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THE
MINISTRY OF FINANCE
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.:
104/2011/TT-BTC
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Hanoi, July 12, 2011
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CIRCULAR
AMENDING
AND SUPPLEMENTING THE CIRCULAR NO. 11/2010/TT-BTC DATED JANUARY 19, 2010 OF THE
MINISTRY OF FINANCE GUIDING THE FULFILLMENT OF TAX OBLIGATION BY VIETNAMESE
INVESTORS MAKING OFFSHORE INVESTMENT
Pursuant to the current Laws
and Ordinances on taxation of the Socialist Republic Of Vietnam and the
Government’s Decrees stipulating in detail the implementation of the Laws and
Ordinances on taxation;
Pursuant to the Decree
No.78/2006/ND-CP dated August 09, 2006 of the Government stipulating the
offshore direct investment;
Pursuant to the Decree No.121/2007/ND-CP
dated July 25, 2007 of the Government stipulating the offshore direct
investment in the petroleum operation;
Pursuant to the Decree No.
17/2009/ND-CPdated February 16, 2009 of the Government on amending and
supplementing some articles of the Decree No. 121/2007/ND-CP dated July 25,
2007 stipulating the offshore direct investment in the petroleum operation;
Pursuant to Decree No.
118/2008/ND-CP dated November 27, 2008 of the Government stipulating the
functions, duties and powers and organizational structure of the Ministry of
Finance;
The Ministry of Finance
guides amendment and supplement of some content in the Circular No.
11/2010/TT-BTC of the Ministry of Finance on fulfillment of tax obligation by
Vietnamese investors making offshore investment as follows:
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1. Amending point 1.1, clause
2 of Article 2 as follows:
“1.1 Machinery, equipment,
detached parts, supplies, materials, fuel exported abroad by investors to
create fixed assets of investment projects in foreign countries will comply
with the provisions of the current Law on Import and Export Duties;
For the case of export tax
exemption as prescribed, the dossier will be submitted to the customs offices
for export tax exemption in accordance with the provisions of the Law on Import
and Export Duties and other guiding documents. "
2. Amending points 2.1,
clause 2 of Article 2 as follows:
“2.1. Machinery, equipment,
detached parts for export to foreign countries to create fixed assets of
investment projects in foreign countries, upon liquidation or completion of the
project if imported back into Vietnam they shall be considered for
reimbursement of paid export duty (if any) corresponding to the actual
re-imported quantity and not having to pay import duty.
The dossier submitted to the
customs office for consideration of reimbursement of paid export duty (if any)
and non-collection of import duty in accordance with regulations on Law on
Import and Export Duties and guiding documents.”
3. Superseding clause 3,
Article 4 by a new clause 3 as follows:
“3.1 Procedures for declaration
and payment of tax for the income from offshore investment projects
a.1 The dossier attached upon
declaration and payment of tax of Vietnamese enterprises investing abroad for
the income from investment projects in foreign countries including:
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- Financial statement of the
enterprise audited/certified by an independent auditing organization/tax and
finance agency in the invested country (if the country, territory receiving
investment having independent auditing organization) or certified by a
competent authority in the country, territory receiving investment: presenting
original, submitting 01 copy certified and sealed by the enterprise;
- Declaration of income tax of
enterprise under offshore investment projects certified by the authorized
representative of the offshore investment projects: presenting the original,
submitting 01 copy certified and sealed by the enterprise;
- The record of the tax
settlement for the enterprise (if any): presenting the original, submitting 01
copy certified and sealed by the enterprise;
- The certification of the
amount of tax already paid, paid on its behalf, the exempted or reduced tax
amount by the tax agency abroad or documents evidencing the amount of tax
already paid, paid on its behalf, the exempted or reduced tax amount abroad:
presenting the original, submitting 01 copy certified and sealed by the
enterprise;
- The annex of the income tax
amount that the enterprise has already paid abroad deducted in the tax period
in the form No. 03-4/TNDN (Issued together with the Circular No. 28/2011/TT-BTC
dated February 28, 2011 of the Ministry of Finance guiding the implementation of
some articles of the Law on Tax Management and guiding the implementation of
the Decree No. 85/2007/ND-CP of May 25, 2007 and the Decree No.106/2010/ND-CP
on October 28, 2010 of the Government).
