To: Departments of Taxation of
central-affiliated cities and provinces.
On June 03, 2008, the National Assembly issued the Law on Enterprise
income tax No. 14/2008/QH12 that takes effect on January 01, 2009. The Government
also took many measures in 2009 for boosting production and business,
sustaining economic growth and ensuring social security. For ensuring the
enterprise income tax finalization in 2009 is done in accordance with the Law
on Enterprise income tax No. 14/2008/QH12, the Law on Tax administration No.
78/2006/QH11, the Government's Decree No. 124/2008/NĐ-CP dated December 11,
2008, the Circular No. 130/2008/TT-BTC dated December 26, 2008, and relevant
legal documents, the General Department of Taxation guides some contents when
finalizing enterprise income tax in 2009 as follows:
PART 1: ABOUT GENERAL ENTERPRISE INCOME TAX POLICY.
I. Method of calculating enterprise income tax.
1. For producing or trading organizations (hereinafter referred to
as enterprises):
Enterprise income tax amount payable in the tax period equals chargeable
income multiplied by tax rate.
Enterprise income tax payable
=
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X
Enterprise income tax rate
If the enterprise sets up a scientific and technological development fund,
the enterprise income tax payable is calculated as follows:
Enterprise income tax payable
=
(
Chargeable income
-
The science and technology fund
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X
Enterprise income tax rate
If the enterprise has paid enterprise income tax or a similar kind of tax
outside Vietnam, the enterprise may deduct the paid enterprise income tax, but
must not exceed the enterprise income tax payable as prescribed by the Law on
Enterprise income tax.
2. The non-business units that provide goods and services subject
to enterprise income tax of which the income is identifiable, but the cost is
not identifiable nor recorded, the income from such business is calculated as
follows:
Enterprise income tax payable (%) on the income from the provision of
goods and services:
- For services: 5%;
- For goods trading: 1%
- For other activities: 2%
The non-business units eligible for enterprise income tax incentives that
wish to enjoy enterprise income tax incentives must comply with the regulation
of accounting and invoices, register and pay enterprise income tax as declared,
and not apply the rate of enterprise income tax on stated above when enjoying
enterprise income tax incentives.
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Chargeable income in the period is calculated using the following formula:
Chargeable income
=
Taxable income
-
Income eligible for tax exemption
+
The transferred loss
III- Taxable income
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Taxable income in the tax period is calculated as follows:
Taxable income
=
Revenue
-
Deductible expenses
+
Other income
Income from the production of business of goods and services equals the
revenue from it minus the deductible expenses on it. Enterprises engaged in
multiple businesses that apply various tax rates must separately calculate the
income from each business corresponding to the tax rate on such business.
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IV– Revenue for calculating tax
1. The revenue for calculating taxable income (hereinafter referred
to as assessable revenue) is the money from the sale of goods, processing, or
provision of services, including subsidies and surcharges for which the
enterprise is eligible, whether or not they have been collected.
- The revenue for calculating tax of enterprises paying tax using the
deduction method is the revenue without VAT.
Example: Enterprise A pays tax using the deduction method. The VAT
invoice contains the following figures:
Sale price: 100,000 VND.
VAT (10%): 10,000 VND.
Total amount: 110,000 VND.
The revenue for calculating taxable income is 100,000 VND.
- The revenue for calculating tax of enterprises directly paying tax on
the added value is the revenue including VAT.
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The revenue for calculating taxable income is 110,000 VND.
2. The time for determining the revenue for calculating taxable
income is determined as follows:
a) For goods sale, the time for determining the revenue for calculating
taxable income is the time of transferring the right to own and use goods to
the buyer.
b) For services provision, the time for determining the revenue for
calculating taxable income is the time of finishing the provision of services
for the buyer.
V– Deductible expenses and non-deductible expenses when
calculating taxable income.
When calculating taxable income, expenses are deductible when the
following conditions are satisfied:
- The actual expenses on the production and business of the enterprise.
- The expenses come with valid invoices and documents as prescribed
by law.
The non-deductible expenses are expenses that do not satisfy the
conditions stated above, and the expenses specified in Clause 2 Section
IV, Part C of the Circular No. 130/2008/TT-BTC.
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1. Expenses on depreciation of fixed assets:
From January 01, 2009 until the end of December 31, 2009, the Circular No.
130/2008/TT-BTC and the Decision No. 206/2003/QĐ-BTC dated December 12, 2003 of
the Minister of Finance shall apply.
- When starting to depreciate fixed assets, the enterprise must register
the method of depreciation that they choose with the direct tax authorities.
Annually, the enterprise shall determine the depreciation of fixed assets
according to current provisions of the Ministry of Finance applicable to the
management, use, and depreciation of fixed assets, including quick
depreciation. During the operation, a enterprise may change the depreciation
rate within the prescribed limit. The deadline of changing the depreciation
rate is the deadline of submitting the enterprise income tax finalization
declaration of the year of depreciation.
- The depreciation of fixed assets being cars for human with 9 seats or
fewer, civil plans, and cruisers:
The following amounts are not considered deductible expenses: the
depreciation corresponding to the input value that exceed 1.6 billion VND/car,
applicable to cars that have been just registered and depreciated from January
01, 2009 (except for cars serving passenger transport, tourism, and hotel); the
depreciation of fixed assets being civil planes and cruisers not serving goods
transport, passenger transport, or tourism.
Example 1: In 2009, enterprise A purchases a 7-seat car for 2 billion
VND, excluding VAT, with valid invoices as prescribed. According or the
provisions above, enterprise A may only add fixed asset depreciation to the
expenses when calculating taxable income according to the input value of the
car at a limited rate being 1.6 billion VND.
Example 2: In 2009, enterprise B purchases a 7-seat car for 1.5 billion
VND, VAT = 75 million VND, the registration fee is 100 million VND.
Enterprise B purchases this car by cash without paying through banks, thus the
input VAT is not deducted and shall be added to the input value of fixed
assets. The total input value of this car is 1.675 billion VND (1.5 + 0.075 +
0.1). Enterprise B may only add the fixed asset depreciation to the expense
when calculating taxable income according to the input value of the car at a limited
rate being 1.6 billion VND.
- Depreciation of constructions on leased land:
For constructions on land such as office buildings, factories, or stores
serving the production and business that are built on land leased or lent by other
organizations, individuals or households (the land is not leased by the State
or industrial zones, Hi-tech zones, export processing zones), the enterprise
may only add the depreciation to the deductible expenses on these constructions
if the following conditions are satisfied:
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+ The invoices of the handed over constructions enclosed with the building
contract, contract liquidation, calculating construction value, address and tax
codes of the enterprise.
+ The constructions on land are managed, monitored and recorded in
accordance with current provisions on fixed asset management.
2. Registering the reasonable consumption of materials, fuel,
energy and goods used in the production and business:
The reasonable consumption of materials, fuel, energy and goods used in
the production and business is set be the enterprise. The reasonable
consumption is set at the beginning of the year or the beginning of the
production period, and sent to the direct tax authorities within 3 months as
from the commencement of the production. The deadline for sending the
notification of the amendment and supplementation of the reasonable consumption
is the deadline for submitting the enterprise income tax finalization
declaration.
3. Expenses on salaries:
- The following payments are added to the expense when calculating taxable
income: salaries, remunerations and benefits paid to employees as prescribed by
law; the bonuses paid to employees as part of their salaries of which the
conditions are specified in the labor contract or collective labor agreement.
An enterprise may set up a reserve fund not exceeding 17% of the current salary
fund to supplement the salary fund of the succeeding year in order to ensure
that the salary payment is uninterrupted as long as such fund is not used for
other purposes.
- The enterprise must not include the expenses on tuition of employees’
children written in labor contracts to deductible expenses.
4. Expenses on breaking meals:
The expenses on meals may be included in deductible expenses if such
expenses have valid invoices as prescribed by law.
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5. Expenses on clothing:
The following expenses are not deductible: the expenses in kind on
clothing of employees that exceed 1,500,000 VND/person/year; the expenses in
cash on clothing to employees that exceed 1,000,000 VND/person/year.
6. The following expenses are not deductible: the allowance given
to employees going on business trips domestically and overseas (not including
expenses on traveling and accommodation) that exceed 2 times of the limit
applicable to the State’s officers and public employees as prescribed by the
Ministry of Finance.
