深圳市税务局中英文解答非居民纳税人享受协定待遇的5个热点问题

1.享受协定待遇的主体是什么？

1. What is the subject of agreed treatment?

享受协定待遇的非居民纳税人是指按照税收协定居民条款规定应为缔约对方税收居民的纳税人。包括两类，一类是仅为缔约对方税收居民的纳税人，另外一类是缔约对方税收居民同时按我国税收法律规定为我国税收居民，但按照税收协定居民条款规定应为缔约对方税收居民的纳税人。

A non-resident taxpayer who shall enjoy agreed treatment refers to the taxpayer who is a taxpaying resident of the other contracting party according to resident-related terms of the tax convention, including a taxpayer who is only a taxpaying resident of the other contracting party and a taxpayer who is a taxpaying resident of the other contracting party and also a taxpaying resident of China according to China’s tax laws, but shall be a taxpaying resident of the other contracting party according to the the tax convention.

2.非居民纳税人如何享受协定待遇？

2. How can a non-resident taxpayer enjoy agreed treatment?

非居民纳税人享受协定待遇，采取“自行判断、申报享受、相关资料留存备查”的方式办理。具体为：非居民纳税人自行申报的，自行判断符合享受协定待遇条件且需要享受协定待遇，应在申报时报送《非居民纳税人享受协定待遇信息报告表》，并按照规定归集和留存相关资料备查。

To enjoy agreed treatment, a non-resident taxpayer shall “make his own judgment, make declaration and keep relevant materials for future reference”. Specifically, a non-resident taxpayer who declares agreed treatment for himself shall first judge whether he is qualified and whether agreed treatment is necessary for him, submit the Information Report Form on Non-resident Taxpayer’s Agreed Treatment when making the declaration, and collect and keep relevant materials for future reference.

在源泉扣缴和指定扣缴情况下，非居民纳税人自行判断符合享受协定待遇条件且需要享受协定待遇的，应当如实填写《非居民纳税人享受协定待遇信息报告表》，主动提交给扣缴义务人，并按照规定归集和留存相关资料备查。需要提醒的是，不论是自行申报还是扣缴申报，均由非居民纳税人归集和留存相关资料备查。

In the case of withholding from the source or designated withholding, if a non-resident taxpayer, at his own discretion, meets the qualifications for agreed treatment and needs it, he shall truthfully fill in the Information Report Form on Non-resident Taxpayer’s Agreed Treatment, submit it to the withholding agent voluntarily, and collect and keep relevant materials for future reference as required. There is a reminder that in cases of both self-declaration and withholding declaration, the non-resident taxpayer is required to collect and keep related materials for future reference.

3.非居民纳税人需要留存备查资料有哪些？

3. What materials shall a non-resident taxpayer keep for future reference?

非居民纳税人需要留存备查的资料包括：

Materials to be kept for future reference by a non-resident taxpayer include:

（1）由协定缔约对方税务主管当局开具的证明非居民纳税人取得所得的当年度或上一年度税收居民身份的税收居民身份证明；享受税收协定国际运输条款或国际运输协定待遇的，可用能够证明符合协定规定身份的证明代替税收居民身份证明；

(1) Taxpaying resident identity certificate issued by competent tax authorities of the other contracting party which certifies that the non-resident taxpayer has acquired the taxpaying resident identity for incomes in the current or previous year; for those who enjoy the treatment of international transport terms of the tax convention or the treatment of international transport convention, the proof which certifies the identity qualification for the convention instead of taxpaying resident identity;

（2）与取得相关所得有关的合同、协议、董事会或股东会决议、支付凭证等权属证明资料；

(2) Contracts, agreements, resolutions of the board of directors or the board of shareholders, payment vouchers and other materials that prove the ownership relating to the acquisition of relevant incomes;

（3）享受股息、利息、特许权使用费条款协定待遇的，应留存证明“受益所有人”身份的相关资料；

(3) Relevant materials which prove the identity of the beneficial owner where a taxpayer is qualified for agreed treatment under terms of dividends, interests and royalties;

（4）非居民纳税人认为能够证明其符合享受协定待遇条件的其他资料。

(4) Other materials which the non-resident taxpayer considers can prove his qualifications for agreed treatment.

