雇主向雇员支付薪酬的税务处理取决于所付款项的性质和特点。
指导雇员收入征税的主要法律是《税务条例》（英文简写为“IRO”）。总的来说，对一名雇员而言，其在香港产生或从香港取得的收入，都应就按照相应的课税年度缴纳薪俸税，课税基础为雇员（a）就职或雇佣产生的收益和（b）任何退休金。
关于具体哪些内容构成“收入”，并无详尽定义。但是，《税务条例》第 9 条规定，“收入”包括工资、薪金、休假工资、费用、佣金、奖金、退职金、临时津贴和补贴，以及雇员在劳资关系终止之前或之后收到的款项（例如，入职奖金、退职金或合同期满酬金）。
However, the Inland Revenue Department (“IRD”) does allow concessions on certain payments which are not chargeable to tax including:
- Severance payments made in accordance with the Employment Ordinance (“EO”);
- Long service payments made in accordance with the EO;
- Payments from a recognized provident fund upon termination of employment would be tax exempted up to a certain pre-determined limit;
- Disability pensions;
- Jury fees;
- Employee compensation arising from injury; and
- Depending on the circumstances, income derived by crew members of a ship or aircraft.
Severance or Compensatory Payment(s) over and above the statutory entitlement (“SSP”)
Whether or not an employee can claim a tax exemption on any SSP will depend on the facts and circumstances of why the employee is being paid an amount exceeding the statutory entitlement.
A persuasive factor for the payment to be treated as exempt from tax is if it could be established that the payment was not made for the employee’s past, present or future services, but as compensation for loss of office and/or abrogation of rights.
Compensation for loss of office would not normally be subject to salaries tax provided that the IRD is satisfied that the nature of the payment is to compensate the employee for the loss of certain rights or benefits that would have been enjoyed by the employee had the employment not been terminated. It is important to note that the IRD may also give consideration to how the level of compensation has been calculated. If the compensation payment is based on the actual loss or estimate of loss suffered by the employee, it is more likely that the IRD would accept that such a payment should not be taxable. However, if the payment is related to number of years of services, it will likely be treated as taxable.
Moreover, if the payment was made to compensate the employee complying with certain restrictions (for e.g. not to join any of the company’s direct competitors or not to engage in certain activities etc), it may be argued that such a payment does not arise from services and is compensation for future losses and therefore should be treated as non-taxable.
Payments in lieu of notice
Payments in lieu of notice are income from employment and are not compensatory in nature. Accordingly, they are generally subject to salaries tax.
Employer’s reporting obligations
Although the payment of salaries tax is solely the responsibility of the employee, it is important for employers to comply with their reporting obligations.
An employer is required to file a Form IR56B for all its employees annually, particularising:
- The employee’s details (including the name, HKID/Passport No., residential address/postal address);
- The employee’s income details (including the periods of employment and the particulars of income); and
- Whether a place of residence is provided to the employee.
In addition, an employer is required to notify the IRD before the employee’s employment is terminated by filing Form I.R.56F or Form I.R.56G where an employee intends to leave Hong Kong following termination.
若存在劳动法相关问题，欢迎随时联系尹安琦（andrearandall@gallhk.com / +852 3405 7688）或 王天惠（joniwong@gallhk.com / +852 3405 7616）进行咨询。
联系人:
尹安琦 (Andrea Randall), 合伙人
电话 +852 3405 7630
andrearandall@gallhk.com
王天惠 (Joni Wong), 律师
Tel +852 3405 7616
joniwong@gallhk.com
本文中包含的所有资料仅供一般参考，不应视为针对特定事实或情况的法律、会计、财务或税务建议或意见，在此方面不可以之为据行事。因依赖本文所含信息作为或不作为而直接或间接引起的任何损失或损害，高嘉力律师行概不承担责任。敦请您就自身实际情况以及可能遇到的具体法律问题寻求专门的法律建议。
