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BRICS: Potential influence in Africa of China beneficial ownership case where preferential dividend rate denied – WITH further explanations applicable to Africa

BRICS: Potential influence in Africa of China beneficial ownership case where preferential dividend rate denied – WITH further explanations applicable to Africa

Latest Chinese tax case on beneficial ownership in treaty application

Tax Partner, Head of International Tax of KPMG Asia Pacific Region, Country Leader of KPMG China’s International Tax

Tax officials in Qinghai, China recently denied treaty benefits to a foreign holdco receiving a large dividend from China. The Chinese sub, a mining company in Qinghai province, was 90{780f53c297e2c008074d23b865a0ce0b35a4f08852d8e1e49466a5a902c4e44e} owned by the foreign holdco, which was wholly owned by a Canadian parent. Although the foreign holdco had 5 directors and 5 employees locally, the PRC tax authorities considered this headcount inadequate given the size of the Chinese operation. The taxpayer’s request for the 5{780f53c297e2c008074d23b865a0ce0b35a4f08852d8e1e49466a5a902c4e44e} preferential dividend withholding rate per treaty was turned down, and US$16 million of additional withholding tax was paid.


It is a fact that the Chinese have extensive capital investments throughout Africa. China and South Africa are both members of BRICS. It is most likely that Revenue Authorities through ATAF (Africa Tax Administration Forum) will have access to this Chinese case and look to apply its beneficial principles to similar structures that exist in Africa. Many mining operations are owned by mining Holdco’s listed on the Canadian Toronto Stock Exchange. Many mining investments are structures through intermediate Holdco structure using Mauritius (with an extensive double tax treaty network). These intermediate structures reduce WHT in the African country because of a beneficial WHT rate with Mauritius. This case may affect those arrangements into the future – read together with the OECD BEPS initiatives (SEE – (SEE – looking to tackle anti-avoidance and treaty shopping by multi-nationals.

MAURITIUS has a 39 country tax treaty network:

Canada is not on the list, so another country would typically be imposed between Mauritius and Canada, such as South Africa using its beneficial Headquarter Regime provisions in the Income Tax Act, 1962. (See other articles in the Africa Tax Journal on the S.African Headquarter Regime beneficial provisions – ).

SOUTH Africa has over a 70 country tax treaty network:

CANADA has 92 country tax treaties in force: incl. Barbados (low tax), Cyprus (low tax), Luxembourg (low tax), Malta (low tax), South Africa, UAE (low tax), Algeria, Cameroon, Egypt, Ivory Coast, Kenya, Morocco, Nigeria, Senegal, Tanzania, Zambia, Zimbabwe with Namibia in the pipeline. This extensive list of direct African DTA’s eliminates the need to impose an intermediary Holdco in many cases where mining operations take place in those African countries.

The challenges are around mining countries such as Congo and the Democratic Republic of Congo, and other French Speaking countries in West Africa – Look at the French DTA network – Aruba, Bahamas, Belize, Burkina Faso, Central African Republic and many others .


Prof Dr. Daniel N. Erasmus Esq. BA (Wits) BProc (UNISA) H Dip Tax Law (Wits) Ph.D law (KwaZulu-Natal), is a practicing international tax attorney,, and adjunct Professor of International Tax Law at Thomas Jefferson School of Law, San Diego, CA, USA and it’s Africa partner

He can be contacted at