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Failure to File on time: Failure to file an annual return on time can have
including the imposition of the late filing penalty, prosecution of the company and/or its directors, the loss of the audit exemption or the possible involuntary strike-off and dissolution of the company. (see below).
Extension of time to file
Under section 343 of the Companies Act&2014, applications&for an extension of time to file an annual return may be made to either the High Court or to the District Court. The Court may, if it is satisfied that it would be just to do so, make an Order extending the time in which the annual return of the company, in relation to a particular year, may be delivered to the Registrar of Companies. An application to the Court can only be made in respect of an annual return which has not already been delivered to the CRO. Only one Order may be made in respect of a particular year.
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Where the Registrar has commenced&proceedings for late or non- filing of annual returns, any subsequent applications by the company concerned under section 343(5) Companies Act 2014, will be objected to by the Registrar on the basis that proceedings have already been commenced against the company for the said late filing of annual returns.
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Application
to the Court is made on notice to the Registrar by means of an Affidavit. The time period which may be extended by the Court is the 28 days after the ARD provided for in sections 343(2) and (3), CA 2014.
Where the Court makes an Order extending the time to file, the company must&deliver the Order&to the CRO within the time period specified in the Order, usually within 28 days of the Order being made.
If the company&delivers the annual return to the CRO within the extending time period specified by the Court Order, that annual return&will be deemed by the CRO to have been received on time and the consequences of late filing (late filing penalties / loss of audit exemption) will not apply to that annual return
DISTRICT COURT - APPLICATION FOR ORDER EXTENDING TIME TO FILE ANNUAL RETURN
Procedures to be followed: see also .
Please note that a company must have legal representation when making an application to court:
1. An application must first be made to the District Court for&the district in which the company's&registered office is situated for a court date - see&.&
2. A copy of the notice in
containing the date and time of the court hearing must be served on the&Registrar along with a copy of&the company's&Affidavit (), thereby putting the Registrar on Notice&in accordance with&section 343(5), CA 2014. The Form 93B.1 must be signed by the Applicant or by the Solicitor for the Applicant.
3. The Notice to the Registrar must be delivered to the CRO not later than 21 days before the Court date. Otherwise it cannot be accepted.
4. The Form 93B.1 must state the annual return year in question, the company's current ARD, and the date to which the extension is sought. The time period which may be extended by the Court is the 28 days after the ARD provided for in sections 343(2) and 343(3)&Companies Act 2014.
5. The CRO will issue a letter acknowledging that the Registrar has been put on Notice to the Applicant or its Solicitor which the company must provide to the Court, along with the Form 93B.1 and Affidavit not later than 4 days before the Court date.
6. If the Judge grants a Court Order extending the time to file, the Order will show (i) the date to which the extension is granted and (ii) the date by which the Order must be delivered to the Registrar (will normally be 28 days).
7. If the Court Order is not delivered to the Registrar by the date specified at 6(ii), it cannot be accepted by the CRO as the company will be in breach of the terms of the Order.
8. If granted an extension of time to file, the company must either
(i) deliver a paper annual return (B1 & financial statements) to the CRO by the date to which the extension has been granted, or
(ii) submit an e-B1 by the extended date and complete the filing within 28 days of that date.
9. If the company delivers or submits its annual return after the date to which the extension has been granted, it will be deemed to be late and will be subject to late filing penalties and loss of audit exemption for two years in the normal way.
10. If the original court date is changed or the case is adjourned, the company must immediately inform the Registrar of the new court date.
HIGH COURT
Please note that a company must have legal representation when making an application to court The application is by means of an affidavit on notice to the Registrar.&
Please note:
(1) Under Section 343(7), Companies Act 2014, a company whose annual return should have been delivered before 1 June 2015&CANNOT apply to the District Court for an extension of time to file that annual return.
The Registrar&WILL&OBJECT&to any application where the annual return should have been delivered prior to 1 June 2015.
(2) Under District Court Rules - Para(4), SI No 256 of District Court (CA2014) Rules 2015, the Affidavit to the District Court must explain why it was not possible to prepare the annual return and set out, and verify, any facts supporting the reasons why the annual return was not delivered to the Registrar on time.
The Registrar reserves the right to object to any application where the reasons provided in the Affidavit and the supporting facts do not explain or verify why it was NOT POSSIBLE to deliver the annual return on time.
(3) A dissolved company does not have a legal existence until such time that it is restored to the Register.
The Registrar WILL OBJECT to any application made by a dissolved company for an extension of time.
Late Filing Penalty
A late filing penalty of &100 becomes due in respect of an annual return on the day after the expiry of the filing deadline, which deadline is 28 days after the effective date of the return, with a daily penalty amount of &3 accruing thereafter, up to a maximum penalty of &1,200 per return. This penalty is in addition to the standard filing fee of &20 per return. Revenue have confirmed that late filing penalties are not tax deductible.
Prosecution
In addition, an on-the-spot fine may be imposed by the CRO where the company has a record of persistent late filing and/or summary prosecution of the company and/or any officer in default. Fines of up to& &5,000 can be imposed on a conviction for breach of the annual return filing requirements - .
