Chinese government limits overseas real estate transactions
Chinese are not allowed to buy houses abroad. Immigration is the only legal way if Chinese want to buy real estate or make any real estate investment abroad. If Chinese residents want to buy houses or hotels overseas with Chinese nationality, their behaviors are classified as overseas investment by the SAFE but not overseas consumption. Overseas investment is strictly controlled in China. According to the policies of the SAFE, domestic enterprises can invest overseas, such as building factories, mergers and acquisitions, equity participation or setting up subsidiaries. The procedures and operations of these businesses are clearly stipulated by law. But for domestic residents, there are no other policies for overseas investment except those related to special purposes. The foreign exchange business that domestic residents can handle through the SAFE office including immigration, inheritance and transfer of business, and the newly launched participation in overseas listed companies. There are no regulations on investing and buying houses abroad. That is to say, the main restriction on Chinese investment in real estate abroad comes from the restriction on overseas investment, rather than the purchase of real estate itself.
China’s foreign exchange policy explicitly states that the purchase of foreign exchange shall not be used for overseas housing, securities investment, the purchase of life insurance and other capital projects that have not been opened yet. The SAFE also pointed out that we have not yet achieved full convertibility of our capital account, and individual outbound investment under the capital account can only be realized through prescribed channels, such as QDII (qualified domestic institutional investors). In addition to the prescribed channels, the purchase of foreign exchange by individual residents shall only be used for external payments under the current items, including private travel, overseas study, business and business trips abroad, family visits, overseas medical treatment, trade in goods, purchase of non-investment insurance and consulting services.
On the eve of the 2019 Spring Festival, the supreme court and the supreme procuratorate in China jointly issued the interpretation on several issues concerning the application of law in handling criminal cases of illegal fund payment and settlement business and illegal foreign exchange trading. In China, where buying houses overseas through legal channels is banned, the only way to bring large amounts of domestic money out of the country is through underground Banks, which have always been illegal, though the penalties have been generally light before. However, there are also relevant cases. For example, Chen, a Hong Kong citizen, was fined 1.53 million yuan in 2015 after he transferred 17 million yuan into a domestic account controlled by an underground bank to buy overseas real estate. According to the latest interpretation, starting from February 1, 2019, anyone holds foreign exchange more than 5 million yuan can be convicted of illegal business operations and be sentenced to imprisonment for up to five years or criminal detention, in addition to a fine. Anyone with more than 25 million yuan can be sentenced to imprisonment for more than five years. The core points of this document are:
- Illegal foreign exchange transactions such as “buying and selling foreign exchange” or “trading foreign exchange in disguise”, if the circumstances are serious, shall be convicted of the crime of illegal business operations in accordance with article 225 (4) of the criminal law.
- Clarify the “serious circumstances” of “illegal foreign exchange trading”, such as “the illegal operation amount is more than 5 million yuan” and “the illegal income amount is more than 100,000 yuan”. According to the criminal law, “shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also, or shall only, be fined not less than one time but not more than five times the illegal gains”.
- Clarify the “serious circumstances” of “illegal foreign exchange trading”, such as “the illegal operation is more than 25 million yuan” and “the illegal income is more than 500,000 yuan”. According to the criminal law, “he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal gains or be sentenced to confiscation of property”.
The document does not specify the purpose of the illegal foreign exchange transactions, which means that it is illegal to buy or sell foreign exchange beyond the legal limit of $50,000 per person, including buying or selling foreign exchange for overseas real estate. Currently, Chinese residents buy overseas real estate mostly through underground Banks, which is a crime of illegal foreign exchange trading or disguised foreign exchange trading.
We have interpreted that the focus of the document is “disguised foreign exchange trading”. Some experts believe that the so-called “disguised foreign exchange trading” refers to the exchange of funds within and outside China, which does not involve the direct outflow of funds and the transactions tend to be more subtle and large. In the Czech Republic, for example, a direct RMB sale in China is a form of capital swap that has become a target of this document. The money that Chinese residents use to buy property in the Czech Republic is essentially an inverted currency swap through an underground bank, which essentially keeps foreign exchange which should flow into China in the Czech Republic. On the surface, there is no direct “foreign exchange arbitrage”, which does not reduce China’s foreign exchange reserves, but it escapes from the supervision of the state foreign exchange management, which prevents the growth of China’s foreign exchange reserves, and at the same time, causes the shortage of domestic capital, not to mention the inflow into China’s real economy.
As a matter of fact, the state administration of foreign exchange has already announced relevant policies: the state administration of foreign exchange issued an announcement in 2016, announcing that from January 1, 2017, individuals need to fill in the application form for foreign exchange purchase, specifying the purpose and time of foreign exchange purchase. Individuals who purchase foreign exchange must take more legal responsibilities. If they violate the six prohibited behaviors such as buying houses overseas, money laundering and underground Banks, they will be included in the “concern list”, and they will not enjoy the personal facilitation quota in the current year and the following two years. The contents to be filled in in the “application form for individual purchase of foreign exchange” include: name, id number, RMB account number, foreign exchange account number, currency, expected time of use of foreign exchange (accurate to month), purpose of purchase of foreign exchange, etc. In the past, many people came up with the idea of “ant moving” to transfer money because of the limits on the amount of money one individual could exchange. For example, the quota of a person is limited so they ask a relative or a friend to help, using their quota to transfers for many times. This practice is common. But last year, the SAFE began cracking down on the practice. The state administration of foreign exchange (SAFE) has said that Chinese citizens who used the form of splitting remittances and moving ants to buy houses abroad in the past will be fined for foreign exchange recovery in accordance with the law, and those who fail to return the money on time will be sentenced to criminal law for foreign exchange fraud.
So, in China, is there anyway else to make property-related investments overseas legally? Firstly, through QDII, which means Qualified Domestic Institutional Investor. In addition, there is a policy concerning overseas investment that was proposed by the central bank of China in early 2013. It is regarded as QDII2, an upgraded version of QDII. The QDII is mainly aiming at institutions, but the QDII2 is mainly aimed at individuals. Investors can exchange foreign currencies more flexibly and make more overseas investments. However, QDII has also been tightened recently. On December 6, 2017, the heads of the four departments of the national development and reform commission, the ministry of commerce, the people’s bank of China and the SAFE answered questions on the supervision and regulation of outbound investment by relevant Chinese departments. Relevant authorities believe that we support capable and qualified domestic enterprises to carry out authentic and compliant outbound investment activities, participate in “One Belt and One Road” joint construction and international cooperation on production capacity, promote domestic economic transformation and upgrading, and deepen mutually beneficial cooperation between China and other countries. At the same time, regulators also pay close attention to the investment soon in real estate, hotels, entertainment, sports clubs, and other fields, people have some irrational tendency at foreign investment, big noncore investment, limited partnership and other types of foreign investment. Risks existing in the hidden trouble. Secondly, the electronic currency represented by bitcoin is also a good choice. Different from the sovereign credit currencies issued by monetary authorities such as us dollar and RMB, electronic currency is a digital currency based on specific algorithms, which completes transactions and records through a centralized network. Some investors buy bitcoins on domestic platforms and sell them abroad to get foreign exchange, circumventing regulations on individual exchange quotas and foreign currency transfers abroad.
For more information please contact:
Monika Rutland, partner
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