WP In the News
Winkler Partners Joins '1% for the Planet'
Winkler Partners Attorneys at Law of Taiwan and Foreign Legal Affairs is proud to announce its membership in "1% for the Planet", an international alliance of companies that recognize the true cost of doing business. Member companies donate at least one percent of their sales to a network of more than 1,500 environmental organizations worldwide. Winkler Partners has committed to donate at least three percent of its revenues to environmental and social groups.
"1% for the Planet" was founded in 2001 by Yvon Chouinard, founder of Patagonia, Inc., and Craig Mathews, owner of Blue Ribbon Flies, and now boasts membership of over 700 businesses from around the world, with donations approaching USD 30 million. Members of the alliance are committed to the health of the environment, and strive for corporate responsibility.
Update
2007 Enforcement Statistics Released
The Taiwan Intellectual Property Office released its 2007 statistics this month for IPR Police intellectual property enforcement:
| Overall Infringement Cases Identified: | 2,280 |
| Trademark Infringement: | 1,193 |
| Copyright Infringement: | 1,087 |
| Online Infringement: | 1,791 |
| Brick and Mortar: | 172 |
| Night Markets: | 155 |
| Marketing: | 8 |
| Manufacturing: | 6 |
| Others: | 148 |
The figures reflect the overall trend that we have seen in the market for the last few years – the sale of infringing products has moved into the online market place while the manufacturing of such products has moved offshore to "friendlier" jurisdictions.
For more information about this topic, please contact Marcus Clinch at 886-2311-2345 ext. 511.
Tags: IP , Marcus Clinch
Update
Taiwan Intellectual Property Office to Release Draft Amendments to Copyright Act
The Taiwan Intellectual Property Office is expected to release draft amendments to the Copyright Act shortly. The draft bill, titled “Internet Service Provider Liability Limitation Bill”, aims to clarify the liability of Internet service providers for intellectual property infringement occurring on their platforms. Public hearings are being planned for the end of February or early March.
For more information about this topic, please contact Marcus Clinch at 886-2311-2345 ext. 511.
Tags: copyright , Marcus Clinch
WP In the News
Partner, Associate Contribute to World Bank's Doing Business 2008
Partner Chen Hui-ling and Associate Shan Lee have contributed to the "Starting a Business" chapter in the World Bank's "Doing Business 2008" project. The Doing Business project provides objective measures of business regulations and their enforcement in 178 countries. Doing Business 2008 is available as a free download or purchased in book format, with topics ranging from starting a business, to obtaining licenses and paying taxes. According to the World Bank, Taiwan ranked seventh in ease of doing business and 17th in starting a business among 24 countries in the East Asia and Pacific region. The island ranked 50th worldwide in total ease of doing business, placing it ahead of China (83), Italy (53) and Brazil (122), among other countries.
Tags: Chen Hui-ling , corporate , finance , investment , Shan Lee
Update
New Tax Preferences for Foreign Professionals in Taiwan
On January 8th, Taiwan's Council for Economic Planning and Development announced new tax preferences for foreign professionals in Taiwan. Employers of eligible foreign professionals will be able to declare non-salary payments and reimbursements to foreign professionals as operating expenses. Examples of expenses include travel and school tuition for children. From the perspective of the employee, the preferential incentive is that these payments and reimbursements will no longer be treated as income for tax purposes.
As a courtesy to the international community in Taiwan, the Winkler Partners Translation Department has translated the official announcement as published in the Executive Yuan Gazette.
Ministry of Finance Order
Ref. Tai-Cai-Shuei-Zih No. 09600511820
8 January 2008
The Scope of Application of Tax Preferences for Foreign Professionals is adopted and is effective from 1 January 2008.
- The Scope of Application of Tax Preferences for Foreign Professionals is adopted to accelerate and promote the internationalization of Taiwan's economy and to encourage foreign professionals to come to Taiwan to work.
- The term "foreign professionals" in this Scope of Application includes those already working in Taiwan. However, dual nationals concurrently holding ROC nationality and another nationality shall be excluded from the scope of application because of concerns about determination of identity.
- The term "tax preferences" in this Scope of Application means expenses paid by an agency, organization, school, or enterprise in the recruitment of foreign professionals by stipulation of the employment contract. Round-trip travel expenses for a foreign professional and his or her dependents, travel expenses for contractually stipulated home leave per certain period of work, moving expenses, utility fees, cleaning fees, telephone fees, rental costs, cost of repair and maintenance of rented premises, and education expenses for children may be recognized as expenses and will not be considered taxable income of the foreign professional.
