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MINISTRY OF FINANCE
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.: 36/2016/TT-BTC
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Hanoi, 26/2/2016
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CIRCULAR
GUIDING
THE IMPLEMENTATION OF REGULATION ON TAX TO ORGANIZATIONS AND INDIVIDUALS
CONDUCTING THE SEARCH, EXPLORATION AND EXTRACTION OF OIL AND GAS ACCORDING TO
REGULATION OF PETROLEUM LAW
Pursuant to the Petroleum Law dated
06/07/1993 and the Law amending and adding some articles of the Petroleum Law
No.19/2000/QH10 dated 09/06/2000 and other guiding documents;
Pursuant to the Law on Taxation and
the current guiding documents;
Pursuant to the Law on Tax
Administration No. 78/2006/QH11 dated 29/11/2006 and the Law amending and
adding some articles of the Law on Tax Administration No. 21/2012/QH13 dated 20/11/2012,
the Law No. 71/2014/QH13 dated 26/11/2014 amending and adding some articles of
the tax Laws and the Decrees of the Government detailing the implementation;
Pursuant to the Decree No.
33/2013/ND-CP dated 22/4/2013 of the Government issuing the sample contract of
petroleum production sharing Contract;
Pursuant to Decree No. 215/2013 /
ND-CP dated 23/12/2013 of the Government stipulating the functions, tasks,
powers and organizational structure of the Ministry of Finance;
Considering the recommendations of
General Director of General Department of Taxation
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Chapter I
GENERAL
PROVISIONS
Article 1. Scope of
application
1. This Circular guides the
regulations on tax to the organizations and individuals (hereafter referred to
as contract) conducting the search, exploration and extraction of crude oil and
condensate ((hereafter collectively referred to as crude oil) and natural gas,
associated gas, coal gas (hereinafter referred to as natural gas) in Vietnam
under the provisions of the Petroleum Law; and the parties affiliated with the
contractor engaged in petroleum contracts.
The parties having the above
affiliate are the parties having the relation like one of the following cases:
- One party directly or indirectly
participating in operation, control, capital contribution or investment in any
form in the other party;
- The parties are under direct or
indirect operation, control, capital contribution or investment in any form
from another party;
- The parties directly or indirectly
participating in operation, control, capital contribution or investment in any
form in another party;
2. This Circular does not apply to the search, exploration and
development of oilfield and oil extraction of joint venture Vietnam - Russia
"Vietsovpetro" from lot 09-1 in accordance with the provisions in the
Agreement 2010 and the Protocol 2013 between the Government of Vietnam and the
Russian Federation except for the tax provisions for the transfer of rights to
participate in petroleum contracts provided for in Section 4 of this Circular.
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1. The taxpayers are the contractors involved in petroleum
contracts.
The taxpayers authorize the operators, joint-venture
businesses, joint operating companies to make tax declaration and the taxpayers
shall pay their prescribed taxes by themselves or the taxpayers authorize the
operators, joint-venture businesses, joint operating companies to make the
prescribed tax declaration and payment.
2. Where the petroleum contract has the agreement
that the Vietnam Oil and Gas Group shall make payment of tax on behalf of
contractors, it may authorize the operators, joint-venture businesses, joint
operating companies to make tax declaration and the Group shall make payment of
prescribed tax; or the Vietnam Oil and Gas Group shall authorize the operators,
joint-venture businesses, joint operating companies to make prescribed tax
declaration and payment.
3. For the transfer of rights to participate
petroleum contracts, the taxpayers shall comply with the instructions specified
in Article 23, Section 4, Chapter II of this Circular.
Article 3. Currency for tax
declaration and payment
1. The currency for tax declaration and payment
guided in this Circular including the natural resources tax, export tax,
corporate income tax and benefit transfer tax for participating in petroleum
contract is the US dollar.
2. Where the crude oil and natural gas are sold in
Vietnamese market, the selling price is determined on US dollar basis, the
currency used to pay tax is Vietnamese dong.
The conversion from US dollar into Vietnam dong to
calculate and pay tax is based on the buying exchage rate by transfer form of
Head Office of Commercial Bank for Foreign Trade of Vietnam at the time of
invoice preparation.
3. Where the crude oil and natural gas are sold and
collected in US dollar but the taxpayers make payment of tax in Vietnamese dong
as stipulated by the Government, the currency used to pay tax is the Vietnamese
dong.
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Article 4. Location of tax
registration, declaration and payment
1. The location of tax registration, declaration and
payment (except for import tax and export tax) is the local Department of
Taxation where the head office or administrative office of operators,
joint-venture businesses, joint operating companies are located.
2. For petroleum contracts with extraction before the
issue of this Circular, the location for tax declaration and payment is in
accordance with the instructions before the effective date of this Circular.
Article 5. Principles to
determine the taxable price
1. For crude oil, the taxable price as stipulated in this Circular is the
selling price of crude oil at the delivery place determined as per fair
transactions.
“Fair transaction” is the sale in
Vietnamese market and international market in the currency freely convertible
between sellers and buyers voluntarily and without relation but not including
the sale by one party to its one branch, sale between the governments or
organizations owned by the government or exchange transactions or barter and
the times of sale not based on the international free market.
"Place of delivery" is the
place where oil and gas touches the outer flange of oil tanker or means of
storage used to take or consume petroleum or other places agreed by the parties
in petroleum contract where the petroleum whose ownership is transferred to the
parties involved in the petroleum contract.
Where the crude oil is not sold as per fair transactions, the taxable price to
the crude oil is the average selling price of the month of crude oil sale of
the same type or equivalent in the international market. The taxpayers must
provide the tax agency with information about the components and quality of
crude oil under extraction. In case of necessity, the tax agency shall refer to
the selling price in US market (WTI),
UK market (Brent) or Singapore market (Platts) or consult the competent state
authorities about the determining the crude oil price under extraction of the
taxpayers.