The expenses on the allowance for domestic and overseas business trips
given to the State officers and public employees must comply with the following
documents:
- Domestic trips: the Circular No. 23/2007/TT-BTC dated March 21, 2007 of
the Ministry of Finance;
- Overseas trips: the Circular No. 91/2005/TT-BTC dated October 18, 2005
of the Ministry of Finance;
7. Expenses on interest payment:
The following expenses are not deductible: the payment for the interest of
on capital loan taken from subjects not being credit institutions or economic
organizations that exceed 150% of the basic interest rate announced by the
State bank of Vietnam at the time of taking the loan. The expense on the
interest on the loan taken to contribute to the charter capital corresponding
to the missing portion of the registered charter capital written in the
company’s charter, even the enterprise has commenced their business.
Example: Enterprise A registers their charter capital = 90 billion. The
charter of enterprise A stipulates that such charter capital shall be
contributed within a certain period of time (3 years, 30 billion VND each
year). Enterprise A contributes the charter capital in accordance with the
registered contribution schedule being 30 billion VND per year, and pays the
interest on the capital loan. Such interest payments come with valid invoices
and do not exceed the limit. Then, such payment shall be included in the
expense when calculating taxable income.
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8. The provision against devaluation of goods in stock, provision
against the loss of financial investment, provision against bad debts,
provision against warranty of products, goods and constructions shall be made
and use in accordance with the Circular No. 228/2009/TT-BTC dated December 07,
2009 of the Ministry of Finance.
Provision for securities investment:
a) The subjects of provision are the securities that satisfy the following
conditions:
- The securities legally invested by the enterprise.
- The securities are free to trade on the market of which the market price
is decreasing compared to that recorded in the accounting books at the time of
making Financial statements.
The securities banned from free trading on the market such as securities
restricted from transfer as prescribed by law, and treasury stock are banned
from provision against devaluation
The organizations that register to do securities business such as
securities companies, fund management companies, that are established and
operated in accordance with law provisions on securities, the provisions
against securities devaluation shall comply with separate provisions.
b) Method of making provisions:
The provision against securities investment devaluation is calculated as
follows:
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=
The amount of devaluated securities at the
time of making the Financial statement
x
The securities price recorded in the
accounting books
-
The actual securities price on the market
- For listed securities: the actual securities price on the market
according to the Stock Exchange of Hanoi is the average transaction price in
the day of making provisions; the Stock Exchange of Ho Chi Minh city is the
closing price in the day of making provisions.
- For unlisted securities on the securities market, the actual securities
price is calculated as follows:
+ For companies that have registered to trade on the market of unlisted
public companies, the actual securities price on the market is the average
transaction price of the market on the day of making provisions.
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If the market value of the securities is not identifiable, the enterprise
must not make provisions against devaluation of securities prices.
- For securities being delisted or suspended from the sixth transaction
day and later, it is the value in books on the nearest day of making the
Balance sheet.
The enterprise must make separate provisions for each kind of investment
securities that are devaluated at the time of making the Financial statement,
and include them in the list of provision against investment securities
devaluation as the basis for recorded to the financial expenses of the
enterprise.
9. Payments to unemployment insurance funds of enterprises:
According to the Law on Social insurance, the Government's Decree No.
127/2008/NĐ-CP dated December 12, 2008, detailing the implementation of the Law
on Social insurance applicable to unemployment insurance, taking effect on
January 01, 2009, and the Circular No. 130/2008/TT-BTC of the Ministry of
Finance:
The sources of unemployment insurance funds according to Article 102 of
the Law on Social insurance:
- Payments for unemployment insurance made by employees being 1% of their
monthly salaries.
- Payments made by the employer being 1% of salary funds for paying
unemployment insurance of the employees participating in unemployment
insurance.
- Supports from the State budget being 1% of salary funds for paying
unemployment insurance of the employees participating in unemployment
insurance, transferred once per year.
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10. Making and using the provisions for redundancy pay and
severance pay:
In 2009, if an enterprise pays unemployment insurance for employees and
make provisions against redundancy pay in accordance with current regulation,
such payments may be included in deductible expenses when calculating
enterprise income tax.
The provisions for redundancy pay and severance pay must comply with the
Circular No. 82/2003/TT-BTC dated August 14, 2003 of the Ministry of Finance,
on making, managing, using, and recording Provisions for redundancy pay of
enterprises.
11. Exchange rate differences:
According to the Circular No. 177/2009/TT-BTC dated September 10, 2009 of
the Ministry of Finance: for enterprises having debts payable in foreign
currencies, the losses on the exchange rate differences in the period, and the
losses on exchange rate differences when reassess the debts payable in currencies
at the end of the fiscal year, shall be included in the expense when
calculating taxable income in the period. In case the business of the
enterprise is at a loss when including the exchange rate differences when
reassessing the debts payable in foreign currencies in the expense, the
enterprise may distribute part of the exchange rate difference to the
succeeding year so that the enterprise does not suffer loss, but the exchange
rate difference included in the expense of a year must at least equal the
exchange rate difference of the foreign currency amount payable in that year.
Example 1: In 2009, the final income of enterprise A is 300 million
VND, including the exchange rate differences when reassessing the debts payable
in foreign currencies at the end of the fiscal year.
In 2009: the exchange rate difference when reassessing the debts payable
in foreign currencies at the end of the fiscal year is -250 million VND,
including -100 million VND of debts payable in foreign currencies.
Consequently, enterprise A in 2009 may include the losses on the exchange
rate differences when reassessing the debts payable in foreign currencies at
the end of the fiscal year being 250 million VND in the expense.
Example 2: In 2009, the taxable income of enterprise B is 200 million
VND, including the exchange rate differences when reassessing the debts payable
in foreign currencies at the end of the fiscal year.
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Consequently, if enterprise B shall be at a loss if it includes all
the exchange rate differences when reassessing the debts payable in foreign
currencies at the end of the fiscal year in the expense. The exchange rate
differences shall be included in the expense when calculating taxable income in
2009 as follows:
- The exchange rate difference of the due debts in foreign currencies in
2009 is -100 million VND (enterprise A must include this amount in the
expense of the period)..
- The maximum exchange rate difference when reassessing the undue debts
payable in foreign currencies at the end of the fiscal year, that may be
included in the expense is -100 million VND.
12. The following expenses are not deductible: expenses on
advertising, marketing, promotions, brokerage commissions; expenses on
receptionists and conventions; expenses on support for marketing, expenses, payment
discount; expenses on complimentary publications of the press agency directly
related to the production and business that exceed 10% of the total deductible
expense. For newly established enterprises, it is the amount that exceed 15%
within the first 3 years as from the establishment. The total deductible
expense does not include the limited expenses prescribed in this Point. For
commercial activities, the total deductible expense does not include the
purchase price of the goods being sold.
The limited expenses on advertising, marketing, promotions, and brokerage
commission stated above do not include insurance brokerage commission as
prescribed by law provisions on insurance business; commission paid to agents
that sell at the right prices; the expenses on market research: surveying,
interviewing, collecting, analyzing, and assessing information; expenses on the
market research support and development; expenses on market research
consultancy; expenses on the display and introduction of products; expenses on
commercial fairs and exhibitions; expenses on showrooms; expenses on materials
and stuff that supports the display and introduction of products; expenses on
the transport of displayed and introduced products.
The limited rate of 15% in the first 3 years is only applicable to new
enterprises that have been issued with the Certificate of business registration
from January 01, 2009, and not applicable to enterprises established from
consolidation, merger, division, separation, or transformation of for or
ownership.
Example: In 2009, the company A established in 2008 makes the
enterprise income tax finalization report that contains the following expenses:
- The expenses on advertising, marketing, promotions, brokerage
commissions; expenses on receptionists and conventions; expenses on support for
marketing, expenses, payment discount; expenses on complimentary publications
of the press agency directly related to the production and business that come
with valid invoices: 250 million VND.
- The total deductible expense (excluding the expenses on advertising,
marketing, promotions, brokerage commissions; expenses on receptionists and
conventions; expenses on support for marketing, expenses, payment discount;
expenses on complimentary publications of the press agency directly related to
the production and business): 2 billion VND.
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2 billion VND multiplied by (x) 10% equal (=) 200 million VND
The total deductible expense included in the expense of 2009 is:
2 billion VND plus (+) 200 million VND equal (=) 2.2 billion VND
13. The following expenses are deductible: the payment for social
insurance and health insurance funds, the expenses on the Union that do not
exceed the prescribed limit. The contribution to the managerial budget,
contribution to the association funds as prescribed by law that do not exceed
the prescribed limit.
