Thông tư 134/2007/TT-BTC

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT’S DECREE No. 24/2007/ND-CP OF FEBRUARY 14, 2007, DETAILING THE IMPLEMENTATION OF THE LAW ON ENTERPRISE INCOME TAX

Pursuant to the Law on Enterprise Income Tax passed on June 17, 2003, by the XIth National Assembly;
Pursuant to the Government’s Decree No. 24/2007/ND-CP of February 14, 2007, detailing the implementation of the Law on Enterprise Income Tax;
Pursuant to the Government’s Decree No. 77/2003/ND-CP of July 1, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;
The Ministry of Finance guides the imposition of enterprise income tax as follows:

Part A

SCOPE OF APPLICATION OF ENTERPRISE INCOME TAX

I. PAYERS OF ENTERPRISE INCOME TAX

The following organizations and individuals that produce and trade in goods or provide services (referred collectively to as business establishments) and have taxable incomes shall pay enterprise income tax under the guidance in this Circular.

1. Organizations engaged in goods production and trading and service provision, including:

a/ Business organizations established and operating under the Law on Enterprises; the Law on State Enterprises; the Law on Investment; the Law on Cooperatives.

b/ Unions of cooperatives and cooperatives (below referred to as cooperatives for short); cooperative groups (except for the case specified at Point 1, Section II, Part A of this Circular).

c/ Economic organizations of political organizations, socio-political organizations, social organizations, socio-professional organizations, people’s armed forces units; administrative agencies, non-business units, and other organizations.

2. Vietnamese individuals engaged in goods production and trading and service provision, including:

a/ Business individuals and groups of business individuals.

b/ Individual business households.

c/ Independent practitioners with or without fixed offices or practicing places (except for wage earners), such as medical doctors, accountants, auditors, painters, architects, musicians and other independent practitioners.

d/ Individuals who lease out such property as houses, land, means of transport, machinery, equipment or other kinds of property.

3. Foreign companies conducting goods production and trading and providing services through permanent establishments in Vietnam.

Permanent establishment is a business establishment through which a foreign company conducts some or all of its income-generating business operations in Vietnam. Foreign companies’ permanent establishments may take one of the following principal forms:

a/ Branch, executive office, factory, workshop, goods forwarding warehouse, means of transport, mine, oil or gas field, site of natural resource exploration and exploitation or equipment and facilities used for natural resource exploration;

b/ Building site; construction, installation or assembly project; activities of supervision of construction and construction, installation or assembly projects;

c/ Establishment providing services, including consultancy services provided by its employees or other entities;

d/ Agent of an overseas company;

e/ Representative in Vietnam in the following cases:

- Have competence to sign contracts in the name of an overseas company;

- Having no competence to sign contracts in the name of an overseas company but regularly conducting goods delivery or service provision in Vietnam.

In case a double taxation avoidance agreement signed by the Socialist Republic of Vietnam otherwise provides for permanent establishments, the provisions of that agreement shall be applied.

4. Foreign companies, foreign organizations or foreign individuals doing business in Vietnam not under the Law on Investment and the Law on Enterprises or having incomes generated in Vietnam shall pay enterprise income tax under separate guidance of the Ministry of Finance.

II. NON-PAYERS OF ENTERPRISE INCOME TAX

The following entities are not liable to pay enterprise income tax:

1. Cooperatives and cooperative groups engaged in agricultural production and earning incomes from cultivation, husbandry or aquaculture products.

2. Households and individuals engaged in agricultural production and earning incomes from cultivation, husbandry or aquaculture products, except for farming households and individuals engaged in large-scale commodity production and earning high incomes from cultivation, husbandry or aquaculture products.

Enterprise income tax is temporarily not collected from farming households and individuals engaged in large-scale commodity production and earning high incomes from cultivation, husbandry or aquaculture products until otherwise stipulated by the Government.

Part B

ENTERPRISE INCOME TAX CALCULATION BASES

The bases for enterprise income tax calculation are taxable income arising in the tax period and tax rate.

I. TAXABLE INCOMES

Taxable incomes in the tax period include taxable income from goods production and trading and service provision activities and other taxable incomes, including taxable incomes from goods production and trading and service provision activities conducted overseas.

Tax period is determined according to the calendar year. When a business establishment applies a fiscal year other than the calendar year, the tax period shall be determined according to the applied fiscal year. The first tax period for a newly set up business establishment and the final tax period for a business establishment set up from transformation of type of enterprise or form of ownership, merger, division, dissolution or bankruptcy shall be determined to conform to the accounting period prescribed by the accounting law.

If the first year’s tax period of a newly set up business establishment or the final year’s tax period of a business establishment set up from transformation of type of enterprise or form of ownership, merger, division, dissolution or bankruptcy is less than 03 months, it will be added to the subsequent year’s tax period (for newly set up business establishments) or the previous year’s tax period (for business establishments set up from transformation of type of enterprise or form of ownership, merger, division, dissolution or bankruptcy) into an enterprise income tax period. The first year’s enterprise income tax period or the final year’s enterprise income tax period must not exceed 15 months.

Taxable income in the tax period is determined according to the following formula:

                                      Turnover for                                                              
      Taxable                      calculating                  Reasonable                   Other taxable
  income in the        =          taxable          -          in expenses         +          incomes in
    tax period                  income in the               the tax period                 the tax period
                                       tax period

Business establishments may subtract the losses carried forward from previous tax periods from taxable incomes determined according to the above formula before determining payable enterprise income tax amounts according to regulations.

When a double taxation avoidance agreement which the Socialist Republic of Vietnam has signed otherwise provides for the method of determining taxable income for permanent establishments, the provisions of that agreement shall be applied.

II. TURNOVER FOR CALCULATING TAXABLE INCOME

1. Turnover for calculating taxable income is determined as follows:

Turnover for calculating taxable income is the total sum earned from goods sale or service provision, including price subsidies, surcharges and additional amounts earned by business establishments, regardless of whether or not such amounts have been collected.

a/ For business establishments paying value added tax by the tax credit method, it is turnover exclusive of value added tax.

Example: Business establishment A pays value-added tax by the tax credit method. Its added value invoice shows the following details:

Selling price: VND 100,000.

VAT (10%): VND 10,000.

Payment price: VND 110,000.

The turnover for calculating taxable income is VND 100,000.

b/ For business establishments paying value-added tax calculated directly on the basis of added value, it is turnover inclusive of value added tax.

Example: Business establishment B pays value added tax calculated directly on the basis of added value. Its goods sale invoice only indicates the selling price of VND 110,000 (VAT-inclusive price).

The turnover for calculating taxable income is VND 110,000.

2. Time of determining turnover for calculating taxable income is as follows:

a/ For goods, it is the time of transferring the right to own goods or issuing an invoice.

b/ For services, it is the time of completing the service or issuing an invoice.

3. Turnover for calculating taxable income in some cases is determined as follows:

a/ For goods sold by installment payment, it is the proceeds from the sale of goods at the price paid in lump sum, excluding installment interests.

b/ For goods and services sold by deferred payment, it is the proceeds from the sale of goods at the price paid in lump sum, excluding deferred payment interests.

For a purchase and sale contract with an installment or deferred payment duration lasting through many tax periods, turnover is the amount receivable from the purchaser in the tax period excluding installment or deferred payment interests payable in the time limit prescribed in the contract.

For goods sold and purchased by installment or deferred payment, the determination of expenses for determining taxable income complies with the principle that expenses must be compatible with turnover.

c/ For goods and services made and used by business establishments for exchange; as gifts or donations; provision or rewarding to laborers, turnover is calculated according to the sale prices of goods and services of the same or similar kinds on the market at the time of exchange; presentation or donation; provision or rewarding to laborers.

d/ For goods and services made and used by business establishments in the process of production or business, such as electricity, products used as fixed assets and self-made capital construction products, turnover is the production cost of such products.

e/ For goods processing, turnover is earnings from the processing, including remuneration, fuel, power, auxiliary materials and other expenses paid for the processing of goods.

f/ For business establishments acting as agents or consignees selling goods at prices set by business establishments being principals or consignors, turnover is commissions paid under agency or consignment contracts.

g/ For property leasing activities, including the case in which business establishments build houses for lease to their employees, turnover is the rent collected in each period under property or house leasing contracts.

If the lessees pay rents in advance for many years, turnover for calculating taxable income is determined in conformity with the determination of expenses incurred by business establishments.

Depending on the conditions for the determination of reasonable expenses, business establishments may choose either of the following two methods of determining turnover for calculating taxable income:

- Turnover is the property rent determined for each year, which is equal to (=) the advanced rent divided (:) by the number of years for which the rent is advanced.

- Turnover is the total rent advanced for many years.

In case a business establishment currently enjoying tax incentives chooses to use the total rent advanced by the lessee for many years as turnover for calculating taxable income, the enterprise income tax amount for each year of tax exemption or reduction is the total enterprise income tax payable for the number of years for which the rent has been advanced divided (:) by the number of years for which the rent has been advanced.

For organizations and individuals that have not yet applied the prescribed accounting, invoice and document regimes, if they lease property and receive rents advanced by lessees for many years, turnover for calculating taxable income is the total rent received.

h/ For credit activities, turnover is receivable interests in the tax period on debts with their principals and interests determined to be recoverable on time:

- For receivable interests on undue loans which have been accounted as income but, when becoming due, are not paid (both principal and interest) by clients, credit institutions shall account them as business expenses and monitor them off-balance-sheet. After collecting these interests, they shall account them as income.

- For other receivable interests on debts in the tax period which, when becoming due, are not paid by clients, credit institutions shall monitor them off-balance-sheet, urge their payment and, after collecting them, account them as income.

- For deposit, bond and bill interests, turnover is interests receivable in the period.

i/ For air carriage, turnover is the total sum received from the transport of passengers, luggage and cargos, regardless of whether such sum has been collected or not. The time of determining turnover for calculating taxable income is the time when the carriage service is completed.

j/ For electricity sale, turnover is the sum specified on added-value invoices. The time of determining turnover for calculating taxable income is the day on which electricity meter readings are certified and recorded on electricity bills.