2. The natural gas, the taxable price is the selling price of
natural gas at the delivery place, determined under the natural gas sale
contract and approved by the Prime Minister and in accordance with the
agreement in the petroleum contract taking into account the time of calculating
the market price and other factors (if any). In case of necessity, the tax
agency shall consult the competent state authorities about the determining the
natural gas price under extraction of the taxpayers.
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1. Where one organization or individual conducting the
petroleum search, exploration and extraction under many different petroleum
contracts, the taxation under the instructions in this Circular is done
separately under each petroleum contract.
2. The instructions on tax administration not specified in this
Circular shall be followed under the current regulations of law on taxation and
the guiding documents.
Chapter II
INSTRUCTIONS
ON COMPLIANCE WITH REGULATIONS ON TAX
SECTION 1. NATURAL
RESOURCES TAX
Article 7. Subjects of
natural resources tax
1. The subjects of natural resources tax are the total output
of crude oil and natural gas actually extracted and obtained from the petroleum
contract area and metered at the delivery place (actual oil and gas output).
2. Where the Government of Vietnam use the associated gas of the
taxpayer without exchange or sale for money, the taxpayers shall not have to
pay the natural resources tax to such volume of associated gas.
3. If during the extraction of crude oil and natural gas, the
taxpayers are allowed to extract the other natural resources subject to the
natural resources tax, they shall pay the natural resources tax to each
specific case in accordance with the provisions in the Law on natural resources
tax and the guiding documents.
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- Where the petroleum contract has no agreement or
does have the implementation agreement under the current regulation or
agreement upon quarterly allocation of output of oil and natural gas
actually extracted into the oil, gas and natural resources temporarily
calculated at the time of oil and gas extraction and finally adjusted after the
end of year, the tax period is calendar year.
- Where the petroleum contract has agreements on
quarterly allocation of output of oil and natural gas actually extracted into the
oil, gas and natural resources for tax payment temporarily calculated at the
time of oil and gas extraction and finally adjusted after the end of quarter,
the agreements in the petroleum contract shall apply (the quarterly tax
period).
- The first period of natural resources tax starts from the first date of
extraction of crude oil and natual gas to the end date of calendar year or
quarter.
- The last period of natural resources tax starts from the first date
of calendard year or the first date of quarter to the end date of extraction of
crude oil and natural gas.
Article 9. Determining
the natural resources tax payable
1. The natural resources tax to the crude oil and natural gas is
determined on the partially progressive basis of output of crude oil and
natural gas extracted average daily of the total output of crude oil and
natural gas actually extracted in each taxation period from the petroleum
contract area, tax rate of natural resources tax and a number of days of actual
extracted in the tax period.
2. Determining the natural resources tax by crude oil or
natural gas to be paid:
Natural resources tax by crude oil
or natural gas to be paid
=
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x
Tax rate of natural
resources tax
x
Number of days of actual
extraction of crude oil or natural gas in the tax period
In which:
+ The output of crude oil or natural
gas subject to average daily natural resources tax average daily in the tax
period is the total output of crude oil or natural gas subject to natural
resources tax for extraction in the tax period divided by the number of days of
actual extraction in the tax period.
+ The tax rate of natural resources
tax: follow the regulations of law on natural resources tax. Where the
petroleum contract was signed before the 01/07/2010 with specific agreement on
the tax rate of natural resources tax, such agreements in the signed petroleum
contract shall apply.
The determination of encouraged investment
projects in oil and gas as a basis for application of tax rate of natural
resources tax based on the list of projects with encouraged investment in oil
and gas shall be decided by the Prime Minister.
+ A number of days of actual
extraction of crude oil or natural gas in the tax period is a number of days of
extraction of crude oil or natural gas in the tax period minus the days of stop
of production on the entire contract area due to any cause.
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Assuming that:
+ The total output of crude oil
subject to the natural resources tax is extracted in the tax period: 12,000,000
barrels.
+ Number of production days in the
tax period: 75 days.
+ Average daily output of crude oil
subject to the natural resources tax in the tax payment period: 160,000
barrels/days (12,000,000 barrels: 75 days).
+ The crude oild is extracted from
the contract not included in the list of encouraged investment projects
(where the crude oil is extracted from the contract included in the list of
projects with encouraged investment, follow the method of calculation similar
with the tax rate of natural resources tax applicable to the encouraged investment
projects).
The natural resources tax by crude
oil to be paid in the tax payment period is determined as follows:
{(20,000 x 10%) + (30,000 x 12%) +
(25,000 x 14%) + (25,000 x 19%) + (50,000 x 24%) + (10,000 x 29%)} x 75 ngày =
2,156,250 barrels.
Ex 2: Determining the natural
resources tax by natural gas to be paid in case of extraction of natural gas
(quarterly as assumed)
Assuming that:
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+ Number of production days in the
tax period: 75 days.
+ Average daily output of natural
gas subject to the natural resources tax in the tax payment period: 11,400,000
m3/day (= 855,000,000 m3 : 75 days).
+ The natural gas is extracted from
the contract not included in the list of encouraged investment projects.
The natural resources tax by natural
gas to be paid in the tax period is determined as follows:
{(5,000,000 x 2%) + (5,000,000 x 5%)
+ (1,400,000 x 10%)} x 75 days = 36,750,000 m3.
Article 10. Determining
the provisional natural resources tax
1. The natural resources tax to be
paid entirely by crude oil, natural gas or in cash or partially in cash and
partially by crude oil or natural gas:
Where the natural resources tax is
paid by crude oil or natural gas, the tax agency shall notify the taxpayers in
writing 06 months in advance and provide specific instructions on declaration
and payment of natural resources tax by crude oil or natural gas.