In case investment projects in
foreign countries have not yet generated any taxable income (or loss arising),
upon declaring for the annual enterprise income tax finalization, the
Vietnamese enterprises making offshore investment only submit a financial
Statement certified by an independent audit agencies or competent authority of
the country where the investors are investing and Declaration of income tax of
the offshore investment projects certified by the authorized representative of
the offshore investment projects (presenting the original, submitting 01 copy certified
and sealed by the enterprise;) The arisen loss from the offshore investment
projects are not deducted from the income generated by domestic enterprises
upon calculating enterprise income tax.
a.2 Tax agency’s responsibility:
The tax agency is responsible
for receiving and verifying dossier and processing as follows:
In case of incomplete dossier,
within three working days from the date of dossier receipt, a written response
will be sent to the enterprise (clearly stating reason).
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3.2 In case the investment
projects in foreign countries must be stopped their operation with the arisen
loss are not deducted fully and Vietnamese enterprises must bear then the
Vietnamese enterprises are entitled to make declaration and deduction this loss
into the taxable income of Vietnamese enterprises from the subsequent tax
period of enterprise income tax in accordance with regulation of the Law on
enterprise income tax. The time for carrying forward of losses will not exceed
5 years for continuous calculation from the year Vietnamese enterprises
receives the loss not fully deducted as prescribed in this clause.
The carried forward losses by
the disbursed offshore investment capital, not exceeding at the maximum amount
of investment made abroad for investment activities under the Certificate /
License of offshore investment (or Certificate/ License of investment adjusted
at the latest time in case the investment projects adjusting Certificate/
License of investment) issued by the Ministry of Planning and Investment.
a.1 The dossier attached upon
declaration and finalization of tax of Vietnam enterprises investing abroad for
losses from investment projects in foreign countries including:
- The written proposal of
Vietnamese enterprises investing abroad: submission of 01 original;
- Certificate / License of
offshore investment (or Certificate/ License of investment adjusted at the
latest time in case the investment projects adjusting Certificate/ License of
investment) issued by the Ministry of Planning and Investment to the enterprise
as prescribed: presenting an original and submitting a copy;
- Documents certifying the
termination of operation of the economic organizations in foreign countries:
presenting an original and submitting a copy;
- Financial statements in the
latest 3 years from fiscal year of liquidation the project of the economic
organizations abroad audited/certified and financially reported by an
independent/tax and finance agency in the invested country (if the country and
territory receiving investment has independent auditing organization) or
certified by a competent authority in the country and territory receiving
investment. In case the investment projects are not implemented 03 years
adequately, the enterprise will submit all financial Statements from the time
of operation to the termination of offshore investment project: presenting an
original and submitting a copy
- Liquidation contract of
offshore investment projects and documents proving the liquidation transactions
took place abroad: presenting an original and submitting a copy
- Declaration of income tax of
enterprise in offshore investment projects certified by the authorized
representative of the offshore investment projects: presenting an original and
submitting a copy
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- Confirming the amount of tax
already paid, paid on its behalf, the exempted or reduced tax amount of the tax
authority abroad or documents evidencing the amount of tax already paid, paid
on its behalf, the exempted or reduced tax amount abroad, the losses being
carried forward, not yet carried forward of the business operation of the
previous fiscal years.
a.2 The tax agency’s
responsibility: The tax agency is responsible for receiving, verifying dossier
and processing as follows:
a.2.1 In case of incomplete dossier,
within three working days from the date of dossier receipt, a written response
will be sent to the enterprise (specify reasons).
a.2.2 If the dossier is complete
within ten working days from the date of receipt, implement the verification
and comparison of materials and documents in the dossier with the content
guided in this Circular to determine the loss being carried forward, the
consistence and accuracy of the dossier and guide the enterprises to deal with
the loss as guided in this Circular.
Article 2. Implementation
organization and effect
This Circular will take effect
on August 26, 2011,
During the course of
implementation, if there is any problem and difficulty arising, promptly report
to the Ministry of Finance for timely guidance and settlement.
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