Example: An electricity bill is recorded with an electricity meter reading for the time from December 5 to January 5. Turnover recorded on the bill will be used for January.

k/ For other activities, such as supply of clean water, turnover for calculating taxable income is determined as for electricity sale.

l/ For insurance and reinsurance business, turnover is the receivable amounts, namely, original premiums, agency service charge (damage survey, consideration for payment of indemnity, claim for third party’s indemnity, handling of cargoes eligible for 100% indemnity); reinsurance charges, reinsurance commissions and other revenues from insurance business after subtracting payable amounts for revenue reduction, such as refunded premiums, reduced reinsurance charges; refunded reinsurance commissions and reduced reinsurance commissions.

m/ For construction and installation activities, turnover is the value of a work or work item already tested and taken over or the value of the construction or installation volume already tested and taken over.

- For construction and installation activities involving supply of materials, raw materials, machinery and equipment, turnover is the sum earned from construction and installation activities, including the value of materials, raw materials, machinery and equipment.

- For construction and installation activities not involving supply of materials, raw materials, machinery and equipment, turnover is the sum earned from construction and installation activities, excluding the value of materials, raw materials, machinery and equipment.

n/ For real estate business, turnover is the sum to be collected from real estate business. The time of determining turnover is the time of transfer of land use rights or the right to own works or architectural objects attached to land or the time of delivery of immovables from the transferor to the transferee or the time of issuance of the invoice.

o/ For business activities carried out under business cooperation contracts:

- If parties to a business cooperation contract share business results in the form of turnover, turnover for calculating the enterprise income tax payable by each party is the proceeds from goods or service sale divided to each party under the contract.

- If parties to a business cooperation contract share business results in the form of products, turnover for calculating the enterprise income tax payable by each party is the proceeds from the sale of those products.

- If parties to a business cooperation contract share business results in the form of profits, turnover for calculating the enterprise income tax payable by each party is the proceeds from goods or service sale under the contract. The parties shall appoint one of them as a representative to issue invoices, record turnover, declare and pay enterprise income tax on behalf of the other parties.

III. EXPENSES TO BE EXCLUDED FROM REASONABLE EXPENSES FOR DETERMINING TAXABLE INCOME

1. Principles for determining expenses to be excluded from reasonable expenses:

1.1. Expenses without sufficient invoices or documents as prescribed or with unlawful invoices or documents.

1.2. Expenses not related to the generation of turnover and taxable income in the tax period.

1.3. Expenses covered by other funding sources.

2. The following expenses are excluded from reasonable expenses:

2.1. Depreciation of fixed assets in the following cases:

a/ Depreciation of fixed assets not used in goods production and trading or service provision.

Particularly for fixed assets serving laborers working at business establishments, such as mid-shift rest houses, mid-shift meal halls, change rooms, toilet facilities, clean water tanks, roofed parking lots, health stations or clinics, cars for the transport of laborers to and from workplaces, job training facilities and laborers’ dwelling houses constructed by business establishments, their depreciations are allowed to be accounted as reasonable expenses.

b/ Depreciation of fixed assets which have no papers evidencing that they belong to business establishments (except for finance-leased ones).

c/ Depreciation of fixed assets which are not managed, monitored and reflected in accounting books of business establishments under current fixed asset management and cost accounting regulations.

d/ Depreciated amounts in excess of the depreciation level prescribed in the Finance Ministry’s current regulations on fixed asset management, use and depreciation. For business establishments which apply the straight-line depreciation or rapid depreciation method for technology renewal purposes, they are depreciated amounts in excess of two times the prescribed depreciation level.

In other special cases, depreciated amounts may be accounted as reasonable expenses according to decisions of the Ministry of Finance.

e/ Depreciation of fixed assets which have been completely depreciated.

f/ Depreciation of works attached to land which are used concurrently for production and business and other purposes, depreciation of the value of works attached to land areas not used for production and business activities must not be accounted as reasonable expenses.

2.2. Expenses for raw materials, materials, fuels, energy and goods which have been used in excess of reasonable wastage norms or which were lost or damaged but have been compensated by organizations or individuals at fault.

Reasonable wastage norms of raw materials, materials, fuels, energy and goods shall be set by business establishments themselves. Reasonable wastage norms shall be elaborated right at the beginning of the year or period of manufacture of products. For raw materials, materials, fuels, energy and goods subject to wastage norms prescribed by the State, these norms will be applied. For business establishments which have not yet issued reasonable wastage norms, wastage norms elaborated by business establishments in the same business line or domain or of similar size will be used.

2.3. Salaries and wages in one of the following cases:

a/ Salaries, wages and allowances payable to laborers which have not been paid yet after the expiry of the time limit for submission of annual tax finalization dossiers.

b/ Salaries and wages paid by business establishments outside labor contracts or collective labor agreements. Salaries and wages paid without labor contracts or collective labor agreements as prescribed by the labor law, except for those paid to laborers hired on a seasonal or piecework basis.

c/ Cash amounts rewarded to laborers which are not of salary nature and not indicated in labor contracts or collective labor agreements.

d/ Salaries and wages of owners of private enterprises, heads of individual business households or business individuals. Remuneration paid to founders and members of members’ councils or management boards not personally participating in administering goods production and trading or service provision activities.

2.4. Expenses paid by business establishments for purchasing goods and services without invoices which business establishments are permitted to draw up lists of purchased goods and services (according to Form No. 01/TNDN attached to this Circular) but they fail to draw up such a list enclosed with payment documents issued to goods sellers or service providers in the following cases: purchasing products made of rattan, bamboo, rush, coconut fiber, palm leaves, etc., from peasants who directly make them; purchasing handicraft and fine-art articles from artisans who make them for non-commercial purposes; purchasing soil, stone, sand and gravel from people who exploit such products by themselves; purchasing farm, forest and aquatic products from producers, growers or fishermen; purchasing discarded materials from direct collectors; purchasing used utensils and furniture directly from families and individuals, and purchasing a number of services from individuals who provide these services for non-commercial purposes.

Lists of purchased goods and services must be signed by representatives-at-law of business establishments who shall take responsibility to law for the accuracy and truthfulness of the lists. If the purchasing price of a goods item or service on the list is higher than the market price at the time of purchase, the tax agency may base itself on the market prices at the time of purchase of the goods or services of the same or similar kind on the market to re-determine the price for re-calculating reasonable expenses upon determination of taxable income.

2.5. Expenses for monthly mid-shift meals for each laborer in excess of the minimum wage level prescribed by the State for state employees.

2.6. Expenses for food rations for laborers working in some special branches in excess of the level prescribed by the State.

2.7. Expenses for rewards for initiatives and innovations on which business establishments have no specific regulations on payment of rewards for initiatives and innovations or for which business establishments did not set up an appraisal and take-over council.

2.8. Financial supports for education for persons other than those specified at Point a of this Item or without dossiers proving that they are financial supports specified at Point b below:

a/ Financial supports for education, including financial supports for the establishment of schools, public, people-founded and private, within the national education system in accordance with the Education Law; financial supports in the form of physical facilities serving teaching, learning and other school activities; scholarships for pupils and students in general education establishments, vocational education institutions and higher education institutions prescribed in the Education Law; financial supports for contests on subject matters taught in schools for contestants who are learners.

b/ A dossier of certification of financial support for education comprises: written certification of the financial support signed by a representative of the donating business establishment and a representative of the lawful education establishment that is provided with financial support (made according to form No. 02/TNDN issued together with this Circular, not printed herein).

2.9. Compensation and allowance amounts provided to labor accident victims or occupational disease patients in excess of the prescribed level. Expenses for purchasing life insurance for laborers.

2.10. Expenses for electricity and water under electricity and water contracts directly signed between owners of rented production and business sites and water and electricity suppliers with insufficient documents in one of the following cases:

a/ When a business establishment that rents a production and business site directly pays electricity and water charges to the electricity and water suppliers without making a list thereof (made according to form No. 03/TNDN issued together with this Circular, not printed herein) attached with electricity and water bills and the production and business site renting contract.

b/ When a business establishment that rents a production and business site pays electricity and water charges to the owner of the rented site without making a list thereof (made according to form No. 03/TNDN issued together with this Circular, not printed herein) attached with electricity and water bills paid by the owner of the rented site which match the actually used electricity and water volumes, and the production and business site renting contract.

2.11. Rents for fixed assets in excess of the amount allocated according to the number of years which the lessees have paid in advance.

Example: Enterprise A rents a fixed asset for 4 years and pays a lump-sum rent of VND 400 million. The rent for the fixed asset accounted as annual expense is VND 100 million. If the annual rent for the fixed asset exceeds VND 100 million, the amount in excess of VND 100 million must not be included in reasonable expenses upon determination of taxable income.

For expenses for repair of rented fixed assets, if it is stipulated in the asset renting contract that the lessee is responsible for repairing the assets in the renting duration, expenses for repair of rented fixed assets may be accounted as expenses or gradually allocated into expenses within 3 years at most.

Expenses for procuring non-fixed assets such as technical documents, patents, technology transfer licenses, trademarks, commercial advantages etc., may be gradually allocated to business expenses within 3 years at most.

2.12. Travel allowances paid to laborers on leave not in accordance with the provisions of the Labor Code; allowances paid to laborers on working mission (excluding travel and accommodation expenses) in excess of two times the level prescribed by the Ministry of Finance for state cadres, employees and servants.

2.13. Amounts payable to female laborers which were paid to ineligible persons or in excess of the levels prescribed below:

a/ Expenses for job re-training of female laborers in case their current jobs are no longer suitable and they need to change their jobs according to the development planning of business establishments.

These expenses include training fee (if any) and rank and grade salary difference (guaranteeing that trainees are paid 100% of their salaries).

b/ Salaries and allowances (if any) for teachers of nurseries and kindergartens organized and run by business establishments. The number of teachers shall be determined according to the limit prescribed by the education and training sector.

c/ Expenses for organizing an additional health check per year, such as examination of occupational, chronic or gynecological diseases for female employees and workers.

d/ Allowances for female laborers after their first or second childbirth: The allowance level must not be higher than 1.5 times the minimum wage level set by the State to help female laborers partly overcome their postnatal hardship.

e/ Overtime allowances paid according to the current regime to female laborers who, for objective reasons, cannot take leave according to the prescribed regime but keep working for business establishments.

2.14. Cash amounts paid for labor protection outfits in excess of VND 1,000,000/year.

2.15. Amounts deducted and paid into social insurance and health insurance funds and trade union funds in excess of the prescribed levels. Contributions to management funds of superior levels and associations and societies in excess of the levels prescribed by business establishments and associations and societies.

