Vietlaw Weekly Newsletter No. 362
Reply to some issues relating to the regulations on food safety inspection for imported foods
Official letter No. 3322/BTC-TCHQ dated March 23rd, 2018 of the Ministry of Finance regarding issues relating to the implementation of the Government's Decree No. 15/2018/ND-CP
The document is to reply to some issues relating to the new regulations on food safety inspection as regulated at Decree No. 15/2018/ND-CP .
Accordingly, in order to be exempt from the food safety inspection for imported foods according to Clause 1 Article 13, enterprises have to submit a copy of the certificate of registered product declaration, unless it has been updated on the national single-window portal.
Regarding lists of agencies that are appointed by Ministries to conduct the food safety inspection for imported foods, it is temporarily carried out according to the lists of appointed agencies regulated in Decree No. 38/2012/ND-CP until the Ministries announce new lists.
During waiting for Ministries’ promulgation of new lists of goods subject to the food safety inspection according to Decree No. 15/2018/ND-CP , the applicable lists issued together with Decree No. 38/2012/ND-CP shall be further applied. With regard to newly – added goods subject to the food safety inspection, it is required to base on the List of imports and exports issued together with Circular No. 65/2017/TT-BTC in order to impose HS codes and apply management policies.
All raw materials imported for serving internal production of enterprises shall be exempt from food safety inspection and publication of conformity with food safety regulations, regardless whether the produced products are used in Vietnam or outside Vietnam.
CV3322_23032018BTC[VLO].pdf (English translation)
From July 1st, 2018: Social insurance premium shall be increased based on new basic wage level
Announcement No. 1228/TB-BHXH dated June 18th, 2018 of Ho Chi Minh city Social Insurance Agency regarding adjustment to the basic wage level
From July 1st, 2018, the basic wage level shall be increased from VND 1,300,000 per month to VND 1,390,000 per month (Decree No. 72/2018/ND-CP). As the result, insurance premiums which are based on the basic wage level shall be also increased.
1. Social insurance (SI), health insurance (HI) and occupational accident and disease insurance premiums of cadres, public officials, public employees and employees whose salary scale, payroll are decided by the state.
2. HI premiums which are paid by the State budget.
3. HI premiums of the entities whose part of HI premiums is paid by the State budget (students, near-poor households).
4. Household HI premiums.
The maximum pay rate (20 times higher than the basic wage level) on which social insurance premium is based shall be also increased from VND 26 million to VND 27.8 million.
TB1228_18062018BHXHHCM[VLO].pdf (English translation)
Certificate of Origin (C/O)
Regarding minor difference relating to signature on C/O
Official letter No. 1728/GSQL-GQ4 dated June 11th, 2018 of the General Department of Vietnam Customs regarding issue relating to certificate or origin (C/O)
According to Article 26 of Circular No. 38/2015/TT-BTC (currently, it is Article 15 of Circular No. 38/2018/TT-BTC ), the "minor difference between the signature on the C/O and the model signature" is considered not affecting the C/O’s validity.
Accordingly, in case the signature on the C/O has a minor difference in comparison with the model signature, such C/O is still accepted.
CV1728_11062018TCHQ[VLO].pdf (English translation)
HS code on C/O may be different from that determined by customs office
Official letter No. 1005/GSQL-GQ4 dated April 9th, 2018 of the Customs Department of Vietnam Customs regarding issues relating to C/O form E
According to this Official letter, HS codes of imports are determined by customs authority of importing country as the basis for calculation of tax and performance of goods management policies.
Accordingly, in case HS code on C/O is different from that determined by customs office but there are grounds to determine that the imports on the C/O are the imports as declared, it shall consider accepting the C/O’s validity.
CV1005_09042018TCHQ[VLO].pdf (English translation)
Regarding requirement upon import of building materials
Official letter No. 533/BXD-VLXD dated March 16th, 2018 of the Ministry of Construction regarding implementation of Circular No. 10/2017/TT-BXD dated September 29th, 2017
According to the regulations at point c Clause 5 Article 7 of Circular No. 10/2017/TT-BXD, upon import of building materials, enterprises are compulsory to submit the application for registration of certification of regulation conformity to customs offices in order to carry out procedures for clearance of goods.
