THE MINISTRY OF
FINANCE
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|
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 60/2012/TT-BTC
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Hanoi, April 12, 2012
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CIRCULAR
GUIDING THE EXECUTING
OF TAX LIABILITY APPLICABLE TO FOREIGN ORGANIZATIONS, INDIVIDUALS DOING
BUSINESS OR EARNING INCOMES IN VIETNAM
Pursuant
to the Law on Value-added tax No. 13/2008/QH12 of June 03, 2008, the
Government's Decree No. 123/2008/ND-CP of December 08, 2008 on detailing and
guiding the implementation of a number of articles of the Law on Value-added
tax; the Government's Decree No. 121/2011/ND-CP of December 27, 2011 on
amending and supplementing a number of articles of the Government's Decree No.
123/2008/ND-CP of December 08, 2008 on detailing and guiding the implementation
of a number of articles of the Law on Value-added tax;
Pursuant
to the Law on Enterprise income tax No. 14/2008/QH12 of June 03, 2008; the
Government's Decree No. 124/2008/ND-CP of December 11, 2008 on detailing and
guiding the implementation of a number of articles of the Law on Enterprise
income tax; the Government's Decree No. 122/2011/ND-CP of December 27, 2011 on
amending and supplementing the Government's Decree No. 124/2008/ND-CP of
December 11, 2008 on detailing and guiding the implementation of a number of
articles of the Law on Enterprise income tax;
Pursuant
to the Law on Tax administraten of 78/2006/QH11 of November 29, 2006;
Pursuant
to the Government's Decree No. 118/2008/ND-CP of November 27, 2008 on defining
the functions, tasks, powers and organizational structure of the Ministry of
Finance;
At
the proposal of the Director of the General Department of Taxation;
The
Ministry of Finance promulgates the Circular on guiding the executing of tax
liability applicable to foreign organizations, individuals doing business or
earning incomes in Vietnam as follows:
Chapter I
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Article 1. Subjects of application
This
Circular is applicable to the following subjects (except for the subjects
stated in Article 4 Chapter I of this Circular);
1.
Foreign business organizations having or not having Vietnam-based permanent
establishments; foreign business individuals being resident or non-resident objects
in Vietnam (hereinafter referred to as foreign contractors, foreign
sub-contractors) that do business in Vietnam or earn incomes in Vietnam on the
basis of contracts, agreements or commitments between foreign contractors and
Vietnamese organizations, individuals, or between foreign contractors and
foreign sub-contractors to perform a part of the Contractor agreement.
2.
Foreign organizations and individuals supplying goods in Vietnam by on-spot
export/import and earning incomes in Vietnam on the basis of the contracts
signed between foreign organizations, individuals and enterprises in Vietnam
(except for the case of processing and re-exporting goods to foreign
organizations, individuals), or providing goods under the DDP, DAT, DAP delivery
conditions (incoterms)
Example
1:
-
Case 1: The overseas enterprise X overseas signs the contract to purchase cloth
from the Vietnamese enterprise A and request the Vietnamese enterprise A to
deliver to the Vietnamese enterprise B (by on-spot export and import as
prescribed by law). The enterprise X earns incomes in Vietnam on the basis on the contract signed between the enterprise X and the enterprise B (the
enterprise X sells cloths to the enterprise B).
In
this case, the enterprise X is the subject of application as prescribed in this
Circular. The enterprise B is responsible to declare, deduct and pay tax on
behalf of the enterprise X as prescribed in this Circular.
-
Case 2: The overseas enterprise Y signs the contract for cloth processing with the
Vietnamese enterprise C and request the enterprise C to deliver to the Vietnamese
enterprise D to continue producing (by on-spot export and import as prescribed
by law). The enterprise Y earns income in Vietnam on the basis of the contract
signed between the enterprise Y and the enterprise D (the enterprise Y sells
goods to the enterprise D).
In
this case, the enterprise Y is the subjects of application as prescribed in
this Circular. The enterprise D is responsible to declare, deduct and pay tax
on behalf of the enterprise Y as prescribed in this Circular.
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In
this case, the enterprise Z is not the subject of application as prescribed in
this Circular.
Article 2. Taxpayers
1.
Foreign contractors, foreign sub-contractors satisfying the conditions
prescribed in Article 8 Section 2 Chapter II or Article 14 Section 4 Chapter II
of this Circular that do business or earn incomes in Vietnam (including the
territorial land, islands, internal waters, territorial sea and its airspace, the
sea outside the territorial sea including the seabed and soil under the seabed
that Vietnam exercises its sovereignty and jurisdiction in accordance with
Vietnam's law and international law. The business is done on the basis of the contractor
contracts with Vietnamese organizations and individuals or with other foreign
organizations, individuals doing business in Vietnam on the basis of the
sub-contractor contracts.
The
determination of foreign contractors, foreign sub-contractors having Vietnam-based
permanent establishments or being residents in Vietnam shall be made under the
Law on Enterprise income tax, the Law on personal income tax and their guiding
documents.
In
case the Agreement on avoiding double taxation which the Socialist Republic of
Vietnam having signed otherwise defines the permanent r establishments or
residents, such provisions shall be applied and implemented.
2.