Strike off&
In addition, a company may be struck off the register and dissolved for failure to file an annual return. If a company is struck off, the assets of the company become vested in the Minister for Public Expenditure, and if the business continues to trade, the owners will no longer enjoy the benefit of limited liability and so are personally responsible for any debts incurred so long as the company remains dissolved. Any person, who was a director of a company at the date of sending to that company of a strike off notice due to the non-filing of annual returns, may be disqualified from acting as director by the High Court, where the company is struck off leaving outstanding liabilities. Such order may be made by the Court on the application of the Office of the Director of Corporate Enforcement. Link to .
Audit exemption
If a company&s annual return for the current year or the previous year was not filed on time, the company cannot avail of the audit exemption. Please see.
Delay/non delivery of documents posted to the CRO:
CRO receives regular requests from Companies to treat annual returns lost or delayed in the post as received on time.
Section 343(2), Companies Act 2014, places the responsibility on the company itself for ensuring prompt delivery of annual returns to the Registrar. Therefore, where a document is delivered to the CRO after its filing deadline as a result of being lost or delayed in the postal system, the law leaves the CRO with no option but to treat it as being late.
The only circumstance where CRO will consider making an exception to this rule is where the company has sent the document using a time guaranteed service on a date which, under the guarantee, should have resulted in on-time delivery to the CRO and where the service provides proof of delivery or tracks the document to its destination. In such circumstances, CRO will require independent documentary evidence of the date of despatch of the document and proof of delivery.
There are a number of service providers offering this type of time guaranteed delivery service. For example, An Post has confirmed to CRO that EXPRESS POST offers a guaranteed next day delivery service with tracking facilities within the State.
However, An Post makes it clear that REGISTERED POST DOES NOT GUARANTEE NEXT DAY DELIVERY. Therefore, if a document is sent to the CRO by Registered Post and is delivered after the filing deadline, CRO has no option but to treat it as being late.
If a company finds itself in this situation, it can apply to the District Court for extra time to file its annual return under Section 343(5), Companies Act 2014. The Court may, if it is satisfied that it would be just to do so, make an Order extending the time in which the annual return may be delivered to the Registrar. Where the Court makes such an Order, and the company delivers the annual return to the CRO in accordance with the Order, that annual return will be deemed by the CRO to have been received on time and the consequences of late filing (late filing penalties / loss of audit exemption) will not apply to that annual return.
For further information on the District Court process, see CRO No.39 or CRO website:&
If you are a member of the DX mail network you can ensure next day delivery by using DX&s Express Registered Post. The DX number for the CRO is: DX 271 004, Carlow 2 for O&Brien Road, Carlow.&
Alternatively, presenters can hand deliver to the
at&Bloom House, Gloucester Place Lower, Dublin 1&where you will be provided with a receipt for your documents. The Public Office is open from 9.30am to 4.30pm and is less busy in the morning time.
Electronic Filing:
Electronic filing reduces the risk of late filing of your annual return.&All companies must&file&the B1 electronically but&you have an extra 28 days in which to submit the signature page and accounts and the filing fee is only &20. For more information on e-filing, please see .
Fully electronic filing of an annual return is&possible - the documents can be signed and certified by means of ROS online signing certificates, paid for by CRO Customer Account or Credit/Debit card and financial statements uploaded to the B1 as a PDF attachment.
This removes the risk associated with posting entirely as these documents do not need to be posted but will be listed for processing as soon as the accounts are uploaded.
However, in light of the very serious consequences of late filing (ie penalties and loss of audit exemption), CRO exhorts companies not to leave it to the last day to submit your B1 on-line as there is a risk that a temporary issue with your PC, your broadband service, web browser or server could prevent you from completing the filing on time.
Practical steps in delivering documents to the CRO:
Use a delivery service which guarantees next working day delivery and provides proof of delivery.
When filing electronically, avoid photocopying or faxing the signature pages as this can result in a deterioration of the barcode and it may not be possible to scan it in the CRO.
Avoid long covering letters - if there is something important that needs be noted by the CRO, highlight it in in large bold letters, eg if company is close to being struck off the Register, mark the covering letter "ON STRIKE-OFF LIST".
Staple documents together, especially cheques - do not use paper clips.
Letters posted to the CRO must have the correct value stamp or frank on the envelope. If not, it will delay delivery of your document. There is no Freepost facility in operation in relation to items posted to CRO.Need help with your Publication Store orders? Want to leave a comment or question?
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China Expatriate Annual Income Tax Reporting for 2010 Tax Year
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Update (January 15, 2013): For information regarding expatriate income tax filing for the 2012 tax year, .
Jan. 18 – Individuals residing in China are subject to individual income tax (IIT). Expatriates who are employed in China are liable for IIT from either the first day they arrive in China or their first official working day. Be aware that the China Tax Bureau may take the arrival date as the trigger point for tax liabilities. They must file a monthly tax return as well as an additional annual return. Penalties for late filing can be up to five times the amount that was due.
