Foreign Private Equity Funds In China -
Guide to Market Entry and Operations 2022

History of PE Funds in China

PE funds can be traced back to the late 19th century in the United States. Modern operational patterns and characteristics arose in the mid-20th century. While international PE has continued to develop, PE was first introduced in China just 30 years ago. Despite being a latecomer to the market, China has seen early success owing to the domestic market's high potential and resilient growth since reform and opening up.

Despite having a fairly late start, China’s private equity (PE) and venture capital (VC) market has grown rapidly in size due to vast economic entities and great development potential. Since 2016, China’s PE and VC markets have experienced continual growth in assets under management (AUM) and a rapid rise in global proportion. While international financial markets have been disrupted by COVID-19 and geopolitical factors since 2020, China’s PE market has maintained a strong momentum.

Development Trend of PE funds in China

With the advancement of the market economy and the development of multi-level capital market, PE has developed rapidly and will continue to expand. As the market enters a phase of higher quality development, the sector will reshuffle.

Status Quo of Foreign PE Funds in China

Foreign PE funds started to invest in China in 1993. They have taken shape over the last 30 years, and are now entering a phase of systematic operation, and demonstrating distinctive patterns. From the perspective of the fund source, foreign PE fund entities in China’s investment market mainly include: Foreign: PE fund limited partners (LP) comprise one or more foreign entities, and Joint venture (JV): PE fund LP comprises foreign investment. Broadly speaking, foreign investment in these parts constitutes the overall behavior of foreign PE funds investing in China.

Development Characteristics of Foreign PE Funds in China

Since its introduction to China in 1993, foreign PE funds have played an important role in raising and guiding social capital, developing real economy and promoting technological innovation. As China has recently promoted the opening up of its capital markets, foreign institutional investors are increasingly gaining access. Foreign PE funds exhibit different development characteristics at different stages.

Summary of Important Policies Governing Foreign-invested Private Funds

The operation of foreign-invested PE investment funds should, on the whole, be conducted in accordance within the existing regulatory framework. The authorities have issued separate documents on, or specified in relevant documents, the market access, filing, registration and tax administration of foreign-invested funds.

Trends in the Regulation of Market Access Qualification of Foreign-invested Institutions

In recent years, amid the opening-up of the financial industry, the regulatory authorities and self-disciplinary organizations for private funds in China have been promoting the opening-up of the private fund management industry, so as to attract more institutions with foreign investment background to China, introduce advanced overseas management experience, and provide more investment and asset management options for domestic investors to engage in overseas investments. On the one hand, the Chinese government has been promoting the opening-up by gradually expanding the financial sector from the pilot regions, encouraging foreign-invested private fund managers to enter the Chinese market and providing convenient options for investment and operation in China. On the other hand, the Chinese government is adhering to the principle of financial prudence, and emphasizes that opening-up shall achieve two objectives, namely, serving the real economy and guarding against systemic risk, and that market access qualifications will be granted only to select high-quality institutions.

Characteristics

Private funds (PF) are “investment funds established for fundraising from investors in a non-public manner”, and their “assets are managed by the fund managers or general partners” and “for the purpose of investment activities”. In accordance with applicable laws and regulations, PE funds in China can take the following three forms: company-type, limited-partnership-type, and contract-type.

Regulatory Authorities

PFs adopt the principles of appropriate supervision and bottom-line supervision. The China Securities Reregulation Commission (CSRC) imposes administrative regulation on PE funds in accordance with the Interim Measures for the Supervision and Administration of Private Investment Funds and other departmental rules and normative documents. The Asset Management Association of China (AMAC) effects self-discipline management of the member institutions of the AMAC in accordance with its self-discipline rules.

Registration Requirements

The Measures for the Registration of Private Investment Fund Managers and the Filing of Funds (for the Trial Implementation), the Announcement on the Several Issues of Further Regulating the Registration of Private Fund Managers, the Instructions for the Registration of Private Investment Fund Managers, the Questions and Answers regarding the Registration and Filing of Private Funds, the Notice on Matters Related to the Registration and Filing of Private Fund Managers and other regulations released by the AMAC have made detailed provisions on the registration requirements for PFMs.

Basic Process

It is stipulated in Article 7 of the Interim Measures for the Supervision and Administration of Private Investment Funds that PFMs shall apply for registration with the AMAC in accordance with regulations.

Filing Requirements

The consummation of fund filing is an important prerequisite for smooth investment operations. The Instructions for the Filing of Private Investment Funds, Notice on Matters Related to the Registration and Filing of Private Fund Managers, Key Points for the Filing of PE/VC Funds and other regulations released by the AMAC set out specific provisions regarding the registration of the PFMs.

Basic Process

It is stipulated in Article 8 of the Interim Measures for the Supervision and Administration of Private Investment Funds that after private fundraising is consummated, PFMs shall complete the formalities for filing of funds in accordance with regulations of the AMAC.

