国家税务总局关于修订《关联企业间业务往来税务管理规程》的通知 Administration of Tax on Business Transactions Between Affiliated Ent

国税发[2004]143号

（Promulgated by the State Administration of Taxation on 22 October 2004 and effective as of date of promulgation.）

颁布日期：20041022 　实施日期：20041022 　颁布单位：国家税务总局

　　PART ONE

　　GENERAL PROVISIONS

　　Article 1　These Rules are formulated in accordance with Article 13 of the PRC， Foreign Investment Enterprise and Foreign Enterprise Income Tax Law （the “Tax Law”）， Articles 52 to 58 of Part Four of the Implementing Rules for the Tax Law （the “Tax Law Implementing Rules”）， Article 36 of the PRC， Administration of the Levy and Collection of Taxes Law （the “Tax Levy and Collection Administration Law”）， Articles 51 to 56 of the Tax Administration Law Implementing Rules （the “ Tax Levy and Collection Administration Law Implementing Rules”）， the State Administration of Taxation， Administration of Tax on Business Transactions Between Affiliated Enterprises Implementing Procedures （Guo Shui Fa （1992） No. 237 （“the ”Implementing Procedures“）， the State Administration of Taxation， Several Specific Issues in the Implementation of the Circular （Guo Shui Fa　（1992） No. 242） and relevant provisions of the tax treaties （or arrangements） between the Chinese government and governments of relevant countries （special administrative regions） （”tax treaties or arrangements“）， with reference to common international practice and in the light of the overall requirements for reform of China's system for the administration of tax collection and the actual practice in the taxation of transfer pricing， in order to enable the tax administration of business transactions between affiliated enterprises （the ”Tax Administration of Transfer Pricing“） to become standardized and subject to procedures， and to continuously improve work quality and efficiency.

　　Article 2　These Rules apply to the administration of tax on business transactions between affiliated enterprises. The phrase “administration of tax on business transactions between affiliated enterprises” means investigation， auditing and tax adjustment according to law by dedicated organizations or dedicated personnel of the competent tax authorities at all levels in situations where the prices or fees for business transactions between affiliated enterprises， such as the sale， purchase and use of tangible property， the assignment and use of intangible property， the provision of services and financing， etc. are not received or paid as business transactions conducted at arm's length， thus reducing the amount of taxable revenue or income.

　　Article 3　For the purposes of these Rules， the phrase “competent tax authorities at all levels” means tax bureaux at or above municipalities and autonomous prefectures with districts. In order to standardize and implement these Rules， taxation matters may be specific handled by institutions or other relevant tax administrative departments designated for the administration of international （external） tax， established within the tax bureaux at or above municipalities and autonomous prefectures with districts.

　　PART TWO　DETERMINATION OF THE AFFILIATION BETWEEN AFFILIATED ENTERPRISES AND SUBMISSION OF RETURNS ON BUSINESS TRANSACTIONS

　　Article 4　The phrases “direct or indirect ownership or control in terms of capital， business operations， sales and purchases， etc.”， “direct or indirect ownership or control of both parties by a third party” and “other affiliate relationships arising from mutual interests” as referred to in Article 52 of the Tax Law Implementing Rules， and the phrases “direct or indirect ownership or control in terms of capital， business operations， sales and purchases， etc.”， “direct or indirect ownership or control of both parties by a third party” and “other relationships arising from mutual interests” as referred to in Article 51 of the Tax Levy and Collection Administration Law Implementing Rules mainly mean that an enterprise and anot

her company， enterprise or other economic organization （“Another Enterprise”） are affiliated enterprises if：

　　1. one entity directly or indirectly holds a total of 25% or more of the shares of the other entity；

　　2. 25% or more of the shares of each entity is directly or indirectly owned or controlled by a third party；

　　3. loans between the enterprise and Another Enterprise account for 50% or more of the enterprise's self-owned funds， or 10% or more of the enterprise's total loans are guaranteed by Another Enterprise；

