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THE MINISTRY OF FINANCE
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 105/2010/TT-BTC
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Hanoi, July 23, 2010
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CIRCULAR
GUIDING A
NUMBER OF ARTICLES OF THE LAW ON ROYALTIES AND GUIDING THE GOVERNMENT'S DECREE
NO 50/2010/ND-CP OF MAY 14, 2010, WHICH DETAILS AND GUIDES A NUMBER OF ARTICLES
OF THE LAW ON ROYALTIES
Pursuant to November 25, 2009 Law No. 45/2009/QH12 on
Royalties;
Pursuant to the 1993 Petroleum Law, Law No. 19/2000/QH10 Amending and Supplementing
a Number of Articles of the
Petroleum Law, and Law No. 10/2008/QH12 Amending and Supplementing a Number of
Articles of the Petroleum Law;
Pursuant to November 29, 2006 Law No. 78/ 2006/QH11 on Tax Administration and
Government's decrees detailing the Law on Tax Administration;
Pursuant to the Government's Decree No. 50/ 2010/ND-CP of May 14, 2010,
detailing and guiding a number of articles of the Law on Royalties;
Pursuant to the Government's Decree No. 118/2008/ND-CP of November 27, 2008,
defining the functions, powers, tasks and organizational structure of the
Ministry of Finance;
The Ministry of Finance guides the Law on Royalties as follows:
Part I
GENERAL
PROVISIONS
Article 1. Scope of application
This
Circular provides guidance on royalty payers; royalty-liable objects; royalty
bases; royalty exemption and reduction; and on the implementation of the
Government's Decree No. 50/2010/ND-CP of May 14. 2010. detailing and guiding a
number of articles of Law No. 45/2009/ QH12 on Royalties: and a number of
articles of Law No. 45/2009/QH12 on Royalties.
Activities
of prospecting, exploring and exploiting crude oil and condensate (below
collectively referred to as crude oil) and natural gas, associated gas and coal
gas (below collectively referred to as natural gas) in Vietnam by organizations
and individuals (below referred to as contractors) under the petroleum law
involving the exploitation of natural resources are regulated by this Circular.
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Royalty-liable
objects referred to in this Circular are natural resources in the mainland,
islands, internal waters, territorial sea. exclusive economic zones and
continental shelf under the sovereignty and jurisdiction of the Socialist
Republic of Vietnam, including:
1.
Metallic minerals;
2.
Non-metallic minerals;
3.
Crude oil as specified in Clause 2. Article 3 of the 1993 Petroleum Law;
4.
Natural gas as specified in Clause 3. Article 3 of the 1993 Petroleum Law;
5.
Coal gas as specified in Clause 3, Article 1 of the 2008 Law Amending and
Supplementing a Number of Articles of the Petroleum Law;
6.
Natural forest products, including plants of all kinds and other natural forest
products, other than animals and anise, cinnamon. amomum and cardamom which are
grown by royalty payers in natural forest areas allocated to them for zoning
off and protection:
7.
Natural marine products, including marine animals and plants;
8.
Natural water, including surface water and groundwater;
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10.
Other resources, which shall be proposed by the Ministry of Finance in
coordination with concerned ministries and branches to the Government for
submission to the National Assembly Standing Committee for consideration and
decision.
Article 3. Royalty payers
1.
Royalty payers are organizations and individuals exploiting natural resources
being royalty-liable objects defined in Article 2 of this Circular, including
state companies, joint-stock companies, limited liability companies,
partnerships, cooperatives, private enterprises, foreign-invested enterprises,
foreign parties to business cooperation contracts, and other organizations,
households and individuals, regardless of their sectors, trades, sizes or forms
of operation, that exploit natural resources under Vietnam's law. that pay
royalties under Article 3 of the Law on Royalties.
2.
Royalty payers in some cases are specified as follows:
2.1.
In case the enterprise exploiting natural resources is set up on a
joint-venture basis, the joint-venture enterprise is the royalty payer;
2.2.
In case the Vietnamese party and foreign party jointly perform a business
cooperation contract on the exploitation of natural resources. the royalty
payment liability of each party must be specified in the business cooperation
contract; in case the business cooperation contract does not specify the
royalty payer, all contractual parties shall declare and pay royalties or
appoint a representative to pay royalties for the business cooperation
contract.
2.3.
In case an organization or individual that exploits natural resources on a
small scale sells the exploited natural resources to another organization or
individual that commits in writing to declare and pay royalties on behalf of
the natural resource exploiter, the purchaser is the royalty payer.
The
purchaser shall make a list of small-scale exploiters for whom royalties shall
be declared and paid by the purchaser and submit this list, together with the
royalty declaration dossier of the first month when natural resources are
purchased, to the managing tax office for monitoring and administration in
subsequent royalty periods. Upon the occurrence of any changes in small-scale
natural resource exploiters for whom royalties are declared and paid by the
purchaser, the purchaser shall fill in a supplementary declaration form for
submission together with the royalty declaration dossier of the month when
these changes occur. When the on-behalf royalty payment terminates, the two
parties shall make a record thereon which shall be sent by the royalty payer to
the tax office in the month when the on-behalf royalty payment terminates.
2.4.
In case an organization or individual that acts as a construction contractor
without natural resource license, during the process of performing the
construction contract, obtains and sells a volume of natural resources (for
example, contractors dredging canals, ditches, lakes or lagoons obtained and
sold a volume of sand, soil and mud or contractors exploiting stones sell them
for processing into construction materials), shall declare and pay royalties
thereon to local tax offices.
