Công văn 4769/BTC-TCT

To: Tax Departments in provinces and centrally affiliated cities

On October 02^nd 2015, Ministry of Finance reported to the Prime Minister via the official dispatch n^o 13828/BTC-TCT to requisition for his instructions on tax-related matters in response to the propositions by European Chamber of Commerce in Vietnam (Eurocham). Ministry of Finance, at Point 3, Clause I of the official dispatch n^o 13828/BTC-TCT proposes the following guideline for regular investment:

“Before 2014, expansion investments are not required for companies that utilize their reserves for basic depreciation of fixed assets; or net profit for reinvestment; or finances from the capital registered with competent government authorities during their activities of production and trading but do not elevate the output of production and trading according to business plans registered or approved".

On November 24^th 2015, the Office of the Government issued the official dispatch n^o 9830/VPCP-KTTH to announce counsels by Deputy Prime Minister on matters stated in the official dispatch n^o 13828/BTC-TCT including his authorizing the Ministry of Finance to provide guidelines and handling formalities for regular investments in open, transparent and simplified manners.

Pursuant to such counsels by Deputy Prime Minister Vu Van Ninh via the official dispatch n^o 9830/VPCP-KTTH the Ministry of Finance issued the official dispatch n^o 200/BTC-TCT dated 6 January 2016 to requisition for opinions from relevant Ministries and agencies on such matters. Pursuant to counsels from the State Audit Office of Vietnam via the official dispatch n^o 100/KTNN-CN VI dated 20 January 2016, from the Ministry of Planning and Investment via the official dispatch n^o 1933/BKHĐT-PC dated 22 March 2016, from the Ministry of Industry and Trade via the official dispatch n^o 2568/BCT-KH dated 24 March 2016, the Ministry of Finance provides the following counsels

1. Time of application

Regular investments made by active companies from 2009 to 2013 are not deemed as expansion investments and are eligible for corporate income tax incentives being granted to the projects.

2. Determination of regular investments

- Regular investments are financed by 1 of 3 independent sources of investments for supplementation of machinery and equipment on regular basis for a project eligible for corporate income tax incentives, including:

(1) Corporate reserve for basic depreciation of fixed assets.

(2) Net profit for reinvestment.

(3) Funds from the investment capital registered with competent government authorities.

- It is regulated that such regular supplementation of machinery and equipment must not enhance the output of production and trading according to registered or approved business plans of the project granted corporate income tax incentives.

If the Certificate of investment or license of investment indicates the scale of the project, investments made on regular basis, which augment such scale, shall not be considered as regular investments and shall not be eligible for corporate income tax incentives. This provision is not applicable when the Certificate of investment or license of investment does not define the project's scale or when its holders only supplement or replace machinery and equipment on regular basis and are not granted a certificate of investment.

If companies’ regular investments enlarge the output of production and trading more than that registered in the investment certificate/ investment license, corporate income tax incentives shall not be granted to the income generated from the project’s excess output of production and trading as defined in the certificate or license of investment.

3. Enforcement

Companies that made regular investments from 2009 to 2013, if eligible for corporate income tax incentives according to Clause 2 above, shall make additional declarations according to the Law of tax management and written guidelines for management of tax. Corporate income tax paid (including the cases of tax arrears collection or those whose complaints are being processed) shall be refunded or set off against the tax payable in the subsequent period, for regular investments made from 2009 to 2013 and are currently eligible for corporate income tax incentives according to this official dispatch.

4. Clause 2 of this official dispatch shall govern the criteria to determine investments in regular supplementation of machinery and equipment, which have been eligible for corporate income tax incentives for the remaining time of 2014's tax period according to Point g, Article 5, Circular No. 151/2014/TT-BTC dated 10 October 2014 by Ministry of Finance.

Tax departments must report any difficulties during implementation to the Ministry of Finance for timely solutions./.