How to Set up a Company in Vietnam

Transcription

1 Lorenz & Partners Office-Information No: 33 (EN) How to Set up a Company in Vietnam December 2010 All rights reserved LORENZ & PARTNERS 2010

2 TABLE OF CONTENTS Introduction 3 1. Main Principles Forms of direct investment Forms of indirect investment Investment Sectors Licensing Term of investment projects Dispute resolution (Art. 12 LOI) Accounting System 7 2. Possible legal forms Representative Office Branch Office Limited Liability Company (LLC) Partnerships Public Limited ( Shareholding ) Company Business Co-operation Contract (BCC) Post-Licensing Procedures Tax Registration Financing Annual Financial Reports Labour Foreign owned trading company Import and Export Distribution 17 Lorenz & Partners December 2010 Page 2 of

3 Introduction Vietnam is getting more and more into the focus of Western and Eastern investors. Its GDP growth over the last decade was one of the highest worldwide. Even now, during the downturn of the world economy, Vietnam is one of the few countries expecting moderate growth rates for 2010 amounting up to 6.7%. Investment into Vietnam has become even more attractive since Vietnam was granted accession to the World Trade Organisation (WTO) on 11 th of January 2007, after a waiting period of 12 years. In order to become a member of the WTO, Vietnam had to pass a law on investments ( LOI ), that would grant the same rights to foreign investors as to domestic investors. According to the new LOI, domestic and foreign investors shall in general be treated equally. However, doing business in Vietnam is still sometimes complicated. The following chapters highlight some of the most important aspects to be considered in connection with structuring a business in Vietnam. Particularly, this brochure will stress the major points to be considered under the new LOI when investing either directly or indirectly into Vietnam. It will also outline the requirements for setting up a company according to the new Law on Enterprises (LOE), in force since 1 st of July In the Appendices to this brochure you will find terms, definitions and application forms as well as a detailed list of mandatory procedures for pre- and post-licensing processes. 1. Main Principles The main principles that govern foreign investment activities in Vietnam are, as mentioned above, now stated in the LOI. The law provides a wider range of in- Lorenz & Partners December 2010 Page 3 of

4 vestment methods, distinguishing between direct investments and indirect investments. 1.1 Forms of direct investment Establishment of companies, being 100% domestic or foreign owned; Joint ventures between domestic and foreign investors; Investment in the following contractual forms: - Business Co-operation Contract (BCC): A contract signed between investors to co-operate in business and to share profits or products without creating a legal entity. - Build-Operate-Transfer Contract (BOT): a contract between a competent State body and an investor. The investor shall construct and operate an infrastructure facility for a fixed period of time. After expiration of this period, the facility has to be transferred to the State of Vietnam. - Build-Transfer-Operate Contract (BTO):In contrary to the BOT, the facility is transferred to the State of Vietnam after completion. The investor is granted the right to operate the facility for a fixed period of time to recover the invested capital and to gain profit. - Build-Transfer Contract (BT): In contrary to BOT and BTO, the investor does not get the right to operate the facility. The Government, however, creates conditions for the investor to implement another project, so that he can recover the invested capital and gain profit. Investment in business development; Purchase of shares or contribution of capital in order to participate in the management of investment activities; Investment in carrying out merger and acquisition of an enterprise; Other forms of direct investment. Lorenz & Partners December 2010 Page 4 of

5 1.2 Forms of indirect investment Purchase of shares, bonds and other securities; Indirect investment through securities investment funds; Indirect investment through other intermediary financial institutions. 1.3 Investment Sectors According to Art. 4 Sec. 1 LOI, investors are permitted to invest in all sectors and industries not prohibited by law. Under the new law, Vietnam s economy is still divided in three sectors: encouraged sectors, conditional sectors and prohibited sectors. Conditional sectors, under the old law only accessible to those foreign investors willing to cope with the respective conditions (restrictions on investment forms, foreign participation etc.), are in general now accessible for both domestic and foreign investors under the same conditions. However, according to Art. 29 Sec. 3 LOI, equality in conditions shall follow the schedule for implementation of international treaties, into which Vietnam has entered. Total equality between domestic and foreign investors will therefore still take some time. 1.4 Licensing According to Art. 46 LOI, all foreign invested projects require an investment certificate. For domestic invested projects such investment certificate is only needed if the project exceeds an invested capital of approx. 790,000 USD (15 Billion. VND) (Art. 45 LOI). The process to obtain the aforementioned investment certificate differs between registration and evaluation procedures. Lorenz & Partners December 2010 Page 5 of

