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THE MINISTRY OF
FINANCE OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.:
67/2022/TT-BTC
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Hanoi, November
07, 2022
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CIRCULAR
GUIDELINES ON TAX
OBLIGATIONS INCURRED UPON CONTRIBUTION AND USE OF FUNDS FOR SCIENCE AND
TECHNOLOGY DEVELOPMENT IN ENTERPRISES
Pursuant to the Law on Tax Administration No.
38/2019/QH14 dated June 13, 2019;
Pursuant to the Law on Corporate Income Tax No.
14/2008/QH12; the Law No. 32/2013/QH13 providing amendments to the Law on
Corporate Income Tax; the Law No. 71/2014/QH13 providing amendments to tax
laws;
Pursuant to the Resolution No. 43/2022/QH15
dated January 11, 2022 of the National Assembly on fiscal and monetary policies
for supporting Socio-economic recovery and development program;
Pursuant to the Government’s Decree No.
126/2020/ND-CP dated October 19, 2020 on elaboration of the Law on Tax
Administration;
Pursuant to the Government’s Decree No.
218/2013/ND-CP dated December 26, 2013 elaborating and providing guidelines for
implementation of the Law on Corporate Income Tax;
Pursuant to the Government's Decree No.
95/2014/ND-CP dated October 17, 2014 prescribing investment and financial
mechanisms for science and technology activities;
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Pursuant to the Government’s Decree No.
87/2017/ND-CP dated July 26, 2017 defining functions, tasks, powers and
organizational structure of the Ministry of Finance of Vietnam;
At the request of the Director General of the
General Department of Taxation;
The Minister of Finance of Vietnam promulgates a
Circular providing guidelines on tax obligations incurred upon contribution to
and use of Funds for Science and Technology Development in enterprises.
Article 1. Scope and regulated entities
1. Scope: This Circular provides guidelines on tax
obligations incurred upon contribution to and use of Funds for Science and
Technology Development in enterprises (hereinafter referred to as “Funds”).
2. This Circular applies to: Enterprises that are
established and operating in accordance with regulations of law of Vietnam
(hereinafter referred to as “enterprises”), regulatory authorities, and other
relevant organizations and individuals.
Article 2. Contribution to Funds
1. Each enterprise shall annually make contribution
as a percentage (%) of its income subject to corporate income tax (CIT) to the
Fund as prescribed in Clause 1 Article 17 of the Law on corporate income tax
No. 14/2008/QH12, Clause 1 Article 18 of the Government’s Decree No.
218/2013/ND-CP dated December 26, 2013, and Clauses 1, 2 Article 9 of the
Government’s Decree No. 95/2014/ND-CP dated October 17, 2014. To be specific:
a) A state-owned enterprise shall make a
contribution equaling 3% - 10% of its income subject to CIT in the tax period.
The specific contribution amount shall be subject to the enterprise’s capacity
and planned funding for science and technology activities;
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2. Contributions to the Fund shall be determined in
each CIT period and deducted from taxable income upon determination of CIT
amount payable by the enterprise in the tax period.
Article 3. Rules for using the Fund
1. The Fund of an enterprise shall be used for
financing its science and technology research and development activities and
other tasks to be financed by the Fund as prescribed by law.
2. Any payments using the Fund must be supported by
adequate invoices and receipts as prescribed. With regard to payments made
using the Fund without invoices or receipts as prescribed, the enterprise is
required to fulfill obligations to state budget as prescribed in Clause 1
Article 4 of this Circular.
3. An enterprise is not allowed to include the
following amounts in its deductible expenses upon determination of CIT in the
tax period, including payments made using the Fund and late payment fines
and/or interests on CIT amounts payable determined according to the provisions
of Clauses 1, 2 Article 4 of this Circular.
4. The Fund shall be used following the first in
first out principle.
5. If an enterprise needs to overspend the Fund in
a year on science and technology tasks, it shall include spending amounts in
its deductible expenses upon determination of CIT in the tax period or use the
planned contributions to the Fund for subsequent years for covering the
insufficient amount as prescribed in Clause 7 Article 10 of the Government’s
Decree No. 95/2014/ND-CP dated October 17, 2014.