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a/
For a petroleum contract signed in the form of production-sharing contract, the
royalty payer is the contract executive.
b/
For a petroleum contract signed in the form of joint-administration contract,
the royalty payer is the joint-administration company.
c/
For a petroleum contract signed in the form of joint-venture contract, the
royalty payer is the joint-venture enterprise.
d/
In case the Vietnam National Petroleum Group or its subsidiary corporations or
companies prospect, explore or exploit crude oil or natural gas by themselves,
royalty payers are the Vietnam National Petroleum Group or its affiliate
corporations and companies.
2.6.
Organizations and individuals that use water from irrigations works built with
non-state budget capital or partially with state budget capital for power
generation shall pay royalties and water charge according to regulations.
2.7
For royalty-liable natural resources banned from exploitation or illegally
exploited which are seized or confiscated and permitted for sale, organizations
and individuals that are assigned to sell these natural resources shall pay
royalties before deducting seizure, auction or reward expenses according to
regulations.
Part II
ROYALTY
BASES
Article 4. Royalty bases
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The
payable royalty amount shall be calculated as follows:
Royalty amount payable in a period
=
Output of royalty liable natural
resources
x
Royaltiable price of a unit of
natural resource
x
Royalty rate
In
case a slate agency assesses a royalty amount payable on a unit of exploited
natural resource, the payable royalty amount shall be determined as follows:
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=
Output of royalty- liable natural
resources
x
Royalty amount assessed on a unit of
exploited natural resource
Payable
royalty amounts shall be assessed based on tax offices' database in conformity
with regulations on tax assessment for enterprises that fail to properly comply
with accounting regimes and regulations on invoices and vouchers, or with
regulations on handling of tax-related violations, and on royaltiable prices
provided by provincial-level People's Committees under Clause 4, Article 6 of
this Circular.
Article 5. Natural resource output
used for royalty calculation
The
natural resource output used for royalty calculation is the output of actually
exploited natural resources provided in Article 5 of the Law on Royalties,
which shall be determined as follows:
1.
In case the quantity, weight or volume of the actually exploited natural
resources can be determined, the natural resource output used for royalty
calculation is the quantity, weight or volume of natural resources actually
exploited in the royalty period.
For
exploited natural resources which can be classified into natural resource
products of different grades, qualities or commercial values, the natural
resource output used for royalty calculation shall be classified by their
grade, quality or commercial value or converted into an unit of natural
resource to serve the determination of the natural resource output used for
calculation of royalties for the whole volume of exploited natural resources.
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2.
For natural resources of which the actually exploited quantity, weight or
volume cannot be determined because they contain different substances and
impurities, the output of natural resources in some specific cases shall be
determined as follows:
a/
For exploited natural resource which must be sorted or classified before sale,
the natural resource output used for royalty calculation shall be determined
based on the quantity, weight or volume of each substance obtained after
sorting or classification. Sorted or classified natural resources must be ores
and have not yet been processed into other products. In case the soil, rock and
waste obtained through the sorting and classification process are sold, their
royalty-calculation output shall be determined corresponding to each substance.
Example 2:
For coal exploited from a mine which contains impurities, soil and rock and
must be sorted and classified before sale, the actually exploited output of
coal used for royally calculation is the amount of sorted and classified coal.
In
case a large volume of soil and rock (the amount of which cannot be determined)
must be sorted and sieved to obtain 2 kg of gold nugget and 100 tons of iron
ore. royalty shall be calculated on this amount of gold nugget and iron ore. At
the same time, the amount of other natural resources exploited and used for
mining activities, such as water exploited and used for sorting and sieving
activities, must also be determined.
b/
For exploited natural resources which contain different substances but are not
sorted and classified and the volume of each substance cannot be determined
upon sale, the royalty-calculation output of each substance shall be determined
based on the output of natural resources actually exploited and the proportion
of each substance in these natural resources according to the results of
assessment of sample ores.
Example 3:
The volume of copper ore exploited in a month is 1.000 tons, which contains
different substances. According to the natural resource exploitation license
and exploitation design dossier approved by competent authorities and the
assessed proportions of substances in the exploited copper ore are as follows:
copper: 60%, silver: 0.2% and zinc: 0.5%.
The
output of each substance used for royalty calculation shall be determined as
follows:
-
Copper ore: 1.000 tons x 60% = 600 tons.
-
Silver ore: 1,000 tons x 0.2% = 2 tons.
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The
royaltiable price of each substance shall be determined based on the output of
each substance in copper ore when calculating royalties under the guidance at
Point 2.2, Clause 2, Article 6 of this Circular.
3.
For exploited natural resources which are not sold but used for producing other
products, if the quantity, weight or volume of the actually exploited natural
resources cannot be determined, the natural resource output used for royalty
calculation shall be determined based on the output of products produced in the
royalty period and the norm of used natural resource per product unit.
The
norm of used natural resource must conform with the applied production and
processing technology registered by royalty payers with tax offices in the
first royalty declaration period. In case the amount of natural resource used
for the production of a product unit is over 5% higher than the designed norm,
the tax office shall coordinate with relevant agencies in appraising this
amount for assessing the royalty-liable output of exploited natural resources.
