What are the criteria for determining whether a person "ordinarily resides in Hong Kong"?
For the purposes of personal assessment, “ordinarily resides in Hong Kong” means that, apart from temporary or occasional absences from Hong Kong, such person habitually resides in Hong Kong, and is living in Hong Kong as an ordinary member of the community for all the purposes of his/her daily life.
How to determine whether a taxpayer is ordinarily resident in Hong Kong? Is it sufficient to establish that a taxpayer is an ordinarily resident in Hong Kong if that person holds a Hong Kong Identity Card?
Whether a person ordinarily resides in Hong Kong is a question of fact which depends on the particular circumstances of each case. To determine whether a person is ordinarily resident in Hong Kong, IRD will consider his / her social and economic ties with Hong Kong. Objective factors that will be taken into consideration include:
the number of days he/she stayed in Hong Kong, the frequency of his/her visit to Hong Kong and the length of each stay;
whether he/she has a permanent dwelling in Hong Kong;
whether he/she owns a property for residence outside Hong Kong;
whether he/she works or carries out a business in Hong Kong;
whether his/her relatives are mainly residing in Hong Kong
Generally speaking, IRD does not consider a person, who possesses Hong Kong Identity Card, is ordinarily resident in Hong Kong if he/she lives outside Hong Kong continuously, and even if he/she returns to Hong Kong, the stays here are short and temporary. In determining whether a holder of Hong Kong Identity Card is an ordinarily resident in Hong Kong, consideration has to be given to his/her actual place of residence in the relevant period.
One of the requirements for personal assessment election is that the applicant should be a permanent resident. I am a holder of Hong Kong Identity Card. Am I eligible to elect for personal assessment?
According to section 41(4) of the Inland Revenue Ordinance, “permanent resident” for the purpose of personal assessment means an individual who “ordinarily resides” in Hong Kong. Since the words “permanent resident” in the Inland Revenue Ordinance and “Hong Kong permanent resident” in section 2 of the Immigration Ordinance or “permanent resident of the Hong Kong Special Administrative Region” in Schedule 1 of that ordinance are two completely different special terms, their scope of application is not the same. Therefore, even though the applicant is holding a Hong Kong Identity Card, his/her eligibility for personal assessment will still depend on whether he/she was ordinarily residing in Hong Kong in the relevant year of assessment.
My whole family has emigrated to overseas country many years ago. However, I am still receiving rental income from a property in Hong Kong. I would visit Hong Kong occasionally and stay here for a few days every year. Can I reduce my tax payable by electing for personal assessment?
To be eligible for personal assessment, you or your spouse must be either an ordinarily resident or temporary resident in Hong Kong. As you have emigrated to overseas country, you lived outside Hong Kong continuously for settled purposes and only visited Hong Kong for a limited number of days, you could not be regarded as having satisfied the residence requirement for the purpose of personal assessment. Therefore, you are not eligible to elect for personal assessment.
I live in Shenzhen for most of the time in a year to oversee my business in the Mainland. My spouse is a salaries earner living in Hong Kong throughout the year. Am I eligible to elect for personal assessment?
To be eligible for personal assessment, you or your spouse must be either an ordinarily resident or temporary resident in Hong Kong. Since your spouse ordinarily resides in Hong Kong, you are eligible to elect for personal assessment no matter whether you fulfil the residence requirement yourself or not.