Vietlaw Weekly Newsletter No. 354
Foreign Currencies - Gold
Banks are banned from conducting of cryptocurrency transactions
Directive No. 02/CT-NHNN dated April 13th, 2018 of the State Bank of Vietnam regarding measures to enhance control over transactions, activities related to cryptocurrencies
Aiming to prevent risks of money laundering, tax evasion, tax fraud by cryptocurrencies, the State Bank of Vietnam (BSV) bans banks from providing payment services, conducting card - related transactions, providing credit via cards, supporting to handle, making payments, transferring money, carrying out clearing and finalization, exchanging currencies, conducting transactions of payment, money transfer through borders related to transactions of cryptocurrencies for clients.
Upon detecting suspected transactions related to cryptocurrencies, banks have to timely report to the SBV and take measures to handle so as to ensure the compliance with the regulations of laws on money laundering prevention and combat and foreign exchange management.
The Banking Supervision Agency of the SBV shall also organize the investigation into risks of cryptocurrencies at banks in case of having hazard of risks or having signs of violation of laws or in necessary cases.
This Directive takes effect from the date of it signing.
CT02_13042018NHNNVN[VLO].pdf (English translation)
Some issues relating to participants in social insurance and social insurance contributions and premiums
Dispatch No. 1734/BHXH-QLT dated August 16th, 2017 of the Social Insurance Authority of Ho Chi Minh city on instruction on collecting social insurance contributions and premiums of health insurance, unemployment insurance, occupational accident and occupational disease insurance; management of social insurance books and health insurance cards
Regarding entities that are compulsory to pay insurance premiums, it should note that:
- People working under labor contracts whose term is at least 3 months (including people under 15 years old) and managers of enterprises receiving salaries have to participate in social insurance, health insurance, unemployment insurance and occupational accident and occupational disease insurance).
- People working under labor contracts whose term is from 1 month to under 3 months (except for probationary contracts) and foreign employees have to participate in social insurance and occupational accident and occupational disease insurance from January 1st, 2018. Foreign employees working under labor contracts whose term is at least 3 months shall participate in compulsory health insurance.
- Employees who are assigned to study, practice or work domestically and overseas but still receive domestic salaries are subject to compulsory social insurance and unemployment insurance.
- An employee who enters into at least 2 labor contracts with different employers shall pay social insurance contributions and unemployment insurance premiums according to the first labor contract and pay health insurance premiums according to the labor contract with highest salary. With regard to occupational accident and occupational disease insurance, it is required to pay for all contracts.
Payment rates shall be specified as follows:
- Employers pay 21.5% (17% social insurance; 0.5% occupational accident and occupational disease insurance; 3% health insurance; 1% unemployment insurance);
- Employees pay 10.5% (8% social insurance; 1.5% health insurance; 1% unemployment insurance).
Salary to be used as the basis for payment of insurance is salaries specified in labor contracts, allowances and additional payments (applicable from January 1st, 2018). However, “additional payments” subject to the payment of insurance only include payments with specific amounts and paid regularly in each period of salary payment.
This document comes into force from the day on which it is signed. Previous regulations that are not conformable with the Decision No. 595/QD-BHXH shall be annulled.
CV1734_16082017BHXHHCM[ENGLISH].pdf (English translation)
Requirements for eligibility to receive credit overextensions
Decision No. 13/2018/QD-TTg dated March 6th, 2018 of the Prime Minister on prescribing eligibility and documentation requirements and procedures for application for approval of credit overextensions granted by credit institutions and foreign bank branches
According to this Decision, borrowing customs, business projects or plans shall be offered credit overextensions provided they meet the following requirements:
- Borrowing customers have not incurred bad debts for 03 years preceding the year of submission of their applications for credit overextensions and have the ratio in which the debt owed is not three times more than the owner’s equity.
- Borrowing customers wish to borrow fund to implement business projects or plans with the aim of performing socio-economic development tasks under one of the following circumstances
+ They implement business projects or plans of socio-economic significance and urgent ones in electricity, coal, oil and gas, petroleum, traffic, public transportation and other industries or sectors;
+ They implement investment programs and projects for which investment policies are decided by the National Assembly and the Prime Minister;
+ They invest in sectors which are prioritized and encouraged under Resolutions of the National Assembly and the Government on socio-economic development over periods of time.