6 Foreign invested projects, where invested capital is below an amount of approx. 16 Mio. USD (300 Billion. VND) and not included in the list of sectors subject to conditions, are only subject to registration procedures. All other foreign invested projects are subject to registration and evaluation procedures. The significant difference is, that in cases which require registration procedures, the respective investment licence must be granted if the dossier is complete and true, whereas evaluation procedures comprise an assessment of the whole investment project by the license issuing body. 1.5 Term of investment projects In contrary to domestic invested projects, foreign invested projects are restricted in investment duration. The maximum term for a foreign invested project is 50 years (Art. 52 LOI). This period can be extended by the Government, if such extension is deemed necessary. However, the total maximum shall not exceed 70 years. The operational duration will be recorded in the investment certificate. 1.6 Dispute resolution (Art. 12 LOI) If one or both of the disputing parties is a foreign investor or an enterprise with foreign owned capital, the dispute shall be resolved by one of the following tribunals and organisations: A Vietnamese Court; A Vietnamese arbitration body in accordance with the agreement of the disputing parties; An arbitration tribunal established in accordance with the agreement of the disputing parties. Lorenz & Partners December 2010 Page 6 of

7 If the dispute arises between a foreign investor and a State administrative body of Vietnam, relating to investment activities in Vietnam, the dispute has to be resolved by a Vietnamese Court or a Vietnamese arbitration body, if not stipulated otherwise in the contract of the parties, signed by a representative of a competent State body of Vietnam and the foreign investor or stipulated in an international treaty of which Vietnam is a member. Recently in 2010, Vietnam has issued a new law on arbitration replacing the old legislation Ordinance on Arbitration. Foreign arbitrators are permitted to practice in Vietnam; representative office of international arbitration will also take the chance to be in Vietnam sooner or later. The main implementation however, might be that from now on, the English language can be agreed on in an Arbitration. While waiting the guidance for implementation, the new arbitration law is therefore a step forward to putting Vietnam into the Global market and making it a recognisable part of it. 1.7 Accounting System Vietnam has created its own accounting regime. Foreign companies that establish a legal entity in Vietnam as well as foreign parties to a business cooperation contract are obliged to adopt the Vietnamese Accounting System (VAS). In theory, any other accounting regime could be used. However, there has to be a specific need for such a deviating practice, which has to be approved by the Ministry of Finance. Approvals are rare. Consequently, it seems advisable to adopt the VAS to ensure smooth cooperation with the local authorities and in particular to minimise future misunderstandings. Lorenz & Partners December 2010 Page 7 of

8 2. Possible legal forms Since the enactment of the LOI and the new Law of Enterprises (LOE), foreign investors are no longer limited to certain legal forms. According to Art 13 of the LOE, all Vietnamese and foreign organisations as well as individuals shall have the right to establish and manage enterprises in Vietnam. Exceptions are made in Art 13 Sec. 2 e g for State officials and State bodies as well as for minors, persons serving prison sentences or in case of bankruptcy. The following shall give an overview over the most common legal forms chosen to carry on business: 2.1 Representative Office This is the simplest way to be present in Vietnam as an entity. The LOE provides a definition of the term representative office (rep. office) in Art 37 Sec. 1. Accordingly, a rep. office is a dependent unit of the enterprise, acting as the authorised representative in the interest of the enterprise and protecting such interests. Any foreign business entity or Vietnamese entity, which is lawfully established and has been operating for at least one year, can be licensed to establish a rep. office in Vietnam. Rep. offices shall only be used to evaluate the Vietnamese market and to prepare a market entry for activities of the foreign parent company. Direct business activities of the rep. offices themselves are not allowed. The head of the rep. office is, in this function, only entitled to sign contracts with regards to the employment of the rep. office s staff and its premises. However, the head of the rep. office can be authorised to sign contracts on behalf of the foreign Lorenz & Partners December 2010 Page 8 of