2. Determining the provisional natural resources tax:
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=
Output of crude oil or natural gas
actually sold
x
Price of natural resources tax
x
Percentage of provisional natural
resources tax
In which
+ The output of crude oil actually
sold is the output of crude oil subject to natural resources tax according to
each time of sale;
+ The output of natural gas actually
sold is the output of natural gas subject to natural resources tax sold each
month;
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+ Price of natural resources tax to
the natural gas is the selling price at the delivery place according to each
month of sale with VAT excluded (if any);
Where the taxpayers can separate the cost of
transportation of natural gas on the invoice, the price of natural resources
tax to the natural gas is the selling price at the delivery place according to
each month of sale, not including the cost of transportation and VAT (if any).
Where the crude oil is not sold as per fair transactions, the price of natural
resources tax is determined as guided in Clause 1, Article 5 of this Circular.
+ The proportion of provisional
natural resources tax is determined as guided as follows:
Proportion of provisional natural
resources tax
=
The natural resources tax by crude
oil, natural gas to be paid in the tax period
x 100%
Output of crude oil or natural gas
subject to the natural resources tax in the tax period
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+ The output of crude oil or natural
gas subject to the natural resources tax to be extracted in the tax period is
the output of crude oil or natural gas subject to the natural resources tax to
be extracted in the tax period.
3. The time limit for the taxpayers
to submit the notice of provisional tax payment rate under the Form of report
on output of oil expected to be extracted and the provisional tax payment rate
No. 01/BCTL-DK issued with this Circular as follows:
- Where the petroleum contract has
agreements on period of natural resources tax by year, based on the output of
crude oil or natural gas expected to be extracted for the following year, the
taxpayer shall determine the provisional natural resources tax rate and notify
the local tax agency where the tax has been registered no later than 01/12 of
the tax period of tax period.
In the tax period, where the
expected output of crude oil or natural gas and expected number of extraction
days for the last 06 months have changed resulted in the increase or reduction
in the provisional natural resources tax rate from 15% or more compared with
the provisional natural resources tax rate which has informed to the tax
agency, the taxpayers must determine and notify the new provisional natural resources
tax rate to the tax agency no later than 01/05 of that year.
- Where the petroleum contract has
agreements on period of natural resources tax by quarter, based on the output
of crude oil or natural gas expected to be extracted for the following quarter,
the taxpayer shall determine the provisional natural resources tax rate and
notify the local tax agency where the tax has been registered no later than the
first date of month preceeding the following quarter.
- Where the petroleum contract begins to be put into
commercial operation, the taxpayers must determine and inform the provisional natural
resources tax rate to the tax agency when making declaration and payment of
provisional natural resources tax to the first shipment of crude oil or natural
gas extracted and sold within the contract area.
Ex 3: Determining the provision natural resources tax
(based on annual tax period):
- Determining the provision natural resources tax to
the crude oil:
Assuming that:
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+ Expected number of days of extraction: 360 days.
+ Average daily output of crude oil subject to the natural
resources tax in the year: 200,000 thùng/day (72,000,000 barrels: 360 days).
+ The natural resources tax is expected to be paid in
the year (determined as guided in Article 9 of this Circular): 14,526,000
barrels.
The percentage of provisional natural
resources tax from extraction of crude oil is:
14,526,000
x 100% = 20,1750%
72,000,000
- Determining the percentage of provisional natural
resources tax to the natural gas:
Assuming that:
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+ Expected number of days of
extraction: 360 days.
+ Average daily output of natural
gas subject to the natural resources tax in the year: 11,000,000 m3/
day(3,960,000,000 m3: 360 days).
+ The natural resources tax is
expected to be paid in the year (determined as guided in Article 9 of this
Circular): 162,000,000
m3.
The percentage of provisional natural
resources tax from extraction of natural gas is:
162,000,000
x 100% = 4.0909%
3,960,000,000
Article 11. Finalization
of natural resources tax
1. For extraction of crude oil:
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a.1) Determining the natural
resources tax by crude oil to be paid in the tax period:
Natural resources tax by crude oil
to be paid in the tax period
=
Output of crude oil subject to the
average daily natural resources tax in the tax period
x
Tax rate of the natural resources
tax
x
Number of days of actual
extraction in the tax period
a.2) Determining the natural
resources tax by crude oil compared with the output of crude oil extracted in
the tax period:
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=
Natural resources tax to be paid
in the tax period
x
100%
Output of crude oil extracted in
the tax period
a.3) Determining the natural
resources tax by crude oil in the tax period:
Natural resources tax by crude oil
sold in the tax period
=
Output of crude oil sold
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Percentage of natural resources tax in
the tax period
a.4) Determining the amount to be
paid from sale of natural resources tax by crude oil in the tax period
Amount to be paid from sale of
natural resources tax by crude oil in the tax period
=
Natural resources tax by crude oil
sold in the tax period
x
Price for calculation of natural
resources tax to crude oil
In which:
+ The natural resources tax by crude
oil sold in the tax period is determined as guided under Point a.3, Clause 1 of
this Article;
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Where the crude oil is not sold as per fair transactions,
the price for calculation of natural resources tax is determined as guided in
Clause 1, Article 5 of this Circular.
