Thông tư 36/2016/TT-BTC

CIRCULAR

GUIDING THE IMPLEMENTATION OF REGULATION ON TAX TO ORGANIZATIONS AND INDIVIDUALS CONDUCTING THE SEARCH, EXPLORATION AND EXTRACTION OF OIL AND GAS ACCORDING TO REGULATION OF PETROLEUM LAW

Pursuant to the Petroleum Law dated 06/07/1993 and the Law amending and adding some articles of the Petroleum Law No.19/2000/QH10 dated 09/06/2000 and other guiding documents;

Pursuant to the Law on Taxation and the current guiding documents;

Pursuant to the Law on Tax Administration No. 78/2006/QH11 dated 29/11/2006 and the Law amending and adding some articles of the Law on Tax Administration No. 21/2012/QH13 dated 20/11/2012, the Law No. 71/2014/QH13 dated 26/11/2014 amending and adding some articles of the tax Laws and the Decrees of the Government detailing the implementation;

Pursuant to the Decree No. 33/2013/ND-CP dated 22/4/2013 of the Government issuing the sample contract of petroleum production sharing Contract;

Pursuant to Decree No. 215/2013 / ND-CP dated 23/12/2013 of the Government stipulating the functions, tasks, powers and organizational structure of the Ministry of Finance;

Considering the recommendations of General Director of General Department of Taxation

The Minister of Finance issues this Circular guiding the implementation of regulations on tax to the organizations and individuals conducting the search, exploration and extraction of oil and gas according to regulation of Petroleum Law.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application

1. This Circular guides the regulations on tax to the organizations and individuals (hereafter referred to as contract) conducting the search, exploration and extraction of crude oil and condensate ((hereafter collectively referred to as crude oil) and natural gas, associated gas, coal gas (hereinafter referred to as natural gas) in Vietnam under the provisions of the Petroleum Law; and the parties affiliated with the contractor engaged in petroleum contracts.

The parties having the above affiliate are the parties having the relation like one of the following cases:

- One party directly or indirectly participating in operation, control, capital contribution or investment in any form in the other party;

- The parties are under direct or indirect operation, control, capital contribution or investment in any form from another party;

- The parties directly or indirectly participating in operation, control, capital contribution or investment in any form in another party;

2. This Circular does not apply to the search, exploration and development of oilfield and oil extraction of joint venture Vietnam - Russia "Vietsovpetro" from lot 09-1 in accordance with the provisions in the Agreement 2010 and the Protocol 2013 between the Government of Vietnam and the Russian Federation except for the tax provisions for the transfer of rights to participate in petroleum contracts provided for in Section 4 of this Circular.

Article 2. Taxpayers

1. The taxpayers are the contractors involved in petroleum contracts.

The taxpayers authorize the operators, joint-venture businesses, joint operating companies to make tax declaration and the taxpayers shall pay their prescribed taxes by themselves or the taxpayers authorize the operators, joint-venture businesses, joint operating companies to make the prescribed tax declaration and payment.

2. Where the petroleum contract has the agreement that the Vietnam Oil and Gas Group shall make payment of tax on behalf of contractors, it may authorize the operators, joint-venture businesses, joint operating companies to make tax declaration and the Group shall make payment of prescribed tax; or the Vietnam Oil and Gas Group shall authorize the operators, joint-venture businesses, joint operating companies to make prescribed tax declaration and payment.

3. For the transfer of rights to participate petroleum contracts, the taxpayers shall comply with the instructions specified in Article 23, Section 4, Chapter II of this Circular.

Article 3. Currency for tax declaration and payment

1. The currency for tax declaration and payment guided in this Circular including the natural resources tax, export tax, corporate income tax and benefit transfer tax for participating in petroleum contract is the US dollar.

2. Where the crude oil and natural gas are sold in Vietnamese market, the selling price is determined on US dollar basis, the currency used to pay tax is Vietnamese dong.

The conversion from US dollar into Vietnam dong to calculate and pay tax is based on the buying exchage rate by transfer form of Head Office of Commercial Bank for Foreign Trade of Vietnam at the time of invoice preparation.

3. Where the crude oil and natural gas are sold and collected in US dollar but the taxpayers make payment of tax in Vietnamese dong as stipulated by the Government, the currency used to pay tax is the Vietnamese dong.

The conversion from US dollar into Vietnam dong to make payment for the accounts payable in foreign currency is done in accordance with the provisions in the Law on Tax Administration, the Law on amendment and addition and the documents detailing and guiding the implementation.

Article 4. Location of tax registration, declaration and payment

1. The location of tax registration, declaration and payment (except for import tax and export tax) is the local Department of Taxation where the head office or administrative office of operators, joint-venture businesses, joint operating companies are located.

2. For petroleum contracts with extraction before the issue of this Circular, the location for tax declaration and payment is in accordance with the instructions before the effective date of this Circular.

Article 5. Principles to determine the taxable price

1. For crude oil, the taxable price as stipulated in this Circular is the selling price of crude oil at the delivery place determined as per fair transactions.

“Fair transaction” is the sale in Vietnamese market and international market in the currency freely convertible between sellers and buyers voluntarily and without relation but not including the sale by one party to its one branch, sale between the governments or organizations owned by the government or exchange transactions or barter and the times of sale not based on the international free market.

"Place of delivery" is the place where oil and gas touches the outer flange of oil tanker or means of storage used to take or consume petroleum or other places agreed by the parties in petroleum contract where the petroleum whose ownership is transferred to the parties involved in the petroleum contract.

Where the crude oil is not sold as per fair transactions, the taxable price to the crude oil is the average selling price of the month of crude oil sale of the same type or equivalent in the international market. The taxpayers must provide the tax agency with information about the components and quality of crude oil under extraction. In case of necessity, the tax agency shall refer to the selling price in US market (WTI), UK market (Brent) or Singapore market (Platts) or consult the competent state authorities about the determining the crude oil price under extraction of the taxpayers.

