Life about to get harder for Chinese and Malaysian-based expats?

In today’s podcast I discuss two articles related, directly and indirectly, to expat finance.

They are related to expat visas and finance, and follow on from my articles on potential taxes for Canadians and digital nomads and actual taxes on Chinese and South African expats.

For your convenience, and to give credit to the original writers, I have included links to the articles I referred to and copied them below.

  1. China Expat Pay: Splitting with Hong Kong is Illegal and Dangerous – China Law Blog

As China steps up its tax enforcement against both foreign companies and foreigners, we are seeing increasing instances where expat employees working in China are having their salaries “split” by their Chinese or foreign company employers. We strongly counsel our employer clients against doing this sort of salary splitting and we even more strongly counsel against expat employees accepting such splitting. For one very simple reason: it is illegal and it puts you at great risk.

China employer taxes and benefits are steep. Roughly speaking, for every 100 Yuan an employee in China gets paid, the employer pays out an additional 40 or so Yuan in employer taxes and benefits. In other words, about 40 percent. And for every 100 Yuan a China-based employee gets paid, the employer is supposed to withhold around 25 Yuan for employee taxes. In other words, about 25 percent. So imagine the savings if instead of paying an employee $100,000 on the China tax and benefit grid, you instead pay just $30,000. How though can a China employer achieve this savings while still paying its employees at market rate? I mean you cannot just pay a top tier foreign software engineer $30,000, or can you?

You can if you are willing to violate Chinese law by engaging in tax fraud. This is most commonly done by splitting the salary by paying the employee $30,000 in China and $70,000 via Hong Kong or the United States or wherever. Ten years ago — before China became considerably more sophisticated with its tax system and its ability to root out tax cheats, foreign SMES with employees in China (especially expat employees) would engage in this sort of salary splitting. You might have a company in Houston that would send an employee to China and have its WFOE in China pay that employee $30,000 in China while sending $70,000 each year from the US company to the employee’s US bank account.

China now employs various techniques to crack down on this sort of thing and in response to that it has become way less common to see a foreign company engage in such fee splitting. One of its best and easiest techniques is to simply call bullshit on the idea of a company being able to pay a top-tier expat software engineer $30,000 a year. The other is to offer a tax amnesty to your just- terminated employee to get him or her to report your tax fraud. Then armed with that, China will not so politely demand you immediately pay it all past taxes and benefits, plus interest, plus massive penalties.

But though foreign companies are for the most part ending illegal salary splitting, Chinese companies have been taking it up with somewhat of a vengeance. Ten years ago, it was rare for an expat to work for a Chinese company in China, but today that is commonplace. But it is also commonplace for Chinese companies to be unhappy/reluctant about high expat salaries and having to pay full taxes and benefits on that. This has led our China employment lawyers to now see a slew of expat employees being offered $100,000 with $70,000 paid to them through Hong Kong.

This has also led Chinese companies to come up with some very creative justifications for their illegal actions, in an attempt to quell any expat disquiet about participating in tax fraud.

Their first “line of defense” is usually to say “everyone does this and your American lawyers simply don’t know China.” When this doesn’t work, they often propose the expat employee become a director or an officer of the Chinese company’s Hong Kong entity and get paid the $70,000 for doing that. Yeah right.

Anyone who knows China law enforcement, especially China tax law enforcement, knows this is never going to fly. See this Forbes article, China’s Tax Authorities Want You.

What we are also seeing, unfortunately, are a slew of expat employees accepting such split payment contracts to their massive detriment. We see this when the expat employee writes one of our China employment attorneys  for help against their China employer who just fired them or who is not actually sending any of the promised money via Hong Kong. These expat employees want to sue their China employer as though they have an employment contract for $100,000, when of course they don’t have such a contract because the Chinese employer is smart enough not to have put anything in writing about the $70,000 that was to have been sent from Hong Kong. Seriously, who is dumb enough to put their own tax fraud in writing?

This sort of non-payment has become so common I am now of the view that many (most?) China company employers that split salary payments do so not so much to engage in fraud as against the Chinese tax authorities, but rather to engage in fraud as against their expat employee. More than half the time when we get an email from an employee seeking our help in getting their $70,000 split fee payment, the employee has been working for her or his China employer for more than a year and that means their China employer saved about $100,000 over the last year (the $70,000 salary plus the approximately $28,000 in employer taxes and benefits it never had to pay) without violating a single law.

It’s like the perfect crime but it is not a crime at all. The employer simply managed to convince the expat to work at super low wages and there is no contractual record indicating otherwise. Sometimes there may be an email record, but the smart employer has made clear in its employment contract that the employment contract supersedes any prior written or oral promises or agreements. But even without that, Chinese law so favors the written and signed and chopped contract that not having such a provision likely won’t make any difference anyway.

Many employers tell their employees they will make the $70,000 payment in one lump sum 6 or 12 months after the expat employee begins work, but then they never actually make the payment. Even without this promise, the expat employee does not want to quit because he or she believes doing so will mean they will never get the $70,000 — not realizing that continuing to work only puts them even deeper in the hole.

Then there are the instances where the employer does pay the employee out of country but stops for a while and then stops paying the out of China portion or fires the employee.

The employee contacts our China employment lawyers believing he or she can sue his or her employer for damages based on a $100,000 salary. But how can they do this when their employment contract says their salary is $30,000?