- Business projects or plans in need of credit overextensions have already undergone the credit institution’s assessment which ensures that they are feasible and borrowing customers remain solvent, and suggests that the credit extension decision should be made
For banks, they must meet the following requirements: At the time of application of credit overextension, banks satisfy prudential ratio and limit requirements and have already sent syndication invitation letters to at least 5 other banks.
An application for credit overextension shall be submitted to the State Bank of Vietnam in order to submit to the Prime Minster of approval.
This Decision takes effect from May 1st, 2018.
QD13_06032018TTg[ENGLISH].pdf (English translation)
Certificate of Origin (C/O)
Issues relating to format of C/O form D
Official letter No. 1338/TCHQ-GSQL dated March 14th, 2018 of the General Department of Vietnam Customs regarding format of certificate of origin (C/O) form D
According to this Official letter, with regard to C/O form D issued by Thailand, Laos, Philippines, Indonesia, Brunei, Cambodia, Myanmar, Vietnam on which the word “ORIGINAL” is located on the right instead of in the middle, this shall not affect the C/O’s validity - in other words, C/O form D on which the word “ORIGINAL” is printed on the right shall be still considered to be valid and shall be accepted for the purpose of consideration of tax incentives.
CV1338_14032018TCHQ[VLO].pdf (English translation)
Paper C/O and electronic C/O have equivalent validity
Official letter No. 677/GSQL-GQ4 dated March 9th, 2018 of the General Department of Vietnam Customs regarding issue relating to electronic certificate of origin (C/O) form D
According to Article 25 of Circular No. 22/2016/TT-BCT, paper C/O and electronic C/O have equivalent validity. As the result, enterprises may either submit paper C/O or electronic C/O in order to enjoy special preferential rates.
CV677_09032018TCHQ[VLO].pdf (English translation)
Some issues relating to electronic C/O form D
Official letter No. 620/GSQL-GQ4 dated March 6th, 2018 of the General Department of Vietnam Customs regarding issues relating electronic certificate of origin (C/O) form D
Relating electronic C/O form D, the document provides these guidelines:
- For the case of marking at box “Normal”: apply to C/O which is issued when the country of origin is the country issuing the C/O and is also the country using the invoice (not apply to the cases of third party invoice or back – to – back C/O).
- For the case of marking at box “Drawback”: apply to C/O which is issued to replace the C/O rejected by customs offices.
- In case an electronic C/O lacks information because of technical errors/mistakes, customs offices shall receive the paper-based C/O issued in accordance with regulations of the ASEAN Trade in Goods Agreement in order to consider settling.
CV620_06032018TCHQ[VLO].pdf (English translation)
Regarding procedures for bringing goods into/out of bonded warehouses
Official letter No. 1174/GSQL-GQ2 dated April 23rd, 2018 of the General Department of Vietnam Customs regarding guidelines on customs procedures
In case a Company wishes to bring goods into/out of bonded warehouses, it shall carry out customs procedures according to Article 91 of Circular No. 38/2015/TT-BTC .
Cases in which goods are stored in bonded warehouses shall be carried out according to Article 85 of Decree No. 08/2015/ND-CP .
CV1174_23042018TCHQ[VLO].pdf (English translation)
Electricity - Energy
Requirements upon using energy yield testing sheet of another enterprise
Official letter No. 1868/BCT-TKNL dated March 13th, 2018 of the Ministry of Industry and Trade regarding use of energy yield testing sheet
According to the Ministry of Industry and Trade, in case Enterprise B wants to use energy yield testing sheet of Enterprise A for products with the same model, manufacturer, origin and technical specifications in order to apply to carry out procedures for inspection of minimum energy yield and energy labeling, Enterprise B must have written authorization to be permissible to use energy yield testing sheet of Enterprise A and written commitment of Enterprise A to fully take responsibilities for quality of the products with the same model traded by Enterprise B.