2.16. Interests on loans borrowed from credit institutions and financial institutions for goods production and trading or service provision which were paid at rates higher than actual interest rates indicated in loan contracts. Interests paid on loans borrowed from other entities at rates higher than actual interest rates indicated in loan contracts or interests paid on loans in excess of 1.2 times interests paid at the highest lending interest rate applied at the same time by credit institutions with which business establishments have transactions.

Interests paid on loans borrowed for contribution of legal capital or on portions of registered legal capital not yet paid in, even when business establishments have commenced production and business operations.

2.17. Deductions made for setting up scientific and technological research funds and these funds’ amounts used in violation of regulations on deduction, setting up and use of these funds.

2.18. Deductions for setting up reserves for the price decrease of unsold goods, lost financial investments, bad debts and warranty for products, goods and construction and installation works in violation of the Finance Ministry’s guidance.

2.19. Deductions made for setting up job-loss funds and severance allowances paid to laborers in violation of the current regime.

2.20. Advanced amounts but not spent in practice, such as amounts advanced for the overhaul of fixed assets and other advanced amounts.

For particular fixed assets with regular repairs, business establishments may account in advance amounts for repair according to cost estimates as production or business costs. If the actual repair expenses are larger than the deducted amounts according to the cost estimate, the business establishment may additionally account the difference as reasonable expense. If the actually paid amount is smaller than the deducted amount according to the cost estimate, the business establishment may account it as expense decrease.

2.21. Expenses for advertisement, sales promotion, transactions and public relations (excluding expenses for market research: surveys, interviews, collection, analysis and assessment of information, expenses for market development and research support; expenses for hiring consultants to conduct research and development and support market research; expenses for product shows and trade fairs and exhibitions; expenses for opening showrooms; expenses for supplies and instruments to support product shows; expenses for the transportation of products for display); expenses for guest reception, festivities, brokerage commissions, expenses for meetings; support expenses for marketing, support expenses and payment discounts (including payments in cash to agents and purchasers of goods and services in large quantities); expenses for newspapers given free-of-charge by newspaper agencies, and other types of expenses which exceed by more than 10% of the total of reasonable expenses. For commercial activities, reasonable expenses used for determining control levels do not include the costs of goods sold.

2.22. Expenses for insurance business, construction lottery business, securities trading and some special business activities which have been paid in violation of specific guiding documents of the Finance Ministry.

2.23. Exchange rate difference-related losses resulting from the re-valuation of monetary items of foreign-currency origin at the end of the fiscal year; exchange rate difference-related losses arising in the course of capital construction investment (in the period prior to commencement of production and business activities).

2.24. Business management expenses allocated by overseas companies to their permanent establishments in Vietnam in excess of the expense level calculated according to the following formula:

       Business                                                                                                    Total                 management     Turnover of the resident establishment                                            business
expenses allocated                     in Vietnam in the tax period                        management
  by the overseas        =        ————————————————           x     expense of the
   company to its               Total turnover of the overseas company,                 overseas
        resident                          including turnovers of permanent                  company in the
    establishment                      establishments in other countries                      tax period             in Vietnam                     in the tax period                                                                                                               

The base for determining expenses and turnover of an overseas company is the overseas company’s financial statements already audited by an independent audit company, clearly indicating the turnover and expenses of the overseas company, and management expenses allocated by the overseas parent company to its permanent establishment in Vietnam.

Overseas companies’ permanent establishments in Vietnam which have not yet applied the prescribed accounting, invoice and voucher regimes and pay tax by the declaration mode are not allowed to account as reasonable expenses business management expenses allocated by their overseas companies.

2.25. Fines for administrative violations such as: violations of traffic law, violations of business registration regulations, violations of accounting and statistical regimes, violations of the tax law, and other fines for administrative violations as prescribed by law.

2.26. Expenses for capital construction investment; financial supports for mass and social organizations and localities; charities, excluding financial supports for education stated at Point 2.8 of this Part; expenses for golf course membership cards, and expenses for golf playing.

2.27. Payable taxes:

a/ Value added tax paid by business establishments that pay VAT by the credit method which has been credited or refunded;

b/ Enterprise income tax;

c/ Land use right transfer tax;

d/ Personal income tax.

2.28. Other unreasonable expenses as prescribed by law.

IV. OTHER TAXABLE INCOMES

Other taxable incomes in the tax period include:

1. Income from securities trading.

2. Income from activities related to industrial property rights or copyright.

3. Other incomes from asset ownership or use right.

4. Income from asset transfer or liquidation. This income is determined to be equal to (=) turnover generated from the asset transfer or liquidation minus (-) the residual book value of the transferred or liquidated asset and expenses related to the asset transfer or liquidation.

5. Interests on deposits and loans (including interests on deferred payment, interests on late payment…), interests on deferred payments for goods sold, interests on installment payments for goods sold; interests on customers’ late payments according to the payment terms of contracts, and bond interests (excluding tax-free bonds as prescribed).

6. Income from foreign-currency business.

7. Income from exchange rate differences actually arising in the period from production and business activities (excluding exchange rate difference-related profits resulting from the re-valuation of monetary items of foreign-currency origin at the end of the fiscal year; exchange rate difference-related profits arising in the course of capital construction investment in the period before conducting production and business activities).

8. Year-end balances of the reserve for price decrease of goods left in stock, reserve for lost financial investments, reserve for bad debts and the deducted reserve amount for warranty of products, goods and construction and installation works which remains unused or is not yet used up after the expiry of the warranty duration.

9. Bad debts recovered after having been written off from accounting books.

10. Payable debts with unidentified creditors.

11. Received fines for breaches of economic contracts.

12. The previous years’ omitted incomes from goods production or service provision activities, which are now discovered.

13. Incomes received from overseas goods production and service provision activities.

Vietnamese enterprises that make offshore investment and earn incomes from offshore production and business activities shall declare and pay enterprise income tax under Vietnam’s Law on Enterprise Income Tax in force, including enterprises that are enjoying enterprise income tax breaks under the regulations of the host countries. The enterprise income tax rate used for calculating and declaring incomes earned in foreign countries is 28%. The preferential tax rate (if any) currently enjoyed by Vietnamese enterprises making offshore investment under the Law on Enterprise Income Tax in force does not apply.

In case Vietnamese enterprises making offshore investment violate regulations on tax declaration and payment, tax agencies may fix taxable incomes from production and business activities carried out in foreign countries by these enterprises.

In case an income from offshore investment is already subject to enterprise income tax (of a tax similar in nature to enterprise income tax) in a foreign country, when calculating the enterprise income tax payable in Vietnam, the Vietnamese enterprise making offshore investment is entitled to subtract the tax amount already paid in the foreign country or paid on its behalf by its partner in the host country (including dividend tax), provided that the subtracted amount must not exceed the income tax amounted calculated under Vietnam’s Law on Enterprise Income Tax. The income tax amount which the offshore investment-making enterprise is exempted from or reduced on the profit it is shared from the offshore investment project under the law of the host country is also subtracted upon determination of the enterprise income tax amount payable in Vietnam.

Example 1: Enterprise A receives an income of VND 800 million from an offshore investment project. Such income is the remainder after payment of an income tax under the law of the host country. The payable income tax calculated under the Law on Enterprise Income Tax of the host country is VND 200 million. The enterprise income tax amount after it is reduced by 50% under the host country’s Law on Enterprise Income Tax is VND 100 million.

The income received from the offshore investment project subject to income tax under Vietnam’s Law on Enterprise Income Tax is as follows:

[(VND 800 million + VND 200 million) x 28%] = VND 280 million.

The payable enterprise income tax amount (after subtracting the tax amount already paid in the host country) is:

VND 280 million - VND 200 million = VND 80 million.

Example 2: Enterprise A receives an income of VND 660 million from an offshore investment project. This income is the remainder after payment of an income tax amount in the host country. The income tax amount already paid under the host country’s regulations is VND 340 million.

The income from the offshore investment project of the enterprise which must be declared for payment of income tax under Vietnam’s Enterprise Income Tax Law is as follows:

[(VND 660 million + VND 340 million) x 28%] = VND 280 million.

Vietnamese enterprise A is only allowed to subtract the tax amount already paid in the host country equal to that calculated under Vietnam’s Law on Enterprise Income Tax which is VND 280 million. The difference between the tax amount already paid in the host country and the tax amount calculated under Vietnam’s Law on Enterprise Income Tax is VND 60 million (340 - 280 = 60) is not allowed to be subtracted from the payable tax amount upon declaration and payment of enterprise income tax in Vietnam.

The dossier to be submitted upon declaration and payment of income tax by a Vietnamese enterprise making offshore investment on the income from its offshore investment project comprises:

- The enterprise’s decision on the sharing of profits of the offshore investment project.

- The enterprise’s financial statement audited by an independent audit organization.

- The enterprise’s income tax declaration for the offshore investment project (copy certified by a competent representative of the offshore investment project);

- The written record of tax finalization for the enterprise (if any);

- The host country’s tax agency’s certification of the payable tax amount and the tax amount paid in the foreign country or the tax amount already paid by the enterprise’s partner or the exempted or reduced tax amount.

In case its offshore investment project has not generated any taxable income (or is suffering losses), when making declaration for enterprise income tax finalization every year, the Vietnamese enterprise making offshore investment is only required to submit a financial statement certified by an independent audit organization or a competent agency of the host country and the income tax declaration of the offshore investment project (copy certified by a competent representative of the offshore investment project). Losses incurred from the offshore investment project must be handled or carried forwarded according to the host country’s regulations and must not be subtracted from the incomes earned by the domestic enterprise upon calculation of enterprise income tax.

Incomes earned from an offshore investment project shall be declared in the enterprise income tax finalization of the year following the financial year in which the income is earned or of the fiscal year coinciding the year in which the income is earned in the foreign country if the enterprise has sufficient grounds and documents for determining the income amount and the paid income tax of the offshore investment project.

Example 3: Vietnamese enterprise A has an income from overseas in the fiscal year 2001. It must declare this income in the income tax finalization declaration of the fiscal year 2002 under Vietnam’s Law on Enterprise Income Tax.

For incomes from production and business activities of an investment project executed in a country which has signed a double taxation avoidance agreement with Vietnam, Vietnamese enterprises making investment in this country shall declare and pay tax in accordance with the agreement.

14. Incomes related to sale of goods and provision of services which are not included in turnover, such as: rewards for quick release of ships, tips for food and drink catering or hotel services, after subtracting expenses for generation of such incomes.

15. Incomes from activities of contribution of shares, contribution of capital to joint ventures or economic cooperation at home. In case the received incomes are incomes divided from after-tax income from activities of contribution of shares, contribution of capital to joint ventures or economic cooperation, business establishments receiving these incomes do not have to pay enterprise income tax.

16. Income from sale of discarded materials and faulty products after subtracting their collection and sale expenses.

17. Gifts and donations in kind or in cash; income received in cash or kind from marketing supports, expense supports, payment discounts, sale promotion prizes and other supports.

18. Other incomes.

Business establishments which have turnovers, expenses and taxable incomes in foreign currencies shall convert them into Vietnam dong at the average transaction exchange rates on the inter-bank foreign currency market announced by the State Bank of Vietnam at the time such turnovers and taxable incomes are generated and expenses arise, unless otherwise provided for by law. Foreign currencies having no exchange rate with Vietnam dong may be converted through a foreign currency having an exchange rate with Vietnam dong.

V. ENTERPRISE INCOME TAX RATES

1. The enterprise income tax rate is 28%.

For lottery business activities, enterprise income tax shall be paid at the rate of 28%, and the income remainder must be remitted into the state budget after subtraction of amounts allowed to be deducted for setting up funds prescribed by the Finance Ministry.

2. The tax rate applicable to business establishments engaged in prospection, exploration and exploitation of oil, gas and other precious and rare natural resources is between 28% and 50%, depending on each investment project or each business establishment.

Business establishments having investment projects for prospection, exploration and exploitation of oil, gas and other precious and rare natural resources shall send their investment projects’ dossiers to the Finance Ministry for the latter to consider and consult concerned ministries and branches, then submit them to the Prime Minister for decision on the specific tax rate for each project.

3. Investment projects entitled to investment incentives are subject to enterprise income tax rates guided in Section III, Part E of this Circular.

PART C

TAXATION OF INCOMES FROM LAND USE OR LAND LEASE RIGHT TRANSFERS

I. TAXPAYERS

Liable to pay income tax on incomes from land use right or land lease right transfers are production and trading and service provision organizations (referred to as business organizations for short) that earn incomes from land use or land lease right transfers.

Non-business organizations, business households and individuals that transfer land use or land lease rights do not fall into the category of those liable to pay income tax on land use or land lease right transfers as guided in this Circular. They shall pay land use right transfer tax under the Law on Land Use Right Transfer Tax and legal documents providing guidance on land use right transfer tax in force.

II. SCOPE OF TAXATION OF INCOME FROM LAND USE OR LAND LEASE RIGHT TRANSFERS

1. Cases of land use right transfer subject to tax on income from land use right transfer:

a/ Transfer of the right to use land without infrastructures or architectural works thereon.

b/ Transfer of the right to use land with infrastructures or architectural works thereon.

2. Cases of land lease right transfer subject to tax on income from land lease right transfer:

a/ Transfer of the right to lease land without infrastructures or architectural works thereon.

b/ Transfer of the right to lease land with infrastructures and architectural works thereon (including sale of assets attached to leased land in the form of annual land rent payment in which the asset purchaser is required to carry out procedures for leasing land from the State in accordance with the Land Law).

Any incomes earned by entities liable to pay tax on incomes from land use right or lease right transfers specified at Points 1 and 2 of this Part are all taxable, regardless of the form of and procedures for right transfer, such as sub-leasing land leased from the State; re-transfer of capital portions contributed in the form of land use or land lease right; transferring the right in the form whereby a state agency issues a decision on recovery and allocation of land to the transferee.

III. CASES OF LAND USE OR LAND LEASE RIGHT TRANSFER NOT SUBJECT TO TAX ON INCOME FROM LAND USE OR LAND LEASE RIGHT TRANSFERS

1. Competent state agencies allocate or lease land to business organizations in accordance with the Land Law.

2. Business organizations return land to the State or have their land recovered by the State according to the provisions of law, excluding the case in which a business organization transfers the land use or land lease right to another subject then carries out procedures for the land to be recovered and transferred by the State to the transferee.

3. Business organizations sell their workshops together with the transfer of the land use or land lease right before they are relocated according to state planning.

4. Business organizations contribute capital in the form of land use right for production or business cooperation with domestic and foreign organizations and individuals in accordance with law.

5. Business organizations transfer their land use or land lease right due to division, splitting, merger or bankruptcy or transformation of type of enterprise in accordance with the Law on Enterprises and the Law on Bankruptcy.

6. Owners of private enterprises transfer their land use right in case of inheritance or divorce according to law; transfer the land use right between husband and wife, parent and child, grandparent and paternal or maternal grandchild; or between blood siblings.

7. Business organizations donate their land use right to the State or other charity organizations for construction of cultural, medical, physical training or sport facilities for public interests; transfer the land use right for charity purposes to social policy beneficiaries.

8. Transfer of the land use or land lease right of business establishments making investment in the construction and commercial operation of infrastructures in industrial parks, export-processing zones, economic zones, industrial clusters, industrial spots and important projects decided by the Prime Minister. Transfer of the land use right in conjunction with the sale of apartments of high-rise apartment buildings.

IV. BASES FOR CALCULATION OF TAX ON INCOME FROM LAND USE OR LAND LEASE RIGHT TRANSFERS

The bases for calculation of tax on income from land use or land lease right transfer include taxable income and tax rate.

1. Taxable income

Taxable income from land use or land lease right transfer is determined to be equal to turnover from the land use or land lease right transfer minus transfer expenses.

1.1. Turnover from land use or land lease right transfer.

a/ Turnover from the land use or land lease right transfer shall be determined according to the actual transfer price (including surcharges and additional fees, if any) between the business organization which transfers the land use right or land lease right and the land use right transferee at the time of the transfer.

The time of determining taxable turnover is the time when the seller transfers the land use or land lease right to the purchaser, regardless of whether or not the purchaser has registered the property ownership or land use right or established the land lease right at a competent state agency.

The actual transfer price is determined to be:

- The invoiced price.

In case the invoiced price is lower than the amount actually received by the land use or land lease right transferor, taxable turnover shall be determined to be the actual price of the transfer.

In case the invoiced price or the actual price of the land use right transfer is lower than the price prescribed by the People’s Committee of the province or centrally run city, taxable turnover shall be determined according to the price prescribed by the People’s Committee of the province or centrally run city at the time of the transfer.

- The successful bid, in case of auction of the land use or land lease right.

b/ Turnover for calculating taxable income in some cases is determined as follows:

- In case of transfer of the land use or land lease right together with infrastructures on land, taxable turnover is the total amount which the transferee accepts to pay, including the amount paid for transfer of infrastructure and rent of infrastructure on land.

- In case of transfer of the land use or land rent right together with infrastructures or architectural works on land, if it is possible to separate the amount paid for the sale of architectural works on land, taxable turnover is the amount which the transferee accepts to pay, excluding the money earned from the sale of architectural works on land. If it is impossible to separate the amount paid for the sale of architectural works on land, taxable turnover is the total amount which the transferee of the land use or land lease right accepts to pay, including the money paid for the sale of architectural works on land.

The invoicing of turnover from the sale of works and infrastructures on land together with the land use or land lease right transfer as a basis for tax declaration and payment is as follows:

* If it is possible to separate turnover from the sale of works and infrastructures on land from turnover from the land use or land lease right transfer, turnovers from these operations must be specified on the invoice and value-added tax and income tax shall be declared and paid for each operation, specifically:

- Turnover from the sale of works and infrastructures on land is the VAT-exclusive price, which must be written on a separate line in the added-value invoice according to regulations;

- Turnover from the land use or land lease right transfer must be recorded separately in the following order:

+ Total turnover from the land use or land lease right transfer;

+ Land use levy, successful bid at the auction of the land use right or land rent already paid into the state budget;

+ VAT-liable turnover (minus the land use levy, successful bid at the auction of the land use right or land rent already paid into the state budget).

Turnover from the sale of works and infrastructures on land must be comparable with market prices. In case the unit in which the selling price is indicated is inconsistent with market prices, turnover shall be re-determined on the principle that turnover from the sale of works and infrastructures on land with respect to construction works must ensure that the value of works and infrastructures on land be not higher than the settled value of works plus (+) the interest amount in capital construction prescribed by the State.

* If it is impossible to separate turnover from the sale of works and infrastructures on land from turnover from the land use or land lease right transfer, turnover for calculating income from the land use or land lease right transfer is total turnover (including turnover from the sale of works and infrastructures on land and turnover from the land use or land lease right transfer).

- In case of sale of assets attached to leased land in the form of annual rent payment, taxable income is the total amount the transferee accepts to pay (including the value of assets on land and compensation support in cash (if any).

- In case of transfer of capital contributed in the form of land use or land lease right for business purposes, taxable turnover is the proceeds from the land use or land lease right transfer stated in the capital transfer contract.

- In case a credit institution has accepted the land use right value as security for a loan in replacement of the performance of the secured obligation, if the land use right used as a mortgage to secure a loan is transferred, turnover for calculating taxable income is the price of the land use right transfer agreed upon by the concerned parties.

- In case of transfer of the right to use a land area which has been distrained to secure judgment enforcement, turnover for calculating taxable income is the price of the land use right transfer agreed upon by the concerned parties or the price determined by the valuation council.

Determination of turnovers in the cases specified at Item b must abide by the principles stated at Item a of this Point.

1.2. Land use or land lease right transfer expenses

a/ Principles for determination of expenses:

- Expenses accounted as reasonable expenses for calculating taxable incomes from land use or land lease right transfers in the tax period must correspond to turnovers used for calculating taxable incomes.

In case turnover for calculating taxable income covers also works and infrastructures on land, land use or land lease right transfer expenses must include also the cost of such works or infrastructures.

In case of sale of assets attached to leased land, expenses also cover the book value of assets attached to land.

- For an investment project which is completed part by part and gradually transferred according to its completion progress, common expenses used for the whole project and expenses used for its completed part shall be allocated per square meter of the land area to which the use right has been transferred for determining taxable income with respect to that land area, covering expenses for building internal roads; growing trees; building water supply and drainage systems; power transformer stations; compensation for assets on land; compensation, support and resettlement expenses and expenses for organization of compensation, support and resettlement work, which have not yet subtracted from land use levies or land rents paid into the budget; land use levies payable into the state budget and other expenses for investment in the land area involved in the land use or land lease right transfer. The allocation of these expenses is effected according to the following formula:

     Expense                           Total expenses for investment                                   
allocated to the                                 in infrastructure­                                        Land area
  land area with       =              ——————————————                x     with the use right
the transferred                 Total land area allocated for executing                      transferred
  land use right               the project (excluding land areas used for                          
                                     public purposes according to the land law­       

In case the project has a land area, to which with the use right is not transferred, used for other business activities, the above-said common expenses must be also allocated to this land area for monitoring, accounting, declaration and payment of enterprise income tax for other business activities.

In case a business establishment carries out an infrastructure building construction lasting for between over 1 year and 5 years and may finalize the value of the infrastructure only when the whole construction activity is completed, when summing up expenses for the transfer of the right to use the land area, the business establishment may temporarily allocate expenses actually invested in the infrastructure, using the percentage of the transferred land area according to the above formula. After completing investment and construction work, the business establishment may readjust infrastructure investment expenses temporarily allocated to the transferred land area in a way suitable to the total value of the infrastructure. Upon readjustment, if there arises some overpaid tax amount compared with the payable tax on income from the land use right transfer, the business establishment may have it subtracted from the tax amount payable in the subsequent tax period or have it refunded according to current regulations; if the paid tax amount is still insufficient, the business establishment shall pay the deficit according to regulations.

b/ Land use or land lease right transfer expenses which are allowed to be accounted as reasonable expenses for calculating taxable income include:

- Cost of land with the transferred use right, which is determined as follows:

+ For land allocated by the State with collection of land use levy or land rent, it is the amount of land use levy or land rent to be paid into the state budget.

+ For land with the use or lease right transferred from another organization or individual, it is the price the land use right transferee accepts to pay.

+ For land which the State has exchanged for construction works, it is the value of exchanged works.

+ For land which is acquired from an auction, it is the amount payable at the successfully bid price.

+ For land originating from assets contributed to business capital, it is the value recorded in the capital contribution record agreed upon by the capital contributors.

+ For land of a business establishment with the use right received without lawful papers; inherited under the civil law; given as gift or donated with its cost unidentifiable, its cost shall be determined according to the price of the relevant land category prescribed by the People’s Committee of the province or centrally run city at the time of receipt of the land use right. In the above case, if the time of receipt of the land use right is before the date the People’s Committee of provinces or centrally run city promulgates the prices of land categories applicable in its locality according to the Government’s Decree No. 87/CP of August 17, 1994, on the price brackets of land of different categories, the cost of the land with the transferred use right shall be determined according to the prices of land categories promulgated by the People’s Committee of the province or centrally run city under Decree No. 87/CP of August 17, 1994.

+ For land mortgaged to secure loans and land distrained for judgment enforcement, its cost shall be determined on a case-by-case basis as guided at the points above.

- Compensations, support and resettlement expenses and expenses for organization of compensation, support and resettlement work as prescribed by law, which have not yet been subtracted from the payable land use levies or land rents.

- Expenses for compensation for cash crop and vegetable damage.

The above-mentioned compensation, support and resettlement expenses and expenses for organization of compensation, support and resettlement work, if not accompanied with invoices, shall be put on a list with the names and addresses of recipients; compensation or support amounts; signatures of recipients and certifications of the administrations of the wards and communes where exist land areas for which compensations and supports are provided in accordance with the provisions of law on compensation, support and resettlement upon land recovery by the State.

- Charges and fees related to the grant of land use rights as prescribed by law.

- Expenses for soil rehabilitation and ground leveling.

- Expenses for investment in the construction of infrastructures such as roads, power lines, water supply and drainage systems, post and telecommunications facilities, etc.

- Other expenses directly related to the land use or land lease right transfer.

A business establishment that conducts different business lines shall separately account expenses for each business line. If it is impossible to do so, the business establishment shall allocate common expenses according to the ratio of turnover from land use or land lease right transfer to its total turnover.

Expenses which have been paid by the State or from other funding sources must not be included into land use or land lease right transfer expenses.

2. Rates of tax on incomes from land use or land lease right transfers

a/ The tax rate applicable to incomes from land use or land lease right transfers is 28%.

b/ After paying income tax at the rate of 28%, the remaining income is subject to income surtax according to the following partially progressive tax bracket:

Partially progressive tax bracket

Example: Turnover used for tax calculation for land with the transferred use right is VND 170 million; total expense for the land use right transfer is VND 50 million. Taxable income is (=) VND 120 million (VND 170 million - VND 50 million). Tax on income from the land use right transfer shall be determined as follows:

- Enterprise income tax at the ordinary tax rate: VND 120 million x 28% = VND 33.6 million.

- The remaining income, VND 86.4 million (VND 120 million - VND 33.6 million) is subject to surtax according to the partially progressive tax bracket.

- The ratio of the remaining income to total expense is 172.8% (VND 86.4 million (:) VND 50 million x 100 = 172.8%). So, the additional enterprise income tax on the land use right transfer is determined as follows:

Unit of calculation: VND million

The total payable tax on income from the land use right transfer is VND 33.6 million + VND 17.475 million = VND 51.075 million.

3. Preferential tax rates and tax exemption and reduction periods guided in Part E of this Circular are not applied to incomes from land use or land lease right transfers. In case land use or land lease right transfers suffer losses, these losses are not allowed to be offset with incomes from production and business activities but may be carried forward into taxable incomes from land use right or land lease right transfers (if any) in subsequent years according to regulations.

4. When business organizations (including lawfully authorized organizations) that are allowed to transfer land use rights or land lease right transfer land use rights or land lease right or sell assets attached to land in the form of payment of annual rents while the asset purchasers are required to carry out procedures for leasing land from the State in accordance with the Land Law, they shall declare and pay tax on income from land use or land lease right transfers under the guidance in Circular No. 60/2007/TT-BTC of June 14, 2007, guiding the implementation of a number of articles of the Tax Administration Law and guiding the implementation of the Government’s Decree No. 85/2007/ND-CP of May 25, 2007, detailing the implementation of a number of articles of the Tax Administration Law.

a/ In case a credit institution accepts the land use right value used as security for a loan in replacement of the performance of the secured obligation, it shall, upon land use or land lease right transfer, declare and pay tax on income from the land use or land lease right transfer into the state budget.

b/ In case of auction of the land use or land lease right which is used as security for a loan, the proceeds from the auction may be paid according to the Government’s regulations on loan security of credit institutions and for which tax shall be declared and paid according to regulations. After these payments are made, the remaining amount shall be returned to the business organization which has mortgaged the land use right as loan security. The credit institution or an organization authorized by the credit institution to auction the property shall declare and withhold the tax on income from the land use right transfer and remit it into the state budget according to its name, address, tax identification number and invoices. It must be indicated on relevant documents that the tax is declared and paid on behalf for the sale of property used as loan security.

c/ In case a business organization in favor of which a judgment is enforced receives the right to use or lease the land which has been distrained to secure judgment enforcement as part of the sum of money for which the judgment is enforced, upon transfer of the land use or land lease right, it shall declare and pay the tax on income from the land use or land lease right transfer into the state budget.

d/ In case the judgment enforcement agency auctions the land use right or land lease right used as property to secure judgment enforcement, the proceeds from the auction will be handled according to Article 27 of the Government’s Decree No. 164/2004/ND-CP of September 14, 2004, on distraint and auction of land use rights used as property to secure judgment enforcement. The organization authorized to conduct the property auction shall declare and withhold the tax on income from the land use right transfer and remit it into the state budget according to its name, address, tax identification number and invoices. It must be indicated on relevant documents that the tax is declared and paid on behalf for the sale of property used to secure judgment enforcement.

Part D

DETERMINATION OF TAXABLE INCOMES FROM AND ENTERPRISE INCOME TAX WITH REGARD TO TRANSFER OF CAPITAL INVESTED IN BUSINESS ESTABLISHMENTS

I. SCOPE OF APPLICATION

1. Transfer of capital invested in a production or business establishment is that an organization or individual transfers part or the whole of its capital invested in a business establishment to another organization or individual or several other ones (including also sale of whole enterprises). Organizations and individuals that receive transferred capital have obligations and interests of contributors of investment capital to business establishments.

2. Organizations and individuals having incomes from capital transfers shall pay enterprise income tax under the guidance in Part D of this Circular. In case an organization transfers capital associated with the land use or land lease right, it shall declare and pay tax on income from the land use or land lease right transfer under the guidance in Part C of this Circular.

3. For organizations and individuals having incomes from share transfers, they shall declare and pay tax on incomes from share transfers under a separate guidance of the Ministry of Finance.

II. TAX BASES

1. Taxable income:

Taxable income from the transfer of capital invested in a business establishment is determined as follows:

Taxable income = Transfer price - Cost of transferred capital portion - Transfer expenses

In which:

+ Transfer price is the total actual value according to the market price received by the transferor under the transfer contract, including undivided profits and other benefits or losses arising in the course of conducting business (if any).

If the transfer contract does not specify the payment price or the tax agency has grounds to believe that the payment price has not been determined according to the market price, the tax agency may examine and fix the payment value of the contract on the basis of reference to the market price or the price saleable to a third party and to similar transfer contracts.

+ Cost of transferred capital portion is determined on the basis of accounting books and documents on the business establishment’s capital amount invested by the transferring organization or individual at the time of capital transfer and certified by the parties to the enterprise or the business cooperation contract, or audit results of an independent audit company, for enterprises with 100% foreign capital.

+ Transfer expenses are actual expenses directly related to the transfer, evidenced by valid documents and invoices. For transfer expenses arising overseas, these original documents must be certified by a public notary or independent audit firm in the country where these expenses arise, and these documents must be translated into Vietnamese (with the certification of a competent representative).

Transfer expenses include expenses for carrying out necessary legal procedures for the transfer; charges and fees to be paid when carrying out transfer procedures; expenses for transactions, negotiations and conclusion of the transfer contract, and other expenses evidenced by documents.

Example: Company A has contributed VND 400 billion, including VND 320 billion in value of workshops and VND 80 billion in cash to the establishment of a joint venture factory to produce tissues. Later, it transfers this contributed capital portion to Company B at the price of VND 550 billion (inclusive of the expected profit of VND 20 billion to be shared in 2006). At the time of transfer, the book value of Company A’s contributed capital is VND 400 billion and the transfer costs VND 70 billion. The income for calculating the tax on income from the capital transfer in this case is VND 80 billion
(550 - 400 - 70).

2. Enterprise income tax rate:

The enterprise income tax rate for income from the transfer of capital invested in a business establishment is 28%.

3. Determination of the payable enterprise income tax amount:

Payable enterprise income tax amount = Taxable income x Enterprise income tax rate

Preferential tax rates and tax exemption and reduction periods guided in Part E of this Circular are not applied to incomes from transfers of capital invested in business establishments. In case a capital transfer suffers losses, these losses are not allowed to be cleared against incomes from production and business activities.

III. TAX DECLARATION AND PAYMENT

1. For foreign organizations and individuals that transfer their capital invested in business establishments:

Organizations and individuals that receive the transferred capital shall determine, declare, withhold and pay on behalf of foreign organizations or individuals payable enterprise income tax amounts.

The deadline for submitting a tax declaration dossier is the 10th day from the date a competent agency approves the capital transfer or, if the capital transfer is not subject to approval, from the date the parties reach agreement on capital transfer in a capital transfer contract.

A tax declaration dossier for income from capital transfer comprises:

- Enterprise income tax declaration for capital transfer (made according to a set form);

- Copy of the transfer contract. For a foreign-language transfer contract, its Vietnamese translation is required, with the following major details: transferor; transferee; time of transfer; transfer contents; rights and obligations of each party; contractual value; payment deadline, method and currency.

- Copy of the competent agency’s decision approving the capital transfer (if any);

- Copy of the certificate of contributed capital, attached with certifications of capital contributors;

- Original documents of expenses.

When finding that a dossier is insufficient, the tax agency shall notify the capital transferee on the date of receipt of the dossier, if directly receiving the dossier, or within three working days from the date of receipt of the dossier sent by post or electronically.

Tax declaration dossiers shall be submitted to the tax agency with which the business establishments of foreign organizations or individuals have made registration for tax payment.

The tax payment deadline coincides with the deadline for submission of tax declaration dossiers.

2. For Vietnamese organizations and individuals that transfer their capital invested in business establishments

Vietnamese organizations or individuals that earn incomes from capital transfer shall determine, declare and pay enterprise income tax on incomes from capital transfers at the same time with declaring and paying enterprise income tax on incomes from production and business activities arising in the quarter following the quarter when incomes from capital transfers arise. In case no tax declaration and payment is made in the subsequent quarter, the deadline for tax declaration and payment is the 10th day from the date a competent agency approves the capital transfer or, if the capital transfer is not subject to approval, from the date the parties reach agreement on capital transfer in a capital transfer contract.

A tax declaration dossier for income from capital transfer comprises:

- Enterprise income tax declaration for capital transfer (made according to form No. 04/TNDN issued together with this Circular, not printed herein);

- Copy of the transfer contract. For a foreign-language transfer contract, its Vietnamese translation is required, with the following major details: transferor; transferee; time of transfer; transfer contents; rights and obligations of each party; contractual value; payment deadline, method and currency.

- Copy of the competent agency’s decision approving the capital transfer (if any);

- Copy of the certificate of contributed capital, attached with certifications of capital-contributing parties;

- Original documents of expenses.

When finding that a dossier is insufficient, the tax agency shall notify the capital transferee on the date of receipt of the dossier, if directly receiving the dossier, or within three working days from the date of receipt of the dossier sent by post or electronically.

Vietnamese organizations and individuals shall separately account incomes from capital transfers for tax declaration and payment under the guidance in Part D of this Circular.

Part E

ENTERPRISE INCOME TAX INCENTIVES

I. CONDITIONS FOR ENJOYING ENTERPRISE INCOME TAX INCENTIVES

1. Investing in business lines and domains on the list of domains eligible for investment incentives promulgated by the Government in accordance with the Law on Investment.

2. Investing in business lines and domains on the list of domains eligible for special investment incentives promulgated by the Government in accordance with the Law on Investment.

3. Investing in geographical areas on the list of geographical areas with difficult socio-economic conditions promulgated by the Government in accordance with the Law on Investment.

4. Investing in geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions promulgated by the Government in accordance with the Law on Investment.

II. PRINCIPLES FOR GRANTING ENTERPRISE INCOME TAX INCENTIVES

1. Enterprise income tax incentives specified in Section III and Section IV, Part E, may only be granted to business establishments meeting one of the conditions for enjoying tax incentives specified in Section I of Part E or newly established production establishments; business establishments which are relocated from urban centers according to plannings approved by competent agencies; operating business establishments executing investment projects on installation of new production chains, and several other specific cases.

2. Business establishments shall observe the prescribed accounting, invoice and document regimes, and register and pay tax according to their declarations.

3. In the same tax period, if having an income eligible for a preferential enterprise income tax rate and tax exemption or reduction in different cases, business establishments may choose by themselves the most beneficial tax incentive according to regulations.

4. During the period of enjoying tax exemption or reduction, if a business establishment conducts different production and business activities, it shall monitor and separately account incomes from production and business activities eligible for tax reduction or exemption. If it cannot do so, incomes from production and business activities eligible for tax exemption or reduction shall be determined to be equal to total taxable income multiplied (x) by the ratio (%) of turnover from production and business activities eligible for tax reduction or exemption to total turnover of the business establishment in the tax period.

In the tax finalization year, if a business establishment conducts different production and business activities, some at a profit and some at a loss (other than activities of land use right and land lease right transfer, capital transfer, and offshore investment), its taxable income shall be determined as follows:

- If production and business activities eligible for enterprise income tax exemption or reduction are conducted at a profit, the business establishment may choose:

+ To separately account profits from these activities for enjoying tax exemption or reduction according to regulations and carry forward losses from other activities according to regulations;

+ To clear losses from other activities against profits from activities eligible for tax incentives; any remaining profits will enjoy incentives; and any remaining losses are allowed to be carried forward;

- If business activities eligible for tax exemption or reduction are conducted at a loss, such losses can be cleared against profits from production and business activities conducted at a profit.

 After clearing, any remaining incomes are subject to enterprise income tax at the rate applied to income-generating business activities.

5. During the period of enjoying enterprise income tax incentives, if a business establishment is reorganized (divided, split, merged or consolidated) or has its ownership transformed according to law, the new business establishment, which is resulted from the above change, will continue enjoy enterprise income tax incentives as before for the remaining period of these incentives, provided that it still satisfies the conditions for enjoying investment incentives.

6. The tax exemption or reduction year is determined to coincide with the tax period. The period of tax exemption or reduction is counted continuously from the first tax period when the business establishment earns taxable incomes (not yet cleared against losses carried forward from previous tax periods). If the business establishment has conducted goods production and service provision activities for less than 12 months in the first tax period of tax exemption or reduction, it may register with the tax agency the time of enjoying tax exemption or reduction right in the first tax period or from the subsequent tax period. If the business establishment registers the time of tax exemption or reduction from the subsequent tax period, it shall determine the payable tax amount of the first tax period and pay it into the state budget according to regulations.

III. PREFERENTIAL ENTERPRISE INCOME TAX RATES AND PERIODS OF APPLICATION OF PREFERENTIAL ENTERPRISE INCOME TAX RATES

1. The tax rate of 20% is applied for 10 years counting from the time of commencement of business activities to:

a/ Cooperatives established in geographical areas not on the list of geographical areas with difficult socio-economic conditions and the list of geographical areas with exceptionally difficult socio-economic conditions;

b/ Business establishments newly set up under investment projects in business lines or domains on the list of domains eligible for investment incentives;

c/ Business establishments newly set up under investment projects executed in geographical areas on the list of geographical areas with difficult socio-economic conditions.

2. The tax rate of 15% is applied for 12 years counting from the time of commencement of business activities to:

a/ Cooperatives established in geographical areas on the list of geographical areas with difficult socio-economic conditions;

b/ Business establishments newly set up under investment projects in business lines or domains on the list of domains eligible for investment incentives and executed in geographical areas on the list of geographical areas with difficult socio-economic conditions.

3. The tax rate of 10% is applied for 15 years counting from the time of commencement of business activities to:

a/ Cooperatives established in geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions;

b/ Business establishments newly set up under investment projects in business lines or domains on the list of domains eligible for special investment incentives.

c/ Business establishments newly set up under investment projects executed in geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions.

A business establishment which is newly established under an investment project in a business line or a domain on the list of domains eligible for special investment incentives and has great economic and social impact should be granted higher incentives. It may enjoy the preferential tax rate of 10% throughout the project execution period under a Prime Minister decision issued at the proposal of the Ministry of Finance.

4. The year of commencement of business activities used to determine the period of application of a preferential tax rate is the first turnover-generating year of a business establishment.

5. After the period of enjoying the preferential tax rate specified at Point 1, 2 or 3 of this Section, cooperatives and business establishments newly set up under investment projects shall pay enterprise income tax at the tax rate of 28%.

IV. LEVELS AND DURATIONS OF ENTERPRISE INCOME TAX EXEMPTION AND REDUCTION

1. Business establishments newly set up under investment projects, newly set up production establishments and relocated business establishments may enjoy tax exemption and reduction as follows:

a/ Tax exemption for 02 years after taxable income is generated and a 50% reduction of the payable tax amount for the subsequent 02 years for:

- Newly established business establishments.

- Business establishments relocated from urban areas according to plannings already approved by competent agencies.

b/ Tax exemption for 02 years after taxable income is generated and a 50% reduction of the payable tax amount for the subsequent 03 years for: business establishments newly set up under investment projects in business lines and domains on the list of domains eligible for investment incentives.

c/ Tax exemption for 02 years after taxable income is generated and a 50% reduction of the payable tax amount for the subsequent 06 years for:

- Business establishments newly set up under investment projects in geographical areas on the list of geographical areas with difficult socio-economic conditions.

