国家税务总局关于外国企业向我国转让无形资产征收营业税问题的批

国税函[1998]797号
颁布日期：19981221 　实施日期：19981221 　颁布单位：国家税务总局

　　CaiShuiHan [1998] No.797

　　December 21, 1998

　　The Ask for Instruction on the Sales Tax by the Local Taxation¹ Bureau of JiLin Province (JiDiShuiLiuZi [1998] No.301 ) has been received. Through study, the issue how the sales tax of the intangible assets transferred into the enterprises within the territory of China should be paid by the foreign enterprises is replied as follows:

　　I. The Article 1 of the Interim² Measures of Sales Tax of the PRC (hereinafter referred to as the Measures) prescribes that the enterprises and individuals that transfer the intangible assets within the territory of China should be taxpayer³ of sales tax and pay the sales tax according to this measure. The Article 7 of the Rules for Implementation⁵ of the Interim Measures of Sales Tax of the PRC (hereinafter referred to the Rules) stipulates⁶ the intangible assets transferred that are used within the territory of China should be regarded as the assets transferred within the territory of China. The fifth plenary session of the 8th Standing⁷ Committee of the National People's Congress make a decision that the enterprises with foreign investment and foreign enterprise are applied⁸ to the interim measures on added-value, consumer tax and sales tax and etc from January 1, 1994 distributed by the State Council. According to hereinabove, the transferred into our country by the foreign enterprises that have not established the institutions within the territory of China belong to the intangible assets transferred within the territory of China. It should be levied⁹ the sales tax when the intangible assets transferring occurs after January 1, 1994. The Circular of the State Administration of Taxation on Issues Concerning Sales Tax of Earnings¹⁰ From Transferring the Intangible Assets into Our Country by the Foreign Enterprises(GuoShuiFa [1998] No.4) distributed by the State Administration of Taxation in January 1998 reiterates¹¹ and emphasizes that transferring the intangible assets into our country by the foreign enterprises should be levied sales tax in accordance with the relevant provisions of the Measures and the Rules for Implement⁴.

　　II. The design project and labor¹² services charge that have not be indicated in the transfer contract that happen beyond our boundary should be levied the sales tax as the labor services provided within the territory of China.

　　III. The sales tax of the foreign enterprises that have not established the institutions within the territory of China should be paid and deducted¹³ on a commission base by the agents under the 1st article 29th paragraph of the Rules. Without agent, the consignor¹⁴ or the buyer should deal it. That the above agent pays tax means that agents should be the obligors of withholding¹⁵ tax if the foreign enterprises settle accounts with the domestic buyers through agents. The consignor or buyers are the obligors of withholding tax if the foreign enterprises settle accounts with the domestic buyers without agents.