2. The natural gas, the taxable price is the selling price of natural gas at the delivery place, determined under the natural gas sale contract and approved by the Prime Minister and in accordance with the agreement in the petroleum contract taking into account the time of calculating the market price and other factors (if any). In case of necessity, the tax agency shall consult the competent state authorities about the determining the natural gas price under extraction of the taxpayers.

Article 6. Other general provisions

1. Where one organization or individual conducting the petroleum search, exploration and extraction under many different petroleum contracts, the taxation under the instructions in this Circular is done separately under each petroleum contract.

2. The instructions on tax administration not specified in this Circular shall be followed under the current regulations of law on taxation and the guiding documents.

Chapter II

INSTRUCTIONS ON COMPLIANCE WITH REGULATIONS ON TAX

SECTION 1. NATURAL RESOURCES TAX

Article 7. Subjects of natural resources tax

1. The subjects of natural resources tax are the total output of crude oil and natural gas actually extracted and obtained from the petroleum contract area and metered at the delivery place (actual oil and gas output).

2. Where the Government of Vietnam use the associated gas of the taxpayer without exchange or sale for money, the taxpayers shall not have to pay the natural resources tax to such volume of associated gas.

3. If during the extraction of crude oil and natural gas, the taxpayers are allowed to extract the other natural resources subject to the natural resources tax, they shall pay the natural resources tax to each specific case in accordance with the provisions in the Law on natural resources tax and the guiding documents.

Article 8. Period of natural resources tax

- Where the petroleum contract has no agreement or does have the implementation agreement under the current regulation or agreement upon quarterly allocation of output of oil and natural gas actually extracted into the oil, gas and natural resources temporarily calculated at the time of oil and gas extraction and finally adjusted after the end of year, the tax period is calendar year.

- Where the petroleum contract has agreements on quarterly allocation of output of oil and natural gas actually extracted into the oil, gas and natural resources for tax payment temporarily calculated at the time of oil and gas extraction and finally adjusted after the end of quarter, the agreements in the petroleum contract shall apply (the quarterly tax period).

- The first period of natural resources tax starts from the first date of extraction of crude oil and natual gas to the end date of calendar year or quarter.

- The last period of natural resources tax starts from the first date of calendard year or the first date of quarter to the end date of extraction of crude oil and natural gas.

Article 9. Determining the natural resources tax payable

1. The natural resources tax to the crude oil and natural gas is determined on the partially progressive basis of output of crude oil and natural gas extracted average daily of the total output of crude oil and natural gas actually extracted in each taxation period from the petroleum contract area, tax rate of natural resources tax and a number of days of actual extracted in the tax period.

2. Determining the natural resources tax by crude oil or natural gas to be paid:

In which:

+ The output of crude oil or natural gas subject to average daily natural resources tax average daily in the tax period is the total output of crude oil or natural gas subject to natural resources tax for extraction in the tax period divided by the number of days of actual extraction in the tax period.

+ The tax rate of natural resources tax: follow the regulations of law on natural resources tax. Where the petroleum contract was signed before the 01/07/2010 with specific agreement on the tax rate of natural resources tax, such agreements in the signed petroleum contract shall apply.

The determination of encouraged investment projects in oil and gas as a basis for application of tax rate of natural resources tax based on the list of projects with encouraged investment in oil and gas shall be decided by the Prime Minister.

+ A number of days of actual extraction of crude oil or natural gas in the tax period is a number of days of extraction of crude oil or natural gas in the tax period minus the days of stop of production on the entire contract area due to any cause.

Ex 1: Determining the natural resources tax by oil to be paid in case of extraction of crude oil (quarterly as assumed)

Assuming that:

+ The total output of crude oil subject to the natural resources tax is extracted in the tax period: 12,000,000 barrels.

+ Number of production days in the tax period: 75 days.

+ Average daily output of crude oil subject to the natural resources tax in the tax payment period: 160,000 barrels/days (12,000,000 barrels: 75 days).

+ The crude oild is extracted from the contract not included in the list of encouraged investment projects (where the crude oil is extracted from the contract included in the list of projects with encouraged investment, follow the method of calculation similar with the tax rate of natural resources tax applicable to the encouraged investment projects).

The natural resources tax by crude oil to be paid in the tax payment period is determined as follows:

{(20,000 x 10%) + (30,000 x 12%) + (25,000 x 14%) + (25,000 x 19%) + (50,000 x 24%) + (10,000 x 29%)} x 75 ngày = 2,156,250 barrels.

Ex 2: Determining the natural resources tax by natural gas to be paid in case of extraction of natural gas (quarterly as assumed)

Assuming that:

+ The total output of natural gas subject to the natural resources tax is extracted in the tax period: 855,000,000 m³.

+ Number of production days in the tax period: 75 days.

+ Average daily output of natural gas subject to the natural resources tax in the tax payment period: 11,400,000 m³/day (= 855,000,000 m³ : 75 days).

+ The natural gas is extracted from the contract not included in the list of encouraged investment projects.

The natural resources tax by natural gas to be paid in the tax period is determined as follows:

{(5,000,000 x 2%) + (5,000,000 x 5%) + (1,400,000 x 10%)} x 75 days = 36,750,000 m³.

Article 10. Determining the provisional natural resources tax

1. The natural resources tax to be paid entirely by crude oil, natural gas or in cash or partially in cash and partially by crude oil or natural gas:

Where the natural resources tax is paid by crude oil or natural gas, the tax agency shall notify the taxpayers in writing 06 months in advance and provide specific instructions on declaration and payment of natural resources tax by crude oil or natural gas.