Example 4:
To produce 1,000 unbaked bricks, it is necessary to use 1 m3 of clay. In a
month, if a clay-exploiting establishment produces 100,000 bricks, the output
of exploited clay liable to royalty will be: 100.000 bricks divided by (:)
1,000 bricks = 100 m3.
4.
For natural water used for hydropower generation, the output of natural
resource used for royalty calculation is the output of electricity sold by the
electricity producer to electricity buyers under electricity sale and purchase
contracts or the output of transmitted electricity in case no electricity sale
and purchase contract is made. This electricity output shall be determined by a
metering system up to Vietnam's measurement and quality standards and certified
by the seller and buyer or the deliverer and recipient.
5.
For natural mineral water, natural thermal water and natural water used for
industrial purposes, the natural resource output used for royalty calculation
shall be determined in cubic meter (m3) or liter (1) according to the measuring
system up to Vietnam's measurement and quality standards.
Royalty
payers shall install devices to measure the output of exploited natural mineral
water, natural thermal water and natural water for use as grounds for royalty
calculation. Installed devices must have inspection certificates of a
Vietnamese agency in charge of measurement and quality and notified to tax
offices, together with the royalty declaration dossier of the royalty period
after they are installed.
If
it is impossible for objective reasons to install devices for measuring the
exploited and used output of water or to directly determine the output used for
royalty calculation, a presumptive output of exploited natural resources may be
determined in a royalty period. Tax offices shall coordinate with concerned
local agencies in determining the presumptive output of exploited natural
resources for royalty calculation under Clause 6 of this Article.
6.
In case of manual, scattered or mobile, irregular exploitation, if the
projected output of exploited natural resource in a year is valued at under VND
200 million, a presumptive output of exploited natural resource may be
determined on a seasonal or regular basis. Tax offices shall coordinate with
concerned local agencies in determining the presumptive output of exploited natural
resources for royalty calculation.
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Tax
offices shall, basing themselves on royalty registration dossiers, technical
design dossiers of natural resource exploitation technologies, royalty
declaration dossiers and limitations of the royalty declaration, analyze and
coordinate with relevant line management agencies in determining the output and
value of natural resources exploited in a year in order to determine cases in
which a presumptive royalty-liable output of natural resources is applied.
7.
In case an organization or individual signs a contract to purchase natural
resources from organizations and individuals exploiting natural resources on a
small scale and commits in writing to declare and pay royalties on behalf of
the sellers, the output of natural resources used for royalty calculation is
the output of natural resources actually purchased.
Article 6. Royaltiable prices
The
royaltiable price is the exploiter's selling price of a unit of natural
resource product, exclusive of value-added tax. as specified in Article 4 of
Decree No. 50/2010/ND-CP. which is indicated in sale documents but must not be
lower than the royaltiable price set by the provincial-level People's
Committee. In case the selling price of an exploited natural resource is lower
than the royaltiable price set by the provincial-level People's Committee,
royalties shall be calculated based on the price set by the provincial-level
People's Committee. The royaltiable price shall be determined specifically as
follows:
1.
In case the selling price of a unit of natural resource product can be
determined:
1.1.
For natural resources of the same grade and quality which are exploited in a
month, regardless of whether part of which is transported elsewhere for sale or
is put into production, processing, sorting or classification, the royaltiable
price is the selling price of a unit of exploited natural resource product,
exclusive of value-added tax (regardless of the place of consumption). The
selling price of a unit of natural resource shall be calculated by dividing the
total turnover (exclusive of value-added tax) earned from the sold natural
resource by the total output of the natural resource sold in the month.
In
case organizations and individuals exploit a natural resource for a group,
corporation or company for consumption under a contract between them, the
royaltiable price of a unit of natural resource is the price set by the
provincial-level People's Committee of the locality in which the natural
resource is exploited as specified in Clause 4, Article 6 of this Circular.
1.2.
If an output of natural resources is exploited in a month but no turnover is
earned from the sale thereof, the royaltiable price of a unit of natural
resource shall be determined to be the weighted average royaltiable price of a
unit of natural resource in the preceding month. If this weighted average price
is lower than the royaltiable price set by the provincial-level People's
Committee under Clause 4, Article 6 of this Circular, the royaltiable price set
by the provincial-level People's Committee shall be used.
2.
In case the selling price of an exploited natural resource cannot be determined
under Clause 1 of this Article, the royaltiable price shall be determined on
any of the following grounds:
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2.2.
In case the exploited natural resource contains different substances, the
royaltiable price shall be determined based on the selling price of a unit and
the content of each substance in the exploited natural resource which must not
be lower than the royaltiable price set by the provincial-level People's
Committee.
Example 5:
The volume of copper ore exploited by a unit is 1.000 tons (following Example
3). According to the natural resource exploitation license, natural resource
exploitation design dossier and appraisal dossier approved by competent
authorities, the proportion of each substance in the exploited copper ore is as
follows: copper: 60%: silver: 0.2%; and zinc: 0.5%. The royaltiable price of a
unit of pure natural resource set by the provincial-level People's Committee is
VND 8,000.000/ton of copper; VND 600,000,000/ton of silver; and VND
40.000.000/ton of zinc.
Based
on the royaltiable price of a unit of pure natural resource set by the
provincial-level People's Committee and the output of each substance, the
royaltiable price of a unit of each substance shall be determined as follows:
-
For copper ore: 600 tons x VND 8.000.000/ ton = VND 4,800.000.000
-
For silver ore: 2 tons x VND 600.000.000/ ton = VND 1,200,000,000
-
For zinc ore: 5 tons x VND 40.000.000/ton = VND 200.000.000
The
royalty rate applicable to each element in copper ore shall be determined based
on its royaltiable price.
