Singapore: All Legal Things Considered — Common Pitfalls Prior To An International Transfer

Corporate clients today increasingly expect their global migration counsel to advise them not only on the types of visas and work permits available to their employees, but also to warn them of tax, labor, social security, and sometimes even family law issues involved in the international movement of employees. In short, clients expect advice on all aspects of global mobility. We discuss how to navigate expectations and address these issues from a high-level, international perspective while also providing insight into considerations unique to Singapore.

Leon Kwong Wing examines the considerations for Singapore. The following is based on his Singapore paper for the 2023 AILA/GMS Annual Global Migration Forum.

Tax

Tax residence

An individual employed in Singapore for 183 or more days in the calendar year is a tax resident. In practice, once the pass to work in Singapore is issued, the individual is treated as employed in Singapore until the work pass is cancelled.

• An individual on a work pass for 183 days across two calendar years is tax-resident for both years.
• An individual on a work pass across three calendar years is tax-resident for all three years.

Tax rates

A tax resident enjoys better tax rates than a non-resident. The latter pays personal income tax at 15 per cent or at the resident's rates, whichever gives the larger amount of tax. The rates for residents are as follows:

No tax on investments abroad

Whether or not they are resident in Singapore, individuals pay no tax in Singapore on gains and income from their investments outside Singapore. There are no tax implications to bringing foreign investment gains and income into Singapore.

Equity remuneration

Shares, share options, etc granted or awarded to employees before they take up employment in Singapore are not taxable. So long as the grant or award is made in the course of the individual's employment outside Singapore, there are no tax implications even if the grants or awards vest and/or are exercised after the individual has moved to Singapore. There is also no tax should the employee sell such shares while in Singapore.

The flip side of the coin is that shares, share options, etc granted to individuals in the course of their employment in Singapore are liable to tax. One month before an individual ceases employment, he becomes liable to tax on adeemed vesting and exercise of any outstanding options and shares granted in the course of the employment in Singapore. This, then, is a "pitfall" of the tax regime for foreigners on work passes in Singapore — that upon leaving an employment, the employee has to find the money to pay the tax on any equity remuneration awarded during the employment in Singapore, even if there has been no actual gain because the award or the shares have not vested, have not been exercised or have not been sold.

• The tax on the deemed vesting and/or exercise is a final tax. The individual's actual, eventual gain may be larger than the notional gain on which he was taxed, but there will be no additional tax.
• That being said, in the event that the individual's actual gain turns out to be less than the notional gain on which he paid tax, he can apply for a reassessment and refund within the limitation period (which is five years from the end of the year in which the vesting and/or exercise was originally deemed to occur.

Tax compliance

Employers have the obligation to report their employees' remuneration each year. The employer reports the employee's remuneration for each calendar year to the Inland Revenue Authority of Singapore (IRAS) in March the following year.

• Employees are responsible for paying their own income tax; employers do not withhold or deduct tax.
• After reporting by their employers in March, employees will typically receive their tax assessments from the IRAS in April or May. If they have given a GIRO authorisation to their banks, their tax will be deducted in 12 monthly instalments; otherwise they must pay their tax in full within one month of assessment.

• In summary, Singapore has a preceding-year tax system. The income of one year is only reported in the following year, and then the tax is paid over the course of the remainder of that year and the third year.

• That being said, one data point in a work pass application is whether the prospective foreign employee will be paid:
• • by the Singapore employer;
  • by some other entity outside Singapore; or
  • partly by the Singapore employer and partly by some other entity outside Singapore.

The usual preceding-year tax treatment applies if the foreign employee will be paid by the Singapore employee only. If it is stated in the work pass application that the employee will be remunerated either in whole or in part by an entity outside Singapore, the IRAS will require a bank guarantee for the tax payable. If no bank guarantee is forthcoming, the IRAS will give the individual an estimated assessment very shortly after the work pass is issued, and require that he pay tax in advance on the remuneration declared in the work pass application. So multinational corporations should be aware that their payroll arrangements can mean a big difference in when and how their employees pay tax.

Import GST relief

Foreigners transferring their residence to Singapore can obtain relief from GST on the importation of personal effects, household articles and pets within six months of first arriving in Singapore.Liquor, tobacco, motor vehicles, private aircraft, boats and yachts are not eligible for relief from import GST (presently 8%; 9% from 2024).

Tax clearance

Not less than one month before a foreigner's employment will come to an end, his employer is required to:

• hold back from paying all monies due to the employee;
• notify the IRAS of the anticipated date of cessation;
• file a return of the individual's remuneration up to the anticipated date of cessation; and
• report the amount of money held back from the employee pending tax clearance.

The employer may receive a directive to pay tax due from the employee out of the monies held on behalf of the employee, and then a notice giving the employer permission to release the balance of the monies to the employee. An employer that fails to hold back money due to the employee before tax clearance may be liable for tax the IRAS fails to collect tax from the employee.

