Tác động của BEPS đối với hệ thống thuế lãnh thổ của Hồng Kông

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Understanding BEPS and Its Impact on Hong Kong

The Base Erosion and Profit Shifting (BEPS) initiative, developed by the OECD and G20, represents one of the most significant international tax reforms in recent history. For Hong Kong, a jurisdiction long recognized for its territorial tax system and business-friendly environment, BEPS implementation has brought substantial changes to tax compliance, reporting obligations, and audit procedures.

The BEPS 2.0 framework, particularly Pillar Two's global minimum tax, marks a paradigm shift in how Hong Kong taxes multinational enterprises. On 6 June 2025, Hong Kong enacted the Inland Revenue (Amendment) (Minimum Tax for Multinational Enterprise Groups) Ordinance 2025, implementing a 15% global minimum tax that applies retrospectively to fiscal years beginning on or after 1 January 2025.

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Pillar Two: Global Minimum Tax in Hong Kong

Legislative Framework and Scope

The global minimum tax regime applies to multinational enterprise (MNE) groups with annual consolidated revenue of EUR 750 million or above in at least two of the four fiscal years immediately preceding the current fiscal year. This represents a fundamental departure from Hong Kong's traditional territorial tax approach.

The Hong Kong government estimates that Pillar Two implementation will generate approximately HKD 15 billion in annual tax revenue, demonstrating the significant fiscal impact of these international tax reforms.

Key Mechanisms

Safe Harbors and Simplifications

To reduce compliance burden, Hong Kong has implemented several OECD-approved safe harbors:

• Transitional CbCR Safe Harbour: Relieves in-scope MNE groups from full GloBE calculations when certain CbC reporting conditions are met
• Transitional UTPR Safe Harbour: Temporary relief from UTPR calculations during initial implementation phase
• Qualified Domestic Minimum Top-up Tax (QDMTT) Safe Harbour: Simplifies compliance for jurisdictions with qualifying domestic minimum taxes
• Simplified Calculations for Non-material Entities: Reduced calculation requirements for constituent entities below materiality thresholds

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Country-by-Country Reporting Requirements

Applicability and Thresholds

Hong Kong's CbCR requirements, implemented under the Inland Revenue (Amendment) (No. 6) Ordinance 2018, apply to MNE groups with consolidated annual revenue of at least HKD 6.8 billion (approximately EUR 750 million) that have constituent entities or operations in two or more jurisdictions.

The filing obligation applies to reporting fiscal years commencing on or after 1 January 2018, with Hong Kong actively exchanging CbC reports with approximately 120 jurisdictions through bilateral exchange agreements.

Filing Obligations

A Hong Kong entity must file a CbC report if it is the Ultimate Parent Entity (UPE) of the MNE group or has been designated as the Surrogate Parent Entity (SPE) for CbCR purposes. Reports must be electronically filed via the IRD's CbCR Portal using the OECD CbCR XML schema.

Report Contents

The CbC Report requires aggregate tax jurisdiction-wide information including:

• Total revenues from related and unrelated party transactions
• Profit or loss before income tax
• Income tax paid and accrued
• Stated capital and retained earnings
• Number of employees on a full-time equivalent basis
• Tangible assets excluding cash or cash equivalents

Penalties for Non-Compliance

Failure to comply with Hong Kong's CbCR requirements carries significant penalties:

• Initial non-compliance: Fines up to HKD 50,000 for failure to submit or inaccurate reporting
• Persistent non-compliance: Additional penalties up to HKD 100,000 following court order
• Increased scrutiny: Non-compliance triggers enhanced IRD audit attention and potential transfer pricing investigations

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Transfer Pricing Documentation: The Three-Tiered Approach

Overview and Requirements

Hong Kong's transfer pricing regime mandates a three-tiered standardized documentation approach aligned with OECD BEPS Action 13 guidelines. This framework requires entities to articulate and execute consistent transfer pricing policies while providing the IRD with comprehensive information for assessing transfer pricing risks.

Master File

The Master File contains high-level information on the MNE group's global business operations and transfer pricing policies, including:

• Organizational structure and ownership details
• Description of the MNE's business operations
• Intangible assets and intercompany agreements
• Group's transfer pricing policies
• Financial and tax positions of the MNE group

Local File

The Local File provides detailed information on specific related party transactions of the Hong Kong entity, including:

• Economic characteristics of controlled transactions
• Amounts involved in each class of transactions
• Functional analysis demonstrating roles, risks, and assets
• Transfer pricing analysis demonstrating arm's length pricing
• Financial information supporting the analysis

Country-by-Country Report

As described in the previous section, the CbC Report provides an overview of global income allocation, profits, taxes paid, and economic indicators for each jurisdiction where the MNE group operates.