a.5) Determining the natural
resources tax by crude oil not sold in the tax period as a basis for
finalization of natural resources tax by crude oil to be paid for the next tax
period:
Natural resources tax by crude oil
not sold in the tax period
=
Natural resources tax by crude oil
not sold in the previous tax period
+
Natural resources tax by crude oil
to be paid for the tax period
-
Natural resources tax by crude oil
paid in the tax period
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Assuming that the output of crude
oil sold in the tax period is (4,000,000 barrels) sold into 03 lots: lot 1 with
output of 2,000,000 barrels sold at 108 USD/barrel; lot 2 with outout of
1,000,000 barrels sold at 120 USD/ barrel; lot 2 with outout of 1,000,000
barrels sold at 100 USD/ barrel;
Price for calculation of natural
resources tax to crude oil
=
(2,000,0000 x 108) + (1,000,0000 x
120) + (1,000,0000 x 100)
=
109 USD/ barrel
4,000,000
2. For extraction of natural gas:
a) Determining the natural resources
tax to be paid:
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Natural resources tax by natural
gas to be paid in the tax period
=
Output of natural gas subject to
average daily natural resources tax in the tax period
x
Tax rate of natural resources tax
x
Number of actual extraction of
natural gas in the tax period
a.2) Determining the amount to be
paid from the sale of natural resources tax by natural gas in the tax period:
Amount to be paid from the sale of
natural resources tax by natural gas in the tax period
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Natural resources tax by natural
gas to be paid in the tax period
x
Price for calculation of natural
resources tax to natural gas
In which:
+ The natural resources tax by
natural gas to be paid in the tax period is determined as guided under Point
a.1, Clause 2 of this Article;
+ The price for calculation of
natural resources tax to natural gas is the weighted average of natural gas at
the delivery place in the tax period with VAT excluded.
Where the taxpayers can separate the cost of
transportation of natural gas on the invoice, the price of natural resources
tax to the natural gas is the selling price at the delivery place according to
each month of sale, not including the cost of transportation and VAT (if any).
Article 12. Making
declaration and payment of natural resources tax for the extraction and sale of
crude oil and natural gas
1. Declaration and payment of
provisional natural resources tax
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- Dossier of declaration of natural
resources tax is the Declaration of provisional natural resources tax under the
Form No. 01/TAIN – DK issued with this Circular.
- The detailed Appendix of tax
obligations of petroleum contractor is under the Form No. 01/PL-DK issued with
this Circular.
b) Time limit for declaration and
payment of provisional natural resources tax:
- The declaration of provisional natural resources tax for the
extraction and sale of crude oil is done with each time of sale.
The time limit for submission of dossier of
declaration and payment of provisional natural resources tax for crude oil as per each
time of sale is no later than the 35th date from the first date of sale of
crude oil (for the crude oil locally sold and exported). The date of sale is
the date of completion of sale of crude oil at the place of delivery.
- The declaration of provisional natural resources tax of
extraction and sale of natural gas is done monthly.
The time limit for submission of Dossier of
declaration and payment of provisional natural resources tax of monthly extraction of natural gas:
no later than the 20th date (twenty) of the month succeeding the month of issue
of gas sale invoice.
2. Declaration of finalization of natural resources
tax:
a) The Dossier of declaration of finalization of natural
resources tax of
extraction and
sale of crude oil and natural gas:
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- Detailed appendix of tax obligations of oil
contractors is
the Form No.
01/PL-DK issued with this Circular.
- Appendix of output and revenues from sale of oil is the Form No. 02-1/PL-DK issued with
this Circular.
b) The time limit for submission of Dossier of
declaration of finalization of natural resources tax of extraction and sale of crude oil and
natural gas:
- The time limit for submission of Dossier of declaration of
finalization of natural resources tax of extraction and sale of crude oil and natural gas is no later
than the 90th date (ninety) of the period succeeding the period with incurred
tax obligations.
- No later than the 45th date (forty five) from the
end date of petroleum contract.
3. Where the end date of time limit for declaration and payment of tax
coincides with the prescribed holidays, the end date of the time limit is the
working date succeeding the holiday.
Section 2. EXPORT TAX AND
IMPORT TAX
The taxpayers shall make declaration and payment of
export tax and import tax in accordance with regulations of law on export tax
and import tax and the law on tax administration. In addition, the Ministry of
Finance provides some specific instructions as follows:
Article 13. Export tax
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Provisional export tax
=
Output of crude oil and natural gas
exported
x
Price for calculation of export
tax
x
Percentage of provisional export tax
In which:
+ The output of crude oil and
natural gas exported is the output of crude oil and natural gas actually
exported.
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- The percentage of provisional export tax is
determined as follows:
Percentage of provisional export tax
=
100%
-
Percentage provisional natural
resources tax in the tax period
x
Tax rate of export tax of crude
oil and natural gas
In which:
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+ The tax rate of export tax of
crude oil and natural gas is based on the current export tariff. Where there
are specific agreements in petroleum contract on tax rate of export tax, the
tax rate of export tax as agreed in such petroleum contract shall apply.
Ex 5: Determining the percentage of
provisional export tax of crude oil:
Assuming that:
+ The percentage provisional natural
resources tax according to the example in Article 10 mentioned above is:
20,1750%.
+ The tax rate of export tax of
crude oil based on the current export tariff: 10%.
+ The percentage of provisional
export tax of crude oil: 7,9825% = (100% - 20,175%) x 10%.
Based on the percentage provisional
natural resources tax, the tax rate of export tax of the crude oil, the
taxpayers shall determine the percentage of provisional export tax of each
petroleum contract and inform the customs where the crude oil is exported and
the tax agency where the tax is registered with the time limit for notice of
percentage provisional natural resources tax and the percentage of provisional
corporate income tax.
2. In case of finalization of
natural resources tax, the output of crude oil or natural gas actually
extracted or sold has changed compared with the output of crude oil or natural
gas expected to be extracted in the tax period resulted in the change of
percentage of natural resources tax, the taxpayers shall, based on the
percentage of natural resources tax as finalized to re-determine the percentage
of export tax on the principles as guided in Clause 1, Article 13 of this
Circular and make declaration and adjustment in accordance with the current
instructions of the law on export tax and import tax and the law on tax
administration.
