Vietlaw Weekly Newsletter No. 361
Guidelines on procedures for lawsuit petition in terms of settlement of non-performing loans
Resolution No. 03/2018/NQ-HDTP dated May 15th, 2018 of the Council of Judges of the Supreme People’s Court on guidelines for implementation of certain regulations in settlement of dispute over settlement of non-performing loans, collateral associated wtih non-performing loans at People’s Court
This Resolution provides guidelines for reduced procedures; submission and acceptance of lawsuit petition; authorization of filing a lawsuit or participating in legal proceedings; assumption of litigation rights and obligations and settlement of collateral during the court settles disputes over non-performing loans (NPL) of banks.
Accordingly, court shall apply reduced procedures to a dispute over obligation to transfer collateral or dispute over right to sell collateral associated with NPL if it meets conditions as prescribed in Clause 1 Article 8 of Resolution No. 42/2017/QH14 and guidelines provided in this Resolution.
Form and content of a lawsuit petition are regulated in Clauses 1, 2, 3 and 4 Article 189 of the Civil Procedure Code, Form No. 23-DS issued together with Resolution No. 01/2017/NQ-HDTP and the guidelines provided in Article 6 of this Resolution.
Especially, according to Article 7 of this Resolution, The purchaser of a NPL or a debt incurred from a NPL of a bank shall assume litigation rights and obligations from the seller.
In the event that a collateral associated with NPL is an asset of enterprise against which a request for initiation of its bankruptcy process is accepted by a court and during such a process, the bank or bad debt purchaser is not entitled to seize the collateral. The seizure of collateral in such circumstance shall be done in accordance with the Law on Bankruptcy.
However, in the event that a collateral associated with NPL is an asset of a third party but the secured party is an enterprise against which a request for initiation of its bankruptcy process is accepted by a court and during such a process, the bank or bad debt purchaser is entitled to seize the collateral and take actions as per the law or requests the competent court to settle it during the bankruptcy process as per the law.
This Resolution comes into force from July 1st, 2018 to expiry date of Resolution No. 42/2017/QH14 dated June 21st, 2017.
NQ03_15052018HDTP[ENGLISH].pdf (English translation)
Culture - Sports
Lists of international soccer matches/tournaments permissible for betting in 2018
Decision No. 1064/QD-BVHTTDL dated March 28th, 2018 of the Ministry of Culture, Sports and Tourism on announcement of lists of international soccer matches, tournaments selected to be used as the basis for betting business in 2018 (stage 1)
This Decision is to promulgate 2 Lists, including:
1. The List of international soccer matches permissible for betting in 2018 (Annex I)
2.The List of international soccer tournaments permissible for betting in 2018 (Annex II)
However, the international soccer matches /tournaments included in the aforesaid Lists shall not be permissible for betting if Vietnam national football teams or Vietnam's football clubs attend to such matches /tournaments.
This Decision takes effect from the date of its signing.
QD1064_28032018BVHTTDL[VLO].pdf (English translation)
New regulations on establishment of trade promotion representative offices
Decree No. 28/2018/ND-CP dated March 1st, 2018 of the Government on elaboration of the Law on Foreign Trade management regarding some measures for foreign trade development
This Decree regulates in details the development of foreign trade through trade promotion, operation of foreign-based Vietnamese trade promotion organizations and operation of Vietnam-based foreign trade promotion organizations.
Similar to the current regulations, foreign trade promotion organizations (except for foreign traders) must establish representative offices if they wish to carry out trade promotion activities in Vietnam.
Requirements for establishment of representative offices in Vietnam of foreign trade promotion organizations are basically similar to the earlier requirements. However, under this Decree, they must also register personnel with a licensing authority. Under the earlier regulations, they are only required to register heads of the representative offices (Article 24).
In addition, this Decree also supplements cases in which the application for establishment of representative offices in Vietnam is rejected. Accordingly, the application for establishment of a representative office in Vietnam of any foreign trade promotion organizations that are on the United Nations Security Council sanctions list shall be rejected (Article 26).
Cases in which the representative office establishment license is revoked is also specified in Article 33, such as: The representative office fails to officially come into operation within 06 months or has shut down its operation for 06 consecutive months without notifying the licensing authority or violates Vietnam’s labor laws so seriously that it faces criminal charges.
This Decree takes effect from the date of signing and replaces Decree No. 100/2011/ND-CP dated October 28th, 2011.
