Vietlaw Weekly Newsletter No. 367
Certificate of Origin (C/O)
Guidelines on declaration, submission and inspection of C/O
Circular No. 38/2018/TT-BTC dated April 20th, 2018 of the Ministry of Finance on regulations on identification of origin of imported and exported goods
This Circular provides for the document of prior identification of origin, submission of certificate of origin (C/O), the procedure, inspection, identification and verification of origin of imported and exported goods.
Accordingly, enterprises have to submit C/O to customs authorities when they import goods in any of the following cases:
1. Enterprises wish to enjoy special preferential duty rates (FTA duty rates);
2. Goods which are announced by Vietnam or international organizations to be in a moment of potentially causing harms to social safety, the community's health or environmental sanitation, and must be controlled;
3. Goods which are announced by Vietnam to be currently subject to application of anti-dumping or countervailing duties, safeguard measures, tariff quotas or quantitative restrictions;
4. Goods which are subject to import management regulations provided for by Vietnamese law or bilateral or multilateral agreements;
5. Goods belong to the List of goods specified in Annex II of this Circular (including meat, coal and automobiles).
If C/O is not submitted, goods shall not be entitled to FTA duty rates (case 1) or shall not be granted customs clearance (cases 2, 4 and 5) or shall be subject to anti-dumping or countervailing duties, safeguard measures, tariff quotas (case 3).
For exports, imports exempt from submission of C/O under international agreements, C/O must not be submitted to customs authorities.
The declaration of C/O, time of submission of C/O, time limit for additional submission of C/O are regulated in Article 5, Article 7 of this Circular.
This Circular takes effect from June 5th, 2018.
TT38_20042018BTC[ENGLISH].pdf (English translation)
New regulations provided for industrial parks and economic zones
Decree No. 82/2018/ND-CP dated May 22nd, 2018 of the Goverment on management of industrial parks and economic zones
This Decree prescribes planning, establishment and operation of, policies on, and state management of, industrial parks and economic zones.
One of the new points of this Decree is the supplement of regulations on incentive policies for development of auxiliary industrial parks and eco-industrial parks.
Accordingly, auxiliary industrial area means an industrial park specializing in manufacturing auxiliary industrial products and rendering services satisfying the needs of manufacture of these products.
Eco-industrial park means an industrial park in which enterprises get involved in cleaner production, make effective use of natural resources and enter into manufacturing cooperation and affiliation in order to tighten industrial symbiosis to promote economic, environmental and social efficiency in these enterprises.
For investment projects on development of infrastructure of auxiliary industrial parks, they shall be granted land rent exemption or reduction in accordance with legislation on land; permission for leasing of land within the maximum period of 70 years. In addition, such projects are also given priority to have access to on-lent ODA funds and the Government’s guarantees for mobilization of foreign capital.
With regard to investment projects on manufacturing of products in auxiliary industrial parks, they shall be entitled to tax incentives with respect to corporate income tax, export and import duty, and other support, as prescribed in laws on taxes, development of auxiliary industries.
With regard to enterprises operating within eco-industrial parks that participate in cleaner production activities, efficient use of resources and industrial symbioses shall be certified as eco-enterprises operating within industrial parks by the Management Board of industrial parks and economic zones.
In addition, this Decree also supplements regulations on establishment of industrial – urban – service zones and incentives for investment in industrial – urban – service zones. The details are provided in Section 3 Chapter IV of this Decree.
This Decree takes effect from July 10th, 2018.
ND82_22052018CP[ENGLISH].pdf (English translation)
Regarding CIT incentives for projects of expansion investment
Dispatch No. 5084/TCT-CS dated November 3rd, 2016 of the General Department of Taxation regarding corporate income tax (CIT) incentives for projects of expansion investment
The document is to reply to issues relating to tax incentives for activities of construction of additional factories or purchase of machinery and equipment from 2009 to 2013 and tax incentives for investment in renovation of machinery and equipment from 2014.