9 entity. But it should be taken into account that such authorisation can also lead to a possible tax exposure of the rep. office with regard to corporate income tax as a permanent establishment might be constituted by doing so. Representative offices in specific sectors such as banking, finance, legal services, culture, education or others must comply their specific laws thereof. 2.2 Branch Office A branch is a dependent part of a foreign entity which is permitted to conduct activities being purchase and sale of goods and activities in accordance with the Commercial Law and the international treaties of which Vietnam is a member. It is not a juristic person itself but the registered office of a foreign legal entity registered in Vietnam which is taxed separately from its headquarters as an independent business entity. To open a branch, an enterprise must be operating for at least five years. According to Art, 37 Sec. 5 of the new Law of Enterprises, every enterprise has the right to establish branch offices in Vietnam and overseas. Overseas enterprises may establish branches in Vietnam in accordance with international treaties to which Vietnamese is a member and with domestic law. The key difference between a branch and a representative office is that a branch is entitled to engage directly in business to generate profit in Vietnam while a rep. office is not entitled to do so. Branch offices in Vietnam are not being taxed with a branch tax. In general, a branch is only subject to corporate income tax (currently 25%). This tax is calculated separately from its mother company. The Licensing body is the Ministry of Commerce and Industry which administers branches and offices via the Department of Commerce and Industry at each city or province. Branches in specific sectors such as banking, finance, Lorenz & Partners December 2010 Page 9 of

10 legal services, culture, education or others must comply their specific laws thereof. 2.3 Limited Liability Company (LLC) LLC is the most common form of investment in Vietnam. Under the LOE, LLC is an enterprise, in which its members are liable for the debts and other property obligations of the enterprise only with the capital they contributed to the enterprise. A minimum capital is only required when conducting special businesses (real estate, banking etc). The amount is stipulated in the respective law. The number of its members is limited to a maximum of fifty. If members are more than fifty, the LLC must be converted into a shareholding company (joint-stock company). An LLC is a legal entity. It obtains this status from the day of issuance of the business registration certificate. An LLC cannot issue shares. However, when a member has fully paid his share of capital contribution, he will receive a capital contribution certificate. It is also possible for an LLC to raise its charter capital through a contribution of additional capital from the members or admission of new members to the company. Under the LOE, an LLC can be formed by multi-members (multi-members limited liability company or MMLLC) or a single member (single member limited liability company or SMLLC). member can be any person or an organisation. The SMLLC generally follows the rules of MMLLC. Concerning structure and required documents there are, however, some differences. The highest decision-making body is the Members Council for a MMLLC and the Owner of a SMLLC. The Legal representative of the enterprise has signing authority or authorises one or more person(s) to carry out his power. Lorenz & Partners December 2010 Page 10 of

11 He is responsible to run the day to - day business and report to the highest making decision body of the enterprise. Any form of an LLC has to hire a Chief Accountant. For the purpose of making the set up of a company easier, in the first year, any enterprise is permitted to outsource the accounting services. 2.4 Partnerships A partnership is an enterprise, in which two or more persons are united under one common name for a common purpose with the intent of sharing the profit thereof. Therefore, partnerships are appropriate for professional organisation (e.g. law firm, accounting and auditing firm etc.).the Vietnamese law regulates unlimited partnerships and limited partnerships. In an unlimited partnership, the partners are liable for the obligations of the company to the extent of all their assets. Partners in limited partnerships are liable for the debts of the company only to the extent of the amount of capital they have contributed to the company (similarly to members of LLC). A partnership under the Vietnamese law is a legal entity. It will enjoy this status from the date of issuance of the business registration certificate. There are no specific rules for partnerships. Accordingly, partnerships are treated similar to other forms of enterprises. 2.5 Public Limited ( Shareholding ) Company The procedure for setting up a public limited or shareholding company is similar to that of a limited liability company. The major difference is that a limited liability company is prohibited from offering shares to the public. Lorenz & Partners December 2010 Page 11 of

