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Non profit investment restrictions china structure investment no downside

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The first domestic nonprofit, Friends of Nature, began operating in These regulations covered only domestic organizations and only partly regulated the forms under which non-profits were organized in China. The PRC Ministry of Civil Affairs MCA , one of the most conservative ministries in China in terms of approval procedures, regulates and approves the establishment of foreign and domestic nonprofits in China. Unofficial reports put the number at around in MCA currently categorizes nonprofits into three groups that range from state-controlled entities that have top-down management and use public funds to grass-roots-based organizations that rely on private capital.

The PRC official designations warrant several observations. First, the regulations that establish popular non-enterprise work units and social organizations are now more than a decade old. They have failed to keep up with the social and economic needs of a quickly modernizing China in areas related to the environment, labor, natural resources, and disaster relief.

Second, the regulation that allows for the establishment of foundations is the only one that mentions foreign associations. By law, only PRC nationals or entities may establish popular non-enterprise work units and social organizations. For this reason, only INPOs that are foreign foundations may establish a legal presence in China—through the establishment of a representative office of that foreign foundation. Clinton Foundation, and World Wildlife Fund, have successfully done so to date.

Not only does the registration process pose significant barriers, but INPOs that register successfully face subsequent restrictions on their operations. For example, a representative office of a foreign foundation may not raise funds or receive donations in China. Several aspects of the registration system also run counter to INPO interests. Domestic nonprofits must register under a dual-management system that includes strict approval procedures and investigation, supervision, and periodic review.

INPOs are also subject to these restrictions, which are generally much more stringent than most business approval procedures. The two main entities responsible for nonprofits are MCA and the leading professional unit, which is often a ministry whose jurisdiction includes the activity in which the nonprofit engages. Article 35 of the regulation outlines three primary duties for the leading professional unit of a foundation:.

Provide guidance and monitor the activities of the foundation to ensure that it benefits the public and follows the foundation charter and the law; Grant preliminary approval of annual inspections conducted by MCA. The annual report of a foundation must first be submitted to its leading professional unit for review and approval before the report can be submitted to MCA. In addition, any change in the registered details of a foundation, such as changes to location, charter, or council members, must be approved by its leading professional unit before submitting the change for MCA approval; and Coordinate with the agency in charge of foundation registration and other law enforcement agencies to investigate illegal activities.

The nonprofit may apply for formal registration with MCA only after the leading professional unit agrees to serve as its sponsor. Because the leading professional unit is liable for the nonprofit but does not necessarily benefit from its partnership, the system creates disincentives for the leading professional unit to agree to sponsor a nonprofit.

In fact, it is understood that certain PRC ministries are not interested in serving as a sponsor because they view this task as carrying only risk and no reward. Subject to rules and scrutiny of MCA and its sponsor, the nonprofit faces double approval, double supervision, and double liability.

The nonprofit must also meet capitalization requirements to be approved. Currently, however, China has not released a threshold for the registration of a representative office of a foreign foundation, except that such an office must conduct activities in line with public welfare and for the benefit of Chinese society.

Meanwhile, other INPOs have resorted to entering China without an established PRC legal entity, which effectively limits their scope and ability to carry out their intended purpose. Most INPOs are dependent on funding from bilateral donors, development banks, and governmental agencies such as the US Department of State, as well as supragovernmental organizations such as the United Nations and European Union.

Many of these organizations fund only nonprofits that are registered in the country in which they operate. SSOs, like SAs and foundations, are subject to the joint oversight of a registration and administration agency generally Ministry of Civil Affairs or provincial or local civil affairs authority and a professional agency such as a government ministry or agency at the provincial or local level.

Its assets are donated by individuals, legal persons, or other organizations Regulations on the Administration of Foundations RAF Article 2. Foundations, like SAs and SSOs, are regulated by both a registration and administration agency, usually the Ministry of Civil Affairs in Beijing or a provincial, municipal, or local Civil Affairs bureau or office, and by a professional agency such as the relevant government ministry or agency at the national, provincial, municipal, or local level.