- Business establishments relocated to geographical areas on the list of geographical areas with difficult socio-economic conditions (except for the case of relocation from geographical areas with difficult socio-economic conditions or exceptionally difficult socio-economic conditions).

d/ Tax exemption for 03 years after taxable income is generated and a 50% reduction of the payable tax amount for the subsequent 07 years for business establishments newly set up under investment projects in business lines or domains on the list of domains eligible for investment incentives and executed in geographical areas on the list of geographical areas with difficult socio-economic conditions.

e/ Tax exemption for 04 years after taxable income is generated and a 50% reduction of the payable tax amount for the subsequent 09 years for:

- Business establishments newly set up under investment projects in business lines and domains on the list of domains eligible for special investment incentives.

- Business establishments newly set up under investment projects in geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions.

- Business establishments relocated to geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions.

For a business establishment newly established under an investment project executed in a geographical area where the business establishment is not headquartered, income from the investment project is eligible for the preferential tax rate and the duration of tax exemption or reduction applicable in the geographical area where the investment project is executed.

Business establishments established in the following cases are not entitled to enterprise income tax incentives like those newly established under investment projects:

- Business establishments established in the case of division, splitting, merger or consolidation according to law.

- Business establishments established as a result of transformation of type of enterprise or form or ownership (except for the case of assignment or sale of state enterprises stipulated in the Government’s Decree No. 80/2005/ND-CP of June 22, 2005, on assignment, sale, business contracting and lease of state companies).

- Private enterprises newly established from individual business households in the same business line.

2. Operating business establishments that invest in the installation of new production chains, expansion of production scale, renewal of technologies, improvement of ecological environment or raising of production capacity are entitled to enterprise income tax exemption or reduction for additional incomes brought about by such investment as follows:

a/ Tax exemption for 01 year and a 50% reduction of the payable tax amount for subsequent 02 years for investment projects on installation of new production chains not in domains or geographical areas eligible for investment incentives on the list of domains eligible for investment incentives, the list of domains eligible for special investment incentives, the list of geographical areas with difficult socio-economic conditions and the list of geographical areas with exceptionally difficult socio-economic conditions.

b/ Tax exemption for 01 year and a 50% reduction of the payable tax amount for subsequent 04 years for investment projects on the list of domains eligible for investment incentives or executed in geographical areas on the list of geographical areas with difficult socio-economic conditions.

c/ Tax exemption for 02 years and a 50% reduction of the payable tax amount for subsequent 03 years for investment projects on domains on the list of domains eligible for special investment incentives or executed in geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions.

d/ Tax exemption for 03 years and a 50% reduction of the payable tax amount for subsequent 05 years for investment projects in domains on the list of domains eligible for investment incentives and executed in geographical areas on the list of geographical areas with difficult socio-economic conditions.

e/ Tax exemption for 03 years and a 50% reduction of the payable tax amount for subsequent 07 years for investment projects in domains on the list of domains eligible for special investment incentives and executed in geographical areas on the list of geographical areas with difficult socio-economic conditions.

f/ Tax exemption for 04 years and a 50% reduction of the payable tax amount for subsequent 07 years for investment projects in domains on the list of domains eligible for investment incentives and executed in geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions, and investment projects in domains on the list of domains eligible for special investment incentives and executed in geographical areas on the list of geographical areas with exceptionally difficult socio-economic conditions.

The period of tax exemption or reduction for investment projects on the building of new production chains, expansion of production scale, renewal of technologies, improvement of the ecological environment or raising of production capacity is counted from the year the investment project is completed and put into production and business operation with incomes generated. For investment projects with a long execution duration and divided into many investment items, business establishments may choose the tax exemption or reduction period for each investment item completed and put into production or business operation. Basing themselves on the projected duration for investment project execution, business establishments shall register with the tax agencies the tax exemption or reduction period of investment projects.

Business establishments shall separately account additional incomes brought about by the above investment to determine the exempted or reduced enterprise income tax amount. If business establishments cannot separately account these additional incomes, additional incomes eligible for tax exemption or reduction shall be determined as follows:

       Additional                                                           Value of fixed assets
         income                      Taxable                           newly invested for use
         eligible                      income                        in production and business
         for tax          =            in the         x                ———————————
      exemption                      year                         Total historical cost of fixed
     or reduction                                                          assets actually used
                                                                            in production and business

Total historical cost of fixed assets actually used in production and business includes the value of newly invested fixed assets which have been completed, taken over and put into use and the historical cost of existing fixed assets currently used in production and business according to the period-end data of the annual balance sheet.

For investment projects with an execution duration of over one year and divided into many investment items, if business establishments have registered with the tax agencies the tax exemption or reduction duration for each investment item completed and put into production and business, the value of newly invested fixed assets shall be determined according to the accumulated value of investment items completed and put into use as of the time of tax finalization of the tax exemption or reduction year.

Example: At the end of 2006, company A’s total historical cost of fixed assets actually used in production and business activities is VND 30 billion. The company has a long-term investment project, of which an item valued at VND 10 billion will be put into use in 2007 and another item valued at VND 15 billion in 2008. The company cannot separately account the additional income from each of these investment items. The company’s business result is VND 12 billion as its taxable income in 2007 and VND 20 billion in 2008

The additional income brought about by the investment and eligible for tax exemption or reduction shall be determined as follows:

+ In 2007:

       Additional        
         income                                                      VND 10 billion              
      eligible for       =       VND 12 billion     x       ———————         =    VND 3 billion
    tax exemption                                                VND 30 billion +
     or reduction                                                   VND 10 billion
             

+ In 2008:

    Additional                                                       VND 10 billion +            
income eligible                                                     VND 15 billion                
       for tax          =       VND 20 billion     x         ————————          =    VND 9 billion
    exemption                                                       VND 40 billion +
   or reduction                                                       VND 15 billion
           

For an investment project of which each item has been completed but not yet put into production or business to raise business capacity and efficiency in the year, the value of the investment item is not allowed to be included in the value of newly invested fixed assets for calculating the additional income eligible for tax exemption or reduction.

3. Business establishments are exempt from enterprise income tax in their incomes earned in the following cases:

a/ Income from the performance of contracts for scientific research and technological development, scientific and technological information services.

b/ Income from turnover from the sale of products turned out in the period of trial production in strict compliance with production procedures, which must not exceed 6 months counting from the date of starting the trial production.

c/ Income from turnover from the sale of products turned out by new technologies applied for the first time in Vietnam, which must not exceed 01 year counting from the date of application of such technologies to the manufacture of products.

d/ Income from the performance of contracts on technical services in direct service of agriculture.

e/ Income from job-training activities exclusively for ethnic minority people.

f/ Income from goods production and service provision activities of business establishments exclusively employing disabled people.

Business establishments are considered exclusively employing disabled people (including war invalids and diseased soldiers) when fully meeting the following conditions:

- Being so certified by the People’s Committee of the province or centrally run city.

- Fully observing the accounting, invoice and document regimes.

- Having a business license granted by a competent state agency.

- Employing 10 laborers or more, of whom 51% are people with disabilities certified by competent health agencies. The remaining laborers are mainly relatives of these disabled people, equity capital contributors and persons with managerial, professional, scientific-technical skills.

- Having operation regulations or charter suitable to disabled laborers.

g/ Income from job-training activities exclusively for the disabled, especially disadvantaged children and former social-evil doers.

Job-training activities eligible for tax exemption under the guidance at this Point must fully meet the following conditions:

- Job-training establishments are set up and operate under the provisions of the Government’s Decree No. 139/2006/ND-CP of November 20, 2006, detailing and guiding the implementation of a number of articles of the Education Law and the Labor Code regarding job training, and guiding documents.

- Operating in business lines stated in their practicing licenses or business lines already registered with the competent labor, war invalids and social affairs agency.

- Fully observing the accounting, invoice and document regimes and having registered for tax payment.

4. Cooperatives; business individuals and individual business households with low incomes are eligible for tax exemption or reduction, specifically as follows:

a/ Cooperatives in which each laborer has an average monthly income in the year below the minimum wage level prescribed by the State for state employees are exempt from enterprise income tax.

b/ Business individuals and individual business households with an average monthly income per laborer in the year below the minimum wage level prescribed by the State for state employees are exempt from tax.

c/ If business individuals and individual business households that have not yet fully observed the accounting, invoice and document regimes, calculated and paid tax based on a fixed turnover cease business operations for 15 consecutive days or more, they may be considered for a 50% reduction of the payable tax amount; if they cease their operations for a whole month, they may be considered for tax exemption for that month.

5. Enterprise income tax exemption or reduction for the following cases:

a/ Tax exemption for incomes received by investors from their capital contributions in the form of invention patents, technical know-hows, technical processes or technical services.

b/ Business establishments engaged in production, construction or transport and employing a number of between 10 and 100 female laborers accounting for over 50% of the total number of regular laborers; or employing regularly over 100 female laborers accounting for over 30% of the total number of their regular laborers are entitled to reduction of payable enterprise income tax amounts corresponding to the amounts actually paid for female laborers as guided at Point 2.13, Section III, Part B of this Circular if these amounts can separately be accounted.

Non-business units and offices of state corporations which fully meet the conditions on the number of female laborers but are not directly engaged in business activities are not entitled to tax reduction according to this Item.

6. For business establishments that are enjoying enterprise income tax incentives, if agencies competent to examine and inspect tax finalization detect increased enterprise income tax amounts in the tax exemption or reduction period, these business establishments are not entitled to tax exemption or reduction for these increased tax amounts detected. They shall declare and pay these increased tax amounts in the state budget at current or preferential (if any) tax rates they are enjoying. If agencies competent to examine and inspect tax finalization detect any exempted or reduced enterprise income tax amounts which are smaller than those declared by business establishments, business establishments are only entitled to exempted or reduced enterprise tax amounts detected through examination or inspection. They shall also be fined for violations of tax law according to regulations.

V. PROCEDURES FOR APPLICATION OF ENTERPRISE INCOME TAX INCENTIVES

1. Business establishments shall determine by themselves their satisfaction of conditions for tax incentives, preferential tax rates, the period of tax exemption or reduction, and losses allowed to be subtracted (-) from taxable incomes.

When examining and inspecting business establishments, tax agencies shall examine conditions for enjoying tax incentives, tax amounts exempted or reduced for business establishments and losses to be subtracted by business establishments from their taxable incomes strictly according to the actual conditions which business establishments meet. If a business establishment fails to ensure conditions for enjoying the preferential tax rate and the tax exemption or reduction period, it shall declare and pay an adjusted tax amount and a fine for violation of the tax law according to current regulations.