4.非居民纳税人和扣缴义务人责任如何划分？

4. What are the responsibilities of the non-resident taxpayer and the withholding agent?

非居民纳税人应自行判断是否符合享受协定待遇条件，符合条件且需要享受协定待遇的，主动向扣缴义务人提交报表要求享受协定待遇。如果非居民纳税人判断有误，不符合协定待遇条件而享受了协定待遇且未缴或少缴税款的，应承担相应法律责任。

The non-resident taxpayer shall judge by himself whether he meets the qualifications for agreed treatment. If he meets the qualifications for it and needs it, he shall submit statements to the withholding agent to request agreed treatment. If the non-resident taxpayer makes a wrong judgment and does not meet the qualifications for agreed treatment of the convention but has enjoyed agreed treatment of the convention for tax exemption or tax reduction, he shall bear corresponding legal responsibilities.

扣缴义务人应在收到报表后确认非居民纳税人填报信息完整，然后按照非居民纳税人要求享受的协定待遇进行扣缴申报。如果扣缴义务人未按规定扣缴申报，或者未按规定提供相关资料，发生不符合享受协定待遇条件的非居民纳税人享受协定待遇且未缴或少缴税款情形的，扣缴义务人应承担相应法律责任。

The withholding agent shall, upon receipt of statements, confirm that the information provided by the non-resident taxpayer is complete, and then declare the withholding in accordance with agreed treatment required by the non-resident taxpayer. If the withholding agent fails to make the withholding declaration as required, or fails to provide relevant materials as required, which finally enables the non-resident taxpayer who does not meet the qualifications for agreed treatment to enjoy agreed and tax exemption or reduction, the withholding agent shall bear corresponding legal responsibilities.

5.如何理解非居民纳税人需要做出的声明？

5. How to perceive statements that non-resident taxpayers need to make?

非居民纳税人需要做出的声明主要包括以下四方面：

Non-resident taxpayers shall make statements mainly in the following regards.

第一，税收居民身份，即根据缔约对方法律法规和税收协定居民条款为缔约对方税收居民。如果根据缔约对方法律法规为缔约对方税收居民，但根据税收协定居民条款为我国税收居民，不符合享受协定待遇条件。

First, taxpaying resident identity, that is, to prove his identity as taxpaying resident of the other contracting party in accordance with laws and regulations of the other contracting party and resident-related terms of the tax convention. If the non-resident taxpayer is not only a taxpaying resident of the other contracting party in accordance with laws and regulations of the other contracting party, but also a taxpaying resident of China according to resident-related terms of the tax convention, then he is not eligible to enjoy agreed treatment.

第二，相关安排和交易的主要目的不是为了获取税收协定待遇。根据税收协定主要目的测试条款或国内税收法律规定中的一般反避税规则，如果相关安排和交易的主要目的为获取税收协定待遇，则不能享受协定待遇。

Second, the primary purpose of relevant arrangements and transactions is not for agreed treatment of the tax convention. Agreed treatment is not available if the primary purpose of relevant arrangements and transactions is for agreed treatment of the tax convention in accordance with the primary purpose test of the tax convention or general anti-tax avoidance rules of China’s tax laws.

第三，自行判断并承担相应法律责任。非居民纳税人如果判断有误，不符合享受协定待遇条件而享受了协定待遇，将承担相应法律责任。

Third, make his own judgment and bear corresponding legal responsibilities. If the non-resident taxpayer makes a wrong judgment and does not meet the qualifications for agreed treatment, he shall bear corresponding legal responsibilities.

第四，按规定归集和留存相关资料备查，接受税务机关后续管理。非居民纳税人未按照税务机关要求提供留存备查资料及其他补充资料，或逃避、拒绝、阻挠税务机关进行后续调查，主管税务机关无法查实是否符合享受协定待遇条件的，应将其视为不符合享受协定待遇条件。

Fourth, collect and keep relevant materials for future reference as required, and accept follow-up regulations of tax authorities. If the non-resident taxpayer fails to provide materials kept for future reference and other supplementary materials as required by tax authorities, or evading, refusing or obstructing the follow-up investigation of tax authorities, for which competent tax authorities are unable to verify whether he meets the qualifications for agreed treatment, he shall be deemed as not qualified for agreed treatment.