Organizations being established, operate under Vietnam’s law, organizations
being registered to operate under Vietnam’s law, other organizations, and
individuals do production and business on purchase services, services attached
with goods or earn incomes in Vietnam on the basis of contractor contracts ot
sub-contractor contracts (hereinafter referred to as the Vietnam party)
include:
-
Business organizations being established under the Law on Enterprise, the Law
on State enterprises (now the Law on Enterprise), the Law on Foreign investment
in Vietnam (now the Law on investment) and the Law on Cooperatives;
-
The economic organizations of political organizations, socio-political
organizations, social organizations, Socio-professional organizations, armed units,
non-business organizations and other organizations;
-
Petroleum contractors operating under the Law on petroleum
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Foreign organizations or representatives of foreign organizations licensed to
operate in Vietnam;
-
Vietnam-based ticket offices, agents of foreign airlines licensed for
Vietnam-inbound and –outbound transportation on their own or in joint-venture;
-
Organizations and individuals business maritime transport services of foreign
maritime transport firms; Vietnam-based agents of foreign forwarding and
warehousing and delivery firms;
-
Securities companies, securities issuance organizations, fund management
companies, commercial banks where the securities investment funds or foreign
organizations open securities investment accounts;
-
Other organizations in Vietnam;
-
Individuals producing and business in Vietnam.
The
tax payers as prescribed in Clause 2 Article 2 Chapter I of this Circular are
responsible to deduct the VAT amount, the enterprise income tax amount guided
in Section 3, Chapter II of this Circular before making payment to foreign
contractors, foreign sub-contractors.
Article 3. Applicable taxes
1.
Foreign contractors, foreign sub-contractors being business organizations shall
fulfill the VAT liability, enterprise income tax liability as guided in this
Circular.
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3.
For other kinds of tax, fees and charges, foreign contractors, foreign
sub-contractors shall implement in accordant with the other current legal
documents on tax, fees and charges.
Article 4. Non-applicable subjects
This
Circular is not applicable to:
1.
Foreign organizations, individuals doing business in Vietnam as prescribed by
the Law on investment, the Law on petroleum and the Law on credit institutions
2.
Foreign organizations, individuals providing goods for Vietnamese organizations
and individuals without the attached services performed in Vietnam in the following forms:
-
Goods delivery at foreign border gates: the seller shall be liable for all responsibilities,
cost and risks relating to the goods export and delivery at foreign border
gates; the buyer shall be liable for all responsibilities, cost and risks
relating to the goods receipt and transportation from foreign border gates to Vietnam.
-
Goods delivery at Vietnam’s border gates: the seller shall be liable for all responsibilities,
cost and risks relating to the goods until goods to the Vietnam’s border gate; the buyer shall be liable for all responsibilities, cost and risks relating
to the goods receipt and transportation from the Vietnam’s border gate.
3.
Foreign organizations, individuals earning incomes from services being provided
and used outside Vietnam.
Example
2:
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In
this case, the goods arrangement service at the Hongkong’s port is the service
being provided and used in Hongkong, so it is not the taxable subject in Vietnam.
Example
3:
A
foreign organization provides professional services, bond management and
issuance, legal consultancy, depository agents, roadshow organization (a
trademark activation activity) for company A in Vietnam in countries where
company A issue GDRs (Global Depositary Receipt) and international bonds. The services
performed by the foreign organization are not the subjects of application in
this Circular.
4.
Foreign organizations, individuals providing overseas the following services for
Vietnamese organizations and individuals:
-
Repair of means of transport (airplanes, airplane engines, airplane spare
parts, ships), machinery, equipment, (including sea cables, transmission
devices), including or not including accompanying spare materials and
equipments;
-
Advertising and marketing (except for internet-based advertising and
marketing);
Example
4:
A
Vietnamese enterprise signs a contract with an organization in Singapore to perform advertising service for products in Singapore’s market. This advertising
service of the Singaporean organization is not a subject of application of this
Circular. In case the Singaporean organization advertises the products for
consumption in Vietnam on the internet, the income from this advertising
service is the subject of application of this of this Circular.
-
Trade and investment promotion;
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Example
5:
A
Vietnamese enterprise signs a contract to hire an enterprise in Thailand to perform the brokerage service in order to sell the products of the Vietnamese enterprise
in the Thailand market or in the world’s market. This brokerage service of the
Thai enterprise is not the subject of application of this Circular. In case the
Vietnamese enterprise signs a contract to hire an enterprise in Thailand to
perform the brokerage service in order to transfer real estate of the
Vietnamese enterprise in Vietnam, this brokerage service in the subject of application
of this Circular.
-
Training (except for online training);
Example
6:
The
company A in Vietnam signs a contract with the university B in Singapore for the Vietnamese employees to study at the university B in Singapore. The training
service of the university B is not the subject of application of this Circular.
In case the company A in Vietnam signs a contract with the university B for
teaching the Vietnamese employees in Vietnam via online learning, the online
training service of the university B is the subject of application of this
Circular.
-
Sharing charges (paid charges) for international postal and telecomminication
services between Vietnam and other countries when such services are performed
outside Vietnam; services of renting foreign transmission lines and satellite
bands, shall comply with the Law on post and the Law on telecommunication
Article 5. Interpretation of terms
In
this Circular, the following terms are construed as follows:
1.
“Contractor contract” is the contract, agreement or commitment between a
foreign contractor and a Vietnam party.
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Sub-contractors
include foreign sub-contractors and Vietnamese sub-contractors
3.
The Vietnam’ territory includes territorial land, islands, internal waters, sea
and its airspace, the sea outside the territorial sea including the seabed and
soil under the seabed that Vietnam exercises its sovereignty and jurisdiction
in accordance with Vietnam's law and international law
Chapter II
BASES AND METHODS OF
TAX CALCULATION
Section 1. VAT-LIABLE OBJECTS AND EIT-LIABLE INCOMES
Article 6. VAT-liable Objects
1.
Services or services attached to VAT-liable goods provided by foreign
contractors, foreign sub-contractors on the basis of contractor contracts,
sub-contractor contracts serving the production, business and consumption in
Vietnam (except for the goods, services prescribed in Article 4 Chapter I of
this Circular), including:
-
Services or services attached to VAT-liable goods are provided in Vietnam by foreign contractors, foreign sub-contractors and used in Vietnam;
-
Services or services attached to VAT-liable goods are provided outside Vietnam by foreign contractors, foreign sub-contractors and used in Vietnam;
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Example
7:
The
enterprises A in Vietnam signs the contract to buy the machinery and equipment
for the Project on Cement factory with the enterprise B overseas. The total
contract value is USD 100 million including USD 80 million worth of machinery
and equipment (of which including the Vat-liable equipment with 10% tax rate), and
USD 20 million worth of the services of installation instruction, supervision
and maintenance.
When
importing the machinery and equipment, the enterprise A being the importer
shall pay the VAT in the import stage on the value of the VAT-liable equipment.
The
company B’s liability of VAT payment under the contract signed with enterprise
A is determined as follows:
-
The VAT shall be calculated on the service value (USD 20 million), not on the
value of the imported machinery and equipment.
-
In case the contract does not separate the value of machinery and equipment from
that of services, the VAT shall be calculated on the value of the entire
contract (USD 100 million).
Article 7. EIT-liable Incomes
1.
Incomes of foreign contractors, foreign sub-contractors arising from the
provision of services, services accompanying goods in Vietnam on the basis of
contractor contracts, sub-contractor contracts (except for the goods, services
prescribed in Article 4 Chapter I of this Circular).
2.
In case the goods is provided in forms of: the goods recept place is located
inside Vietnam’s territory; or the goods provision is attached to services
performed in Vietnam such as installation, trial operation, warranty,
maintenance, replacement and other services attached to the goods provision
(including complimentary attached services), regardless of whether such
services provision is included or not included in the value of the goods
provision contract, EIT-liable
incomes of foreign contractors or subcontractors are the total value of goods
and services
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The
enterprises A in Vietnam signs the contract to buy the machinery and equipment
for the Project on Cement factory with the enterprise B overseas. The total
contract value is USD 100 million (excluding VAT) including USD 80 million worth
of machinery and equipment (the equipment there of is subject to 10% VAT), USD
20 million worth of the services of installation instruction, supervision and
maintenance.
The
EIT liability of the company B under the contract signed with enterprise A is
determined as follows:
-
The enterprise income tax shall be calculated separately for the value of
imported machinery and equipment (USD 80 million) and the service value (USD 20
million) together with the corresponding enterprise income tax rates as
prescribed.
-
In case the contract does not separate the value of machinery, equipment from
the service, the enterprise income tax shall be calculated on the entire
contract value (USD 100 million) together with the corresponding enterprise
income tax rates as prescribed.
3.
Incomes earned in Vietnam of foreign contractors, foreign sub-contractors are
the incomes received in any form on the basis of contractor contracts,
sub-contractor contracts (exceopt for the provisions of goods, services
prescribed in Article 4 Chapter I of this Circular), regardless of the business
location of foreign contractors, foreign sub-contractors. The taxable incomes
of foreign contractors, foreign sub-contractors in a number of particular cases
are identified as follows:
-
Incomes from ownership transfers, property use right transfers.
-
Incomes from copyrights are incomes in any forms being paid for the use right, transfers
of intellectual property rights and technology transfers (including the amounts
paying for rights of use, transfer of author rights and work ownership; the
transfer of industrial property rights; technology transfers).
“Author
rights, work ownerships", “Industrial property rights”, “Technology
transfers” are prescribed in the Civil Code of the Socialist Republic of
Vietnam, in the Law on Technology transfers and guiding documents.
-
Incomes form transferring and liquidating assets.
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Loan
interest includes the charges that the Vietnam party must pay under the
contract.
-
Incomes from securities transfers.
-
Fines, compensations collected from the partner that breaches the contract.
-
Other incomes as prescribed by law.
Section 2. PAYING VALUE-ADDED TAX UNDER THE DEDUCTION
METHOD, PAYING ENTERPRISE INCOME TAX ON THE BASIS OF TURNOVER AND COST
DECLARATION TO DETERMINE TAXABLE INCOMES
(hereinafter
referred to as deduction and declaraten method)
Article 8. Subjects of and conditions for application
The
foreign contractors, foreign sub-contractors paying tax as guided in Section 2
Chapter II of this Circular if satisfying the following condisions:
(i)
Having permanent establishment in Vietnam or being resident in Vietnam;
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(iii)
Applying the Vietnam Accounting regime.
Article 9. VAT
Implemented
under the Law on Value-added tax and its guiding document.
Article 10. Enterprise income tax
Implemented
under the Law on enterprise income tax and its guiding document.
Section 3. PAYING VAT UNDER DIRECT CALCULATION METHOD ON ADDED
VALUE, PAYING ENTERPRISE INCOME TAX BY THE PERCENTAGE
RATE CALCULATED ON TURNOVER
(hereinafter
referred to as rate fixing method)
Article 11. Subjects of and conditions for application
The
Vietnam party shall pay taxes on behalf of foreign contractors, foreign
sub-contractors in case foreign contractor, foreign sub-contractors paying tax
as guided in Article 12, Article 13, Section 3 Chapter II of this Circular if
foreign contractor, foreign sub-contractors fail to satisfy one of the
conditions prescribed in Article 8 Section 2 Chapter II of this Circular.
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The
basis for tax calculation is the added value of services, services attached to VAT-liable
goods and VAT rate.
VAT amount payable
=
The added value
x
VAT rate
1.
The added value
The
added value of services, services attached to VAT-liable goods is calculated by
the turnover for VAT calculation multiplied by the rate (%) of the added value
to the turnover.
a)
Turnover subject to calculate VAT:
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b)
Determining turnover subject to calculate VAT in some certain cases:
-
In case the turnover earned by foreign contractors, foreign sub-contractors
does not include VAT under the contractor contracts, sub-contractor contracts,
the turnover for VAT calculation must be converted into VAT-inclusive turnover
and shall be calculated by the following formula:
a) Turnover for VAT
calculation:
=
VAT-exclusive turnover
1 – The percentage
rate of added value to turnover x VAT rate
Example
9:
The
foreign contractor A provides the Vietnam party with the service of supervising
the construction of the cement plant Z. The contractual price excluding VAT
(but including enterprise income tax) is USD 300,000. Besides, the Vietnam party arranges accomodations and workplaces valued for managers of the foreign
contractor A at the cost of USD 40,000. Under the contract, the Vietnam party is liable to pay VAT for the foreign contractor. The turnover for VAT
calculation of the foreign contractor A is determined as follows:
To
determine the taxable turnover:
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=
300,000 + 40,000
=
357,894.73 USD
(1- 50% x10%)
-
In case foreign contractors that sign contracts with Vietnamese sub-contractors
or foreign sub-contractors pay tax under the deduction, declaraten method, or
foreign sub-contractors pay tax using the combined method to assign part of the
work value or item value stipulated in the contractor contracts signed with the
Vietnam party and the list of Vietnamese sub-contractors, the foreign
sub-contractors carry out the corresponding work or item enumerated under the
contractor contracts, the turnover for VAT calculation of foreign contractors
does not include the value of work done by Vietnamese sub-contractors or
foreign sub-contractors.
In
case foreign contractors sign contract with suppliers in Vietnam to buy raw material, materials, machinery and equipment to perform contractor contracts
and goods, services to serve internal consumption, spending on the items not
being the contractual works, items, the value of such goods, services shall not
be deducted when determining VAT-liable turnover of foreign contractors.
Example
10:
The
foreign contractor A signs a contract to build a cement plant Z with the Vietnam party of which the total contract value is USD 10 million (including VAT). Under
the contractor contract, the foreign contractor A shall assign the installation
(stipulated in the contractor contract signed with the Vietnam party) valued at
USD 01 million (exclusive of VAT) to Vietnamese sub-contractors; besides,
during the construction of the cement plant Z, the foreign contractor A buys
raw material, materials (bricks, cement, sand…) for construction and
instalation and buys goods, services such as stationery, hiring cars, hotels
for experts… to serve for performance of contract.
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VAT-liable
turnover = USD 10 million – USD 1 million = USD 9 million
The
VAT-liable turnover of the foreign contractor A must include the expenditures
on materials, goods, services such as stationery, hiring car, hotels for
experts…
-
For sub-contractors being foreign sub-contractors paying tax under the rate
fixing method, the VAT-liable turnover of the foreign contractor is the whole turnover
earned by the foreign contractor under the contract signed with the Vietnam party. Foreign sub-contractors are not liable to pay VAT on the part of work that
they perform under the sub-contractor contracts signed with foreign
contractors.
-
For international forwarding and warehousing services from Vietnam to abroad
(regardless of whether the sender or the recipient pays the service charge),
the VAT-liable turnover is the whole turnover earned by foreign contractors
exluding international transport charges payable to transport firms (by air or
sea)
-
For international delivery services from Vietnam to abroad (regardless of
whether the sender or the recipient pays the service charge), the VAT-liable
turnover is the whole turnover earned by foreign contractors.
Example
11:
The
oveseas company A provide the mail delivery service from abroad to Vietnam and vice versa. The VAT-liable turnover of the company A is determined as follows:
+
For delivery services from abroad to Vietnam (regardless of whether the
overseas sender or the recipient in Vietnam pays the service charge) are not
subject to VAT;
+
For delivery services from Vietnam to abroad (regardless of whether the
overseas sender or the recipient in Vietnam pays the service charge), the
VAT-liable turnover is the whole turnover earned by the company A.
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a)
Rate (%) of the added value to the taxable turnover regarding to the following
business lines :
No.
Business line
Rate (%) of added
value to taxable turnover
1
Services
(except for petroleum drilling services), leasing machinery and equipment,
insurance
50
2
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70
3
a)
Construction, installation including materials or machinery and equipment
attached to the construction works
b)
Construction, installation excluding materials or machinery and equipment
attached to the construction works
30
50
4
Transport,
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b)
Determining the rate (%) of the added value to turnover for VAT calculation in
certain cases:
-
For contractor contracts, sub-contractor contracts that consists of multiple
business activities, or part of the contract value is not subject to VAT, the
application of the rate of the added value to turnover for VAT calculation when
determining the VAT amount payable shall depend on the turnover for VAT
calculation from each business activity performed by foreign contractors,
foreign sub-contractors under the contractor contracts, sub-contractor contracts.
In case it is not able to separate the value of each business activity, the
highest added value rate for business line and the highest tax rate for whole
contract value shall be applied.
For
constructions and installation including materials or machinery and equipment
attached to the construction works, the rate of the added value to the taxable
turnover is 30% over the whole contract value. In case the foreign contractor
signs contracts with sub-contractors to assign the whole value of work or items
that including materials or machinery and equipment, the foreign contractor shall
only perform the part of remaining service value under the contractor contract,
the rate (%) of the added value to the VAT-liable turnover shall be applicable
to the service line (50%).
Example
12:
The
foreign contractor A signs a contract to build a power plant X with the Vietnam party of which the value is USD 75 million (including VAT), the contract value
includes:
+
The value of machinery and equipment provided for the construction: USD 50
million.
+
The value of technology line designs, other designs: USD 5 million.
+
The value of workshops, other ancillary systems, construction, installation: USD
15 million.
+
The value of supervision services, installation instructions: USD 3 million.
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In
this case, the applicable rate % of added value to whole USD 75 million value contract
is 30%, not separating each business activities performed by the foreign
contractor A.
In
case the foreign contractor A signs contract with sub-contractors to assign the
portion of work that includes materials and the foreign contractor A only
performs part of services (such as supervision, installation instruction), the
applicable added value rate of such service value is 50%.
-
For contracts to provide machinery and equipment attached to sevices of
installation instructions, training, operation, trial operation, if it is able
to separate the values of machinery, equipment and other service values, the rate
of the added value to each contract value parts shall be applied when determining
the VAT amount payable. In case the contract does not separate the value of
machinery, equipment from the value of services, the applicable rate of the
added value to the taxable turnover is 30%.
Example
13:
The
foreign contractor H from Korea not employing the Vietnam accounting regime
performs the contract signed with the enterprise B in Vietnam to provide machinery and equipment attached to services of installation, operation
and tests of which the value is 10,000,000 USD. The contract does not separate
the value of machinery, equipment from the value of installation, operation and
test services, the applicable added value rate is 30%.
-
The VAT-liable turnover in the case of lease of machinery, equipment and means
of transport is the whole rent. In case the turnover of lease of machinery,
equipment and means of transport includes the costs paid by the lessor, such as insurance, maintenance, register certification, machinery
and equipment operators and cost for transporting machinery, equipment from
abroad to Vietnam, the turnover for VAT calculation does not include these
costs if documents proving for the expenses are available.
3.
VAT rates
The
VAT rates of VAT-liable goods and services are the tax rates prescribed in the
Law on Value-added tax and its guiding documents.
Foreign
contractors, foreign sub-contractors liable to pay VAT under the method of
direct calculation based on the added value are not entiled to deduct VAT from
goods, services bought in order to perform contractor contracts, sub-contractor
contracts (including VAT regarding sub-contractor contracts performed by
Vietnamese sub-contractors).
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The
bases for tax calculation are turnover being liable to enterprise income tax
and the enterprise income tax rate based on the taxable turnover.
EIT amount payable
=
Turnover being
liable to EIT
x
EIT rate based on
taxable turnover
1.
Turnover being liable to EIT
a)
Turnover being liable to EIT
The
turnover for EIT calculation is the whole turnover excluding VAT earned by
foreign contractors, foreign sub-contractors not excluding the taxes payable. The
turnover for EIT calculation includes the costs paid by the Vietnam party on behalf of foreign contractors, foreign sub-contractors (if any).
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-
In case the turnover earned by foreign contractors, foreign sub-contractors
does not include enterprise income tax under agreements in contractor contract,
sub-contractor contract, the turnover for EIT calculation shall be calculated
by the following formula:
Turnover for EIT
calculation
=
Turnover excluding
enterprise income tax
1- Enterprise income tax rate based on taxable income
Example
14:
The
foreign contractor A provides the Vietnam party with the service of supervising
construction of the cement plant Z. The contractual price excluding VAT and
enterprise income tax is USD 285,000. Besides, the Vietnam party arrange
accomodations and workplaces at the cost of USD 38,000 for managers of the
foreign contractor A (excluding VAT, enterprise income tax). Under the
contract, the Vietnam party is liable to pay VAT and enterprise income tax for
the foreign contractor. The EIT payable of the foreign contractor is determined
as follows:
Determination
of the taxable turnover:
Turnover for EIT
calculation
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285,000 + 38,000
=
USD
340,000
(1- 5%)
-
In case the foreign contractor that sign contract with a Vietnamese
sub-contractor or a foreign sub-contractor, which pay tax under the deduction,
declaraten method, or the foreign sub-contractor, which pay tax using the
combined method to assign part of the work value or item value stipulated in
the contractor contracts signed with the Vietnam party and the list of
Vietnamese sub-contractors, the foreign sub-contractor carrying out the part of
corresponding work or item enumerated together with the contractor contracts,
the turnover for EIT calculation of the foreign contractor does not include the
value of work done by Vietnamese sub-contractors or foreign sub-contractors.
In
case foreign contractors sign contract with suppliers in Vietnam to buy raw
material, materials, machinery and equipment to perform contractor contracts
and other goods, services to serve internal consumption, spending on the items
not being the contractual works, such value of these goods, services shall not
be deducted when determining turnover for EIT calculation of foreign
contractors.
Example
15:
The
foreign contractor A signs a contract to build a cement plant Z with the Vietnam party of which the total contract value is USD 9 million (excluding VAT). Under the
contractor contract, the foreign contractor A shall assign the part of installation
(stipulated in the contractor contract signed with the Vietnam party) at the value
of USD 01 million (excluding VAT) to Vietnamese sub-contractors; besides,
during construction of the cement plant Z, the foreign contractor A bought materials
(bricks, cement, sand…) and goods, services such as stationery, hiring cars,
renting hotels for experts… to perform the contract.
The
turnover for EIT calculation of the foreign contractor A in this case is determined
as follows:
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The
turnover for EIT calculation of the foreign contractor A must include the
expenditures on materials, goods, services such as stationery, hiring car,
renting hotels…
-
For sub-contractors being foreign sub-contractors paying tax under the rate
fixing method, the turnover for EIT calculation of the foreign contractor is
the whole income earned by the foreign contractor under the contract signed
with the Vietnam party. Foreign sub-contractors are not liable to pay
enterprise income tax for the part of work that they perform under the
sub-contractor contract signed with foreign contractors.
-
The turnover for EIT calculation from the lease of machinery, equipment and
means of transport is the whole rents. In case the turnover from the lease of
machinery, equipment and means of transport includes the costs paid by the lessor
such as insurance, maintenance, register certificate, drivers, machinery and
equipment operators and charges for transporting
machinery, equipment from abroad to Vietnam, the turnover for EIT calculation does
not include these costs if documents proving for the expenses are available.
-
The turnover for EIT calculation of foreign airlines is the turnover from
passenger ticket sale, aviation bill of lading and other incomes (except for
amounts collected on behalf of the State or other organizations as prescribed
by law) in Vietnam from the transport of passengers, goods and other subjects
of transport by flights of their own airlines or joint-venture.
Example
16:
The
foreign airline A gains turnover of USD 100,000 in Quarter I of 2013, including
USD 85,000 from sale of passenger tickets, USD 10,000 from sale of bills of
lading and USD 5,000 from sale of MCO (Miscellaneous charges order); and from the
amount collected on behalf of the State (airport charge) worth USD 1,000, the
refund of tickets returned by passengers is USD 2,000.
The
turnover for EIT calculation in Quarter I of 2013 of the foreign airline A is determined
as follows:
Turnover
for EIT calculation = 100,000 – (1,000 + 2,000) = USD 97,000
-
The turnover for EIT calculation of foreign shipping firms is the whole freights
for transport of passengers and goods, and other surcharges earning from the
port of loading in Vietnam to the final port of unloading goods (including the
freights of the consignments being transshiped via intermediary ports) and/or
the freights from transport of goods among Vietnamese ports.
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Example
17:
The
company A is the agent for the foreign shipping firm X Under the transport
agent contract, the company A receives and transports goods to abroad, issues bill
of lading, collects freights on behalf of firm X.
The
enterprise B in Vietnam hires firm X (via the company A) to transport goods
from Vietnam to America of which the freight charge is USD 100,000.
The
company A hired ships from Vietnamese enterprises or foreign ships to transport
goods from Vietnam to Singapore of which the freight charge is USD 20,000. From
Singapore, the goods will be transported to America using firm X’s ships.
The
EIT-liable turnover of foreign shipping firm X is determined as follows:
EIT-liable
turnover = 100,000 – 20,000 = USD 80,000
-
For international forwarding and warehousing services from Vietnam to abroad
(regardless of whether the sender or the recipient pays the service charge),
the turnover for EIT calculation is the whole turnover earned by foreign
contractors exluding international freights payable to transport firms (by air or sea)
-
For international delivery services from Vietnam to abroad (regardless of
whether the sender or the recipient pays the service charge), the turnover for
EIT calculation is the whole turnover earned by foreign contractors.
Example
18:
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+
For delivery services from abroad to Vietnam (regardless of whether the
overseas sender or the recipient in Vietnam pays the service charge) are not
subject to enterprise income tax;
+
For delivery services from Vietnam to abroad (regardless of whether the
overseas sender or the recipient in Vietnam pays the service charge), the turnover
for EIT calculation is the whole turnover earned by the company A.
-
For reinsurance, the turnover for EIT calculation is determined as follows:
+
For the transfer of reinsurance to abroad, the turnover for EIT calculation is
the charges from the transfer of reinsurance to abroad earned by foreign
contractors (including reinsurance commision and indemnity expenditure to
customer as agreed).
+
For the reception of reinsurance from abroad, the turnover for EIT calculation
is the reinsurance transfer commision earned by foreign contractors.
The
specific provisions of the tax policy on insurance services shall be implemented
under particularly guiding of the Ministry of Finance.
-
For securities transfer, the turnover for EIT calculation is determined as
follows:
For
the transfers of securities, bonds (except for tax-exempt bonds), deposit certificates,
the turnover for EIT calculation is the total turnover from the sale of
securities, bonds and deposit certificates at the time of transfer.
The
specific provisions of the tax policy on securities activities shall be
implemented under particularly guiding of the Ministry of Finance.
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Example
19:
Bank
A (A) grant a loan worth at USD 10 million with the fixed interest rate of 5.2%/month.
The contract term is 3 years from February 01, 2012 to February 01, 2015. The
payment term is every 6 months. The payment is made at the beginning of the
period.
Under
the A’s loan contract, A negotiates with bank B (B) abroad for performing the
interest rate swap contract, in particular:
-
The contract term is 3 years from February 01, 2012 to February 01, 2015. The
payment term is 6 months one time. The payment is made at the beginning of the
period.
-
The floating interest rate that A must pay B is libor + 0.25% . The fixed
interest rate that B must pay A is 5.2%. That means if the interest rate libor
+ 0.25% is higher than the fixed interest rate in the swap contract, B shall
receive the interest rate difference from A as follows: (libor + 0.25%) –
interest payable by 5.2%. On the contrary, if the interest rate libor + 0.25%
is lower than the fixed interest rate in the swap contract, A shall receive the
interest rate difference from B calculated as: 5.2% – interest that A receive
by libor + 0.25%.
Time of payment
Libor interest rate
(%)
A must pay B (%)
B must pay A (%)
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Difference that A
or B receives each period (USD 1,000)
A
B
A
B
February
01 2012 – July 31, 2012
4.80
5.05
5.20
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0.15
-
15
August
1, 2012 – January 31, 2013
5.00
5.25
5.20
0.05
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February
1, 2013 – July 31, 2013
4.90
5.15
5.20
0.05
-
5
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4.95
5.20
5.20
0.00
-
-
February
1, 2014 – July 31, 2014
4.90
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5.20
0.05
5
August
11, 2014 – January 30, 2015
5.05
5.30
5.20
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10
The
turnover for EIT calculation of B is determined as follows:
-
In 2012 (from January 01, 2012 – December 31, 2012: the total amount that B
receive from A is: (15,000
– 5,000) = USD 10,000
In
2013 (from January 01, 2013 – December 31, 2013: the total amount that B
receive from A is: (5,000
- 0) = USD 5,000;
-
In 2014 (from January 01, 2014 – December 31, 2014: B does not receive and must
pay A 5,000 USD (taxable turnover = 0);
-
In 2015: According to contract with agreement on making payment at the
beginning of the period, there is not offsetting payment between A and B.
The
specific provisions of tax policy on derivative financial services shall be implemented
under particularly guiding of the Ministry of Finance.
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a)
Rate (%) of the EIT based on the taxable turnove for business lines:
No.
Business line
Enterprise income tax rate (%)
based on taxable turnover
1
Trade:
Distributing, providing goods, raw materials, machinery and equipment
attached to services in Vietnam {including supply of on-spot export and
import (except for processing goods for foreign organizations, individuals); supply
of goods under the DDP, DAT, DAP conditions (- Incoterms) }
1
2
Services,
insurance, leasing machinery and equipment, leasing drilling rigs
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3
Restaurant,
hotel, casino management services
10
4
Leasing
airplanes, airplane engines, spare parts of airplane, ships
2
5
Construction,
installation including or excluding materials or machinery and equipment
attached to the construction
2
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Other
production and business, transport (by sea, by air)
2
7
Transferring
securities, reinsurrance to abroad, reinsurance transfer commision
0.1
8
Derivative
financial services
2
9
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5
10
Copyright
income
10
b)
Enterprise income tax rate (%) based on taxable turnover in certain cases:
-
For contractor contracts, sub-contractor contracts covering multiple business
activities, the application of the enterprise income tax rates based on the
taxable turnover when determining the enterprise income tax amount payable
shall depend on the EIT-liable turnover from each business activity performed
by foreign contractors, foreign sub-contractors under contracts. In case it is
not able to separate the value of each business activity, the highest
enterprise income tax rate for the business line shall be applied to the whole
contract value.
For
constructions and installation including materials or machinery and equipment
attached to the constructions, enterprise income tax rate based on the taxable turnover
is 2% over the whole contract value. In case the foreign contractor signs
contracts with sub-contractors to assign the whole value of work or item that including
materials or machinery and equipment and the foreign contractor only performs
the remaining services under the contractor contract, the enterprise income tax
rate based on the EIT-liiable turnover shall be applied to the service industry
(5%).
Example
20:
The
foreign contractor A signs a contract to build a power plant X with the Vietnam party of which the value is USD 75 million (excluding VAT but including enterprise
income tax), the contract value includes:
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+
The value of technology line designs, other designs: USD 5 million.
+
The value of workshops, other ancillary systems, construction, installation USD
15 million.
+
The value of supervision services, installation instructions: USD 3 million.
+
The value of technical training, trial operation: USD 2 million.
In
this case, enterprise income tax rate (%) applicable the whole USD 75 million
contract value is 2%, not separating the business activities performed by the
foreign contractor A.
In
case the foreign contractor A signs contract with sub-contractors to assign the
portion of work that includes materials, the foreign contractor A only performs
the portion of service value (such as supervision, installation instruction),
the enterprise income tax rate (%) on such service value is 5%.
-
For contracts to provide machinery and equipment attached to sevices of
installation instructions, training, operation, trial running if it is able to
separate the values of machinery, equipment from service value, the tax shall
be calculated by separate tax rate on each part of the contract value. In case
the contract does not separate the value of machinery, equipment from the value
of services, shall apply 2% for the enterprise income tax rate on the taxable
income.
Example
21:
The
foreign contractor A signs a contract with the Vietnam party to provide a line
of machinery and equipment valued at USD 70 million. The contract value
includes:
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+
The value of technology line designs, other designs: USD 5 million
+
The value of supervision services, installation instructions: USD 3 million
+
The value of technical training, trial operation: USD 2 million.
If
it is able to separate the value of machinery and equipment from the value of
such services, the enterprise income tax rate shall be applied as follows: Applying
the rate on trade line to the value of machinery and equipment; applying the
rate on the service line to the value of the designs, installation supervision,
training, trial operation.
In
case it is not able to separate, shall apply 2% for the enterprise income tax
rate based on whole contract value (USD 70 million).
Section 4. PAYING VAT UNDER THE DEDUCTION METHOD, PAYING ENTERPRISE INCOME TAX BY THE
RATES % CALCULATED ON TURNOVER
(hereinafter
referred to as combined method)
Article 14. Subjects and conditions of application
Foreign
contractors, foreign sub-contractors satisfying the conditions (i) and (ii)
prescribed in Article 8 Section 2 Chapter II of this Circular and practice
accounting under the law on accounting and the guidance from the Ministry of
Finance shall register with tax agencies to pay VAT under deduction method and
pay enterprise income tax under the rate % calculated on taxable turnover.
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Implemented
as guided in Article 9 Section 2 Chapter II of this Circular.
Article 16. Enterprise income tax
Implemented
as guided in Article 13 Section 3 Chapter II of this Circular.
Section 5. PROVISIONS ON TAX DECLARATION AND PAYMENT
Article 17. Declaring and paying tax in cases
1.
Foreign contractors, foreign sub-contractors fulfilling the tax liability under
one of the three methods guided in Chapter II of this Circular must continue to
declare and pay tax under the method being implemented until ending contract.
2.
Foreign contractors, foreign sub-contractors fulfilling the tax liability under
one of the three methods guided in Chapter II of this Circular, that continue
to sign new contractor contracts or sub-contractor contracts in Vietnam while
the old contractor contracts or sub-contractor contracts have not been finished,
they must declare and pay tax for the new contractor contracts, sub-contractor contracts
under the method being applied to the old contractor contracts or
sub-contractor contracts.
3.
In case the new contractor contracts or sub-contractor contracts are signed,
performed when the old contractor contracts or sub-contractor contracts have
finished, foreign contractors, foreign sub-contractors are allow to reregister
tax payment method for the new contract under one of the three methods as
guided in Chapter II this Circular.
4.
