The followings are some of the more significant changes tax reforms

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1 Vietnam The Vietnamese tax regime has experienced significant change in 2011, with a number of laws being introduced, together with several new decrees and circulars. The followings are some of the more significant changes tax reforms Vietnam has seen a series of major tax reforms over the past decade. The government continues its efforts to tackle existing issues within the tax regulations, with further changes to be implemented in New decrees have been issued setting out guidelines on corporate income tax (CIT), value added tax (VAT) and special sales tax (SST). These decrees became effective in early The changes are aimed at rectifying certain limitations with the existing legislation, addressing specific issues that various industry sectors have lobbied for reform and catering for tax policy changes. It should be noted however, that detailed guidelines at the circular level regarding CIT and foreign contractor withholding tax (FCWT) are still at the draft stage. CIT changes Favourable amendments to the CIT deductibility provisions have been undertaken during the year, including a full deduction for life insurance premiums for employees, together with a deduction for commissions paid for multi-level marketing, which had previously been subject to the advertising and promotion cap. For taxpayers enjoying tax incentives, the changes seek to rectify a currently problematic provision of the legislation, which results in certain business related income being considered other income and subject to the standard 25% CIT rate, rather than an incentivised rate. Income from the reversal of provisions for inventory devaluation, financial investment loss, bad debts, warranty and salary will no longer be treated as other income. In addition, selling of scrap and realised foreign exchange gains/losses of receivables will also not be considered other income, to the extent the income can be shown to directly relate to the incentivised business activities. For assets that are revalued upon being contributed as capital (or upon a demerger, consolidation, merger or conversion), the revaluation amount will be taxable income in the year of revaluation. For land use rights however, the income can be spread over a maximum of 10 years. This differs from the current more generous practice of taxing this revaluation over the amortised/depreciable life of the assets. Non-taxable income will now include income from transfer of certified emission reductions within one year from the date of issuance, and share premiums on newly created shares. 88 Asia Pacific Tax Notes

2 FCWT changes Vietnam s FCWT regime is a collection mechanism for CIT and VAT on payments to foreign companies e.g. interest, royalties, licence fees, management fees and service charges. As part of the tax reforms, the government amended certain provisions relating to the CIT element of FCWT. The changes to CIT rates to be applied under the FCWT regime are as follows: Casino/hotel/ restaurant management services Previous rate Current rate 5% 10% Interest 10% 5% Re-insurance 2% 0.1% The reduction of the interest withholding tax rate from 10% to 5% is a welcomed change, as it will assist in lowering the finance costs of Vietnamese enterprises which are already troubled with the high domestic lending rates in Vietnam. The reduction of the withholding tax rate for re-insurance is also a positive step, even though most of the foreign re-insurers are able to claim CIT exemption under a tax treaty. In contrast, the CIT rate increase for casino, hotel and restaurant management services from 5% to 10% will have a significant impact, and will require taxpayers to review their existing agreements. CIT exemption under a tax treaty may be available to lower the tax burden. VAT changes New regulations (at both decree and circular levels) have recently been issued to amend and supplement the existing guidance on VAT. Under the new regulations, the list of supplies which are not subject to output VAT, but where related input VAT can nevertheless be claimed, is extended to include: goods and services provided outside Vietnam (even between two Vietnamese taxpayers) other financial income, except interest on loans from non-bank lenders fixed assets which are transferred between a parent company and its subsidiaries, or between subsidiaries of the same parent company, and which are used for producing/ providing VAT-able goods/services; capital contributions in the form of assets; transfers of assets between dependent units of the same company, or in the case of split/ merger/restructuring collections of compensation/ indemnities by insurance companies from third parties collections on behalf of other parties which are not related to the provision of goods/services, and commissions earned by agents selling certain services and commission from the selling of goods/services not subject to VAT. The definition of VAT exempt supplies has been expanded to include rediscount of negotiable instruments and other valuable papers, credit card issuance, debt factoring (including selling of debts), management of securities investment companies, services related to securities registered or deposited with the Vietnam Securities Depository, loans granted for margin trading, and advances to sellers of securities, foreign exchange trading, and certain public utility services. With regards to VAT-able supplies, the definition has been expanded to include sales of assets held as collateral, where the borrower is a VAT payer, or the ownership of the assets has been transferred to the lender. The new regulations have also been updated with regards to the application of the VAT direct method. Accordingly, where there is a negative value added from the trading of gold, silver or precious stones in a period, it can be offset against a positive value added of those activities. Any remaining negative balance can be carried forward to a subsequent period in the same calendar year. Taxpayers having both gold/silver/precious stone trading and processing activities should declare VAT for both activities under the direct method. The use of the direct method is no longer permitted for foreign entities or individuals providing goods or services for carrying out prospecting, exploration, development or exploitation of oil and gas fields. Instead, the Vietnamese customer is required to withhold VAT on their behalf, at a rate to be determined by the Ministry of Finance (expected to be 7%). Such withheld VAT may be offset against the foreign parties VAT liability, where they are VAT registered and file normal VAT returns. Vietnam 89