2. Determining the provisional natural resources tax:

In which

+ The output of crude oil actually sold is the output of crude oil subject to natural resources tax according to each time of sale;

+ The output of natural gas actually sold is the output of natural gas subject to natural resources tax sold each month;

+ Price of natural resources tax to the crude oil is the selling price at the delivery place as per fair transactions of each time of sale with VAT excluded (if any);

+ Price of natural resources tax to the natural gas is the selling price at the delivery place according to each month of sale with VAT excluded (if any);

Where the taxpayers can separate the cost of transportation of natural gas on the invoice, the price of natural resources tax to the natural gas is the selling price at the delivery place according to each month of sale, not including the cost of transportation and VAT (if any).

Where the crude oil is not sold as per fair transactions, the price of natural resources tax is determined as guided in Clause 1, Article 5 of this Circular.

+ The proportion of provisional natural resources tax is determined as guided as follows:

+ The natural resources tax by crude oil or natural gas to be paid in the tax period is determined under the instructions in Clause 2, Article 9 of this Circular, on the basis of output of crude oil or natural gas subject to the natural resources tax to be extracted in the tax period and the expected number of days of extraction.

+ The output of crude oil or natural gas subject to the natural resources tax to be extracted in the tax period is the output of crude oil or natural gas subject to the natural resources tax to be extracted in the tax period.

3. The time limit for the taxpayers to submit the notice of provisional tax payment rate under the Form of report on output of oil expected to be extracted and the provisional tax payment rate No. 01/BCTL-DK issued with this Circular as follows:

- Where the petroleum contract has agreements on period of natural resources tax by year, based on the output of crude oil or natural gas expected to be extracted for the following year, the taxpayer shall determine the provisional natural resources tax rate and notify the local tax agency where the tax has been registered no later than 01/12 of the tax period of tax period.

In the tax period, where the expected output of crude oil or natural gas and expected number of extraction days for the last 06 months have changed resulted in the increase or reduction in the provisional natural resources tax rate from 15% or more compared with the provisional natural resources tax rate which has informed to the tax agency, the taxpayers must determine and notify the new provisional natural resources tax rate to the tax agency no later than 01/05 of that year.

- Where the petroleum contract has agreements on period of natural resources tax by quarter, based on the output of crude oil or natural gas expected to be extracted for the following quarter, the taxpayer shall determine the provisional natural resources tax rate and notify the local tax agency where the tax has been registered no later than the first date of month preceeding the following quarter.

- Where the petroleum contract begins to be put into commercial operation, the taxpayers must determine and inform the provisional natural resources tax rate to the tax agency when making declaration and payment of provisional natural resources tax to the first shipment of crude oil or natural gas extracted and sold within the contract area.

Ex 3: Determining the provision natural resources tax (based on annual tax period):

- Determining the provision natural resources tax to the crude oil:

Assuming that:

+ The total output of crude oil subject to the natural resources tax is expencted to be extracted in the year: 72,000,000 barrels.

+ Expected number of days of extraction: 360 days.

+ Average daily output of crude oil subject to the natural resources tax in the year: 200,000 thùng/day (72,000,000 barrels: 360 days).

+ The natural resources tax is expected to be paid in the year (determined as guided in Article 9 of this Circular): 14,526,000 barrels.

The percentage of provisional natural resources tax from extraction of crude oil is:

- Determining the percentage of provisional natural resources tax to the natural gas:

Assuming that:

+ Total output of natural gas subject to the natural resources tax is expected to be extracted in the year: 3,960,000,000 m³.

+ Expected number of days of extraction: 360 days.

+ Average daily output of natural gas subject to the natural resources tax in the year: 11,000,000 m3/ day(3,960,000,000 m³: 360 days).

+ The natural resources tax is expected to be paid in the year (determined as guided in Article 9 of this Circular): 162,000,000 m³.

The percentage of provisional natural resources tax from extraction of natural gas is:

Article 11. Finalization of natural resources tax

1. For extraction of crude oil:

a) Determining the natural resources tax to be paid:

a.1) Determining the natural resources tax by crude oil to be paid in the tax period:

a.2) Determining the natural resources tax by crude oil compared with the output of crude oil extracted in the tax period:

a.3) Determining the natural resources tax by crude oil in the tax period:

a.4) Determining the amount to be paid from sale of natural resources tax by crude oil in the tax period

In which:

+ The natural resources tax by crude oil sold in the tax period is determined as guided under Point a.3, Clause 1 of this Article;

+ Price for calculation of natural resources tax to crude oil is the weighted average price of crude oil sold at the delivery place as per fair transactions in the tax period with VAT excluded (if any).

Where the crude oil is not sold as per fair transactions, the price for calculation of natural resources tax is determined as guided in Clause 1, Article 5 of this Circular.

a.5) Determining the natural resources tax by crude oil not sold in the tax period as a basis for finalization of natural resources tax by crude oil to be paid for the next tax period:

Ex 4: Determining the price for calculation of natural resources tax:

Assuming that the output of crude oil sold in the tax period is (4,000,000 barrels) sold into 03 lots: lot 1 with output of 2,000,000 barrels sold at 108 USD/barrel; lot 2 with outout of 1,000,000 barrels sold at 120 USD/ barrel; lot 2 with outout of 1,000,000 barrels sold at 100 USD/ barrel;

2. For extraction of natural gas:

a) Determining the natural resources tax to be paid:

a.1) Determining the natural resources tax by natural gas to be paid in the tax period:

a.2) Determining the amount to be paid from the sale of natural resources tax by natural gas in the tax period:

In which:

+ The natural resources tax by natural gas to be paid in the tax period is determined as guided under Point a.1, Clause 2 of this Article;

+ The price for calculation of natural resources tax to natural gas is the weighted average of natural gas at the delivery place in the tax period with VAT excluded.