Exemptions from Documentation Requirements

A Hong Kong entity satisfying any two of the following conditions is exempt from preparing Master File and Local File:

If the business size exemption does not apply, a further exemption exists based on controlled transaction volumes:

• Property transfers: Not exceeding HKD 220 million (excluding financial assets and intangibles)
• Financial assets: Not exceeding HKD 110 million
• Intangibles transfers: Not exceeding HKD 110 million
• Other transactions: Not exceeding HKD 44 million (services, royalties, etc.)

Timing and Language Requirements

The Master File and Local File must be:

• Prepared within 9 months after the end of the entity's accounting period
• Retained for no less than 7 years after the end of the accounting period
• Prepared in English or Chinese
• Submitted to the IRD within 1 month of a request (via Form IR1475)

2025 Updates and Alignment with OECD Guidelines

The Inland Revenue (Amendment) (Minimum Tax for Multinational Enterprise Groups) Ordinance 2025, enacted on 6 June 2025, updates Hong Kong's transfer pricing rules to align with the 2022 OECD Transfer Pricing Guidelines. This alignment ensures Hong Kong's transfer pricing framework remains consistent with international best practices.

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The Foreign-Sourced Income Exemption (FSIE) Regime

Background and EU Compliance

Hong Kong's inclusion on the EU's grey list of non-cooperative jurisdictions in October 2021 prompted the implementation of the FSIE regime. The Inland Revenue (Amendment) (Taxation on Specified Foreign-sourced Income) Ordinance 2022, enacted on 23 December 2022, established the framework effective from 1 January 2023.

On 20 February 2024, Hong Kong was successfully removed from the EU watchlist, confirming that the jurisdiction fulfilled its commitments to strengthening tax good governance standards.

FSIE 1.0 and FSIE 2.0

FSIE 1.0 (effective 1 January 2023) covers:

• Foreign-sourced dividends
• Foreign-sourced interest
• Income from intellectual property (IP income)
• Gains from disposal of equity interests

FSIE 2.0 (effective 1 January 2024) expanded coverage to include:

• Foreign-sourced disposal gains on assets other than equity interests

Economic Substance and Nexus Requirements

Nexus Approach for IP Income

Under the nexus approach aligned with OECD BEPS Action 5, only income from qualifying IP assets can qualify for preferential tax treatment. The nexus ratio is defined as:

Nexus Ratio = Qualifying Expenditures / Overall Expenditures
Where qualifying expenditures represent costs incurred to develop the IP asset, excluding acquisition costs and expenditures outsourced to related parties.

Interaction with Pillar Two

Section 15N of the Inland Revenue Ordinance has been amended to clarify the interaction between top-up taxes chargeable in foreign jurisdictions and the "subject to tax" condition under the participation requirement of the FSIE regime. This ensures proper coordination between Hong Kong's FSIE rules and the global minimum tax framework.

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Changing Audit Focus and IRD Enforcement Trends

Intensified Transfer Pricing Scrutiny

The IRD has significantly increased its focus on transfer pricing compliance in 2025. Key enforcement trends include:

• Larger scale audits: The IRD is conducting transfer pricing reviews and audits on a more regular basis and broader scale
• Form IR1475 requests: The IRD frequently requests taxpayers to submit Form IR1475, which summarizes key transfer pricing information from Master File and Local File
• One-month deadline: Form IR1475 must be submitted within one month of IRD request
• Severe penalties: Failure to submit IR1475 or inclusion of errors can lead to prosecution and fines up to HKD 100,000, plus potential tax adjustments

Advance Pricing Arrangements (APAs)

In response to increased audit activity, more taxpayers are utilizing the IRD's APA program, introduced in April 2012 with a statutory regime established in July 2018. APAs provide certainty by allowing taxpayers to reach prospective agreements on transfer pricing arrangements.

The IRD has received numerous unilateral and bilateral APA applications involving Double Taxation Agreements (DTAs) with various jurisdictions, including:

• Mainland China
• Indonesia, Italy, Japan
• Korea, Malaysia
• Netherlands
• Thailand, United Kingdom

Mandatory E-Filing Requirements

As part of Hong Kong's tax digitalization journey, the IRD has implemented mandatory e-filing requirements:

• Phase 1: Entities of in-scope MNE groups must e-file profits tax returns for years of assessment beginning on or after 1 April 2025 (2025/26 onwards)
• GloBE Information Return (GIR): In-scope groups must identify the designated filing entity and jurisdiction providing the GIR to Hong Kong
• Electronic submission: All CbC reports must be filed electronically via the IRD's CbCR Portal using OECD XML schema