In
case the exploited natural resource is put into processing or production and
after processing, an associated natural resource product is obtained, the
royaltiable price shall be determined as appropriate in each specific case
defined in this Article.
Example 6:
If in the course of iron ore refinement, 0.05 ton of refined copper ore is
obtained per ton of cast iron and sold at VND 8,500.000/ton, the royaltiable
price of 0.05 ton of copper ore will be: 0.05 x VND 8,500.000 = VND 425.000. If
such refined copper ore is not sold, the royaltiable price is the price set by
the provincial-level People's Committee.
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3.
In some cases, the royaltiable price is specifically as follows:
3.1.
For natural water used for hydropower generation, it is the average selling
price of commodity electricity.
The
average selling price of commodity electricity used for calculating royalties
applicable to hydropower producers shall be announced by the Ministry of
Finance.
3.2.
For timber, it is the selling price at the place of delivery (warehouse or yard
at the place of exploitation); if the selling price at the place of delivery
cannot be determined yet, the royaltiable price is that set by the provincial-level
People's Committee under Clause 4 of this Article.
3.3.
For exploited natural resources which are exported, it is the export price (FOB
price) of a unit of natural resource product. For exploited natural resources
which are both domestically consumed and exported, the royaltiable price for
the domestically sold natural resources is the selling price of a unit of
natural resource product, exclusive of value-added tax. while that for the
exported natural resource is the export price.
Natural
resource exploiters shall separately declare outputs of domestically sold
natural resources and exported natural resources in monthly declarations of
payable royalty amounts and royalty finalization declarations according to
regulations.
3.4.
For crude oil and natural gas. it is the selling price determined under Article
14 of this Circular.
3.5.
For natural mineral water, natural thermal water and natural water used for
production or service provision without a selling price, the royaltiable price
shall be set by the provincial-level People's Committee on the principle guided
in Clause 4 of this Article.
4.
For exploiters that do not sell exploited natural resources or fail to fully
observe regulations on accounting books and documents; payers of royalties according
to the assessment method; or for cases in which the output of a natural
resource can be determined at the stage of exploitation but grounds for
determining the market selling price of such natural resource are insufficient
because it has undergone many sorting and consumption stages, the royaltiable
price is the selling price set by the provincial-level People's Committee in
each period.
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Based
on local characteristics and requirements of formulating royaltiable prices,
provincial-level People's Committees shall direct and assign provincial-level
Finance Departments to assume the prime responsibility for, and coordinate with
provincial-level Tax Departments and Natural Resources and Environment
Departments in, drawing up royaltiable price plans for submission to
provincial-level People's Committees for decision.
The
formulation of royaltiable prices must be based on the content, quality and
output of natural resources, the rate of recovered natural resources, and
market selling prices of natural resources in localities where natural
resources are exploited, with reference to the selling prices of natural
resources in surrounding areas.
When
the selling price of a natural resource fluctuates by 20% or more, the
royaltiable price must be adjusted accordingly. Provincial-level Finance
Departments shall assume the prime responsibility for. and coordinate with
provincial-level Tax Departments and Natural Resources and Environment
Departments in, surveying local market prices of natural resources and make plans
to adjust royaltiable prices, then submit them to provincial-level People's
Committees for decision and reporting to the Ministry of Finance (the General
Department of Taxation).
Tax
offices directly managing royalty collection shall post up royaltiable prices
of natural resources at their head offices.
Article 7. Royalty rates
The
royalty rate used for calculating royalties for each exploited natural resource
complies with the Royalty Tariff promulgated together with the National
Assembly Standing Committee's Resolution No. 928/2010/UBTVQH12 of April 19,
2010.
Particularly,
the application of royalty rates to mineral water, natural thermal water and
natural water specified in Section V of the Royalty Tariff promulgated together
with the National Assembly Standing Committee's Resolution No.
928/2010/UBTVQH12 in some cases is specified as follows:
-
Mineral water, natural thermal water and refined natural water, bottled or
canned (including water in large containers which may be bottled or canned) are
liable to the royalty rate applicable to bottled and canned water.
-
In case natural water used for hydropower generation specified at Point 2.
Section V and natural water used for production and business specified at Point
3, Section V also contains mineral water or natural thermal water, but the
design dossier and the production or service provision process approved by
competent authorities show that these production and service provision
activities do not produce bottled or canned mineral water, natural thermal
water or refined water, the applicable royalty rate will correspond to the use
purpose.
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ROYALTY
REGISTRATION, DECLARATION, PAYMENT AND FINALIZATION
Article 8. Royalty registration,
declaration, payment and finalization
1.
The royalty registration, declaration, payment and finalization comply with the
Law on Tax Administration and guiding documents.
2.
Particularly, some cases of petroleum prospecting, exploration and exploitation
are added as follows:
2.1.
In case an organization or individual conducts petroleum survey, exploration
and exploitation activities under different petroleum contracts, royalty
provisions in this Circular shall be separately applied to each petroleum
contract.
2.2.
In case contractors to a petroleum contract in the form of production-sharing
contract or joint-administration contract receive divided contractual shares in
crude oil or natural gas and take responsibility to sell these divided shares,
each party shall declare and pay royalties according to its/his/her divided
shares.