Article 4. Tax obligations incurred in case of
misused, unused or underused Fund
1. Tax obligations incurred in case of misused Fund
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2. Tax obligations incurred in case of unused or
underused Fund
a) Within 05 (five) years from the establishment of
the Fund as prescribed in Article 2 of this Circular, if none or less than 70%
of the amounts annually contributed to the Fund has been used, the enterprise
shall incur the CIT on unused amounts and interests on such CIT amount payable.
Interests charged on the CIT amount payable shall be determined according to
the provisions of Point b Clause 2 of this Article.
In case of transfer between Funds, the 05-year
period regarding the amount transferred to the Fund of an enterprise shall
start from the CIT period in which money is transferred to the enterprise’s
Fund.
b) Interests shall be charged on the CIT amount
payable on the unused amounts of the Fund at the interest rate of 1-year treasury
bonds in effect upon the payment of such CIT amount for a period of 02 years as
prescribed in Clause 2 Article 17 of the Law on corporate income tax No.
14/2008/QH12.
c) The used amounts of the Fund include: payments
properly made using the Fund which have been recorded as prescribed; the sums
advanced which are supported by adequate invoices and receipts but yet to be
recorded for performing the Fund’s activities; amounts transferred from the
Fund of a corporation to its affiliates, or from a parent company to its
subsidiaries or vice versa; and amounts paid to the National Foundation for
Science and Technology Development or to the relevant ministerial or provincial
Fund for science and technology development (if any) in accordance with
regulations of the Ministry of Science and Technology of Vietnam.
Transfer of money between Funds of a parent company
or corporation and its subsidiaries or affiliates shall only apply to
subsidiaries or affiliates of which 100% of charter capital is held by the
parent company or corporation, and is not applied in the following cases:
- Transfer of money from a foreign-invested
enterprise to its parent company located abroad;
- Transfer of money from a parent company located
in Vietnam to its subsidiaries located abroad.
3. If both the receiving enterprise and the
transferring enterprise are not eligible to CIT incentives, the CIT rate used
for calculating the CIT amount payable shall be the one applied to the
enterprise in each tax period upon contribution to its Fund or at the time of
transfer of money between their Funds.
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a) If an enterprise makes contribution to its Fund
while it is enjoying CIT incentives (preferential CIT rate, tax exemption or
tax reduction), and misuses or uses none or less than 70% of the amounts
contributed to its Fund during the period of enjoyment of CIT incentives, the
CIT amount payable shall be calculated at the preferential CIT rate applied
upon its contribution to the Fund.
b) If an enterprise makes contribution to its Fund
while it is enjoying CIT incentives, has received money from the Fund of
another enterprise (transferring enterprise), and misuses or uses none or less
than 70% of the sum of amounts contributed to its Fund and received amounts,
the CIT amount payable shall be calculated as follows:
- With regard to amounts contributed by the
enterprise to its Fund, the CIT amount payable shall be calculated at the
preferential CIT rate applied upon its contribution to such Fund.
- With regard to amounts received from another
enterprise, the CIT amount payable shall be calculated as follows:
+ If the transferring enterprise is not eligible to
CIT incentives at the time of transfer, the CIT amount payable shall be
calculated at the normal CIT rate.
+ If the transferring enterprise is enjoying CIT
incentives at the time of transfer, the CIT amount payable shall be calculated
at the preferential CIT rate applied to the transferring enterprise at the time
of transfer.
The unused or misused portion of received amounts
shall be determined according to the proportion of such received amounts to the
Fund balance (i.e. the sum of amounts contributed by the enterprise to the Fund
and received amounts).
5. Each enterprise shall itself calculate, declare
and pay CIT amount payable on misused or unused amounts of its Fund, and assume
legal responsibility in accordance with regulations of the Law on tax
administration.
