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THE MINISTRY OF FINANCE
GENERAL DEPARTMENT OF TAXATION
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.768/TCT-TNCN
For:
The conditions to perform personal income tax exemption for foreign experts implementing
ODA programs and/or projects in Vietnam
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Hanoi, March 08, 2011
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To: WB-IDF Project management Committee – The
Ministry of Natural resources and Environment
Reply the Office Dispatch No.291/BQL
WB – IDF dated December 29, 2010 of WB-IDF Project managing Board – The
Ministry of Natural resources and Environment proposed applying the Decision
No.199/2009/QD-TTg to exempt for foreign experts working for OAD programs and
projects in Vietnam, the General Department of Taxation has the following
opinions:
1. For the conditions to be
performed Decision No.119/2009/QD-TTg.
At Article 2 of the Decision
No.119/2009/QD-TTg dated October 01 , 2009 promulgating the
Regulation on foreign experts implementing ODA programs and projects of the
Prime minister of Government regulated: “This Decision takes effect on
November 20, 2009”
Article 2 of the Joint circular No.
12/2010/TTLT-BKHDT-BTC of the Ministry of Planning and Investment and the
Ministry of Finance, dated May 28, 2010 detailing and guiding the performance
of the Regulation on foreign experts implementing ODA programs and
projects, which was promulgated together with Decision No.119/2009/QD-TTg
guides:
“This
Circular applies to foreign experts (below referred to as experts) defined in
Clause 5. Article 3 of the Regulation on foreign experts implementing ODA
programs and projects promulgated together with the Prime Minister's Decision
No. 119/2009/QD-TTg of October 1, 2009 (below referred to as the Regulation)
and applies only to experts whose contracts take effect from November 20, 2009”
Based on the provisions and
guidelines which are mentioned above, in case of Mr Benoint Laplante’s
consulting Contract, which took effect before December 20, 2009, is not subject
of application of Decision 119/2009/QD-TTg.
2. For the conditions of applying
the Decision No.211/1998/QD-TTg on October 31, 1998 on promulgating the
regulation on foreign specialists implementing ODA programs and projects in
Viet Nam of the Prime Minister of Government.
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“Article 2. This Decision takes effects 15 days
after its signing.”
Article 5....
2. The foreign party includes
foreign Governments, International organizations and Inter- Governmental
organizations that finance ODA programs and/or projects in Vietnam.
3. The Vietnamese party includes
Vietnam’s competent agencies that perform the function of State management,
administration and implementation of ODA programs and/or projects in Vietnam.
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6. Foreign experts implementing ODA
programs and/or projects (below referred to as experts) are foreign nationals
who are either sent to Viet Nam by the foreign party to study, elaborate,
evaluate or implement ODA programs and/or projects according to the provisions
or agreements in ODA related international treaties which have been concluded
between the Vietnamese party and the foreign party; or invited and hired by the
Vietnamese party into Vietnam for the implementation of ODA programs and/or
projects...."
Basing the
above provisions and guidelines, the case of Mr. Benoit Laplante, if he is foreign expert, has directly
signed a consulting contract with the foreign party or the Vietnamese party,
and the consulting contract takes effect in the time that be regulated in the
Article 2 of the Decision No.211/1998/QD-TTg is subject of application of the October 31, 1998 Decision
No.211/1998/QD-TTg of Prime Minister of Government.
3. Procedures and dossiers
for expert certification.
- At the Point 2, Section II of the
Circular No. 02/2000/TT-BKH dated January 12, 2000 guiding the implementation
of Regulations on foreign experts issued together with the October 31, 1998 Decision
No.211/1998/QD-TTg of Prime Minister of Government guides as follows:
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The Ministry of Planning and
Investment bases on the request of the concerned parties for carrying out
evaluation and certification ODA programs and/or projects or other activities
that employ foreign specialists...."
Basing on the above
guidelines, the Ministry of planning and investment shall be responsible for
confirming for regular cases under the regulations and must send confirmation
in written to the relevant agencies. For irregular cases, the Ministry of
Planning and Investment shall reply by a formal written specifying the reasons
for refusal of the confirming.
4. Procedures and dossiers for tax
exemption
At Point 3, Section II of Circular
No.52/2000/TT-BTC dated June 5, 2000 of Ministry of Finance guiding the
tax and fee exemption for foreign specialists implementing programs and/or
projects using of Official Development Assistance (ODA) guides as follows:
"3. For income earned from the
implementing of programs and/or projects in Vietnam:
The foreign specialist shall present
to the local tax agency, where
the project implementing agency is headquartered, the dossier for personal
income tax exemption, which includes:
- The project managing
agency’s official dispatch on proposal of non – collection of personal income
tax on the foreign specialist’s income from the implementation of the ODA
program and/or project;
- The
Ministry of Planning and Investment’s confirming of being the foreign
specialist who take participation in the implementation of the ODA program
and/or project, in which clearly stating his/her name, nationality, passport
number, working term in Vietnam and the amount of received income, and the list
of his/her dependants (the copy thereof affixed with stamp of the project
managing agency);
- The documents relating to
the tax – free income of the foreign specialist.
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Based on the above
guidelines, the tax agencies will implement personal income tax exemption under
the regulation after foreign experts have been issued the professional
certifications by the Ministry of Planning and Investment.
The General department of Taxation
feedbacks to Project managing Board and contacts with the Ministry of
Planning and Investment to be resolved in accordance with law./.
FOR. DIRECTOR OF TAXATION GENERAL
DEPARTMENT
DEPUTY DIRECTOR
Pham Duy Khuong