Where the amount of export tax
temporarily paid is smaller than the amount of export tax to be paid, the
taxpayers shall pay the difference amount between the export tax to be paid in
proportion with the export tax re-determined and the percentage of provisional
export tax at the time of finalization of natural resources tax, and shall not
have to make the late payment over such difference amount to be paid.
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Article 14. Exemption of
export tax
The exemption of export tax to the
imported goods in service of search, exploration and extraction of oil and gas
shall comply with the current regulations of law on export tax and import tax
and the law on tax administration.
Section 3. CORPORATE
INCOME TAX
Article 15. Subjects of corporate
income tax
1. The income from extraction of
crude oil and natural gas and other incomes directly pertaining to the
petroleum activities are the subjects of corporate income tax as guided in this
Circular.
2. The income from other business
and production activities and other incomes other than the income specified in
Clause 1 of this Article (hereafter referred to as other incomes) are the
subjects of corporate income tax as guided in the current legal document on
corporate income tax.
Article 16. Period of
corporate income tax
1. The period of corporate income
tax is the calendar year. Where the taxpayers apply the financial year
different from the calendar year approved by the Ministry of Finance, the tax
period is the financial year.
2. The first period of corporate
income tax is from the first date of search, exploration and extraction of oil
and gas to the end date of calendar year or financial year.
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4. Where the tax period of the first
year and the tax period of the last year have the period of time shorter than
03 months, they can be added the tax period of the following year or the tax
period of the previous year to form a tax period of corporate income tax. The
taxperiod of corporate income tax of the first year or the last year must not
exceed 15 months.
Article 17. Determining
the taxable income
1. For the income from extraction of
crude oil and natural gas:
Taxable income from extraction of
crude oil and natural gas
=
Revenues from extraction of crude
oil and natural gas in tax period
-
Deductible expenses in tax
period
+
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a) Revenues from the extraction of
crude oil and natural gas are the entire value of output of crude oil and
natural gas actually extracted and sold at the delivery place as per fair
transactions to crude oil and under the gas sale contract for natural gas in
the tax period (VAT excluded)
Where the crude oil is not sold as per fair transactions,
the revenues from extraction of crude oil are determined by multiplying the
volume of crude oil by the selling price as guided in Clause 1, Article 15 of
this Circular.
b) Deductible and non-deductible
expenses upon determing the taxable income:
b.1) Deducted expenses: The taxpayers are
deducted from their expenses in determining the income subject to corporate
income tax (excluding the expenses specified under Point b.2, Clause 1 of this
Article) if meet the following conditions:
b.1.1) Actual expenses pertaining to
the search, exploration, extraction and consumption of crude oil and natural
gas products include the following expenses:
- The natural resources tax, export
tax and surcharge when the price of crude oil increases, the environmental
protection fees (where the petroleum contract has agreement on recovery
expenses excluding the environmental protection fees).
- The expenses permitted for
recovery actually incurred is pertaining to the search, exploration, extraction
of crude oil and natural gas but must not exceed the expenses determined by the
revenues from sale of crude oil and natural gas multiplied by the percentage of
respective recovered expenses agreed in petroleum contract. Where in the
petroleum contract, there is no agreement on percentage of recovered expenses,
then the percentage of recovered expenses used to determine the expenses is
deducted up to 35%.
Where according to the agreements in
the petroleum contract, each contractor shall directly pay the expenses of sale
of goods and services pertaining to the search, exploration, extraction of
crude oil and natural gas, the contractor shall make a list attached to the
copy of legal invoices and documents and transferred to the operators, joint-venture
businesses, joint operating companies to determine the expenses which are the
deducted expenses and make deduction when determining the income subject to the
corporate income tax.
b.1.2) The expenses fully have
invoices and documents in accordance with regulations of law.
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b.2) The expenses must not be
deducted upon determining the taxable income:
b.2.1) The expenses permitted for
recovery exceed the percentage of recovered expenses agreed in the petroleum
contract. Where in the petroleum contract, there is no agreement on percentage
of recovered expenses, then the expenses permitted for recovery exceeding up to
35% shall not included in the deductible expenses.
b.2.2) The expenses which must not
included in the expenses allowed for recovery in accordance with the provisions
of petroleum contract are:
- The expenses are generated before
the effect of petroleum contract, unless otherwise agreed in the petroleum
contract or by the decision of the Prime Minister;
- The oil commissions, fees of
reading and use of documents and other expenses not included in the recovered
expenses under the petroleum contract;
- Expenses of loan interest of the
capital loan to invest in the search, exploration and development of oilfield
and extraction of oil and gas.
- Penalty or compensation for
damages ;
- Other expenses must not be
deducted in accordance with the provisions of the Law on corporate income tax
and the guiding documents.
c) For the revenues generated from
the financial guarantee fund for the clearance of fixed works, equipment and
means (hereafter referred to as oilfield clearance fund):
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c.2) Where the petroleum contractor
cannot use up the oilfield clearance fund, the balance of the fund is processed
in accordance with the provisions of the Petroleum Law and the guding
documents. The revenues shared to the parties involved in petroleum contract
are processed as follows:
+ Where the revenues are separated,
the revenues from the bank deposit interest whose corporate income tax has bee
paid at the tax rate of other incomes not subject to payment of corporate
income tax. The remaining revenues generated from the oilfield clearance fund
are recorded with reduced expenses permitted to be recovered if the petroleum
contract whose expenses have not yet been recovered or apply the tax rate of
petroleum contract if the petroleum contract whose expenses have been
recovered.
