Thông tư 18/2002/TT-BTC

Circular No. 18/2002/TT-BTC of February 20th, 2002, on corporate income tax providing guidelines for implementation of Decrees of the Government 30/1998/ND-CP dated 13 May 1998 and 26/2001/ND-CP dated 4 June 2001.

Circular No. 18/2002/TT-BTC of February 20th, 2002, on corporate income tax providing guidelines for implementation of Decrees of the Government 30/1998/ND-CP dated 13 May 1998 and 26/2001/ND-CP dated 4 June 2001. đã được thay thế bởi Circular No. 128/2003/TT-BTC of December 22, 2003, guiding the implementation of the Government’s Decree No. 164/2003/ND-CP of December 22, 2003 detailing the implementation of the Law on enterprise Income Tax và được áp dụng kể từ ngày 08/01/2004.

Nội dung toàn văn Circular No. 18/2002/TT-BTC of February 20th, 2002, on corporate income tax providing guidelines for implementation of Decrees of the Government 30/1998/ND-CP dated 13 May 1998 and 26/2001/ND-CP dated 4 June 2001.


THE MINISTRY OF FINANCE

SOCIALIST REPUBLIC OF VIET NAM
Independence Freedom Happiness

 

No. 18/2002/TT-BTC

Hanoi, February 20th, 2002

 

CIRCULAR

ON CORPORATE INCOME TAX PROVIDING GUIDELINES FOR IMPLEMENTATION OF DECREES OF THE GOVERNMENT 30/1998/ND-CP DATED 13 MAY 1998 AND 26/2001/ND-CP DATED 4 JUNE 2001

Pursuant to the Law on Corporate Income Tax passed by Legislature IX of the National Assembly on 10 May 1997;
Pursuant to Decree 30/1998/ND-CP of the Government dated 13 May 1998 making detailed provisions for implementation of the Law on Corporate Income Tax and pursuant to Decree 26/2001/ND-CP of the Government dated 4 June 2001 amending above Decree 30;

The Ministry of Finance hereby provides guidelines for implementation as follows:

A. APPLICABILITY OF CORPORATE INCOME TAX

I. PAYERS OF CORPORATE INCOME TAX:

Pursuant to articles 1 and 3 of the Law on Corporate Income Tax and article 1 of Decree 30/1998/ND-CP dated 13 May 1998 of the Government making detailed provisions for the implementation of the Law on Corporate Income Tax, the following organizations and individuals producing and trading goods and services (hereinafter collectively referred to as business establishments) and earning taxable income shall be liable to pay corporate income tax:

1. Organizations producing and trading goods and services:

(a) State owned enterprises, including State owned business enterprises and State owned public enterprises;

(b) Limited liability companies, shareholding companies;

(c) Enterprises with foreign owned capital and foreign parties to business co-operation contracts under the Law on Foreign Investment in Vietnam;

(d) Foreign companies and foreign organizations conducting business activities in Vietnam beyond the scope of the Law on Foreign Investment in Vietnam;

(dd) Political organizations, socio-political organizations, socio- professional organizations and units of the people's armed forces; administrative and professional bodies engaged in production and trading of goods and services;

(e) Co-operatives; co-operation teams;

(f) Private enterprises;

(g) Other organizations engaged in production and trading of goods and services.

2. Individuals producing and trading goods and services:

(a) Business individuals and groups of business individuals;

(b) Individual households;

(c) Freelancers (direct business): medical practitioners, lawyers, accountants, auditors, painters, architects, music composers and other freelancers;

(d) Individuals leasing out assets, such as houses, land, means of transportation, machinery, equipment, and other types of assets.

3. Foreign companies conducting business activities through resident establishments in Vietnam:

A foreign company shall be considered as conducting business activities through resident establishments in Vietnam in the following cases:

(a) The company has in Vietnam branches, operational offices, offices (except for commercial representative offices not permitted to conduct business by the laws of Vietnam), plants, workshops, warehouses for receipt and delivery of goods, means of transportation, mines, petroleum or gas fields and locations where natural resources are explored or exploited or equipment and facilities serving the exploration of natural resources;

(b) The company has construction sites or construction, installation and assembly works; or conducts supervision activities for construction or construction, installation or assembly works in Vietnam;

(c) The company provides services (including consultancy services) in Vietnam through its employees or authorizes another entity to provide services for one or more projects;

(d) The company has brokerage agents or commission-earning agents or any other agents in Vietnam;

(dd) The company authorizes a competent entity in Vietnam to enter into contracts in the name of the company, or an entity which is not competent to enter into contracts in the name of the company but has the right to represent the company on a regular basis, to deliver goods or provide services in Vietnam.

Where a treaty on avoidance of double taxation to which the Socialist Republic of Vietnam is a signatory contains different provisions relating to resident establishments, such treaty shall prevail.

4. Foreigners conducting business in Vietnam or having income sourced in Vietnam, such as leasing out assets, providing loans, or transferring technology.

II. SUBJECTS NOT LIABLE TO PAY CORPORATE INCOME TAX:

1. Co-operatives, groups and other collective economic organizations earning income from activities of cultivation, husbandry and aquaculture.

2. Rural family households and individuals engaged in agricultural production where the value of their commercial products is up to ninety (90) million dong per year and they earn income of up to thirty six (36) million dong per year.

III. SUBJECTS TEMPORARILY NOT LIABLE TO PAY CORPORATE INCOME TAX:

Rural family households and individuals engaged in activities of cultivation, husbandry and aquaculture where the value of their commercial products exceeds ninety (90) million dong per year and they earn income exceeding thirty six (36) million dong per year.

B. BASES FOR TAX CALCULATION AND TAX RATES

The bases for calculation of corporate income tax as stipulated in article 6 of the Law on Corporate Income Tax shall be taxable income and tax rates.

I. Taxable income (calculated in accordance with the Gregorian calendar year or the fiscal year) shall comprise income earned from production, business and service activities, including income earned from production, trading and service activities conducted overseas and other taxable income.

In accordance with the provisions of article 7 of the Law on Corporate Income Tax, taxable income shall be determined as follows:

Taxable income in the tax period shall equal (=) turnover used to calculate taxable income in the period less (-) reasonable expenses in the tax period plus (+) other taxable income in the tax period.

II. TURNOVER USED TO CALCULATE TAXABLE INCOME:

1. Turnover used to calculate taxable income:

Pursuant to article 3 of Decree 30/1998/ND-CP and article 1 of Decree 26/2001/ND-CP of the Government dated 4 June 2001 amending Decree 30/1998/ND-CP of the Government dated 13 May 1998 making detailed provisions for implementation of the Law on Corporate Income Tax, turnover used to calculate taxable income shall be total sales revenue, fees for provision of services (not including value added tax), including price subsidies, additional charges or additional excesses earned by a business establishment.

For example:

A sales invoice of Enterprise A states:

-

Selling price:

100,000 dong

-

Value added tax (10%):

10,000 dong

-

Payment price:

110,000 dong

- Turnover earned by Enterprise A to calculate taxable income is 100,000 dong.

If a business establishment pays value added tax calculated directly on the basis of added value, turnover used to calculate taxable income shall be the actual price paid by the purchaser including value added tax.

A similar example to above is the case of Enterprise B in the category of those calculating tax directly on the basis of added value and which must use a sales invoice. If the payment price stated in such invoice is 110,000 dong (including VAT), that shall also be the turnover used for calculation of taxable income.

2. Point of time for fixing turnover in order to calculate taxable income: The point of time for fixing turnover in order to calculate taxable income is the date the goods or services are consumed, irrespective of whether monies have been received, specifically:

(a) In respect of goods satisfying one of the following conditions:

- When the goods have, or their ownership has, been transferred;

- When there is a VAT invoice or a sales invoice.

(b) In respect of services satisfying one of the following conditions:

- When the services are completed;

- When there is a VAT invoice or a sales invoice.

Where monies are paid for services which the service provider is entitled to on the basis of a percentage or level of work completed, then it shall depend on the date of acceptance of such sum or when there is VAT invoice or a sales invoice.

3. Turnover used to calculate taxable income shall be determined in a number of specific industries as follows:

(a) With respect to goods sold by way of instalment payments or deferred payment (the purchaser is not yet the owner), the turnover used to calculate taxable income shall be the sums payable by the purchaser on the dates stipulated in the contract, and in such cases the principle that expenses must be consistent with turnover shall apply when determining turnover and expenses.

Where goods are sold by way of instalment payments or deferred payment and the parties agree that the purchaser becomes the owner, the turnover on goods sold shall be calculated on a lump sum payment price as from the date when the goods are handed over or when a VAT or sales invoice is produced, excluding any interest payable on instalments or interest on deferred payment. In such case, interest payable on instalments or interest on deferred payment shall be accounted for in income from financial operations.

(b) With respect to goods or services used for the purpose of exchange or donation, the turnover shall be calculated on the basis of the selling price of products, goods or services of the same or similar kind in the market at the time of exchange or donation.

(c) With respect to products used for personal consumption, the costs of production of such products.

(d) With respect to processing of goods, the turnover from processing, including fees, fuel, power, sub-materials and other expenses required for processing goods. Turnover shall be fixed when the processor prepares an invoice at the same time as the processed goods are transferred to the supplier of materials.

(dd) With respect to sales of goods via an agent, the turnover shall be determined when the agent delivers the goods to the purchaser or when:

- The agent transfers ownership to the purchaser;

- The agent produces an invoice.

In such case, there must be a written agency contract between the principal and agent, and if not, then delivery of goods to an agent shall be deemed to be a normal sale.

(e) With respect to leasing out housing or assets, the amount of rent collected for each zeriod under the lease contract. If a lessee pays rent in advance for a number of years, the turnover used to calculate taxable income shall be allocated over the number of years for which payment has been made in advance.

For example:

Enterprise A leases a house to Enterprise B for 3 years; if the house lease provides that the lessee must pay rent in advance for 3 years, being 150 million dong, with the lease effective from 1 January 2001: A shall account for turnover of 50 million in each of the years 2001 to 2003.

(f) With respect to lending, interest on deposits and receipts from finance leasing products means interest collectible in any one period, fixed on the following principles:

- A credit institution shall account as income any interest collectible on current debts. Interest on overdue debts shall not be accounted for as income, but should be monitored and followed up via the external accounts and when collected accounted for as professional receipts income.

- Where collectible interest on current loans is accounted for as income but the customer does not pay it after ninety (90) days or the loan is transferred to overdue debts within ninety (90) days, the credit institution shall record reduced income in its accounts and monitor and follow up via the external accounts and when collected account for it as professional receipts income.

(g) Turnover from air transportation means all sums that an enterprise is entitled to from passenger transportation and from luggage and cargo transportation after completion of such transportation, irrespective of whether payment is received or not. The date for determining turnover is the date on which transportation has been completed.

(h) Turnover from sale of electricity means the sum recorded in VAT invoices. The date for determining turnover is the last date on the meter index in the invoice for electricity, irrespective of whether it is at the beginning or end of month, and whatever month the last date on the meter index belongs to shall be deemed to be the month such turnover was received.

For example:

An invoice is issued calculating electricity price on the meter index 5 December up to 5 January, turnover from this invoice shall be accounted for in January; if an invoice is issued calculating electricity price on the meter index 29 January to 29 February, turnover from this invoice shall be accounted for in February.

For other services, such as water supply and post office services, for which this type of invoice is produced, turnover shall be similarly calculated.

(i) With respect to insurance and re-insurance operations, the turnover shall be the amount receivable for primary premiums, assessment fees as agent, reinsurance ceding, commission for re-insurance, and all other items.

(k) A business establishment receiving revenue in foreign currency must convert it into Vietnamese dong at the average trading rate on the inter-bank foreign currency market as announced by the State Bank on the date when such revenue in foreign currency arises. Foreign currencies for which the State Bank makes no announcement of exchange rate must be first converted into United States dollars and then converted into Vietnamese dong at the rate stipulated in Circular 77-1998-TT-BTC of the Ministry of Finance dated 6 June 1998 on Exchange Rates To Be Used in Enterprise Accounting.

III. REASONABLE DEDUCTIBLE EXPENSES FOR PURPOSE OF CALCULATION OF TAXABLE INCOME:

Pursuant to article 9 of the Law on Corporate Income Tax, article 4 of Decree 30/1998/ND-CP dated 13 May 1998 of the Government making detailed provisions for implementation of the Law on Corporate Income Tax, and article 1 of Decree 26/2001/ND-CP of the Government dated 4 June 2001 amending Decree 30/1998/ND-CP of the Government dated 13 May 1998, reasonable expenses relating to taxable income in a tax period shall be provided for in detail as follows:

1. Depreciation of fixed assets:

In principle, an item for depreciation of fixed assets may be included in reasonable expenses when calculating CIT if these two principles are followed:

- The fixed assets must have proper and complete invoices and vouchers proving ownership of the business establishment;

- The fixed assets must be used for production, business and service activities or must produce taxable income and they must be depreciated in accordance with the current regulations on management, use and depreciation of fixed assets issued with Decision 166-1999-QD-BTC of the Minister of Finance dated 29 December 1999.

Where the Vietnamese party contributes the value of land use rights to legal capital or the capital of a business co-operation contract with a foreign party, the value of land use rights must be fully depreciated from the time when the foreign invested enterprise or business co- operation contract commences production, business or services to the end of the project.

2. Costs of raw materials, fuel, power and goods used for production, business and service activities relating to the turnover and taxable income of the relevant period, calculated on the basis of reasonable consumption levels and actual ex-work prices:

(a) Reasonable material consumption levels:

- Directors of enterprises shall establish and approve material consumption levels based on the material consumption levels issued by the competent authority and the specific situation of each enterprise. In respect of enterprises with boards of management, the general director shall establish material consumption levels for submission to the board of management for approval;

- At the end of each year, enterprises shall finalize material consumption, ensure that the approved material consumption levels have not been exceeded, and inform the tax office thereof.

(b) Actual ex-work prices shall include:

- Prices of materials purchased from outside shall include the price stated in the invoice of the seller (not including value added tax) plus costs of purchase, such as costs of transportation, loading and unloading, preservation, insurance premiums, wastage fees, rental of warehouses and fees for selection and reprocessing; and in the case of imported goods, when goods are imported they shall be accounted for in expenses at the price actually paid consistent with the foreign trade contract plus import duties, special sales tax or additional charges (if any):

- If a business establishment declares a price to calculate import duty, namely the contract price, which is higher than the price actually paid, then the price actually paid shall be taken;

- If a business establishment declares a price to calculate import duty, namely the contract price, which is lower than the price actually paid, the business establishment may only include in expenses the price it declared to calculate import duty.

- In respect of materials used to manufacture products which are not subject to value added tax or on which value added tax calculated directly has been paid, the actual ex-work price shall include value added tax.

- In respect of self-produced materials, the actual ex-work price of materials plus the actual costs incurred during the self-production process.

- In respect of materials processed outside, the actual ex-work price of materials to be processed plus the costs of processing and costs of transportation and loading and unloading from the warehouse of the enterprise to the processing location and from the processing location to the warehouse of the enterprise.

The prices of materials and costs of processing, transportation, loading, unloading, preservation and procurement listed above must be supported by invoices and vouchers in accordance with regulations of the Ministry of Finance.

- In respect of materials and goods being agricultural, forestry or aquatic products, unprocessed aquatic products, soil, stone, sand, gravel or scrap sold without invoices, enterprises shall prepare a list specifying full names and addresses of sellers, quantity of goods, unit price and total costs; directors shall approve the costs and shall be legally liable for them.

- If a business establishment declares a purchase price on the list which is higher than the market price at the date of purchase, the tax office shall rely on the latter to fix the price for determining expenses for determining taxable income.

- If a business establishment pays tax by the tax credit method, then its deductible expenses shall not include VAT. For materials and goods for which the deductible input VAT is zero (0) per cent of a sales invoice and list of goods purchased, the business establishment may only account for expenses of production and business in order to calculate taxable income by the purchased turnover less (-) VAT already deducted. If a business establishment pays tax by the direct method, then its expenses shall include VAT.

3. Costs of salaries, wages, mid-shift meals, and payments in the nature of salary:

Costs of salaries of enterprises shall include salaries, wages and allowances in the nature of salary paid to employees who participate in the business operations of enterprises.

Costs of salaries of enterprises, including salaries, wages and allowances in the nature of salary and wages payable to employees, in each type of enterprise shall be determined as follows:

(a) In respect of State owned enterprises, salaries shall be determined based on:

- Circular 18-1998-TTLT-BLDTBXH-BTC of the Ministry of Labour, War Invalids and Social Affairs and the Ministry of Finance dated 31 December 1998 providing guidelines on determining wages funds when State owned enterprises are unable to guarantee payment of taxes and profit;

- Circular 19-1999-TTLT-BLDTBXH-BTC of the Ministry of Labour, War Invalids and Social Affairs and the Ministry of Finance dated 14 August 1999 amending Circular 18-1998- TTLT-BLDTBXH-BTC of the Ministry of Labour, War Invalids and Social Affairs and the Ministry of Finance dated 31 December 1998;

- Circular 05-2001-TT-BLDTBXH of the Ministry of Labour, War Invalids and Social Affairs dated 29 January 2001 on salary unit prices in State owned enterprises;

- Circular 06-2001-TT-BLDTBXH of the Ministry of Labour, War Invalids and Social Affairs dated 29 January 2001 on labour productivity increase rates and average salary rise rates in State owned enterprises;

- Any other current legal instruments of competent State bodies.

(b) In respect of other business establishments: Salaries, wages and payments in the nature of salary and wages payable to employees shall be determined in accordance with one of the following methods:

- Where a business establishment has established salary unit prices on the basis of levels which are consistent with salary unit prices and volumes of work completed as in the case of State owned enterprises, they may pay salaries according to their own salary unit prices;

- Where a business establishment pays salaries pursuant to labour contracts or a collective labour agreement, then salaries and wages shall be determined in accordance with such labour contracts or collective labour agreement;

- In the above cases of payment of salaries, business establishments shall register with the tax office where they register to pay CIT as well as lodging annual CIT declarations. Their declaration of registration must contain:

- For business establishments which have established their own salary unit prices, they must use the same form stipulated for State owned enterprises in Circular 05-2001-TT-BLDTBXHX-BTC of the Ministry of Labour, War Invalids and Social Affairs dated 29 January 2001;

- For business establishments which pay salaries pursuant to labour contracts or a collective labour agreement, they must register their wages plan specifying: actual number of employees in the previous year; forecast number in the year of the plan; actual wages fund in the previous year; forecast wages in the year of the plan; regulations on payment of salaries; minimum and maximum wage; when promotion is considered; and other provisions in their regulations on payment of salaries;

- Where business establishments do not register wages with the tax office, finalization of CIT shall be based on the average income for each trade or industry in the locality as decided by the people's committee of the province or city under central authority in order to fix the maximum expenses for wages which can be accounted for in reasonable expenses when calculating taxable income.

Taxation Departments shall, on the basis of the salary regime applicable to State owned enterprises and the cost of living in their respective localities, discuss with the provincial or municipal labour office the determination of average salaries, wages and allowances in the nature of salary and wages for each trade and industry, which shall then be submitted to the provincial or municipal people's committee for decision for application in tax calculation in each period.

The following shall not be included in costs of salaries and wages:

- Salaries and wages of owners of private enterprises and heads of individual households conducting production, business and service activities;

- Salaries and wages of founders of companies who are not directly involved in the management of production, business and service activities. Salaries and wages of founders of

companies who are directly involved in the management of production, business and service activities shall be included in wages in expenses.

(c) Mid-shift meals for employees shall be decided by directors of enterprises in accordance with production and business efficiency, but the expenses for each employee shall not exceed the minimum salary stipulated by the State for State employees.

4. Actual expenses paid for scientific and technological research, except where funds are provided by the State or a superior managing body; innovations and initiatives, environmental protection; funding internal education, health care and training of enterprises; which shall not exceed one point three (1.3) times the expense levels stipulated by the State. Expenses for external education assistance, such as contributions to study encouragement funds and contributions to schools for handicapped children or children without support, shall depend on the production or business situation of each enterprise but lawful source documents shall be required. Expenses for innovations and initiatives are subject to the condition that they result in business efficiency and that there is a system for managing them.

5. Costs of hired services:

(a) Costs of electricity, water, telephone calls, office stationery, auditing, and insurance of assets shall be supported by invoices and vouchers as stipulated by the Ministry of Finance.

(b) Costs of major repairs of fixed assets in order to recover capacity of assets shall be included in the production and business costs of the year. Where the costs of a single repair are excessive, they shall be allotted for the following year. In respect of special fixed assets which require periodical repair, enterprises may plan for costs for major repairs in production and business costs based on the estimated budget for major repairs of enterprises. Where the planned amount is lower than the amount actually paid for a repair, enterprises shall be permitted to add the excessive amount to their costs; where it is higher, the costs of the year shall be reduced accordingly.

(c) Costs of purchase and use of technical documents, patents, technology transfer licences, trademarks, and so forth, not forming part of the fixed assets shall be allocated gradually to business costs.

(d) Rent for fixed assets shall be accounted for in production and business expenses and shall be the amount actually paid under the lease. If it is paid once in advance for a number of years, it shall be allocated gradually to production and business expenses over the number of years of use of the fixed assets.

(dd) In respect of contractors, costs of hired services shall include payments to sub-contractors (if any).

(e) Travel allowances for leave:

- For staff of enterprises working in mountainous regions or on islands who are granted annual leave in accordance with regulations upon issuance of a certificate by the head of the office, workshop or entity to visit loved ones (including parents, spouse or children);

- For staff of enterprises satisfying the conditions for annual leave in accordance with regulations upon issuance of a certificate by the head of the office, workshop or entity to visit loved ones (including parents, spouse or children) who are ill, have been involved in an accident and require treatment, or where there is a death in the family.

(f) Other costs of hired services.

6. Payments made to female employees in accordance with law; expenses for occupational safety protection; expenses for maintenance of security of business establishments, contributions to social and medical insurance funds and trade union expenses in accordance with applicable regulations.

Contributions to management funds of corporations shall be approved and notified by boards of management of corporations upon approval in writing of the competent financial body.

Expenses for uniforms for staff of establishments where the staff wear a standard uniform shall not exceed a maximum of five hundred thousand (500,000) dong per person per year, and any excess must be paid from after-tax profits.

7. Payment of interest on loans borrowed from credit institutions and others at the actual interest rate when a loan contract was signed, which must not exceed the ceiling interest rate of local commercial banks at the time the loan monies are used (received) under the loan contracts.

Payment of interest on loans for contribution to legal capital or charter capital of foreign invested enterprises shall not be included in reasonable expenses for the purpose of determination of taxable income.

8. Contingency provisions for reduction of inventory prices, bad debts and reduction of securities prices in enterprises as guided by the Ministry of Finance.

9. Retrenchment benefits paid to employees in accordance with applicable regulations.

10. Expenses relating to sales of goods and services, including costs of preservation, packaging, transportation, loading, unloading, rental of warehouses and warranty of goods and products.

11. Expenses for advertising, marketing, promotion, receptions and formal occasions, expenses for transactions and external relations, expenses for broker's commissions, expenses for meetings, and other expenses must be supported by source documents in accordance with provisions of the Ministry of Finance, must be directly related to business activities and must not exceed the following limits:

(a) In respect of newly-established and newly-operating production, construction and transportation establishments, seven per cent of the total expenses listed above in the first two years of operations and five per cent of the total expenses listed above in subsequent years;

(b) In respect of commercial trading, catering and service activities, seven per cent of the total expenses listed above (not including purchase price of goods sold);

(c) In respect of a number of encouraged industries, such as production of curative medicines, fertilizer and pesticide, and the press (including newspapers, television and radio), seven per cent of the total expenses listed above.

In a number of special cases where these expenses require higher limits than those stipulated above, the agreement in writing of the Minister of Finance shall be required but such limits shall not exceed seven per cent of total expenses.

12. Taxes, fees, charges and land rent payable related to production, business and service activities (except for corporate income tax) including:

(a) Export duties;

(b) Special sales tax;

(c) Value added tax (in respect of business establishments paying value added tax calculated directly on the basis of added value, and establishments producing goods not subject to VAT);

(d) Business registration fees;

(dd) Royalties;

(e) Agricultural land use tax;

(f) Land and housing tax;

(g) Road tolls, bridge or ferry tolls, airport tax, stamp duty, and so forth;

(h) Land rent, and so forth.

13. Business operational expenses allocated by foreign companies to their resident establishments in Vietnam in accordance with the ratio of the turnover earned in Vietnam and the total turnover of the foreign company. The formula for allocation shall be as follows:

Business operational expenses allocated by foreign company to resident establishment in Vietnam in tax period = (Total turnover of resident establishment in Vietnam in tax period : Total turnover of foreign company in tax period) x Total costs of management and business of parent foreign company.

14. In a number of cases, reasonable expenses for the purpose of calculation of taxable income shall be determined as follows:

(a) Where a lessee of assets pays rent in advance for a number of years, expenses shall be allocated to each year;

(b) For special business operations, such as insurance and lotteries, the Ministry of Finance shall provide specific regulations on what constitute reasonable expenses when calculating CIT taxable income.

15. The following shall not be considered to be reasonable expenses of enterprises for the purpose of calculation of taxable income:

(a) Amounts advanced for expenses but not actually expended in full, such as expenses for major repairs of fixed assets, warranty fees for goods and products, construction works, and so forth, except in the case of the written agreement of the Minister of Finance;

(b) Expenses incurred without source documents or with unlawful source documents (except where there is a list as stipulated in clause 2 of this Section);

(c) Fines for breaches of traffic laws, breaches of business registration regulations, fines on overdue debts, fines for breaches of accounting-statistics regulations, fines for administrative offences in relation to taxation and other fines. In respect of fines for breaches of economic contracts, any positive difference after set-off of fines receivable and fines payable shall be included in taxable income; and any negative result shall be charged to/deducted from after-tax income;

(d) Expenses unrelated to turnover or taxable income, such as expenses of investment in capital construction, expenses for supporting social organizations and localities (except where the Government provides for such expenses to be included in business expenses), charity expenses and other expenses unrelated to turnover or taxable income;

(dd) Expenses covered by other sources of capital:

- Overhead expenses;

- Expenses for illness and maternity cases;

- Allowances for regular and irregular difficulties;

- Other expenses covered by other sources of capital;

(e) Other unreasonable expenses.

IV. OTHER TAXABLE INCOME SHALL INCLUDE:

1. Difference between purchase and sale of securities.

2. Income from the ownership of or right to use assets:

(a) Income from leasing out assets;

(b) Income from licensing or from the right to use intellectual property;

(c) Other income from the ownership of or right to use assets.

3. Income from assignment or liquidation of assets:

In respect of income from assignment or liquidation of assets, the taxable income shall be the net income after deducting the value (or remaining value) of assets and the expenses relating to the assignment or liquidation.

4. Any interest on deposits, loans, or sales of goods with deferred payment.

5. Difference earned from the sale of foreign currency.

6. Closing balance of allocated funds which were not fully expended; closing balance of contingency reserves for reduction of inventory prices, bad debts and reduction of prices of securities in enterprises at the end of the year.

7. Income earned from bad debts which were covered by reserve funds and are now repaid.

8. Income from fines receivable for breaches of economic contracts after deduction of fines payable for breaches of contracts.

9. Income from accounts payable the creditors of which are unidentified.

10. Income from production, business or services omitted in the previous years which have been newly discovered.

11. Income earned from production, business or service activities overseas.

Where the income arises in a country with a treaty on avoidance of double taxation to which the Socialist Republic of Vietnam is a signatory, the provisions of such treaty shall apply.

Where the income arises in a country without such a treaty and where income tax has been paid overseas, the amount of income tax paid in the foreign country shall be deducted provided that the deducted amount of tax shall not exceed the amount of income tax calculated in accordance with the tax scales of Vietnam.

Example 1: Enterprise A receives 800 million dong of income from overseas. This is the remaining income after having paid 200 million dong of income tax in accordance with the law of the foreign country. The amount of corporate income tax payable on the income received by Enterprise A from overseas in accordance with the Law on Corporate Income Tax of Vietnam shall be: (800 million dong + 200 million dong) x 32% = 320 million dong. Since Enterprise A has already paid 200 million dong of income tax overseas, the remaining amount payable shall be: 320 million dong - 200 million dong = 120 million dong.

Example 2: Enterprise A in the above example receives 800 million dong of income from overseas. This is the remaining income after having paid 540 million dong of income tax in accordance with the law of the foreign country. The amount of corporate income tax payable on the income received by Enterprise A from overseas in accordance with the Law on Corporate Income Tax of Vietnam shall be: (800 million dong + 540 million dong) x 32% = 428.8 million dong. Enterprise A shall only be allowed to deduct the amount of corporate income tax paid overseas which is equal to the amount of corporate income tax calculated in accordance with the Law on Corporate Income Tax of Vietnam, being 428.8 million dong. In other words, Enterprise A does not have to pay corporate income tax on the above income received from overseas.

12. Income relating to the sale of goods or provision of services which is not included in turnover, such as despatch money, service bonuses in catering and hotel services, and so forth, after all expenses for earning such income have been deducted.

13. Other income, such as income from sales of waste materials and scraps after deduction of the costs for collection and sales; gifts or donations in kind or in cash given to enterprises by organizations and individuals, and so forth.

14. Business establishments earning income being dividends distributed because they have made a capital contribution to a domestic economic partnership, joint venture or shareholding company shall not be required to pay corporate income tax at a fixed rate but shall include such income in after-tax income for determination of additional income tax (if any).

V. CORPORATE INCOME TAX RATES:

1. The rate of corporate income tax applicable to domestic business establishments and foreign organizations and individuals conducting business activities in Vietnam beyond the scope of the Law on Foreign Investment in Vietnam shall be thirty two (32) per cent. Application in a number of cases shall be as follows:

(a) The rate of twenty five (25) per cent shall apply to the following production or business establishments for a duration of three years from 1 January 1999:

- Enterprises engaged in mining/exploitation of minerals, forestry products and aquatic products;

- Enterprises engaged in metallurgy;

- Enterprises engaged in mechanical manufacture;

- Enterprises manufacturing basic chemicals fertilizers, insecticides; enterprises processing fresh rubber latex into dry latex;

- Enterprises manufacturing building materials (except for cement);

- Enterprises engaged in construction (except for survey, design, consultancy and supervision);

- Enterprises engaged in transportation (except for transportation by air and by taxi).

(b) In addition to payment of corporate income tax at the rate of thirty two (32) per cent, business establishments earning high income due to objective advantages, such as convenient location of business, low competition in trade or industry, and so forth, shall pay additional corporate income tax at the rate of twenty five (25) per cent in respect of the remaining portion of income which exceeds twenty (20) per cent of the capital of owners. Taxable income subject to additional corporate income tax shall be determined by taking remaining income (after payment of CIT at thirty two (32) per cent) less (-) twenty (20) per cent of the existing capital of owners.

(b.1) The method of determining the existing capital of owners shall be as follows:

1) With respect to enterprises applying an accounting regime in accordance with Decision 1141-TC-QD- CDKT of the Minister of Finance dated 1 November

1995 and an enterprise financial reporting regime in accordance with Decision 167-2000-QD-BTC of the Minister of Finance dated 25 October 2000, the value of the capital of owners shall be determined comprising:

- Business capital sources;

- Difference on re-evaluation of assets;

- Exchange rates difference;

- Undistributed profits;

- Funds formed from after-tax profits (excluding the reward and welfare funds).

2) With respect to enterprises applying an accounting regime in accordance with Decision 1171-TC-QD- CDKT of the Minister of Finance dated 23 December 1996 promulgating the accounting regime applicable to small and medium sized enterprises, the value of the capital of owners shall be determined comprising:

- Business capital sources;

- Exchange rates difference and difference on re- evaluation of assets;

- Undistributed profits;

- Funds formed from after-tax profits (excluding the reward and welfare funds).

3) With respect to credit institutions applying the accounting system stipulated by the State Bank of Vietnam, the value of the capital of owners shall be determined comprising:

- Capital of the credit institution;

- Funds formed from after-tax profits (excluding the reward and welfare funds);

- Difference on re-evaluation of assets;

- Undistributed profits.

4) The method for determining each of the items set out in clauses 1, 2 and 3 above shall be based on the annual financial reports and calculated according to the following average method:

(Balance at beginning of period + Balance at end of period) : 2

If the balance is a negative value, the total sources of capital of owners must be reduced accordingly. If there is no opening or end balance, it must still be determined on the above formula. In the case of a business establishment newly established in the year of tax finalization without an opening balance at the beginning of the year, the closing or end of year balance shall be used as the basis for determining the capital of owners, and the above average method shall not be used for the purpose of calculation.

For example:

Remaining income after having paid CIT at the rate of 32% is 1,860 million dong. The existing capital of owners is 8,966 million dong. The specific method for determining the capital of owners (hereinafter referred to as OC) is as follows:

Unit: million dong

Item

Opening Balance

Closing Balance

Calculate OC

1. Business capital sources

6,262

7,342

6,802

2. Investment and development fund

1,510

850

1,180

3. Financial reserves

448

530

489

4. Retrenchment payments fund

170

212

191

5. Undistributed profits

132

468

300

6. Invested capital

4

4

4

Existing capital of owners:

8,966

20% of capital of owners: 1,793 million dong;

Additional CIT payable: (1,860 1,793) x 25% = 16.75 million dong.

5) Where a business establishment has a joint venture operation, when calculating taxable income for additional CIT, the capital of the owners shall not include the capital contribution of the other party to the joint venture and the capital of the owners shall include the part of capital contributed by the establishment to the joint venture.

(b.2) Additional CIT shall temporarily not be collected from the following business establishments:

- Business and production establishments to which the CIT rate of twenty five (25) per cent is applicable for three years from 1 January 1999;

- Investment projects in fields, industries and localities in which investment is encouraged and which are entitled to preferential CIT rates;

- Production establishments which export more than fifty (50) per cent of manufactured products or which have turnover from exports accounting for more than fifty (50) per cent of total turnover;

- Family business households;

- Professional entities which have expenses paid by the State budget and which do not have issued business capital shall not be liable to pay additional CIT. However, if they have income from operations which has been accounted for under the regime of the current Ordinance on Accounting and Statistics and the capital of owners has been determined, then they must pay additional CIT (if any).

(b.3) Where a business establishment has both operations subject to payment of additional CIT and also operations either temporarily not subject to or exempt from additional CIT, the enterprise must first determine the amount of CIT payable in accordance with regulations and then determine the amount of additional CIT payable based on the ratio of income subject to additional CIT and the total taxable income.

For example:

Enterprise A has CIT taxable income (at 32% rate) of 2,000 million dong, taxable income (at 25% rate) of 500 million dong, and owner's capital of 5,000 million dong:

CIT payable at 32%: 2,000 x 32% or 640 million dong. CIT payable at 25%: 500 x 25% or 125 million dong. Total CIT payable: 640 + 125 = 765 million dong.

Ratio of income subject to additional CIT over total taxable income: 2,000 : (2,000 + 500) = 80%

20% owner's capital in enterprise: 5,000 x 20% = 1,000 million dong.

Amount of additional CIT payable: [(2,500 - 765 - 1,000) x 25%] x 80% = 147 million dong.

(c) The following corporate income tax rates shall apply to new investment projects in the fields, trades, industries or locations in which investment is encouraged:

- Twenty five (25) per cent in respect of fields, trades or industries in which investment is encouraged as stipulated by the Government;

- Twenty (20) per cent in respect of investment projects in fields, trades or industries in which investment is encouraged which are implemented in districts in ethnic minority regions and offshore islands or other regions with difficult conditions as stipulated by the Government;

- Fifteen (15) per cent in respect of investment projects in fields, trades or industries in which investment is encouraged which are implemented in ethnic minority districts of high mountainous regions as stipulated by the Government.

Investment projects entitled to preferential corporate income tax rates as stipulated in this clause must satisfy all of the following conditions:

- Having business registration certificate and operating in accordance with such business registration;

- Having a certificate of investment incentives issued by a competent authority which specifies incentive entitlements;

- Complying strictly with the regulations on accounting, invoices and vouchers, registration and declaration for tax payment.

When the conditions for preferential treatment no longer exist due to changes to business duties or business location, business establishments shall not be entitled to preferential tax rates for the whole year where the conditions for preferential treatment terminate within the first six months of the year. Where such conditions terminate within the second six months of the year, business establishments shall not be entitled to preferential tax rates as from the following year.

Business establishments which do not comply strictly with the regulations on accounting, invoices and vouchers and tax declaration or which fail to declare correctly the basis for tax calculation shall not be entitled to preferential tax rates. Instead, they shall pay tax monthly in accordance with a determined turnover and percentage of taxable income and shall also be subject to administrative penalties in relation to taxation.

2. The corporate income tax rates applied to foreign invested enterprises and parties to business co-operation contracts shall be twenty five (25) per cent.

Application of tax rates in a number of cases shall be as follows:

(a) Twenty (20) per cent tax rate shall be applied for a duration of ten (10) years from the year of production or business operation in the case of investment projects satisfying one of the following conditions:

- Exporting at least fifty (50) per cent of products;

- Employing five hundred (500) or more employees;

- Being engaged in cultivation or processing of agricultural products, forestry products or marine products;

- Using advanced technology and investing in research for development;

- Using raw materials and supplies available in Vietnam; efficiently processing or exploiting natural resources in Vietnam; manufacturing products which have a localization value of forty (40) per cent or more.

(b) Fifteen (15) per cent tax rate shall be applied for a duration of twelve (12) years from the year of production or business operation in the case of investment projects satisfying one of the following conditions:

- Exporting at least eighty (80) per cent of products;

- Investing in the fields of metallurgy, basic chemicals, mechanical manufacture, petro-chemicals, fertilizers, manufacture of electronic components or components of automobiles and motorbikes;

- Constructing and operating infrastructure works (bridges, roads, water supply and drainage, electricity, ports);

- Planting perennial industrial trees;

- Investing in other regions with difficult conditions as stipulated by the Government (including hotel projects);

- Transferring assets without compensation to the State of Vietnam after expiry of the period of operation (including hotel projects);

- Projects satisfying two of the conditions stated in sub-clause (a) above.

(c) Ten (10) per cent tax rate shall be applied for a duration of fifteen (15) years from the year of production or business operation in the case of projects satisfying one of the following conditions:

- Constructing infrastructure in regions with difficult conditions;

- Investing in mountainous regions, offshore islands or remote and distant regions;

- Afforestation;

- Other projects in which investment is specially encouraged.

(d) The preferential tax rates of twenty (20), fifteen (15) and ten (10) per cent shall be applied in the case of investment projects on the basis of BOT, BTO, or BT contracts and projects for construction of infrastructure in industrial zones and export processing zones for the whole duration of implementation of such projects.

(dd) The tax rates stated in sub-clauses (a), (b), (c) and (d) of this clause shall not apply to hotel projects (except in cases of investment in regions with difficult conditions, mountainous regions or offshore islands; or transfer of assets to the State of Vietnam without compensation); projects for finance, banking, insurance, provision of services and commerce.

(e) Income earned by foreign investors from investment in accordance with the Law on Foreign Investment in Vietnam (including income tax refunds and income earned from capital assignments) shall, upon being remitted overseas (or retained outside Vietnam) or retained in Vietnam for the purpose of payment of debts for parent companies or expenses of representative offices of parent companies in Vietnam, and so forth, shall be subject to withholding tax.

Withholding tax on profits remitted overseas shall be applied as follows:

- Three per cent shall apply to:

- Overseas Vietnamese investing in Vietnam under the Law on Foreign Investment in Vietnam;

- Foreign investors investing in industrial zones, export processing zones or high-tech zones;

- Foreign investors contributing ten (10) million USD or more to legal capital or capital to business co-operation contracts;

- Foreign investors investing in regions with specially difficult socio-economic conditions on the list of regions in which investment is encouraged.

- Five per cent shall apply to:

- Foreign investors contributing from five up ten (10) million USD or more to legal capital or capital to business co-operation contracts;

- Foreign investors investing in projects in the fields of medical examination and treatment, education and training, scientific research.

- Seven per cent shall apply to other foreign investors contributing legal capital or capital to business co-operation contracts (not in the three and five per cent groups above).

(f) Corporate income tax rates and withholding tax rates shall be stated in the investment licence issued by the competent authority upon agreement in writing of the Ministry of Finance.

Foreign invested enterprises and foreign parties to business co- operation contracts established and operating under the Law on Foreign Investment in Vietnam prior to the date of effectiveness of the Law on Corporate Income Tax shall apply the tax rates stated in their investment licences as issued prior to the date of effectiveness of the Law on Corporate Income Tax.

3. The corporate income tax rate applied to foreign and domestic organizations and individuals prospecting and exploring for and exploiting petroleum shall be fifty (50) per cent. The rate applicable to exploitation of other rare and valuable resources may range from thirty two (32) to fifty (50) per cent of the taxable income as stipulated in detail by the Ministry of Finance in respect of investment projects of domestic organizations and individuals; or by the competent authority in respect of foreign invested enterprises upon agreement in writing of the Ministry of Finance.

4. Business establishments with production and business operations with different taxable income must separately account for each operation, failing which the highest rate applicable to any one operation during the year shall apply to all.

C. REGISTRATION, DECLARATION, PAYMENT AND FINALIZATION OF TAX

I. REGISTRATION OF CORPORATE INCOME TAX:

1. Business establishments shall be responsible for registering for corporate income tax at the same time as registration for payment of value added tax.

2. Corporations and companies shall, upon tax registration, specify their affiliated units which practise independent cost accounting and affiliated units which practise dependent cost accounting.

Affiliated units of corporations or companies shall, whether practising independent or dependent cost accounting, carry out tax registration at the tax office where such units are based.

3. Independent cost accounting units of corporations or companies shall have the obligation to declare, pay and finalize tax separately. Dependent cost accounting units of corporations or companies shall only carry out tax registration in their localities and shall not have the obligation of tax declaration and payment in their localities. Corporations and companies shall have the obligation of tax declaration, payment and finalization in respect of their own business and the business of their affiliated units which practise dependent cost accounting.

II. DECLARATION OF CORPORATE INCOME TAX:

1. Annually, business establishments shall be responsible for declaration and submission of CIT Declaration Form 1a issued with this Circular to the tax office directly in charge no later than the twenty fifth day of January.

The basis for declaration shall be the production, business and service results of the previous year and the business potential for the following year.

2. Upon receipt of declaration forms, the tax office shall verify and determine the amount of tax provisionally payable for the whole year and as divided for each quarter and shall notify business establishments thereof.

Where profit and loss statements for production and business record fluctuations, consideration shall be given to adjustment on the basis of the business results of the first six months of the year. Business establishments should prepare the following complete application file for adjustment of provisional tax paid and forward it to the tax office by 30 July at the latest:

- Request for adjustment to provisional tax payable for the whole year specifying reasons, amount paid for the first six months of the year, and amount payable in the second six months;

- Financial statements for the first six months of the year, including balance sheets, profit and loss statements, and explanatory statements of financial accounts, enclosing Declaration Form 1c issued with this Circular;

- After consideration of the above reports, the tax office directly managing the business establishment shall notify it by 25 September at the latest of provisional tax payable for the whole year (adjusted or not) and the amounts payable in the two final quarters.

In special cases where a business establishment suffers loss or earns excessively high profits compared to the amount registered to pay provisionally, it shall prepare a file for adjustment similar to the above.

3. Where a business establishment fails to declare, or declare in detail, the basis for calculation of the amount of tax provisionally payable for the whole year in its declaration form, the tax office shall have the right to request that the business establishment explain the basis for calculation of the amount of tax provisionally payable for the whole year. Where the business establishment fails to explain or to justify the basis stated in the declaration form at the request of the tax office, the tax office shall have the right to determine the amount of tax provisionally payable for the whole year.

4. In the case of business establishments which do not yet maintain books of account, receipts and other source documents in accordance with applicable regulations, declaration for tax payment shall be based on the rate of taxable income over a fixed turnover and tax rates as follows:

(a) Business establishments which do not yet comply fully and strictly with the accounting regulations but which have sold goods and provided services with invoices and vouchers shall declare turnover and calculate monthly tax in accordance with the following formula:

Turnover x Percentage (%) of x Corporate income taxable income tax rate

Tax declaration forms shall be submitted to the tax office prior to the fifth day of the following month.

(b) In respect of business households which do not yet comply with the regulations on accounting, invoices and vouchers for sale and purchase of goods and services, the tax office shall, based on the business situation of each household, determine a turnover to calculate taxable income and calculate tax in accordance with the following formula:

Turnover x Percentage (%) of x Corporate income taxable income tax rate

The determination of turnover for the purpose of calculation of taxable income must be ensured to be carried out publicly and democratically in accordance with applicable procedures.

The General Department of Taxation shall guide Taxation Departments to determine the appropriate percentage (%) of taxable income over turnover as the basis for calculation of income tax for each line of business and each locality in the country.

5. In respect of foreign business organizations and individuals having no resident establishments in Vietnam but having income sourced in Vietnam, organizations and individuals paying income to such foreign organizations and individuals shall be responsible for declaring and deducting tax prior to paying income.

III. PAYMENT OF CORPORATE INCOME TAX:

1. Business establishments shall pay in full and in a timely manner the amounts of tax provisionally payable for each quarter into the State Budget in accordance with the tax payment notice issued by the tax office. The time-limit for tax payment for each quarter stated in the notice shall be no later than the last day of the quarter. If a business establishment has not yet received a tax notice upon expiry of the above time-limit, it shall pay quarterly CIT in accordance with the data it declared.

2. In respect of business establishments which do not yet comply fully and strictly with the regulations on accounting, invoices and vouchers and in respect of which tax payable is calculated by the percentage of taxable income over turnover, the time-limit for tax payment shall be as follows:

(a) Business establishments which sell goods or provide services with invoices and vouchers shall declare tax on a monthly basis and pay tax in full in accordance with the monthly notice issued by the tax office. The time-limit for tax payment for each month stated in the notice shall be no later than the twenty fifth day of the following month;

(b) Business households which do not yet comply with the regulations on accounting, invoices and vouchers for sale and purchase of goods and services shall calculate tax based on a fixed turnover and the time-limit for tax payment shall be in accordance with the notice for value added tax.

3. Organizations and individuals in Vietnam paying income to foreign business organizations and individuals having no resident establishments in Vietnam shall be responsible for withholding CIT and paying it into the State Budget prior to making payments to such foreign organizations and individuals. If a Vietnamese organization or individual does not deduct CIT, it shall be liable to pay such amount on behalf of the foreign party as well as fines under current regulations on administrative offences.

4. Business establishments trading in lots must declare and pay tax in respect of each lot of goods to the local tax office where the goods are purchased prior to the goods being taken away and at the same as value added tax is declared and paid.

IV. CORPORATE INCOME TAX FINALIZATION:

1. Business establishments must finalize tax with the tax office (except in cases of monthly tax payment in accordance with the percentage of taxable income calculated based on turnover and tax rate). The tax finalization statement must contain the following items: turnover used to calculate tax; reasonable expenses; taxable income; amount of income tax payable; amount of income tax provisionally paid during the year; amount of income tax paid overseas in respect of income received from overseas; any excessive amount or shortfall of income tax paid, and so forth, in accordance with Forms 2a and 2b attached to this Circular.

A year for the purpose of corporate income tax finalization shall be the Gregorian year, commencing on 1 January and ending on 31 December of the same year. Where a business establishment is permitted to apply a financial year other than the Gregorian year, tax finalization shall be conducted in accordance with such financial year.

In case of merger, amalgamation, division, demerger, dissolution or bankruptcy, the business establishment must finalize tax as at the date on which the decision on merger, amalgamation, division, demerger, dissolution or bankruptcy of the competent authority is issued.

(a) In the case of dissolution or bankruptcy of a joint venture enterprise between a number of business establishments, its losses must be allocated to each business establishment and the total losses reported in general business results when a business establishment conducts CIT finalization.

(b) Where a business establishment suffers losses from its production and business activities but a profit from its joint venture, it may choose to account for all losses as they are and carry forward the losses under the regulations or use the joint venture profits to distribute to cover the losses of its production and business activities.

(c) Where a business establishment has both loss-making operations and profit-making operations in the year of CIT finalization:

- If the profit-making operations are CIT exempt or subject to CIT reduction, it may:

- Account separately for the profit of the preferential operations in order to reduce its tax and carry forward the losses;

- Take the profit from the preferential operations in order to cover losses and receive preferential treatment for any remaining profit or carry forward any remaining loss.

- If, on the other hand, the loss-making operations are CIT exempt or subject to CIT reduction, it may cover losses from the profit-making operations.

(d) If after a business establishment submits its CIT finalization to the tax office there is found to be a CIT overpayment, the excess shall be deducted from the amount payable in the next period and the tax office shall be responsible to adjust this in the tax notice for such following period. If after the tax office checks CIT finalization a business establishment is found to owe any sum, the business establishment shall be liable to abide by the minutes of inspection of CIT finalization as prepared by the tax office.

For example:

Upon tax finalization for year 2000, business establishment A determines that it paid 200 million dong more than it was required to have paid in accordance with law, and has submitted tax finalization as stipulated. The tax office shall send a tax notice for provisional CIT for the first quarter of 2001 at 300 million dong and A may deduct its overpayment of 200 million, so there is 100 million remaining to be paid. The tax office shall be responsible to notify the sum of tax payable, the sum overpaid from the previous period to be carried forward, and the remaining amount payable for the first quarter of 2001, namely 100 million dong.

2. Business establishments shall prepare tax finalization reports and shall be liable for their truthfulness and accuracy. Where, upon examination, the tax office discovers incorrect information in a tax finalization report which reduces the amount of tax payable, tax shall be paid in full together with any fine for tax fraud or tax evasion.

Where the tax finalization statement of a business establishment which is merged, consolidated or demerged is incorrect, the new business establishment taking over the assets of such merged, consolidated or demerged business establishment shall be responsible for paying in full the shortfall of tax and any fine payable to the State Budget.

3. Business establishments shall submit financial reports and tax finalization reports to the tax office directly in charge within sixty (60) days from the last date of the fiscal year. In case of merger, demerger, dissolution or bankruptcy, the time-limit for submission of tax finalization reports shall be forty five (45) days after issuance of the decision on merger, consolidation, demerger, dissolution or bankruptcy by the competent authority.

4. Business establishments shall pay any outstanding amount of tax within ten (10) days from the stipulated date of submission of finalization reports. In cases of failure to do so, in addition to the full amount of the shortfall, a fine for late payment shall be paid.

5. Examination of tax finalization reports shall be decided by the head of the tax office directly in charge or the head of the superior tax office.

Where incorrect sale prices, purchase prices or business expenses of business establishments are discovered during the examination of tax finalization, the tax office shall have the right to re-determine in accordance with the prices at the time of sale or purchase of goods in order to ensure correct and full payment of corporate income tax.

Upon completion of examination, the tax office shall prepare minutes and make recommendations on resolution. Business establishments shall be responsible for complying with the examination minutes of the tax office.

6. Adjustment of data in finalization reports:

- Directors of business establishments shall be responsible for the accuracy of the data in finalization reports submitted by their establishments to the tax office. If business establishments discover errors after sending their reports, they shall be dealt with as follows:

- If the tax office has not yet issued a tax notice (step 1 check), the business establishment should send an amended finalization report in replacement with a covering letter explaining the reasons for the replacement and the date of the initial report, and so forth;

- If the tax office has issued a tax notice (step 1 check), the business establishment should send an additional finalization report on the items which have been adjusted.

- In cases of exemption or reduction following CIT finalization, any decision on tax exemption or reduction shall be based on the amount of taxable income arising in a year, on the principle that the amount of any exemption or reduction must be deducted from the sum payable in the year of exemption or reduction. If a business establishment has already paid tax for the year of exemption or reduction, it shall determine the amount of excess paid in such year and then it shall be deducted from the amount payable in the following year.

V. PROCEDURES FOR DECLARATION, PAYMENT AND REFUND OF WITHHOLDING TAX:

1. Withholding tax shall be declared and paid in respect of each remittance of profits overseas. Where an enterprise retains profits overseas, pays debts for its parent company, or pays for expenses of the representative office(s) of its parent company in Vietnam, tax shall be declared and paid on a monthly basis.

2. Prior to remittance of any profits overseas or no later than the fifth day of the following month (in the case of tax declaration and payment on a monthly basis), a foreign investor shall prepare a tax declaration form and submit it to the tax office directly in charge of the enterprise and pay the declared amount of tax to the State Treasury. A foreign investor may only carry out the procedures for remittance of profits overseas after the State Treasury has provided a tax payment receipt.

3. Where tax has been paid but profits have not been remitted overseas or where an excessive amount of tax has been paid, the State Budget shall refund the amount of tax paid. A file for tax refund to be sent to the Ministry of Finance shall comprise:

(a) Written request for refund of the excessive amount of tax paid, specifying the reason for excessive payment; name, address and account number of the foreign investor requesting tax refund;

(b) Statement of the amount of tax paid supported by copies of source documents relating to the payment made to the State Treasury and certification by the State Treasury of the amount of tax paid (specifying the chapter, type, clause and item of the budget contents to which the payment is made);

(c) Certification by the tax office directly in charge of the enterprise of the excessive amount of tax paid and recommendation on resolution.

4. Annually, no later than ninety (90) days after the end of the fiscal year, foreign investors shall report to the tax office directly in charge of their enterprises on the use of distributed profits and payment of withholding tax on profits for the previous fiscal year.

D. DUTIES, POWERS AND RESPONSIBILITIES OF TAX OFFICES

Tax offices shall:

1. Be liable to guide business establishments to fulfil the regime for registration, declaration and payment of tax in accordance with applicable provisions.

Registration of corporate income tax shall be made at the same time as registration of value added tax.

Tax offices shall send written reminders to business establishments which fail to comply with the provisions on registration, declaration and payment of tax; and shall impose administrative tax penalties where business establishments continue such failure after reminder.

2. Issue notices to business establishments within stipulated time-limits. Tax payment notices must be sent to taxpayers at least three days prior to the date on which tax payment is to be made (as stated in notices).

Where a business establishment fails to pay tax after the time-limit stated in the notice, the tax office shall issue a second notice. The second notice shall state the amount of tax and fines payable for delayed payment in accordance with 24.2 of the Law on Corporate Income Tax. Where the business establishment fails to pay the tax and fines stated in such notice, the tax office shall have the right to take action as provided for in article 24.4 of the Law on Corporate Income Tax. Where the business establishment continues to fail to pay in full the tax and fines after such action has been taken, the tax office shall forward the relevant documents to judicial bodies for resolution in accordance with law.

3. Examine and inspect the declaration, payment and finalization of tax by business establishments in order to ensure strict compliance with law.

4. Impose administrative tax penalties and deal with tax complaints.

5. Demand business establishments to provide books of account, receipts, source documents and other documents relating to calculation and payment of tax; and demand credit organizations, banks and other relevant organizations and individuals to provide documents relating to calculation and payment of tax.

6. Maintain and use data and documents provided by business establishments and others in accordance with applicable regulations.

7. The tax office shall determine taxable income for the purpose of calculation of the amounts of tax payable by business establishments in the following cases:

(a) Failure to maintain, or maintain adequately, books of account, receipts and source documents as required by the regulations;

(b) Failure to declare, or declare accurately, the bases for tax calculation or failure to substantiate the contents of declaration forms as required by the tax office;

(c) Refusal to provide books of account, receipts, source documents and other necessary documents relating to calculation of corporate income tax;

(d) Discovery of business activities conducted without business registration.

The tax office shall determine taxable income by taking into account the business situation of the business establishment or according to the taxable income of other business establishments of similar size operating in the same line of business.

Apart from the method of determination stated above, the tax office may determine taxable income of resident establishments of foreign companies on the basis of turnover as follows:

Taxable income of resident establishment in Vietnam during period

=

(Total turnover of resident establishment in Vietnam during period

x

Total turnover of foreign company during period

Total income of foreign company during period)

In order for the method of determination of taxable income to be implemented with respect to a resident establishment, the foreign company shall be responsible for providing to the tax office the books of account and accounting statements of the company which have been certified by an independent auditing organization as the basis for allocation of taxable income for the resident establishment in Vietnam.

Where a business establishment is not satisfied with its taxable income as determined, it may lodge a complaint to the superior tax office. Pending resolution of the complaint, the business establishment must pay the amount of tax as determined.

DD. EXEMPTION FROM, REDUCTION AND REFUND OF CORPORATE INCOME TAX

I. CORPORATE INCOME TAX SHALL BE REDUCED OR EXEMPTED IN THE FOLLOWING CASES:

1. Tax exemptions and reductions for newly-established domestic business establishments:

(a) Newly-established production establishments shall be exempted from corporate income tax for the first two years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of the amount of income tax payable for two subsequent years. In particular, production establishments established in mountainous regions, islands and other regions with difficult conditions shall be entitled to a further two year period of tax reduction.

(b) Newly-established production establishments in fields, trades and industries in which investment is encouraged shall be exempted from income tax for the first two years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of income tax payable for three subsequent years.

(c) Newly-established production establishments in fields, trades and industries in which investment is encouraged in ethnic minority districts of mountainous regions shall be exempted from income tax for the first four years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of the amount of income tax reduction for nine subsequent years.

(d) Newly-established production establishments in fields, trades and industries in which investment is encouraged in ethnic minority districts, in mountainous regions and on islands shall be exempted from income tax for the first four years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of the amount of income tax payable for seven subsequent years.

(dd) Newly-established production establishments in fields, trades and industries in which investment is encouraged in other regions with difficult conditions shall be exempted from income tax for the first three years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of the amount of income tax payable for five subsequent years.

2. Tax exemptions and reductions for newly-established trading and service business establishments in fields, trades and industries which are entitled to investment incentives:

(a) Newly-established trading and service establishments in fields, trades and industries which are entitled to investment incentives shall be entitled to a fifty (50) per cent reduction of income tax for an initial period of two years from the time when taxable income arises.

(b) Newly-established trading and service establishments in fields, trades and industries which are entitled to investment incentives in ethnic minority districts of mountainous regions shall be exempted from income tax for the first two years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of income tax payable for five subsequent years.

(c) Newly-established trading and service establishments in fields, trades and industries which are entitled to investment incentives in districts in ethnic minority regions, mountainous regions and islands shall be exempted from income tax for the first two years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of income tax payable for four subsequent years.

(d) Newly-established trading and service establishments in fields, trades and industries which are entitled to investment incentives in other regions with difficult conditions shall be exempted from income tax for an initial period of one year from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of income tax payable for three subsequent years.

Newly-established trading and service establishments which are entitled to corporate income tax reductions or exemptions as stipulated in clauses 1 and 2 of this Section I shall be new establishments established and issued business licences after the date of effectiveness of the Law on Corporate Income Tax. Establishments which were previously established and are now divided, demerged, merged or consolidated, have changed their names or the type of enterprise, have invested in new production lines, business expansion, technology renewal, improvement of ecological environment or improvement of production capacity, or have added types of goods or trades or industries to their business licences hall not be considered for tax reductions or exemptions as newly-established production, trading or service establishments.

3. Domestic production establishments investing in new production lines, business expansion, technology renewal, improvement of ecological environment or improvement of production capacity shall be exempted from corporate income tax in respect of the increased portion of income in the first year and shall be entitled to a fifty (50) per cent reduction of the portion of increased corporate income tax payable due to new investments in the two subsequent years.

The amount of increased income due to new investments shall be equal to the difference between the taxable income of the year in which the investment is completed and the taxable income of the year prior to the investment.

For example:

In 1998, the taxable income of Company A is 500 million dong. In early 1999, Company A completes and commissions a project of expansion of production scale. The total taxable income of each year of 1999, 2000 and 2001 is 800 million dong. Company A shall be entitled to the following tax exemption and reduction:

- In 1999, Company A is exempted from the taxable income of:

800 million dong - 500 million dong = 300 million dong

- Company A is entitled to the following corporate income tax reduction in each of the years 2000 and 2001: 50% x (800 million dong - 500 million dong) x 32% = 48 million dong.

4. Domestic business establishments relocated to mountainous regions, islands and other regions with difficult conditions shall be exempted from corporate income tax for the first three years from the time when taxable income arises.

5. Corporate income tax in respect of the following income of domestic business establishments shall be exempted:

(a) Income earned from performance of scientific research contracts.

(b) Income earned from performance of technical service contracts directly serving agricultural production.

(c) Income earned from production, business and service activities conducted by business establishments specially employing disabled people.

To be defined as specially employing disabled people, business establishments shall satisfy all of the following conditions:

- To be recognized by the people's committee of the province or city under central authority as a production or business establishment which employs only disabled people (including war invalids and sick soldiers);

- To comply strictly with the establishment of books of account and use of source documents for sale and purchase of goods and provision of services in accordance with applicable regulations;

- To have a business licence issued by a competent State authority;

- To employ at least ten (10) labourers, fifty one (51) per cent of whom are disabled people as certified by a competent medical body. The remaining labourers shall principally be relatives of disabled people, shareholders and people with management, professional and scientific-technical qualifications;

- To have operational regulations which are appropriate to employees being disabled people.

(d) Income earned from vocational training specially for disabled people, ethnic minority people, children living in particularly difficult conditions and people involved in social evils. Vocational training activities defined as being specially for disabled people, ethnic minority people, children living in particularly difficult conditions and people involved in social evils shall satisfy all of the following conditions:

- Being vocational training establishments of enterprises, of employment service centres and of organizations and individuals as stipulated in article 17 of Decree 72-CP dated 31 October 1995, articles 10 and 13 of Decree 81-CP dated 23 November 1995 and article 10 of Decree 90-CP dated 15 December 1995 of the Government;

- To operate in the line of business stated in the practising licence or the line of business registered for operation with the competent body of labour, war invalids and social affairs;

- To register for tax payment in accordance with law;

- To comply strictly with the establishment of books of account and use of invoices and source documents in accordance with applicable regulations.

6. Production, trading or service individual households shall be considered for tax exemptions and reductions in the following cases:

(a) Medium and small production, trading or service individual households which do not yet implement the regulations on accounting, invoices and source documents for sale and purchase of goods and services and which calculate and pay tax on the basis of a fixed turnover shall be considered for a fifty (50) per cent reduction of the amount of tax payable for any month during which they suspend business for fifteen (15) or more consecutive days and for exemption from the amount of tax payable for any month in which they suspend business for the whole month.

(b) Production, trading or service individual households earning monthly income in a year which is lower than the minimum wage stipulated by the State for State employees shall be exempted from income tax for the whole year.

7. Corporate income tax reductions and exemptions in the case of foreign invested enterprises and foreign parties to business co- operation contracts shall be as follows:

(a) Projects to which the tax rate of twenty (20) per cent is applicable for a duration of ten (10) years from the commencement of production or business shall be exempted from tax for the first year from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of the amount of income tax payable for two subsequent years.

(b) Projects to which the tax rate of fifteen (15) per cent is applicable for a duration of twelve (12) years from the commencement of production or business shall be exempted from income tax for the first two years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of the amount of income tax payable for three subsequent years.

(c) Projects to which the tax rate of ten (10) per cent is applicable for a duration of fifteen (15) years from the commencement of production or business shall be exempted from income tax for the first four years from the time when taxable income arises and shall be entitled to a fifty (50) per cent reduction of the amount of income tax payable for four subsequent years.

(d) Afforestation projects, infrastructure construction projects in mountainous regions and islands and other projects in which investment is specially encouraged shall be exempted from income tax for a duration of eight years from the time when taxable income arises.

Tax exemptions and reductions as stated in the above sub-clauses (a), (b), (c) and (d) shall not apply to hotel projects (except in cases of investment in mountainous regions, islands and other regions with difficult conditions or transfer of assets to the State of Vietnam without compensation upon expiry of the period of operation), projects for investment in finance, banking, insurance, provision of services and commerce.

8. Foreign investors shall be entitled to corporate income tax exemptions or reductions in the following cases:

(a) Vietnamese residing overseas investing in Vietnam in accordance with the Law on Foreign Investment in Vietnam shall be entitled to a twenty (20) per cent reduction of the amount of income tax payable, except where the income tax rate applicable is ten (10) per cent.

(b) Corporate income tax shall be exempted with respect to the contributions of foreign investors to legal capital in the form of the value of patents, technical know-how, technological processes and technical services.

(c) Corporate income tax shall be exempted in respect of foreign investors which assign their capital contribution to State owned enterprises or enterprises in which the State holds controlling shares.

(d) A fifty (50) per cent reduction of corporate income tax shall apply to foreign investors which assign their capital contribution to other Vietnamese enterprises, such as limited liability companies, shareholding companies, private companies, co-operatives, and so forth.

9. Reductions of income tax shall be granted to domestic business establishments and enterprises with foreign owned capital conducting production, construction and transportation activities and employing a large number of female employees. The reduction rate shall correspond to the actual amount of expenses for female employees as follows:

(a) Additional expenses for vocational re-training of female employees where their former occupations are no longer suitable in order to transfer to other occupations in accordance with the development planning of enterprises. Such additional expenses shall comprise tuition fees (if any) plus (+) any difference in salary scales (to ensure that trainees are paid one hundred (100) per cent of their salary).

(b) Salaries and allowances (if any) for teachers at kindergartens and nurseries established and managed by enterprises. The number of teachers shall be determined in accordance with the standards stipulated by the training and education sector.

(c) Expenses for one additional medical examination each year (in addition to the number of examinations stipulated), mainly for the purpose of examination of occupational diseases, chronic diseases or gynaecological diseases contracted by female employees.

(d) Once-off additional allowance for female employees after their first or second delivery. The allowance shall not exceed three hundred thousand (300,000) Vietnamese dong in respect of enterprises in cities, towns and townships and not exceed five hundred thousand (500,000) Vietnamese dong in respect of enterprises in remote and distant regions and islands in order to provide partial assistance to mothers in overcoming childbirth difficulties.

(dd) During the period of breastfeeding, if for objective reasons a female employee does not go home to feed her baby but stays and works for the enterprise, she shall be paid for such time at the rate of overtime allowance in accordance with applicable regulations.

Corporate income tax with respect to the above expenses for female employees shall be reduced provided that there are source documents of actual payment and signature of payees.

(e) An enterprise conducting production, construction or transportation activities shall be considered as employing a large number of female employees upon satisfaction of one of the following conditions:

- The enterprise employs ten (10) to one hundred (100) female employees on a regular basis and the female employees of the enterprise account for fifty (50) or more per cent of the total regularly present employees of the enterprise;

- The enterprise employs over one hundred (100) female employees on a regular basis and the female employees of the enterprise account for thirty (30) or more per cent of the total regularly present employees of the enterprise.

Administrative units and offices of State corporations which satisfy the above conditions but which are not directly involved in business shall not be entitled to tax reduction in accordance with this clause.

10. Refund of corporate income tax for re-invested income of enterprises with foreign owned capital and foreign parties to business co- operation contracts:

(a) Conditions for tax refund:

- Re-investment in projects in which investment is encouraged;

- Re-invested capital is used for three years or more;

- The legal capital stated in the investment licence has been fully contributed.

(b) The rate of tax refund for re-investment shall be as follows:

- One hundred (100) per cent of the amount of tax paid in respect of investment in projects entitled to the corporate income tax rate of ten (10) per cent for a duration of fifteen (15) years;

- Seventy five (75) per cent of the amount of tax paid in respect of investment in projects entitled to the corporate income tax rate of fifteen (15) per cent for a duration of twelve (12) years;

- Fifty (50) per cent of the amount of tax paid in respect of investment in projects entitled to the corporate income tax rate of twenty (20) per cent for a duration of ten (10) years.

(c) The amount of income tax to be refunded in respect of the re- invested income shall be determined as follows:

Th = (L divided by 100% - S) x S x T

Of which:

Th is the amount of tax refunded;

L is the income received after payment of income tax which is used for re-investment;

S is the corporate income tax rate stated in the investment licence;

T is the rate of income tax refund.

11. Domestic business establishments and foreign invested enterprises which suffer losses after tax finalization with the tax office shall be entitled to carry forward such losses to the following years and such losses shall be deducted from taxable income. Losses shall be carried forward for a maximum period of five years.

II. PROCEDURES FOR CONSIDERATION OF TAX EXEMPTIONS AND REDUCTIONS:

Business establishments which are entitled to tax exemptions and reductions shall submit files to the competent tax authority on a case-by- case basis as follows:

1. In the case of tax exemptions and reductions as stipulated in clauses 1, 2 and 4 of Section I of Part DD, business establishments shall only be required to submit a written request for tax exemption or reduction (which specifies the reason for tax exemption or reduction) to the tax office directly in charge of tax collection. Every year, after examination of the conditions for tax exemption and reduction, the tax office directly in charge of tax collection shall inform those business establishments which satisfy all conditions for tax exemption or reduction.

2. In the case of tax exemptions and reductions as stipulated in clause 3 of Section I of Part DD, a file shall comprise:

(a) Written request of the business establishment to the tax office directly in charge of tax collection which specifies the reason for tax exemption or reduction and the following attached documents:

- In respect of State owned enterprises, the investment feasibility study approved by the competent authority, the finalization statement of the project and the sources of capital for construction and purchase;

- In respect of limited liability companies and shareholding companies, the investment feasibility study approved by the board of management, the finalization statement of the project and the sources of capital for construction and purchase;

- In respect of private enterprises, the contract and finalization of contracts for construction and installation of machinery and equipment; in the case of self-construction, invoices for purchase of materials, machinery and equipment and for actual installation and use of machinery and equipment shall be presented;

(b) Financial finalization statement and corporate income tax finalization statement of the business establishment of the years prior to investment and of the year after investment for which tax exemption or reduction is applied for.

3. In the case of consideration for tax exemption as stipulated in clause 5(a) of Section I of Part DD, a file shall comprise:

(a) Written request of the business establishment to the tax office directly in charge of tax collection which specifies the reason for tax exemption;

(b) Decision on establishment issued by the competent authority or, in the case of individuals or collectives, a certificate of registration of scientific research activities of the municipal or provincial science managing body;

(c) Business licence;

(d) Scientific research contract certified by the competent body in charge of State administration of science;

(dd) Minutes of acceptance of contract;

(e) Financial finalization statement and corporate income tax finalization statement of the business establishment in which details of the scientific research results are reflected.

4. In the case of consideration for tax exemption as stipulated in clause 5(b) of Section I of Part DD, a file shall comprise:

(a) Written request of the business establishment to the tax office directly in charge of tax collection which specifies the reason for tax exemption;

(b) Technical service contracts directly serving agricultural production and minutes of liquidation of contracts;

(c) Financial finalization statement and corporate income tax finalization statement of the business establishment, including detailed data on the results of performance of technical service contracts directly serving agricultural production.

5. In the case of consideration for tax exemption for business establishments specially employing disabled people (clause 5(c) of Section I of Part DD), a file shall comprise:

(a) Written request of the business establishment to the tax office directly in charge of tax collection which specifies the reason for tax exemption;

(b) Decision of the people's committee of the province or city under central authority certifying that the establishment specially employs disabled people;

(c) Financial finalization statement and corporate income tax finalization statement of the business establishment.

6. In the case of consideration for tax exemption as stipulated in clause 5(d) of Section I of Part DD, a file shall comprise:

(a) Written request of the business establishment to the tax office directly in charge of tax collection which specifies the reason for tax exemption;

(b) Licence of registration of vocational training issued by the Department of Labour,