In laws and regulations issued prior to the Foundation Regulations such as the Public Welfare Donations Law , the term "social organization" included foundations. Over the last 14 years, with the rapid increase of wealthy entrepreneurs and the emergence of tax laws encouraging individual and corporate giving, private foundations have grown very quickly and now far outnumber their public foundation counterparts.

Before the Charity Law, public fundraising status was highly coveted and enjoyed only by public foundations, many of which were GONGOs. Only a few private foundations were able to get public fundraising status. The Charity Law has effectively erased the distinction between public and private foundations by allowing all organizations that have held charitable organization status for two years to apply for public fundraising status Charity Law Article Accordingly, these organizations are commonly and more closely linked to the state than other types of NPOs.

Public schools and universities, scientific research institutes, and public social care institutions are generally public institutions. The three categories of social organizations can obtain charitable organization status in two ways.

One is to apply for the status when registering as a social organization. Alternatively, if the entity has already registered as a social organization, then it can apply for charitable status recognition following procedures in the Measures for the Designation of Charitable Organizations issued in September The vast majority are foundations, while the rest are social associations and social service organizations.

It appears that the Charity Law mentions public benefit trusts in order to clarify rules governing their establishment and governance, as well as to encourage their formation, given that very few public benefit trusts were established under the Trust Law. Chinese law distinguishes between NPOs that have a public benefit purpose and those that serve other purposes.

However, the reality is quite different, as China lacks a comprehensive, coherent, and detailed set of tax regulations for NPOs. As a result, tax bureaus and NPOs themselves are often not familiar with the preferential tax provisions, and receiving tax deductions or exemptions requires that both the NPO and the individual or enterprise making the donation undertake additional procedures. All foundations, some SAs, and most public institutions have public benefit status.

Informal NPOs registered as businesses or that are unregistered, however, are not eligible for public benefit status, even though operationally they are nonprofit and have a public benefit purpose. Registration for charitable organization status requires applying to the Ministry of Civil Affairs or local department of Civil Affairs. Among other requirements, the applicant must aim to carry out charitable rather than profit-making activities and must have a name and address, an organizational charter, necessary financial assets, and an organizational structure and person in charge Charity Law Article 9.

Article 4: Charitable activities shall abide by the principles of being lawful, voluntary, honest, and non-profit, and must not violate social morality, or endanger national security or harm societal public interests or the lawful rights and interests of other persons.

Article 5: The government encourages and supports natural persons, legal persons and other organizations in legally carrying out charitable activities that represent the core values of socialism and promote the traditional morals of the Chinese nation. The Measures for the Designation of Charitable Organizations detail how social organizations that registered before the Charity Law went into effect can receive charitable organization status.

An organization applying for charitable status needs to show that its members or board have approved the application for charitable designation. It must submit the application with supporting materials to the relevant Civil Affairs department. Charitable organizations may engage in fundraising, and, if they meet certain qualifications may engage in public fundraising, including online fundraising Charity Law Article Other benefits include special tax benefits, the preferential use of public land under certain conditions, and qualification to participate in government programs that purchase social services from charitable organizations Charity Law Chapter 9.

The Measures on the Administration of Public Fundraising by Charitable Organizations provide more detail on the criteria and process for charitable organizations seeking public fundraising credentials. The charitable organization must meet various requirements, such as setting up standard internal governance structures, maintaining full-time staff, participating in a social organization assessment, and complying with the law.

Social organizations that already enjoyed public fundraising privileges prior to the passing of the Charity Law will not need to reapply through this process. The new measures also address public fundraising over the Internet, as well as collaborative public fundraising arrangements in which social organizations lacking public fundraising credentials may carry out public fundraising in collaboration with social organizations that have those credentials.

Charitable organizations must disclose detailed information about their organization and activities, fundraising, and use of donated funds, particularly if the funds are raised through public channels Charity Law Chapter 8. Chinese law generally prohibits inurement for all NPOs except private schools. The founders of a private school are permitted to receive a "reasonable return" on their investment Law to Promote Private Education Article In addition, employees' compensation must be set with reference to the salaries set for employees of the supervising governmental agency or other unit, which means they generally mirror the salaries of civil servants.