3 The new regulations also provide additional provisions on input VAT. Some notable inclusions are as follows. Input VAT relating to the purchase of goods that are subsequently damaged, and are not compensated, will be creditable. Input VAT relating to fixed assets, machinery and equipment of credit institutions and re-insurance, life insurance and securities trading companies, is not creditable but must be capitalised to the cost of the assets. The six month deadline to claim input VAT does not apply to VAT incurred during the pre-operational start up period. However, such a claim must be made prior to the commencement of any tax audit. Input VAT on goods (either purchased or produced by the company itself) which are used as promotional items for the sale of VAT-able goods/services are creditable. Where an invoice supplementing/ revising an original invoice is issued, the six month timeframe to claim input VAT now runs from the date on which the amended invoice is issued. Input VAT on goods/services purchased by authorised third parties is now creditable (this includes pre-operating expenses paid by parent companies). This is a welcomed development, and will help in a number of scenarios. For example, a company can now claim input VAT on expenses arising during its pre-operating period, which are paid for by the foreign parent company to local suppliers, as long as a payment authorisation is in place. Companies using goods for internal consumption are allowed to claim input VAT credits on these goods if the internal consumption relates to the production of VAT-able supplies. Special sales tax (SST) changes Decree 113/2011/TT-BTC issued on 8 December 2011 provides certain SST changes in relation to taxable price and tax credits. Where a manufacturer produces goods subject to SST and sells such goods through an agent, the minimum price for calculation of SST shall be 90% of the average selling price of the agent. However for automobiles, the agent s average selling price used for this purpose shall exclude the cost of additional equipment and accessories installed at the customer s request. Where a manufacturer produces goods under a licensing agreement and delivers goods to a branch or representative of an overseas company in Vietnam, the SST price shall be the selling price set by the branch or the representative. Under the new decree, taxpayers producing SST liable goods from SST liable raw materials shall be entitled to claim a credit for the SST amount already paid on raw materials imported or directly purchased from domestic manufacturers. Environment protection tax (EPT) The Law on Environment Protection Tax was introduced on 1 January EPT will be imposed at various rates on goods that impact the environment negatively when used, including petrol, oil, grease, coal, hydro chlorofluorocarbons (HCFCs), nylon bags and some limited usage chemicals (e.g. pesticides). However, certain goods will be exempt from EPT, including goods in transit through Vietnam, goods temporarily imported and then re-exported; and exported goods, excluding trading goods which are only purchased for exporting. It should also be noted that EPT is paid only once. Re-imported goods, on which EPT has been paid when exported, are not subject to EPT. EPT included in the price of purchased goods is allowed to be included in the cost of goods sold, and EPT is included when calculating VAT-able revenue. EPT will be refunded in cases of importing goods for re-export, and importing goods for use at fairs and exhibitions. 90 Asia Pacific Tax Notes

4 The expiry of CIT incentive for export enterprises One of the most significant changes in 2011 was the expiry of CIT incentive for export enterprises. Tax incentives that were previously awarded due to export criteria were removed from the end of This change was a condition of Vietnam s World Trade Organisation accession. Affected taxpayers are entitled to determine whether they can apply alternative incentives, based on the regulations effective from the time they were originally licensed until 21 March 2007, or those in effect at the end of Affected taxpayers need to notify the tax authorities on the option they wish to select. Failure to do so will presumably result in the taxpayers foregoing their tax incentive entitlements. VAT refunds for foreign visitors The government has recently issued Decision No. 05/2012/QD-TTg to implement a pilot project for VAT refunds. Effective from 1 July 2012 to 30 June 2014, foreigners departing Vietnam from Hanoi or Ho Chi Minh City international airport will qualify for a VAT refund, provided the goods meet the following conditions. They are unused goods that have been subject to VAT, and which are allowed as carry-on or checked baggage in accordance with aviation security and safety regulations The goods are not on the list of goods subject to export prohibition or restriction Invoices are issued within 30 days prior to departure, and The total value of goods purchased at one store on one day is VND2 million or greater. The refund only applies to goods purchased from companies which are registered with, and approved by, the Ministry of Finance to sell goods entitled to VAT refunds. The VAT refund application and the relevant goods will be reviewed/checked by customs officers at the respective airports. After the application is approved, the VAT will be refunded at commercial bank booths located inside the airport. Foreigners claiming VAT refunds will be charged a fee not exceeding 15% of the refunded amount. Personal income tax (PIT) According to the new regulations, the worldwide income of expatriate employees commencing their Vietnam assignment during a year, and staying in Vietnam for 183 days or more in that calendar year, is now taxed in Vietnam from 1 January of that year irrespective of date of arrival. While any tax paid overseas will be creditable against the PIT liability, this will involve an additional administrative burden and may still result in the payment of incremental Vietnamese tax. Tax administration Foreign individuals who claim PIT exemption under a double tax agreement (DTA) application are given relaxation under Circular 28. In the case that an individual has no tax residency certificate, because the resident country does not issue such certificates, he/she can submit a copy of his/her passport as an alternative document. A significant change which banks operating in Vietnam should note is that a business paying VAT under the direct method is now not permitted to carry forward a negative balance to the following month. Under previous regulations, for foreign currency/gold trading, VAT returns are filed on a monthly basis, but any negative balance for one month could be offset with the positive balance of any subsequent month, in the annual final return. Tax audits The Vietnam tax authorities are continuing to focus on issues surrounding compliance with the Vietnamese Accounting System and transfer pricing issues with related party transactions. A number of detailed transfer pricing audits have been carried out by the tax authorities, and this is expected to continue over the next few years. The tax authorities have indicated that the focus of such transfer pricing audits will not only be large, loss making multinational companies, but also domestically owned companies and/or profit-making companies with fluctuating margins. Vietnam 91

5 PwC. All rights reserved. PwC refers to the PwC network and/or one or more of its member firms, each of which is a separate legal entity. Please see structure for further details. HK C1

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