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Frequently Asked Questions & Answers on Completion of Supplementary Form S9 – Qualifying aircraft lessor (applicable for year of assessment 2018/19 and subsequent years)
Introduction
For the benefit of the tax paying public and their tax representatives, some frequently asked questions and their answers are listed below for general information and guidance.
Section 1 – Basis Period
1.
Q:
Can I report different basis periods for the return and the form?
A:
No. The basis period of both of the return and the form should be the same.
Section 2 – Business Operations
2.
Q:
Should I count the total number of aircrafts of the group for section 2.1?
A:
No. You only need to count the number of your own aircrafts that were leased out during the basis period.
3.
Q:
I have no information as to the jurisdiction of tax residence of the lessees that transacted with me. How should I fill in for section 2.3?
A:
You should provide the information to the best of your knowledge. Please ascertain from the lessees on their jurisdictions of tax residence.
4.
Q:
For the purpose of section 2.3, do I need to state the exact amount of lease payments derived from each of the lessees which are not Hong Kong tax residents?
A:
No. You only need to state the name of the three main jurisdictions of tax residence of the lessee which are not Hong Kong residents. If there are less than three jurisdictions, just state the name of the relevant jurisdiction(s).
5.
Q:
How should I determine whether a jurisdiction is a "main" one?
A:
You are required to provide the name of three jurisdictions of the lessees from where you have received the greatest amount of the lease payments in aggregate during the basis period.
6.
Q:
I have incurred capital expenditure on the aircraft, but I have also leased the aircraft to a Hong Kong aircraft operator before and claimed depreciation allowances on the aircraft concerned. Which box should I tick for section 2.4?
A:
You should tick the first box but you should not tick the two sub-boxes. In such situation, even if you are a qualifying aircraft lessor, your assessable profits will not be computed by reference to the 20% tax base concession.
7.
Q:
What is meant by "connected person"?
A:
| Under section 14G(1) of the Inland Revenue Ordinance ("IRO"), a person is a connected person of a corporation if the person is – | ||
| (a) | an associated corporation of the corporation; or | |
| (b) | a person (other than a corporation) – | |
| (i) | over whom the corporation has control; | |
| (ii) | who has control over the corporation; or | |
| (iii) | who is under the control of the same person as is the corporation; or | |
| (c) | a partnership in which the corporation of its associate is a partner. | |
Section 3 – Assessable Profits or Adjusted Loss
8.
Q:
Should I report the items under section 3 of the form on the group consolidated basis?
A:
No. You should report the data of your own business.
9.
Q:
If I have prepared financial statements for a period of more than 12 months (or less than 12 months), how should section 3 be completed? Should the amounts be apportioned or grossed up to show figures for a 12-month period?
A:
It is not necessary to apportion (or gross up) the figures if the financial statements for a period of more (or less) than 12 months have been prepared. Amounts extracted from the Statement of Comprehensive Income/Profit and Loss Account should be used in completing section 3.
10.
Q:
Can I include the cost of the aircraft for section 3.4?
A:
No. You should not include any cost which is capital in nature for section 3.4.
11.
Q:
What should I fill in for section 3.5 if the 20% tax base concession does not apply to my case?
A:
Please state "NA" for this section.
12.
Q:
I have disposed of an aircraft which was not used at all after acquisition, even though it was originally intended for aircraft leasing activities. Can I treat the gain as capital and report it for section 3.6?
A:
No. Section 3.6 should only be used to report the capital gain in respect of an aircraft that has been used for carrying out a qualifying aircraft leasing activity for a continuous period of at least three years immediately prior to its disposal. If your aircraft was not used at all before disposal, the gain on disposal is not capital in nature under section 14H(8) of the IRO.
13.
Q:
What is the relationship among the assessable profits/(adjusted loss) to report under sections 3.7 to 3.9?
A:
For section 3.7, you should report your total assessable profits/(adjusted loss) from all sources of activities, and the amount should match with that reported on the return and your tax computation. For section 3.8, you should report the assessable profits/(adjusted loss) only in relation to the concessionary trading receipts from the qualifying aircraft leasing activities under section 14H(1) of the IRO. For section 3.9, you should report the assessable profits/(adjusted loss) which do not fall into the scope of the concessionary trading receipts reported for section 3.8. The amount reported under section 3.7 should be the sum of each amount reported under sections 3.8 and 3.9.
Section 4 – Activities Producing Qualifying Profits Chargeable At Concessionary Tax Rate ("Relevant Activities")
14.
Q:
What is meant by "Qualifying Profits"?
A:
It refers to the profits from the qualifying aircraft leasing activities under section 14G(6) of the IRO. For details, please refer to paragraphs 30 to 37 of the Departmental Interpretation & Practice Notes No. 54.