ND28_01032018CP[ENGLISH].pdf (English translation)
Tax of Contractor
Regarding withholding tax on compensation for foreign contractor
Official letter No. 37304/CT-TTHT dated June 4th, 2018 of the Department of Taxation of Ha Noi city regarding tax obligations relating to payments and compensation for foreign contractor
According to Official letter, in case an enterprise in Vietnam signs a contract (e.g. contract on sale of shares) with a foreign party, then, because of some reasons, the contract cannot be performed and the Vietnamese party has to refund the amount of money already received, this amount is not considered income and therefore, it shall not be subject to withholding tax.
However, if there arises compensation upon the cancellation of the contract, the compensation shall be subject to withholding tax (refer to Official letter No. 11503/CT-TTHT dated March 26th, 2018). At the same time, because this amount of compensation is not corresponding to revenue for calculation of enterprise income tax (it does not create any revenue), it shall not be accounted into reasonable expenses as regulated at Article 4 of Circular No. 96/2015/TT-BTC .
CV37304_04062018CTHN[VLO].pdf (English translation)
Reserve requirement ratios applicable to banks from June 2018
Decision No. 1158/QD-NHNN dated May 29th, 2018 of the State Bank of Vietnam (SBV) on reserve requirement ratios applicable to credit institutions and foreign banks’ branches
Under this Decision, the reserve requirement ratios applicable to commercial banks and foreign banks’ branches are still basically similar to the old ratios, in particular:
- 3% for demand deposits and term deposits of less than 12 months in VND.
- 1% for term deposits of at least 12 month in VND.
- 8% for demand deposits and term deposits of less than 12 months in foreign currencies.
- 6% for term deposits of at least 12 months in foreign currencies.
- 1% for all deposits of foreign CIs in foreign currencies
For People’s credit funds and micro-finance institutions, the reserve requirement ratio applicable to all deposits in VND and foreign currency is reduced to 0%.
This Decision takes effect from the required reserve maintenance period of June 2018.
QD1158_29052018NHNN[VLO].pdf (English translation)
Certificate of Origin (C/O)
Issue relating to letter of verification of C/O’s validity
Official letter No. 670/GSQL-GQ4 dated March 9th, 2018 of General Department of Vietnam Customs regarding issue relating to certificate of origin (C/O) form E
According to the regulations at the ASEAN – China Free Trade Agreements, the letter of verification of C/O’s validity shall be accepted only when it is directly sent from the C/O issuer of the exporting country to customs authority of the importing country.
If such verification letter is sent via an enterprise in order for the enterprise to submit to customs authority, it shall not be accepted.
CV670_09032018TCHQ[VLO].pdf (English translation)
Between January 1st, 2017 – March 15th, 2018: Projects on manufacture of key mechanical products are not entitled to import duty refund
Official letter No. 6833/BTC-CST dated June 11th, 2018 of the Ministry of Finance regarding promulgation of document guiding Decision No. 319/QD-TTg dated March 15th, 2018
According to the Ministry of Finance’s opinions, currently, there is no legal ground to consider refunding import duty on materials serving projects on manufacture of key mechanical products during January 1st, 2017 to before March 15th, 2018 (the effective date of Decision No. 319/QD-TTg).
Under Decree No. 122/2016/ND-CP (applicable from September 1st, 2016 to December 31st, 2017) and Decree No. 125/2017/ND-CP (applicable from January 1st, 2018), supplies, equipment imported for serving manufacture of key mechanical products and serving projects on manufacture of key mechanical products under regulations of the Prime Minister are be entitled to apply the preferential import duty rate of 0%. However, the List of key mechanical products and list of investment projects on manufacture of key mechanical products which are regulated in Decision No. 10/2009/QD-TTg were only applied from 2009 to 2015 and extended to December 31st, 2016. From January 1st, 2017 up to now, there is no document to further extend or replace Decision No. 10/2009/QD-TTg . As the result, there is no ground to determine projects on manufacture of key mechanical products eligible to apply preferential import duty rate of 0% and entitled to receive refund of the already - paid import duty from January 1st, 2017 to March 15th, 2018.
