Công văn 13480/BTC-TCT

To: Provincial – level Tax Departments

Some provincial-level Tax Departments and businesses have sent official letters asking for guidance on business income tax incentives for the remaining incentive duration enjoyable by industrial park, export processing zone and hi-tech park infrastructure developers. Regarding this matter, the Ministry of Finance provides the following guidance:

- Clause 2, Article 20 of the Government’s Decree No. 124/2008/ND-CP on business income tax stipulates: “Businesses currently enjoying the business income tax incentives under Business Income Tax Law No. 09/2003/QH11, the Petroleum Law and legal documents issued by the Government before the effective date of this Decree will continue enjoying the incentives under Business Income Tax Law No. 09/2003/QH11, the Petroleum Law and legal documents issued by the Government for the remaining incentive duration.”

- Clause 2, Part I of the Ministry of Finance’s Circular No. 130/2008/TT-BTC of December 26, 2008, on business income tax, guides: “Businesses currently enjoying the business income tax incentives (covering preferential tax rate and tax exemption or reduction) under previous legal documents on business income tax or granted investment licenses or investment incentive certificates will continue enjoying these incentives for the remaining incentive duration. In case the business income tax incentives, covering a preferential tax rate and a tax exemption or reduction, are lower than those provided in this Circular, the latter will apply to the remaining duration counting from the tax period of 2009.”

- Point 2 of the Ministry of Finance’s Official Letter No. 4125/BTC-TCT of March 23, 2009, on income tax on the transfer of the right to lease land in industrial parks and export processing zones, guides: “In case industrial park infrastructure developers are allocated or leased land by the State for building infrastructure under their investment licenses, business registration certificates or investment incentive certificates, and they have invested in building infrastructure under the granted licenses and later subleased the land with built infrastructure to other businesses in industrial parks, export processing zones or hi-tech parks under contracts on lease of land and built infrastructure clearly stating the rights and responsibilities of lessors and lessees, all incomes earned from these activities shall be regarded as incomes from infrastructure development and are eligible for the business income tax incentives under regulations (if any).”

Pursuant to the above provisions, for businesses established before January 1, 2009, and having investment projects to develop infrastructure of industrial parks, export processing zones and hi-tech parks, and projects that were allocated or leased land before January 1, 2009, for investment in building infrastructure and later subleasing the land with built infrastructure, incomes earned from these activities shall be regarded as incomes from infrastructure development and are eligible for the business income tax incentives under regulations.

If these investment projects are enjoying the business income tax incentives, they may continue enjoying the incentives for the remaining incentive duration based on the conditions they satisfy.

The Ministry of Finance notifies the above guidance to provincial-level Tax Departments for information.