CV1868_13032018BCT[VLO].pdf (English translation)
Guidelines on application for registration of rooftop photovoltaic installation projects
Dispatch No. 5087/BCT-TCNL dated June 9th, 2017 of the Ministry of Industry and Trade on implementation of Decision No. 11/2017/QD-TTg
This document is to provide temporary guidelines on application for registration of rooftop photovoltaic installation projects and model electricity sale contracts for solar power projects, applicable while pending the Ministry of Industry and Trade’s Circular
CV5087_09062017BCT[ENGLISH].pdf (English translation)
Import of goods samples shall be exempt from food safety inspection
Official letter No. 1223/GSQL-GQ1 dated April 24th, 2018 of the General Department of Vietnam Customs regarding guidelines on implementation of Decree No. 15/2018/ND-CP
According to Clause 5 Article 13 of Decree No. 15/2018/ND-CP , imported goods which are samples used for testing or research are exempt from food safety inspection.
However, the inspection is exempt only when quantities of import are suitable for the testing or research purposes.
Upon carrying out import procedures, enterprises shall themselves declare use purposes of consignments and take responsibility for the use of the goods for the right purposes already declared. In case use purposes are changed from testing or research to domestic use, the food safety inspection must be conducted.
CV1223_24042018TCHQ[VLO].pdf (English translation)
Regarding export on the spot of redundant raw materials used for processing
Official letter No. 309/XNK-CN dated March 19th, 2018 of the Ministry of Industry and Trade regarding export on the spot of raw materials used for production and processing
According to Article 32 of Decree No. 187/2013/ND-CP , processers are allowed to export on the spot redundant raw materials used for processing. This clause applies to processers that are Vietnamese traders, including traders with foreign investment in Vietnam.
Accordingly, in case processors are foreign direct investment (FDI) enterprises, they are also allowed to export on the spot redundant raw materials used for processing.
Conditions, procedures for export on the spot shall be carried out according to Article 4 and Clause 3 Article 32 of Decree No. 187/2013/ND-CP .
CV309_19032018BCT[VLO].pdf (English translation)
Regarding PIT incurred by employees who are seconded to work in Vietnam for more than 183 days
Official letter No. 8376/CT-TTHT dated March 5th, 2018 of the Department of Taxation of Ha Noi city regarding guidelines on personal income tax (PIT) accounting for foreigners
If foreigners are seconded to work in Vietnam for a period of more than 183 days in a year, they are determined the residents in Vietnam in such year (Article 1 of Circular No. 111/2013/TT-BTC ).
They therefore shall be subject to PIT on the whole incomes earned within and outside Vietnam (global incomes) regardless of locations of payment and receipt
For incomes generated outside Vietnam, if tax on such incomes has been withheld, it shall be subtracted from PIT payable in Vietnam according to point e.1 Clause e Article 26 of Circular No. 111/2013/TT-BTC .
CV8376_05032018CTHN[VLO].pdf (English translation)
Amendments to requirements for registration of industrial property protection
Circular No. 16/2016/TT-BKHCN dated June 30th, 2016 of the Ministry of Science and Technology on amendments to some articles of the Circular No. 01/2007/TT-BKHCN dated February 14, 2007 providing guidelines for the Government’s Decree no. 103/2006/ND-CP dated September 22, 2006 elaborating and providing guidelines for some articles of the Law on Intellectual Property regarding industrial property amended in the Circular No. 13/2010/TT-BKHCN dated July 30, 2010, Circular No. 18/2011/TT-BKHCN dated July 22, 2011 and Circular No. 05/2013/TT-BKHCN dated February 20, 2013
This Circular is to amend, supplement to provisions on subjects entitled to register the industrial property protection; conditions with regard to applicants for registration of industrial property; conditions for authorizing a representative to register the industrial property protection; requirements for application for protection registration and procedures for, dossier of registration, extension of validity, termination of registration of industrial property protection.
Accordingly, the applicants for registration of industrial property are allowed to authorize an organization or individual to carry out procedures for registration of industrial property on their behalf. However, the authorization of multiple organizations or individuals of which is not allowed to represent shall be considered invalid.
For an application for registration of geographic indications (GI), apart from a description of particular characteristics and quality of products bearing the GI, name and reputation of the products bearing the GI are also required to be included in the form.
Relating to industrial designs, this Circular supplements the definitions of two industrial designs are considered not significantly distinguishable and two industrial designs which are considered significantly distinguishable from each other. Accordingly:
- Two industrial designs are considered not significantly distinguishable when they are used for the same type of product and have the same gathering of substantial design features;
-Two industrial designs are considered significantly distinguishable from each other when they are used for different types of product or used for the same type of product but have at least one distinguishable substantial design feature.