Accordingly, in case a company invests in construction of additional factories or purchase of machinery and equipment from 2009 to 2013, if the conditions on regular investment as prescribed in Article 5 of Circular No. 130/2016/TT-BTC and Official Dispatch No. 4769/BTC-TCT dated April 7th, 2016 are fully satisfied, it shall be eligible for CIT incentives as the incentives being applied to the operating project. In contrast, if these activities meet the conditions on expansion investment as prescribed in point a in Clause 6 in Article 18 of Circular No. 78/2014/TT-BTC , the company is optional to enjoy the same CIT incentives as the incentives being applied to the operating project for the remaining period from 2015 or is entitled to tax remission, tax reduction (not eligible for preferential tax rates) for a specific period of time equal to the tax remission/ tax reduction duration applicable to new investment projects in the same area.
With regard to activities of renovation of machinery and equipment from 2014: if the conditions on expansion investment prescribed in point a in clause 6 in Article 18 of aforesaid Circular No. 78/2014/TT-BTC are not satisfied, these activities of renovation of machinery and equipment shall be eligible for CIT incentives for the remaining period (if any) as the incentives being applied to the operating project. If these activities of renovation of machinery and equipment meet the conditions on expansion investment, the company is optional to enjoy the same CIT incentives as the incentives being applied to the operating project for the remaining period or is entitled to tax remission, tax reduction (not eligible for preferential tax rates) for a specific period of time equal to the tax remission/ tax reduction duration applicable to new investment projects in the same area.
CV5084_03112016TCT[ENGLISH].pdf (English translation)
Labour - Employment
Regarding monthly salary on which compulsory social insurance premiums are based from January 1st, 2018
Official letter No. 3016/LDTBXH-BHXH dated July 30th, 2018 of the Ministry of Labor, Invalids and Social Affairs regarding monthly salary on which compulsory social insurance premiums are based from January 1st, 2018.
According to Clause 2 Article 89 of the Law on social insurance No. 58/2014/QH13 , from January 1st, 2018, the monthly salary on which social insurance premiums are based also includes other additional amounts.
However, it is only compulsory to pay social insurance premiums with regard to measured extra payments and the contractual salary mentioned in the labor contract that are be paid regularly in each period of salary payment
Accordingly, in case shift and hard working allowances which are not pre-measured, they are not other additional payments which have to participate in compulsory social insurance.
With regard to allowances for working away from residential houses to be paid monthly and pre-determined for transferred employees, according to opinions of the Ministry of Labor, Invalids and Social Affairs, in order to determine whether these allowances have to participate in social insurance or not, it is required to clearly determine money sources used for paying for these allowances.
CV3016_30072018BLDTBXH[VLO].pdf (English translation)
Reply to some issues relating to project management consultancy
Official letter No. 898/BXD-KTXD dated April 24th, 2018 of the Ministry of Construction regarding problems in the course of project management
Relating to project management activities, this Official letter provides guidelines on some points as follows:
- With regard to project management Board established by provincial or district - level people committee to manage the projects which are assigned by the person who decides the establishment, it is not required to have a certificate of eligibility for construction activities. However, if the project management Board provides project management consultancy for other projects provided that it ensures the fulfillment of the assigned project management task, it is required to have the certificate of eligibility for construction activities (Clause 5 Article 17 of Decree No. 59/2015/ND-CP).
- A person who has Accounting Certificate or Finance Certificate is not eligible to be granted a license for project management practice (Clause 18 Article 1 of Decree No. 42/2017/ND-CP).
- Upon determination of classes of new construction works independent from current works, it is only based on capacity and level of importance; types and structure scale of these new construction works. Classes of new and dependent construction works shall be determined according to the regulations mentioned in Clause 1 and Clause 2 Article 2 of Circular No. 03/2016/TT-BXD.
- Consulting costs which are determined according to the standard consulting costs provided for in Decision No. 79/QD-BXD dated February 15th, 2017 include payments for experts directly providing consulting services; management cost incurred by the consulting organization; other costs (including payment for professional liability insurance); estimated taxable income exclusive of value added tax (VAT).