Part IV
ROYALTY
EXEMPTION AND REDUCTION
Article 9. Royalty exemption and
reduction
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1.1.
Royalty payers that suffer natural disasters, fires or accidents, causing
losses of natural resources for which royalties have been declared or paid, may
be considered for exemption from or reduction of the payable royalties for the
lost volumes of natural resources. If royalties have been paid, the paid
royalty amount will be refunded or cleared against the subsequent period's
payable royalty amount.
1.2.
Royalties are exempted for natural marine products.
1.3.
Royalties are exempted for tree branches and tops, firewood and bamboo of all
kinds which individuals are permitted to exploit for their daily needs.
1.4.
Royalties are exempted for natural water used for hydropower generation by
households and individuals for their daily needs.
1.5.
Royalties are exempted for natural water used for agriculture, forestry, fishery
or salt making; natural water exploited by households and individuals for their
daily needs.
1.6
Royalties are exempted for soil exploited and used right in allocated and
leased land areas; and soil exploited for ground leveling and construction of
security and military works and dikes. Soil exploited and used on site which is
exempted from royalty under this Point covers also sand, rock or gravel mixed
in the exploited soil, making it impossible to identify each substance, and
used in crude forms for ground leveling or work construction, including cases
in which soil dug within allocated or leased land areas must be removed. If
soil is exchanged or sold, exploiters shall declare and pay royalties according
to regulations.
1.7
The Ministry of Finance shall assume the prime responsibility for. and
coordinate with relevant ministries and branches in, submitting other cases of
royalty exemption or reduction to the Government for submission to the National
Assembly Standing Committee for consideration and decision.
2.
The order and procedures for royalty exemption or reduction and competence to
decide on royalty exemption or reduction comply with the guidance in Section
II, Part E of the Finance Ministry's Circular No. 60/2007 AT-BTC of July 14.
2007. In some specific cases mentioned below, exploiters are not required to
declare the output of exploited natural resources and the exempted or reduced
royalty amount. Specifically:
2.1.
Exploiters of marine products eligible for royalty exemption are not required
to fill in monthly royalty declaration forms and annual royalty finalization
forms.
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2.3.
Procedures for natural water used for hydropower generation by households and individuals
for their daily needs: Exploiters shall send a written request for royalty
exemption, enclosed with written explanations about equipment for hydropower
generation to meet daily needs and certified by the commune-level People's
Committee. When these equipment is put into use. households shall make
declarations with managing tax offices for enjoying royalty exemption.
2.4.
Procedures for royalty exemption for soil exploited and used in allocated or
leased land areas:
Soil
exploiters (including contractors) shall send a written request for royalty
exemption, enclosed with a certified copy of the decision on land allocation or
land lease and the investor's relevant dossiers on the construction of a work
in the locality approved by a competent agency, to the tax office of the
locality in which the exploitation is carried out for royalty exemption monitoring.
Part V
ROYALTIES
FOR CRUDE OIL AND NATURAL GAS
I. GENERAL PROVISIONS
Article 10. Places of royalty
registration, declaration and payment
1.
Places of royalty registration, declaration and payment (excluding import duty
and export duty) are provincial-level Tax Departments of localities in which
royalty payers' principal executive offices are located.
2.
For petroleum contracts under which exploitation activities have been carried
out before the effective date of this Circular, the places of royalty
registration, declaration and payment comply with the guidance given before the
effective date of this Circular.
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The
royalty period is the calendar year.
-
The first royalty period lasts from the first day of crude oil or natural gas
exploitation till the last day of the calendar year.
-
The last royalty period lasts from the first day of the calendar year till the
day of termination of crude oil or natural gas exploitation.
Article 12. Currencies used for
royalty payment
In
case crude oil or natural gas is sold in US dollar or another freely
convertible foreign currency, the currency used for royalty payment is the US
dollar or that freely convertible foreign currency.
In
case crude oil or natural gas is sold in Vietnam dong, the currency used for
royalty payment is Vietnam dong.
In
case crude oil or natural gas is sold in both the US dollar or another freely
convertible foreign currency and Vietnam dong. the currency used for royalty
payment is Vietnam dong.
The
conversion of US dollar or other freely convertible foreign currencies into
Vietnam dong for royalty payment shall be made at the average inter-bank
foreign exchange rate announced by the Stale Bank of Vietnam at the time of
royalty payment.
Particularly,
exploited crude oil sold to domestic oil refinery units for which separate
guidance of the Finance Ministry has been provided, such guidance shall be
complied with.
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Article 13. Royaltiable output
1.
The whole output of crude oil or natural gas exploited and retained from the
areas under petroleum contracts and measured at the place of delivery (net
crude oil or natural gas output) is liable to royalties.
2.
In case the Vietnamese Government uses the volume of associated gas which is
not exchanged or sold or is burnt off by royalty payers, royalty payers are not
obliged to pay royalties on this volume of associated gas.
3.
In the process of crude oil or natural gas exploitation, if royalty payers are
permitted to exploit other resources liable to royalties, they shall pay
royalties in each specific case guided in this Circular.
Article 14. Royaltiable prices
1.
The royaltiable price of crude oil or natural gas is the selling price at the
place of delivery. The place of delivery is the place agreed in the petroleum
contract in which the ownership over crude oil or natural gas is transferred
between parties to the petroleum contract.
2.