15.
Q:
I carried on more than one Relevant Activities during the year, but some of them have ceased now. What should I tick for section 4.1?
A:
You should tick the boxes for all the Relevant Activities that you carried on during the basis period even though some of them have ceased after the basis period.
16.
Q:
What is the difference between the Relevant Activities carried out by the employees of associated person(s) in box 1 and the Relevant Activities carried out by the Taxpayer's associated person(s) in box 2 for section 4.2?
A:
For the scenario in box 1, it generally refers to the situation that the employees of the associated person(s) are assigned / seconded to work for the Taxpayer. For the scenario in box 2, it involves the engagement of the service of the associated person(s) at a fee charged to the Taxpayer on an arm's length basis. Please refer to the examples in Note 12 and Note 13 of the form for details.
17.
Q:
If the associated person does not have Business Registration Number, what can I fill in for section 4.3?
A:
Please provide the name of the associated person and state "NA" for the Business Registration Number.
18.
Q:
What is the basis of counting the number of employees? Is the number of employees as at the end of the basis period an acceptable basis for this purpose?
A:
All these are related to the threshold requirements on the indicator of the level of activity under section 26AB(4) of the IRO. After the relevant bureaux have consulted their stakeholders on the detailed arrangement, the Commissioner will specify the detailed thresholds, which are applicable to all taxpayers who enjoy the tax concessions, in a notice to be published in the Gazette. The Department will announce the details after consultation with the stakeholders and seeking of the legal advice.
19.
Q:
How should a taxpayer report if the full-time employee who carried out the Relevant Activities has dual / multiple roles or capacities in the corporation?
A:
As long as the employee was a full-time staff, then no matter the number of roles or capacities he/she had in the corporation, he/she should still be counted as a full-time staff. Regarding how the employee should be counted, this is related to the threshold requirements on the indicator of the level of activity under section 26AB(4) of the IRO. After the relevant bureaux have consulted their stakeholders on the detailed arrangement, the Commissioner will specify the detailed thresholds, which are applicable to all taxpayers who enjoy the tax concessions, in a notice to be published in the Gazette.
20.
Q:
What do employees with the "necessary qualifications" refer to?
A:
The taxpayer should include the employees whose job duties are directly relevant to the carrying out of the Relevant Activities and who hold the relevant academic / professional qualifications / with relevant working experiences in relation to the Relevant Activities.
21.
Q:
All of my employees or the employees of the associated person in Hong Kong who carried out the Relevant Activities were employed on a part-time basis, what should I fill in for section 4.4?
A:
If all of the employees are under part-time employment, they should not be counted for the purpose of section 4.4. However, please note that an employee who worked partly for the company and partly for other companies in the same group in Hong Kong should be treated as a full-time employee.
22.
Q:
What type of employee should I report as "Others" in section 4.4?
A:
You should include the employees whose job duties are directly relevant to the carrying out of the Relevant Activities and who hold the relevant academic / professional qualifications in relation to the Relevant Activities.
23.
Q:
What is meant by "Operating expenditure incurred in Hong Kong for the Relevant Activities" in section 4.5? Do I need to provide a breakdown of the expenditure?
A:
It refers to the operating expenses that were incurred in Hong Kong for the production of the qualifying profits from the qualifying aircraft leasing activities. Please refer to Note 15 of the form. There is no need to provide a breakdown of the expenditure.
24.
Q:
Regarding Operating expenditure incurred in Hong Kong for the Relevant Activities, the note stated that "the amount of operating expenditure reported should include the remunerations borne by the Taxpayer in respect of the employees of the associated person(s) who carried out the Relevant Activities, and/ or the service fee incurred by Taxpayer for the Relevant Activities carried out by the associated person(s)".
Suppose a taxpayer is recharged by an associated person in one lump sum which includes cost of management support, office and administrative charges, and staff remuneration etc. for both relevant and non-relevant activities. But the taxpayer has difficulty to allocate the expenditure incurred in Hong Kong for the relevant activities specifically. What cost allocation method would be accepted by the IRD for the purpose of reporting this section?
A:
The taxpayer may consider to allocate the cost attributable to the Relevant Activities and other activities respectively by reference to a basis as to reasonably reflect the contributions by the employees to the carrying out of the Relevant Activities, e.g. by income or working time. Please note that for any activity which does not generate income to the taxpayer, it should not be allocated with any of the operating expenditure.
Section 5 – Other Information
25.
Q:
What is meant by the term "central management and control"?
A:
It refers to the highest level of control of the business of a company. For details, please refer to paragraphs 61 to 65 of the Departmental Interpretation & Practice Notes No. 54.
For more FAQs relating to taxation of aircraft leasing activities, please click here.