14. The following expenses are not deductible: the expenses that
are not corresponding to the assessable revenue, the periodic accrued expenses
that are not spent or completely spent at the end of the period. The accrued
expenses include: expenses on periodic major repair of fixed assets, accrued
expenses on the activities of which the revenue has been recorded, but the
contractual obligation is not completely fulfilled, and other accrued expenses.
Therefore, the following expenses are deductible: the expenses that are
corresponding to the assessable revenue, as long as such expenses come with
valid invoices as prescribed; the periodic accrued expenses.
Example 1: the company A writes a software program for the
company B, but the software service package is not complete. The company A
has collected money and recorded the assessable revenue, but the expenses
corresponding to the recorded revenue have not completely arisen. The unit may
include in advance the expenses corresponding to the declared revenue when
calculating taxable income in order to comply with the principles of expenses
corresponding to assessable revenue when calculating taxable income.
Example 2: the company B sells air tickets to their clients in December
2009, but their clients do not fly until February 2010. The company A has
issued invoices to their clients and recorded the assessable revenue in 2009,
but the expenses corresponding to the recorded revenue have not completely
arisen; the unit may include the expenses corresponding to the declared revenue
when calculating taxable income.
15. Expenses on fines:
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The expenses on fines and compensations for violations of economic
contracts do not belong to the fines stated above. If such fines come with
valid invoices as prescribed, they shall be included in deductible expenses
when calculating taxable income.
16. Taxes:
- Personal income tax that is not included in deductible expenses when
calculating taxable income is the tax deducted from the income of tax payers to
pay to the State budget. If the labor contract stipulates that the salary paid
to the employee does not include personal income tax, the personal income tax
paid by the enterprise on the employee’s behalf is the expense on salaries, and
shall be included in deductible expenses when calculating taxable income.
- Enterprise income tax (foreign contractor's tax) paid on behalf of
foreign contractors is included in deductible expenses when calculating taxable
income if the revenue received by foreign contractors and sub-contractors does
not include enterprise income tax as agreed in the contract.
VI– Other incomes.
Other incomes are prescribed in Section V, Part C of the Circular No.
130/2008/TT-BTC. Some further notices:
- According to the Circular No. 177/2009/TT-BTC dated September 10, 2009
of the Ministry of Finance: if an enterprise that has debts payable in foreign
currencies, the exchange rate differences in the period and the interest on
exchange rate differences when calculating the debts payable in foreign
currencies shall be included in the expense when calculating taxable income.
- The income from fines and compensation paid by the parties that violate
economic contracts shall be included in other incomes. When an enterprise have
both receipts from fines for economic contract violations and expenses on
economic contract violations, the difference between the receipts from fines
and expenses on fines shall be included in other incomes when calculating
taxable income.
Enterprises having expenses on fines and compensation for economic contract
violations must comply with Point 14 in Section V above.
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- Convert the provisions against devaluation of goods in stock, provisions
against loss on financial investments, provisions against bad debt receivable,
and provisions for the warranty of products, goods and constructions that were
made but have not been used or not been completely used at the end of the
period into other incomes when calculating taxable income.
- The receipts in cash or in kind from sponsorships are included in other
incomes when calculating taxable income.
If the organization receives a sponsorship for education, scientific
research, cultures, arts, charity, or other social activities in Vietnam, such
incomes are exempted from tax and shall be deducted when calculating chargeable
income.
VII– Tax-free income
1. Income from farming, breeding, or aquaculture of organizations
established under the Law on Cooperatives.
2. Income from providing technical services directly serve
agriculture, including: irrigating, plowing and raking, dredging, pest control,
harvesting services.
3. Income from the performance of scientific research and
technology development contracts; income from the sale of products during the
experimental production period, and in come from the sale of products from new
technologies applied in Vietnam for the first time. The tax exemption period
must not exceed 01 year as from the commencement date of the scientific
research and technology development contract; the commencement day of the
experimental production; the commencement day of applying the new technology.
3.1. Income from the performance of scientific research and
technology development contracts must satisfy the following conditions:
- Having scientific research registration certificate;
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3.1. Income from the sale of products from the new technology which
is applied in Vietnam for the first time is exempted from paying tax as long as
such technology is applied in Vietnam for the first time, and certified by
competent State management agencies in charge of science.
4. Income from the production and provision of goods and services
of enterprises of which the average number of employees being the
disabled, detoxified people, or HIV sufferers in a year account for at least 51
% of the total average number of employees in a year.
Example: enterprise A has 290 employees according to the payroll of
January 2009; in April 2008, the enterprise employs 12 people; 2 employees quit
in October, 3 employees quit in December. The average number of employees
in 2009 is calculated as follows:
290 +
(12 people x 9 months) – (2 people x 3
months) - (3 people x 1 month)
12
= 290 employees + 8 employees = 298 employees
The average number of employees in 2009 of enterprise A is 298. If at
least 151 people therein are the disabled (298 x 51%), the income from the
production or provision of goods and services of enterprise A is tax-free.
- The tax-free income prescribed in this Clause does not include other
incomes.
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4.1. For enterprises employing the disabled and invalids, the
number of disabled employees must be certified by competent health agencies.
4.2. The enterprises employing detoxified people must present the
detoxification certificates issued by the detoxification centers or
certification from competent agencies.
4.3. For enterprises employing HIV sufferers, the number of
employees being HIV sufferers must be certified by competent health
agencies.
5. Income from vocational training provided for ethnics, the
disabled, impoverished children, and offenders If there are other subjects in
the same vocational training facility, the tax-free income is proportional to
the number of students being for ethnics, the disabled, impoverished children,
and offenders.
The tax-free income from the provision of vocational training prescribed
in this Point must satisfy the following conditions:
- The vocational training facility must be established and operated in
accordance with legal documents on vocational training.
- Having the list of students being ethnics, the disabled, impoverished
children, and offenders
6. The income distributed from the distribution, stock purchase,
economic cooperation with domestic enterprises, after the contribution
receiver, the stock issuer, and the cooperation partner has paid enterprise
income tax as prescribed by the Law on Enterprise income tax, even the
contribution receiver, stock issuer, or cooperation partner is eligible for tax
exemption or reduction.
Example: enterprise B receives capital contribution from enterprise A.
The pre-tax income of enterprise A corresponding to its contribution in
enterprise B is 100 million VND.
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- Situation 2: enterprise B is eligible for 50% reduction of the enterprise
income tax payable, and it has completely paid the enterprise income tax,
including the income of enterprise A. The income that enterprise A receives
from the contribution is 87.5 million VND [(100 million VND – (100 million VND
x 25% x 50%)], that 87.5 million VND of enterprise A is exempted from
enterprise income tax.
- Situation 1: enterprise B is eligible for tax exemption. The income that
enterprise A receives from the contribution is 100 million VND. That 100
million VND of enterprise A is exempted from enterprise income tax.
7. The sponsorships for education, scientific research, cultures,
arts, charity, or other social activities in Vietnam.
If the sponsorship receiver does not properly use such sponsorships, it must
calculate and pay enterprise income tax at the rate of 25% of the amount being
used improperly.
The sponsorship receivers prescribed in this Clause must be established
and operated in accordance with laws, and must comply with law provisions on
accounting and statistics.
VIII– Guidance on calculating losses and transferring
losses.
The losses arising in a tax period is the negative difference of taxable
income.
If an enterprise suffers losses after finalizing tax, it may transfer the
losses in the finalized year and deduct it from the taxable income of the
succeeding years. The loss transfer period must not exceed 5 consecutive years,
starting from the year succeeding the loss-arising year.
For the losses arising in 2009 and later, the transfer period must not
exceed 5 consecutive years, starting from the year succeeding the loss-arising
year. The losses arising before 2009 shall be transferred as prescribed in the
legal documents at that time. If the losses are not completely transferred
until 2009, the loss transfer period still continues.
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After 5 years as from the year succeeding the loss-arising year, if the
loss is not completely offset, it shall not be deducted from the income of the
succeeding years.
