THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
123/2008/ND-CP
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Hanoi,
December 8, 2008
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DECREE
DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF
ARTICLES OFTHE LAW ON VALUE-ADDED TAX
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the June 3, 200S Law on Value-Added Tax;
At the proposal of the Minister of Finance,
DECREES:
Chapter 1
GENERAL PROVISIONS
Article 1.-
Governing scope
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Article 2.-Taxpayers
1. Value-added taxpayers include
organizations and individuals producing or trading in goods or services subject
to value-added tax (below referred to as business establishments) and
organizations and individuals importing goods subject to value-added tax (below
referred to as importers)
2. Vietnam-based production and
business organizations and individuals that purchase services (including
services associated with goods) from foreign organizations without permanent
establishments in Vietnam or overseas individuals not residing in Vietnam shall
pay value-added tax.
Vietnamese organizations and
individuals that purchase such services as repair of means of transport,
machinery or equipment; advertisement and marketing; investment and trade
promotion; goods sale brokerage: or training; or share with foreign partners
charges for international post or telecommunications services provided outside
Vietnam are not required to pay value-added tax.
Permanent establishments and
non-residents specified in this Clause must comply with the laws on enterprise
income tax and personal income tax.
The Ministry of Finance shall
specify this Clause.
Article 3.-
Non-taxable objects
Objects not liable to
value-added tax are specified in Article 5 of the Law on Value-Added Tax.
1. Preliminarily processed
products specified in Clause l, Article5oftheLaw on Value-Added Tax are
products which have only been cleaned, dried, peeled, pitted, sliced, salted,
frozen or otherwise ordinarily preserved.
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3. Life insurance specified in
Clause 7. Article 5 of the Law on Value-Added Tax covers human health insurance
and accident insurance in a life insurance package.
4. Services provided for in
Clause 8, Article 5 of the Law on Value-Added Tax are specified as follows:
a/ Credit provision services
include loan provision; discount of negotiable instruments and other valuable
papers; guarantee; financial leasing; and other forms of credit provision under
law, which are provided by financial or credit institutions in Vietnam.
b/ Securities trading covers
securities brokerage, securities dealing, securities issuance underwriting,
securities investment consultancy, securities depository, management of
securities investment funds, management of securities investment portfolios, market
organization services provided by stock exchanges or securities trading
centers, and other trading activities under the securities law.
c/ Capital transfer covers the
transfer of part or the whole of the invested capital amount, including the
sale of enterprises to other enterprises for production and business;
securities transfer; and other forms of capital transfer under I aw.
5. Healthcare services specified
in Clause 9, Article 5 of the Law on Value-Added Tax include transportation,
test, screening, radiograph and blood and blood preparations used for patients.
6. For the renovation, repair or
construction of works specified in Clause 12, Article 5 of the Law on
Value-Added Tax, which is funded with capital other than people's contributions
(including contributed capital amount and financial supports of organizations
and individuals) or humanitarian aid not exceeding 50% of the total capital
used for those works, the whole value of the works is not subject to tax.
Social policy beneficiaries
include people with meritorious services under the law on people with
meritorious services; social relief beneficiaries who enjoy state budget
allowances; people classified as poor or living just above the poverty line;
and other cases provided for by law.
7. Mass transit services
specified in Clause 16, Article 5 of the Law on Value-Added Tax covers mass
transit by bus or tramcar along routes within provinces or urban centers and in
their vicinities as prescribed by competent state agencies.
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The Ministry of Planning and
Investment shall assume the prime responsibility for. and collaborate with
concerned agencies in, promulgating a list of machinery, equipment and supplies
which can be manufactured at home as a basis for differentiating them from
those which cannot be manufactured at home and need to be imported for
scientific research and technological development activities; a list of
machinery, equipment, spare parts, special-purpose means of transport and
supplies which can be manufactured at home as a basis for differentiating them
from those which cannot be manufactured at home and need to be imported for
prospecting, exploring and developing oil and gas fields; a list of aircraft,
drilling platforms and ships which can be manufactured at home as a basis for
differentiating them from those which cannot be manufactured at home and need
to be imported for the formation of enterprises' fixed assets or hired from
foreign parties for production and business activities or for lease.
