Key tax regulations for investors in Vietnam

In recent years, Vietnam has developed into one of the most popular investment destinations in South-east Asia. In line with the international economic integration of Vietnam and in order to encourage domestic investment and make it easier for entrepreneurs to do business in Vietnam, the government has pushed for economic reforms and regulations to be improved and streamlined. Over the past few years, the country has seen significant developments in its regulatory and tax system, with various laws being newly introduced or existing laws being reformed.

Framework

Enhancing Vietnam’s business and investment environment has been a key priority for the government. In late 2014 the National Assembly approved amendments to the Investment Law and the Enterprise Law to improve the legal framework for investment (various amendments to these laws have recently been proposed). At the same time, the National Assembly passed a new Tax Law amending key tax legislation, including corporate income tax (CIT), personal income tax (PIT), value-added tax (VAT), tax administration and an amended law on special sales tax (SST). The new Tax Law became effective as of January 1, 2015, and the amended law on SST went into effect on January 1, 2016. Further amendments to the VAT, SST and tax administration laws were implemented on July 1, 2016. In addition, a new Customs Law took effect on January 1, 2015.

Vietnam only has national taxes, with no taxes levied at the local level. The main types of taxes that investors need to be aware of are when doing business in the country are CIT, VAT, PIT for individuals, indirect taxes (such as VAT and SST), import/ export duties and foreign contractor tax (FCT).

Corporate Tax

Generally, an enterprise established under Vietnamese law must pay tax on a worldwide basis, and as such, income from sources outside of Vietnam is taxable. In line with the objective of making Vietnam a more attractive investment location, the standard CIT rate has been repeatedly decreased over the past few years, coming down from 28% to 25% in 2009, and from 22% in 2014 to 20% in 2016. Companies operating in the oil and gas industry are subject to CIT rates ranging from 32% to 50%, depending on the location and specific project conditions. Firms engaging in prospecting, exploration and exploitation of mineral resources (e.g., silver, gold and gemstones) are subject to CIT rates of 40-50%, depending on the project’s location.

Cit Incentives

In the past, Vietnam has granted many tax incentives to attract foreign direct investment (FDI). In an attempt to shift such inflows into more qualitative investment, such as in high technology, and encourage FDI in certain required sectors – such as infrastructure, health care and education – and to locations in under-developed areas, tax incentives were scaled back significantly in 2009, but are still available.

Tax incentives are granted to new projects based on regulated encouraged sectors, encouraged locations and the size of the project. New investment projects do not include those established as a result of certain acquisitions or reorganisations. In addition, CIT incentives for business expansion were re-introduced on January 1, 2014 in an attempt to acknowledge the growth of local companies that expanded their business in Vietnam and were not able to claim tax incentives for business expansion during the 2009-13 period.

Specific Sectors

Encouraged sectors include, education, health care, sports and culture, high technology, environmental protection, scientific research, infrastructural development, software production, renewable energy, cultivation and animal husbandry. Furthermore, new investment projects engaging in manufacturing industrial products prioritised for development in Vietnam can be entitled to CIT incentives if either:

• The projects support the high-technology sector; or

• The products are in certain industries such as garment and textiles, footwear, electronics, car assembly and mechanical engineering; and are not produced domestically as of January 1, 2015, or if produced domestically, they meet the quality standards of the EU or equivalent. Encouraged locations include qualifying economic and high-tech zones, certain industrial zones and difficult socio-economic areas.

Large Projects

Certain large-scale manufacturing projects (excluding those related to the manufacture of products subject to SST or those exploiting mineral resources) can also qualify for CIT incentives. These include:

• Projects with investment capital of VND12trn ($536.8m) or more, spent within five years of being licensed and using high technology; or

• Projects with investment capital of VND6trn ($268.4m) or more, spent within three years of being licensed, if either of the following criteria is met: (i) minimum revenue of VND10trn ($447.3m) per annum for at least three years after the first year of operations; or (ii) a headcount of more than 3000 for at least three years after the first year of operations. Business expansion projects that meet certain conditions are also entitled to CIT incentives. These incentives can take the form of preferential tax rates, tax holidays and reductions, or a combination of any of the above.