On such application for registration, it is required to bear the certification of certification bodies designated by the Ministry of Construction with full information about name of product; number; quantity; time of import; sale contract; invoice, bill of lading, manifest; form of assessment.
Regarding the list of regulation conformity certification bodies appointed by the Ministry of Construction, it has been published on the Ministry of Construction's website.
CV533_16032018BXD[VLO].pdf (English translation)
Regarding duty on goods which are used for export production have to be destroyed
Official letter No. 1593/TXNK-CST dated April 5th, 2018 of the General Department of Vietnam Customs regarding goods which are used for export production have to be destroyed
Relating to tax policy for goods which are used for export production have to be destroyed, the General Department of Vietnam Customs requests to carry out according to the guidelines provided in Official letter No. 8127/TCHQ-TXNK dated December 13th, 2017.
At the aforesaid Official letter No. 8127/TCHQ-TXNK, the General Department of Vietnam Customs assumes that goods are used for export production have to be destroyed shall be still subject to the retroactive collection of import duty on materials because the Law in import and export duties No. 107/2016/QH13 and Decree No. 134/2016/ND-CP do not regulate the exemption from duty with regard to this case.
In addition, VAT shall be also retroactively paid if the goods are still useful and consumed in Vietnam’s market after they are destroyed.
CV1593_05042018TCHQ[VLO].pdf (English translation)
Regarding EIT incentives for projects on manufacture of industrial products supporting the automobile assembly industry
Official letter No. 10579/CT-TTHT dated March 20th, 2018 of the Department of Taxation of Ha Noi city regarding enterprise income tax (EIT) incentives for project of expansion investment
In case a company executes a project of investment expansion in order to manufacture industrial products supporting the automobile assembly industry in an urban district of a special-grade city, the project shall be entitled to EIT incentives under the conditions for fields eligible for incentives if there are certification of the local authorities and cost of fixed assets increases by at least 20% of the cost before investment (Article 10, Article 11, Article 12 of Circular No. 96/2015/TT-BTC).
However, this project shall not be entitled to enjoy tax incentives under the conditions for localities because the “urban district of a special-grade city” is not eligible for incentives (Clause 4 Article 10 of Circular No. 96/2015/TT-BTC).
CV10579_20032018CTHN[VLO].pdf (English translation)
Export processing enterprises
Regarding VAT rate applicable to the activity of works design for EPE
Official letter No. 27234/CT-TTHT dated May 7th, 2018 of the Department of Taxation of Ha Noi city regarding value added tax (VAT) rate
According to Article 9 of Circular No. 219/2013/TT-BTC , activities of works construction, installment conducted in non-tariff zones shall be entitled to apply 0% VAT.
Under this Official letter, in case a company signs a contract on works design and construction with an export processing enterprise (EPE), if this is a lump-sum contract with a fixed price, the whole contract (also including the design part) shall be eligible to apply 0% VAT.
However, it is required to meet the conditions regulated in Clause 2 Article 9, Clause 2 Article 16 of Circular 219/2013/TT-BTC .
CV27234_07052018CTHN[VLO].pdf (English translation)
Conditions for import of empty milk cans for introduction of products
Official letter No. 1943/TCHQ-GSQL dated April 11th, 2018 of the General Department of Vietnam Customs regarding procedures for import of Ensure milk cans for the purpose of introduction of products
According to the General Department of Vietnam Customs, the item “milk can” is not the subject banned from import, import suspension or required license upon the import under Decree No. 187/2013/ND-CP .
Therefore, the General Department of Vietnam Customs will allow enterprises to import milk cans (without attached food) for the purpose of introduction of new products.
However, enterprises must have written commitments with customs authorities where the goods are going to be imported regarding the recovery and destruction of the whole the aforesaid product (witnessed by environmental agencies , customs offices) after the duration of production introduction expires to avoid trade fraud.
