南非教师中国税收问题 Tax Exemption Q&As for South African | 耀时涉外原创
张晓宇 谌红莹
Recently, we received inquiries from two South African teachers regarding their eligibility for tax exemption under the Agreement between the Government of the People’s Republic of China and the Government of the Republic of South Africa for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (hereinafter referred to as the “China-South Africa Tax Treaty”). We hereby compiled some of the key information to share with others who may potentially need.
近期，我们接到两位南非籍教师的咨询，询问他们在中国工作的个税和适用《中华人民共和国政府和南非共和国政府关于对所得避免双重征税和防止偷漏税的协定》（以下简称“中南税收协定”）的相关问题。本文以问答形式简要梳理部分要点，供有需要的读者参考。
背景
Background
The two South African teachers, A and B, previously worked in China as ESL trainers at private institutions, both holding work (Z) visas. A was employed from December 2013 to July 2016, while B was employed from February 2014 to July 2014. Both of them paid income tax and enjoyed no tax exemption during this period. In August 2023, they returned to China as their second entry and began working as teachers at a non-profit and full-time school in Nanjing.
两位南非籍教师A和B曾在中国私人培训机构担任ESL培训师，并持有工作签证（Z签）。A在2013年12月至2016年7月期间受雇，B则在2014年2月至2014年7月期间受雇，二人当时均已缴纳个人所得税，均未申请税收豁免。2023年8月，他们第二次入境中国，并在南京的一所非营利性全日制学校担任教师。
相关法条
Related Article of China-South Africa Tax Treaty
ARTICLE 20 TEACHERS AND RESEARCHERS
1. Remuneration which an individual who is or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State for the primary purpose of teaching, giving lectures or conducting research at a university, college, school or educational institution or scientific research institution recognized by the Government of the first-mentioned State, derives for the purpose of such teaching, lectures or research shall not be taxed in the first-mentioned State, for a period of two years from the date of his first arrival in the first-mentioned State.
2. The provisions of paragraph 1 of this Article shall not apply to income from research if such research is undertaken not in the public interest but primarily for the private benefit of a specific person or persons.
第二十条 教师和研究人员
一、任何个人是、或者在紧接前往缔约国一方之前曾是缔约国另一方居民，主要是为了在该缔约国一方的大学、学院、学校或为该缔约国一方政府承认的教育机构和科研机构从事教学、讲学或研究的目的，停留在该缔约国一方。对其由于教学、讲学或研究取得的报酬，该缔约国一方应自其第一次到达之日起，两年内免予征税。
二、本条第一款的规定不适用于不是为了公共利益而主要是为某个人或某些人的私利从事研究取得的所得。
Q1: Does working as an ESL trainer at a private training institution fall within the scope eligible for tax exemption?
在私人培训机构担任ESL培训师，是否属于可享受税收豁免的范围？
A1：According to the Announcement No. 91 of 2016 by the State Administration of Taxation, the term “university, college, school, or other government-recognized educational institution” refers to schools that provide preschool, primary, secondary, higher, and special education in China, including kindergartens, primary schools, middle schools, universities, etc. The announcement explicitly states that training institutions are not considered schools.
根据国家税务总局2016年第91号公告，税收协定中提到的“大学、学院、学校或其他政府承认的教育机构”在中国是指实施学前教育、初等教育、中等教育、高等教育和特殊教育的学校，包括幼儿园、小学、中学、大学等。公告明确指出，培训机构不属于学校。
Therefore, serving as an ESL trainer at a private training institution does not fall within the scope of tax exemption under the teacher and researcher clauses of tax treaties.
因此，在私人培训机构担任ESL培训师，不属于可享受税收协定中教师和研究人员条款规定的免税待遇范围。
Q2: Although this is their second entry in China, provided they have not enjoyed tax exemption during their first entry in China, are they still eligible for the tax exemption?
尽管本次是他们第二次入境中国，但在第一次入境并未享受税收豁免的情况下，他们是否还可以享受税收豁免？
A2: As both of them held Z (work) visas and were employed by private institutions during their first entry in China, although they have not enjoyed tax exemption during their first entry in China, this history of holding Z visa during the first entry will affect the judgement of tax authorities. Tax authorities may make a judgement based on the nature of their first and second employment as well as their previous and present visa type.
鉴于两人在第一次进入中国时，都是持工作签证入境并在私人培训机构工作，尽管他们在第一次入境期间未享受税收豁免，持工作签证入境的历史也会影响税务机关作出认定。税务机关可能综合两次工作的性质和两次签证的类型作出综合判断。
Q3: If they are entitled to the tax exemption, what steps shall they take to change their tax status? How can they recover the taxes paid since August 2023?
如果A和B有资格享受税收豁免，应该采取哪些步骤更改其税收状态？如何追回自2023年8月以来所缴纳的税款？
A3: They may (1) inform the employer and submit the Information Reporting Form for Non-resident Taxpayers Claiming Treaty Benefits and other supporting documents; and (2) visit the local tax authority and submit supporting documents to apply for the treaty benefits and request a refund for taxes paid. According to the 2019 Tax Administration Announcement No. 35, the tax authorities will verify and then refund overpaid taxes within the tax administration period, typically three years.
他们可以（1）告知雇主并向雇主提供《非居民纳税人享受税收协定待遇信息报告表》及其他所需文件；和（2）访问当地税务机关：提交相关文件以申请协定待遇，并要求退税。根据2019年第35号税务公告，税务机关将在核实后于征管期限内（通常为三年）退还多缴的税款。
Q4: What documents shall be prepared and submitted?
需要准备和提交哪些文件？
A4: The following documents shall be prepared and submitted:
需要准备的文件包括：
● Information Reporting Form for Non-resident Taxpayers Claiming Treaty Benefits
《非居民纳税人享受税收协定待遇信息报告表》
● Employment contract
劳动合同
● Copy of the Foreign Expert Certificate, Foreigner’s Work Permit, or Employment Certificate
外国专家证、外国人工作许可证或就业证明复印件
● Tax Residency Certificate issued by South African tax authority
南非税务机关出具的税收居民证明
● A copy of the China-South Africa Tax Treaty, specifically highlighting Art. 20
中南税收协定的复印件，并高亮第20条
● Any other supporting materials demonstrating your qualification for the treaty benefits (e.g., passport with entry/exit records)
任何其他支持符合协定待遇资格的材料（如护照上的出入境记录）
【作者简介】