Preferential Tax Rates

There are three preferential tax rates available: 10%, either for 15 years or for the life of the project; 15%, for the life time of the project; and 17% for 10 years. Preferential tax rates start from the commencement of operating activities. When the preferential rate expires, the CIT rate reverts to the standard rate.

Tax Holidays & Reductions

Tax holidays take the form of a complete exemption from CIT for a certain period beginning immediately after the enterprise first makes profits, followed by a period where tax is charged at 50% of the applicable rate. However, where the enterprise has not made a profit within three years of the commencement of operations, the tax holiday and/or tax reduction will start from the fourth year of operation. Criteria for eligibility for these holidays and reductions are set out in the CIT regulations.

Additional tax reductions may be available for companies engaging in manufacturing, construction and transport activities which employ female staff or ethnic minorities. CIT incentives available for investment in encouraged sectors do not apply to other income, which is broadly defined.

Tax Base

Taxable profit is the difference between total revenue, whether domestic or foreign sourced, and deductible expenses, plus other assessable income. The accounting profits are taken as the calculation basis, with tax adjustments being made to arrive at taxable profit.

Deductible Expenses

Expenses are tax deductible if they relate to the generation of revenue, are properly supported by suitable documentation, including bank transfer vouchers where the invoice value is VND20m ($895) or more, and are not specifically identified as being non-deductible. There is no definition of what is considered the generation of revenue, and therefore, this often leads to disagreements in tax audits.

Documentation remains a key factor for deductibility of expenses and enterprises therefore need to make sure they have sufficient supporting documents on file in the event of being audited.

Vietnam has a list of non-deductible expenses that include, depreciation of fixed assets which is not in accordance with the prevailing regulations; employee remuneration expenses which are not stated in a labour contract or collective labour agreement; provisions for stock devaluation, bad debts, financial investment losses, product warranties or construction work which are not in accordance with prevailing regulations.

Tax Losses

Carry-back of losses is not permitted. Losses can be carried forward fully and consecutively for a maximum of five years. Losses arising from incentivised activities can be offset against profits from non-incentivised activities, and vice versa. Losses from the transfer of real estate and the transfer of investment projects can be offset against profits from other business activities. There is no provision for any form of consolidated filing or group loss relief.

Cit Returns & Payment

Quarterly provisional CIT payments are required to be made by the 30th of the first month of the subsequent quarter (but no quarterly CIT return must be filed). An annual final CIT return must be submitted no later than 90 days from the end of the fiscal year. The outstanding tax payable must be paid at the same time.

Where a taxpayer has a dependent accounting unit (e.g., a branch) in a different province, a single CIT return is required. However, manufacturing companies are required to allocate tax payments to the various provincial tax authorities in the locations where they have dependent manufacturing establishments. The basis for allocation is the proportion of expenditure incurred by each manufacturing establishment over the total expenditure of the company. The standard tax year is the calendar year. Companies are required to notify the tax authorities in cases where they use an alternative tax year (i.e., the fiscal year).

Profit Remittance

Foreign investors are permitted to remit their profits annually at the end of the financial year or upon termination of the investment in Vietnam. Foreign investors are not allowed to remit profits if the investee company has accumulated losses. The foreign investor or the investee company are required to notify the tax authorities of the plan to remit profits at least seven working days prior to the scheduled remittance. There is no profit remittance tax.

Transfer Pricing

Vietnam has had transfer pricing regulations since 2006, but has not strictly enforced these regulations in the past. However, transfer pricing has become a hot topic over the past two years and with the recent establishment of specific transfer pricing audit divisions, an increase in the number of tax audits can be expected. Therefore, transfer pricing compliance has become an important focal point for companies with related-party transactions.

Vietnam’s transfer pricing regulations outline various situations where transactions will be considered as being between related parties and the mechanisms for determining the market “arm’s length” transaction value. Under the wide-ranging definition of related parties, the control threshold is lower than in many other countries (20%) and the definition also extends to certain significant supplier, customer and funding relationships between otherwise unrelated parties. Vietnam’s transfer pricing rules also extend to domestic related-party transactions.