　　4. more than half of the senior management personnel such as the directors or managers or at least one managing director of the enterprise is appointed by Another Enterprise；

　　5. the production and business operations of the enterprise can be carried out in a normal manner only with licences （such as for industrial property rights， proprietary technology， etc.） from Another Enterprise；

　　6. the raw materials， parts， components， etc. （including their prices， transaction conditions， etc.） purchased by the enterprise for production and operation purposes are supplied and controlled by Another Enterprise；

　　7. the sale of the products or merchandise produced by the enterprise （including their prices， transaction conditions， etc.） is controlled by Another Enterprise； or

　　8. other relations that involve actual control of the production， operation or transactions of the enterprise， or affiliations in terms of interests， including relationships with family members or relatives.

　　Tax auditing personnel shall carry out audit and inspection according to each of the above criteria and enter the inspection result in a Form for Determination of the Affiliation Between Affiliated Enterprises. If an enterprise has two or more affiliated enterprises， the affiliations shall be inspected separately and separate forms shall be completed.

　　Article 5　Wherever an enterprise and Another Enterprise constitute affiliated enterprises， an Annual Return of the State Administration of Taxation of the People's Republic of China on Business Transactions Between a Foreign-Investment Enterprise or Foreign Enterprise and Its Affiliate （a “Return”） shall be submitted to the competent tax authority within four months from the end of the tax year.　If an enterprise has conducted business transactions with two or more affiliated enterprises during a tax year， the enterprise shall complete separate Returns.

　　Returns are divided into “Category A” and “Category B” Returns. Category A Returns are applicable to enterprises whose business transactions fall in a single category and are the same in terms of substance， and Category B Returns are applicable to enterprises whose business transactions fall into several categories and are different in terms of substance.

　　Article 6　If an enterprise is unable to file a Return within the prescribed time limit due to special circumstances， it shall submit an application to the competent tax authority within the prescribed time limit for submission.　Following approval， the time limit may be extended appropriately， but not for more than 30 days.

　　Article 7　If an enterprise fails to submit annual Returns on business transactions with its affiliated enterprises to the competent tax authority within the prescribed time limit， the competent tax authority shall order it to submit the same within a specified period and may impose on it a fine of not more than Rmb 2，000 in accordance with Article 62 of the Tax Levy and Collection Administration Law.　If the situation is serious， it may be fined not less than Rmb 2，000 and not more than Rmb 10，000.

　　PART THREE　DETERMINATION OF THE VOLUME OF BUSINESS TRANSACTIONS BETWEEN AFFILIATED ENTERPRISES

　　Article 8　The volume of business transactions between affiliated enterprises shall be conscientiously classified， consolidated， analyzed and determined accor

ding to the categories and nature of the business transactions， based on the Returns filed by the enterprise and by comparison against the Form for Determination of the Affiliation Between Affiliated Enterprises completed according to the criteria for affiliation.

　　Article 9　The categories and substance of business transactions between affiliated enterprises mainly include the following：

　　1. sale， purchase， assignment and use of tangible property， including the business of selling， purchasing， assigning and leasing tangible property such as buildings， other structures， means of transportation， machinery， tools and merchandise （products）；

　　2. assignment and use of intangible property， including the business of assigning ownership of， or providing the right to use， proprietary rights such as leaseholds， copyrights， trademarks， brand names， patents and proprietary technology and industrial property rights such as industrial product designs or utility models；

　　3. financing， including the business of all types of long- and short-term call loans and security， sale and purchase of negotiable instruments， and all kinds of interest-bearing advances and deferred payments， etc.； and

　　4. provision of services， including the provision of services such as marketing surveys， marketing， management， administrative work， technical services， maintenance， designing， consultancy， agency， scientific research， legal services and accounting services.

　　Article 10　Determination of the volume of transactions between affiliated enterprises.

　　According to the nature of the business transactions， the amounts of the prices or fees actually paid or received for business transactions of the following types shall be the volume of transactions between affiliated enterprises：

　　1.　the amo

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