Tax liabilities of foreigners generally depend on the period of time an individual spends in China and the source of income. Individuals who spend less than 90 days in one calendar year in China are exempt from IIT if the employment income is paid by an overseas entity.
Residents of
may stay in China for up to 183 days (instead of 90 days) without facing any tax obligations in this case.
If an individual is paid by a China entity, any income derived from working in China will be taxable.
Individuals who stay in China for more than 90 (183) days, but less than a year, are subject to personal income tax on their employment income derived from work performed in China – regardless of which entity is paying.
Individuals who reside in China for more than one year, but less than five years, are subject to personal income tax on both China-sourced and foreign-sourced income borne by a China-based entity. Foreign individuals who reside in China for more than five years are taxed on their worldwide income.
A foreign individual who holds the position of legal or chief representative of a China-based entity is automatically liable for paying income tax also on employment income derived from work performed outside China and paid by the China-based entity.
IIT rates for employment
Income from wages and salaries is taxed according to the following progressive rates, ranging from 5 percent to 45 percent. Monthly taxable income is calculated after a standard monthly deduction of RMB2,000 for local employees. For foreign individuals working in China (including residents of Hong Kong, Taiwan and Macau), the standard monthly deduction is RMB4,800.
Tax Payable = Taxable Income x Applicable Tax Rate – Quick Calculation Deduction
If the individual income tax is borne by the employer, a different tax rate table will be used to reflect the tax-on-tax effect.
Employment benefits
For IIT purposes, taxable income refers to “wages, salaries, bonuses, year-end bonus, profit shares, allowances or subsidies or other income related to job or employment.”
Certain employment benefits for foreign individuals could be specifically treated as not being taxable under the IIT law if certain criteria can be met. These include:
Employee housing costs (with supporting invoices)
Reasonable home leave fares of two trips per annum for the employee (with supporting invoices)
Reasonable employee relocation and moving costs (with supporting invoices)
Reasonable reimbursement of certain meals, laundry, language training costs and children’s education expenses in the PRC (with supporting invoices)
Any cash allowance paid to cover expected work-related expenditures (such as an entertaining or travel allowance) will be fully taxable to an employee. IIT may be reduced by reimbursing specific work-related expenses incurred by an employee (which may include entertainment, health or social club fees, local travel, newspapers and journals, telephone costs, etc.) instead of paying an allowance. The expense reimbursement may not be subject to IIT if prescribed administrative procedures are followed.
IIT rates for income other than employment income
P contracting and leasing
Operating profit of individual industrialists and merchants’ production and business operations or from the contracting or leasing of operations of enterprises and institutions is subject to tax at progressive rates ranging from 5 percent to 35 percent. The 35 percent marginal rate applies to annual taxable income (gross revenue less allowable costs, expenses and losses) over RMB50,000.
Income of authors
Such income is taxed at a flat rate of 20 percent, applied to 70 percent of gross.
Compensation for personal services
Such income is taxable at 20 percent if the taxable income (after allowable deductions) from a single payment does not exceed RMB20,000; 30 percent for the portion over RMB20,000 but not exceeding RMB50,000; and 40 percent for the portion exceeding RMB50,000.
Royalties, interest, dividends, leases on or assignment of property, other income
Such income is taxed at a flat rate of 20 percent.
Allowable deductions
On income from the contracting and leasing of operations of enterprises and institutions, a monthly deduction of requisite expenses of RMB2,000 is allowed. On income from compensation for personal services, royalties, or leases on property, a deduction of RMB800 is allowed if the income received in a single payment is less than RMB4,000. If the income received in a single payment is more than RMB4,000, a 20 percent deduction is allowed. No deduction is allowed against income from interest, dividends, bonuses or other income. For transfers of property, the original cost plus reasonable expenses are deductible.
Tax filing and payment
IIT is normally withheld from wages or salaries by employers and paid to the tax authorities on a monthly basis. Individual income tax returns must be filed within seven days following the end of each month.
Annual IIT self reporting requirement
Taxpayers who meet one the following five conditions should file self-declarations of individual income taxes.
An annual income of more than RMB120,000
Income derived from two or more places inside the People’s Republic of China
Income derived partly or fully from sources outside the People’s Republic of China
Have received taxable income but not paid tax
Other conditions regulated by the State Council
Information included in the IIT declaration form
Important information that should be included in the IIT declaration form includes: name, ID type and number, profession, employer, place of residence, address in China, post code and telephone number, as well as tax data such as the annual amount of any different sourced incomes, taxes payable, taxes prepaid and withheld, foreign tax credit and taxes owed or overpaid. In addition, foreigners should declare their nationality and date of arrival in China.
Expatriates in China requiring assistance with their annual returns may contact
at . The firm’s brochure can be downloaded .
Parts of this article were taken from the .
Related Reading
In this issue of China Briefing we discuss expatriate individual income tax filings together with permissible tax deductions and allowances.
A comprehensive overview of all the taxes foreign investors are likely to encounter when establishing or operating a business in China. (PDF priced at US$40)
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