CV898_24042018BXD[VLO].pdf (English translation)
Correction to the regulation on maintenance of the solvency ratio applicable to VND of banks
Decision No. 1564/QD-NHNN dated August 3rd, 2018 of the State Bank of Vietnam on correction to Circular No. 16/2014/TT-NHNN dated July 31st, 2018
This Decision is to correct the contents regulated in Clause 3 Article 1 of Circular No. 16/2018/TT-NHNN relating to maintenance the solvency ratio applicable to Vietnamese dong of banks.
Accordingly, the phrase “maintain the 30-day solvency ratio applicable to Vietnamese dong (including Vietnamese dong and other foreign currencies freely converted into Vietnamese dong according to the exchange rate regulated in point a Clause 25 Article 3 of this Circular)" shall be corrected into “maintain the 30-day solvency ratio applicable to Vietnamese dong".
This Decision takes effect from August 3rd, 2018.
QD1564_03082018NHNN[VLO].pdf (English translation)
Certificate of Origin (C/O)
Regulations on issuance of C/O form B with regard non-preferential exports
Circular No. 05/2018/TT-BCT dated April 3rd, 2018 of the Ministry of Industry and Trade on origin of goods
This Circular to promulgate Product Specific Rules (Appendix I) and guidelines on Rules of determination of origin of non-preferential goods to be used as the basis for considering issuance of C/O form B for Vietnam’s exports.
Accordingly, this Circular provides guidelines in details on criteria for determination to export goods, including: criterion “Change in tariff classification” (CTC) and criterion “Local value content” (LVC).
This Circular takes effect from April 3rd, 2018.
TT05_03402018BCT[ENGLISH].pdf (English translation)
Transportation freight shall be subject to import duty only when it is paid by the buyer
Official letter No. 4167/TXNK-TGHQ dated July 26th, 2018 of the General Department of Vietnam Customs regarding issue relating to customs value.
According to point g Clause 2 Article 13 of Circular No. 39/2015/TT-BTC , transportation costs and any costs relating to the transportation of imported goods to the first importing checkpoint must be added to value of imports.
However, transportation costs shall be added to taxable value only when 3 conditions below are fully met:
(1) They are paid by the buyer and have not been included in the actual or future payment;
(2) They are related to the imported goods;
(3) There are objective and quantifiable data conformable with the relevant documents.
CV4167_26072018TCHQ[VLO].pdf (English translation)
Schedule of fees for appraisal of the environmental impact assessment report
Circular No. 56/2018/TT-BTC dated June 25th, 2018 of the Ministry of Finance on prescribing rate of collection, regime for collection, payment, management and use of fee for appraisal of the environmental impact assessment report by the central regulatory body
The Schedule of fees for appraisal of the environmental impact assessment report regulated in this Circular is not changed in comparison with the current Schedule.
This Circular only changes fee-collecting organization from Departments of Environmental Impact Assessment to Vietnam Environment Administration (Article 2).
This Circular takes effect from August 10th, 2018 and replaces Circular No. 195/2016/TT-BTC dated November 8th, 2016.
TT56_25062018BTC[ENGLISH].pdf (English translation)
Compulsory insurance premiums paid outside Vietnam shall be subtracted upon calculation of PIT in Vietnam
Official letter No. 51502/CT-TTHT dated July 24th, 2018 of the Department of Taxation of Ha Noi city regarding tax policy
According to point e.1 Clause 2 Article 26 of Circular No. 111/2013/TT-BTC , if a foreigner who is a resident in Vietnam additionally earns income paid by the parent company outside Vietnam and overseas tax has been withheld, the tax already paid outside Vietnam shall be subtracted from PIT payable in Vietnam.
Dossier proving the PIT already paid outside Vietnam shall be carried out according to point b.2.1, Clause 3 Article 21 of Circular No. 92/2015/TT-BTC .
If this person pays compulsory insurance premiums in his/her host country similar to those in Vietnam (such as social insurance, health insurance, unemployment insurance, etc.), the insurance premiums shall be subtracted upon calculation of PIT (point c Clause 2 Article 9 of Circular No. 111/2013/TT-BTC ).
