Takashi Yamaguchi, English Speaking Japanese Tax Accountant
Tel/Fax : 03-6312-3320
営業時間 : 9:00 - 18:00 (月~金)

Foreign business income of sole proprietor

With the development of the Internet and cloud services, the working style of freelance is also changing.
You can work for foreign clients from your home in Japan and vice versa.
In the past, in order to develop business overseas, workforce and facilities were essential and they become a burden of the business expansion, however such hurdle would be getting lower for the industries relying on the Internet as their infrastructure.
In that sense, the more SMEs and freelancers are facing international tax matters.

Basic tax implication on business income

The Income Tax Law categorizes income into 10 types according to its source or nature (Income Tax Law (hereinafter referred to as the “ITL”) Article 21 No.1, Articles 23-35).
“Business income” is one of them.
The amount of business income is basically the remaining amount after deducting necessary expenses from the amount of income such as sales.

Different tax treatment for Japanese and foreigners 

In principle, “how to compute taxable income” for business income is the same for both Japanese and foreigners.
However, depending on whether you are a “resident” or “non-resident” under the Income Tax Law, whether the place where the business was conducted is in Japan or abroad, the “range” of business income that is actually taxed in Japan will vary.

Non-resident

Non-residents are not subject to income tax in Japan for income generated outside the country (i.e., foreign source income).
Only specific type of Non-Foreign Source Income is taxed in Japan.
In the case of business income, only income related to business conducted through place of business in Japan is taxed.
Therefore, there is no business income to be taxed if there is no place of business in Japan.

Resident

Permanent Resident

For ordinary residents (Permanent Residents), the total amount of business income (worldwide income) is included in the taxable income regardless of where the business was conducted.

Non-Permanent Resident

On the other hand, residents who do not have Japanese nationality and who have been having an address or domicile in Japan for 5 years or less in the most recent 10 years are specifically defined as “Non-Permanent Residents (NPR) ”(ITL Article 2 Item 4).
The taxable scope of NPR is limited to the following three.

  1. Income other than Foreign Source Income (i.e., Non-Foreign Source Income)
  2. Foreign Source Income paid in Japan
  3. Foreign Source Income remitted from abroad

Non-Foreign Source Income is taxed in the year it generates regardless of payment location and remittance (immediately taxed), while Foreign Source Income is not taxed until it is paid in Japan or repatriated to Japan. (Taxed on remittance. Please see the blog “Income tax on remittance to Non-Permanent Residents” for details.)

Therefore, it is necessary to distinguish between Foreign Source Income and Non-Foreign Source Income in order to determine range of the taxable income of NPRs.
Permanent residents also need to distinguish between Foreign Source Income and Non-Foreign Source Income in order to calculate the capacity for Foreign Tax Credit.

Income attributable to place of foreign business 

Of business income, “income of business conducted through foreign place of business” (income attributable to place of foreign business) constitutes Foreign Source Income (ITL Article 95, Paragraph 4, Item 1).
Other business income is included in “Non-Foreign Source Income”.

For a sole proprietor, especially a NPR, doing business in multiple countries, range of his/her taxable income for Japanese income tax purpose will vary depending on whether the business had been conducted through “foreign place of business” or not. Therefore this judgement is quite crucial.

Principle

Unless otherwise specified by law, income attributable to foreign place of business shall be computed for each country (Basic Income Tax Circulation (hereinafter referred to as “ITBC”) 95-6) by applying the General Rules for computation of Business Income (ITL Article 221-3, Paragraphs 1 and 2).

Specific Rules

There is a provision that business conducted through foreign place of business is deemed as if it had been conducted by a separate enterprise independently from Japan business.
Specifically, income attributable to a foreign place of business shall be determined considering its contribution to and risk assumed for the entire business of the sole proprietor as if they were performed by an independent enterprise (ITL Article 95, Para 4, Item 1).

Necessary expenses are deductible only for those attributable to the foreign business.
Expenses required in common (common expenses) with the other income categories, other place of business shall be reasonably allocated then deducted (ITL Enforcement Ordinance (hereinafter referred to as “ITLEO”) Article 221-3, Para 6).

Internal transactions (such as the transfer of inventory) between places of the business are also regarded as transactions with independent third parties (ITLEO Article 221-3, Para 5).

No clear-cut guidance

The above rules provided in the ITL for calculating income attributable to foreign place of business have been drastically modified in response to the Action Plan No.7 of the BEPS project led by the OECD and are relatively new rules applicable to January 2019 onward.
However, the business model that the action plan envisaged is mainly conventional businesses such as manufacturing and wholesale / retail.
As for the case of service providers through the internet where fixed place of business and actual place of service provision may not match, it is supposed to be subject to futher discussion.
Therefore, they would face much difficulties that attributable income cannot be determined by only provisions provided in the ITL.  

For example, if a lawyer who works alone but has multiple offices in Japan and overseas, it is unclear how the functions of each office should be defined and weighted.
I suppose the case where legal service is performed in Japan through the internet but foreign offices are kept for merely registration as an attorney in each country should be treated differently from the case where the the service is performed in each office while the lawyer actually worked there.
In the case of lawyers who cannot engage in business without registration in accordance with the law, it can be said that functions performed by each place of the registration are important. On the other hand, function of an office merely for registration purpose may be viewed as “preparatory or auxiliary activities” (ITLEO Article 1-2, Para 4) and the contribution to the entire business (attributable income) may be valued almost zero.

Consumption Tax may become more complex

When non-residents provide services to consumers and businesses in Japan using the Internet (service provision through electronic communications, etc.) as a sole proprietor, such services will be subject to Japanese Consumption Tax.
Besides, in the case of resident sole proprietor, consumption tax implication (domestic transactions = taxable / zero-rated / exempt, foreign transactions = out-of-taxation / in-scope of reverse charge) can be different by the location of business. 

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Multi-nationalization, globalization of sole proprietor outpace development of taxation.
For the time being, international sole proprietors would have to take discreet for each tax issue in the tax filing.

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