THE GOVERNMENT OF VIETNAM
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 49/2022/ND-CP
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Hanoi, July 29, 2022
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DECREE
AMENDMENTS TO DECREE NO. 209/2013/ND-CP DATED DECEMBER 18, 2013
OF THE GOVERNMENT OF VIETNAM ELABORATING AND GUIDING THE IMPLEMENTATION OF
CERTAIN ARTICLES OF THE LAW ON VALUE-ADDED TAX AMENDED BY DECREE NO.
12/2015/ND-CP, DECREE NO. 100/2016/ND-CP, AND DECREE NO. 146/2017/ND-CP
Pursuant to the Law on
Organization of the Government of Vietnam dated June 19, 2015; the Law on
Amendments to the Law on Organization of the Government of Vietnam and the Law
on Organization of the Local Government of Vietnam dated November 22, 2019;
Pursuant to the Law on
Value-Added Tax dated June 3, 2008; the Law on Amendments to the Law on
Value-Added Tax dated June 19, 2013;
Pursuant to the Law on
Amendments to laws on taxation dated November 26, 2014;
Pursuant to the Law on
Amendments to the Law on Value-Added Tax, Law on Excise Tax, and Law on Tax
Administration dated April 6, 2016;
At the request of the
Minister of Finance of Vietnam;
The Government of
Vietnam hereby promulgates the Decree on Amendments to Decree No. 209/2013/ND-CP
dated December 18, 2013 of the Government of Vietnam elaborating and guiding
the implementation of certain Articles of the Law on Value-Added Tax amended by
Decree No. 12/2015/ND-CP, Decree No. 100/2016/ND-CP, and Decree No.
146/2017/ND-CP.
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1. Amendments to Clause 3 and
Clause 4 of Article 4:
“3. Regarding real estate
transfer, the value-added taxable price is the real-estate transfer price minus
(-) the land price deducted for value-added tax calculation.
a) The land price
deducted for value-added tax calculation is specified as follows:
a.1) In the case of
receiving land assigned by the State to invest in the infrastructure and
construct houses for selling, the land price that is deducted for value-added
tax calculation, including the land use fees subject to transfer to the state
budget according to regulations of laws on the collection of the land use fee,
compensation, and site clearance amount (if any).
a.2) In the case of
auctions for land use rights, the land price deducted for value-added tax
calculation is the auction-winning land price.
a.3) In the case of
renting land for the construction of infrastructure and houses for selling, the
land price deducted for value-added tax calculation is the rental subject to
transfer to the state budget according to laws on the collection of the land
rental, water surface rental, compensation, and site clearance amount (if any)
The compensation and site
clearance amount prescribed in Point a.1 and Pont a.3 of this Clause is the
compensation and site clearance amount according to the plan approved by the
competent state agency and deducted in the land use price or land rental
subject to payment according to regulations on the collection of the land use
price, land rental, and water surface rental.
a.4) In case business
establishments receive the transferred land use rights from organizations and
individuals, the land price deducted for value-added tax calculation is the
land price at the time of receiving such transferred land use rights, excluding
the infrastructure value. Business establishments may declare and deduct the
input value-added tax of infrastructure (if any). In case of inability to
determine the land price at the time of receiving the transfer, the land
deducted for value-added tax calculation is the land price imposed by the
People's Committee of the province or centrally affiliated city at the time of
concluding the transfer contract.
In case business
establishments that receive the transferred real estate of organizations and
individuals have determined the land price including the infrastructure value
according to regulations prescribed in Clause 3 Article 4 of Decree No.
209/2013/ND-CP (amended by Clause 3 Article 3 of Decree No. 12/2015/ND-CP dated
February 12, 2015), the land price deducted for value-added tax calculation is
the land price at the time of receiving the transfer, excluding the
infrastructure.