CV51502_24072018CTHN[VLO].pdf (English translation)
Pharmaceutical - Cosmetics
New guidelines on pharmacy business and practice
Circular No. 07/2018/TT-BYT dated April 12th, 2018 of the Ministry of Health on guidelines for some articles on pharmacy business of the Law on Pharmacy and the Decree No. 54/2017/ND-CP dated May 08, 2017 of the Government
This Circular is to provide guidelines in details on these regulations:
1. Pharmacy language requirements for foreigners in Vietnam and for Vietnamese expatriates;
2. Disclosure of the list of holders of pharmacy practice certificates working for the pharmacy business establishments;
3. Operation of establishments having pharmacy-related activities that are not required to obtain the certificate of eligibility for pharmacy business;
4. Retailing drugs on the List of drugs restricted from retailing;
5. Retailing drugs at the drug counters in ethnic minority areas, highlands, islands or extremely disadvantaged areas;
6. The pharmaceutical sale representatives of pharmacy business establishments who introduce drug to medical practitioners;
7. Organization and operation of the Advisory Council for issuance of pharmacy practice certificates.
Accordingly, foreigners or Vietnamese expatriates that engage in pharmacy practice in Vietnam must obtain a certification of fluency in Vietnamese language granted by a university of medicine or a university of pharmacy in Vietnam (Clause 3 Article 6).
In case they are not fluent in Vietnamese language, they have to register the language which is used for practicing pharmacy and have their own interpreter. The language which the pharmacy practitioner registers to practice pharmacy may be English, French, Russian, Chinese, Japanese and Korean (Article 4).
With regard to the sale representative of the pharmacy, he/she must have a college degree or higher in medicine or pharmacy and must comply with the following regulations: Only introduce drugs which are licensed for sale and drugs on the List of drugs which is assigned by the pharmacy business establishment; Not introducing products other than drugs; Not having activities related to selling and purchasing drugs with the medical practitioners (Articles 21, 22).
This Circular takes effect from June 1st, 2018 and replaces Circular No. 13/2009/TT-BYT dated September 1st, 2009.
TT07_12042018BYT[ENGLISH].pdf (English translation)
New regulations on issuance and trading of government bonds
Decree No. 95/2018/ND-CP dated June 30th, 2018 of the Government on providing for issuance, registration, listing and trading of government debt instruments on securities market
“Government debt instruments” issued and traded under this Decree include government bonds.
Accordingly, in comparison with the current regulations, this Decree adds new type of bonds issued by the Government which are named “green bonds”. Green bonds are government bonds issued for raising funds for environmental projects (Article 21).
In addition, regarding permissible limit to buy government bonds, according to Clause 1 Article 6, domestic and foreign organizations and individuals are allowed to purchase government debt instruments with unlimited quantity, unless otherwise prescribed by law.
With regard to government bonds issued on the international market, buyers are organizations and individuals authorized by laws applicable in the issuing market (Clause 2 Article 6).
Another new point of this Decree is the regulation on “market makers”. These are organizations (commercial banks or securities companies) selected by the Ministry of Finance in order to be given priority to participate in issues, repurchases or swaps of government bonds by bidding (the details are provided in Section 4 Chapter II of this Decree).
This Decree takes effect from July 1st, 2018.
Regulations in Section 1 Chapter II, Section 1 Chapter III and other regulations on government bonds of the Government’s Decree No. 01/2011/ND-CP dated January 5th, 2011 are abrogated.
ND95_30062018CP[ENGLISH].pdf (English translation)
Steel and Iron
Import of steel plates for serving ship building shall be exempt from safeguard duty
Official letter No. 399/PVTM-P2 dated May 11th, 2018 of the Ministry of Industry and Trade regarding imposition of safeguard measure on steel products used for ship building
According to Circular No. 01/2018/TT-BKHDT, steel materials for production of steel armour for ship building are products that cannot be domestically produced. As the result, hot - rolled steel plates used for ship building shall be exempt from import duty according to Clause 3 Article 17 of Decree No. 134/2016/ND-CP.
On the other hand, according to Clause 7 Article 4 of the Law on import and export duties No. 107/2016/QH13, safeguard duty means additional import duty.