The posts of chair and deputy chair of the board of directors or secretary general should not be taken by persons currently employed by state bodies. The legal representative of the foundation may not at the same time be the legal representative of any other organisation. Should a board member find there is a connection between their personal interests and the interests of the foundation, they should not take part in decision making related to the matter; nor should a board member, the supervisory official or their close relations have any kind of business dealings with the foundation.

The supervisory official and board members not serving in a full time post at the foundation may not be paid. The public institution must use all donations and subsidies in conformity with the purposes of the organization and the agreements with donors. Though the law and regulations do not explicitly prohibit a donor from making a conditional donation, various regulations limit how an NPO can use its property and income, which may imply that donors cannot revoke their contributions.

The regulations do not address whether members of a mutual benefit SA can reclaim their contributions when they cease being members. The founders of a private school may retain a proprietary interest in the property they contribute to a school. It is not yet clear whether they can recover their property upon dissolution of the private school.

Charitable or public interest NPOs may only use their assets for charitable purposes in accordance with their charter and the donation agreement, and must not be distributed among the founders, donors or members of the charitable organizations.

Additionally, charitable assets must not be privately divided, embezzled, withheld or misappropriated by any organization or individual Charity Law Article Because the State has formed virtually all public institutions and most SAs and foundations that exist today, the assets of a dissolved NPO generally are transferred to another NPO or to the State. When it is not feasible to do so, the registration and administration agency will arrange for the assets to be donated to public benefit organizations whose nature and purpose are similar to the one in question.

The Law to Promote Private Education provides that the remaining assets will be disposed of according to related laws or regulations, which have not been issued yet Article It is possible that the rules will allow founders to recover the property they contributed, but only to the extent of its original value. If the charter does not specify such organizations, the local department of the Ministry of Civil Affairs will be tasked with transferring the funds to such organizations.

After the liquidation process, the dissolved organization must apply for deregistration with the local department of the Ministry of Civil Affairs with which they registered, and the departments will announce the results to the public.

Different types of NPOs are able to qualify as legal persons, provided that they follow the appropriate registration procedures. As such, all NPOs have the power to engage in activities of legal persons, except to the extent that the law provides otherwise.

As noted in the Section III. NPOs face certain limitations on commercial activities. SAs, SSOs, foundations, and public institutions cannot themselves engage in for-profit activities, but they can invest in commercial entities unless the State Council provides otherwise. The Provisional Measures for Investment Activities of Charitable Organizations for Capital Preservation and Appreciation state that a charitable organization can either 1 directly purchase asset management products issued by financial institutions such as banks, trusts, securities, funds, futures, insurance asset management institutions, and financial asset investment companies, or 2 directly invest in equity through initiating startups, mergers and acquisitions, and participation in shares.

On the other hand, the Provisional Measures prohibit charitable organizations from 1 directly trading stocks, 2 directly purchasing commodities and financial derivatives products, 3 investing in life insurance products, 4 providing loans to individuals and enterprises in the name of investment, 5 making investments that fail to comply with national industrial policies, 6 making investments that may expose the organization to unlimited liability, 7 making investments that violate the purposes of the organization and may damage the reputation of the organization, and 8 engaging in other activities prohibited by national laws and regulations.

Though no explicit rules exist, NPOs are generally forbidden from engaging in political activity surrounding an election, except for mass organizations like the All-China Federation of Trade Unions and certain organizations affiliated with the Chinese Communist Party.

Despite these prohibitions, there are no formal legal rules explicitly restricting NPO involvement in the legislative process. Article 4 of the Constitution also guarantees, in formal terms, the equality of all national and ethnic groups in China, and prohibits any form of discrimination against minorities Constitution Article 4. A Chinese NPO may be controlled by a for-profit entity.

For-profit organizations commonly form or join social organizations, such as chambers of commerce, trade associations, or industry associations. Many SSOs and private foundations have been established by for-profit organizations. Founders of an SSO or a foundation are permitted to control it throughout its existence.

Although it is not explicitly provided in the regulations, control may be established by the statute of an SSO or a foundation. In practice, a public institution is wholly controlled by its founding organization, which is ordinarily a government agency. In theory, a Chinese NPO could be controlled by a foreign charitable organization, which must be disclosed in the affidavit accompanying its establishment.

