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| Circular on Questions Concerning Tax Payments for Wage and Salary Income Gained by Individuals Without Residence Within the Territory of China | | 国家税务总局关于在中国境内无住所的个人取得工资薪金所得纳税义务问题的通知 |
(State Administration of Taxation: 30 June 1994 Coded Guo Shui Fa [1994] No. 148) | |
（１９９４年６月３０日 国税发＜１９９４＞１４８号） |
To the tax bureaus of various provinces, autonomous regions and municipalities, the tax bureaus of various cities with independent planning, and various sub-bureaus of the Offshore Oil Tax Administration: | |
各省、自治区、直辖市税务局，各计划单列市税务局，海洋石油税务管理局各分局： |
In accordance with the Individual Income Tax Law of the People's Republic of China (hereinafter referred to as Tax Law) and its Detailed Rules for Implementation (hereinafter referred to as Detailed Rules for Implementation) as well as related stipulations of the agreement on the avoidance of double taxation China signs with other countries (hereinafter referred to as tax agreement), we hereby clarify the following question concerning how to determine tax on the wage and salary incomes gained by individuals without residence in the territory of China who hold a post in companies, enterprises and economic organizations (hereinafter referred to as enterprises within China) or agencies and sites as well as permanent organizations (hereinafter referred to as organizations within China) as stated in the tax agreement set up in China by foreign enterprises, or who engage in work within China for being employed or implementing the contract: | |
依照中华人民共和国个人所得税法（以下简称税法）及其实施条例（以下简称实施条例）和我国对外签订的避免双重征税协定（以下简称税收协定）的有关规定，现对在中国境内无住所的个人由于在中国境内公司、企业、经济组织（以下简称中国境内企业）或外国企业在中国境内设立的机构、场所以及税收协定所说常设机构（以下简称中国境内机构）担任职务，或者由于受雇或履行合同而在中国境内从事工作，而取得的工资薪金所得应如何确定征税问题，明确如下： |
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| I. Concerning determination of the sources of wage and salary income | | 一、关于工资、薪金所得来源地的确定 |
In line with the stipulation of Section (1) of Article 5 of the Detailed Rules for Implementation, the wage and salary income originates from the territory of China shall be considered the wage and salary gained by individuals during the period of actual work within China, that is: the wage and salary gained by individuals during the period of actual work within China which are paid by enterprises or individual employers whether inside or outside China, all belong to incomes originate from within the territory of China: the wage and salary gained by an individual during the period of actual work outside China, which are paid by enterprises or individual employers whether inside or outside China, all belong to incomes originate from outside China. | |
根据实施条例第五条第（一）项的规定，属于来源于中国境内的工资薪金所得应为个人实际在中国境内工作期间取得的工资薪金，即：个人实际在中国境内工作期间取得的工资薪金，不论是由中国境内还是境外企业或个人雇主支付的，均属来源于中国境内的所得；个人实际在中国境外工作期间取得的工资薪金，不论是由中国境内还是境外企业或个人雇主支付的，均属于来源于中国境外的所得。 |
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| II. Concerning the determination of individual tax payers with no residence within the territory of China but who, within a tax-paying year, live continuously or for an accumulated period of no more than 90 days within the territory of China, or who live continuously or for an accumulated period of no more than 183 days within the territory of China during the period as set in the tax agreement | | 二、关于在中国境内无住所而在一个纳税年度中在中国境内连续或累计居住不超过９０日或在税收协定规定的期间中在中国境内连续或累计居住不超过１８３日的个人纳税义务的确定。 |
In accordance with the related stipulations of Clause 2 of Article 1 of the Tax Law, Article 7 of the Detailed Rule for Implementation as well as the Tax Agreement, the wage and salary for the individuals with no residence in the territory of China but who, within a tax-paying year, work continuously or for an accumulated period of no more than 90 days or live continuously or for an accumulated period of no more than 183 days within the territory of China, which are paid by the employers outside China and which are not borne by the organization within China of the said employers, are exempt from declaration for payment of individual income tax. The above-mentioned individuals shall declare tax payment for the wage and salary incomes gained during the period of their actual work within China, which are paid by the enterprises or individual employers or borne by the organizations within the territory of China. If these enterprises or organizations within China for which enterprise income tax is calculated and levied by the method of appraising and deciding profits or enterprise income tax is not calculated and levied for having no business income, wages and salaries gained by individuals during the period or their actual work in China who assume office in and are employed by the enterprises or organizations within China, which, whether are or are not recorded in the account books of the enterprises or organizations within China, shall all be regarded as wages and salaries paid by enterprises within China or borne by the organizations within China. | |
根据税法第一条第二款和实施条例第七条以及税收协定的有关规定，在中国境内无住所而在一个纳税年度中在中国境内连续或累计工作不超过９０日或在税收协定规定的期间中在中国境内连续或累计居住不超过１８３日的个人，由中国境外雇主支付并且不是由该雇主的中国境内机构负担的工资薪金，免于申报缴纳个人所得税。对前述个人应仅就其实际在中国境内工作期间由中国境内企业或个人雇主支付或者由中国境内机构负担的工资薪金所得申报纳税。凡是该中国境内企业、机构属于采取核定利润方法计征企业所得税或没有营业收入而不征收企业所得税的，在该中国境内企业、机构任职、受雇的个人实际在中国境内工作期间取得的工资薪金，不论是否在该中国境内企业、机构会计帐簿中有记载，均应视为该中国境内企业支付或由该中国境内机构负担的工资薪金。 |