Where the taxpayers can separate the cost of transportation of natural gas on the invoice, the price of natural resources tax to the natural gas is the selling price at the delivery place according to each month of sale, not including the cost of transportation and VAT (if any).

Article 12. Making declaration and payment of natural resources tax for the extraction and sale of crude oil and natural gas

1. Declaration and payment of provisional natural resources tax

a) Dossier of declaration of provisional natural resources tax:

- Dossier of declaration of natural resources tax is the Declaration of provisional natural resources tax under the Form No. 01/TAIN – DK issued with this Circular.

- The detailed Appendix of tax obligations of petroleum contractor is under the Form No. 01/PL-DK issued with this Circular.

b) Time limit for declaration and payment of provisional natural resources tax:

- The declaration of provisional natural resources tax for the extraction and sale of crude oil is done with each time of sale.

The time limit for submission of dossier of declaration and payment of provisional natural resources tax for crude oil as per each time of sale is no later than the 35th date from the first date of sale of crude oil (for the crude oil locally sold and exported). The date of sale is the date of completion of sale of crude oil at the place of delivery.

- The declaration of provisional natural resources tax of extraction and sale of natural gas is done monthly.

The time limit for submission of Dossier of declaration and payment of provisional natural resources tax of monthly extraction of natural gas: no later than the 20th date (twenty) of the month succeeding the month of issue of gas sale invoice.

2. Declaration of finalization of natural resources tax:

a) The Dossier of declaration of finalization of natural resources tax of extraction and sale of crude oil and natural gas:

- Declaration of finalization of natural resources tax of oil is the Form No. 02/TAIN – DK issued with this Circular.

- Detailed appendix of tax obligations of oil contractors is the Form No. 01/PL-DK issued with this Circular.

- Appendix of output and revenues from sale of oil is the Form No. 02-1/PL-DK issued with this Circular.

b) The time limit for submission of Dossier of declaration of finalization of natural resources tax of extraction and sale of crude oil and natural gas:

- The time limit for submission of Dossier of declaration of finalization of natural resources tax of extraction and sale of crude oil and natural gas is no later than the 90th date (ninety) of the period succeeding the period with incurred tax obligations.

- No later than the 45^th date (forty five) from the end date of petroleum contract.

3. Where the end date of time limit for declaration and payment of tax coincides with the prescribed holidays, the end date of the time limit is the working date succeeding the holiday.

Section 2. EXPORT TAX AND IMPORT TAX

The taxpayers shall make declaration and payment of export tax and import tax in accordance with regulations of law on export tax and import tax and the law on tax administration. In addition, the Ministry of Finance provides some specific instructions as follows:

Article 13. Export tax

1. Determining the provisional export tax:

In which:

+ The output of crude oil and natural gas exported is the output of crude oil and natural gas actually exported.

+ The taxable price is the selling price of crude oil and natural gas as guided in Article 5 of this Circular.

- The percentage of provisional export tax is determined as follows:

In which:

+ The percentage provisional natural resources tax in the tax period is determined as guided in Article 10 of this Circular.

+ The tax rate of export tax of crude oil and natural gas is based on the current export tariff. Where there are specific agreements in petroleum contract on tax rate of export tax, the tax rate of export tax as agreed in such petroleum contract shall apply.

Ex 5: Determining the percentage of provisional export tax of crude oil:

Assuming that:

+ The percentage provisional natural resources tax according to the example in Article 10 mentioned above is: 20,1750%.

+ The tax rate of export tax of crude oil based on the current export tariff: 10%.

+ The percentage of provisional export tax of crude oil: 7,9825% = (100% - 20,175%) x 10%.

Based on the percentage provisional natural resources tax, the tax rate of export tax of the crude oil, the taxpayers shall determine the percentage of provisional export tax of each petroleum contract and inform the customs where the crude oil is exported and the tax agency where the tax is registered with the time limit for notice of percentage provisional natural resources tax and the percentage of provisional corporate income tax.

2. In case of finalization of natural resources tax, the output of crude oil or natural gas actually extracted or sold has changed compared with the output of crude oil or natural gas expected to be extracted in the tax period resulted in the change of percentage of natural resources tax, the taxpayers shall, based on the percentage of natural resources tax as finalized to re-determine the percentage of export tax on the principles as guided in Clause 1, Article 13 of this Circular and make declaration and adjustment in accordance with the current instructions of the law on export tax and import tax and the law on tax administration.

Where the amount of export tax temporarily paid is smaller than the amount of export tax to be paid, the taxpayers shall pay the difference amount between the export tax to be paid in proportion with the export tax re-determined and the percentage of provisional export tax at the time of finalization of natural resources tax, and shall not have to make the late payment over such difference amount to be paid.

The time limit for submission of Dossier of declaration and adjustment of export tax is the same as the time limit for submission of Dossier of finalization of natural resources tax.

Article 14. Exemption of export tax

The exemption of export tax to the imported goods in service of search, exploration and extraction of oil and gas shall comply with the current regulations of law on export tax and import tax and the law on tax administration.

Section 3. CORPORATE INCOME TAX

Article 15. Subjects of corporate income tax

1. The income from extraction of crude oil and natural gas and other incomes directly pertaining to the petroleum activities are the subjects of corporate income tax as guided in this Circular.

2. The income from other business and production activities and other incomes other than the income specified in Clause 1 of this Article (hereafter referred to as other incomes) are the subjects of corporate income tax as guided in the current legal document on corporate income tax.

Article 16. Period of corporate income tax

1. The period of corporate income tax is the calendar year. Where the taxpayers apply the financial year different from the calendar year approved by the Ministry of Finance, the tax period is the financial year.