Example: the total loss of enterprise A in 2008 is 5 billion VND, and it
is transferred for 5 consecutive years. In 2009, when finalizing tax,
enterprise A declares the chargeable income (interest) being 1 billion VND, and
it transfers the loss of 1 billion VND in 2008 to the chargeable income in
2009. When inspecting the enterprise income tax finalization in 2009, the tax
authorities finds that the chargeable income of enterprise A in 2009 is 1.5
billion VND. The loss that arose in 2008 shall be deducted from the chargeable
income according to the calculation of the inspecting agency (the offset
loss is 1.5 billion VND). Depending on the faults, the competent agency shall
impose fines for violations of law provisions on tax as prescribed.
IX– Enterprise income tax rates
From the tax period 2009, the common enterprise income tax is 25%. In
additions, there are other tax rates (such as preferential tax rates according
the business lines or localities; preferential tax rates on socialization… and
tax rates on the exploration and extraction of petroleum and other rare
resources in Vietnam).
If the fiscal year of an enterprise is different from the calendar year,
the tax period 2008 shall apply the enterprise income tax policy prescribed in
the Circular No. 134/2007/TT-BTC; and the tax period 2009 shall apply the
enterprise income tax policy in the Circular No. 130/2008/TT-BTC. If the
enterprise is not eligible for preferential enterprise income tax rate when
applying the fiscal year different from the calendar year, it may apply the
enterprise income tax rate of 25% corresponding to the arising months in 2009
when calculating enterprise income tax payable.
Example: The tax period of an enterprise begins on October 01, 2008 to
September 30, 2009. The tax period of this enterprise is the tax period
2008, and then it shall apply the enterprise income tax policy prescribed in
the Circular No. 134/2007/TT-THE MINISTRY OF FINANCE. If enterprise Applying
the common tax rate is not eligible for preferential enterprise income tax rate
the tax payable is calculated as follows:
Enterprise income tax payable
=
Taxable income in the tax period
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Taxable income in the tax period
x 9 months x 25%
12 months
12 months
X- Locations for paying enterprise income tax.
1. Principles:
The enterprise shall pay tax where its head office is situated. If an
enterprise has factories doing dependent accounting in other central-affiliated
cities and provinces than the locality where its head office is situated, the
tax shall be paid where the head office and the factories are situated.
The tax payment prescribed in this Clause is not applicable to dependent
cost-accounting constructions and construction items.
2. Tax calculation and procedures for declaring and paying tax.
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The figures to calculate the ratio of the expense of the head office to
the expenses of the factories doing dependent accounting are determined by the
enterprise themselves, according to the enterprise income tax finalization
2008, and such ratio is constantly used from 2009 and later.
If an enterprise opens or reduces factories doing dependent accounting in
other localities, it must determine the expense ratio in the first tax period
in such cases. From the succeeding tax period, the expense ratio is determined
as prescribed above.
Enterprise At the head office must declare and pay the enterprise income
tax arises at the head office and at the factories doing dependent accounting
under the form No. 07/TNDN promulgated together with the Circular No.
130/2008/TT-BTC.
3. Procedures for transferring documents between the Treasuries and
tax authorities.
The enterprise shall pay enterprise income tax where the head office is
situated to the State Treasury at the same level with the tax authorities where
it registers to declare tax, and it must pay the tax payable of the dependent
factories in other localities. The tax payment receipts must be make separately
for each State Treasury, enclosed with the photocopy of the declaration made
under the form No. 07/TNDN promulgated together with the Circular No.
130/2008/TT-BTC.
4. Tax finalization:
An enterprise shall declare the enterprise income tax finalization where
the head office is situated. The outstanding enterprise income tax payable
equals the enterprise income tax payable according to the finalization minus
the preliminarily paid amount where the head office is situated and where the
dependent factories are situated. When finalizing the annual tax at the head
office, if the enterprise income tax is larger or smaller than the
preliminarily paid amount in Q4, the outstanding enterprise income tax payable
or the refunded amount shall be distributed proportionally where the head
office and where the dependent factories are situated.
XI– Enterprise income tax from real estate transfer.
1. Taxable income:
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From January 01, 2009, the enterprises from all economic sectors that earn
income from transferring the right to use land, right to lease, right to
sublease land; real estate companies earning income from subleasing land must
pay tax on the income from real estate transfer.
2. Assessable revenue:
- Revenue from real estate transfer is determined according to the actual
real estate transfer prices (including the surcharges, if any) at the time of
transferring real estate.
In case the price for transferring the right to use land is lower than the
land price set by the People’s Committees of central-affiliated cities and
provinces, the price set by the People’s Committees of central-affiliated
cities and provinces at the time of transferring real estate shall apply.
- The time for calculating assessable revenue is the time the seller hands
over real estate to the buyer, whether the buyer has registered the ownership
of property or the right to use land with competent State agencies.
- When the State allocates or leases land to an enterprise to execute an
investment project on infrastructure or houses to transfer or lease, that
collects deposits from the clients according to the progress, then the time for
determining revenue for calculating preliminary enterprise income tax is the
time of collecting money from the clients.
+ if an enterprise can determine the expense corresponding to the revenue
from the money collected from the clients, it shall declare and pay preliminary
enterprise income tax by subtracting expense from revenue.
+ if an enterprise fails to determine the expense corresponding to the
revenue from the money collected from the clients, it shall declare and pay
preliminary enterprise income tax at 2% of the revenue, and this revenue may
not be included in the revenue for calculating enterprise income tax in the
year.
For the enterprises that have collected money from their clients according
to the progress of the project before 2009, but have not declared and paid
enterprise income tax, the collected money must be declared in 2009 to
calculate the preliminary enterprise income tax as prescribed above.
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- When finalizing enterprise income tax for construction projects on
building houses for sale before 2008, and some of which have been finished and
sold together with the land tenancy, that finishes in 2009 or later, the enterprise
must separate the sold and handed over houses together with the land tenancy in
2008 and earlier on which the tax is completely paid in accordance with the tax
policy 2008 and earlier. Such tax is calculated and paid in accordance with the
Law on Enterprise income tax No. 09/2003/QH11 and its guiding documents; the
houses sold together with the land tenancy since January 01, 2009 and later
shall pay enterprise income tax in accordance with the Law on Enterprise income
tax No. 14/2008/QH12 and its guiding documents.
3. Declaring, paying, and finalizing tax:
- Enterprises shall submit the tax declaration and pay enterprise
income tax on the income from real estate transfer to the local tax authorities
where the transferred real estate is located.
The tax declaration, tax payment documents, tax payment receipts are the
basis for finalizing tax where the head office is located.
- Enterprises shall declare enterprise income tax for every real
estate transfer under the form No. 09/TNDN promulgated together with the
Circular No. 130/2008/TT-BTC. The preliminary enterprise income tax on
the deposit of clients collected according to the progress shall be paid at the
local tax authorities where the transferred real estate is located, and be
declared in part II of the Declaration No. 09/TNDN. When handing over the real
estate, the enterprise must recalculate the enterprise income tax payable on
real estate transfer and declare it in Part I of the Declaration No. 09/TNDN.
- If an enterprise that regularly transfers real estate requests to pay
tax on every transfer and has declares enterprise income tax similarly to an
enterprise that does not regularly transfer real estate, it may not declare
preliminarily enterprise income tax every quarter, and may only declare annual
enterprise income tax finalization.
XII– Enterprise income tax incentives
1. Some further principles of enterprise income tax incentives:
- The period of applying preferential tax rates starts from the first year
the enterprise earns revenue from activities eligible for tax incentives.
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Example: Enterprise A is eligible for tax exemption and reduction and
has the first tax period in 2009, the tax exemption and reduction period starts
from the first year it earns taxable income from the investment project
eligible for tax incentives.. In case it does not earn taxable income in
the first 3 years as from the first year of earning revenue from the investment
project, the tax exemption and reduction period shall starts from the fourth
year.
+ Enterprise B is eligible for tax exemption and reduction and has
the first tax period in 2007, and has earned revenue. The tax exemption and
reduction period starts from the first year it earns taxable income. In case it
has not earned taxable income at the end of 2009, the tax exemption and
reduction period starts from 2010.
+ Enterprise C is eligible for tax exemption and reduction, has the first
tax period before 2007, has earned revenue without taxable income, and the tax
exemption and reduction period has not started. The tax exemption and reduction
period shall start from the tax period 2009.
- In the same tax period, if an enterprise earns an income eligible for
various preferential enterprise income tax rates and tax exemption and
reduction periods, it may choose the most advantageous enterprise income tax
incentive.
- If the enterprise does not satisfy one of the conditions for tax incentives
as prescribed during the enterprise income tax incentives period, it is not
eligible for incentives in that fiscal year and must pay enterprise income tax
at the rate of 25%.