- The persons covered by the Scope of Application will be determined under Article 46, paragraph 1, subparagraphs 1 and 2 of the Employment Services Act and relevant regulations, and will be limited to foreign professionals engaged in the following lines of work:
- civil engineering or architecture/construction technology;
- transportation;
- tax and financial services;
- real estate brokerage;
- immigration services;
- lawyers;
- engineers/technicians;
- medicine and health care;
- environmental protection;
- cultural, sports, and leisure services;
- academic research;
- veterinarians;
- manufacturing;
- distribution services;
- executives of enterprises invested in or set up by overseas Chinese or foreign nationals with the authorization of the Taiwan government
- management, design, planning, or consulting relating to professional, scientific, or technical services;
- cooks in the food and beverage industry;
- other jobs designated by the Council of Labor Affairs, Executive Yuan in consultation with the central-government competent authority for the industry concerned.
- civil engineering or architecture/construction technology;
- A foreign professional enjoying tax preferences as determined under Article 46, paragraph 1, subparagraphs 1 and 2 of the Employment Services Act must reside in Taiwan for at least 183 days in aggregate in the tax year and be paid a monthly taxable salary of NT$100,000 or more. However, if an agency, organization, school, or enterprise has special needs in the recruitment of foreign professionals and these special needs have been reviewed and recognized by the Ministry of Finance on a special-case basis, it may be exempted from the requirement of paying monthly taxable salary of NT$100,000 or more.
- Reviews to determine eligibility of foreign professionals for tax preferences shall be done by the local offices of the National Tax Administration, Ministry of Finance. When an agency, organization, school, or enterprise has special needs in the recruitment of foreign professionals, the Ministry of Finance shall first submit the matter to the competent authority for the industry concerned and ask it to provide a review opinion. The Ministry of Finance also may convene an ad-hoc review conference to make the determination.
Ministry of Finance Order
Ref. Tai-Cai-Shuei-Zih No. 09600511821
8 January 2008
Beginning from 1 January 2008, an agency, organization, school, or enterprise (hereinafter, "employer") hiring a foreign professional who meets the requirements of the Scope of Application of Tax Preferences for Foreign Professionals shall do as follows:
- The employer shall apply for permission from the Council of Labor Affairs, Executive Yuan under Articles 46 and 48 of the Employment Services Act, and obtain a foreign national work permit issued by the Council of Labor Affairs.
- The employer shall keep accounts of, and obtain and keep vouchers for, payments that it makes under stipulations of the employment contract for round-trip travel expenses for the foreign professional and his or her dependents, travel expenses for contractually stipulated home leave per certain period of work, moving expenses, utility fees, cleaning fees, telephone fees, rental costs, cost of repair and maintenance of rented premises, and education expenses for children.
- If the employer is one that is required to file a business income tax return, the various expenses specified above may be recognized as operating expenses, and are exempted from being considered taxable income of the foreign national. When preparing the business income tax return for the fiscal year, the employer shall fill out the "Itemized List of Expense Payments Meeting the Scope of Application of Tax Preferences for Foreign Professionals" on the tax return form and file it with the return, and shall present relevant certifying documents for review and verification during auditing by the assessment authority.
- If the employer is not required by regulations to file a business income tax return, the various expenses specified above that the employer has paid for a given tax year are exempted from being considered taxable income of the foreign national. The employer shall, by the end of January of the following year, fill out an "Itemized List of Expense Payments Meeting the Scope of Application of Tax Preferences of Foreign Professionals" and file it with the competent assessment authority for recordation.
- The "Itemized List of Expense Payments Meeting the Scope of Application of Tax Preferences of Foreign Professionals" is attached in three-part form.
For more information about this translation please contact Paul Cox at +886-2311-2345 ext. 545. To learn more about eligibility for the tax preferences, please contact Marcus Clinch at 886-2311-2345 ext. 511.
Tags: finance , Marcus Clinch , Paul Cox , translation
Update
Taiwan to Increase Fund Investment Cap for Derivatives to 40%
The Financial Supervisory Commission has announced that it intends to amend Taiwan's Regulations Governing Offshore Funds ("Offshore Regulations") so that the Commission will have the power to set limits on how much an offshore fund registered in Taiwan can invest in derivative products. Previously the investment cap for these products was 15% of the fund's net asset value subject to certain other technical restrictions and restrictions on derivative products based on Chinese or Taiwanese financial instruments. Please see Article 23 of the current Offshore Fund Regulations for further details. The translation is by Winkler Partners.
In the announcement, the Commission notes that its policy objectives include giving the Commission greater flexibility to change the cap in the future and to harmonize the caps for offshore funds and domestic ones.
In its notes to the proposed revision to Article 23, the Commission note that its short term goal is to raise the cap of derivative product investments to 40%. The long term goal is to update Taiwan's fund regulatory regime to comply with European Union's UCITS Ⅲ requirements.
The statutory period of public comment on this amendment expires on 2 January 2008. Please contact Shan Lee at +886-2-2311-2345 ext. 33 for further details.
Winkler Partners has translated and maintained official translations of Taiwan's financial services laws and regulations since 2002. Please contact Paul Cox at +886-2311-2344 ext. 545 for further information.
