Donald Trump and Your China Business: Double Down, Ditch It or Die

Wow. Just wow.

For the last week straight — literally every day, including the weekend) — I have spoken with a Western company operating illegally in China that has decided to decide on what to do in China about that. I will not get into whether these companies knew they were operating illegally in China before they contacted my firm, but I will briefly discuss what led to their picking up the phone or sending an email.

Roughly half of these companies are doing well in China and have resolved to get legal. The other half have a gun at their heads in the form of vendor or “employee” threats.

Let me explain….

Back in May 2015, I wrote an article for Forbes Magazine, entitled, China’s Tax Authorities Want You. That article starts by explaining how China’s slowing economy is causing the Chinese government to increase its tax collection efforts, “especially against foreign companies with off-the-grid ’employees’ in China. The article then explains why it is that what we generally think of as “contractors” does not work in China.

Chinese law limits hiring China-based employees to only Chinese legal entities. This means that if you are an Australian software company, you cannot hire someone in China to do your coding or to provide your support services. This means that if you are a Canadian company selling widgets, you cannot hire someone in China to sell widgets for you. This means that if you are an American company that has your products manufactured in China, you cannot hire someone in China to do your quality control for you.

Any person (as opposed to a registered business entity) performing employment-like services for you in China is your employee because China essentially does not recognize independent contractors. And Chinese law requires that you pay both employer taxes and benefits on that employee. These employer taxes and benefits vary from city to city, but they usually total around 40 percent of an employee’s salary. Many foreign companies do not realize they have employees and they fail to pay required employer taxes and benefits.

China also mandates employers withhold around 15 percent of their China-based employees’ wages for individual income taxes. But of course those companies that do not realize they have employees in China are not doing that withholding either. Then on top of the employer and employee taxes that the foreign company is failing to pay, the foreign companies with employees in China is almost always going to be viewed by the Chinese tax authorities as “doing business in China.” because they almost always are. The foreign company is now almost certainly liable for having failed to pay its corporate taxes as well.

So when all is said and done, the foreign company owes a heck of a lot of taxes to the Chinese government, plus steep penalties, plus interest. 

In the Forbes article, I described how the Chinese government inevitably discovers the foreign company that is not paying the above taxes, usually stemming from one of the following:

• The tax authorities discover that one of the foreign company’s China-based employees did not pay his or her income taxes, and they trace that back to the foreign company.
• The tax authorities discover the foreign company’s China presence from deductions taken by one of the foreign company’s China customers.
• The tax authorities discover the foreign company’s China presence when one of the foreign company’s customers seeks to wire funds to the foreign company.
• The tax authorities discover the foreign company’s China presence when the foreign company terminates one of its employees or has a dispute with one of its customers or vendors and that employee or customer or vendor reports the foreign company to the China tax authorities.

But things have in the last few weeks gotten much much worse. Call it the Trump effect.

Because we are hearing two things now. One, we are hearing of long loyal “contractors” going to their employers and saying that if their employer does not double or triple their pay, they will report the foreign company to the Chinese authorities because their doing so will get them a tax amnesty (and perhaps even a portion of the taxes collected?). We are also hearing of vendors with whom the foreign company has no beef making essentially similar threats. Two, and most importantly, we are hearing that the Chinese government is poring over bank records and questioning people (your “employees”) who regularly receive funds unreported funds from overseas.

Our China lawyers have been working with China for a long long time, and we have seen all sorts of ups and downs in US-China relations and right now is — let’s face it — a down period. More importantly, we have seen how China reacts during down periods and on this their record is actually quite clear. China does not go after the law-abiding foreign companies doing business in China; China goes after the law breaking foreign companies doing business in China. This is a rationale calculus as the law breakers are the low-hanging fruit and who can complain about China merely enforcing its laws?

So if you are operating illegally in China what should you do?

We are telling our clients that they have one of five options, roughly divided between doubling-down, ditching China, or dying in China with your boots on (or off). In tomorrow’s post, I will explain in detail the various options.

We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.