As the result, in case hot - rolled steel plates which are used for ship building are exempt import duty, they shall be also exempt from safeguard duty.
CV399_11052018BCT[VLO].pdf (English translation)
Tax of Personal Income
Regarding PIT incurred by residents that provide counselling under service contracts
Official letter No. 51692/CT-TTHT dated July 25th, 2018 of the Department of Taxation of Ha Noi city regarding personal income tax (PIT) policy
According to point i Clause 1 Article 25 of Circular No. 111/2013/TT-BTC , resident individuals that do not have labor contracts shall be subject to 10% PIT.
Accordingly, in case a Company signs service contracts with individuals (who do not carry out the business registration) in order to provide the drilling counseling, these individuals are regarded as having no labor contract and therefore the Company has to withhold 10% PIT on incomes paid to such individuals.
At the end the year, these individuals have to summarize their whole incomes from salary, wage in order to make PIT accounting with tax authority (if they are subject to the making of PIT accounting).
CV51692_25072018CTHN[VLO].pdf (English translation)
It is disallowable to pay late payment interests in installments
Official letter No. 4420/TCHQ-TXNK dated July 26th, 2018 of the General Department of Vietnam Customs regarding late payment interests
According to Clause 25 Article 1 of Law No. 21/2012/QH13 and Article 39 of Decree No. 83/2013/ND-CP , currently, there is only the policy on payment in installments applicable to tax arrears rather than policy on payment in installments applicable to late payment interests.
Accordingly, if incurring late payment interests, enterprises are compulsory to fully pay them one time rather than being allowable to pay the late payment interests in installments.
CV4420_26072018TCHQ[VLO].pdf (English translation)
From August 1st, 2018: It is allowable to submit the written registration for the quality inspection for clearance of information technology products
Official letter No. 2304/BTTTT-CVT dated July 17th, 2018 of the Ministry of Information and Communications regarding examination of quality of products and goods subject to the specialized management of the Ministry of Information and Communications
Relating to procedures for import of information technology products, this document announces as follows:
- Before August 1st, 2018: Upon carrying out customs clearance procedures, enterprises have to provide the Certificate of conformity with regulations (with regard to products, goods included in Annex ) or the written reception of publication of conformity with regulations (with regard to products, goods included in Annex II of Circular No. 04/2018/TT- BTTT).
If the aforesaid papers are not available, enterprises have to send a written commitment to customs authorities and the Vietnam Telecommunications Authority on the completion of procedures for certification of conformity with regulations/publication of conformity with regulations within 15 working days from the date of customs clearance.
- From August 1st, 2018: Upon importing group-2 commodities subject to the specialized management of the Ministry of Information and Communications enterprises have to present the written registration for the quality inspection certified by the specialized inspection agency (the Vietnam Telecommunications Authority) when they carry out customs clearance procedures according to Decree No. 74/2018/ND.
CV2304_17072018BTTTT[VLO].pdf (English translation)
Export processing enterprises
Regarding VAT upon leasing assets to EPEs
Official letter No. 53153/CT-TTHT dated July 31st, 2018 of the Department of Taxation of Ha Noi city regarding value added tax (VAT) upon leasing assets to export processing enterprises (EPEs)
According to opinions of the Department of Taxation of Ha Noi city, in case a Company leases financial assets to an EPE, if the conditions prescribed in point b Clause 2 Article 9 of Circular No. 219/2013/TT-BTC are met, the Company shall be entitled to apply 0% VAT and entitled to receive a refund of input VAT with regard to an amount of accumulated VAT of VND 300 million or more.
When the financial leasing contract terminates, if the EPE receives the transfer of ownership of the leased assets after it pays all the rents under the regulations in the contract (the EPE re-purchases the financial-leasing assets according to a nominal value), the Company must not declare, calculate and pay VAT on the revenue from this activity.
However, it should note that, according to Clause 3 Article 9 of Circular No. 219/2013/TT-BTC , the sale of cars to EPEs is not entitled to apply 0% VAT. As the result, upon transferring cars to the EPE under the financial leasing contract, the Company has to declare and pay VAT.