Determination of the royaltiable price of crude oil or natural gas in case crude
oil or natural gas is not sold under arm's length trading contracts
In
case crude oil or natural gas is not sold under arm's length trading contracts,
tax administration authorities (tax offices and customs offices) shall
determine the royaltiable price on the following principles:
-
For crude oil: The royaltiable price is the arithmetic mean of the selling
prices of crude oil of the same category on the international market in 3 weeks
in a row: the week before, the week of and the week after the sale of crude
oil. Royalty payers shall supply tax offices with information on the
composition and quality of crude oil being exploited. When necessary, tax
administration authorities shall refer to the selling prices on the WTI market
(USA), Brent market (UK) and Piatt's market (Singapore) or consult competent
state management agencies to determine the price of crude oil being exploited
by royalty payers.
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Article 15. Determination of payable
royalty amounts
1.
Royalties on crude oil or natural gas shall be determined on the basis of the
partially progressive amounts of the total net crude oil and natural gas output
exploited in each royalty payment period which is calculated based on the daily
average output of crude oil or natural gas exploited under the petroleum
contract, the royalty rate and the number of days of exploitation in the
royalty period.
2.
Determination of the royalty amount payable in crude oil or natural gas:
Royalty amount payable in crude oil
or natural gas
=
Daily output of crude oil or natural
gas liable to royalty in royalty period
x
Royalty rate
x
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In
which:
+
The daily average output of crude oil or natural gas liable to royalty in the
royalty period is the total output of crude oil or natural gas liable to
royalty exploited in the royalty period divided by the number of exploitation
days in the royalty period.
+
The royalty rate is specified in Section 2 of the Royalty Tariff promulgated
together with the
National
Assembly Standing Committee's Resolution No. 928/2010/UBTVQH12 of April 19,
2010.
The
identification of petroleum projects eligible for investment promotion to determine
applicable royalty rates shall be based on the list of petroleum projects
eligible for investment promotion decided by the Prime Minister.
+
The number of days of crude oil or natural gas exploitation in the royalty
period is the number of days of carrying out the exploitation of crude oil or
natural gas in the royalty period, excluding days on which production stops for
any reasons.
Example 7:
Determining royalties payable in crude oil in case of crude oil exploitation:
Presumably:
+
The total output of royalty-liable crude oil exploited in the royalty period is
72,000,000 barrels
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+
The daily average output of royalty-liable crude oil in the royalty period is
200,000 barrels (72,000.000 barrels: 360 days)
+
Crude oil is exploited under a contract outside the list of projects eligible
for investment promotion (in case crude oil is exploited under a contract on
the list of projects eligible for investment promotion, the payable royalty
amount shall be calculated similarly at a royalty rate applicable to projects
eligible for investment promotion)
The
royalty amount payable in crude oil in the royalty period is:
{(20.000
x 10%) + (30,000 x 12%) + (25,000 x 14%) + (25,000 x 19%) + (50,000 x 24%) +
(50.000 x 29%)} x 360 days = 14.526,000 barrels
Example 8:
Determining royalties payable in natural gas in case of natural gas
exploitation: Presumably:
+
The total output of royalty-liable natural gas exploited in the royalty period:
3.960.000,000 m3
+
The number of days of production in the royalty period is 360
+
The daily average output of royalty-liable natural gas in the royalty period is
11,000.000 m3 (3,960,000,000 m3 : 360 days)
+
Natural gas is exploited under a contract outside the list of projects eligible
for investment promotion (in case natural gas is exploited under a contract on
the list of projects eligible for investment promotion, the payable royalty
amount shall be calculated similarly at a royalty rate applicable to projects
eligible for investment promotion).
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{(5.000.000
x 2%) + (5.000,000 x 5%) + (1,000,000 x 10%)} x 360 days = 162,000,000 m3
Article 16. Declaration and payment of
temporarily calculated royalties
1.
Determination of the temporarily calculated royalty amount:
Temporarily-calculated royalty
percentage amount
=
Output of crude oil or natural gas actually
sold
x
Price for Temporarily royalty
calculation
x
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In
which:
+
The output of crude oil or natural gas actually sold is the output of crude oil
or natural gas liable to royalty actually sold.
+
The price for temporary royalty calculation is the selling price of crude oil
or natural gas at the place of delivery upon each sale under an arm’s length
trading contract, exclusive of value-added tax.
+
The temporarily calculated royalty percentage shall be determined as follows:
Temporarily-calculated royalty
percentage
=
Royalty amount to be paid in crude
oil or natural gas in the royalty period
x
100%
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+
The royalty amount to be paid in crude oil or natural gas in the royalty period
is determined under the guidance in Article 15 of this Circular on the basis of
the output of crude oil or natural gas liable to royalty projected to be
exploited in the royalty period and the projected number of exploitation days
in the royalty period;
+
The output of crude oil or royally-liable natural gas projected to be exploited
in the royalty period is the output of crude oil or royalty-liable natural gas
to be exploited in the royalty period.
Based
on the output of crude oil or natural gas liable to royalty projected to be
exploited every year and the royalty tariff applicable to crude oil or natural
gas. royalty payers shall determine the temporarily calculated royalty
percentage of each year and notify it to local tax offices with which they make
royalty registration not later than December 1 of the previous royalty period.
If
there is any change in the projected crude oil or natural gas output and the
projected number of days of petroleum exploitation in the last 6 months of the
year, leading to an increase or a decrease by at least 15% of the temporarily
calculated royalty percentage already notified to tax offices, royalty payers
shall determine and notify the new temporarily calculated royalty percentage to
tax offices before May 1 of this year.