According to the Regulations for the Administration of Foundations , foreign individuals and organizations may establish representative offices in China, and foreigners are eligible for the positions of president and officers of foundations as long as they reside in China no fewer than three months a year. The Measures for the Annual Inspection of Foundations issued by the Ministry of Civil Affairs in require that foundations and representative offices of overseas foundations provide their annual work report for the previous year to the relevant registration and administration organ for review.

An annual work report must include: financial statements, auditing reports, and information on donations, acceptance of donations, and offers of funding, as well as any changes in staffing or institution. The Measures for the Information Disclosure of Foundations issued by the Ministry of Civil Affairs in require foundations or representative offices of overseas foundations to disclose internal information and business undertakings to the general public.

The following information must be made generally available: 1 the annual work report of a foundation or representative office of an overseas foundation; 2 information on donation activities by the foundation; and 3 information on the welfare funding projects undertaken by the foundation. Reports should include information on annual fundraising and donation acceptance, the use and management of charitable assets, the implementation of charitable projects and also charitable organizations' staff wages and benefits.

Chapter 8 of the Charity Law has stricter, more detailed requirements for charitable organizations to disclose information regarding their organization, activities, fundraising, and use of donated funds, particularly funds raised through public channels.

These requirements will increase the reporting burdens on charitable organizations. In line with the renewed emphasis on transparency and information disclosure, the drafts of the revised regulations for SAs, SSOs, and foundations also contain more detailed requirements for disclosing information.

Since there are currently no tax exemptions for the latter three taxes, this section will focus on the exemptions to the Enterprise Income Tax. Under Article 26 of the new amendments, legal not-for-profit organizations are exempt from income tax provided that they meet relevant provisions.

Specifically, the income of "qualified not-for-profit organizations" is exempt from Enterprise Income Tax. The procedures for obtaining tax-exempt status require that the NPO obtain approval from the finance and tax departments under the State Council, in addition to other relevant ministries and agencies of the State Council.

Notably, any income of the qualified NPO arising from profit-making activities is not exempt from the Enterprise Income Tax unless such an exemption is set forth by the relevant department of finance or taxation of the State Council. Further, because tax offices are often unfamiliar with the tax regulations related to NPOs, income exemptions for Chinese NPOs appear to be more the exception than the rule. Additionally, informal NPOs are ineligible for such tax exemptions. Exceptions to this rule are rare.

Enterprises owned solely by public schools, for example, are exempted from a substantial part of the business tax and VAT. The income of scientific research institutes and higher educational institutions, if derived from the transfer of technology, is also exempted from business tax. Recent changes in tax legislation have increased the portion of taxable income that individuals and enterprises can deduct for public interest donations to qualified NPOs.

Individual taxpayers can now deduct up to 30 percent of their taxable income for public benefit contributions to legal NPOs Regulations for the Implementation of the Individual Income Tax Law, Article 24, and the amendment to the Individual Income Tax Law.

Enterprises can deduct up to 12 percent of their taxable income Enterprise Income Tax Law Article The State Council may also approve a full pre-tax deduction for charitable donations amendment to the Individual Income Tax Law.

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Projects and sectors not prohibited by the country refer to those not listed as prohibited sectors as specified in the Special Administrative Measures Negative List for Foreign Investment. Dividends and bonuses received by foreign investors on or after January 1, are eligible for the withholding tax deferral treatment and a refund for the tax already paid could be applied.

Eligible foreign investors can also apply for the treatment retrospectively within three years from the date the tax payment was made and claim a refund. When confronted with the constraints of remitting dividends, many multinational corporations attempt to repatriate profit from China via intercompany payments. Often, they attempt to achieve this by charging for supporting services such as human resources , information technology , or financing or intangible assets such as trademark , patent, or know-how provided to Chinese affiliates.

In comparison with remitting dividends directly, profit repatriation through intercompany payments has some advantages for some investors. Because there are less prerequisites, intercompany payments are often easy way to repatriate profits. For example, the FIE can make intercompany payments without going through the annual audit and tax compliance process. Further, the company can make intercompany payments when needed, rather than once per year for dividend remittance.