+ In case of impossible separation,
record the reduced expenses permitted for recovery if the petroleum contract
whose expenses have not yet been recovered or apply the tax rate of petroleum
contract if the petroleum contract whose expenses have been recovered.
d) The other incomes directly
pertaining to the petroleum activities such as revenues from bank deposit
interest, from the insurance compensation or revenues from the use of property
or implementation of property ownership (revenues from fees of use of wharf,
property disposal) are recorded with reduced expenses permitted for recovery of
petroleum activities.
2. For other incomes in addition to
the ones from the extraction of crude oil and natural gas: comply with the
provisions of the Law on corporate income tax and the guding documents.
Article 18. Determining
the corporate income tax the enterprise must pay
1. Determining the income tax the
enterprise must pay:
Income tax the enterprise must pay
in the tax period
=
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x
Tax rate of corporate income tax
of petroleum activities
+
thuế Other incomes in the tax
period
x
Tax rate of corporate income tax
In which :
+ The taxable income in the tax
period from the extraction of crude oil and natural gas and other incomes is
determined as guided in Article 15 of this Circular.
+ The tax rate of corporate income
tax complies with the regulations of law on corporate income tax. The tax rate
of corporate income tax of petroleum activities is from 32% to 50%; based on
the location and extraction conditions and oilfield reserve, the Prime Minister
shall decide the specific tax rate in line with each petroleum contract as
requested by the Minister of Finance.
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2. Where the petroleum contract has
agreements that each contractor shall determine the corporate income tax to be
paid separately, the corporate income tax the contractor shall pay is equal to
the total corporate income tax to be paid (to be determined as mentioned above)
multiplied by (x) the percentage of interest of oil and gas of each contractor
in the petroleum contract.
Article 19. Determining
the provisional corporate income tax to be paid
Determining the provisional corporate
income tax:
Provisional corporate income tax
=
Revenues from sale of crude oil
and natural gas
x
Percentage of provisional
corporate income tax
In which:
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Where the crude oil is not sold as
per fair transactions, the revenues from crude oil are determined by multiplying the volume of
crude oil by the selling price as guided in Clause 1, Article 15 of this
Circular.
+ The percentage of provisional
corporate income tax is determined as guided below:
Percentage of provisional
corporate income tax
=
100%
-
Percentage of recovered expenses
-
Percentage of provisional natural
resources tax
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Percentage of provisional export
tax
x
Tax rate of corporate income tax
The taxpayers determine themselves
the percentage of provisional corporate income tax and inform the local tax
agency where the tax registration is made with the time limit for notice of
percentage of provisional natural resources tax specified in Article 10,
Section 1, Chapter II of this Circular.
Ex 6: Determining the percentage of
provisional corporate income tax for extraction of crude oil:
Assuming that:
+ Percentage of recovered expenses:
35%
+ Percentage of provisional payment
of natural resources tax: 20.1750%
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+ Tax rate of corporate income tax:
50%
Percentage of provisional corporate
income tax:
(100% - 35% - 20.1750% - 7.9825% ) x
50% = 18.1413%
In case of payment of provisional
corporate income tax from extraction of natural gas, the percentage of
provisional corporate income tax is determined similarly as above.
Article 20. Declaration
and payment of corporate income tax for the extraction and sale of
crude oil and natural gas
1. Declaration and payment of provisional corporate income tax:
a) Declaration of provisional corporate income tax for
the extraction and sale of crude oil done as per each time of sale.
The time limit for submission of dossier of
declaration and payment of provisional corporate income tax for crude oil as per each
time of sale is no later than the 35th date from the first date of sale of
crude oil (for the crude oil locally sold and exported). The date of sale is
the date of completion of sale of crude oil at the place of delivery.
b) Declaration of provisional corporate income tax
for the extraction and sale of natural gas done as per each month.
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c) Dossier of declaration of provisional corporate income tax
of extraction and sale of crude oil and natural gas:
- The dossier of declaration of provisional corporate income tax
is the Declaration of provisional corporate income tax for oil under the Form
No. 01/TNDN-DK
issued with this Circular.
- Detailed appendix of tax obligations of petroleum
contractors is under the Form No. 01/PL-DK issued with this Circular.
2. Finalization of corporate income tax:
a) The dossier of finalization declaration of
corporate income tax of extraction and sale of crude oil and natural gas.
- The finalization declaration of corporate income
tax for oil is the Form 02/TNDN – DK issued with this Circular.
- Detailed appendix of tax obligations of petroleum
contractors is the Form No. 01/PL-DK issued with this Circular.
- Annual financial statement or financial statement
to the end of petroleum contract.
b) The time limit for submission of declaration of
corporate income tax for the extraction and sale of crude oil and natural gas:
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- No later than the 45th date (forty five) from the
end date of petroleum contract.
In case the last date of the time limit for
declaration and payment of tax coincides with the prescribed day-off, the end
date of the time limit is the working day succeeding such day-off.
Section 4. TAX FOR INCOME
FROM TRANSFER OF INTERESTS FROM PARTICIPATION IN PETROLEUM CONTRACT
Article 21. Subjects of tax
1. The transfer of interests from participation in petroleum contract is that
the organizations or individuals sell, transfer their investment capital
(including the property and money) in petroleum contract, petroleum enterprises
or joint venture enterprises in Vietnam, transfer the ownership, change the
ownership or control right of one contractor party or determine by other ways
the whole or a part of rights, interests and obligations in the petroleum
contract, petroleum enterprises or joint venture enterprises (the transferor)
for one or many organzations or individuals (the transferee), except for the
financial restructuring or arrangement of the transferor or consolidation of the
transferor’s parent company. The transferee has the contractor’s obligations
and interests to conduct the search, exploration and extraction of oil and gas.