Example 9:
Determining the temporarily calculated royalty percentage:
-
Determining the temporarily calculated royalty percentage for crude oil:
Presumably:
+
The total output of crude oil liable to royalty projected to be exploited in
the royalty period is 72,000,000 barrels.
+
The projected number of exploitation days in the royalty period is 360.
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+
The royalty amount projected to be paid in the royalty period (determined under
the guidance in Article 16 of this Circular) is 14.526.000 barrels.
The
temporarily calculated royalty percentage for crude oil exploitation is:
-
Determining the temporarily calculated royalty percentage for natural gas:
-
Presumably:
+
The total output of natural gas liable to royalty exploited in the royalty
payment period is 3.960,000.000 m3.
+
The number of production days in the royalty payment period is 360.
+
The daily output of natural gas liable to royalty in the royalty payment period
is 11.000.000 m3/day (3.960.000.000 m3: 360 days).
+
The royalty amount projected to be paid in the royalty period (determined under
the guidance in Article 16 of this Circular) is 162,000,000 m\
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2.
Declaration and payment of temporarily calculated royalties:
2.1.
For crude oil exploitation:
2.1.1.
The royalty declaration dossier is the temporarily calculated royalty return,
made according to form No. 01/TAIN-DK issued together with this Circular (no!
printed herein).
2.1.2.
The deadline for submission of the temporarily calculated royalty declaration
dossier is the 35th day counting from the date of sale (for crude oil sold on
the domestic market) or the day the customs office gives certification of the
exported crude oil. In case the 35th day falls on a Saturday. Sunday, holiday
or new-year day (collectively referred to as holiday), the deadline for
submission of the royalty calculation dossier is the day following that
holiday.
2.1.3.
The deadline for payment of temporarily calculated royalties is the deadline for
submission of the temporarily calculated royalty declaration dossier.
2.2.
For natural gas exploitation
2.2.1.
The royalty declaration dossier is the temporarily calculated royalty return,
made according form No. 01/TAIN-DK issued together with this Circular (not
printed herein).
2.2.2.
The deadline for submission of temporarily calculated royalty declaration dossiers
is the 20th every month. In case the 20th day falls on a holiday, the deadline
for submission of royalty declaration dossiers is the day following that
holiday.
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Article 17. Royalty finalization
1.
For crude oil exploitation:
1.1.
Determination of the payable royalty amount:
1.1.1.
Determination of royalties to be paid in crude oil in the royalty period:
Royalties to be paid in crude oil in
the royalty period
=
Daily output of crude oil liable to
royalties in the royalty period
x
Royalty rate
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Number of days of crude oil
exploitation in the royalty period
1.1.2.
Determination of the percentage of royalty in crude oil of the exploitation
output in the royalty period:
Percentage of royalties in crude oil
paid in the royalty period
=
Royalties in crude oil to be paid in
the royalty period
x
100%
Exploited output of crude oil in the
royalty Period
1.1.3.
Determination of royalties in crude oil sold in the royalty period:
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=
Volume of sold crude oil
x
Volume of sold x crude oil
x
Percentage of royalties in crude oil
in the royalty period
1.1.
4. Determination of the payable amount from the sale of royalties in crude oil
in the royalty period:
Payable amount from the sale of
royalties in crude oil in the royalty period
=
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x
Price for calculation of royalties
on crude oil
In
which:
+
Royalties in crude oil sold in the royalty period shall be determined under the
guidance at Point 1.1.3. Clause 1 of this Article;
+
The price for calculation of royalties on crude oil is the weighted average
price of crude oil sold at places of delivery under arm's length trading
contracts in the royalty period, exclusive of value-added tax.
1.1.5.
Determination of royalties payable in crude oil not yet sold in the royalty
period for use as a basis for finalization of royalties in crude oil to be paid
in the subsequent royalty period:
Royalties in crude oil not yet sold
in the royalty period
=
Royalties in crude oil not yet sold
in the previous royalty period
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Royalties in crude oil to be paid in
royalty period
_
Royalties in crude oil sold in
royalty period
In
case crude oil is not sold under arm's length trading contracts, the
royaltiable price shall be determined under Clause 2, Article 14 of this Circular.
Example 10:
Determining the royaltiable price:
Presumably:
The crude oil output in the royalty period (4.000.000 barrels) is sold out in
three lots: lot 1 of 2,000,000 barrels at the price of USD 65/barrel; lot 2 of
1.000.000 barrels at the price of USD 68/barrel; lot 3 of 1,000,000 barrels at
the price of USD 70/barrel.
Price for calculation of royalties
on crude oil
_
(2,000,000x 65)+ (1,000,000 x 68) +
(1,000,000x 70)
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USD 67/barrel
4,000,000
1.1.6.
Determination of the deficient (surplus) amount from the sale of royalties in
crude oil in the royalty period:
Deficient (surplus) amount from the
sale of royalties in crude oil in the royalty period
=
Payable amount from the sale of royalties
in crude oil to be paid in the royalty period
x
Temporarily Calculated royalty amount
already paid in the royalty period
In
which:
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+
The temporarily calculated royalty amount already paid in the royalty period is
the total temporarily calculated royalty amount already paid according to the
submitted list of temporarily calculated royalties (made according to form No.
02-2/TAIN-DK issued together with this Circular - not printed herein).
1.2.