Remitting money through intercompany payments are more tax efficient as well. Although the intercompany transactions are subject to turnover taxes, surcharges, and possible withholding CIT, these intercompany payments can be deducted from the CIT taxable income by fulfilling certain requirements. Despite these many advantages, profit repatriation through intercompany payments bears more risk for tax investigation.

Chinese tax authorities put special scrutiny on intercompany service fees, and royalties paid by Chinese enterprises to the overseas related parties, because they regard the practice as a tool for avoiding tax and shifting profits. This is particularly the case when the payment is lack of business substance, when the payment is large, or when the recipient is located in low profit jurisdictions; the tax authorities are very likely to conduct special anti-avoidance investigations on such transactions.

Separately, the tax efficiency of this method could be further impacted when the provision of service in China by the foreign enterprises is deemed to constitute a permanent establishment PE. The statutory CIT withholding tax rate of 10 percent can be reduced to a lower rate if a tax treaty is applicable.

That is to say, certain overseas related parties might be not qualified to receive royalties at all or can only receive royalties to a limited amount. Under this condition, companies repatriating profits through intercompany payments have to maintain transaction documents as detailed as possible for demonstrating the authentic and beneficial nature of the intra-group transactions, in the case they are challenged by the tax authorities.

This substantially increases the compliance burden to the enterprises. In comparison with the other two channels introduced above, this channel is not only subject to various prerequisites, but also confronted with stricter scrutiny from the State Administration of Foreign Exchange SAFE and its local branches.

First, an FIE can only extend loan to a foreign company when the overseas company is a related party with which the FIE has an equity relationship. Second, an FIE can only start to extending overseas loans after it has been established for one year. Both the FIE and overseas loan recipient should have good record in complying with the foreign exchange rules.

For offshore lending that is over the limit, a case-by-case SAFE examination and approval will apply. And the FIE will not be allowed to extend any new loans before the loan ratio falls below the limit. Fourth, the overseas lending should be in line with general business principles.

For example, the rate of loan interests must be higher than zero. Further, the overseas shareholding company is generally expected to repay the money within five years. However, the FIE has no tax implications at the time of extending the loans. It is only required to pay 10 percent withholding tax and 6.

Among the above-mentioned channels, remitting profits as dividends is the most straightforward way, but it is subject to many prerequisites. Intercompany payment is a comparatively more convenient and tax efficient alternative, but it is subject to a high level of scrutiny from tax authorities. An FIE can also achieve cash repatriation by extending loans to the oversea entity. In practice, there exists some other indirect channels, such as remitting cash in the name of outbound direct investment ODI , remitting cash in the name of qualified domestic limited partner QDLP , or overseas loan under domestic guarantee.

However, none of these channels can avoid high compliance requirements and corresponding policy risks. Through careful planning and implementation, FIEs can collect required documents efficiently, control for potential risks, and a reasonable arrangement for cash flow.

China has faced a deluge of international criticism over its treatment of foreign businesses and the perceived China introduced the biggest changes to its individual income tax IIT system since at least with the pa Your email address will not be published. Save my name, email, and website in this browser for the next time I comment.

Notably, foreign groups such as schools, hospitals, and academic organizations carrying out exchanges or cooperation with their Chinese counterparts are outside the scope of the law Article To register a representative office, a foreign NGO must find and pair with a Professional Supervisory Unit that will support its application, which is then submitted to the MPS. Foreign NGOs that maintain a sustained presence in China but do not register a representative office are in violation of the law.

Professional Supervisory Unit: One of the government or government-affiliated organizations the MPS has approved to act as an official sponsor for a foreign NGO with a representative office i. Temporary Activity: If a foreign NGO has not registered an established representative office but seeks to work on a temporary basis in—or give grants to organizations in—China, the law requires that the NGO file for a temporary activity with the MPS.

It is unclear if short meetings need to be registered. There is no list or official guidance on approved CPUs. Skip to main content. You are here Back to Latest. November 1, What does the law do? How does this differ from previous regulation of foreign NGOs? Whom does the law affect?

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