Tags: finance
Update
Taiwan to Establish More Specialized Courts
Taiwan's new Chief Justice Lai In-Jaw announced yesterday (Dec. 17) at a year-end press conference that the Judicial Yuan has drafted legislation that will authorize the Yuan to create new specialized courts with limited jurisdiction to hear cases involving finance, construction, and medical disputes. The Intellectual Property Court, Taiwan's first specialized court, is scheduled to begin hearing cases in July.
The Expert Trial Participation Act bill will now be sent to the Legislative Yuan. It is the second major piece of legislation intended to reform the structure of Taiwan's court system along with the the Organic Act of the Judicial Yuan. But since the current legislative session ends this Friday ( Dec. 21), it is unlikely that either bill will pass until the new Legislature convenes after elections in January.
WP In the News
Winkler Partners Green Office Profiled by Da Ai TV
Founding partner Robin Winkler discusses the successes and challenges WP has faced in greening our office on Da Ai Television's "Grassroots Bodhisattva" program at 6:00pm this Friday evening (Dec. 21). Da Ai, which broadcasts on Channel 9, is operated by the Tzu Chi Foundation, Taiwan's largest Buddhist charity and international relief organization. The interview is in Mandarin and will be repeated at 1:00AM on Dec. 24th.
Update
Taiwan to Draft Sentencing Guidelines
The Chinese-language Liberty Times reported today that Taiwan's Judicial Yuan is drafting sentencing guidelines for judges that would recommend quantified ranges for existing statutory criminal penalties. According to the report, guidelines for larceny, telephone fraud, and copyright violations will become effective in July for an evaluation period.
Former Minister of Justice Chen Ding-nan and the Judicial Reform Foundation expressed concerns of excessive leniency in sentencing to the Judicial Yuan some three years ago.
For example, larceny in Taiwan is subject to a maximum statutory sentence of five years. However, in practice, 86 percent of convicted offenders receive sentences of less than one year.
Another example is the serious problem of telephone fraud that has plagued Taiwan in recent years. Sophisticated criminal organizations take advantage of lax privacy laws to obtain personal information about consumers from banks, online shopping platforms, or telecoms and then use that information to convince consumers to remit funds using account-to-account ATM transfers.
The maximum statutory sentence is again five years, but in practice over half of all convicted offenders receive sentence of less than six months. Since criminal sentences of less than six months can be (and usually are) converted to a fine, all but the most indigent offenders sentenced to less than six months do not serve time in prison.
Light sentences for intellectual property crimes that are then converted to fines have also been a major complaint of international rights holders for many years. In its 2007 White Paper on intellectual property issues, for example, the American Chamber of Commerce in Taipei, for example, stated that
The judiciary has not taken advantage of the range of sentencing opportunities made available by the body of Taiwan intellectual property law. Instead, the courts continue to render enforcement of IP laws ineffective by letting off most convicted IP offenders with light, suspended sentences, and low fines that do little to discourage counterfeiting.
The same paper also noted that light sentencing and low fines have been a perennial issue for the Chamber for the last 10 years. In 2006, Judicial Yuan statistics show that 46 percent of those convicted of criminal copyright infringement were either fined or had their sentences of less than six months converted to fines.
In response to these concerns, the Judicial Yuan is drafting a set of Reference Sentencing Guidelines for judges that are inspired by the US's Federal Sentencing Guidelines. It should be noted, however, that Taiwan's Guidelines are not compulsory because they are administrative guidelines promulgated by the Judicial Yuan rather than statutory requirements enacted by the Legislature.
While some judges believe that sentencing guidelines violate judicial independence guaranteed by Article 80 of the ROC Constitution, others believe that Judicial Yuan Interpretation 530 allows the Yuan to issue binding sentencing guidelines without a statutory basis.
The inclusion of sentencing guidelines for violations of the Copyright Act is of special interest to foreign right holders because they are scheduled to come into effect in July when Taiwan's new Intellectual Property Court begins hearing cases.
In a broader perspective, the explicit references to the US sentencing laws by proponents of sentencing guidelines as well as citations of United States v. Booker suggest the growing importance of the US legal system for Taiwan in areas other than commercial law. While economic ties between the US and Taiwan have created a much-criticized hybrid by injecting concepts from the Anglo-American legal tradition into Taiwan's continental legal system modeled closely on German and Japanese law, the proposed guidelines show that legal practices from the US are beginning to seep into areas such as criminal law that have remained closer to their origins in German law.
Tags: copyright , criminal
WP In the News
Winkler Partners Profiled on Taiwan Public Television
A story profiling Winkler Partners' efforts to green our office and reduce carbon emission will be broadcast in Mandarin on Taiwan Public Television's Our Island program Friday Dec. 14th at 9:00pm.
Our Island, which has been on air since November 1998, covers environmental issues in Taiwan. Recent stories have included features on the Formosa Plastic Group's controversial steel mill in Yunlin County and the deteriorating quality of Taiwan's agricultural land. Past programs can be be viewed online.