IRD-HKICPA Annual Meeting Insights

The minutes of the 2024 annual meeting between the Hong Kong Institute of Certified Public Accountants (HKICPA) and the IRD, published in May 2025, provide valuable insights into the IRD's views on various tax issues, including:

• Profits tax treatment of specific transactions
• Salaries tax matters
• Stamp duty considerations
• BEPS 2.0 implementation guidance
• Transfer pricing compliance expectations

Documentation as Defense Strategy

Even if a Hong Kong company meets exemption thresholds and is not required to prepare Master File and Local File, it must still comply with Transfer Pricing Rule 1 (arm's length principle). Maintaining comprehensive transfer pricing documentation serves as a critical defense strategy, helping to:

• Justify transfer pricing positions during audits
• Mitigate penalties for non-compliance
• Demonstrate good faith compliance efforts
• Reduce audit duration and associated costs

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BEPS Compliance Measures: Summary Table

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Practical Compliance Strategies

For Large Multinational Enterprises

MNEs with revenue exceeding EUR 750 million should implement comprehensive compliance frameworks addressing:

• Pillar Two readiness: Assess ETR calculations, identify low-taxed jurisdictions, evaluate HKMTT exposure
• GIR preparation: Identify designated filing entities, coordinate with group tax function, ensure data collection processes
• CbCR compliance: Maintain robust data collection systems, ensure timely filing, coordinate with tax authorities across jurisdictions
• Transfer pricing documentation: Prepare comprehensive Master File and Local File, update annually, maintain contemporaneous documentation
• Safe harbor analysis: Evaluate eligibility for transitional and permanent safe harbors to reduce compliance burden

For Mid-Size Enterprises

Entities approaching but not exceeding thresholds should:

• Monitor revenue growth: Track consolidated group revenue relative to EUR 750 million threshold
• Prepare for documentation: Implement transfer pricing policies and documentation processes before reaching thresholds
• Assess controlled transactions: Evaluate volumes of related party transactions against exemption thresholds
• Maintain arm's length pricing: Ensure compliance with Transfer Pricing Rule 1 regardless of documentation exemptions

For Entities with Foreign-Sourced Income

Companies receiving foreign-sourced passive income should:

• Conduct substance review: Assess adequacy of Hong Kong employees and operating expenditure
• IP nexus compliance: Calculate nexus ratios for qualifying IP income
• Documentation preparation: Maintain evidence of economic substance and nexus compliance
• Pillar Two coordination: Understand interaction between FSIE regime and top-up tax provisions

Advance Preparation for IRD Audits

Given intensified IRD enforcement, entities should proactively:

• Maintain contemporaneous documentation: Prepare transfer pricing documentation at time of transaction, not retrospectively
• Conduct annual reviews: Update Master File and Local File annually, reassess functional analysis
• Prepare Form IR1475: Maintain summary information readily available for IRD requests
• Consider APAs: Evaluate bilateral or multilateral APAs for significant related party transactions
• Engage professionals: Work with experienced transfer pricing advisors and tax counsel

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Future Outlook and Emerging Trends

UTPR Implementation

While the IIR and HKMTT are effective from 1 January 2025, Hong Kong has yet to announce the timeline for implementing the Undertaxed Profits Rule (UTPR). The UTPR serves as a backstop mechanism, ensuring that top-up tax is collected even when the parent jurisdiction has not implemented the IIR.

MNEs should monitor announcements regarding UTPR implementation and assess potential exposure, particularly for groups with parent entities in jurisdictions that have not adopted Pillar Two rules.

Continued Evolution of Transfer Pricing Standards

The 2025 amendments aligning Hong Kong's transfer pricing rules with the 2022 OECD Transfer Pricing Guidelines represent ongoing evolution. Taxpayers should expect:

• Continued refinement of guidance and administrative practices
• Increased IRD sophistication in transfer pricing analysis
• Greater focus on intangible asset valuation and cost contribution arrangements
• Enhanced scrutiny of financial transactions and intra-group financing

Regional Tax Cooperation

Hong Kong's participation in international tax information exchange frameworks continues to expand. With over 4,450 bilateral relationships for CbC report exchange globally, and Hong Kong's active participation in BEPS implementation, taxpayers should anticipate:

• Increased cross-border information sharing
• Coordinated multi-jurisdictional audits
• Greater alignment with Mainland China transfer pricing enforcement
• Expansion of bilateral APA networks

Digitalization and Technology

The IRD's commitment to tax digitalization, evidenced by mandatory e-filing requirements, signals ongoing technological advancement:

• Expanded electronic filing requirements across tax types
• Enhanced data analytics capabilities for risk assessment
• Real-time compliance monitoring systems
• Automated information exchange with treaty partners