12 3. Business Co-operation Contract (BCC) Besides the possibility of co-operation in the form of a joint venture, the Vietnamese law offers with the BCC a special co-operation on a contractual basis. Participating entities remain independent (tax and liability). In order to reduce possible liabilities, the founding of a separate entity, which becomes party to the BCC, is advisable. Obligations and duties of the BCC-parties have to be regulated in the BCCcontract. 4. Post-Licensing Procedures The issuance of the business registration certificate respectively the investment certificate is the first step to commence operations. However, even after the changes in the Vietnamese investment law, there are still some post-licensing procedures, as listed below, which can be time consuming and therefore should be kept in mind. The following should be considered: General post-licensing Notification to the investment certificate issuing body on the commencement of the operations of the company within 15 days from the date of issuance of the investment certificate The establishment of the company must be published in three consecutive issues of daily newspaper within 30 days. The official seal of the company has to be produced and registered with the provincial police department. A tax registration must be applied for. A bank account must be opened. Lorenz & Partners December 2010 Page 12 of

13 A chief accountant must be nominated. Once an investor has fully paid up its capital contribution, the company is required to issue a certificate of capital contribution 4.1 Tax Registration Within 10 days after the issuance of an investment licence, the company (and affiliated establishments, if any) have to register with the local tax authorities. The business registration body has to notify the contents of the business registration certificate to the tax office within 7 working days from the date of issuance of such certificate. In time of steady operations the following tax related issues should be monitored and dealt with. In case of significant changes, a respective supplementary registration with the local tax authorities must be made at least 5 days in advance (if different VAT rates apply each group of goods or services must be declared separately).within 30 days from the tax authorities registration, the company must submit the vouchers with respect of transactions with related parties, to the tax authorities VAT payments have to be made according to the date stated in the tax notices, but not later than the 20 th day of the following month. Within 10 days of the following month, VAT returns have to be submitted. In case of the use of foreign service providers, foreign contractors withholding tax must be withheld and declared. In case of import of goods, VAT must be declared with the customs office. Lorenz & Partners December 2010 Page 13 of

14 Within 90 days of the following calendar year, the annual VAT return has to be submitted. The respective deficient payments have to be made within 10 days. A surplus has to be set off with the VAT payable for the following period. The company shall calculate, declare and withhold the Personal Income Tax ("PIT") of salaries paid to its employees on a monthly basis. The company shall calculate, declare and pay import tax to the customs and tax authorities. Chief accountant must be employed or arranged. For the first fiscal year, the accounting services may be outsourced to an external service provider. In case the company ceases to exist, a final VAT report has to be filed. The annual provisional CIT return has to be submitted not later than 25 January of each year to the local tax authorities. In case of fluctuations in business results in the first six months of the financial year, such changes have to be reported to the local tax authorities in order to adjust the provisional CIT return. In case of quarterly CIT payments, the respective payment has to be made not later than the 30 th day of the respective next quarter. Within 90 days of the fiscal year, the CIT return must be submitted to the local tax authorities. 4.2 Financing After establishment, the company has to open a specialised capital deposit account with a bank in Vietnam; any capital contribution by the members of the company is required to be paid in on the company's Lorenz & Partners December 2010 Page 14 of

15 capital deposit account. The bi-annual report on implementation of the company's invested capital and offshore profit remittance must be sent to State Bank of Vietnam ("SBV") no later than 15 July of each year. The annual report must be sent to SBV no later than 15 January of each year. When the company wishes to open an offshore bank account, it is required to obtain the approval of the SBV. The company is required to register any offshore loans with the SBV within 30 days from the date of signing or before the date of first disbursement. The periodical re-ports to the provincial branch of the SBV is also required 4.3 Annual Financial Reports Within three months of the end of each financial year, financial reports have to be sent to the Ministry of Planning and Investment, the Ministry of Finance, and the General Department of Statistics. 4.4 Labour Before recruitment, the company must submit an application to the local Department of labour, Invalids and social affairs ("DOLISA") for work permits for expatriates. No later than seven days prior to the date of commencement of work for the company, the company must report to DOLISA the list of the expatriates exempt from work permit (if any). Prior to 5 January each year, an annual report to DOLISA on employment of expatriates must be filled. Within seven days of the recruitment completion, it is required to send a notice to DOLISA regarding the list of recruited employees Lorenz & Partners December 2010 Page 15 of