Employment

Employment contract

While a foreign employee needs a Singapore employer entity to obtain and retain a work pass, an employment contract is not among the essential supporting documents in a work pass application. The Ministry on Manpower may on occasion ask for sight of the employment contract. If so the employee's existing employment contract and a letter of assignment to the Singapore entity will suffice; a local employment contract as such is not necessary.

Minimum terms

The Employment Act 1968 lays down minimum conditions of employment that apply to all employees in Singapore, both local and foreign. Contractual terms are illegal and void to the extent that they are less favourable to the employee than the statutory conditions.

Be that as it may, the statutory conditions of employment are both modest and limited, so there is considerable freedom of contract. In general, the Act provides managers and executives with a statutory minimum of 7 to 14 days paid annual leave (depending on length of service), paid public holidays and sick leave, maternity leave, the payment of salary no less frequently than monthly, and protection against wrongful dismissal.

Termination at will by notice

Unless the employment contract says otherwise, either party can terminate the employment at any time by notice (or salary in lieu of notice). The statutory minimum notice period is one day to four weeks, depending on length of service.

Redundancy and retrenchment

There is noretrenchment benefit in law for white-collar employees earning more than SGD2,600 a month. Indeed, the law states that no employee who has given less than two years' service shall be entitled to any retrenchment benefit. Employees with more than two years' service may be eligible for retrenchment benefits by contract. The Ministry of Manpower's policy is that employees who have given at least two years' service should be "eligible" for retrenchment benefits, and that employers may pay and employees should accept two weeks' to one month's salary per year of service in retrenchment benefit in case of redundancy (unless the employment contract has more generous terms).

Pay slips

An employee must receive pay slips from the employer recording all salary payments. Pay slips are important because the Ministry of Manpower may ask to sight them to verify that the salary declared in the application for a work pass is in fact being paid, or that the employee has earned the minimum salary to retain the work pass, or as proof of the employee's previous salary when applying for a new work pass.

Social security

No social security

There are no social security contributions required for foreigners employed in Singapore on work passes.

Moreover, there is no social security tax as such in Singapore. Instead, Singapore citizens and permanent residents are members of the Central Provident Fund, a mandatory healthcare and retirement saving scheme where contributions are paid into the individual members' personal accounts. Employees enjoy tax relief on CPF contributions; withdrawals from the CPF are exempt from tax. However, foreigners on work passes are neither required nor permitted to be CPF members.

Retirement savings

There is a voluntary Supplementary Retirement Scheme. The SRS is open to tax-resident foreigners on work passes, who may contribute up to SGD35,700 a year. (The SRS contribution ceiling for Singapore citizens and permanent residents is SGD15,300.) SRS contributions enjoy tax relief, and the returns on investment in an SRS account are tax-exempt.

Withdrawals from an SRS account can be made at any time, but they are subject to tax. However, in the case of withdrawals by a non-Singapore citizen or permanent resident who has held his SRS account for at least 10 years, or has reached the statutory retirement age of 62, the amount which is subject to tax is 50% (rather than the whole) of the sum withdrawn.

Pension contributions

Generally, all other pension contributions made while the individual is employed in Singapore are liable to tax as part and parcel of the individual's income from his employment in Singapore — this includes contributions to a pension plan in the foreigner's home country by his parent company during his Singapore assignment.

Insurance

Medical insurance is not required for an "Employment Pass" in Singapore. Broadly speaking, these are managers and executives whose salaries are in the top-third of the Singapore "PMET" workforce by age.

Social security certificates of coverage

Certificates of coverage are unnecessary because:

• Singapore has no concept of a tax like US social security or UK national insurance.
• On the contrary, the equivalent CPF contributions enjoy tax relief, are paid into the employees' personal accounts, and are a form of mandatory saving for personal benefit. In short, social security in Singapore is tax-free income and not tax. When a person dies, his nominated beneficiaries or, in the absence of a nomination (a statutory form of will), his beneficiaries under the rules of intestate succession inherit the money.

In the circumstances, is not unknown for the IRAS to treat social security taxes in other countries as contributions to a provident fund in the Singapore sense and to tax the employee on the basis that the foreign social security system — unlike the CPF — is not an approved provident fund for Singapore tax purposes.

Work pass exemption

Generally, anyone who is not a Singapore citizen or permanent resident has to obtain a work pass to exercise an employment or engage in a trade, profession or vocation in Singapore. Work passes are issued by the Ministry of Manpower. A work pass allows the holder to reside in Singapore for as long as it is valid. No separate visa or pass is required from the Immigration and Checkpoints Authority (ICA) to enter or remain in Singapore.

Visitors from some countries must obtain a visa in advance before travelling to Singapore; most do not. Visitors require a short-term visit pass — typically issued for 30 days at a time by the ICA as a matter of course at points of entry — to stay in Singapore. There are a number of defined activities that can be performed in Singapore on a short-term visit pass, without a work pass. These work-pass exempt activities are in relation to:

• arbitration or mediation services;
• exhibitions;
• journalism;
• judicial or legal duties in the Singapore International Commercial Court;
• casino junket activities;
• location filming and fashion shows;
• performances;
• specialised services related to new plant/operations/equipment;
• seminars and conferences;
• sports; and
• tour facilitation.