9. The Ministry of Defense and
the Ministry of Public Security shall assume the prime responsibility for, and
reach agreement with the Ministry of Finance on, specifying special-purpose
weapons and military equipment for security and defense purposes mentioned in
Clause 18, Article 5 of the Law on Value-Added Tax.
10. Imported goods provided for
in Clause 19, Article 5 of the Law on Value-Added Tax are specified as follows:
a/ Goods imported as
humanitarian aid or nonrefundable aid must be approved by competent state
agencies.
b/ Gifts for state agencies,
political organizations, socio-political organizations,
sociopolitical-professional organizations, social organizations, socio-professional
organizations or people's armed forces units must comply with the law on gifts.
c/ Quotas of goods imported as
gifts for individuals in Vietnam must comply with the law on gifts.
11. In case of transfer of
technologies or intellectual property rights specified in Clause 21, Article 5
of the Law on Value-Added Tax. which is accompanied by machinery or equipment
transfer, the value of transferred technologies or intellectual property rights
is not subject to value-added tax. If this value cannot be separately
determined, value-added tax shall be imposed on the total value of transferred
technologies or intellectual property rights and accompanied machinery and
equipment.
12. Unprocessed exploited
natural resources and minerals specified in Clause 23, Article 5 of the Law on
Value-Added Tax are natural resources and minerals not yet processed into other
products.
Chapter II
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Article 4.-
Taxable price
Taxable price is specified in
Article 7 of the Law on Value-Added Tax.
1. In case of purchase of
services specified in Clause 2, Article 2 of this Decree, the taxable price is
the payment price exclusive of value-added tax indicated in the service
purchase contract.
2. For goods and services used
for barter, internal consumption or donation, the taxable price is the price
for calculating value-added tax on goods and services of the same or equivalent
kinds at the time of barter or donation.
Goods and services used for
internal consumption specified in this Clause are those delivered or supplied
by business establishments for consumption, excluding goods and services used
for those establishments' production and business activities.
3. For real estate trading, the
taxable price is the real-estate transfer price minus (-) the actual land price
at the time of transfer. If the actual land price at the time of transfer is
lower than the land price set by provincial-level People's Committees, the
to-be-subtracted land price is that set by provincial-level People's Committees
at the time of transfer.
In case of infrastructure
construction and commercial operation, or construction of houses for sale,
transfer or lease, the taxable price is the sum collected according to the
project execution payment schedule indicated in contracts.
4. For electricity of a
hydropower plant being a dependent cost-accounting unit of the Vietnam
Electricity Group, the taxable price for determining the value-added tax amount
to be paid in the locality where the plant is based is equal to 60% of the
preceding year's average commodity electricity-selling price exclusive of
value-added tax.
5. For casinos, prize-winning
video games or betting entertainment services, the taxable price is excise
tax-inclusive earnings from these services, excluding prizes already paid to
customers.
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The Ministry of Finance shall
specify taxable prices mentioned in this Article.
Article 5.-
Time for determining value-added tax
1. The time for determining
value-added tax on goods is the time of transferring goods ownership or use
right to purchasers, regardless of whether money has been collected or not.
2. The time for determining
value-added tax on services is the time of completing the provision of services
or the time of making service provision invoices, regardless of whether money
has been collected or not.
3. The Ministry of Finance shall
specify the time for determining value-added tax in other cases.
Article 6.-Tax
rates
Value-added tax rates are
specified in Article 8 of the Law on Value-Added Tax.
1. The tax rate of 0% applies to
exported goods and services, international transportation and goods and
services not subject to value-added tax specified in Article 5 of the Law on
Value-Added Tax upon exportation, except goods and services specified at Point
e of this Clause.
a/ Exported goods include goods
exported abroad or sold into non-tariff areas or other cases in which goods are
regarded as exports under the commercial law.
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Overseas organizations are
organizations without permanent establishments in Vietnam and other than
value-added tax payers in Vietnam.
Overseas individuals include
foreigners not residing in Vietnam and overseas Vietnamese who stay outside
Vietnam during the time of service provision.
Organizations and individuals in
a non-tariff area are those having business registration and other cases
specified by the Prime Minister.
c/ To be eligible for the tax
rate of 0%, exported goods and services specified at Points a and b of this
Clause must satisfy the following conditions:
- Having a contract on sale or
processing of exported goods or entrusted processing of exported goods or a
service provision contract signed with an organization or individual overseas
or in a non-tariff area;
- Having via-bank payment
documents for exported goods or services and other documents under law; or
customs declarations, for exported goods.
