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June 30, 2022

Hong Kong proposes to refine its foreign source income exemption regime for certain passive income

Executive summary

In response to the concern of the European Union (EU) over potential double non-taxation arising from Hong Kong’s foreign source income exemption (FSIE) regime for certain passive income, Hong Kong has launched a consultation on a proposed refinement to the FSIE regime. This refinement is intended to enable Hong Kong to be removed from the EU watchlist of non-cooperative jurisdictions for tax purposes.

The related legislative bill is planned to be introduced in the last quarter of 2022 so as to bring the refined FSIE regime into force from 1 January 2023 with no grandfathering arrangement.

This Alert summarizes the key provisions of the tax regime.

Detailed discussion

While Hong Kong will continue to adhere to the territorial source principle of taxation, it is proposed that Hong Kong constituent entities of a multinational enterprise group, wherever headquartered and irrespective of group asset size and revenue, will be subject to a refined FSIE regime in respect of in-scope offshore passive income received in Hong Kong.

The refined FSIE regime will apply to four types of passive income, namely: (i) interest; (ii) income from intellectual properties; (iii) dividends; and (iv) disposal gains in relation to shares or equity interest. Active income (e.g., trading profits, service income etc.) will continue to be exempt from profits tax if it is regarded as offshore sourced based on Hong Kong’s existing source rules.

The in-scope offshore passive income would continue to be exempt from profits tax in Hong Kong under the FSIE regime if the entity concerned satisfies the economic substance or nexus approach requirements. Pure equity holding companies will be subject to a reduced economic substance requirement.

To avoid possible double taxation and relieve compliance burdens, the refined FSIE regime will introduce a participation exemption in respect of offshore dividends and disposal gains in relation to shares or equity interest. Regardless of whether the economic substance requirement is met, the relevant income will continue to be tax-exempt in Hong Kong if the conditions are satisfied, subject to specific anti-abuse rules.

Recognizing that covered taxpayers would suffer double taxation if they do not qualify for exemption under the refined FSIE regime, a unilateral tax credit will also be introduced such that overseas taxes paid in respect of in-scope offshore passive income received from jurisdictions that have not concluded comprehensive double taxation agreements with Hong Kong will be creditable against the Hong Kong tax payable on the same income under the refined FSIE regime.


For additional information with respect to this Alert, please contact the following:

Ernst & Young Tax Services Limited, Hong Kong

Ernst & Young LLP (United States), Hong Kong Tax Desk, New York

Ernst & Young LLP (United States), Asia Pacific Business Group, New York

Ernst & Young LLP (United States), Asia Pacific Business Group, Chicago


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