Article 5. Management of assets created using
the Fund
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a) Fixed assets created to serve the enterprise’s
science and technology activities;
b) Machinery and equipment purchased with
transferred technologies as prescribed in Article 7 of the Law on Technology
Transfer in order to partially or entirely replace the enterprise’s
technologies in use with more advanced ones with the aims of enhancing
productivity and quality of products or developing new products according to
Point c Clause 3 Article 10 of the Government’s Decree No. 95/2014/ND-CP dated
October 17, 2014;
c) Machinery and equipment purchased to serve
technology innovation or directly serve the enterprise’s business in 02 years
(2022 and 2023) as prescribed in Point b Clause 3 Article 3 of the National
Assembly’s Resolution No. 43/2022/QH15 dated January 11, 2022.
2. Costs of repair or renovation of fixed assets
which have been created using the enterprise’s Fund shall be also covered by
such Fund.
3. If fixed assets which have been created using
the Fund to serve the enterprise’s science and technology activities are yet to
be fully depreciated but are transferred to serve the enterprise’s business
operations, their residual values shall be recorded as other incomes and
depreciated as deductible expenses upon determination of taxable income.
4. If fixed assets which have been created using
the Fund to serve both science and technology activities and business
operations of the enterprise are yet to be fully depreciated, they shall be
managed in accordance with the Ministry of Finance of Vietnam’s regulations on
management, use and depreciation of fixed assets, and the enterprise shall not
include depreciation of such fixed assets in its deductible expenses upon
determination of taxable income.
5. If fixed assets which have been created as a
result of the enterprise’s science and technology activities are transferred to
serve the enterprise’s business operations, their values shall be recorded as
other incomes and depreciated as deductible expenses upon determination of
taxable income.
6. If fixed assets purchased using the enterprise’s
Fund are transferred, the enterprise shall determine the residual values of
such assets to record an increase or decrease in its Fund upon transfer of such
assets.
7. If fixed assets which are used for the
enterprise’s business operations are transferred to serve its science and technology
activities, their residual values shall be determined to be recorded as
expenses on purchase of fixed assets using the Fund, and shall be managed
according to Clause 1 of this Article.
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9. Other assets shall be managed and properly used
for defined purposes as prescribed.
Article 6. Management of Funds in case of
enterprise restructuring
1. If a new enterprise is established after the
enterprise restructuring in accordance with regulations of the law of Vietnam,
this new enterprise shall inherit, manage and use the Fund(s) of the former
enterprise(s).
2. If the enterprise restructuring is not subject
to the provisions of Clause 1 of this Article, the enterprise(s) existing after
the restructuring shall inherit, manage and use the Fund(s) of the
enterprise(s) existing before the restructuring. Assignment of such Funds shall
be subject to decision of relevant enterprise(s) and must be notified to tax
authorities.
Article 7. Reporting on contribution, transfer
and use of Funds
1. Each enterprise shall make annual report on
contribution to, transfer and use of its Fund using Form No. 03-6/TNDN enclosed
with the Circular No. 80/2021/TT-BTC dated September 29, 2021 of the Ministry
of Finance of Vietnam.
2. In case of transfer of Funds between the
enterprises as prescribed in Point c Clause 2 Article 4 of this Circular, the
receiving enterprise shall make reports on receipt and use of transferred
money.
3. Reports on contribution, transfer and use of
Funds shall be submitted to the competent authorities mentioned in Clauses 1, 4
Article 11 of the Government’s Decree No. 95/2014/ND-CP dated October 17, 2014.
Such reports shall be submitted within the same time limit with annual CIT
finalization forms.
Article 8. Effect and implementation
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2. Articles 4, 12, 13, 14, 16, and 17 of the Joint
Circular No. 12/2016/TTLT-BKHCN-BTC dated June 28, 2016 of the Ministry of
Science and Technology of Vietnam and the Ministry of Finance of Vietnam are
abrogated.
3. Spending contents and guidelines for use of
Funds and transfer of Funds for science and technology development of
enterprises to the National Foundation for Science and Technology Development
or ministerial or provincial Funds for science and technology development shall
comply with prevailing legislative documents on science and technology, and
regulations adopted by the Ministry of Science and Technology of Vietnam.
4. If any legislative documents referred to in this
Circular are amended or superseded, the new ones shall apply.
5. Difficulties that arise during the
implementation of this Circular should be promptly reported to the Ministry of
Finance of Vietnam for consideration./.
PP. MINISTER
DEPUTY MINISTER
Cao Anh Tuan