16 Should the legal representative of the company be a foreign national; he/she is required to obtain the temporary residence card Within six months from the incorporation of the company, a Trade Union or an Interim Trade Union Board must be established 5. Foreign owned trading company. On 12 February 2007 a new decree (Decree 23) was signed by the Prime Minister, dealing with enterprises having foreign owned capital, which want to become active in the field of purchase and sale of goods or undertake activities directly related thereto. To guide the implementation of Decree 23, the Government issued Circular No TT-BTM dated 17 July 2007 Guiding implementation of Decree 23 ( Circular 09 ) and Circular No TT-BCT dated 14 April 2008 Amending and Adding to Circular 09. These legislations clarified certain issues regarding the conditions and procedures for issuance of distribution license to foreign investors, however some matter still remain unclear. 5.1 Import and Export Foreign investors may engage in import and export activities by establishing a 100% foreign-invested enterprise or a joint venture with local partners. Production enterprises with foreign capital investment are permitted to export their products and imported goods/services for its business purposes. The import/export shall be conducted in accordance with WTO s rules which Vietnam has committed. It should be noted that there are certain goods that are not permitted and/or restricted to be imported or exported. This list of goods may Lorenz & Partners December 2010 Page 16 of

17 be reviewed from time to time in accordance with the schedule issued by Ministry of Commerce and Industry. A foreign-owned enterprise must obtain the license for import/export activities issued by the provincial committee. Under Decree 23, a foreign-owned enterprise is only permitted to resale (wholesale) the imports to the registered local companies and not retail the imports directly to the end users. Furthermore, foreign-owned export companies are only permitted to buy goods from local registered companies for export. The law prevents foreign-owned companies from buying goods directly from producers. 5.2 Distribution Decision No QD-BTM announcing the Schedule for Implementation of Trading and Distribution Activities ( Decision 10 ) provides that distribution rights comprise of: agent for purchase and sale; wholesale, retail and franchise. Since 1 January 2009, 100% foreign-owned company can engage in distribution activities in Vietnam. Previously, only joint-ventures were allowed. Lorenz & Partners December 2010 Page 17 of

18 When the foreign-owned company is licensed to distribution rights, it is only entitled to have a single retail sale outlet (which is normally the registered address of the company). Any other additional retail sale outlet will be additionally licensed on a case by case basis. Vietnam further stipulates certain conditions on establishment of additional retail outlets based on Economic Needs Test ( ENT ). The criteria for ENT include (i) the number of retail outlets; (ii) the market stability; (iii) population density in the province or city where the retail sales outlets are to be set up; and (iv) consistency of the investment project with the master plan of such province or city. People s committee at provincial level will issue the distribution (trading) license after obtaining the written opinion of Ministry of Commerce and Industry. Given above, Vietnamese law distinguishes import/export and distribution rights. The existing import/export companies may request distribution license in its lines of business. Lorenz & Partners December 2010 Page 18 of

19 We hope that this information was helpful for you. For any further questions or additional information, please do not hesitate to contact us. LORENZ & PARTNERS (VIETNAM) CO., LTD 3 Floor, Viconship Building, District 4 Ho Chi Minh City, Vietnam Tel.: +84 (0) Fax: +84 (0) vietnam@lorenz-partners.com Although Lorenz & Partners Co., Ltd. always pays greatest attention on updating the information provided in this brochure we cannot take responsibility for the topicality, completeness or quality of the information provided. None of the information contained in this brochure is meant to replace a personal consultation. Liability claims regarding damage caused by the use or disuse of any information provided, including any kind of information which is incomplete or incorrect, will therefore be rejected, if not generated deliberately or grossly negligent. Lorenz & Partners December 2010 Page of