Payment for exported goods and
services made in the form of clearing between exported and imported goods and
services, or debt payment on behalf of the State is also regarded as via-bank
payment.
d/ International transportation
mentioned in this Clause covers transportation of passengers, luggage and cargo
along international routes from Vietnam abroad or vice versa. If international
transportation contracts cover domestic transportation routes, international
transportation also covers domestic routes.
e/ The tax rate of 0% does not
apply to the following cases: offshore re-insurance; offshore transfer of
technologies or intellectual property rights; offshore capital transfer, credit
provision or securities investment; derivative financial services; post and
telecommunications services; exported products being unprocessed exploited
natural resources or minerals specified in Clause 12, Article 3 of this Decree;
goods and services provided to individuals without business registration in
non-tariff areas.
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a/ Clean water for production
and daily life specified at Point a. Clause 2, Article 8 of the Law on
Value-Added Tax excludes bottled drinking water and other beverages which are
subject to the tax rate of 10%.
b/ Products specified at Point
b. Clause 2, Article 8 of the Law on Value-Added Tax include:
- Fertilizers, including organic
fertilizers, inorganic fertilizers, microbiological fertilizers and other
fertilizers;
- Ores for fertilizer
production, including those used as raw materials for fertilizer production;
- Pesticides, fungicides and
plant and animal growth stimulants.
c/ Feeds for cattle, poultry and
other domestic animals specified at Point c, Clause 2, Article 8 of the Law on
Value-Added Tax include processed or unprocessed products, such as bran,
offals, assorted oil cakes, fish paste, bone meal.
d/ Product preliminary
processing and preservation services specified at Point d, Clause 2, Article 8
of the Law on Value-Added Tax include drying, peeling, pitting, slicing,
grinding, freezing, salting or other ordinary methods of preservation.
dd/ Fresh and live foods
specified at Point g, Clause 2, Article 8 of the Law on Value-Added Tax include
foods not yet cooked or processed into other products.
Unprocessed forest products
specified at Point g, Clause 2, Article 8 of the Law on Value-Added Tax include
exploited natural forest products, such as rattan, bamboo, mushrooms, Jew's ear
(auricularia polytricha): roots, leaves, flowers, medicinal plants, resin and
other forest products.
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Article 7.-
Tax credit method
The tax credit method is
specified in Article 10 of the Law on Value-Added Tax.
1. The payable value-added tax
amount calculated according to the tax credit method is the output value-added
tax amount minus (-) the creditable input value-added tax amount.
2. The output value-added tax
amount is the total value-added tax amount on sold goods or services indicated
on the value-added invoice.
The value-added tax indicated in
the value-added invoice is the taxable price of sold taxable goods or services
multiplied by (x) the value-added tax rate for such goods or services.
In case documents indicating the
payment price inclusive of value-added tax are used, the output value-added tax
is the payment price minus (-) the taxable price determined under Point j,
Clause 1, Article 7 of the Law on Value-Added Tax.
3. The creditable input
value-added tax amount is determined based on:
a/ The value-added tax amount
indicated on the value-added invoice of goods or service purchase; and the
document proving the payment of value-added tax on imported goods, or
value-added tax payment in the case of service purchase specified in Clause 2,
Article 2 of this Decree.
For purchased goods and services
for which documents indicating payment prices inclusive of value-added tax are
used, the creditable input value-added tax amount is the payment price minus
(-) the taxable price specified at Point j, Clause 1, Article 7 of the Law on
Value-Added Tax.
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Article 8.-
Method of calculation of tax based directly on added value
The method of calculation of tax
based directly on added value is specified in Article 11 of the Law on
Value-Added Tax.
1. The payable value-added tax
amount according to the method of calculation of tax based directly on added
value is the added value of sold taxable goods or services multiplied by (x)
the tax rate for such goods or services.
a/ The added value of goods or
services is the selling price of goods or services minus (-) the purchase price
of such goods or services.
The selling price of goods or
services is the actual selling price indicated on the goods or service sale
invoice, inclusive of value-added tax, surcharges and additional charges earned
by the seller.