Where the enterprise established in foreign country
(hereafter referred to as foreign enterprise) transfers its shares or
investment capital (including the property or money) or other interests in an
enterprise established in foreign country but the enterprise whose capital is
transferred holds directly or indirectly the property and interests of participation
in petroleum projects in Vietnam leading to the change of contractor’s owner
who are holding the interests of participation in petroleum projects in
Vietnam. This transfer is also regarded as the transfer of interests of
participation in petroleum contract. The foreign enterprise carrying out the
above transfer is regarded as the transferor.
Ex: Company A (an enterprise established under the
law of UK) has its subsidiary company as enterprise B (established under the
law of France). In order to manage the petroleum projects, enterprise B
establised its subsidiary company as emterprise C in Netherlands and the
enterprise C is directly involved and named in the petroleum projects in
Vietnam. During the operation, enterprise A has transferred its investment
capital in enterprise B. The transfer transaction has been done in France.
Thus, the above transfer transaction of enterprise A is the transfer of
interests of participation in petroleum contract in Vietnam and the income
generated from this transfer transaction is corresponding to the interests of
participation in petroleum contract in Vietnam as the income subject to the
corporate income tax.
2. The income from the transfer of interests of
participation in petroleum contract from the transferor to the transferee
subject to the corporate income tax as guided in Section 4, Chapter II of this
Circular.
Article 22. Determining the
income tax the enterprise must pay
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The corporate income tax of the income from the
transfer of interests of participation in petroleum contract is determined as
follows:
Income tax the enterprise
must pay
=
Taxable income
x
Tax rate of corporate income tax
a) Determining the taxable income:
Taxable income
=
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-
Purchasing price of transfer
interests
-
Transfer expenses
In which:
+ The transfer price is determined
as the total actual value which the transferor collects under the transfer
contract.
Where the contract of transfer of
interests of participation in petroleum contract provides for the payment in
the form of installment payment or late payment, the transfer price shall not
contain the interest of installment payment or late payment according to the
time limit specified in the transfer contract.
Where the transfer contract does not stipulate the payment
price or tax agency has the grounds to determine the payment price which is not
determined at the market price. The tax agency has the right to inspect and
require the parties involved in the transfer to provide the information
pertaining to the determination of the present and future value of interests of
participation in petroleum contract the transferred before the parties decide
the transfer, receipt of transfer and determine the payment value of the contract
based on the reference to market price, the price allowed to sell to a third
party, the selling price of similar transfer contract, the assessment price of
professional valuation organizations with authority to assess at the time of
transfer (if any) or re-determine the whole value of petroleum contract at the
time of transfer to re-determine the transfer price corresponding to the
percentage of transfer interests.
Where the transfer of interests of
participation in petroleum
contract is done through the sale of stocks in the securities market, the
transfer price is determined as the actual selling price of securities (as the
order-matching price or agreement price) according to the notice of securities
exchanges or securities trading center.
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Where the contractor continues to
re-transfer the interests of participation in transferred petroleum contract,
the purchase price of interests of participation in petroleum contract
transferred each subsequent time is determined by the transfer value of
transfer contract shortly before plus the incurred expenses as the recovery
expenses added by the contractor (if any evidencing document) minus the recovered
expenses (if any).
Where the currency used in
accounting of the operators, joint-venture businesses, joint operating companies is the US
dollar as agreed in the petroleum contract and the contractor transfers the interests of
participation in petroleum contract in foreign currency, the transfer price and
the purchase price of the transferred interests are determined in US dollar.
Where the currency used in
accounting of the operators, joint-venture businesses, joint operating companies is the
Vietnamese dong, the transfer price is determined in US dollar and the purchase price of
the transferred interests is determined in US dollar. The exchange rate to US
dollar to determine the transfer price and the purchase price of the
transferred interests shall comply with the provisions of the Law on tax
administration, the Law on amendment and addition and the other documents
detailing and guiding the implementation.
+ The transfer fees are the actual
expenses directly pertaining to the transfer based on the original document
acknowledged by the tax agency. Where the transfer fees are incurred in foreign
country, such original documents must be notarized or independently audited and
certified by the country having the incurred expenses and such documents must
be translated into Vietnamese (with certification of competent representative).
The transfer expenses include the
expenses of legal procedures necessary for the transfer, the fees and charges
to be paid upon performing the transfer procedures; the expenses of
transaction, negotiation, signing of transfer contract and other expenses with
evidencing documents.
b) Tax rate of corporate income tax:
The tax rate of corporate income tax
of the revenues from the transfer of interests of participation in petroleum
contract shall comply with the current regulations of law on corporate income
tax.
c) The exemption or reduction in
corporate income tax does not apply to the revenues from the transfer of
interests of participation in petroleum contract (unless otherwise agreed by
the petroleum contract).
2. Where the taxpayers have income
from the transfer of interests of participation in petroleum contract but the
taxpayers do not determine properly or cannot calculate the amount of corporate
income tax to be paid as guided in Clause 1 of this Article, the tax agency
shall determine the amount of tax to be paid or determine each factor
pertaining to the determination of amount of tax to be paid in accordance with
the provisions of the Law on tax administration.
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- The income to calculate the income tax from the transfer
all of interests of participation in the petroleum contract in this case is 150
million US dollars (= 600 - 400 - 50).
- The corporate income tax of enterprise A is 33
million US dollars (= 150 x 22%).
3. The determination and payment of corporate income
tax for the income from the transfer of interests of participation in the
petroleum contract shall comply with the relevant regulations of law on tax and
the commitments and agreements which the Government of Vietnam has signed.
Article 23. Declaration and
payment of corporate income tax for income from the transfer of interests of
participation in the petroleum contract
1. The transferor of interests of participation in
the petroleum contract must make declaration and pay tax for the income from from
the transfer of interests of participation in the petroleum contract.