CV6833_11062018BTC[VLO].pdf (English translation)
Cases in which declared value is suspicious
Official letter No. 2803/TXNK-TGHQ dated May 31st, 2018 of the General Department of Vietnam Customs regarding customs value
According to Article 25 of Circular No. 38/2015/TT-BTC , customs authorities shall inspect the customs value declared by enterprises on the customs declarations to identify cases in which the declared value is suspicious:
The cases in which the declared value is suspicious are specified in Clause 2 Article 55 of the Procedure provided in Decision No. 1966/QD-TCHQ dated July 10th, 2015, including
1. With regard to exported goods
- The declared value is lower than value of identical or similar goods in the List of goods with value risks.
- The declared value is lower than value of identical or similar goods which have results of post-customs inspection or results of investigation updated on the system.
- The declared value is lower than the lowest customs value of identical or similar goods to which the export duty rate higher than 0% is applied in the value data base.
2. With regard to imported goods
- The declared value is lower than value of identical or similar goods in the List of goods with value risks.
- The declared value is lower than the lowest customs value of identical or similar goods determined by customs authorities or goods have been granted customs clearance according to declared value in value data base.
- The declared value is lower than or equal to declared value of components synchronous with the same imported goods.
- The declared value is lower than the value collected by customs authorities.
- The declared value after the subtraction of discounts is lower than value of identical or similar goods.
CV2803_31052018TCHQ[VLO].pdf (English translation)
Export processing enterprises
Regarding VAT on services provided for EPEs
Official letter No. 1992/TCT-CS dated May 24th, 2018 of the General Department of Taxation regarding value added tax (VAT) policy applicable to the provision of services for export processing enterprises (EPEs)
According to Article 9 of Circular No. 219/2013/TT-BTC , services provided for EPEs shall be entitled to 0% VAT only when they meet the condition “consumed within the EPEs”.
Accordingly, in case a company provides an EPE with these services: image promotion, PR about events, control of information of the EPE on the media in Vietnam, these services are consumed outside the EPE, they are not eligible to apply 0% VAT.
CV1992_24052018TCT[VLO].pdf (English translation)
Regarding VAT on goods sold and purchased between non-tariff zones
Official letter No. 81802/CT-TTHT dated December 21st, 2017 of the Department of Taxation of Ha Noi city regarding refund of value added tax (VAT)
According to Clause 20 Article 4 of Circular No. 219/2013/TT-BTC , goods, services that are sold and purchased between non-tariff zones are not subject to VAT
Non-tariff zones include: processing and exporting zones, export processing enterprises, bonded zones, bonded warehouses, special commercial and economic zones, commercial-industrial zones and other economic zones established and enjoying preferential taxes similarly to non-tariff zones under the Prime Minister's Decisions.
CV81802_21122017CTHN[VLO].pdf (English translation)
Import and export duties
Corrections to technical negligence at 5 import Tariffs
Official letter No. 225/CP-KTTH dated June 6th, 2018 of the Government regarding corrections to import Tariffs
The document is to correct technical negligence at 5 Tariffs below:
1. MFN Tariff 2018 (Annex II of the Import Tariff) issued together with Decree No. 125/2017/ND-CP , relating to HS codes 9821.26.31, 9849.28.40, 9821.24.59.
2. VN-EAEU FTA Tariff applicable to 2018-2022 period issued together with Decree No. 150/2017/ND-CP , relating to HS code 3916.90.80.
3. VCFTA Tariff applicable to 2018-2020 period issued together with Decree No. 154/2017/ND-CP, relating to HS codes 3004.60.90, 4011.80.11, 8481.80.85.
4. VJEPA Tariff applicable to 2018-2023 period issued together with Decree No. 155/2017/ND-CP, relating to HS codes 3916.90, 4011.80, 4011.90, 4421.91, 5112.11, 8409.99.
5. AANZFTA Tariff applicable to 2018-2022 period (List of goods eligible for out-of-quota import tariff rates) issued together with Decree No. 158/2017/ND-CP, relating to HS code 1701.99.
Regarding measurement of quantity and customs value of imported goods
Official letter No. 780/TCHQ-TXNK dated February 7th, 2018 of the General Department of Vietnam Customs regarding measurement of quantity and customs value of imported goods
According to Article 5 of Circular No. 39/2015/TT-BTC , customs value of imported goods is the buying price of goods at the first importing checkpoint, determined by applying successively 6 methods of customs valuation.
This provision is uniformly applied to all types of imports regardless of raw materials, semi-products or finished products.