- In the same tax period, if an enterprise engages in both business eligible
for tax incentives and business ineligible for tax incentives, it must
separately record the income from the business eligible for tax incentives and
the business ineligible for tax incentives in order to separately declare and
pay tax.
- If the business eligible for tax incentives is at a loss and business
ineligible for tax incentives (except for real estate transfer) is profitable
(and vice versa), the enterprise may offset it against the taxable income from
the profitable business at will. The residual income after offsetting shall
apply the enterprise income tax rates at the tax rate on the profitable income.
- an enterprise eligible for enterprise income tax incentives
(including preferential tax rates and tax exemption or reduction period) as prescribed
in the previous legal documents on enterprise income tax or the issued
Investment license or Investment incentive certificate, it is eligible for such
incentives for the remaining time. In case the enterprise income tax incentives
include both preferential tax rates and tax exemption or reduction period which
is lower than the incentives prescribed in the Law on Enterprise income tax No.
14/2008/QH12 and its guiding documents, the Law on Enterprise income tax No.
14/2008/QH12 and its guiding documents shall apply to the remaining time
starting from the tax period 2009.
- During the tax exemption or reduction period, if competent agencies find
that the enterprise income tax of the tax exemption or reduction period
increases, the enterprise is eligible for tax exemption or reduction as
prescribed. Depending on the faults, the competent agency shall impose
penalties for violations of law provisions on tax as prescribed.
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+ Other incomes.
+ Incomes from the exploration and extraction of petroleum and other rare
resources.
+ Incomes from the business of prizing games and gambling as prescribed by
law.
+ Other cases as prescribed by the Government.
2. Some further notices:
2.1. For enterprises that are no longer eligible for enterprise
income tax incentives for satisfying the conditions for using domestic
materials, for the export proportion of textiles and garments according to
WTO’s Accession commitment, the Ministry of Finance issued the Official
Dispatch No. 2348/BTC-TCT dated March 03, 2009. In particular:
For enterprises engaged in the textiles and garments industry, enterprises
eligible for incentives for using domestic materials, if other conditions for
enterprise income tax incentives are satisfied (apart from the incentives for
satisfying the conditions for export proportion, using domestic materials) such
as producing in industrial zones, producing in export processing zones. If the
conditions for export proportion are not satisfied, the conditions similar to
that of industrial zones shall apply (according to Clause 2 Article 2 of the
Government's Decree No. 29/2008/NĐ-CP dated March 14, 2008); enterprises
operating in impoverished localities in the list of prioritized localities,
labor-intensive enterprises… shall continue to enjoy enterprise income
tax incentives corresponding to the conditions that they have satisfied for the
remaining time. Enterprises may choose one of the two options:
Option 1: continue to enjoy enterprise income tax incentives
corresponding to the conditions that they satisfy for the remaining time
(except for the incentives for satisfying the conditions for export proportion
and using domestic materials) according to the previous legal documents on
enterprise income tax at the issuance date of the establishment license.
Option 1: continue to enjoy enterprise income tax
incentives corresponding to the conditions that they satisfy for the remaining
time (except for the incentives for satisfying the conditions for export
proportion and using domestic materials) according to the previous legal
documents on enterprise income tax at the adjustment time in accordance with
the WTO commitment (January 11, 2007).
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Example 1: An export processing enterprise producing garments for
export that have projects in industrial zones. The enterprise is established in
1997 and eligible for enterprise income tax rates of 10% during the entire
project according to the investment license; exempted from tax for 4 years as
from earning taxable income and, and eligible for 50% reduction in tax for the
next 4 years. The enterprise has earned taxable income from 1997.
- According to the investment license, it is exempted from tax for 4 years
(1997 – 2000), and eligible for tax reduction by 30% for the next 4 years (2001
– 2004), and eligible for the tax rate of 10% from 1997 until the end of the
project.
- According to the Government's Decree No. 152/2004/NĐ-CP dated August 06,
2004, the export processing enterprises engaged in production are eligible for
4 years of tax exemption (1997 – 2000) and 7 years of tax reduction by 50% (2001
– 2007), and applying the tax rate of 10%
- According to the Government's Decree No. 24/2007/NĐ-CP and the Circular
No. 134/2007/TT-BTC, from 2007, the enterprise is not eligible for the
preferential enterprise income tax rate of 10% according to the conditions for
export and tax reduction 2007. However, it satisfies the conditions for
factories in industrial zones.
Option 1: if the enterprise wishes to enjoy incentives for the
remaining time according to the provisions on enterprise income tax at the time
of issuing the establishment license (the legal document at the time of issuing
the license in 1997 is the Decree No. 36/CP
dated April 24, 1997), then the enterprise being a factory in the industrial
zone is eligible for the preferential enterprise income tax rates of 15% for
the entire project; eligible for enterprise income tax exemption for 2 years as
from earning taxable income, and not eligible for tax reduction. On
January 11, 2007 (the WTO commitment date), the company has enjoyed tax exemption
for 4 years and tax reduction for 6 years. When choosing option 1, it may enjoy
the tax rate of 15% for the remaining time from 2007 until the end of the
project.
Option 2: if the enterprise wishes to enjoy incentives according to the
provisions on enterprise income tax at the date of WTO commitment (January 11,
2007) for the remaining time (the legal document at the time of issuing the
license in 1997 is the Decree No. 24/2007/NĐ-CP), then the enterprise
being a factory in the industrial zone is eligible for the preferential
enterprise income tax rates of 15% for 12 years as from the commencement of the
business; eligible for tax exemption for 3 years as from earning taxable
income, and eligible for tax reduction by 50% of the tax payable for the next 7
years. On January 11, 2007, the company has enjoyed tax exemption for 4
years and 50% reduction in tax for the next 6 years (1997 – 2006), the company
is not eligible for tax reduction for the remaining time, and may apply the
enterprise income tax rate of 15% for 12 years (1997 - 2008). When choosing
option 2, the company may apply the tax rate of 15% for the remaining time
being 2007 and 2008. From 2009, the tax rate of 25% shall apply.
Example 2: The company B in a 100%-capitalized industrial zone
produces garments for export. Its business commences in 2003. The company is
eligible for preferential enterprise income tax rate of 10% during the entire
project; exempted from tax for 4 years as from earning profits, and eligible
for 50% reduction in tax for the next 4 years. The company earns income for the
first time in 2005.
- According to the investment license, it is exempted from tax for 4 years
(2005 – 2008), and eligible for tax reduction by 30% for the next 4 years (2009
– 2012), and eligible for the tax rate of 10% from 2003 until the end of the
project.
- According to the Government's Decree No. 24/2007/NĐ-CP and the Circular
No. 134/2007/TT-BTC, the company is not eligible for the enterprise income tax
rate of 10% and not eligible for tax reduction according to the export
conditions. However, it satisfies the conditions for factories in
industrial zones.
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Option 1: if the enterprise wishes to enjoy incentives for the
remaining time according to the provisions on enterprise income tax at the time
of issuing the establishment license (the legal document at the time of issuing
the license in 2003 is the Decree No. 27/2003/NĐ-CP), then the
enterprise being a factory in the industrial zone is eligible for the
preferential enterprise income tax rates of 15% for the entire project;
eligible for enterprise income tax exemption for 2 years as from earning
taxable income, and not eligible for tax reduction. When choosing option 1,
it is eligible for tax exemption for 2 years (2005 and 2006), eligible for tax
rate of 15% for the remaining time from 2007 until the end of the project.
Option 2: if the enterprise wishes to enjoy incentives according to the
provisions on enterprise income tax at the date of WTO commitment (January 11,
2007) for the remaining time (the legal document at the time of issuing the
license in 1997 is the Decree No. 24/2007/NĐ-CP), then the enterprise being a
factory in the industrial zone is eligible for the preferential enterprise
income tax rates of 15% for 12 years as from the commencement of the business;
eligible for tax exemption for 3 years as from earning taxable income, and
eligible for tax reduction by 50% of the tax payable for the next 7 years.
When choosing option 2, the company earning taxable income from 2005 until
January 11, 2007 shall be eligible for tax exemption for one more year
(200&), eligible for tax reduction by 50% in the next 7 years (2008 –
2014), eligible for the tax rate of 15% for 12 years (2002 – 2013). Thus until
2007, the company may apply the tax rate to the remaining time being 7 years
(2007 – 2013). From 2014, the tax rate of 25% shall apply.
Example 3: A garment enterprise established in 2000 has the export
proportion > 80% of its products. Thus it is and eligible for the
enterprise income tax rate of 10% during the entire project; exempted from tax
for 4 years as from earning taxable income and, and eligible for 50% reduction
in tax for the next 4 years.
According to the Government's Decree No. 24/2007/NĐ-CP and the Circular
No. 134/2007/TT-BTC, the company is not eligible for the enterprise income tax
rate of 10% and not eligible for tax reduction according to the export
conditions. However, it satisfies the conditions for factories in
industrial zones.
In the example above, at the end of the incentives according to the WTO
commitment, after 4 years of tax exemption period, if that enterprise
chooses option 2 (tax exemption for 3 years and tax reduction by 50% for the
next 7 years; applying the tax rate of 15% for 12 years as from commencing the
business), the enterprise is not eligible for tax exemption or reduction
according to the Decree No. 24/2007/NĐ-CP, and may only chose to enjoy the tax
rate of 15% in 12 years as from commencing the business for the remaining time.
2.2. Enterprises are eligible for enterprise income tax incentives
when satisfying the conditions for export proportion until the end of 2011
(except for textiles and garments).
From 2012, if enterprises enjoying enterprise income tax incentives for
satisfying the conditions for export proportions satisfy the conditions for
other enterprise income tax incentives (apart from the conditions for export
proportion), they may choose and notify the enterprise income tax incentives
for the remaining time to the tax authorities, depending on the fulfillment of
conditions for investment incentives as prescribed in legal documents on
enterprise income tax at the time of issuing the establishment license or at
the date of WTO commitment (the end of 2011).
2.3. Clause 4 Article 2 of the Regulation on industrial zones,
export processing zones, and Hi-tech zones promulgated together with the
Government's Decree No. 36/CP dated April 24, 1997 prescribes: “Export
processing enterprises are enterprises that produce goods for export, providing
services for producing goods for export and the export activities, established
and operated in accordance with this Regulation”.
- Clause 6 Article 2 of the Government's Decree No. 29/2008/NĐ-CP dated
March 14, 2008, on industrial zones, export processing zones, and economic
zones prescribes: “Export processing enterprises are enterprises established
and operated in export processing zones, or enterprises that export all of
their products in industrial zones or economic zones:.
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2.4. For the business related to the infrastructural development of
industrial zones, export processing zones, and Hi-tech zones, the Ministry of
Finance issued the Official Dispatch No. 4125/BTC-TCT and the Official Dispatch
No. 13480/BTC-TCT dated September 23, 2009. In particular:
- If an enterprise engaged in the development of industrial zones receives
land allocated or leased by the State to build infrastructures but does not
build infrastructures for lease in accordance with the issued investment
license or certificate of business registration, and transfer the right to use
or to rent land to other enterprises, and such enterprises invest in building
infrastructures for lease. The enterprise income tax on the transfer of the
right to use or to rent land is not eligible for enterprise income tax
incentives.
- Enterprises established before January 01, 2009 have investment projects
on the infrastructural development of industrial zones, export processing
zones, Hi-tech zones. The State allocates or leases land to such project before
January 01, 2009 for the purpose of building infrastructures. After investing
in the infrastructural development, the enterprises lease such land to other
enterprises in the export processing zone, industrial zone, or Hi-tech zone.
The income from that lease is an income from the business of infrastructural
development, and is eligible for tax incentives as prescribed.
In 2009, the investment projects enjoying enterprise income tax incentives
shall continue to enjoy enterprise income tax incentives for the remaining time
based on the conditions that they satisfy.
- Enterprises established before January 01, 2009 having investment
projects on the infrastructural development of industrial zones, export
processing zones, Hi-tech zones that the State allocates or leases land to such
project from January 01, and enterprises engaged in business of infrastructural
development established from January 01, 2009 are not eligible for enterprise
income tax incentives for the business of infrastructural development.
2.5. For mineral extraction: the Ministry of Finance issued the
Official Dispatch No. 10254/BTC-TCT dated July 20, 2009. In particular: The
enterprise income tax incentives are not applicable to incomes from the mineral
extraction of enterprises that are established and issued with the investment
licenses for mineral extraction from January 01, 2009. The enterprises engaged
in mineral extraction that commence their business before January 01, 2009 and
enjoy enterprise income tax incentives as prescribed by the Law on Enterprise
income tax No. 09/2003/QH11, the Law on Petroleum,
and legal documents promulgated by the Government before January 01, 2009,
shall continue to enjoy the incentives as prescribed by the Law on Enterprise
income tax No. 09/2003/QH11, the Law on Petroleum, and the legal documents
promulgated by the Government for the remaining time. In the same tax
period, if an enterprise engages in both business eligible for tax incentives
and business ineligible for tax incentives, it must separately record the
income from the business eligible for tax incentives and the business
ineligible for tax incentives in order to separately declare and pay tax.
2.6. For socialization, the Ministry of Finance issued the Official
Dispatch No. 11660/BTC-TCT dated August 20, 2009. In particular:
- The socialization establishments being subjects of regulation of the
Government's Decree No. 69/2008/NĐ-CP dated May 30, 2008 (not being subjects of
regulation of the Government's Decree No. 124/2008/NĐ-CP dated December 12,
2008) that earn income from the socialization activities that satisfy the
criteria and standards promulgated together with the Prime Minister’s Decision
No. 1466/QĐ-TTg dated October 10, 2008, and have registered with the tax
authorities, the enterprise income tax rate of 10% applies when the Decree No.
69/2008/NĐ-CP dated May 30, 2008 takes effect.
- In case the subjects of regulation of the Government's Decree No.
124/2008/NĐ-CP dated December 12, 2008 are also subjects of regulation of the
Government's Decree No. 69/2008/NĐ-CP dated May 30, 2008 and earn income from
the socialization activities that satisfy the criteria and standards
promulgated together with the Prime Minister’s Decision No. 1466/QĐ-TTg dated
October 10, 2008, and have registered with the tax authorities, the enterprise
income tax rate of 10% applies when the Decree No. 69/2008/NĐ-CP dated May 30,
2008 takes effect.
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+ For the enterprise that engage in other business but earn income from
socialization, or business establishments that do not establish establishment
doing independent accounting that earn income from socialization, if the
conditions in the List of forms, scale criteria, and standards of socialization
promulgated together with the Prime Minister’s Decision No. 1466/QĐ-TTg dated
October 10, 2008 are satisfied, the enterprise income tax rate of 10% shall
apply to the income from the activities of education, vocational training,
health, culture, sports, and environment during the entire period of operation
as from January 01, 2009.
+ For enterprises that have engaged in socialization before January 01, 2009
and apply the tax rate over 10%, if the conditions in the List of forms, scale
criteria, and standards of socialization promulgated together with the Prime
Minister’s Decision No. 1466/QĐ-TTg dated October 10, 2008 are satisfied, such
enterprises may apply the tax rate of 10% on the income from socialization as
from January 01, 2009.
Further notices when finalizing enterprise income tax:
- The assessable revenue from the sale of tickets and memberships of golf clubs
must comply with the Circular No. 06/2010/TT-BTC dated January 13, 2010 of the
Ministry of Finance.
- The application of the coefficient of land tenancy distribution to the
apartments in an apartment building for calculating enterprise income tax must
comply with the Official Dispatch No. 18044/BTC-TCT dated December 23, 2009 of
the Ministry of Finance.
- The distribution of expenses on gas bottles must comply with the
Official Dispatch No. 1484/BTC-TCT dated February 10, 2009 and the Official
Dispatch No. 7776/BTC-TCT dated June 02, 2009 of the Ministry of Finance.
- The period of enterprise income tax incentives applicable to deposit and
loan must comply with the Official Dispatch No. 118/BTC-TCT dated January 05,
2010 of the Ministry of Finance.
PART 2: THE POLICIES OF ENTERPRISE INCOME TAX
RELATED TO THE SOLUTIONS OF THE GOVERNMENT FOR ENCOURAGING INVESTMENT AND
CONSUMPTION; PREVENTING ECONOMIC DECLINE, AND RESOLVING DIFFICULTIES FOR
ENTERPRISES
Pursuant to the Resolution No. 30/2008/NQ-CP dated December 11, 2008; the
Decision No. 16/2009/QĐ-TTg dated January 21, 2009; the Decision No.