Foreign Investment Access

The Foreign Investment Law institutionalized, via the highest legislature, results of China’s reform and adjustment of administration of foreign investments in recent years and reshaped the basic legal framework of administration of foreign investments.

Main Modes of Funds’ Cross-border Investments

Funds’ cross-border investments involving foreign capital mainly include 2 types: Offshore Investments by Onshore Funds and Offshore Investments by Foreign-invested Funds.

Comparison of Relevant Tax Matters of PE funds under Different Fund Structures

Main income streams of PE funds include: (1) Dividends from invested enterprises; and (2) Transfer of equity of invested enterprises. For PE funds, applicable taxes are primarily turnover tax and income tax. Analysis on PE funds should consider both taxation of the funds and of the institutional and individual investors of the funds.

Tax Considerations during PE Fund Formation

Tax optimization of a PE fund should rely on advance planning. It is imperative to optimize taxation of the fund from inception, by considering the structures of fund investors and relevant factors, to avoid unnecessary tax costs.

PE funds institutionally fall into three types: limited companies, limited partnerships and trusts. The fund manager needs to opt for the appropriate form of organization to its own actual and the conditions of fund investors for the purpose of tax optimization.

National Tax Incentive Policies

For an LP equity investment enterprise or equity investment management enterprise, partners of the enterprise are taxed separately on income from operations and other incomes.

Analysis of Preferential Policy of Major City

Beijing

Partnership equity funds and partnership management enterprises shall not act as income taxpayers, and partners shall pay enterprise income tax and individual income tax respectively by following “allocation before tax payment”.

The income obtained by individuals in partnership equity funds is subject to individual income tax at 20% based on dividends, interest, bonuses or income from transfer of property.

Shanghai

To accelerate the construction of the core functional areas of financial centers and support the gathering and development of various financial institutions and talent in Pudong New Area, financial support measures have been promulgated during the “13th Five-Year Plan” period.

Hainan

Hainan will proactively promote the inclusion of foreign-invested equity investment enterprises into the Catalog of Encouraged Industries in Hainan Free Trade Port and the Catalog of Industries for Encouraging Foreign Investment, to enjoy corporate income tax preference.

Equity investment management talent can apply to be designated as high-level talent of Hainan province following relevant provisions. Eligible candidates enjoy preferential policies, such as registration of urban residents, purchase of housing and automobile, employment of spouse, enrolment of children, medical and housing security.

Cause of Operational Complexity of PE Funds

With China's multi-level capital market gradually establishing itself and the improvement of financial market opening up, the PE ecosystem is also expanding. Based on the industrial characteristics and business model, PE operations are particularly complex. Fund structure, archival filing and registration, withdrawal allocation, and liquidation exit are all considered. Foreign PE funds must also consider foreign exchange control requirements. In recent years, the internal operational difficulties of PE funds have increased, and operational efficiency has become a focal point.

Daily Operation of Middle and Back Offices of PE Funds

Based on years of service experience, we have observed that foreign PE fund managers and funds face numerous complexities in their establishment and daily operations.

Operational Compliance Requirements for PE Funds

Operational compliance requirements for PE funds must be considered for registration, recording and submission of data, normalization of internal management and operations, fundraising, suitability management effectiveness, investments, information disclosure integrity, and legal opinions.

Key Points in CRS for PE Funds

CRS (Common Reporting Standard) refers to a common reporting standard based on the same standard among countries and regions.

To implement CRS domestically, the State Administration of Taxation, the Ministry of Finance, the People’s Bank of China, the China Banking Regulatory Commission, the China Securities Regulatory Commission and the China Insurance Regulatory Commission issued the Administrative Measures for the Due Diligence of Tax-Related Information of Financial Accounts Owned by Non-Residents (the Administrative Measures) on May 9, 2017, which came into force on July 1, 2017. The Administrative Measures specify the mode and requirements for the due diligence of financial accounts by domestic financial institutions, as well as the obligation of information submission.

After PE funds were incorporated into the regulatory scope of the China Securities Regulatory Commission (CSRC) in 2013, the industry has developed rapidly, and plays an important role in promoting the formation of social capital, increasing the proportion of direct financing, facilitating technological innovation, optimizing the investor structure of the capital market, and serving the development of the real economy. Due to accelerated development and expanding scale, the Chinese PE fund market has become increasingly attractive to foreign institutions. For example, 43 wholly foreign-owned PE fund management companies currently conduct business in China and are expanding their business scope.

In 2022, the International Monetary Fund (IMF) adjusted the global economic growth rate to 3.2%. The global economy will continue to face uncertainties, such as inadequate economic boosts, increased inflation, and geopolitical crises, while macroeconomic fluctuations will continue to penetrate the industry-specific economy. The operation of equity funds will be confronted with new challenges. With increasingly strict regulations and more stringent requirements for information disclosure in recent years, PE fund managers not only face evolving compliance requirements, but also the pressure of business expansion based on the efficiency of mid-and back-stage operations.