Abstract

Analogous with the concept of a US "trade or business" in US federal income tax law, the concept of "establishment" under Chinese tax law determines the boundary between net-income and gross-income taxation of inbound investments. As central as the concept is, it has received surprisingly little official interpretation. As China increasingly opens to foreign portfolio investment and makes new non-corporate business forms available to foreigners, the term is urgently in need of clarification. This Article describes the recent regulatory and commercial developments in China that may rekindle interest in elaborating the meaning of "establishment," including provisions in the new Enterprise Income Tax Law. It then discusses the interpretations that have been given to the concept under existing law and attempts to identify the policy issues that these interpretations implicitly touch on but fail to explicitly confront. Finally, the Article looks at the overall tax policy stance towards foreign portfolio investment that may reasonably be attributed to China. China's large surpluses in current and capital accounts and currency reserves make it doubtful that China will follow the US model for taxing foreign investment in the near term. Nonetheless, the government would be well advised to adopt an interpretation that permits foreign portfolio investment already identified as beneficial for China.