96/2009/QĐ-TTg dated July 22, 2009 of the Prime Minister, the Ministry of
Finance promulgated the Circular No. 03/2009/TT-BTC dated January 13, 2009, the
Circular No. 12/2009/TT-BTC dated January 22, 2009, the Circular No.
181/2009/TT-BTC dated September 14, 2009, and the Official Dispatch No.
1326/BTC-CST dated February 04, 2009, the Official Dispatch No. 10588/BTC-TCT
dated July 24, 2009, the Official Dispatch No. 17665/BTC-TCT dated December 16,
200 , guiding the Resolutions and Decisions above. When finalizing
enterprise income tax related to the cases eligible for tax exemption, tax
reduction, or tax deferral according to the demand stimulation policy, it is
required to consider the provisions and guidance in the documents above, in
particular:
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1.1. Tax exemption or reduction:
- Medium and small enterprises are eligible for 30% reduction in
enterprise income tax payable of Q4/2008 and enterprise income tax payable of
2009, including:
+ The cooperatives, people’s credit funds; units affiliated to enterprises
and doing independent accounting ; member units doing independent accounting
with legal status of economic corporations and general companies that satisfy
the conditions in the Circular No. 03/2009/TT-BTC.
The criteria in the Circular No. 03/2009/TT-BTC applicable to units
affiliated to enterprises, doing dependent accounting, declaring and paying
enterprise income tax at the head office such as factories, workshops, stores,
or offices… (if any).
+ Non-business units
+ Local development investment funds: local development investment funds
are organized and operated as prescribed in the Government's Decree No.
138/2007/NĐ-CP dated August 28, 2007, on the organization and operation of
local development investment funds being subjects of regulation of the Law on
credit institutions dated February 12, 1997, and the Law on amending and
supplementing a number of articles of the Law on credit institutions dated My
16, 2004.
Medium and small enterprises are enterprises that satisfy one of the
following criteria:
“- The charter capital stated in the Certificate of business registration
or the Investment certificate that takes effect before January 01, 2009 does
not exceed 10 billion VND; for the enterprises established from January 01,
2009 and later, the charter capital stated in the Certificate of business
registration or the First investment certificate does not exceed 10 billion
VND.
- The average number of employees in Q4/2008 does not exceed 300 people,
including employees that sign short-term contracts under 3 months; for
enterprises established on October 01, 2008 and later, the number of employees
being paid in the first month (full 30 days) of earning revenue does not exceed
300 people.
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+ Income from the rent of dwellings to students of universities, colleges,
vocational high schools, vocational colleges, and vocational intermediate
schools during their study;
+ Income from the rent of dwellings to workers in industrial zones;
+ Income from the renting or selling houses to low-income people that face
difficulties of accommodation.
1.2. Tax deferral:
The enterprise income tax eligible for tax deferral is determined as
follows:
- For medium and small enterprises, it is the reduced preliminary
enterprise income tax every quarter in 2009 as guided in Section II of the
Circular No. 03/2009/TT-BTC.
- For enterprises producing or processing agricultural, silvicultural and
aquatic products, textiles and garments, leather and footwear, and electronic
components, it is the preliminary enterprise income tax every quarter in 2009
on such activities.
If the enterprise fails to separate the preliminary enterprise income tax
on the production and processing of agricultural, silvicultural and aquatic
products, textiles and garments, leather and footwear, and electronic
components from the preliminary enterprise income tax on other activities, the
preliminary enterprise income tax on the former activities shall be deferred
according to the proportion (%) of the revenue from the former activities to
the total revenue of the enterprise in 2008.
- The enterprise income tax payable in 2009 on the following business
(excluding medium and small enterprises as prescribed in the Circular No.
03/2009/TT-BTC dated January 13, 2009 of the Ministry of Finance):
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+ Production of building materials: bricks, tiles, lime, paint;
+ Construction and installation;
+ Travel services;
+ Food trade;
+ Fertilizer trade;
Example: The charter capital stated in the Certificate of business
registration issued on July 01, 2007 of the construction company ABC is 09
billion VND (the charter capital in the Certificate of business registration is
not adjusted during the operation). The business line is building and
installing civil and industrial constructions.
The charter capital stated in the Certificate of business registration
issued on July 01, 2007 of the construction company ABC being 09 billion VND
satisfy the condition of medium and small enterprises, thus it is eligible for
the incentives being enterprise income tax reduction and deferral as prescribed
in the Circular No. 03/2009/TT-BTC dated January 13, 2009 of the Ministry of
Finance, and is not eligible for tax deferral as guided in the Circular No.
12/2009/TT-BTC dated January 22, 2009 of the Ministry of Finance.
2. Calculating the reduced or deferred tax:
2.1. Calculating the reduced or deferred enterprise
income tax:
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a) The reduced enterprise income tax of
Q4/2008 equal 30% of the enterprise income tax payable of Q4/2008. The
enterprise income tax payable in Q4/2008 is calculated as follows:
- If the revenue, expenses and taxable
income of Q4/2008 are calculable, the enterprise income tax payable of Q4/2008
is calculated according to the recorded taxable income of Q4/2008.
- If the revenue, expenses and taxable
income of Q4/2008 are not calculable, the enterprise income tax payable of Q4/2008
is calculated as follows:
Enterprise
income tax payable of Q4/2008
=
Enterprise
income tax payable in 2008
4
b) The reduced enterprise income tax of
Q4/2008 equal 30% of the enterprise income tax payable of the year.
- The enterprise income tax payable in 2009 on the income from renting
dwellings to students of universities, colleges, vocational high schools,
vocational colleges, and vocational intermediate schools during their study,
income from renting dwellings to workers in industrial zones; income from
renting and selling houses to low-income people that face difficulties in
accommodation, is calculated according to the income statement of the
enterprise, if the enterprise can separate the income from tax-free business.
If the enterprise cannot separate the enterprise income tax payable on the
tax-free business, the exempted enterprise income tax is calculated according
to the proportion of the revenue from the tax-free business to the total
revenue of the enterprise in 2009.
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The enterprise income tax eligible for tax deferral is determined as
follows:
- For medium and small enterprises, it is the preliminary enterprise
income tax every quarter in 2009 that has been reduced by 30% as guided above.
- For enterprises producing or processing agricultural, silvicultural and
aquatic products, textiles and garments, leather and footwear, and electronic
components, it is the preliminary enterprise income tax every quarter in 2009
on such activities.
If the enterprise fails to separate the preliminary enterprise income tax
on the production and processing of agricultural, silvicultural and aquatic
products, textiles and garments, leather and footwear, and electronic
components from the preliminary enterprise income tax on other activities, the
preliminary enterprise income tax on the former activities shall be deferred
according to the proportion (%) of the revenue from the former activities to
the total revenue of the enterprise in 2008.
- The enterprise income tax payable in 2009 on the income from the
following business:
+ Production of mechanical products being means of production;
+ Production of building materials: bricks, tiles, lime, paint;
+ Construction and installation;
+ Travel services;
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+ Fertilizer trade;
The enterprise income tax eligible for tax deferral is calculated
according to the income statement of the enterprise if it can separate the income
from the business eligible for tax deferral.
If the enterprise fails to separate the enterprise income tax payable on
the business eligible for tax deferral, the enterprise income tax eligible for
tax deferral is calculated according to the proportion of the revenue from the
business eligible for tax deferral to the total revenue of the enterprise in
each quarter.
3. Some notices:
3.1. Medium and small enterprises are eligible for 30%
reduction in enterprise income tax payable of Q4/2008 and enterprise income tax
payable of 2009, including the enterprise income tax payable on the total
income of medium and small enterprises, including land tenancy transfer, real
estate transfer, and other incomes.
3.2. During the enterprise income tax incentive period,
the enterprise income tax is reduced by 30% of the residual tax after
subtracting the preferential enterprise income tax as prescribed by law
provisions on enterprise income tax.
3.3. For medium and small enterprises earning irregular
income from transferring the right to use or to rent land, and transferring
real estate that declare and pay enterprise income tax on each transfer:
- When calculating enterprise income tax eligible for reduction or
deferral, it is required to separate (not offset) the reduced, deferred tax on
the primary business and the reduced, deferred tax on the transfer of the right
to use land, the right to rent land, and real estate.
- Enterprises shall declare tax on the
income from transferring the right to use land, the right to rent land, and
real estate where the transferred real estate is located.