In addition, aiming to prevent the production of fake, counterfeit goods to be sold in the inland market, it is required to clearly print purposes for display, product introduction on the packages.
CV1943_11042018TCHQ[VLO].pdf (English translation)
List of 44 countries allowable to export foods derived from plants to Vietnam
Official letter No. 906/BVTV-ATTPMT dated April 5th, 2018 of the Ministry of Agriculture and Rural Development regarding food safety inspection with regard to imported foods under Decree No. 15/2018/ND-CP
The document is to announce the List of 44 nations, territories allowable to export products derived from plants to Vietnam. The details are provided in the List attached with this Official letter.
This List has been updated and posted on the Plant Protection Department's website at the address www.ppd.gov.vn.
According to Article 14 of Decree No. 15/2018/ND-CP , imported plant products which are used for processing foods must satisfy the requirement: “Their country of origin is a country or territory that has a food safety control system satisfying Vietnam’s regulations and included in the list of registered countries and territories that export foods derived from animals, plans and aquatic animals to Vietnam”.
CV906_05042018BNN[VLO].pdf (English translation)
Regarding PIT incurred by foreign workers who are non-residents
Official letter No. 12436/CT-TTHT dated March 29th, 2018 of the Department of Taxation Ha Noi city regarding personal income tax (PIT) incurred by foreign personel
According to Article 18 of Circular No. 111/2013/TT-BTC , foreigners who are non-residents in Vietnam shall be subject to 20% PIT.
Accordingly, upon paying salaries to foreigner employees who are non-residents in Vietnam, the company in Vietnam shall withhold PIT at the tax rate of 2%.
If the company pays net salary (tax – exclusive salary) to the foreigners, it must convert such salary into tax – inclusive income in order to determine PIT to be withheld.
CV12436_29032018CTHN[VLO].pdf (English translation)
Regarding deduction of tax already paid outside Vietnam
Official letter No. 9841/CT-TTHT dated March 15th, 2018 of the Department of Taxation of Ha Noi city regarding personal income tax (PIT) policy for a resident who is a Japanese person
According to point e.1 Clause 2 Article 26 of Circular No. 111/2013/TT-BTC , in case a resident earns in come outside Vietnam and PIT on such income has been calculated and paid according overseas regulations, the already – paid PIT shall be deducted from PIT payable in Vietnam.
Under this Official letter, the habitant tax the taxpayer has paid in his/her home country shall be subtracted from PIT payable in Vietnam in accordance with the above regulations.
CV9841_15032018CTHN[VLO].pdf (English translation)
Regarding PIT on house rents and traveling costs paid on behalf of a foreign worker
Official letter No. 9728/CT-TTHT dated March 14th, 2018 of the Department of Taxation of Ha Noi city regarding personal income tax (PIT) incurred by a foreign worker
According to Article 18 of Circular No. 111/2013/TT-BTC , a foreigner who is a non-resident in Vietnam shall be subject to 20% PIT.
Taxable incomes also include airfare, accommodation costs, travelling costs paid by the Vietnamese Company.
CV9728_14032018CTHN[VLO].pdf (English translation)
Land and Housing
Foreigners are not allowed to buy houses of Vietnamese individuals
Official letter No. 66/BXD-QLN dated April 11th, 2018 of the Ministry of Construction regarding housing transactions of foreign individuals
According to Clause 2 Article 76 of Decree No. 99/2015/ND-CP, foreigners that are eligible to own houses in Vietnam are only allowed to sign contracts to buy houses from these entities:
(i) Owners of commercial housing construction projects
(ii) Foreign organizations, individuals who own houses wish to re-sell such houses before the expiration of the ownership period.
As the result, foreigners are not allowed to buy houses from organizations that are not owners of commercial housing construction projects and Vietnamese individuals – in other words, Vietnamese organizations, individuals are not allowed to sell houses to foreigners.