The purchase price of goods or
services is the value, inclusive of value-added tax, of purchased or imported
goods or services, which are used for the production or trading of sold taxable
goods or services.
b/ For business establishments
which sell goods or services with sufficient invoices and documents as
prescribed and are able to determine the exact sale turnover but have
insufficient invoices of purchase of input goods or services, added value is
the turnover multiplied by (x) the percentage (%) of the added value calculated
on the turnover.
The percentage (%) of the added
value calculated on the turnover serving as a basis for determining the added
value is specified as follows:
- Commercial (goods distribution
or provision) activities: 10%;
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- Production, transportation,
services provided together with goods, construction involving the supply of raw
materials and materials: 30%.
c/ Business activities with
insufficient invoices or documents or business establishments which fail to
observe or fully observe the laws on accounting, invoices and documents, are
subject to value-added tax payment according to the method of fixing tax
amounts specified in Article 38 of the Law on Tax Administration.
The Ministry of Finance shall
specify the method of fixing tax amounts specified at this Point.
2. The method of calculation of
tax based directly on added value applies to:
a/ Business establishments,
individuals and households that fail to observe or fully observe the laws on
accounting, invoices and documents;
b/ Foreign organizations and
individuals doing business in Vietnam not under the Investment Law and other
organizations that fail to observe or fully observe the laws on accounting,
invoices and documents.
c/ Gold, silver and gem trading
activities.
Business establishments paying
tax according to the tax credit method which trade in gold, silver or gems and
process gold, silver and gem products must separately account gold, silver or
gem trading activities for the application of the method of calculation of tax
based directly on added value.
Chapter
III
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Article 9.-
Credit of input value-added tax
Input value-added tax credit is
specified in Article 12 of the Law on Value-Added Tax.
1. Business establishments which
pay value-added tax according to the tax credit method are entitled to input
value-added tax credit as follows:
a/ Input value-added tax on
goods or services used for the production or trading of goods or services
subject to value-added tax may be wholly credited;
b/ For goods or services used
for the production and trading of goods or services both subject and not
subject to value-added tax, only the input value-added tax amount on goods or
services used for the production and trading of goods or services subject to
value-added tax may be credited. Business establishments shall separately
account creditable and non-creditable input value-added tax amounts; if
separate accounting cannot be conducted, the creditable input tax shall be
calculated based on the ratio (%) between the turnover subject to value-added tax
and the total turnover of sold goods or services.
The input value-added tax on
fixed assets used for the production and trading of goods or services both
subject and not subject to value-added tax may be wholly credited.
The input value-added tax on fixed
assets in the following cases shall not be credited but shall be included in
historical cost of fixed assets: special-purpose fixed assets used for the
manufacture of weapons and military equipment for security and defense
purposes; fixed assets being houses used as working offices and special-purpose
equipment for credit activities of credit institutions, re-insurance
businesses, life insurance enterprises, securities trading enterprises,
hospitals or schools; civil aircraft and yachts not for commercial
transportation of cargo or passengers, or for tourist or hotel business.
For fixed assets being passenger
cars of 9 seats or less (except cars for commercial transportation of cargo or
passengers, or for tourist or hotel business) which are valued at over VND 1.6
billion, the input value-added tax amount corresponding to the amount in excess
of VND 1.6 billion will not be credited.
c/ The input value-added tax on
goods or services used for die production and trading of goods or services not
subject to value-added tax is not credited, except for cases specified at
Points d and e of this Clause.
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e/ The input value-added tax on
goods or services used for prospecting, exploring and developing oil and gas
fields is wholly credited.
h/ The input value-added tax
arising in a month shall be declared and credited upon the determination of the
payable tax amount of that month. In case a business establishment detects
errors in the declared or credited input value-added tax amount, additional
declaration and credit may be conducted; the time limit for additional
declaration and credit is 6 months from the time of detecting errors.
h/ Business establishments may
account the non-creditable input value-added tax amount as an expense for
calculating enterprise income tax or include it in the historical cost of fixed
assets.
2. Conditions for input
value-added tax credit:
a/ Having an value-added invoice
of purchased goods or services or a document proving the payment of value-added
tax on goods at the stage of importation, and a document proving the
value-added tax payment in case of service purchase specified in Clause 2,
Article 2 of this Decree.
b/ Having a via-bank payment
document of purchased goods or services, except goods or services valued at
under VND 20 million upon each purchase.