CV53153_31072018CTHN[VLO].pdf (English translation)
Regarding depreciation account of a server placed outside Vietnam
Official letter No. 53064/CT-TTHT dated July 31st, 2018 of the Department of Taxation of Ha Noi city regarding recognition of costs of information technology projects formed outside Vietnam
According to this Official letter, in case a company executes a project invested in information technology system (such as server) outside Vietnam, if the standards on identification of tangible fixed assets or intangible fixed assets according to Clauses 1 and 2 Article 3 of Circular No. 45/2013/TT-BTC are met and there are documents proving that the server belongs to the company’s ownership and such ownership is recognized by Vietnam’s authorities, the company is allowed to make depreciation account.
If the depreciated costs of the server placed outside Vietnam fully meet the conditions specified in Article 4 of Circular No. 96/2015/TT-BTC , they shall be subtracted upon calculation of enterprise income tax (EIT).
With regard to costs for hiring the performance of services relating to the server system outside Vietnam, if they meet the conditions in Article 4 of Circular No. 96/2015/TT-BTC , they shall be also accounted into deductible expenses.
However, if the company does not have enough legitimate documents proving that the server placed outside Vietnam belongs to its ownership, the Company is not allowed to make depreciation account with regard to this server system.
CV53064_31072018CTHN[VLO].pdf (English translation)
Administration - Society
Criteria for determination of complex legal aid cases
Circular No. 09/2018/TT-BTP dated June 21st, 2018 of the Ministry of Justice on criteria for determination of complex and typical legal aid cases
This Circular takes effect from August 21st, 2018.
TT09_21062018BTP[ENGLISH].pdf (English translation)
Law on national defence applicable from 2019
Law No. 22/2018/QH14 dated June 8th, 2018 of the National Assembly on National Defence
This Law provides for basic national defence principles, policies and activities; state of war, state of national defence emergency, martial law and curfew; people’s armed forces; national defence assurance; duties and powers of regulatory entities and organizations; rights and obligations of citizens regarding national defence.
This Law takes effect from January 1st, 2019 and replaces the Law on national defence No. 39/2005/QH11 dated June 14th, 2005.
LL22_08062018QH14[ENGLISH].pdf (English translation)
New regulations on handling railway incidents
Circular No. 23/2018/TT-BGTVT dated May 4th, 2018 of the Ministry of Transport on handling railway incidents and accidents, analysis and report of railway incidents and accidents
This Circular sets forth procedures, details and measures to deal with railway incidents and accidents; responsibilities of involved entities in dealing with railway incidents and accidents; analysis and reports on railway incidents and accidents.
This Circular takes effect from July 1st, 2018. To replace Circular No. 38/2016/TT-BGTVT dated December 2nd, 2016 and Circular No. 74/2015/TT-BGTVT dated November 24th, 2015.
TT23_04052018BGTVT[ENGLISH].pdf (English translation)
Procedure for sale and issue of separate invoices
Decision No. 829/QD-TCT dated April 16th, 2018 of the General Department of Taxation on promulgating procedure for sale and issue of separate invoices
This procedure sets forth tasks in sale or issue of separate invoices at tax authorities at Departments of Taxation, Sub-departments of Taxation and reporting.
Accordingly, the forms of sale and issue of separate invoices are applied to different entities:
In particular, the form of “sale of separate invoices” is only applied to household businesses or self-employed individuals that pay tax every time the tax is incurred and households or individuals leasing assets.
The form of “issue of separate invoices” is applied to organizations other than enterprises but sell goods or provide services; enterprises which were dissolved, went bankrupt, have tax statement completed or have tax identification number cancelled but sold property).
Application for purchase, issue of separate invoices shall be carried out according to Article 12 and Article 13 of Circular No. 39/2014/TT-BTC
This Decision takes effect from the date of its signing and abolishes Point 15, Point 16 Section I, Part II of Decision No. 747/QD-TCT dated April 20th, 2015; Step 1, Step 2 Clause 3.4, Point 3, Section II, Part II of Decision No. 2371/QD-TCT dated December 18th, 2015.