In addition, according to Clause 8 Article 17 of Circular No. 39/2015/TT-BTC , with regard the case in which the quantity of actual imported goods is different from that specified in the commercial invoice and contract due to the characteristics of the goods or conditions of delivery, taxable value shall be still determined according to the buying price in the commercial invoice and the sale contract.
CV780_07022018TCHQ[VLO].pdf (English translation)
Cost of "production methods" from parent company outside Vietnam shall not be included in deductible expenses
Dispatch No. 231/TCT-CS dated January 15th, 2018 of the General Department of Taxation on corporate income tax policy
According to this Official letter, in case A Vietnamese subsidiary company fails to provide documents proving that the parent company outside Vietnam has industrial property right and intellectual property right to the detailed instructional documents (which contain technical information, production methods, etc.) issued by the authorities of the host country to manufacture products in Vietnam, the subsidiary company in Vietnam is not allowed to include the payments made to the the parent company in deductible expenses.
CV231_15012018TCT[ENGLISH].pdf (English translation)
Investment rates in construction of municipal solid waste treatment facility shall be increased
Decision No. 1354/QD-BXD dated December 29th, 2017 of the Ministry of Construction on announcement of investment rates and standard costs of treatment of municipal solid waste
The investment rate means the rate of necessary costs of investment in construction of a new municipal solid waste (MSW) treatment facility determined for a MSW treatment capacity unit (ton/day) according to design of each type of treatment technology and in conformity with technical regulations/ standards for construction as well as applicable technical regulations on environment.
Investment rates are the basis for preliminarily determining total investment and managing costs during the period from the preparation to the inauguration of the MSW treatment facility.
Investment rates are determined according to market prices of fuels, energy, supplies and labor, and policies applicable in Quarter II, 2017 and increased in comparison with earlier investment rates
This Decision takes effect from February 1st, 2018 and replaces Decision No. 322/QD-BXD dated April 6th, 2012.
QD1354_29122017BXD[ENGLISH].pdf (English translation)
Accounting for covered warrants
Circular No. 23/2018/TT-BTC dated March 12th, 2018 of the Ministry of Finance on accounting for covered warrants of securities companies being issuers
This Circular provides guidance on bookkeeping and preparation of financial statements when economic/ financial transactions in covered warrants occur, such as:
- Providing margins at a depository bank for securing payment obligations for the offering of warrants;
- Distributing warrants to investors on the primary market;
-Conducting transactions in warrants (buy/ sell) for the market-making purpose;
- Warrants are marked to market;
- Warrants’ maturity;
Accordingly, upon preparation of financial statements relating to covered warrants, enterprises shall still use the form of financial statement used for securities companies issued together with Circular No. 210/2014/TT-BTC (which has been amended, supplemented at Circular No. 334/2016/TT-BTC), but it is required to add Credit balance of account 329 - Payable warrants to Item 6 - Payables for trading securities in the current liabilities part of Entry 318 of the balance sheet.
In addition, Item “Warrants” (Debit balance of account 018) – Entry 014 is added to Part A. Assets of the securities company and those managed according to firm commitment.
Income statement, cash flow statement, notes to financial statements are also supplemented some contents. The details are provided in Chapter III of this Circular.
This Circular takes effect from April 27th, 2018.
TT23_12032018BTC[ENGLISH].pdf (English translation)
New regulations on determination of risks in securities trading
Circular No. 87/2017/TT-BTC dated August 15th, 2017 of the Ministry of Finance on prudential indicators and actions against securities-trading organizations that fail to achieve prudential indicators
In comparison with the earlier regulations, this Circular amends to the way to determine prudential indicators of securities-trading organizations, such as: liquid capital, risk values
In addition, according to the new regulations, the State Securities Commission shall issue a decision to issue warning to a securities-trading organization if the liquid capital ratio reaches from 150% to below 180%. When the liquid capital ratio reaches at least 180% for three consecutive months, the securities-trading organization may have the warning lifted.
TT87_15082017BTC[ENGLISH].pdf (English translation)
Regarding refund of duty on re-exported goods
Official letter No. 2261/TXNK-CST dated May 8th, 2018 of the General Department of Vietnam Customs regarding import duty, value added tax (VAT)
According to Article 19 of the Law on import and export duties No. 107/2016/QH13 and Clause 1 Article 34 of Decree No. 134/2016/ND-CP, if goods on which import duty has been paid but then the goods have to be re-exported abroad or re-exported to a non-tariff zone, the duty refund shall be considered.