Where the transfer changes the contractor’s owner who
is holding the interests
of participation in the petroleum contract in Vietnam, the contractor named in
the petroleum contract in Vietnam must inform the tax agency upon generation of
transfer and make declaration and payment of tax on behalf of the transferor
for the generated income pertaining to the petroleum contract in Vietnam in
accordance with regulations.
2. The dossier of tax declaration for income from
transfer of interests
of participation in the petroleum contract:
- The Declaration of corporate income tax on transfer
of interests of
participation in the petroleum contract is the Form No. 03/TNDN-DK issued with this Circular.
- A copy of transfer contract (English copy and the
Vietnamese translation).;
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- The original documents of expenses pertaining to
the transfer transaction;
- Where the transfer changes the contractor’s owner
who is holding the interests of participation in the petroleum contract in Vietnam, the
foreign contractor directly involved in the petroleum contract in Vietnam must
make report and provide the additional documents as follows:
+ The shareholding structure of the company before and after
the transfer.
+ The financial statement of two years of foreign
enterprises and their subsidiaries/branches directly or indirectly holding the
interests of participation in the petroleum contract in Vietnam.
+ The report on valuation of property and other
evaluating documents used to determine the value of transfer of stocks and
foreign investment capital under contract.
+ The report on reality of income tax payment of
foreign enterprise pertaining to the transfer leading to the change of
contractor’s owner who is holding the interests of participation in the petroleum contract
in Vietnam.
+ The report on relationship between the transferring
foreign enterprise and the branches/subsidiaries directly or indirectly holding
the interests
of participation in the petroleum contract in Vietnam on: contributed capital,
business and production, revenues, expenses, accounts, assets, personnel,...
In case of required addition of dossier, the tax
agency shall inform the taxpayers within 03 working days from the date of
receipt of dossier.
3. The time limit for submission of dossier of tax
declaration is ten (10) days from the time the parties sign the transfer
contract pertaining to the interests of participation in petroleum contract and
six (06) months from the date of change of contractor’s owner who is holding
the interests of participation in petroleum contract in Vietnam.
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4. The time limit for tax payment is no later than
the tenth date (10) from the date of approval for transfer of interests of
participation in petroleum contract.
5. The location of submission of tax declaration
dossiers: at the tax agency as guided in Article 4, Chapter 1 of this Circular.
The tax agency receiving the tax declaration dossier must make a copy of tax
declaration dossier and send it to the General Department of Taxation.
Section 5. OTHER TAXES, FEES
AND CHARGES
Article 24. Other taxes,
fees and charges
During the business and production, the taxpayers
must make payment of other taxes, fees and charges not guided in this
Circular in accordance with the regulations of current legal documents of taxes,
fees and charges.
For the refunding of VAT during the search,
exploration and development of oilfield, the Ministry of Finance provides the
instructions as follows: The input VAT of goods and services used for the
search, exploration and development of oilfield to the first date of extraction
or the first date of production shall be totally deducted. Where the petroleum
contract does not detect the commercial oil and gas and terminates its effect
by the decision of the competent level, the input VAT of goods and services
used for the search, exploration and development of oilfield shall not be
collected retrospectively.
Chapter III
IMPLEMENTATION
Article 25. Effect
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Supersede the Circular No.
32/2009/TT-BTC dated 19/2/2009 of the Ministry of Finance guiding the
implementation of tax for the organizations and individuals conducting the
search, exploration and extraction of oil and gas under the provisions of the
Petroleum Law.
Annul the guidelines on declaration of natural
resources tax and corporate income tax of the extraction and sale of crude oil
and natural gas specified in Article 24 of Circular No. 156/2013/TT-BTC dated
6/11/2013 of the Ministry of Finance guiding some articles of the Law on tax
administration, the Law on amendment and addition of the Law on tax
administration and Decree No. 83/2013/ND-CP dated 22/7/2013 of the Government.
From the effective date of Circular No.
152/2015/TT-BTC dated 02/10/2015 of the Ministry of Finance until 01/1/2016,
the determination of natural resources tax to be paid of crude oil and natural
gas extracted continues to be implemented as gided in Section II, Part V of
Circular No. 105/2010/TT-BTC dated 23/7/2010 of the Ministry of Finance.
2. The petroleum contracts issued with the Investment
Permit before the Petroleum Law No. 10/2008/QH12, the Law on corporate income
tax No. 14/2008/QH12, the Law on corporate income tax amended No. 32/2013/QH13
which have come into effect and are enjoying the preferential corporate income
tax under the issued Investment Permit shall continue to enjoy such
preferential tax (preferential tax rate and time of exemption or reduction) for
the remaining time.
Based on the regulations in the Investment Permit or
Decisions of the Prime Minister on the rate and duration of exemption or
reduction of corporate income tax, the taxpayers shall determine the amount of
tax subject to the tax exemption or reduction, the amount of tax the
enterprises must pay upon provisional calculation and finalization of corporate
income tax.
The first year with taxable income is the first tax
period with incurred taxable income.
The incomes subject to the exemption or reduction of
corporate income tax do not include the other income specified in Clause 2,
Article 15 of this Circular.
3. Where in international treaties or inter-governmental
agreements which the Government of Vietnam has signed, the contracts with
guarantee commitments of the Government, there are provisions on tax for the
search, exploration and extraction of crude oil and natural gas different from
the provisions on tax in this Circular, the payment of tax of organizations and
individuals that conduct the search, exploration and extraction of crude oil
and natural gas shall comply with the international treaties, the
inter-governmental agreements or the guarantee commitments of the Government
that have been signed.
Any problem arising during the implementation should
be reported to the Ministry of Finance for timely settlement./.
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FOR THE MINISTER
DEPUTY MINISTER
Do Hoang Anh
Tuan
ATTACHED FILE