Royalty declaration and payment according to royalty finalization dossiers:
1.2.1.
A dossier of royalty finalization comprises:
-
Aroyalty finalization return, made according to form No. 02/TAIN-DK issued
together with this Circular (not printed herein);
A
list of outputs and sales of crude oil or natural gas exploited in the royalty
period, made according to form No. 02-1/TAIN-DK issued together with this
Circular (notprinted herein);
A
list of temporarily calculated royalty amounts in the royalty period, made
according to form No. 02-2/TAIN-DK issued together with this Circular.
1.2.2.
Time limits for submission of royalty finalization dossiers:
-
90 days from the last day of the calendar year.
-
45 days from the date of termination of the petroleum contract.
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1.2.3.
Royalty payment according to royalty finalization dossiers:
Based
on royalty finalization dossiers:
-
If the temporarily calculated royalty amount in the royalty period is larger
than the payable royalty amount, the surplus amount shall be cleared against
the payable royalty amount in the next payment of temporarily calculated
royalties or royalty payers shall carry out procedures for the refund of the
surplus royalty amount under current regulations on tax administration, if
there is no subsequent royalty payment period.
-
If the temporarily calculated royalty amount in the royalty period is smaller
than the payable royalty amount, royalty payers shall pay the deficient amount
to state treasuries within the time limit for submission of royalty
finalization dossiers.
2.
For natural gas exploitation:
2.1.
Determination of the payable royalty amount:
2.1.1.
Determination of royalties to be paid in natural gas in the royalty period:
Royalties in natural gas to be paid
in the royalty period
=
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x
Royalty rate
x
Number of days of natural gas
exploitation in the royalty period
2.1.2.
Determination of payable amounts from the sale of royalties in natural gas in
the royalty period:
Payable amount from the sale of
royalties in natural gas to be paid in the royalty period
=
Royalties in natural gas to be paid
in the royalty period
x
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In
which:
+
Royalties in natural gas to be paid in the royalty period shall be determined
under Point 2.1.1, Clause 2 of this Circular.
+
The price for calculation of royalties on natural gas is the selling price
under an arm's length trading contract at the place of delivery in the royalty
period, exclusive of value-added tax.
In
case natural gas is not sold under an arm's length trading contract, the
royaltiable price shall be determined under Clause 2. Article 14 of this
Circular.
2.1.3.
Determination of the deficient (or surplus) amount from the sale of royalties
in natural gas to be paid in the royalty period:
Deficient (or surplus) amount from
the sale of royalties in natural gas to be paid in the royalty period
=
Payable amount from the sale of
royalties in natural gas to be paid in the royalty period
x
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In
which:
+
The payable amount from the sale of royalties in natural gas to be paid in the
royalty period shall be determined under Point 2.1.3, Clause 2 of this Article.
+
The temporarily calculated royalty amount already paid in the royalty period is
the total temporarily calculated royalty amount already paid according to the
submitted list of temporarily calculated royalty amounts (made according to
form No. 02-2/TAIN-DK issued together with this Circular - not printed herein).
2.2.
Royalty declaration and payment according to royalty finalization dossiers:
2.2.1.
A dossier of royalty finalization comprises:
-Aroyalty
finalization return, made according to form No. 02/TAIN-DK issued together with
this Circular (not printed herein);
-
A list of outputs and sales of crude oil or natural gas exploited in the
royalty period, made according to form No. 02-1/TA1N-DK issued together with
this Circular (not printed herein);
-
A list of temporarily calculated royalty amounts already paid in the royalty
period, made according to form No. 02-2/TAIN-DK issued together with this
Circular (not printed herein).
2.2.2.
Time limits for submission of royalty finalization dossiers:
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-
45 days after the date of termination of the petroleum contract.
In
case the 90th or 45,h day falls on a holiday, the deadline for submission of
royalty finalization dossiers is the day following that holiday.
2.2.3.
Royalty payment according to royalty finalization dossiers:
Based
on royalty finalization dossiers:
-
If the temporarily calculated royalty amount in the royalty period is larger
than the payable amount, the surplus amount may be cleared against the payable
amount in the next payment of temporarily calculated royalties or royalty
payers shall carry out procedures for the refund of the surplus amount under
current regulations on tax administration, if there is no subsequent royalty
payment period.
-
If the temporarily calculated royalty amount in the royalty period is smaller
than the payable amount, royalty payers shall pay the deficient amount to state
treasuries within the time limit for submission of royalty finalization
dossiers.
Part VI
ORGANIZATION
OF IMPLEMENTATION
Article 18. Effect
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Law
on Petroleum, are annulled.
For
natural resource outputs which are exploited before July 1. 2010. but not yet
consumed or put into subsequent production or processing processes, royalties
shall be declared under legal documents on royalties which are effective prior
to July 1, 2010.
2.
For investment projects or petroleum contracts signed prior to July 1,2010,
with royalties specified in their investment licenses, investment certificates
or petroleum, the provisions of these investment licenses, investment
certificates or petroleum contracts apply. In case royalty incentives indicated
in investment licenses, investment certificates or petroleum contracts are
lower than those provided in this Law, the royalty incentives provided in this
Law will apply for the remaining duration of the projects or contracts.
Any
problems arising in the course of implementation should be promptly reported to
the Ministry of Finance for study and timely settlement.-
FOR THE MINISTER OF FINANCE
DEPUTY MINISTER
Do Hoang Anh Tuan