterprises， other enterprises and administrative work units， institutions， military work units， social organizations and other work units.

　　For the purposes of Article 1 of the Regulations， the term “individuals” shall refer to individual industrialists and merchants as well as other individuals with business operations.

　　Article 10　If the operation of an enterprise is leased or contracted out to another party， the lessee or contractor shall be the taxpayer.

　　Article 11　Except where provided otherwise in Article 12 of these Rules， work units shall be payers of business tax if they carry out taxable acts and obtain or receive currencies， goods or other economic benefits from the opposite party including both work units that practice independent accounting and work units that do not practice independent accounting.

　　Article 12　The taxpayer for tax on the operation of central railways shall be the Ministry of Railways. The taxpayer for tax on the operation of equity joint venture railways shall be the equity joint venture railway companies. The taxpayer for tax on the operation of local railways shall be the local railway administrative authorities. The taxpayer for tax on the operation of lines under provisional control for infrastructure construction shall be the administrative authorities for lines under provisional control for infrastructure construction.

　　Work units that are engaged in the business of transportation by water， air， pipeline or land and that have the obligation to pay business tax shall be the work units that are engaged in transportation business and that calculate profits and losses.

　　Article 13　Charges by legislative， judicial and administrative authorities shall not be subject to business tax if both of the following conditions are met：

　　1. where the charges are permitted to be imposed by virtue of official documents of the State Council， People's Governments at provincial level or financial or commodity price authorities thereunder and the standards of the charges comply with the provisions of the documents； and

　　2. where the charges are collec

ted directly by the legislative， judicial and administrative authorities themselves.

　　Article 14　For the purposes of Article 5 of the Regulations， the term “additional charges” shall include service charges， fund sources， fund-raising fees， payments collected on behalf of another party， advance payments on behalf of another party and all other types of charges in addition to the price that is charged to the opposite party.

　　All additional charges， irrespective of how they are to be accounted for under the accounting system， shall be included in the amount of business for the calculation of the amount of tax payable.

　　Article 15　If a taxpayer provides taxable labour services， assigns intangible assets or sells immovable property at a price that is obviously on the low side and no proper grounds are presented therefore， the taxation authorities in charge shall have the right to determine the turnover in accordance with the following sequence：

　　1. determination in accordance with the average price of similar taxable labour services provided or similar immovable property sold by the taxpayer in that month；

　　2. determination in accordance with the average price of similar taxable labour services provided or similar immovable property sold by the taxpayer during the most recent period；

　　3. determination of a price for tax calculation purposes in accordance with the following formula：

　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　
　　Price for tax calculation purposes
　　　　　　　　　　　　　　　　　　　　　　（ 1 + profit to cost ratio）
　　　　　　=　business cost or project cost x ───────────
　　　　　　　　　　　　　　　　　　　　　　（ 1 - business tax rate）

　　The term “profit to costs ratio” as

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