For goods or services purchased
by deferred or installment payment, which are valued at over VND 20 million,
business establishments shall, based on goods or service purchase contracts,
value-added invoices and via-bank payment documents, declare and credit the
input value-added tax. In case of non-availability of via-bank payment
documents because the contractual payment time is not due. business establishments
may still declare and credit the input value-added tax. As of the contractual
payment time, if via-bank payment documents are unavailable, business
establishments are not entitled to input value-added tax credit but shall
declare and readjust the credited amount of input value-added tax.
For goods or services purchased
by clearing between the value of purchased goods or services and the value of
sold goods or services, such clearing is also regarded as via-bank payment.
After clearing, if the remaining value paid in cash is VND 20 million or more,
tax credit is allowed only for cases in which via-bank payment documents are
available.
In case goods or services valued
at under VND 20 million are purchased from a supplier many times in a day,
bringing the total value of purchased goods or services to over VND 20 million,
tax credit is allowed only for cases in which via-bank payment documents are
available.
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Article
10.- Value-added tax refund
Value-added tax refund is
specified in Article 13 of the Law on Value-Added Tax.
1. Business establishments which
pay tax according to the tax credit method and have some input value-added tax
amount not yet fully credited for three consecutive months will be refunded
such value-added tax amount.
2. For new business
establishments under investment projects which have registered business and
registered to pay value-added tax according to the tax credit method, or oil
and gas field-prospecting, exploring and developing projects which are being
invested and do not yet operate, and have an investment period of one year or longer,
they are entitled to value-added tax refund on a yearly basis for goods or
services used for investment. When the accumulated amount of value-added tax on
goods or services purchased for investment reaches VND 200 million or more, it
will also be refunded.
3. For operating business
establishments (except enterprises making cost-accounting according to the
whole sector) paying value-added tax according to the tax credit method and
having investment projects on new production units in provinces or centrally
run cities other than those where they are headquartered, which are being
invested and do not yet operate and register business and tax payment, they
will be refunded value-added tax on goods or services purchased for such
investment when it reaches VND 200 million or more. In this case, business
establishments shall make separate tax declarations and tax refund dossiers.
4. Business establishments which
export goods or services in a month and have a non-credited input value-added
tax amount of VND 200 million or more will be refunded such tax amount in the
month.
5. Business establishments
making tax. finalization upon separation, split, dissolution, bankruptcy or
ownership transformation; assignment, sale, contracting or lease of state
enterprises will be refunded the input value-added tax amount not yet fully
credited or the overpaid value-added tax amount.
6. Value-added tax refund for
programs and projects funded with non-refundable official assistance
development (ODA), non-refundable aid or humanitarian aid:
a/ For non-refundable ODA-funded
projects: Their owners or principal contractors or organizations designated by
foreign donors 10 manage programs or projects will be refunded the paid
value-added tax amount on goods or services purchased in Vietnam for such
programs or projects.
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7. Beneficiaries of diplomatic
privileges or immunities under the Ordinance on Diplomatic Privileges and
Immunities that purchase goods or services in Vietnam for personal use will be
refunded the paid value-added tax indicated on the added-value invoice or
payment document indicating the payment price inclusive of value-added tax.
8. Business establishments are
entitled to value-added tax refund if they have competent agencies decisions on
tax refund handling under law.
Article
11.- Places for tax payment
1. Taxpayers shall declare and
pay value-added tax in localities where they carry out production and business
activities.
2. Taxpayers that declare and
pay value-added tax according to the tax credit method and have dependent
cost-accounting' production establishments based in provinces or centrally run
cities other than those where they are headquartered shall pay value-added tax
both in localities where their production establishments are based and
localities where they are headquartered.
The Ministry of Finance shall
specify this Article.
Chapter IV
IMPLEMENTATION
PROVISIONS
Article
12.- Effect and implementation guidance
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2. Business establishments which
had signed shipbuilding contracts with their customers before the effective
date of this Decree at value-added tax-inclusive prices calculated at the tax
rate of 5%, but as of December 31, 2008, have not yet completed, tested upon
take-over or handed over contracted work continue to enjoy the tax rate of 5%.
3. The Ministry of Finance shall
guide the implementation of this Decree.
Ministers, heads of
ministerial-level agencies, heads of government-attached agencies and
presidents of provincial-level People's Committees shall implement this Decree.
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung