Ban tin thue thang 9 Tieng Anh view - Deloitte United …...(“AKFTA”). Speciﬁcally, the...

September 2018

Tax Newsletter

For reference only, not to be distributed, or sold

NEW REGULATIONS

New regulations on electronic invoicingImport tax exemption procedure according to International Agreements and TreatiesNew List of special commodities entitled to AKFTA preferential tax rates

Corporate Income Tax (“CIT”)Conditions for changing fixed asset (“FA”) depreciation methodProvision for financial investment loss if the capital investees suffer from lossesPersonal Income Tax (“PIT”)No PIT on profit distributed to individual being the owner of one-member limited liability companiesPIT declaration and finalization at branchesHousing allowance included in bonus is also capped at 15% for PIT purposesPIT on dividends paid in shares to individualsSeverance allowance paid higher than regulated in laws is subject to PITPromotional gift redeemed for cash is subject to PITForeign Contractor Withholding Tax (“FCWT”)FCWT on intermediary payment service via MoMo e-walletFCWT on contract compensationValue Added Tax (“VAT”)Debt trading between the company and its branch is not exempted from VATLand value is deducted from purchase price when determining VAT on the transfer of real estateRelated party transactionsCompanies having related party transactions must prepare, maintain and provide Group Master fileTax administrationRevisions of invoice usage report before tax audit will not be penalizedThe business owner of an absconded company is still compelled to pay tax debtsNo late payment interest during PIT relief period CustomsSupplementary declaration for late submission of certificates of origin (“C/O”)Notification of manufacturing facilities to new managing Customs Sub-departmentDeadline for supplementary of C/O is counted continuouslyApplication priorities for goods classification based on HS NomenclatureProducts purchased for export should be registered under trading mode upon exportPost-clearance supplementation of documents is temporarily accepted for e-customs declarationAnswers to some questions related to C/OChange line to check physical goods and determine name of goodsEntrusted import of automotive components (group 98.49) enjoys 0% duty rateTrading activities of FDI enterprises

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GUIDING DOCUMENTATIONS

On 12 September 2018, the Government issued Decree No. 119/2018/ND-CP (“Decree 119”) on the use of electronic invoice(“e-invoice”) when selling goods and providing services.

Accordingly, all businesses, economic organizations and other organizations are required to issue e-invoices when selling goods and providing services irrespective of the value of each transaction.

New regulations on electronic invoicing

NEW REGULATIONS

E-invoices without verification code of the Tax authorities are applied to enterprises in certain fields such as electricity, petroleum, aviation, water supply, banking, etc.; and those who have been transacting

or are going to transact with the tax authorities via electronic means, and meet the requirement on information technology infrastructure and software systems.

Enterprises required to use e-invoices with verification code of the Tax authorities include high tax risk enterprises, enterprises who voluntarily register to use, and otherbusiness individuals and households.

Taxpayers register to use e-invoices either with or without verification code on the web portal of the General Department of Taxation by filling in Form 01 of the Appendix to this Decree. Tax offices shall notify taxpayers of the acceptance ornon-acceptance of using e-invoices within 01 working day after receiving the registration.

E-invoices include VAT invoice, sales invoice, stamps, tickets, electronic receipts and other electronic documents which having the contents of e-invoices. There are two (02) types of e-invoices: e-invoices with verification code of the Tax authorities and e-invoices without verification code of the Tax authorities.

For reference only, not to be distributed, or sold © 2018 Deloitte Vietnam Tax Advisory Co. Ltd.3

Decree 119 takes effect from 01 November 2018. Enterprises already registered to use e-invoices with or without verification code before the effective date continue using such e-invoices.

During the transition period from 01 November 2018 to 31 October 2020, enterprises had registered the issuance of the paper invoices may continue using such invoices in accordance with Decree No. 51/2010/ND-CP and Decree No. 04/2014/ND-CP.

For more details of changes and new regulations under Decree 119, please refer to Deloitte Vietnam’s Tax Alert released on 18 September 2018.

Import tax exemption procedure according to International Agreements and Treaties

The General Department of Customs promulgates Decision No. 2503/QD-TCHQ (“Decision 2503”) dated 23 August 2018 on the process of handling import tax exemption under international agreements or treaties between Vietnamese Government and non-governmental organizations.

Some noteworthy points in Decision 2503 are as follows:

The Decision came into effect 15 days after its signing date.

Tax Policy Division under Import-Export Tax Department shall be assigned to handle the dossiers.

Where international agreements and treaties do not regulate the types and quantities of tax exempted goods, Customs shall consult the Ministry of Foreign Affairs on the types and quantities of tax exempted goods. After being accepted by the Ministry of Foreign Affairs, Customs shall prepare reports to the Prime Minister for decision on the types and quantities that are tax exempted.

Customs will provide a list of import tax exempted goods to provincial Customs Departments (where the taxpayer isheadquartered) for issuance of a tracking slip on the quantities of such tax exempted goods.

4© 2018 Deloitte Vietnam Tax Advisory Co. Ltd. For reference only, not to be distributed, or sold

GUIDING DOCUMENTATIONS

New List of special commodities entitled to AKFTA preferential tax rates Conditions for changing fixed

asset (“FA”) depreciation method

Corporate Income Tax (“CIT”)

On 14 September 2018, the Ministry of Industry and Trade issuedCircular No. 26/2018/TT-BCT, amending and supplementing Circular No. 20/2014/TT-BCT dated 25 June 2014, on the implementation of Rules of origin in the ASEAN – Korea Free Trade Area Agreement (“AKFTA”).

Specifically, the Circular provides a new Annex IV specifying on the list of special commodities to be applied under the Rules of origin when considering the conditions for enjoying AKFTA preferential tax rates under provisions of Article 6, Annex I, Circular No. 20/2014/TT-BCT.

This Circular will take effect from 29 October 2018 and abolishes previous Annex IV attached with Circular No. 20/2014/TT-BCT.

On 21 August 2018, the General Department of Taxation issued Official Letter No. 3228/TCT-DNL guiding the determine of depreciation amount when changing FA depreciation method.

Accordingly, in case there is no change in FA useful life and no improvement or upgrading activities to extend the useful life of FAcompared to its original status, in order to change FA depreciation method, the company must ensure:

Condition: the change of depreciation method does not change the company’s business result from profit position into loss position or vice versa at the year the changing decision is made; and

Depreciation for each remaining period is equal to remaining value of FA divided by remaining useful life of FA (if there is no change in such useful life in comparison with the original estimation).


Personal Income Tax (“PIT”)Provision for financialinvestment loss if the capital investees suffer from losses No PIT on profit distributed to

individual being the owner of one-member limited liability companies

PIT declaration and finalization at branches

On 29 June 2018, Ho Chi Minh City Tax Department issued Official Letter No. 6315/CT-TTHT guiding the provisions for long-terminvestments.

Accordingly, when a company makes capital contributions to other companies (counterparty), in principle, if business result recorded in the financial statements of the counterparty is at a loss position (this loss must not be the loss foreseen in the business plan made before investment) and total actual investment capital of the company is higher than the total equity of the counterparty at the issuance time of the financial statement, thecompany can make provision for long-term financial investment based on the counterparty’s accounting balance sheet and this provision would be treated as deductible expense for CIT purposes.

On 04 September 2018, the General Department of Taxation issued Official Letter No. 3387/TCT-CS guiding PIT policy. Accordingly, in case a one-member limited liability company is established by an individual under Enterprise Law, from 01 January 2015 profits after corporate taxes distributed to that individual will not subject to PIT.

On 27 August 2018, the General Department of Taxation issued Official Letter No. 3291/TCT-TNCN guiding PIT declaration andfinalization at branches.

Accordingly, the responsibility to withhold and make PIT payments belongs to the direct paying body. For employees working at branches, if the branch directly pays salary, then it has to withhold and pay PIT for its employees. If the parent company is the direct paying body, then it is required to withhold and make PIT payments.


Housing allowance included in bonus is also capped at 15% for PIT purposes

Severance allowance paid higher than regulated in laws is subject to PIT

PIT on dividends paid in shares to individuals

On 23 August 2018, the General Department of Taxation issued Official Letter No. 3256/TCT-TNCN guiding PIT on housing allowances that the company paid on behalf of its employees.

Accordingly, when the company pays bonus to employees including housing allowances, such housing allowances shall be included in incomes from salaries and wages for PIT calculation but the taxable threshold shall not exceed 15% of total taxable income.

On 05 July 2018, Ho Chi Minh City Tax Department issued Official Letter No. 6553/CT-TTHT guiding PIT on the amount of severance allowance paid higher than regulated, specifically:

On 20 August 2018, the General Department of Taxation issued Official Letter No. 3206/TCT-CS guiding PIT on dividends paid by shares to individuals.

Accordingly, dividends paid in form of shares are not required to declare capital investment tax at the time receiving shares. However, when transferring these securities, individuals must declare and pay PIT on both capital investment income and securities transfer income.

Income from capital investment: The individual is responsible for declaring and paying PIT on income from capital investment. The company has noresponsibility to withhold or pay taxes.

Income from securities transfer: In case the shares belong to public company trading at Stock Exchange, individuals are not required to directly declare and pay the tax. Instead, the securities companies or commercial banks where individuals opened custody account, or the fund management company where the investment portfolio is managed, will be responsible for PIT declaration.

The amount of severanceallowance paid to employees in accordance with the Labor Code is exempted from PIT;


In case, the company pays salary, bonuses and allowances after termination date of the labor contract, it has to withhold PIT at 10% rate applied to wages, salary and other incomes paid to tax resident individuals who do not sign a labor contract. The employee shall be responsible forre-determining his PIT obligation on incomes being withheld by the company at year-end when making direct PIT finalization with the tax office.

Promotional gift redeemed for cash is subject to PIT

On 12 June 2018, Ho Chi Minh City Tax Department issued Official Letter No. 5509/CT-TTHT guiding tax policies for promotional gifts for customers.

Accordingly, where the company carries out a “travel tour” promotion program for customers achieving sales target, in case the customers are business households or individuals, if they decide not to participate in the tour but redeem for cash instead, when paying this amount, the company must withhold PIT at the rate of 1% applied to income from other activities of business individuals.

The extra amount of severance allowance paid to employees, which is not in accordance with Labor Code and Social Insurance Code (extra paid) is subject to PIT.


Foreign Contractor Withholding Tax (“FCWT”)

FCWT on intermediary payment service via MoMo e-wallet

FCWT on contractcompensation

For PIT declaration on behalf of customers, the company shall use Form 01/CNKD promulgated in Circular No. 92/2015/TT-BTC and specify the phrase "Declaration on behalf" before the phrase "Taxpayer".

On 07 September 2018, the General Department of Taxation issued Official Letter No. 3428/TCT-CS guiding FCWT declaration and payment for intermediary payment service of MoMo e-wallet.

Accordingly, in case foreigncompanies provide intermediary payment service via MoMo e-wallet for transactions of sales or purchase of goods and services, FCWT treatment in terms of incomes earned from transaction processing fees paid by the seller of goods and services is as follows:

On 06 July 2018, Ho Chi Minh City Tax Department issued Official Letter No. 6600/CT-TTHT guiding tax policies for contract compensation.

Accordingly, in cases where foreign companies receive compensation arisen from purchase contracts with companies in Vietnam, such compensation amount is subject to FCWT at CIT - 2% and VAT-exempt.

Technically, Vietnamese company paying the compensation shall be responsible for withholding FCWT on behalf of the foreign party.

For transactions that both seller and buyer are inVietnam: The fee that foreign companies received by the seller of goods and services in Vietnam is subject to FCWT. At the same time, the supplier is responsible for withholding FCWT before remitting transaction processing fee to the foreign company.

For transactions that seller is foreigner and buyer is in Vietnam: Transactionprocessing service fees paid by the foreign supplier would not be subject to FCWT.


Value Added Tax (“VAT”)

Debt trading between the company and its branch is not exempted from VAT

Land value is deducted from purchase price whendetermining VAT on the transfer of real estate

On 27 August 2018, the General Department of Taxation issued Official Letter No. 3300/TCT-DNL guiding tax liabilities for the transfer of assets between the company and the branch.

Accordingly, where a branch transfers all its assets and account payables to the parent company through a purchase contract or an agreement on the transfer of assets and account payables, such transfer shall not be considered asbusiness type transformation. Consequently, the branch shall not be exempted from tax declaration but required to pay VAT.

Regarding the accumulated losses (if any) of the branch, when being actually transferred to the parent

company under the above purchase contract or agreement, such losses shall not fall into cases that are allowed to be carried forward under the rule of 5consecutive years.

On 13 August 2018, Ho Chi Minh City Tax Department issued Official Letter No. 7981/CT-THT guiding VAT on real estate transfer activities.

Specifically, where a company buys land from individuals; invests in infrastructure, splits the purchased land into lots, then transfer the land use rights of such lots to other individuals, the land use rights shall not be subject to VAT. As a result, value of land use right can be deducted from the transfer price when calculating VAT. The deductible land value for VAT purposes is the price of such land use right at the point of time when the land use right is transferred.

However, if the Vietnamese company does not withhold tax, and at the same time, the foreign partyauthorizes another third party in Vietnam to collect suchcompensation, the third party shall be responsible forwithholding and paying FCWT on behalf of the foreign party.


Related party transactions

Companies having related party transactions must prepare, maintain and provide Group Master file

Tax administration

Revisions of invoice usage report before tax audit will not be penalized

The business owner of an absconded company is still compelled to pay tax debts

On 16 August 2018, the General Department of Taxation issued Official Letter No. 3170/TCT-TTr answering questions on theimplementation of DecreeNo. 20/2017/ND-CP dated 24 February 2017 and Circular No. 41/2017/TT-BTC dated 28 April 2017 of the Ministry of Finance.

Specifically, related party transaction dossiers, including Group Master file, must be prepared by taxpayers under Decree No. 20/2017/ND-CP before the deadline of tax finalization and kept at the taxpayer’s site. The taxpayers are obliged to provide these dossiers to Tax authorities when requested.

On 15 August 2018, General Department of Taxation issued Official Letter No. 3142/TCT-DNL guiding invoice usage report.

Accordingly, if a company finds out that the invoice usage report submitted was incorrect, and had submitted a revised invoice report before the Tax authority issues the audit or inspection decision, then it shall not be penalized.

On 17 August 2018, the General Department of Taxation issued Official Letter No. 3185/TCT-QLN on collecting of tax debts of absconed companies.

Accordingly, when a company leaving its business address does not carry out dissolution orbankruptcy procedures, thebusiness owner shall still be responsible for the remaining tax debts. If the business owner fails to fully paid tax debts over 90 days after the payment deadline, Tax


Customs

Supplementary declaration for late submission ofcertificates of origin (“C/O”)

No late payment interest during PIT relief period

Pursuant to Clause 2, Article 5, Circular No. 38/2018/TT-BTC, if the C/O has yet to be submitted at the time carrying out customs procedures, customs declarants should note about late submission of C/O on e-customs declaration form. When supplementing the C/O at post customs clearance, customs declarants fill in C/O reference number and issuance date on the supplementary declaration form.

Accordingly, at the time carrying out customs procedures, if no late submission of C/O is noted while the goods have physically passed through customs clearance, companies are not allowed to makeamendment to the declaration and then to supplement the C/O.

Above is the guidance in Official Letter No. 2351/GSQL-GQ4 issued by the General Department of Customs dated 01 August 2018.

authorities shall have the right to apply measures to recover those debts.

However, depending on the type of absconded business, the owner of the business will be responsible for the payment of tax debts in different levels, such as within the amount of capital contributed, charter capital or the entire assets of the business owner.

On 15 August 2018, the General Department of Taxation issued Official Letter No. 3141/TCT-TNCN on no late payment interest applied during PIT relief period.

Accordingly, penalty for late payment shall be applied only after the expiration of tax relief period when taxpayers have to pay tax to the State budget. If taxpayers fail to pay full tax liabilities after the tax relief period ended, they shall bear late payment interests and be forced to comply with taxadministrative decisions.


On 02 August 2018, the General Department of Customs issued Official Letter No. 2370/GSQL-GQ1 guiding cases where the company changed its managing Customs Sub-department.

Specifically, when changing Customs Sub-department, the company must notify about its manufacturing facilities to the new managing Customs Sub-department, including all information related to the production plant, Government inspections and other information on law compliance.

The former Customs Sub-department shall discuss and provide allinformation related to the company to the new one, including finalization reports on usage of raw materials, supplies, machines, tools, equipment and goods for export; compliance status; tax obligations, incomplete customs procedures (if any); and other information collected up to the date of such change.

On 23 August 2018, the General Department of Customs issued Official Letter No. 4943/TCHQ-GSQL on supplementary of C/O. According to Official Letter No. 13959/BTC-TCHQ dated 04 October 2016, if there is no official C/O at the time of customs clearance, the company shall declare the supplement of C/O on customs declaration form and submit C/O within 30 days from registration date of such declaration form.

The 30-day period from registration date is not 30 working days but counted on a continuous basis, including weekend days off and public holidays.

On 23 August 2018, the General Department of Customs issued Official Letter No. 4880/TXNK-PL guiding the classification of HS code for imported goods, specifically:

Notification of manufacturing facilities to new managing Customs Sub-department

Deadline for supplementary of C/O is counted continuously

Application priorities for goods classification based on HS Nomenclature


On 29 August 2018, the General Department of Customs issued Official Letter No. 2705/GSQL-GQ2 guiding customs procedures in cases of selling products to other enterprises for export.

Specifically, pursuant to guidance of the Law on Export-Import Duties and Decree No. 134/2016/ND-CP, in case where an enterprise imports goods to produce export goods but does not directly export the products but sells to other enterprises to export, the imports would not be eligible for duty exemption or refund on import duty paid.

Accordingly, those enterprises purchasing products made from imported materials would have to carry out customs procedures under trading mode upon export.

Post-clearance supplementation of documents is temporarily accepted for e-customsdeclaration

On 19 September 2018, the General Department of Customs issued Official Letter No. 5459/TCHQ-GSQL guiding cases where the system is not able to receive customs dossiers submitted by customs declarants. Specifically:

Products purchased for export should be registered under trading mode upon export

On the applicable description in the list of exported and imported goods in Vietnam: The Vietnamese list of exported and imported goods is formulated in full compliance with the HS Nomenclature of the World Customs Organization (6-digit code) and the ASEAN Harmonized Tariff Nomenclature (8-digit code). However, when there isdifference in description of goods between the Vietnamese list and the HS Nomenclature, then description of goods shall follow the HS Nomenclature;

On the HS code classification: The HS code classification must be based on customs records, technical documentation, physical information, chemical composition, properties, features, functions and utility of exported or imported goods. In order to determine the HS code with certainty, companies may request for advance ruling on HS code classification inaccordance with CircularNo. 39/2018/TT-BTC before carrying out customs procedures.


Answers to some questions related to C/O

In order to avoid system outage, provincial customs departments should notify and recommend customs declarants to uploadadditional documents under green line declaration out of business hours or during public holidays.

The above is temporary solution and only applicable until system issues are resolved.

On 25 June 2018, the Ministry of Industry and Trade issued Official Letter No. 4992/BCT-XNK to answer some questions related to content of Decree No. 31/2018/ ND-CP. Specifically:

For customs declarations under red and yellow lines: Enterprises have to submit/ presentdocuments in hard copy to conduct customs procedures and clearance of goods;

For declaration form under green lines: Enterprises have to submit customs dossiers after clearance within 5 days from the customs clearance date.

Regarding the use of e-customs declaration forms in C/O issuance application procedures:

According to Clause 9, Article 25, Decree No. 08/2015/ND-CP, enterprises are allowed to use e-customs declaration forms and do not have to print out and submit printed declaration forms when carrying out C/O issuance application procedures for exported goods.

However, according to the Ministry of Industry and Trade, the current look-up for e-customs declaration form in system often occurs errors, causes delay in documentation processing time; therefore, C/O application dossiersstipulated in Article 15 of Decree No. 31/2018/ND-CP are still required to be submitted in hard copy.

Regarding self-certified C/O

According to provisions of Article 25, Decree No. 31/2018/ND-CP, if traders qualify for a number of selective criteria under International Treaty or some criteria prescribed by importing country guided by the Ministry of Industry and Trade, they would


self-certify the origin of goods exported from Vietnam, not limited to agricultural or industrial goods.

Change line to check physical goods and determine name of goods

Entrusted import ofautomotive components (group 98.49) enjoys 0% duty rate

On 03 August 2018, the General Department of Customs issued Official Letter No. 2389/GSQL-GQ1 guiding the inspection of imported goods, specifically:


Regarding the change of line to conduct physical goodsinspection: Customs authorities may decide to change line to check physical goods, if:

during the detailed review of customs documents, inaccurate, incomplete or inconsistent contents between customs declarations and related customs documents, are detected;there are signs of non-compliance in goods control policies, taxregulations on imported and exported goods or other rulings.

Regarding the inspection for goods identification, category: Customs authorities may request for additional submission of technical documents, or purchase contracts, or component analysis report for their basis of goods identification, where:

When it is impossible to determine the exact name of goods and codes, Customs authorities, together with declarants, have to take samples for further testing and analysis, follow guidance of the Ministry of Finance on goods classification, in order to accurately determine name of the goods.

the information about goods identity and description declared in customs declaration forms are different from other documents of the customs dossiers: or

There is not having enough information to name the goods.

Where an automobile-manufacturing company (“trustee”) has registered for the Import duty incentive program and entrust the import of automobile components to another company (“trusted”), upon the usage finalization, the Customs authorities will refund overpaid duty amounts to the trustee's bank account if it fully satisfies theconditions for enjoying 0% duty rate as stipulated in Decree No. 125/2017/ND-CP.

Note: the trusted company has to submit a written request for refund of theoverpaid duty into the trustee’s bank account.

Regarding the handling of ending balance quantity of imported components: Any imported components that remained from the previous period (the previous finalization period) that have been used for manufacturing, assembling

of automobiles in thesubsequent period (the next finalization period) will not be entitled to 0% duty rate.

This official letter replaced the guideline on transferring outstanding components to the next period at Point 1, Official Letter No. 3782/TCHQ-TXNK dated 28 June 2018 of the General Department of Customs.

Trading activities of FDI enterprises

On 15 August 2018, the General Department of Customs issued Official Letter No. 4799/TCHQ-TXNK guiding the implementation of Import duty incentives program for automobile components and parts, specifically:

Recently, the Ministry of Industry and Trade has issued a number of official letters guiding tradingactivities of FDI enterprises according to Decree No. 09/2018/ND-CP such as Official Letter No. 6219/BCT-KH dated 07 August 2018 and Official Letter No. 6219/BCT-KH dated 07 August 2018. Specifically, some noteworthy points include:


Sales of goods to other traders or organizations not for retail or consumption are considered as wholesale activities.

Sales of goods to organizations for consumption, internal use of such organizations, not directly use in production process or for serviceimplementation under registered investment objectives and business activities, are considered as retail activities.

The wholesale and retaildistribution of goods manufactured by FDI enterprises in Vietnam according to the objectives of the registered investment projects are not regulated under Decree No. 09/2018/ND-CP. Therefore, FDI enterprises are not required to carry out procedures for applying for business license or retail establishment license when performing theseactivities.

Decree No. 09/2018/ND-CP does not contain compulsory provisions on whether the list of retail goods must be declared using HS codes, appellations, or chapters for foreign invested entities. The licensing department (Department of Industry and Trade) provide contents of goods in the business license, retail establishment license based on the application dossier of the economic organization, in line with the assessment and verification of the Department of Industry and Trade.


Contacts

Thomas McClellandNational Tax LeaderTel: +84 28 3910 [email protected]

Bui Ngoc TuanTax PartnerTel: +84 24 6268 [email protected]

Dinh Mai HanhTax PartnerTel: +84 24 6268 [email protected]

Phan Vu HoangTax PartnerTel: +84 28 3910 [email protected]

Hanoi15th Floor, Vinaconex Tower,34 Lang Ha Street, Dong Da District,Hanoi, VietnamTel: +84 24 6288 3568Fax: +84 24 6288 5678

Website: www.deloitte.com/vnEmail: [email protected]

Ho Chi Minh City18th Floor, Times Square Building,57-69F Dong Khoi Street, District 1,Ho Chi Minh City, VietnamTel: +84 28 3910 0751Fax: +84 28 3910 0750

Dion Thai PhuongTax PartnerTel: +84 28 3910 [email protected]

Bui Tuan MinhTax PartnerTel: +84 24 6268 [email protected]

Suresh G KumarTax PartnerTel: +84 28 3910 0751 [email protected]

Vo Hiep Van AnTax PartnerTel: +84 28 3910 [email protected]


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About Deloitte Southeast Asia

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About Deloitte Vietnam

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©2018 Deloitte Vietnam Tax Advisory Co. Ltd.

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Ban tin thue thang 9 Tieng Anh view - Deloitte United …...(“AKFTA”). Speciﬁcally, the...

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