Are they going to stand up in a Chinese court and say, “excuse me, your honor, I know the contract says only $30,000 and I know my taxes show I have been paying income taxes on only $30,000” but this employer and I were together engaging in tax fraud against the Chinese government and so I just really feel like I am entitled to have this court enforce the oral agreement my employer and I used to defraud the Chinese government. Yeah, right.

All this very much reminds me of how in the old days when foreigners were not allowed to own real property in China they would buy real property in the name of their Chinese citizen girlfriends (it was pretty much always guys) to get around this prohibition.

Then, once the girlfriend had the property, she would break up with her foreign boyfriend and keep the property, insisting that it was a gift.

The foreigners would then contact my law firm wanting to sue their exes and we would have to tell them how we viewed that as folly because they would need to argue to the Chinese court that they had bought the real estate not as a gift to their girlfriends, but to have their girlfriends illegally hold the property in a sort of trust for them. Yeah, right.

Our Chinese employment lawyers frequently help expats with their China employment contracts. See China Expat Employment Contracts.

Even when we are not retained, we like to stay in touch with those who wrote us for employment contract help just so we can know what happens to expats who negotiate their own employment contracts. The below is an email we have used for those who admit to having entered into a split payment employment arrangement:

What your employer has done is completely illegal and it puts you at risk. Both you and them are engaging in tax fraud but all that should matter for you is that you are engaging in tax fraud — assuming your employer actually pays you outside China, which they often do not.

Your employer may claim otherwise but there is no doubt about this. You are supposed to be paying China income taxes on all of your earnings attributable to your work as a China expat employee. Plain and simple. But under this arrangement (again, assuming you do actually get paid outside China what you have been promised) you will not be doing that.

If I were you I would go to my employer and insist it change this payment plan and if it does not, I would consider getting a new job, and fast. Just this week I wrote here how China is — in response to the US-China trade war- – stepping up its hunt for Americans violating China’s law just as you are doing.

Do you really believe China would not love to call out and penalize Americans right now for tax evasion?I am sorry I have to be such a downer, but if you were to end up in jail or deported I would not want it weighing on me that I did not at least warn you about your risks.Expat readers, please consider this post your warning.

2. New expatriate hiring process will discourage FDIs – Free Malaysia

I refer to the new procedures for hiring expatriates and foreign workers as announced by the human resources minister on Oct 26, and which comes into effect on Nov 1.

The new regulations make it mandatory for all applications, be it new or renewals of work permits, to first be advertised for 30 days at the MYFuturejobs website run by Socso. Only if no Malaysians qualify can expatriates be then employed.

Although the intent of the new regulations may be noble and rational in the current scenario where many Malaysians are unemployed, it is likely to backfire and have a negative affect on our foreign direct investments (FDI).

Consequently, we will see a decrease if not complete absence of new FDIs. Worse still, the multinational corporations (MNC) that are already here may contemplate withdrawing their investments and relocating to other developing nations.

As it is, we are facing very stiff competition from other Southeast Asian nations, like Indonesia, Thailand, Myanmar, Cambodia, Vietnam, the Philippines and Laos. Additionally, China and India are also our fierce competitors.

MNCs invest billions of dollars to establish their businesses in Malaysia and it is only fair and reasonable that the government does not meddle in their operations. The expatriate staff they bring in are to make sure their investments and interests are well taken care of.

The government needs to be reminded that when foreign investors decide to invest in Malaysia, one of the many tacit understandings and guarantees that the Malaysian Investment Development Authority (MIDA) accords them is that they will be able to bring in their expertise via what is known as key posts.

The new regulations are tantamount to us going back on our word and breaking the promise that was given to these investors. Thus, creating a trust deficit.

Japanese MNCs are the leading investors in Malaysia and they bring in their own expatriates from Japan who are highly-competent and technically-skilled to assume some of the top and key positions in the company.

The other reason for this is that most of their products are exported back to their customers in Japan and elsewhere in the world. Thus, not only job competency and technical skills are paramount, cultural and language competencies are also critical.

MIDA has 21 overseas offices covering Asia, Europe, the US, Middle East and Australia to promote inward manufacturing and services investments into Malaysia. And Malaysia is spending hundreds of millions of dollars annually in maintaining these offices.

Thus, it will be a disservice to MIDA and all its efforts if the government introduces new regulations without first considering the negative outcome.

Realising the importance of FDIs, former chief secretary to the government Mohd Sidek Hassan, who was the then international trade and industry (Miti) secretary-general, had established and set up an Immigration Unit at MIDA to facilitate the smooth administration and issuance of expatriate and dependent visas.

Even that is being dismantled now as the government introduced in September a new regulation that requires all expatriate work permits issuance and renewals to be directed to MyExpat.

No one knows the real intention behind this move but more money needs to be spent in processing fees and the process is tedious, inefficient and cumbersome.

Ironically, all the top positions of MIDA’s overseas offices are staffed by Malaysian expatriates just like Petronas, our foreign missions and other Malaysian MNCs abroad. What if those countries too insist on new regulations that will require our expatriates to undergo the same treatment as we intend to introduce?

Please engage and collaborate with the foreign chambers of commerce like the Japanese Chamber of Trade & Industry Malaysia (Jactim), American Malaysian Chamber of Commerce (Amcham) and other stakeholders before making unilateral decisions which will be akin to shooting one’s own foot.

And if the government still insists on going ahead with the plans to introduce the new regulations, then let us close down MIDA and all its offices worldwide, as this will save us billions of ringgit which is very much needed now to save our beloved country from not just the pandemic but also the many other ills that we have self-inflicted on ourselves.

Please facilitate rather than frustrate the foreign investors if we value and welcome them.

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