Editor's Note: Recently, a WFOE company under the red-chip structure of a listed company in the US stock market was required to pay a withholding tax of more than 547 million yuan at a rate of 10% when paying dividends to Hong Kong companies, which triggered a heated discussion. According to the tax agreement between China and Hong Kong, if a Hong Kong resident enterprise holds more than 25% of the shares of a mainland resident enterprise and the Hong Kong company meets the conditions of "beneficial owner", the withholding tax paid by the mainland company to it can be applied at a preferential tax rate of 5%, and if it does not meet the conditions, the withholding tax of 10% is required. Setting up a holding company in Hong Kong is the mainstream model for the structural design of enterprises listed overseas in China, and an accurate grasp of the conditions of beneficial owners is related to the overall tax burden of the structure. Based on the above cases, this paper analyzes the conditions for determining the beneficial owner, and interprets the influence of the latest development of "Pillar II" on the red chip structure.

1. Case: Not meeting the conditions of 5% preferential tax rate, and being required to pay back withholding tax of more than 547 million yuan.

According to the financial report issued by the company, WFOE, a red-chip company, received a notice from the tax authorities that the applicable tax rate for profit dividends paid to Hong Kong companies should be adjusted to 10% instead of the original preferential tax rate of 5%, and accordingly the withholding tax should be paid back to 547.9 million yuan.

Like most technology companies listed in Hong Kong and US stocks, the company adopts the red-chip VIE structure, with Cayman as the main body of listing, and the China resident company WFOE is controlled by the Hong Kong company and the mainland operating company is controlled by the WFOE agreement. In terms of dividend distribution, according to the Arrangement between the Mainland and the Hong Kong Special Administrative Region on Avoidance of Double Taxation and Prevention of Tax Evasion on Income, if a Hong Kong company directly holds more than 25% of the shares of a mainland company and the Hong Kong company meets the conditions of beneficial owner, the withholding tax deducted by the mainland company at the time of dividend payment can enjoy a preferential tax rate of 5%. In practice, the condition of shareholding ratio is easy to achieve, and the key point lies in the identification of beneficial owners. If it does not meet the identification conditions of beneficial owners, it will face the problem of paying back taxes.

II. Accurately understand and grasp the conditions for the identification of beneficial owners

The preferential treatment of dividends, interest and royalties in tax treaties basically involves the identification of beneficial owners. In order to standardize the application of the concept of "beneficial owner" in terms of tax treaties, the State Administration of Taxation has successively promulgated the Notice of State Taxation Administration of The People's Republic of China on How to Understand and Identify the "beneficial owner" in tax treaties (Guo Shui Han [2009] No.601, which has been repealed) and the Announcement of State Taxation Administration of The People's Republic of China on Identifying the "beneficial owner" in tax treaties (State Taxation Administration of The People's Republic of China Announcement No.30, 2012, which has been repealed). In February 2018, the State Administration of Taxation issued the Announcement of State Taxation Administration of The People's Republic of China on Issues Concerning Beneficiary Owners in Tax Treaties (State Taxation Administration of The People's Republic of China Announcement No.9 of 2018), drawing on the achievements of the Sixth Action Plan of "Tax Base Erosion and Profit Transfer" (BEPS), improving the rigidity of the criteria for judging Beneficiary Owners, and taking more effective precautions against arrangements with high risk of abusing the agreements. According to the provisions of Announcement No.9, the "beneficial owner" refers to the person who has the ownership and control over the income or the rights or property based on the income. The judgment of beneficial owner includes safe harbor rule, penetration rule and identification of unfavorable factors.

The identification of unfavorable factors needs to be comprehensively analyzed around factors such as acquired control rights, substantive business activities and actual tax rate. Taking a case published in China Tax News as an example, the tax bureau of Longhua District, Shenzhen inspected the domestic manufacturing enterprise Company A's declaration of enjoying the dividend agreement treatment by source withholding, and found that the non-resident shareholder Company B, which holds 100% of its shares, does not constitute substantive production and business activities, does not meet the conditions of "beneficial owner" and should not enjoy the dividend provisions of the agreement treatment. The tax authorities believe that from the perspective of substantive business activities, although Company B has leased office space locally, there are only three employees, and two of them are shared with Company C, an overseas headquarters, with no fixed assets and no substantive research and development or business activities; From the perspective of decision-making power, Company B has no independent decision-making power on dividend distribution; Judging from the matching between income and functional risk, Company B is nominally engaged in investment holding activities, but there is no corresponding business process, division of labor and use of funds. All its income comes from dividends distributed by subsidiaries in China, and important decisions such as orders, technology, production and operation of its subsidiaries in China are directly controlled by headquarters company C. Company B does not bear the investment risks related to dividend income, and most of the dividends are paid to headquarters company C by means of "borrowing" in a short period of time, and its "investment holding". According to the tax avoidance purpose test, the income tax rate of the region where Company B is located is 5.5%, and the dividends obtained from overseas companies holding more than 10% of the shares are tax-free. The actual tax burden of Company B is significantly lower than that of China. In the end, Company A paid back the withholding enterprise income tax of more than 3 million yuan and the corresponding late payment fee.