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- When finalizing the enterprise income tax in 2009, if the enterprise
income tax eligible for the exemption, reduction, or deferral is higher than
the total preliminary tax in Q4, the enterprise shall continue to enjoy the
exemption, reduction, or deferral on the difference between the final and the
preliminary calculations in Q4/2009. The expiry date of tax deferral is October
30, 2010.
- When finalizing the enterprise income tax in 2009, if the enterprise
income tax eligible for the exemption, reduction, or deferral is smaller than
the total preliminary tax in Q4, the enterprise shall make additional declaration
according to Point 5.1, Section I, Part B of the Circular No. 60/2007/TT-BTC
dated June 14, 2007 of the Ministry of Finance.
3.5. The exemption, reduction, and deferral or
enterprise income tax are applicable to the enterprises that follow the
regulations on invoices, and register and pay tax as declared.
3.6. If the enterprise income tax finalization 2009 does not
include the tax exemption or reduction, the enterprise may make additional
declaration according to Point 5.1, Section I, Part B of the Circular No.
60/2007/TT-BTC dated June 14, 2007 of the Ministry of Finance. Enterprises may
make additional declarations before the tax authorities announce the decision
on carry out inspection at the head office of the tax payer. When the tax
authorities have announced such decisions, the tax payer is not allowed to make
additional declarations.
3.7. For non-business units … , that satisfy the requirements for
medium and small enterprises, follow the regulations on accounting and
invoices, register and pay tax as declared may be eligible for tax reduction
and deferral according to the Circular No. 03/2009/TT-BTC dated January 13,
2009 of the Ministry of Finance.
3.8. The business eligible for tax exemption, reduction and
deferral must be specified in the Business certificate, and must be actually
conducted.
PART 3: TAX DECLARATION.
The Law on Enterprise income tax No. 14/2008/QH12 takes effect on January
01, 2009. It is also the year the Government provided many solutions (including
enterprise income tax payment deferment and reduction) in order to promote
production and business, sustain economic growth and ensure social security.
According to the Law on Enterprise income tax No. 14/2008/QH12 and its
guiding documents, some provisions on enterprise income tax have been changed
compared to the Law on Enterprise income tax No. 09/2003/QH11; the Decree No.
24/2007/NĐ-CP dated February 14, 2007 and their guiding documents. Enterprises
must comply with the Law on Enterprise income tax No. 14/2008/QH12, the Law on
Tax administration No. 78/2006/QH11, the Government's Decree No. 124/2008/NĐ-CP
dated December 11, 2008, and the guiding Circulars of the Ministry of Finance
when declaring enterprise income tax finalization 2009.
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1. The enterprise income tax finalization declaration made under the form
No. 03/TNDN promulgated together with the Circular No. 60/2007/TT-BTC.
2. The form No. 07/TNDN promulgated together with the Circular No.
130/2008/TT-BTC (if the enterprise has units doing dependent accounting in
other central-affiliated cities and provinces than the locality it is
located).
3. The Annual financial statement promulgated together with the Decision
No. 15/2006/QĐ-BTC dated March 20, 2006 of the Minister of Finance (applicable
to tax payers following the enterprise accounting regime), or promulgated
together with the Decision No. 48/2006/QĐ-BTC dated September 14, 2006 of the
Minister of Finance (applicable to tax payers following the accounting regime
of medium and small enterprises).
The Annex(es) enclosed with the declaration (depending on the cases)
- The Annex of the income statement made under the form No. 03-1A/TNDN,
the form No. 03-1B/TNDN, or the form No. 03-1C/TNDN promulgated together with
the Circular No. 60/2007/TT-BTC.
- The Annex of Loss transfer made under the form No. 03-2/TNDN promulgated
together with the Circular No. 60/2007/TT-BTC (the enterprise may not complete
part I: Plan for transferring losses that arose in previous tax periods and in
this period, and only complete part II: determination of loss transferred in
the tax period).
- The Annex of enterprise income tax on the transfer of the right to use
land or to rent land made under the form No. 03-3/TNDN.
- The Annexes of enterprise income tax incentives:
+ The form No. 03-4A/TNDN: Preferential enterprise income tax for business
establishments established from investment projects and business establishments
that are moved under planning.
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+ The form No. 03-4H/TNDN: Preferential enterprise income tax for business
establishments engaged in the production, construction, or transportation that
employ plenty of female workers.
Enterprises employing ethnics that are eligible for enterprise income tax
reduction as prescribed in Point 2 Section IV part H of the Circular No.
130/2008/TT-BTC shall use the form No. 03-4H/TNDN to declared the reduced
enterprise income tax.
Enterprises eligible for tax reduction in accordance with the solutions of
the Government for encouraging investment and consumption; preventing economic
decline, and resolving difficulties for enterprises shall use the form No.
03-4H/TNDN to declare the exempted or reduced enterprise income tax.
- The Annex of enterprise income tax paid overseas that is deducted in the
tax period under the form No. 03-5/TNDN.
- Annex 04/TNDN applicable to non-business units that declare and pay tax
on the revenue from their provision of goods and services that subject to
enterprise income tax of which the revenue, income and expenses are
identifiable and recorded.
Do not use the Annexes of enterprise income tax incentives (because
such income is already specified in the tax-free income part):
+ The form No. 03-4C/TNDN: preferential enterprise income tax on incomes
from scientific research and technology development; science and technology
information services as prescribed in Clause 1 Article 37 of the Decree No.
24/2007/NĐ-CP.
+ The form No. 03-4D/TNDN: preferential enterprise income tax on incomes
from the sale of products experimentally produced, or produced from new
technology applied in Vietnam for the first time as ad in Clause 2 Article 37
of the Decree No. 24/2007/NĐ-CP
+ The form No. 03-4Đ/TNDN: preferential enterprise income tax on incomes
from the performance of technical service contract serving agriculture as
prescribed in Clause 4 Article 37 of the Decree No. 24/2007/NĐ-CP.
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+ The form No. 03-4Đ/TNDN: preferential enterprise income tax for
investors that contribute in form of: patents, technical know-how, or technical
services as prescribed in Article 40 of the Decree No. 24/2007/NĐ-CP.
Some notices when making the enterprise income tax finalization
declaration under the form No. 03/TNDN:
1. In index [B22] – The adjustments that decrease the pre-tax
profit:
- Specify the tax-free incomes specified in Section VI, Part C of the
Circular No. 130/2008/TT-BTC dated December 26, 2008 of the Ministry of Finance
(apart from the income distributed from domestic joint venture capital
contribution specified in index [B18])
- The amount for establishing the scientific and technological development
fund of the enterprise prescribed in Section VIII, part C of the Circular No.
130/2008/TT-BTC dated December 26, 2008 of the Ministry of Finance.
2. For medium and small enterprises eligible for 30% reduction in
enterprise income tax 2009 as prescribed in the Circular No. 03/2009/TT-BTC
dated January 13, 2009 of the Ministry of Finance, the reduced enterprise
income tax shall be expressed in the form No. 03-4H/TNDN as follows:
The enterprise must specify that:
Reduced enterprise income tax in accordance with the demand stimulation
solutions of the Government = (enterprise income tax payable in 2009 x 30%).
3. On the finalization declaration sheet No. 03/TNDN, in index [C4]:
reduced, exempted enterprise income tax in the tax period: the enterprise shall
specify the total reduced or exempted enterprise income tax in the tax period
(including the enterprise income tax reduction prescribed in the Law on
Enterprise income tax (if any) and enterprise income tax exemption or reduction
in accordance with the Government’s solutions for stimulating investment,
demand and consumption, preventing economic decline, and resolving difficulties
for enterprises (if any).
4. When real estate enterprises that collect money according to the
progress, declare and pay enterprise income tax at 2% on the collected amount,
and hand over to their clients in 2009, apart from specifying the enterprise
income tax payable on the real estate handed over in 2009 in index [C7], they
must also specify the preliminary enterprise income tax paid at 2% on the money
collected according to the progress of the real estate handed over in 2009
(based on the tax payment receipts).
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The contents above present some notices when finalizing enterprise income
tax 2009. The Departments of Taxation must inform and guide local tax payers to
finalize enterprise income tax 2009 based on the current law provisions and the
guidance in this Official Dispatch. During the course of implementation, the
Departments of Taxation must report the difficulties to the General Department
of Taxation for guidance./.
FOR
THE DIRECTOR
DEPUTY DIRECTOR
Pham Duy Khuong