How to determine VAT and export duty upon export of cement products
Official letter No. 3193/BTC-CST dated March 21st, 2018 of the Ministry of Finance regarding value added tax (VAT) and export duty on cement
According to Clause 1 Article 1 of Decree No. 146/2017/ND-CP, in case an enterprise exports cement products which are not mainly processed from natural resources, minerals or they are processed from natural resources, minerals under a closed process and the natural resources, minerals become other products, it shall be entitled to apply 0% VAT.
With regarding to exported cement products that are not eligible to apply 0% VAT according to Clause 1 Article 1 of Decree No. 146/2017/ND-CP, it is required to determine ratio of natural resources, minerals to production price. If total value of natural resources, minerals accounts for at least 51% of production price, they are the subjects not liable to VAT.
Regarding export duty, if the exported cement products belong to the entities specified in Clause 1 Article 1 o Decree No. 146/2017/ND-CP, they do not belong to the heading 211 in the export Tariff issued together with Decree No. 125/2017/ND-CP .
In contrast, if the exported cement products do not belong to the entities specified in Clause 1 Article 1 of Decree No. 146/2017/ND-CP and the ratio of value of natural resources, minerals accounts for at least 51% of production price, they shall be classified into heading 211 in the export Tariff and subject to 5% tax rate.
CV3193_21032018BTC[VLO].pdf (English translation)
Steel and Iron
Guidelines on classification of steel products imported before and after January 1st, 2018
Official letter No. 1375/TCHQ-TXNK dated March 15th, 2018 of the General Department of Vietnam Customs regarding settlement of a request about steel products
Relating to imported steel products, this Official letter provides guidelines on classification as follows:
1. With regard to steel products imported before January 1st, 2018 which meet standards on concrete reinforcement are not used in reinforced concrete components in construction but they are directly put into production, the HS code of "concrete reinforcement" at headings 72.13, 72.14, 72.15 of the preferential import Tariff issued together with Decree No. 122/2016/ND-CP is not applied.
Instead, they are classified into HS code of "other" of the same 6-digit sub-heading of "concrete reinforcement" at headings 72.13, 72.14, 72.15.
2. With regard to steel products imported from January 1st, 2018, they shall be classified, based on the new preferential import Tariff issued together with Decree No. 125/2017/ND-CP . Accordingly, if they meet one of the following standards, they shall be classified into “concrete reinforcement" of headings 72.13, 72.14, 72.15: QCVN 7:2011, JIS G 3109, JIS G 3112, JIS G 3117, GB 1499:1998.
In contrast, if there is the manufacturer’s certificate or the written assessment certifying that the imported steel products do not belong to one of the aforesaid standards, they shall be declared in steel products of “other”.
CV1375_15032018TCHQ[VLO].pdf (English translation)
Tax of Contractor
Costs for capital arrangement shall not be exempt from withholding tax
Official letter No. 11500/CT-TTHT dated March 26th, 2018 of the Department of Taxation of Ha Noi city regarding withholding tax on loan interests
According to this official letter, in case a foreign bank which is eligible for exemption from withholding tax on loan interests generated in Vietnam under decision of the Prime Minister but costs for capital arrangement, commitment charges are separated from the loan interests, it shall be subject to withholding tax.
The Vietnamese party shall be responsible for withholding and paying value added tax (VAT) and enterprise income tax (EIT) on behalf of the bank before making payment.
In which, the payable VAT shall be declared to be deducted if the conditions specified in Article 15 of Circular No. 219/2013/TT-BTC are met.
The payable EIT shall be included in deductible expenses if the amount paid to the foreign bank does not include tax.
CV11500_26032018CTHN[VLO].pdf (English translation)
How to settle overpaid PIT
Official letter No. 2115/TCT-KK dated May 30th, 2018 of the General Department of Taxation regarding settlement of tax declaration after tax inspection, investigation
According to Clause 5 Article 10 of Circular No. 156/2013/TT-BTC , a company may additionally declare to a personal income tax (PIT) declaration dossier which has been undergone inspection if there are errors.
If the company has withheld PIT higher than the prescribed level and has declared, paid the tax differences to tax authority, the overpaid PIT shall be considered for refund.
However, the company shall request the individual, who has the overpaid tax, to directly carry out procedures for tax refund.