However, in order to be entitled to receive import duty refund, re-exported goods must be new, have not been used or undergone working or processing.
According to Clause 13 Article 1 of Law No. 21/2012/QH13, with regard to refundable import duty, a company may reserve for 10 years and may settle according to these forms: have the excess tax, late payment interest, and fines offset against the outstanding amounts, including the offset among the taxes; or offset against the tax, late payment interest, fines payable to the next payment; or receive the refund.
CV2261_08052018TCHQ[VLO].pdf (English translation)
Pharmaceutical - Cosmetics
Regarding additional submission of use instruction insert in Vietnamese with regard to vaccines and biological products which have been registered for circulation in Vietnam
Official letter No. 1662/GSQL-GQ1 dated June 6th, 2018 of the General Department of Vietnam Customs regarding import of consignments of vaccines and biological products which have the certificate of registration for circulation in Vietnam
According to this Official letter, the General Department of Vietnam Customs agreed to allow enterprises to additionally submit use instruction insert in Vietnamese after the customs clearance with regard to consignments of vaccines and biological products which have the certificate of registration for circulation in Vietnam.
CV1662_06062018TCHQ[VLO].pdf (English translation)
Regarding the Government’s regular meeting - March 2018
Resolution No. 23/NQ-CP dated April 8th, 2018 of the Government on the Government’s regular meeting - March 2018
At the regular meeting in March 2018, the Government discussed these issues:
- The socio-economic situation in March and the first quarter of 2018;
- The report on additional assessment of the implementation results of the socioeconomic development plan in 2017 and the implementation of the socio-economic development plan in 2018;
- The report on additional assessment of the implementation of the state budget in 2017, the implementation of the state budget estimates in 2018;
- The Reports on state budget settlement of 2016;
The draft Resolution of the Government on special mechanisms and policies to support Ninh Thuan province on socio-economic development;
- Investment incentives for NIDEC Group in Hoa Lac Hi-Tech Park;
- The draft Law amending and supplementing a number of articles of the Law on Construction, the Law on Housing, the Law on Urban Planning, the Law on Real Estate Business;
- The draft Law amending and supplementing a number of articles of the Law on Public Investment;
- The draft Law on the People's Police (revised);
- The draft Law amending and supplementing a number of laws, which are related to plannings, including the Law on Chemicals, the Law on economical and efficient use of energy, the Law on Electricity, the Law on Pharmacy, the Law on Tobacco Control, the Law on Food Safety, the Law on Notarization, the Law on Children, the Law on Science and Technology, and the Law on Investment.
NQ23_08042018CP[EN].pdf (English translation)
Regarding the Government’s regular meeting - February 2018
Resolution No. 18/NQ-CP dated March 8th, 2018 of the Government on the Government’s regular meeting - February 2018
Under this Resolution, at the regular meeting in February 2018, the Government discussed these issues:
- The draft Law amending and supplementing to a number of articles of the Law on Special Amnesty;
- The draft Law on Crops and the draft Law on Livestock Production;
- The draft Law on Urban Development Management;
- The draft Law on Population;
- The socio-economic situation in February and the first two months of 2018;
- The implementation of Resolution No. 01/NQ-CP on major tasks and solutions guiding the implementation of the socio-economic development plan and State budget plan in 2018
NQ18_08032018CP[EN].pdf (English translation)
Regulations on management, use and operation of maritime infrastructure
Decree No. 43/2018/ND-CP dated March 12th, 2018 of the Government on management, use and operation of maritime infrastructure
This Decree sets forth management, use, operation and maintenance of maritime infrastructure invested and managed by the state, including port terminals, floating terminals, traffic, communications, electricity and water system, etc.
This Decree takes effect from March 12th, 2018 and replaces the contents regulated in Section 5 o Decree No. 58/2017/ND-CP dated May 10th, 2017.
ND43_12032018CP[ENGLISH].pdf (English translation)
Form of annual personal income tax statement
Form No. 05/KK-TNCN dated November 6th, 2013 of the Ministry of Finance regarding personal income tax statement
This form of personal income tax statement is applicable to organizations, individuals that pay taxable incomes from salary, wage to individuals
This form is issued together with Circular No. 156/2013/TT-BTC dated November 6th, 2013 of the Ministry of Finance which takes effect December 20th, 2013.