Anyone entering Singapore to engage in these defined activities must notify the Ministry of Manpower on arrival, and will be issued a work-pass exemption. The exemption is a matter of self-declaration. It is valid for the duration of the short-term visit pass.

An individual may obtain exemption from the Ministry of Manpower for work pass-exempt activities for up to 90 days in a calendar year. That being said, there is no extension of a short-term visit pass for the purpose of carrying out a work pass-exempt activity. So, for example, one would have to make three trips of 30 days each to perform work pass-exempt activities for the full 90 permitted days.

Family law

Divorce

Generally, parties may not file for divorce in Singapore unless they have been married for at least three years.

If the parties foreign domiciled, the Singapore court has jurisdiction only if one of the parties has been habitually resident in Singapore for three years immediately before the start of the proceedings.

Choice of forum

In VH v VI [2007] SGHC 221, the wife, a French national, married the husband, a Swedish national, in Sweden. They were permanent residents who had been living in Singapore for more than three years. They had two children who were dual French and Swedish nationals. The wife commenced divorce proceedings in Singapore on the ground that the respondent had committed adultery.

• The husband submitted to the jurisdiction of the Singapore court. However, before a hearing date in Singapore was fixed, the husband commenced divorce proceedings in Sweden. He also applied for the wife's Singapore proceedings to be stayed. This was dismissed; the husband appealed.
• The wife, in her turn, applied — repeatedly — in Sweden for the husband's Swedish proceedings to be stayed, and was equally unsuccessful. She then applied for an anti-suit injunction in Singapore to restrain the husband from continuing with the Swedish proceedings. An interim injunction was issued but the husband disregarded the order and obtained a divorce decree from the Swedish court.
• In short, the Singapore proceedings were at an early stage, and the Swedish proceedings were at an advanced stage.
• The husband argued that the wife would not be prejudiced by the Swedish proceedings because:
• • a divorced could be obtained in Sweden on a no-fault basis sooner than in Singapore
  • the division of matrimonial property, and the care and custody and maintenance of the children could settled sooner in Sweden than in Singapore because the Swedish divorce decree had already been issued whereas the application in Singapore had not been heard; and
  • the division of matrimonial property would be more favourable to the wife under Swedish principles than under Singapore principles.

The Singapore High Court decided against the husband in his appeal to stay the Singapore proceedings. It said that, in a divorce, the ground may be as important as the conclusion to the party seeking the divorce. In this case, the husband's arguments overlooked the wife's right to seek a divorce on the ground adultery in Singapore. As such, the Swedish court was not a more convenient forum for the divorce proceedings than the Singapore court.

Ends of justice

The wife argued that justice was not served by the Swedish proceedings because they denied her her action on adultery against her husband and his co-respondent.

However, the Singapore High Court also rejected the wife's application for an anti-suit injunction against the husband's Swedish proceedings. The court observed that the wife had married the husband in Sweden; he was a Swedish national and domiciliary. The court held that:

• In the circumstances of their marriage, she should have understood that if it broke down, it was likely and reasonable that the husband would institute divorce proceedings in Sweden.
• The course of the proceedings in the case in Sweden and in Singapore proved that a fault-free divorce was a simpler process than the contested divorce on the ground of adultery that was available in Singapore.

Therefore, in the final analysis, the judge said that:

"I find that the [husband] has filed the Swedish proceedings in order to bring his failed marriage to an expeditious conclusion, after he had tried but failed to get that through the Singapore proceedings. He would suffer real prejudice if he is prohibited from carrying on further with the proceedings which have progressed to the stage where he could apply for the divorce decree. ...

"From the [wife]'s standpoint, if the Swedish proceedings continues to their conclusion, they will deal with all the questions relating to the dissolution of the marriage and the ancillary matters. When the marriage is dissolved by a court of competent jurisdiction, it will not be dissolved again under the pending proceedings in Singapore. So although the marriage will be dissolved, it will not be dissolved on the basis preferred by the [wife], ie, that the [husband] has committed adultery with the co-respondent. I do not regard this as sufficient to constitute an injustice against her because the respondent is seeking a divorce in Sweden which he is entitled to, the breakdown of the marriage is not attributed to her, and she can still advance and protect the interests of herself and the children in the Swedish courts.

"In the circumstances, I find that the first principle, ie, that the ends of justice requires an anti-suit injunction to be issued, is not satisfied. The fourth principle, that such injunctions are to be issued with caution applies with particular force where a Swedish national and domicile is seeking a dissolution of a marriage contracted in Sweden, and the courts of Sweden had repeatedly refused the petitioner's application to stay the proceedings."

Thus, the husband succeeded in this case. His 'penalty' for having disobeyed the interim injunction against his seeking a divorce from the Swedish court was that the court did not award costs to him.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.