2. The first period of corporate income tax is from the first date of search, exploration and extraction of oil and gas to the end date of calendar year or financial year.

3. The last period of corporate income tax is from the commencement date of calendar year or the commencement date of financial year to the end date of petroleum contract.

4. Where the tax period of the first year and the tax period of the last year have the period of time shorter than 03 months, they can be added the tax period of the following year or the tax period of the previous year to form a tax period of corporate income tax. The taxperiod of corporate income tax of the first year or the last year must not exceed 15 months.

Article 17. Determining the taxable income

1. For the income from extraction of crude oil and natural gas:

a) Revenues from the extraction of crude oil and natural gas are the entire value of output of crude oil and natural gas actually extracted and sold at the delivery place as per fair transactions to crude oil and under the gas sale contract for natural gas in the tax period (VAT excluded)

Where the crude oil is not sold as per fair transactions, the revenues from extraction of crude oil are determined by multiplying the volume of crude oil by the selling price as guided in Clause 1, Article 15 of this Circular.

b) Deductible and non-deductible expenses upon determing the taxable income:

b.1) Deducted expenses: The taxpayers are deducted from their expenses in determining the income subject to corporate income tax (excluding the expenses specified under Point b.2, Clause 1 of this Article) if meet the following conditions:

b.1.1) Actual expenses pertaining to the search, exploration, extraction and consumption of crude oil and natural gas products include the following expenses:

- The natural resources tax, export tax and surcharge when the price of crude oil increases, the environmental protection fees (where the petroleum contract has agreement on recovery expenses excluding the environmental protection fees).

- The expenses permitted for recovery actually incurred is pertaining to the search, exploration, extraction of crude oil and natural gas but must not exceed the expenses determined by the revenues from sale of crude oil and natural gas multiplied by the percentage of respective recovered expenses agreed in petroleum contract. Where in the petroleum contract, there is no agreement on percentage of recovered expenses, then the percentage of recovered expenses used to determine the expenses is deducted up to 35%.

Where according to the agreements in the petroleum contract, each contractor shall directly pay the expenses of sale of goods and services pertaining to the search, exploration, extraction of crude oil and natural gas, the contractor shall make a list attached to the copy of legal invoices and documents and transferred to the operators, joint-venture businesses, joint operating companies to determine the expenses which are the deducted expenses and make deduction when determining the income subject to the corporate income tax.

b.1.2) The expenses fully have invoices and documents in accordance with regulations of law.

b.1.3) For the invoices of sale of goods or services each time valued from 20 million dong or more, there must be the non-cash payment document in accordance with regulations of the law on corporate income tax and other guiding documents.

b.2) The expenses must not be deducted upon determining the taxable income:

b.2.1) The expenses permitted for recovery exceed the percentage of recovered expenses agreed in the petroleum contract. Where in the petroleum contract, there is no agreement on percentage of recovered expenses, then the expenses permitted for recovery exceeding up to 35% shall not included in the deductible expenses.

b.2.2) The expenses which must not included in the expenses allowed for recovery in accordance with the provisions of petroleum contract are:

- The expenses are generated before the effect of petroleum contract, unless otherwise agreed in the petroleum contract or by the decision of the Prime Minister;

- The oil commissions, fees of reading and use of documents and other expenses not included in the recovered expenses under the petroleum contract;

- Expenses of loan interest of the capital loan to invest in the search, exploration and development of oilfield and extraction of oil and gas.

- Penalty or compensation for damages ;

- Other expenses must not be deducted in accordance with the provisions of the Law on corporate income tax and the guiding documents.

c) For the revenues generated from the financial guarantee fund for the clearance of fixed works, equipment and means (hereafter referred to as oilfield clearance fund):

c.1) The revenues generated from the bank deposit intests of oilfield clearance fund are applied by the tax rate of other incomes specified in the Law on corporate income tax and the guiding documents.

c.2) Where the petroleum contractor cannot use up the oilfield clearance fund, the balance of the fund is processed in accordance with the provisions of the Petroleum Law and the guding documents. The revenues shared to the parties involved in petroleum contract are processed as follows:

+ Where the revenues are separated, the revenues from the bank deposit interest whose corporate income tax has bee paid at the tax rate of other incomes not subject to payment of corporate income tax. The remaining revenues generated from the oilfield clearance fund are recorded with reduced expenses permitted to be recovered if the petroleum contract whose expenses have not yet been recovered or apply the tax rate of petroleum contract if the petroleum contract whose expenses have been recovered.

+ In case of impossible separation, record the reduced expenses permitted for recovery if the petroleum contract whose expenses have not yet been recovered or apply the tax rate of petroleum contract if the petroleum contract whose expenses have been recovered.

d) The other incomes directly pertaining to the petroleum activities such as revenues from bank deposit interest, from the insurance compensation or revenues from the use of property or implementation of property ownership (revenues from fees of use of wharf, property disposal) are recorded with reduced expenses permitted for recovery of petroleum activities.

2. For other incomes in addition to the ones from the extraction of crude oil and natural gas: comply with the provisions of the Law on corporate income tax and the guding documents.

Article 18. Determining the corporate income tax the enterprise must pay

1. Determining the income tax the enterprise must pay:

In which :

+ The taxable income in the tax period from the extraction of crude oil and natural gas and other incomes is determined as guided in Article 15 of this Circular.

+ The tax rate of corporate income tax complies with the regulations of law on corporate income tax. The tax rate of corporate income tax of petroleum activities is from 32% to 50%; based on the location and extraction conditions and oilfield reserve, the Prime Minister shall decide the specific tax rate in line with each petroleum contract as requested by the Minister of Finance.

Where the petroleum contract has specific agreements on the tax rate of corporate income tax, the tax rate of corporate income tax agreed in such petroleum contract shall apply. Where the policy on corporate income tax changes leading to the more preferential tax rate than the one agreed in the petroleum contract, if the Prime Minister makes approval, the tax rate under the decision of the Prime Minister shall apply.

2. Where the petroleum contract has agreements that each contractor shall determine the corporate income tax to be paid separately, the corporate income tax the contractor shall pay is equal to the total corporate income tax to be paid (to be determined as mentioned above) multiplied by (x) the percentage of interest of oil and gas of each contractor in the petroleum contract.

Article 19. Determining the provisional corporate income tax to be paid

Determining the provisional corporate income tax:

In which:

+ The revenues from sale of crude oil and natural gas are the total value of output of oil sold at the delivery place as per fair transactions of each time of sale for crude oil or under natural gas sale contract of each month for natural gas (VAT excluded).

Where the crude oil is not sold as per fair transactions, the revenues from crude oil are determined by multiplying the volume of crude oil by the selling price as guided in Clause 1, Article 15 of this Circular.

+ The percentage of provisional corporate income tax is determined as guided below:

The taxpayers determine themselves the percentage of provisional corporate income tax and inform the local tax agency where the tax registration is made with the time limit for notice of percentage of provisional natural resources tax specified in Article 10, Section 1, Chapter II of this Circular.

Ex 6: Determining the percentage of provisional corporate income tax for extraction of crude oil:

Assuming that:

+ Percentage of recovered expenses: 35%

+ Percentage of provisional payment of natural resources tax: 20.1750%

+ Percentage of provisional payment of export tax (as per example in Article 10 mentioned above): 7.9825%

+ Tax rate of corporate income tax: 50%

Percentage of provisional corporate income tax:

(100% - 35% - 20.1750% - 7.9825% ) x 50% = 18.1413%

In case of payment of provisional corporate income tax from extraction of natural gas, the percentage of provisional corporate income tax is determined similarly as above.

Article 20. Declaration and payment of corporate income tax for the extraction and sale of crude oil and natural gas

1. Declaration and payment of provisional corporate income tax:

a) Declaration of provisional corporate income tax for the extraction and sale of crude oil done as per each time of sale.

The time limit for submission of dossier of declaration and payment of provisional corporate income tax for crude oil as per each time of sale is no later than the 35th date from the first date of sale of crude oil (for the crude oil locally sold and exported). The date of sale is the date of completion of sale of crude oil at the place of delivery.

b) Declaration of provisional corporate income tax for the extraction and sale of natural gas done as per each month.

The time limit for submission of dossier of declaration of provisional corporate income tax from the date of extraction of natural gas as per each month: no later than the 20th date (twenty) of the month succeeding the month of issue of gas sale invoice.

c) Dossier of declaration of provisional corporate income tax of extraction and sale of crude oil and natural gas:

- The dossier of declaration of provisional corporate income tax is the Declaration of provisional corporate income tax for oil under the Form No. 01/TNDN-DK issued with this Circular.

- Detailed appendix of tax obligations of petroleum contractors is under the Form No. 01/PL-DK issued with this Circular.

2. Finalization of corporate income tax:

a) The dossier of finalization declaration of corporate income tax of extraction and sale of crude oil and natural gas.

- The finalization declaration of corporate income tax for oil is the Form 02/TNDN – DK issued with this Circular.

- Detailed appendix of tax obligations of petroleum contractors is the Form No. 01/PL-DK issued with this Circular.

- Annual financial statement or financial statement to the end of petroleum contract.

b) The time limit for submission of declaration of corporate income tax for the extraction and sale of crude oil and natural gas:

- No later than the 90th date (ninety) from the end date of calendar year or financial year.

- No later than the 45th date (forty five) from the end date of petroleum contract.

In case the last date of the time limit for declaration and payment of tax coincides with the prescribed day-off, the end date of the time limit is the working day succeeding such day-off.

Section 4. TAX FOR INCOME FROM TRANSFER OF INTERESTS FROM PARTICIPATION IN PETROLEUM CONTRACT

Article 21. Subjects of tax

1. The transfer of interests from participation in petroleum contract is that the organizations or individuals sell, transfer their investment capital (including the property and money) in petroleum contract, petroleum enterprises or joint venture enterprises in Vietnam, transfer the ownership, change the ownership or control right of one contractor party or determine by other ways the whole or a part of rights, interests and obligations in the petroleum contract, petroleum enterprises or joint venture enterprises (the transferor) for one or many organzations or individuals (the transferee), except for the financial restructuring or arrangement of the transferor or consolidation of the transferor’s parent company. The transferee has the contractor’s obligations and interests to conduct the search, exploration and extraction of oil and gas.

Where the enterprise established in foreign country (hereafter referred to as foreign enterprise) transfers its shares or investment capital (including the property or money) or other interests in an enterprise established in foreign country but the enterprise whose capital is transferred holds directly or indirectly the property and interests of participation in petroleum projects in Vietnam leading to the change of contractor’s owner who are holding the interests of participation in petroleum projects in Vietnam. This transfer is also regarded as the transfer of interests of participation in petroleum contract. The foreign enterprise carrying out the above transfer is regarded as the transferor.

Ex: Company A (an enterprise established under the law of UK) has its subsidiary company as enterprise B (established under the law of France). In order to manage the petroleum projects, enterprise B establised its subsidiary company as emterprise C in Netherlands and the enterprise C is directly involved and named in the petroleum projects in Vietnam. During the operation, enterprise A has transferred its investment capital in enterprise B. The transfer transaction has been done in France. Thus, the above transfer transaction of enterprise A is the transfer of interests of participation in petroleum contract in Vietnam and the income generated from this transfer transaction is corresponding to the interests of participation in petroleum contract in Vietnam as the income subject to the corporate income tax.

2. The income from the transfer of interests of participation in petroleum contract from the transferor to the transferee subject to the corporate income tax as guided in Section 4, Chapter II of this Circular.

Article 22. Determining the income tax the enterprise must pay

1. Determining the income tax the enterprise must pay:

The corporate income tax of the income from the transfer of interests of participation in petroleum contract is determined as follows:

a) Determining the taxable income:

In which:

+ The transfer price is determined as the total actual value which the transferor collects under the transfer contract.

Where the contract of transfer of interests of participation in petroleum contract provides for the payment in the form of installment payment or late payment, the transfer price shall not contain the interest of installment payment or late payment according to the time limit specified in the transfer contract.

Where the transfer contract does not stipulate the payment price or tax agency has the grounds to determine the payment price which is not determined at the market price. The tax agency has the right to inspect and require the parties involved in the transfer to provide the information pertaining to the determination of the present and future value of interests of participation in petroleum contract the transferred before the parties decide the transfer, receipt of transfer and determine the payment value of the contract based on the reference to market price, the price allowed to sell to a third party, the selling price of similar transfer contract, the assessment price of professional valuation organizations with authority to assess at the time of transfer (if any) or re-determine the whole value of petroleum contract at the time of transfer to re-determine the transfer price corresponding to the percentage of transfer interests.

Where the transfer of interests of participation in petroleum contract is done through the sale of stocks in the securities market, the transfer price is determined as the actual selling price of securities (as the order-matching price or agreement price) according to the notice of securities exchanges or securities trading center.

+ The purchase price of the interests of participation in transferred petroleum contract (prime cost): is determined based on the transferor’s accounting books and documents concerning the expenses allowed to be recovered at the time of transfer of interests of participation in petroleum contract as agreed in the transfer contract after subtracting the expenses recovered or deducted (if any) which the contracting parties and Vietnam Oil and Gas Group and other expenses pertaining to the purchase price of interests of participation in transferred petroleum contract but not regarded as the expenses allowed to be recovered.

Where the contractor continues to re-transfer the interests of participation in transferred petroleum contract, the purchase price of interests of participation in petroleum contract transferred each subsequent time is determined by the transfer value of transfer contract shortly before plus the incurred expenses as the recovery expenses added by the contractor (if any evidencing document) minus the recovered expenses (if any).

Where the currency used in accounting of the operators, joint-venture businesses, joint operating companies is the US dollar as agreed in the petroleum contract and the contractor transfers the interests of participation in petroleum contract in foreign currency, the transfer price and the purchase price of the transferred interests are determined in US dollar.

Where the currency used in accounting of the operators, joint-venture businesses, joint operating companies is the Vietnamese dong, the transfer price is determined in US dollar and the purchase price of the transferred interests is determined in US dollar. The exchange rate to US dollar to determine the transfer price and the purchase price of the transferred interests shall comply with the provisions of the Law on tax administration, the Law on amendment and addition and the other documents detailing and guiding the implementation.

+ The transfer fees are the actual expenses directly pertaining to the transfer based on the original document acknowledged by the tax agency. Where the transfer fees are incurred in foreign country, such original documents must be notarized or independently audited and certified by the country having the incurred expenses and such documents must be translated into Vietnamese (with certification of competent representative).

The transfer expenses include the expenses of legal procedures necessary for the transfer, the fees and charges to be paid upon performing the transfer procedures; the expenses of transaction, negotiation, signing of transfer contract and other expenses with evidencing documents.

b) Tax rate of corporate income tax:

The tax rate of corporate income tax of the revenues from the transfer of interests of participation in petroleum contract shall comply with the current regulations of law on corporate income tax.

c) The exemption or reduction in corporate income tax does not apply to the revenues from the transfer of interests of participation in petroleum contract (unless otherwise agreed by the petroleum contract).

2. Where the taxpayers have income from the transfer of interests of participation in petroleum contract but the taxpayers do not determine properly or cannot calculate the amount of corporate income tax to be paid as guided in Clause 1 of this Article, the tax agency shall determine the amount of tax to be paid or determine each factor pertaining to the determination of amount of tax to be paid in accordance with the provisions of the Law on tax administration.

Ex 7: Enterprise A (an enterprise established under the law of foreign country) makes investment in a petroleum project in Vietnam. After that, this enterprise transfers all of its interests of participation in this petroleum project to enterprise B (an enterprise established under the law of Vietnam or foreign country) with the transfer value of 600 million US dollars. The transfer is done is Vietnam or in foreign country. The purchase price of interests of participation in petroleum contract of enterprise A (prime cost) at the time of transfer is determined by the operator as 400 million US dollars. The expenses pertaining to the transfer is 50 million US dollars. The tax rate of corporate income tax is 22%. Thus:

- The income to calculate the income tax from the transfer all of interests of participation in the petroleum contract in this case is 150 million US dollars (= 600 - 400 - 50).

- The corporate income tax of enterprise A is 33 million US dollars (= 150 x 22%).

3. The determination and payment of corporate income tax for the income from the transfer of interests of participation in the petroleum contract shall comply with the relevant regulations of law on tax and the commitments and agreements which the Government of Vietnam has signed.

Article 23. Declaration and payment of corporate income tax for income from the transfer of interests of participation in the petroleum contract

1. The transferor of interests of participation in the petroleum contract must make declaration and pay tax for the income from from the transfer of interests of participation in the petroleum contract.

Where the transfer changes the contractor’s owner who is holding the interests of participation in the petroleum contract in Vietnam, the contractor named in the petroleum contract in Vietnam must inform the tax agency upon generation of transfer and make declaration and payment of tax on behalf of the transferor for the generated income pertaining to the petroleum contract in Vietnam in accordance with regulations.

2. The dossier of tax declaration for income from transfer of interests of participation in the petroleum contract:

- The Declaration of corporate income tax on transfer of interests of participation in the petroleum contract is the Form No. 03/TNDN-DK issued with this Circular.

- A copy of transfer contract (English copy and the Vietnamese translation).;

- Certification of the operators, joint operating companies, parties involved in joint venture enterprises, Vietnam Oil and Gas Group on the total expenses incurred by the transferor in proportion to the prime price of the transferor’s transferred interests and the evidencing documents;

- The original documents of expenses pertaining to the transfer transaction;

- Where the transfer changes the contractor’s owner who is holding the interests of participation in the petroleum contract in Vietnam, the foreign contractor directly involved in the petroleum contract in Vietnam must make report and provide the additional documents as follows:

+ The shareholding structure of the company before and after the transfer.

+ The financial statement of two years of foreign enterprises and their subsidiaries/branches directly or indirectly holding the interests of participation in the petroleum contract in Vietnam.

+ The report on valuation of property and other evaluating documents used to determine the value of transfer of stocks and foreign investment capital under contract.

+ The report on reality of income tax payment of foreign enterprise pertaining to the transfer leading to the change of contractor’s owner who is holding the interests of participation in the petroleum contract in Vietnam.

+ The report on relationship between the transferring foreign enterprise and the branches/subsidiaries directly or indirectly holding the interests of participation in the petroleum contract in Vietnam on: contributed capital, business and production, revenues, expenses, accounts, assets, personnel,...

In case of required addition of dossier, the tax agency shall inform the taxpayers within 03 working days from the date of receipt of dossier.

3. The time limit for submission of dossier of tax declaration is ten (10) days from the time the parties sign the transfer contract pertaining to the interests of participation in petroleum contract and six (06) months from the date of change of contractor’s owner who is holding the interests of participation in petroleum contract in Vietnam.

Within 10 (ten) working days after fully receiving dossier, the tax agency shall review, assess and notify the taxpayers of the result of dossier verification.

4. The time limit for tax payment is no later than the tenth date (10) from the date of approval for transfer of interests of participation in petroleum contract.

5. The location of submission of tax declaration dossiers: at the tax agency as guided in Article 4, Chapter 1 of this Circular. The tax agency receiving the tax declaration dossier must make a copy of tax declaration dossier and send it to the General Department of Taxation.

Section 5. OTHER TAXES, FEES AND CHARGES

Article 24. Other taxes, fees and charges

During the business and production, the taxpayers must make payment of other taxes, fees and charges not guided in this Circular in accordance with the regulations of current legal documents of taxes, fees and charges.

For the refunding of VAT during the search, exploration and development of oilfield, the Ministry of Finance provides the instructions as follows: The input VAT of goods and services used for the search, exploration and development of oilfield to the first date of extraction or the first date of production shall be totally deducted. Where the petroleum contract does not detect the commercial oil and gas and terminates its effect by the decision of the competent level, the input VAT of goods and services used for the search, exploration and development of oilfield shall not be collected retrospectively.

Chapter III

IMPLEMENTATION

Article 25. Effect

1. This Circular takes effect from 12/04/2016 and applies to the tax period from 2016 onwards and applies to the shipments of crude oil or natural gas sold from 01/01/2016.

Supersede the Circular No. 32/2009/TT-BTC dated 19/2/2009 of the Ministry of Finance guiding the implementation of tax for the organizations and individuals conducting the search, exploration and extraction of oil and gas under the provisions of the Petroleum Law.

Annul the guidelines on declaration of natural resources tax and corporate income tax of the extraction and sale of crude oil and natural gas specified in Article 24 of Circular No. 156/2013/TT-BTC dated 6/11/2013 of the Ministry of Finance guiding some articles of the Law on tax administration, the Law on amendment and addition of the Law on tax administration and Decree No. 83/2013/ND-CP dated 22/7/2013 of the Government.

From the effective date of Circular No. 152/2015/TT-BTC dated 02/10/2015 of the Ministry of Finance until 01/1/2016, the determination of natural resources tax to be paid of crude oil and natural gas extracted continues to be implemented as gided in Section II, Part V of Circular No. 105/2010/TT-BTC dated 23/7/2010 of the Ministry of Finance.

2. The petroleum contracts issued with the Investment Permit before the Petroleum Law No. 10/2008/QH12, the Law on corporate income tax No. 14/2008/QH12, the Law on corporate income tax amended No. 32/2013/QH13 which have come into effect and are enjoying the preferential corporate income tax under the issued Investment Permit shall continue to enjoy such preferential tax (preferential tax rate and time of exemption or reduction) for the remaining time.

Based on the regulations in the Investment Permit or Decisions of the Prime Minister on the rate and duration of exemption or reduction of corporate income tax, the taxpayers shall determine the amount of tax subject to the tax exemption or reduction, the amount of tax the enterprises must pay upon provisional calculation and finalization of corporate income tax.

The first year with taxable income is the first tax period with incurred taxable income.

The incomes subject to the exemption or reduction of corporate income tax do not include the other income specified in Clause 2, Article 15 of this Circular.

3. Where in international treaties or inter-governmental agreements which the Government of Vietnam has signed, the contracts with guarantee commitments of the Government, there are provisions on tax for the search, exploration and extraction of crude oil and natural gas different from the provisions on tax in this Circular, the payment of tax of organizations and individuals that conduct the search, exploration and extraction of crude oil and natural gas shall comply with the international treaties, the inter-governmental agreements or the guarantee commitments of the Government that have been signed.

Any problem arising during the implementation should be reported to the Ministry of Finance for timely settlement./.