The acceptable methodologies for determining arm’s length pricing are analogous to the principles espoused by the OECD, i.e., comparable uncontrolled price, resale price, cost plus, profit split and comparable profits methods. Compliance requirements include an annual declaration of related-party transactions and transfer pricing methodologies used, specifically requiring companies to declare and self-assess the arm’s length value of their transactions (or, in the alternative, make a voluntary adjustment). Companies which have related-party transactions must also prepare and maintain contemporaneous transfer pricing documentation, which is required to be submitted to the tax authorities within 30 working days of a request and in Vietnamese. There are no de-minimus rules for documentation.

An advance pricing agreement (APA) mechanism was introduced in 2014. The General Department of Taxation is working through the initial pilot APA applications which will allow the taxpayers and the tax authorities to agree in advance on the pricing method and outcomes. The Ministry of Finance (MoF) has recently proposed revamping the transfer pricing regulations and a new decree is expected to be finalised by end of 2016.

Taxation On Foreign Enterprises

Under the CIT law, a foreign enterprise with a permanent establishment in Vietnam must pay tax on all income arising in Vietnam and on foreign income that relates to the permanent establishment in the country. A foreign enterprise without a permanent establishment in Vietnam must pay tax only on income arising in Vietnam.

The definition of permanent establishment under domestic regulations is broad. A permanent establishment is defined as a business or production establishment through which the foreign enterprise conducts part or all of its business in Vietnam, which can be:

• Branches, plants and a location in Vietnam where natural resources are mined;

• Construction sites;

• Establishments providing services;

• Agents; and

• Representatives. Where Vietnam has signed a double taxation agreement (DTA) with another country, the permanent establishment rules under the DTA prevail over the domestic permanent establishment rules.

Even though these permanent establishment rules have been in existence under the CIT law for a long time, in practice the experience to date has been that the Vietnamese tax authorities do not generally tax foreign enterprises doing business in the country and earning income here on a permanent establishment net income basis. In many cases, income earned in Vietnam by a foreign enterprise is taxed using the FCT mechanism.

Fct

FCT applies to certain payments to foreign parties including interest, royalties, service fees, leases, insurance, transportation, transfers of securities and goods supplied within Vietnam or associated with services rendered in Vietnam. FCT is not a separate tax but comprises a CIT and VAT element at varying rates and can also include PIT for payments to foreign individuals.

Dividends & Interest

No withholding or remittance tax is imposed on dividends distributed to foreign corporate shareholders, but a 5% PIT rate is applied for dividends paid to individuals.

A withholding tax rate of 5% applies to interest paid on loans from foreign entities. Offshore loans provided by certain government or semi-government institutions may obtain an exemption from interest withholding tax where a relevant DTA or inter-governmental agreement applies. Interest paid on bonds (except for tax-exempt bonds) and certificates of deposit issued to foreign entities are subject to a 5% withholding tax. Sales of bonds and certificates of deposits are subject to a deemed tax of 0.1% on the gross sales proceeds.

Royalties & Licence Fees

10% FCT applies to payments to a foreign entity for the right to use or transfer intellectual property or for transfers of technology. Some royalties may warrant a 5% VAT.

Payments To Foreign Contractors

As outlined above, Vietnam rarely applies the permanent establishment rules to tax foreign entities doing business in and/or having income from Vietnam on a permanent establishment net income basis. Instead, a withholding tax applies on payments to foreign contractors where a Vietnamese party (including foreign-owned companies) contracts with a foreign entity that is not licensed to operate in Vietnam. This FCT generally applies to payments derived from Vietnam, except for the pure supply of goods (i.e., where title passes at or before the border gate of Vietnam and there are no associated services performed in the country), services performed and consumed outside of Vietnam, and other services performed wholly of outside Vietnam (certain repairs, training, advertising, etc.).

Direct Method

Foreign contractors can choose between three methods for tax payment: the direct method, the deduction method and hybrid method. The direct (withholding) method is the most commonly used. Under this option, the foreign contractor does not have to register for VAT purposes, nor file CIT or VAT returns. Instead CIT and VAT will be withheld by the Vietnamese customer at prescribed rates from the payments made to the foreign contractor.

Rates are specified according to activities. The VAT withheld by the domestic customer is generally an allowable input credit in its VAT return. An explanation for the notes can be found in the table to the left: (1) The supply of goods and services to the oil and gas industry is subject to a standard 10% VAT. Certain goods or services may be VAT exempt or subject to 5% VAT; and (2) VAT will not be payable where goods are exempt from VAT or where import VAT is paid ; and (3) Where the contract does not separate the value of goods and services; and (4) Where aircraft and vessels cannot be manufactured in Vietnam; and (5) International transport is subject to 0% VAT; and (6) Software licences, transfer of technology and the transfer of intellectual property rights are also VAT exempt; and (7) Certain types of insurance products are also exempt from VAT (see below).

Deduction Method

Under the deduction method, the foreign contractor must register for VAT and file CIT and VAT returns in the same way as a local entity. The foreign contractor needs to issue VAT invoices and charge VAT similar to a local company. CIT is paid at 20% on net profits. Foreign contractors can apply the deduction method if they meet all of the following requirements:

• They have a permanent establishment or are tax resident in Vietnam;

• The duration of the project in Vietnam is more than 182 days; and

• They adopt the full Vietnam Accounting System, complete a tax registration and are granted a tax code. The Vietnamese customer is required to notify the tax office that the foreign contractor will pay tax under the deduction method within 20 working days from the date of signing the contract.

If the foreign contractor carries out several projects in Vietnam and qualifies for application of the deduction method for one project, the contractor is then required by the law to apply the deduction method to all of its other projects as well.

Hybrid Method

Under the hybrid method, the foreign contractor registers for VAT and accordingly pays VAT based on the deduction method (i.e., output VAT less input VAT), but with CIT being paid under the direct method rates on gross turnover. Foreign contractors wishing to adopt the hybrid method must do the following:

• Have a permanent establishment in Vietnam or be tax resident in Vietnam;

• Operate in Vietnam under a contract with a term of more than 182 days; and

• Maintain accounting records in accordance with the accounting regulations and guidance set out by the MoF. The CIT element may be affected by a relevant DTA. For example, the 5% CIT rate on services supplied by a foreign contractor may be eliminated under a DTA if the foreign contractor does not have a permanent establishment in Vietnam.

Capital Gains Tax

Gains derived by an enterprise established under the law of Vietnam on transfers of interest or shares in a domestic (or overseas) entity are subject to a 20% CIT. Gains derived by a foreign entity on transfers of interests (as opposed to shares) in a local limited liability company or other enterprises are also subject to a 20% CIT. The taxable gain is determined as the excess of the sale proceeds less cost (or the initial value of the contributed charter capital for the first transfer) less transfer expenses.

Under current regulations, the Vietnamese purchaser is required to withhold the tax due from the payment to the foreign vendor and account for this to the country’s tax authorities. Where the purchaser is also a foreign enterprise, the Vietnamese firm in which the interest is transferred is responsible for the tax administration.

The return and payment is required no later than 10 days from the date of the transfer. Transfers of securities (bonds, shares of public joint stock companies, etc.) by a foreign company are subject to CIT on a deemed basis at 0.1% of the total proceeds from disposal.

Dtas

The existence of a DTA may provide additional relief from taxation in Vietnam, that is from the CIT element of FCT, capital gains tax or PIT of employees working short term in Vietnam. The country has signed more than 70 DTAs and there are a number of others at various stages of negotiation, the most notable being the DTA with the US, which was signed in July 2015 but is not yet in force.

In 2014 Vietnam introduced beneficial ownership and general anti-avoidance provisions. DTA entitlements will be denied where the main purpose of the arrangements is to obtain beneficial treatment under the terms of the DTA (treaty shopping) or where the recipient of the income is not the beneficial owner. The new guidelines dictate that a substance-over-form analysis is required for the beneficial ownership and outlines factors to be considered, including:

• Where the recipient is obligated to distribute more than 50% of their income to an enterprise or entity in a third country within 12 months;

• Where the recipient has little or no substantive business activities;

• Where the recipient has little or no control over or presents risks in relation to the income received;

• Back-to-back arrangements;

• Where the recipient is resident in a country with a low tax rate; and

• Where the recipient is an intermediary or agent. DTA benefits are not automatically granted under Vietnamese law, and foreign investors are required submit a notification to the relevant tax office.

Vat

VAT is levied on supplies of goods and services made in Vietnam by a taxable person, including the import of goods and services into the country in the course of business.