CV2115_30052018TCT[VLO].pdf (English translation)
Tax of Contractor
Regarding withholding tax in case of cancellation of contract signed with foreign party
Official letter No. 2638/CT-TTHT dated April 9th, 2018 of the Department of Taxation of Ho Chi Minh city regarding withholding tax
According to Clause 1 Article 1 of Circular No. 103/2014/TT-BTC, in principle, obligation to payment of withholding tax is arisen only when the foreign party does business or earns income in Vietnam.
Accordingly, in case a company in Vietnam goes into partnership with a foreign company in order to provide the construction counseling and supervision services in Vietnam. However, later on, the foreign party agrees to transfer the whole work to the company, terminates the service provision, does not earn income in Vietnam and the Vietnamese party does not pay any amount to the foreign party, it is not required to withhold tax incurred by the foreign contractor in this case.
CV2638_09042018CTHCM[VLO].pdf (English translation)
Civil Servants - Cadres
New regulations on management of public science and technology institutions affiliated to the Ministry of Agriculture and Rural Development
Circular No. 43/2013/TT-BNNPTNT dated October 22nd, 2013 of the Ministry of Agriculture and Rural Development guidance on management of science and technology tasks, financial management of science and technology tasks, and organizational structure of public science and technology institutions affiliated to the Ministry of Agriculture and Rural Development
This Circular does not apply to science and technology tasks performed under Joint Circular No. 66/2012/TTLT-BNNPTNT-BTC-BKHCN dated December 28th, providing guidance on implementation of certain articles of the Prime Minister’s Decision No. 846/QD-TTg dated June 2nd, 2011 on piloting orders for some science and technology products by the Ministry of Agriculture and Rural Development.
This Circular comes into force from December 6th, 2013 and supersedes Circular No. 67/2010/TT-BNNPTNT dated November 17th, 2010 providing guidance on the autonomy of public science and technology institutions affiliated to the Ministry of Agriculture and Rural Development.
TT43_22102013BNN[ENGLISH].pdf (English translation)
Circular No. 18/2014/TT-BTTTT shall be wholly ineffective
Decision no. 823/QD-BTTTT dated May 31st, 2018 of the Ministry of Information and Communications on promulgation of list of legislative documents which are entirely repealed in sectors under the state management by the ministry of information and communications
This Decision is to announce that Circular No. 18/2014/TT-BTTTT dated November 26th, 2014 detailing the implementation of Decree No. 187/2013/ND-CP on grant of license to import radio transmitters and transceivers shall be wholly expired.
This Decision comes into force from the date on which it is signed.
QD823_31052018BTTTT[ENGLISH].pdf (English translation)
Exchange rates for calculation of withholding tax
Official letter No. 11950/CT-TTHT dated March 27th, 2018 of the Department of Taxation of Ha Noi city regarding exchange rates for calculation of withholding tax
According to Clause 4 Article 2 of Circular No. 26/2015/TT-BTC , from January 1st, 2015, exchange rate for conversion of revenue for calculation of withholding tax shall be based on buying exchange rate of the commercial bank where a foreign contractor’s account is opened.
If the foreign contractor does not have a banking account in Vietnam, revenue subject to withholding tax shall be converted according to any of these exchange rates:
- The inter-bank average exchange rate announced by the State Bank of Vietnam during the period between January 1st, 2015 and before January 4th, 2016 (the effective date of Decision No. 2730/QD-NHNN).
- The central rate of VND versus USD announced by the State Bank of Vietnam under Decision No. 2730/QD-NHNN, if transaction is generated from January 4th, 2016.
With regard to revenue in other foreign currencies converted into VND, it is required to use cross rates of VND versus other foreign currencies in order to determine taxable value according to the regulations in Article 3 of the aforesaid Decision No. 2730/QD-NHNN
In case an enterprise has declared, paid withholding tax but then the payable tax amount is increased or reduced because of adjustment to exchange rate for calculation of tax, it is allowed to make a dossier of additional declaration according to Clause 5 Article 10 of Circular No. 156/2013/TT-BTC .