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a.5) In case business
establishments receive land use rights from organizations and individuals as
capital, the land price deducted for value-added tax calculation is the price
prescribed in the capital contribution contract. In case the transfer price of
land use right is lower than the capital contribution price, the land price
deducted shall follow the transfer price.
a.6) In case real estate
business establishments implement according to the form of building-transfer
(BT) and pay by the value of land use right, the land price deducted for
value-added tax calculation is the price at the time of concluding the BT
contract according to the law; if the price is undetermined at the time of
concluding the BT contract, the deductible land price is the land price imposed
by the People’s Committee of the province or centrally affiliated city for
payment of works.
b) In the case of
constructing or trading infrastructure and constructing houses for sale,
transfer, or lease, the value-added taxable price is the sum collected according
to the project execution or the collection schedule prescribed in the contract
minus (-) the land price deducted corresponding to the % of the sum collected
over the total value of the contract.
4. Taxable prices for electricity production of the Vietnam
Electricity:
a) Regarding electricity
of hydroelectric companies that are keep-business-account units dependent on
the Vietnam Electricity or Power Generation Corporations, the value-added
taxable price for determining the value-added tax amount to be paid in the
locality where the hydropower plant is located is 35% of the average retail
price of electricity, excluding value-added tax, according to regulations of
laws on hydroelectricity and laws on price.
b) Regarding electricity
of thermoelectric companies that are keep-business-account units dependent on
the Vietnam Electricity or Power Generation Corporations, the value-added
taxable price for determining the value-added tax amount to be paid in the
locality where the thermal power station is located is the selling price of
electricity to customers stated on invoices according to contracts of purchase
and sale of electricity applicable to each thermal power station.
If there are no contracts
of purchase and sale of electricity applicable to each thermal power station,
the value-added taxable price is the average retail price of electricity,
excluding value-added tax, according to regulations of laws on electricity, and
laws on price.
c) Regarding electricity
of electricity production companies (excluding hydroelectricity and
thermoelectricity) that are keep-business-account units dependent on the
Vietnam Electricity or Power Generation Corporations, the value-added taxable
price for determining the value-added tax amount to be paid in the locality
where the electricity production plant is located is the selling price of
electricity, excluding value-added tax, imposed by competent state agencies on
each type of power generation.
If the selling price of
electricity is yet to be imposed by competent state agencies on each type of
power generation prescribed in this Point, the value-added taxable price is the
average retail price of electricity, excluding value-added tax, according to
regulations of laws on electricity and laws on price."
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“3. Business activities
and business households that fail to implement or insufficiently implement
regulations on accounting, invoices, and receipts according to regulations of
the law shall pay value-added tax according to regulations on flat tax
prescribed in Article 51 of the Law on Tax Administration."
3. Amendments to Clause 2 Article
10:
“2. Business
establishments eligible for tax refund regarding investment projects:
a) Business
establishments that have registered for business and value-added tax payment
according to the tax credit method (including newly established business
establishments from investment projects), have new investment projects
(including investment projects divided into several investment phases or
investment categories) according to regulations of the Law on Investment in
areas of the same or different provinces and cities where their headquarters
are located (except for cases prescribed in Point c of this Clause, investment
projects on construction of houses for sale, and investment projects that do
not create fixed assets) that are in the investment phase or projects on
prospection and projects to search, prospect, and develop oil and gas fields
that are in the investment phase, and have the input value-added tax of goods
and services incurred during the cumulative investment phase that have not been
fully deducted from at least 300 million VND, shall be eligible for the
value-added tax refund.
Business establishments
that declare separate value-added tax for investment projects and have to
compensate for the input value-added tax of investment projects with the
value-added tax subject to payment of current business production activities
(if any). After the compensation, if the cumulative input value-added tax of investment
projects has not been deducted for at least 300 million VND, such business
establishments shall be eligible for the value-added tax refund.