Taxable persons include organisations or individuals that produce and trade in or import taxable goods or services. VAT payers include organisations and business individuals that purchase services from foreign organisations (or individuals) which do not have a permanent establishment in Vietnam (are not tax resident in Vietnam) and are not registered for VAT in Vietnam. There are three rates for VAT:

• 0%, which is mainly applicable for exported goods and services;

• 5%, which is mainly applicable for essential goods; and

• 10%, which is the standard VAT rate applying to most types of goods and services. Certain goods/services are VAT exempt (meaning no input VAT credit is available) whereby certain other goods/services are not subject to VAT declaration (meaning an input VAT credit is available).

There are two VAT calculation methods: tax deduction and direct calculation. Under the first method, the VAT payable is determined by deducting the input VAT from the output VAT charged. Under the direct method, VAT is applied on the valued added of the goods or services.

Businesses that are declaring VAT under the deduction method can claim input VAT credits, provided they make VAT-able supplies. For domestic purchases, input VAT is based on VAT invoices. For imports, as there is no VAT invoice, input VAT credits are based on the tax payment voucher. In regards to VAT withheld from payments to overseas suppliers (under the FCT system), firms can also make claims as input VAT.

VAT invoices may be declared and claimed any time before the company receives a notice for a tax audit form the tax authorities. Input VAT credits on payments of VND20m ($895) or more can only be claimed where evidence of non-cash payment is available. VAT refunds (meaning cases where the input VAT exceeds the output VAT) are now restricted to a few situations and subject to certain conditions being met. In the remaining cases taxpayers have to carry forward the input VAT balance to offset against future output VAT.

Taxpayers must file VAT returns on a monthly basis by the 20th of the following month, or on a quarterly basis by the 30th day of the subsequent quarter (for companies with prior year sales of VND50bn [$2.2m] or less).

Special Sales

SST is a form of excise tax that applies to the production or import of certain goods, the domestic sales by the importers of these goods and the provision of certain services. The Law on SST classifies objects subject to SST into the following two groups:

• Commodities, which include cigarettes, liquor, beer, automobiles that have less than 24 seats, motorcycles, airplanes, boats, petrol, air-conditioners up to 90,000 British thermal units, playing cards, and votive papers; and

• Services, which include discotheques, massage parlours, karaoke bars, casinos, gambling, lotteries, golf clubs and entertainment with betting. SST rates depend on the object and currently range between 7% and 150%. The country’s SST regulations have recently been amended with various significant changes and anti-avoidance rules being introduced. Under the new regulations, taxpayers must now file SST returns on a monthly basis by the 20th of the following month.

Import & Export Duties

Import duties at various rates are imposed on goods imported into Vietnam. Import duty exemptions are provided for projects which are classified as encouraged sectors and goods imported in certain circumstances.

Import duty rates are classified into three categories: ordinary rates, preferential rates (for goods imported from countries that have Most Favoured Nation status with Vietnam) and special preferential rates (applicable to imported goods from countries that have a special preferential trade agreement with Vietnam).

Vietnam has various free trade agreements (FTA) with a number of nations, including the ASEAN member states, Japan, China, India, South Korea, Chile, Australia and New Zealand, and it has finished conclusion of negotiations with the Customs Union of Russia, Belarus and Kazakhstan. Furthermore, in October 2015 the Trans-Pacific Partnership was successfully concluded, and in December 2015 the country concluded negotiations for an EU-Vietnam FTA.

Export duties are levied only on a few items comprising natural resources such as sand, chalk, marble, granite, ore, crude oil, forest products and scrap metal. Vietnam’s Customs regulatory framework is continually evolving, and over the past few years there have been significant efforts and progress made by the General Department of Customs towards improving regulations and ensuring more effective e-Customs operations.

Despite these improvements, Customs remains a high-risk area in Vietnam, particularly in regards to valuation issues, and enterprises need to focus on how they can work to further manage their compliance and Customs strategies.

Personal Tax

Employers in Vietnam as well as foreign entities carrying out operations or projects in Vietnam and sending employees to work in the country need to be aware of the Vietnamese PIT implications and reporting requirements for these employees. The PIT implications for individuals depend on their residency status.