This Circular takes effect from January 15th, 2018.
TT16_30062016BKHCN[ENGLISH].pdf (English translation)
Costs for operating ships to Vietnam shall be subject to import duty
Official letter No. 2172/TCHQ-TXNK dated April 23rd, 2018 of the General Department of Vietnam Customs regarding tax policies applicable to imported goods
According to Article 6 of Circular No. 39/2015/TT-BTC , customs value of imported goods are prices written on commercial invoices and amounts to be paid to sellers but they have not yet included in the commercial invoices and transportation costs.
According to the General Department of Vietnam Customs’ opinion, with regard to imported ships which the importer himself operates to Vietnam, all costs for transporting the ships from exporting checkpoint to the first importing checkpoint are operation costs, and therefore they must be added to taxable value.
CV2172_23042018TCHQ[VLO].pdf (English translation)
Criteria for urban classification
Resolution No. 1210/2016/UBTVQH13 dated May 25th, 2016 of the National Assembly Standing Committee on urban classification
This Resolution provides for criteria, standards for urban classification and competence to, procedures for reorganization of a class of a city.
Accordingly, the urban classification shall base on 5 criteria: (1) Position, functions, roles, structure and socio-economic growth level; (2) The size of population; (3) The density of population; (4) The rate of non-agricultural workers; (5) Level of its urban infrastructure, architectural and landscaping development
Regarding authority to grant an urban classification decision, the Prime Minister shall have authority to grant the decision on recognition of special-class, class-I and class-II cities; The Ministry of Construction shall be accorded authority to grant the decision on recognition of class-III and class-IV cities; Chairman of the provincial People’s Committee shall be accorded authority to grant the decision on recognition of class-V cities.
Depending on the satisfaction of criteria, centrally-controlled municipalities shall be classified into the special-class or class-I city; Provincially-controlled cities or municipality-controlled cities shall be classified into the class-I, class-II or class-III city; Towns shall be classified into the class-III or class-IV city; Townships shall be classified according to the class-IV or class-V city.
This Resolution takes effect from the date of signing.
NQ1210_25052016UBTVQH[EN].pdf (English translation)
Real estates trading
Regarding VAT upon transfer of land use right
Official letter No. 9543/CT-TTHT dated March 13th, 2018 of the Department of Taxation of Ha Noi city regarding tax policy – related answer
In case a company which trades in infrastructure transfers land use right and assets on the land, it has to make invoice, declare and pay value added tax (VAT) and enterprise income tax (EIT).
In which, VAT shall be paid at the tax rate of 10% while land price is subtracted from taxable revenue according to Clause 10 Article 7 of Circular No. 219/2013/TT-BTC .
The payable EIT shall be paid according to Article 17 of Circular No. 78/2014/TT-BTC .
CV9543_13032018CTHN[VLO].pdf (English translation)
Guidelines on employment, salary and bonus in companies of which more than 50% of charter capital is held by the State
Circular No. 28/2016/TT-BLDTBXH date September 1st, 2016 of the Ministry of Labor, Invalids and Social Affairs providing guidance on implementation of regulations on labor, salary, compensation and bonus for companies whose shares or contributed capital portions are predominantly owned by the State
This Circular provides guidance on implementation of regulations regarding labor, salary, compensation and bonus amounts based on which the state capital representative is authorized to participate in and vote in the Management Board’s meeting or Shareholders' general meeting of joint-stock companies of which more than 50% of charter capital is held by the State, or in the Members Board's meeting of limited liability companies with at least two members which have the state contributed capital making up more than 50% of their charter capital as prescribed by the Government’s Decree No. 53/2016/ND-CP
This Circular takes effect from October 15th, 2016.
TT28_01092016BLDTBXH[EN].pdf (English translation)
New list of occupational diseases covered by social insurance
Circular No. 15/2016/TT-BYT dated May 15th, 2016 of the Ministry of Health on regulations on occupational diseases covered by social insurance
This Circular is to replace new list of occupational diseases covered by social insurance and guidelines and guidelines for diagnosis and examination.