2. For cases of tax exemption and reduction guided at Point 4, Section IV of this Part, cooperatives, business individuals and private business households shall send an application for tax exemption or reduction, with the certification of the ward of commune administration, to the tax agency. The managing tax agency, after obtaining the consent of the tax advisory board of the same level, issue a notice of tax exemption or reduction or the reason for refusal of the request for tax exemption or reduction.

VI. CARRYING FORWARD OF LOSSES

1. Business establishments which, after making tax finalization, suffer from losses may carry forward losses of the tax finalization year for clearing against taxable incomes of subsequent years. The duration of carrying forward losses must not exceed five years counting from the year following the year when losses arise.

Business establishments shall determine by themselves losses to be subtracted from taxable incomes on the above principle. If, in the duration of carrying forward losses, new losses arise, these losses may be carried forward to not more than five subsequent years, counting from the year following the year when losses arise.

When the agency competent to examine and inspect the finalization of enterprise income tax finds out that the loss amount which a business establishment is allowed to carry forward is different from that determined by the business establishment itself, the loss amount allowed to be carried forward will be that determined by the competent agency and it may be also carried forward for not more than 5 years, counting from the year following the year when losses arise.

Business establishments which have registered their plans for carrying forward losses before the enterprise income tax period of 2007 may continue carrying forward losses according to the registered plans or to subsequent tax periods but the duration of carrying forward losses must not exceed 5 years, counting from the year following the year when losses arise.

Upon the expiration of the 5-year duration counting from the year following the year when losses arise, if the losses have not yet been fully cleared, the remaining loss is not allowed to be further subtracted from subsequent years’ incomes.

2. Business establishments that have been transformed in type of enterprise or form of ownership (including assignment and sale of state enterprise), merged, consolidated, split, dissolved or bankrupted shall make tax finalization with tax agencies up to the time of issuance by competent agencies of decisions on transformation of type of enterprise, form of ownership, merger, consolidation, splitting, dissolution or bankruptcy.

3. If enterprises suffer losses before their merger, these losses must be monitored according to each year of arising and may be subtracted from taxable incomes of enterprises after their merger in order to ensure the principle that losses must not be carried forward for over 5 years, counting from the year following the year when losses arise.

4. For a joint-venture business establishment set up by different business establishments, if it suffers losses upon issuance of the decision on its dissolution, these losses will be allocated to every business establishment to the joint venture. These business establishments may incorporate the allocated loss amount into their business results for tax finalization while ensuring the principle that losses must not be carried forward for over 5 years, counting from the year following the year when losses arise.

5. Business establishments that take over assets of business establishments that have been transformed in type of enterprise or form of ownership (including assignment, sale, business contracting or lease of state enterprise), divided, split, merged or consolidated, shall fully pay outstanding tax amounts and fines (if any) of the latter.

Part F

ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect 15 days after its publication in “CONG BAO” and applies to tax periods from 2007 on.

2. Business establishments newly set up from investment projects that are granted business registration certificates or investment certificates from the effective date (October 25, 2006) of the Government’s Decree No. 108/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Investment Law, may enjoy enterprise income tax incentives under the guidance in this Circular.

3. Securities companies and securities investment fund management companies which are newly set up under business registration certificates granted from the effective date of the Government’s Decree No. 108/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Investment Law, are not allowed to enjoy enterprise income tax incentives though they satisfy the condition on domains eligible for investment incentives. Securities companies and securities investment fund management companies set up before the effective date of the Government’s Decree No. 108/2006/ND-CP of September 22, 2006, are allowed to continue enjoying enterprise income tax incentives in the remaining period.

4. Joint-stock companies formed as a result of equitization of state enterprises which are granted business registration certificates from the effective date (March 21, 2007) of the Government’s Decree No. 24/2007/ND-CP of February 14, 2007, detailing the implementation of the Law on Enterprise Income Tax, are not allowed to enjoy enterprise income tax incentives like newly set up business establishments.

Joint-stock companies formed as a result of equitization of state enterprises which are granted business registration certificates from the effective date of the Government’s Decree No. 108/2006/ND-CP of September 22, 2006, to before the effective date of the Government’s Decree No. 24/2007/ND-CP of February 14, 2007, are subject to conditions for enjoying investment incentives specified in Decree No. 108/2006/ND-CP; and may enjoy enterprise income tax incentives and durations like newly set up business establishments in accordance with the provisions of this Circular..

Joint-stock companies formed as a result of equitization of state enterprises which are granted business registration certificates before the effective date of the Government’s Decree No. 108/2006/ND-CP of September 22, 2006, are allowed to continue enjoying enterprise income tax incentives in the remaining period.

5. Business establishments that are enjoying enterprise income tax incentives under the Finance Ministry’s Circular No. 128/2003/TT-BTC of December 22, 2003, and Circular No. 88/2004/TT-BTC of September 1, 2004, under their investment licenses or investment incentive certificates may continue enjoying these incentives for the remaining period. In case Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC investment licenses or investment incentive certificates stipulate tax rates higher than preferential tax rates guided in this Circular, the preferential tax rates guided in this Circular will be applied in the remaining period, starting from the tax period of 2007. If a business establishment no longer enjoys the preferential tax rate by the end of the tax period of 2006, it is not entitled to a preferential tax rate in the remaining period as guided in this Circular.

6. Business establishments that are enjoying enterprise income tax exemption or reduction under the Finance Ministry’s Circular No. 128/2003/TT-BTC and Circular No. 88/2004/TT-BTC and under their investment licenses or investment incentive certificates may continue enjoying such tax exemption or reduction in the remaining duration. If the enterprise income tax exemption or reduction period they are enjoying is shorter than that stipulated in this Circular, business establishments may enjoy the tax exemption or reduction period stipulated in this Circular in the remaining period, staring from the tax period of 2007.

The remaining tax exemption or reduction period is the number of years in which a business establishment still enjoys tax exemption or reduction under the guidance of this Circular minus the number of years in which it has enjoyed tax exemption or reduction under Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC the granted investment license or investment incentive certificate till the end of 2006. The determination of the above remaining period must ensure the following principles:

- By the end of the tax period of 2006, the business establishment that is enjoying tax exemption or reduction under Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC the granted investment license or investment incentive certificate, will continue enjoying tax exemption or reduction for the remaining number of years under the guidance in this Circular.

- By the end of the tax period of 2006, if the business establishment no longer enjoys tax exemption under Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC the granted investment license or investment incentive certificate, it is not allowed to enjoy the tax exemption period but may enjoy the whole tax reduction period under the guidance in this Circular.

- By the end of the tax period of 2006, if the business establishment is still enjoying tax reduction under Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC the granted investment license or investment incentive certificate, it will enjoy the remaining years of tax reduction equal to the number of years of tax reduction guided in this Circular minus the number of years it enjoyed tax reduction by the end of the tax period of 2006.

- By the end of the tax period of 2006, if the business establishment no longer enjoys tax exemption under Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC the granted investment license or investment incentive certificate, it is not entitled to tax exemption or reduction under the guidance in this Circular.

In case the enterprise income tax exemption period under Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC the investment license or investment incentive certificate granted before January 1, 2007, is longer than that guided in this Circular while the tax reduction period is shorter, the business establishment may choose to apply the tax exemption or reduction period under Circular No. 128/2003/TT-BTC Circular No. 88/2004/TT-BTC the granted investment license or investment incentive certificate or apply the tax exemption or reduction period guided in this Circular.

7. For business establishments which were not eligible for investment incentives now satisfy conditions for investment incentives stipulated in Decree No. 108/2006/ND-CP they will enjoy enterprise income tax incentives under the guidance of this Circular for the remaining period of enjoying incentives, staring from the tax period of 2007.

8. For foreign-invested enterprises and foreign parties to business cooperation contracts which were granted investment licenses before January 1, 2004, if meeting the conditions specified in their investment licenses, they will continue enjoying the preferential enterprise income tax rates till the end of the period of enjoying preferential tax rates according to their investment licenses. At the expiry of the period of enjoying preferential tax rates under their investment licenses, they will shift to apply the enterprise income tax rate of 25%; if they have been paying enterprise income tax at the tax rate of 25%, they will continue paying the tax at the tax rate of 25% until the expiry of their investment licenses. For foreign-invested enterprises and foreign parties to business cooperation contracts which apply for extension of investment licenses from January 1, 2007, on, they are entitled to preferential enterprise income tax rates under the guidance in Section II, Part E of this Circular.

9. For business establishments which were granted investment licenses, business registration certificates or investment certificates before the date on which the Socialist Republic of Vietnam officially became a member of the World Trade Organization (January 11, 2007), if having incomes from business activities (excluding textile and garment-related activities) and enjoying enterprise income tax incentives because they meet all conditions on export percentages stipulated in legal documents on foreign investment in Vietnam, domestic investment promotion and enterprise income tax and legal documents on investment, they will continue enjoying these incentives according to these legal documents until 2011.

From the tax period of 2007, to annul the contents in documents of the Ministry of Finance and other branches guiding enterprise income tax incentives for compliance with the condition on use of domestic raw materials and enterprise income tax incentives for compliance with the export condition on textile and garment activities.

Business establishments operating in the domain of textile and garment, if meeting the conditions for enjoying enterprise income tax incentives (in addition to the condition on export percentage), will continue enjoying enterprise income tax incentives corresponding to conditions which they meet in the remaining incentive period.

10. This Circular replaces the following Circulars:

- The Finance Ministry’s 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.

- The Finance Ministry’s Circular No. 88/2004/TT-BTC of September 1, 2004, amending and supplementing the Finance Ministry’s 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.

To annual the contents guiding enterprise income tax promulgated by the Ministry of Finance and other branches which are contrary to the guidance in this Circular.

11. Settlement of tax-related problems, tax finalization, tax exemption and reduction and the handling of enterprise income tax-related administrative violations before the tax period of 2007 shall be carried out in accordance with relevant regulations guiding enterprise income tax promulgated before the tax period of 2007.

12. In case the Socialist Republic of Vietnam accedes to or signs an international treaty or agreement which provides for the payment of enterprise income tax differently from the guidance in this Circular, that international treaty or agreement will be applied.

Any problems arising in the course of implementation should be promptly reported by units and business establishments to the Ministry of Finance for study and additional guidance