In case investment
projects of business establishments have been inspected and audited by
competent state agencies, tax agencies may use the results of such inspection
or audit to decide on the value-added tax refund.
b) Business
establishments of conditional business lines shall be eligible for the
value-added tax refund for investment projects as prescribed in Point a of this
Clause if their investment projects fall into the following cases:
b.1) Investment projects
in the investment stage and have been granted licenses to engage in conditional
business lines by competent state agencies according to regulations of laws on
investment and specialized laws under one of the following forms: Licenses,
certificates, or documents on verification and approval.
b.2) Investment projects
in the investment stage that are yet to be required to apply for licenses to
engage in conditional business lines issued by competent state agencies
according to regulations of laws on investment and specialized laws under one
of the following forms: Licenses, certificates, or documents on verification
and approval.
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c) Business
establishments that are ineligible for the value-added tax refund may be
permitted to transfer the tax that has yet to be deducted from investment
projects according to laws on investment to the next period in the following
cases:
c.1) Investment projects
that do not satisfy the business criteria according to the Law on Investment,
regulations prescribed in Point a Clause 1 Article 13 of the Law on Value-Added
Tax amended by the Law on Amendments to the Law on Value-Added Tax, the Law on
Excise Tax, and the Law on Tax Administration of business establishments of
conditional business lines that have not been granted licenses to engage in
conditional business lines by competent state agencies by one of the following
forms: Licenses, certificates, or documents on verification and approval or
such business establishments have yet to satisfy the criteria for engaging in
conditional business lines without the requirements for written verification or
approval according to laws on investment (except for cases prescribed in Point
b of this Clause).
Investment projects that
do not satisfy the business criteria during their operation according to
regulations prescribed in Point a Clause 1 Article 13 of the Law on Value-Added
Tax amended by the Law on Amendments to the Law on Value-Added Tax, the Law on
Excise Tax, and the Law on Tax Administration of business establishments of
conditional business lines that have one of their licenses to engage in
conditional business lines revoked during operation such as licenses,
certificates, or documents on verification and approval; or during their
operation, if such business establishments fail to satisfy the criteria for
investment in conditional business lines according to laws on investment, the
time of non-refundable value-added tax shall be from the time such business
establishments have one of the mentioned documents revoked or the time when
competent state agencies inspect and detect such business establishments fail
to satisfy the criteria for investment in conditional business lines.
c.2) Investment projects
on the utilization of natural resources and minerals licensed from July 1, 2016
or investment projects on the production of goods and products with the total
value of natural resources and minerals plus energy costs account for 51% of
the finished product price according to the investment project, except for
projects to search and prospect oil and gas fields as prescribed in Point a of
this Clause.
The identification of
natural resources, minerals, and their values and the time of determination of
the prices of natural resources, minerals, and energy costs shall comply with
Clause 11 Article 3 of this Decree."
Article 2. Entry into
force and implementation responsibilities
1. This Decree comes into force as of September 12, 2022.
2. Regulations on the value-added tax refund for investment
projects of business establishments of conditional business lines prescribed in
Clause 3 Article 1 of this Decree shall be applicable from the effective date
of Decree No. 100/2016/ND-CP dated July 1, 2016 of the Government of Vietnam.
In case business
establishments have their value-added tax of investment projects revoked
according to Point c Clause 2 Article 10 of Decree No. 209/2013/ND-CP (amended
by Clause 6 Article 1 of Decree No. 100/2016/ND-CP), tax agencies shall adjust
the value-added tax, deferral amount, and fines for administrative violations
of tax (if any). The offsetting and refund of overpayment shall comply with
regulations of laws on tax administration.
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4. The Minister of Finance shall guide the implementation of
this Decree.
5. Ministers, Directors of ministerial agencies, Directors of
Government’s affiliates, Chairmen of the People’s Committees of provinces,
centrally affiliated cities, and relevant organizations, individuals shall
implement this Decree.
ON BEHALF OF THE GOVERNMENT
PP. PRIME MINISTER
DEPUTY PRIME MINISTER
Le Minh Khai