Therefore, the holding company that intends to enjoy the preferential agreement should focus on the actual operating conditions, and the establishment and business development of the company should have reasonable commercial purposes, such as conforming to industry practices and enterprise development strategies, which can bring practical benefits such as improving management efficiency and enhancing market competitiveness; Have real economic activities, such as office space, personnel, assets and related management systems that match the business.

In addition, due to the convenience of financing and cross-border payment in some overseas countries or regions, some shareholding companies also play the function of financing, forming a cross-border fund pool to carry out frequent capital circulation, and the operation of this model is easy to be judged as having unfavorable factors in the identification of beneficial owners. "Applicants are obliged to pay more than 50% of the income to the residents of third countries (regions) within 12 months after receiving the income." Obligation "includes agreed obligations and payment facts that have been formed without agreed obligations. Therefore, for the holding companies that play the role of fund pool, in addition to substantive operation, they should also pay attention to the limitation of transfer ratio and strengthen the control of dividend distribution funds by holding companies.

III. Compliance Risk of Holding Company under Pillar II Global Minimum Tax Rule

According to the China Tax News, on January 5, 2026, the Organization for Economic Cooperation and Development (OECD) issued an important guide to the collection and management of Pillar II, and finally finalized the implementation of a "parallel" package of measures, that is, the OECD's global minimum tax scheme is compatible with the US global minimum tax system, putting an end to the international community's efforts to launch the global minimum tax scheme for more than four years. Pillar 2 aims to solve the problem that multinational corporations evade taxes by using international tax havens and the disparity in tax burden among countries, and based on this purpose, a global minimum income tax system of 15% is established. The effective tax rate of multinational corporations that reach the threshold in each tax jurisdiction is at least 15%, and if it is lower than 15%, a supplementary tax will be levied on low-tax income.

In May 2025, the Hong Kong Legislative Council passed the Tax (Amendment) Ordinance 2024, which implemented the global minimum tax and introduced the minimum supplementary tax in Hong Kong. According to the regulations, in the four fiscal years immediately preceding the current fiscal year, multinational groups with annual operating income of 750 million euros or more in at least two fiscal years are required to pay at least 15% of the global minimum tax on the profits generated in each jurisdiction where they operate. Under the minimum supplementary tax rule in Hong Kong, the Hong Kong government can give priority to collecting supplementary tax on the covered multinational group entities with an effective tax rate of less than 15% in Hong Kong. At present, most of China's overseas listed companies set up shareholding companies in Hong Kong, and some companies carry out actual business in order to enjoy the agreed treatment more in compliance. Although the nominal profit tax rate in Hong Kong is 16.5%, the effective tax rate may be lower than 15% after the tax preferential policies are superimposed, and they may face the risk of paying supplementary tax.

IV. Summary

According to the Administrative Measures on non-resident taxpayer's Enjoyment of Agreed Treatment (State Taxation Administration of The People's Republic of China Announcement No.35, 2019), non-resident taxpayer's enjoyment of agreed treatment is handled by "self-judgment, declaration of enjoyment, and retention of relevant information for future reference", which also puts forward higher tax compliance requirements for the shareholding companies and dividend distribution companies in the investment structure. In view of the applicable judgment of "beneficial owner", we can seek professional support and reach a tax advance ruling. For example, a company in Fujian plans to distribute dividends to overseas parent companies, pays attention to the possible preferential treatment in tax treaties, puts forward an application for tax advance ruling on dividend distribution and enjoys preferential tax rates in tax treaties, and finally reaches a tax advance ruling on the identity judgment of beneficial owners and enjoys preferential tax treaties, and obtains the Opinion on Tax Advance Ruling issued by the tax authorities. In addition, multinational enterprises should also pay attention to the latest progress of the "two pillars", clarify the system design and reporting requirements, accurately calculate the tax burden, and adjust and optimize the structure.