Residents of Vietnam are subject to Vietnamese PIT on their worldwide taxable income, wherever it is paid or received. Residents are those individuals meeting one of the following criteria:

• Residing in Vietnam for 183 days or more in either the calendar year or the period of 12 consecutive months from the date of first arrival;

• Having established a permanent residence in Vietnam, which includes a registered residence that is recorded on a permanent and/or temporary residence card, in the case of non-Vietnamese nationals; and

• Having a leased a property in Vietnam with a term of 183 days or more in a tax year and unable to prove tax residence in another country. Employment income received by residents is taxed on a progressive rate basis with the highest tax rate being 35%. PIT has to be declared and paid provisionally on a monthly basis by the 20th of the following month or on a quarterly basis by the 30th day following the reporting quarter. The PIT amounts paid during the year are reconciled to the total tax liability at the end of the year. An annual final tax return must be submitted and any additional tax must be paid within 90 days of the end of the year. Expatriate employees are also required to carry out a PIT finalisation upon termination of their Vietnamese assignments before exiting the country. Tax refunds due to excess payments are available to those who have a tax code.

For Vietnamese employers, the employer is generally responsible for withholding, declaring and paying PIT on behalf of its employees. Foreign employers do not have a withholding obligation in Vietnam and PIT is commonly filed under the employee’s name and tax code. Other non-employment income of residents is taxed at a variety of different rates.

The individual is also required to declare and pay PIT in relation to each type of taxable non-employment income. PIT regulations require income to be declared and tax paid on a regular basis, often each time income is received.

Individuals that do not meet the conditions for being tax resident are considered tax non-residents. Non-residents are subject to PIT at a flat tax rate of 20% on their Vietnam-related employment income, and at various other rates on their non-employment income. However, this will need to be considered in light of the provisions of any DTA that might apply, meaning under certain conditions an exemption from Vietnam PIT may apply.

Social Security

Social insurance (SI) and unemployment insurance (UI) contributions are applicable to Vietnamese individuals only. Health insurance (HI) contributions are required for Vietnamese and foreign individuals that are employed under Vietnamese labour contracts.

From January 1, 2016 through to December 31, 2017, the salary subject to social security contributions is the salary and certain allowances stated in the labour contract. From January 1, 2018 onwards, additional payments of specific amounts stated in the labour contract and paid regularly together with salary are also subject to social security contributions, but this continues to be capped at 20 times the minimum salary for SI and HI contributions and 20 times the minimum regional salary for UI contributions.

The minimum salary is currently VND1.150m ($51) and the minimum regional salary varies from VND2.15m ($96) to VND3.1m ($139), depending on each region — these minimum salaries are subject to change during the year. The statutory employer contributions do not constitute a taxable benefit to the employee. The employee contributions are also deductible for the purpose of PIT.

Tax Compliance, Audits & Penalties

Over the past few years, the focus of the Vietnamese government has been on reform of tax administration, as well as modernisation of tax administration systems and procedures. Taxpayers now have to self-assess their taxes and there is shift towards declaring and paying taxes online. Non-compliance with tax regulations will be subject to penalties. There are detailed regulations setting out penalties for various tax offences.

These penalties range from relatively minor administrative penalties to tax penalties amounting to various multiples of the additional tax assessed. For discrepancies identified by the tax authorities upon audit, a 20% penalty will be imposed on the amount of tax that is under-declared. Late payment of tax is subject to interest of 0.03% of the tax liability for each day that is late, which is a reduction from 0.05% previously.

The general statute of limitations for imposing tax and late payment interest is 10 years (effective July 1, 2013) and for penalties is up to five years. Where the taxpayer did not register for tax, there is no statute of limitation for imposing tax and late payment interest. Tax audits are an ongoing element of the tax authorities’ enforcement programme. They are carried out regularly and often cover a number of tax years. Prior to an audit, the tax authorities send the taxpayer a notice specifying the time and scope of the audit.

In times of fiscal difficulty or where specific risk areas are identified, the extent and intensity of audits are often increased. Documentation is a common focus during any tax audit process. Often tax deductions are denied due to a lack of suitable supporting documents. It is also possible that otherwise correct tax filing positions result in additional taxes due to insufficient documentation.