In case the foreign contractor, foreign sub-contractor performs many contracts
at the same time, if there is a contract that eligible as prescribed and the
foreign contractor, foreign sub-contractor registers to pay tax under the
deduction method, declaration method or combined method, the other contracts
(including the ineligible contracts) must pay tax under the method registered
by the foreign contractor, foreign sub-contractor.
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In
case the foreign contractor, foreign sub-contractors providing goods, services
to explore, develop and exploit oilfields and gas fields pay VAT under the
deduction method: While the foreign contractor, foreign sub-contractor is not
issued with the certificate of tax registration by tax agencies to declare and
pay VAT under the deduction method, if the Vietnam party make payment to the
foreign contractor, foreign sub-contractor, the Vietnam party is liable to
deduct and pay VAT on their behalf under the prescribed rate. While the foreign
contractor, foreign sub-contractor has been issued with the certificate of tax
registration by tax agencies, they are liable to declare and pay tax under the
deduction method for the turover arising as from being issued with the tax
registration certificate. The VAT amount paid by the Vietnam party on behalf of
foreign contractors, foreign sub-contractors under the rate is not clearing for
the VAT amount payable of foreign contractors, foreign sub-contractors, and the
foreign contractor, foreign sub-contractors are not allowed to deduct the input
VAT arising before being issued with the tax registration certificate.
Example
22:
In
January 2013, the foreign contractor A signs a contract with the Vietnam party to provide the oil drilling service valued at USD 1 million. While the
foreign contractor A is not issued with the tax registration certificate by tax
agencies to pay VAT under the deduction method, the foreign contractor A
arises the input VAT on goods, services bought to perform the contract is USD 5,000.
To payment limit time, when the Vietnam party pays USD 100,000 to the foreign
contractor A (including VAT, excluding enterprise income tax), the Vietnam
party is responsible to deduct the VAT under the rate of the added value based
on the taxable turnover being 70% for oil drilling services and the tax rate is
10%. Therefore, the tax that the Vietnam party pays on behalf of the foreign
contractor A is USD 7,000.
Until
May 01, 2013, the foreign contractor A register and be issued with the tax
registration certificate by tax agencies and they declare and pay the VAT under
the deduction method themselves. Until May 15, 2013, the Vietnam party continues to pay the foreign contractor A USD 200,000, the foreign contractor A issue
the VAT invoice to the Vietnam party with USD 20,000 of VAT (USD 200,000 x
10%). The arising VAT from May 01, 2013 until May 15, 2013 is USD 2,000. The
VAT amount that the foreign contractor A paid is USD 18,000 (USD 20,000 - USD 2,000).
The foreign contractor A is not allowed to deduct USD 5,000 of the input VAT having
arisen before May 01, 2013.
Chapter III
ORGANIZING THE
IMPLEMENTATION
Article 18. Effects
1.
This Circular takes effect after 45 days as from its signing and supersedes the
Circular No. 134/2008/TT-BTC of December 31, 2008 of the Ministry of Finance on
guiding the performance of tax liability applicable to foreign organizations,
individuals doing business or earning incomes in Vietnam, the Circular No.
197/2009/TT-BTC of October 09, 2009 of the Ministry of Finance on supplementing
the Circular No. 134/2008/TT-BTC , the Circular No. 64/2010/TT-BTC of April 22,
2010 of the Ministry of Finance on amending and supplementing the Circular No.134/2008/TT-BTC.
2.
For the contracts, sub-contractor contracts signed before this Circular takes
effect, the determination of VAT liability, enterprise income tax liability
shall be implemented as guided in the corresponding legal documetns at the time
of contract signing, except for the following cases:
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Example
23:
In
2008, the enterprise A in Vietnam signs a contract to buy machinery and
equipment for the cement plant project with the enterprise B overseas. The
total contract value is USD 100 million including the value of machinery and
equipment (that cannot be produced at home) being USD 80 million, the value of
services of installation instruction, installation supervision, maintenance
being USD 20 million.
According
ot the law provisions on VAT having taken effect before January 01, 2009, the
machinery and equipment not being able to be produced at home to consitute the
fixed assets of enterprises are not subject to VAT. In 2009, the enterprise A
imports machinery and equipment under the contract signed with the enterprise B
and has paid the VAT in the import stage. In this case, the tunover for VAT
calculation of the foreign contractor (the enterprise B) is determined as
prescribed in Article 6 Section 1 Chapter II of this Circular.
-
For the incomes of foreign contractors, foreign sub-contractors being business
individuals earned from January 01, 2009, the income tax liability shall be
fulfilled under the law provisions on personal income tax.
-
For contractor contracts, sub-contractor contracts to provide services not
subject to VAT and enterprise income tax, or the loan contracts not subject to
enterprise income tax to loan intererst as prescribed in the Circular No.
169/1998/TT-BTC of December 22, 1998 of the Ministry of Finance that become
subject to VAT, enterprise income tax now as prescribed in this Circular, the
provisions in this Circular shall apply as from March 01, 2012.
-
For contractor contracts, sub-contractor contracts appying rates (%) of EIT
based on taxable turnover under provisions in previous circulars that are higher
than rates in this Circular, the rates in this Circular shall apply as from
March 01, 2012.
-
The rates (%) of EIT based on taxable turnover from contracts of restaurant,
hotel, casino management sevices shall apply this Circular as from March 01,
2012.
3.
In case the international treaties that the Socialist Republic of Vietnam signs
or participates in prescribed the tax payment of foreign contractors, foreign
sub-contractors differently from that in this Circular, the provisions of the
international treaties shall apply.
During
the course of implementation, the units and business establishments are
recommended to send feedbacks on the difficulties to the Ministry of Finance
for prompt settlement./.
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FOR THE MINISTER
DEPUTY MINISTER
Do Hoang Anh Tuan