This Circular takes effect from July 1st, 2016
To replace Joint Circular No. 08/TTLB/BLDTBXH-TLDLD dated May 19th, 1976; Joint Circular No. 29/TTLB/BLDTBXH-TLDLD dated December 25th, 1991; Decision No. 167/BYT-QD dated February 4th, 1997; Decision No. 27/2006/QD-BYT dated September 21st, 2006; Circular No. 42/2011/TT-BYT dated November 30th, 2011; Circular No. 36/2014/TT-BYT dated November 14th, 2014; Table of 3 bodily injury rates due to occupational diseases specified in Circular No. 28/2013/TTLT-BYT-BLDTBXH dated September 27th, 2013; Sections V and VII of Joint Circular No. 08/1998/TTLT-BYT-BLDTBXH dated April 20th, 1998.
TT15_15052016BYT[ENGLISH].pdf (English translation)
New fines levels imposed on administrative violations against regulations on statistics
Decree No. 95/2016/ND-CP dated July 1st, 2016 of the Government on penalties for administrative violations against regulations on statistics
This Decree provides for fine levels imposed on violations against regulations on statistics, including: statistical surveys; statistical reports; use of statistical database; publication of statistical information and retention of statistical documents.
This Decree takes effect from July 1st, 2016 and replaced Decree No. 79/2013/ND-CP dated July 19th, 2013.
ND95_01072016CP[ENGLISH].pdf (English translation)
Requirements for opening dedicated aerodromes
Decree No. 42/2016/ND-CP dated May 15th, 2016 of the Government on requirements and procedures for opening and closing dedicated aerodromes
“Dedicated aerodrome” is an area of flat ground, open water or construction works serving the operation of aircrafts, seaplanes and helicopters for the purposes of general aviation operation or carriage of passengers, baggage, cargo and parcels other than public carriage.
A dedicated aerodrome is only opened if these conditions are met:
a) The aerodrome shall ensure the strategies for national security and socio-economic development;
b) The aerodrome shall be suitable for the development planning of transport and social and urban infrastructure;
c) The personnel shall have necessary technical qualifications to operate the dedicated aerodrome;
d) The aerodrome shall comply with regulations of law on management of OCH, land, environment, water surface, sea surface, airspace, prohibited areas and restricted areas;
dd) The aerodrome owner shall have the certificate and the registration certificate of eligibility for dedicated aerodrome operations for the aerodrome required to be open to operate regular commercial flights.
This Decree takes effect from July 1st, 2016.
ND42_15052016CP[ENGLISH].pdf (English translation)
Technical regulation on domestic solid waste incinerator
National technical regulation QCVN 61-MT:2016/BTNMT dated March 10th, 2016 of the Ministry of Natural Resources and Environment on domestic solid waste incinerator
This Regulation provides technical requirements for domestic solid waste incinerators and maximum allowable values of parameters of pollutants in emissions of domestic solid waste incinerators.
This Regulation is promulgated together with Circular No. 03/2016/TT-BTNMT dated March 10th, 2016, which takes effect from May 1st, 2016.
QCVN61-MT_10032016BTNMT[EN].pdf (English translation)
Announcement of seaport waters in Ba Ria – Vung Tau Province
Circular No. 57/2015/TT-BGTVT dated October 19th, 2015 of the Ministry of Transport announcement of seaport waters in Ba Ria – Vung Tau Province and areas under the management of Vung Tau Maritime Administration
According to this Circular, Seaport waters in Ba Ria – Vung Tau Province include the following waters:
1. Vung Tau seaport waters.
2. Offshore oil port waters of Bach Ho Oilfield.
3. Offshore oil port waters of Rong Oilfield.
4. Offshore oil port waters of Dai Hung Oilfield.
5. Offshore oil port waters of Rang Dong Oilfield.
6. Offshore oil port waters of Rong Doi and Rong Doi Tay Oilfields.
7. Offshore oil port waters of Te Giac Trang Oilfield.
8. Offshore oil port waters of Chim Sao Oilfield.
9. Offshore oil port waters of Lan Tay Oilfield.
10. Offshore oil port waters of Bien Dong Oilfield.
This Circular takes effect from January 1st, 2016 and abolishes Decision No. 46/2007/QD-BGTVT dated September 5th, 2007.