|
MINISTRY OF FINANCE
GENERAL DEPARTMENT OF TAXATION
-------
|
SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
----------------
|
|
No:
4574/TCT-CS
On tax
policies
|
Hanoi,
November 20 2018
|
To: Department of Taxation of Danang.
The General
Department of Taxation has received the Official Dispatch No. 2163/CT-KTNB
dated June 07, 2018 of the Department of Taxation of Danang requesting guidance
on corporate tax policies applied to Vietnam Tokai Limited Liability Company.
Regarding this issue, the General Department of Taxation has responded to the
Department of Taxation of Danang with Official Dispatch No. 231/TCT-CS dated
January 15, 2018. Below are opinions of the General Department of
Taxation:
Pursuant to
Article 8, Article 17 of Law No. 80/2006/QH11 on technology transfer dated
November 29, 2006 by the National Assembly
“Article 8.
Rights to make technology transfer
1. A
technology owner shall have the right to transfer the ownership or the right to
use such technology.
2. Any
entity which is permitted by the technology owner to transfer the right to use
such technology shall have the right to transfer the right to use such
technology.
3. Any
entity with technology being an industrial property object for which the term
of protection has expired or which is not protected in Vietnam shall have the
right to transfer the right to use such technology.
Article 17.
Transfer of right to use technology
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. The
scope of transfer of the right to use a technology shall be as agreed by the
parties, comprising:
a)
Exclusive or non-exclusive right to use the technology;
b)
Permission to re-transfer the right to use the technology to a third party or a
prohibition from doing so;
(c) Fields
of use of the technology;
(d) The
right to improve the technology, and the right to receive information about
improvements to the technology;
(dd) The
exclusive or non-exclusive right to distribute and sell products created from
the transferred technology;
(e)
Geographical area in which it is permitted to sell products created from the
transferred technology;
(g) Other
rights related to the transferred technology.
3. If a
technology is a protected industrial property rights object, then transfer of
the right to use such technology must be implemented together with transfer of
ownership of industrial property rights in accordance with the law on
intellectual property.”
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
“4.
Industrial property rights means rights of an organization or individual to
inventions, industrial designs, designs of semi-conducting closed circuits,
trade secrets, marks, trade names and geographical indications which such
organization or individual created or owns, and the right to prevent unfair
competition.”
Pursuant to
Article 53 of Law No. 56/2010/QH12 on inspection dated November 15, 2010 by the
National Assembly which regulates the tasks and powers of heads of specialized
inspection teams; Article 54 thereof which regulates the tasks and powers of
members of inspection teams, inspectors and persons assigned to perform the
specialized inspection task while conducting independent inspection and Article
58 thereof which regulates the obligations of inspected subjects.
Pursuant to
clause 1 Article 6 of Circular No. 78/2014/TT-BTC; Article 4 of Circular No.
96/2015/TT-BTC dated June 22, 2015 which amends Article 6 of Circular
No.78/2014/TT-BTC (amended in clause 2 Article 6 of Circular No
.119/2014/TT-BTC and Article 1 of Circular No. 151/2014/TT-BTC) specifying
deductible expenses when calculating taxable income.
Pursuant to
the aforementioned regulations, the transfer of “technical information” from
Tokai Togyo JSC to Vietnam Tokai Co. Ltd. specified in clause 3 Article 1 of
Contract VT 1000-1 is a technology transfer and regulated by Law No.
80/2006/QH11 on technology transfer mentioned above. Pursuant to clause 1
Article 17 of Law No. 80/2006/QH11 on technology transfer, the transferor
of technology must be one of the entities stipulated in Article 8 of such Law,
specifically: the technology owner or any entity which is permitted by the
technology owner to transfer the technology. For this reason, if Tokai
Togyo JSC is not required to register the ownership of the technology
according to regulations of Japanese law, Vietnam Tokai shall provide
supporting documents or make a commitment to prove that Tokai Togyo JSC is the
owner of the technology.
During the
inspection visit by the Department of Taxation of Danang, if Vietnam Tokai does
not provide or fully provide documents which can prove the technology ownership
of Tokai Togyo JSC, the inspectorate will be entitled to draw a conclusion
based on the documents provided by Vietnam Tokai during the inspection.
Moreover, the Official Dispatches of the Ministry of Science and Technology in
response to Vietnam Tokai (Official Dispatch No. 1439/BKHCN-DTG dated May 15,
2018 and Official Dispatch No. 1439/BKHCN-DTG dated July 02, 2018) only
confirmed that the technologies on the contract of technology transfer is not
on the list of technologies banned or restricted from transfer but did not
confirm that the contract is a technology transfer contract between the
Parties.
For this
reason, the General Department of Taxation requests that the Department of
Taxation of Danang handle the case of the Vietnam Tokai in accordance with
regulations of law on tax and other related laws and relevant documents.
In addition
to the matter mentioned above, Tokai Togyo JSC has stake in Vietnam Tokai.
General Department of Taxation requests that the Department of Taxation of
Danang inspect the transactions between such companies to clarify whether the
technology transfer between them is a transaction between related parties for
the purpose of transfer pricing.
For your
information./.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
ON BEHALF OF THE DIRECTOR GENERAL
PP. THE DIRECTOR GENERAL OF POLICY DEPARTMENT
DEPUTY DIRECTOR GENERAL
Hoang Thi Ha Giang