The above-mentioned individuals shall declare tax payment within the time limit as set in the Tax Law for their monthly payable tax. | |
上述个人每月应纳的税款应按税法规定的期限申报缴纳。 |
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| III. Concerning determination of tax payment by individuals without residence within the territory of China but who, in the tax-paying year, live continuously or for an accumulated period not more than 90 days or live continuously or for an accumulated period exceeding 183 days but less than one year within the territory of China during the period specified in the tax agreement. | | 三、关于在中国境内无住所而在一个纳税年度中在中国境内连续或累计居住超过９０日或在税收协定规定的期间中在中国境内连续续或累计居住超过１８３日但不满一年的个人纳税义务的确定 |
In accordance with the related stipulations of Clause 2 of Article 1 as well as the tax agreement, the individuals without residence within the territory of China but who, within the tax-paying year, work continuously or for an accumulated period exceeding 90 days within China or who, during the period as set in the tax agreement, live continuously or for an accumulated period exceeding 183 days but less than one year within the territory of China, shall all declare payment of individual income tax on the wage and salary income gained during the period of the actual work in China paid by the enterprises or individual employers within China and by enterprises or individual employers outside China; the wage and salary income they gained during the period of their work outside China, with the exception of what is stipulated in Article 5 of the Circular, are exempt from individual income tax. | |
根据税法第一条第二款以及税收协定的有关规定，在中国境内无住所而在一个纳税年度中在中国境内连续或累计工作超过９０日或在税收协定规定的期间中在中国境内连续或累计居住超过１８３日但不满一年的个人，其实际在中国境内工作期间取得的由中国境内企业或个人雇主支付和由境外企业或个人雇主的工资薪金所得，均应申报缴纳个人所得税；其在中国境外工作期间取得的工资薪金所得，除属于本通知第五条规定的情况外，不予征收个人所得税。 |
The above-mentioned individuals shall declare payment of the monthly payable tax in accordance with the time limit as stipulated in the Tax Law. Individuals, who have wage and salary income paid by employers outside China and not borne by the organizations within China, may predetermine that within the tax-paying year they live continuously or for an accumulated period exceeding 90 days or live continuously or for an accumulated period exceeding 183 days within the period as specified in the tax agreement, they shall declare payment for the monthly payable tax within the time limit specified in the Tax Law; individuals, who cannot predetermine that within the tax-paying year or during the related period as set in the tax agreement, live continuously or for an accumulated period exceeding 90 days or 183 days, may, within seven days of the following month after reaching 90 days or 183 days, declare tax payment together with the payable tax of the previous month. | |
上述个人每月应纳的税款应按税法规定的期限申报缴纳。其中，取得的工资薪金所得是由境外雇主支付并且不是由中国境内机构负担的个人，事先可预定在一个纳税年度中连续或累计居住超过９０日或在税收协定规定的期间中连续或累计居住超过１８３日的，其每月应纳的税款应按税法规定期限申报纳税；对事先不能预定在一个纳税年度或税收协定规定的有关期间中连续或累计居住超过９０日或１８３日的，可以待达到９０日或１８３日后的次月七日内，就其以前月份应纳的税款一并申报纳税。 |
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| IV. Concerning determination of tax payment by individuals without residence within the territory of China but who have lived in China for a full year. | | 四、关于在中国境内无住所但在境内居住满一年的个人纳税义务的确定 |
In accordance with the stipulation of Clause 1 of Article 1 of the Tax Law and Article 6 of the Regulations for Implementation, individuals without residence within the territory of China but who have lived in China for a full year but not exceeding five years shall all declare payment of individual income tax on the wages and salaries gained by them during the period of their work in China and paid by the enterprises or individual employers within China and by enterprises or individual employers outside China. An individual who has wage and salary income gained during the period of work when he temporarily leaves China as stated in Article 3 of the Regulations for Implementation shall declare payment of tax only on the part paid by enterprises or individual employers within China. If enterprises and organizations within the territory of China which calculate and levy enterprise income tax by adopting the method of verifying profit or those which do not have business income and therefore enterprise income tax is not levied, the wage and salary gained by individuals who assume office in or are employed by the enterprises or organizations within China, no matter whether or not recorded in the account books of the enterprises or organizations within China, shall all be regarded as paid by the enterprises or organizations within China where they assume office.
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根据税法第一条第一款、实施条例第六条的规定，在中国境内无住所但在境内居住满一年而不超过五年的个人，其在中国境内工作期间取得的由中国境内企业或个人雇主支付和由中国境外企业或个人雇主支付的工资薪金，均应申报缴纳个人所得税；其在实施条例第三条所说临时离境工作期间的工资薪金所得，仅就由中国境内企业或个人雇主支付的部分申报纳税，凡是该中国境内企业、机构属于采取核定利润方法计征企业所得税或没有营业收入而不征收企业所得税的，在该中国境内企业、机构任职、受雇的个人取得的工资薪金，不论是否在中国境内企业、机构会计账簿中有记载，均应视为由其任职的中国境内企业、机构支付。
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