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Update: further refinements to Hong Kong’s new FSIE regime

  • August 2023

4 August 2023 - On 1 January 2023, Hong Kong implemented a new foreign-sourced income exception (FSIE) regime covering four types of offshore passive income, collectively known as "in-scope offshore passive income”, that are subject to profits tax under certain circumstances, namely:

  • Dividends;
  • Disposal gains in relation to shares or equity interest;
  • Interest income; and
  • Income derived from Intellectual Property (IP).

However, further changes are on the horizon, which will have an impact on entities operating in the city.

The Hong Kong government must additionally refine its regime in response to the European Union (EU)’s Updated FSIE Guidance on the coverage of disposal gains from all types of assets, issued in December 2022.

This next phase will see Hong Kong expand the remit of its FSIE regime to cover foreign-sourced gains from the disposal of assets, in addition to shares and equity interests.

A breakdown of the proposed changes and potential impact

In its consultation paper, circulated on 6 April 2023, the Hong Kong government detailed the proposed changes to the regime, seeking expert views and feedback from key stakeholders in the city. The focus was on the expanded scope of assets in relation to foreign-sourced disposal gains.

Features of the FSIE regime

Proposed changes/issues

Covered person

  • No change to the current definition.

Covered assets for disposal gains

  • Existing regime covers shares or equity interests.
  • Proposed to include all assets regardless of financial or non-financial in nature.
  • Requested stakeholder feedback on whether a definite and exhaustive list of covered assets can be applied.

Covered income

  • No change to interest income, dividend and IP income.

Computation of disposal gains or losses

  • The Hong Kong government is considering the possibility of using the “rebasing approach” – i.e. rebasing the costs of assets to those at the effective date of the FSIE.
  • The government will also explore with the EU other means, such as a “Taper Relief” – a mechanism by which the taxable amount of disposal gains will be reduced in accordance with the length of time the assets have been held.
  • Requested stakeholder feedback on how disposal gains or losses should be computed.

Economic substance requirements

  • No change to economic substance requirements and adequacy test in relation to relevant activities.

Participation exemption

  • No change to the current conditions.

New exemption or relief for multinational enterprises (MNE)

  • Disposal gains by traders derived from substantial business activities in Hong Kong – proposed carve-out from the refined FSIE regime.
  • Disposal gains from intra-group relief to be deferred – 75% associated i.e., where one company is the beneficial owner of at least 75% of the issued share capital of the other company or a third company is the beneficial owner of at least 75% of the issued share capital of each company, subject to certain anti-avoidance measures.
  • Requested stakeholder feedback on the provision of exemptions or relief measures under the expanded FSIE regime.
HK timeline graphic

Where are we now in the process?

Unlike the legislative exercise conducted in 2022 introducing the FSIE regime, the Hong Kong government took a slightly different approach this time by launching a consultation process to collate industry views on numerous outstanding issues captured within the document. This was a beneficial approach for the government, who is now better equipped with robust feedback from key stakeholders, including the Big Four, to resume its negotiations with the EU.

Next steps and key dates

Following the closure of the consultation period on 6 June 2023, and once negotiations are complete, it is expected that the draft bill for the refined regime will be introduced in October this year. As such, Hong Kong’s expanded FSIE regime should take effect from January 2024.

Once published, the Hong Kong government will also issue administrative guidelines providing further details. The Citco group of companies (Citco) will continue to closely monitor this development and assist our clients who are navigating the updated FSIE tax regime in Hong Kong.

As experts in entity life cycle management, Citco Corporate Solutions companies pragmatically support Family Offices, Corporate and Fund clients in both in Hong Kong and around the world.

Kiki Yang, Director – Client Services, Citco Hong Kong Limited

To discuss your options and requirements, please do get in touch.

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