This July 2021 publication of our Tax and Accounting Updates looks at Resolution 68 and Decision 23 which provide support and relief for individuals and businesses impacted by Covid-19, guidance on the entry of foreign experts/individuals, Circular 45 guiding execution of Advance Pricing Agreements with enterprises involved in related party transactions, regulations on submission of proofs of origin in UKVFTA and our regular review of recent Official Letters released by the Tax Authorities.
RESOLUTION 68 AND DECISION 23 IMPLEMENTATING SUPPORT FOR BUSINESSES AND INDIVIDUALS IMPACTED BY THE COVID-19 PANDEMIC IN VIETNAM
The Vietnamese Government has commenced supporting actions in response to the situation through issuing a number of regulations to support businesses and individuals in recent days.
On 1 July 2021, the Government issued Resolution 68/NQCP indicating policies to decrease and defer contribution payments into a number of Social Insurance funds, provides funding support for businesses, and facilitates allowances for employees, individuals and business households impacted by COVID-19. Please read our detailed discussion on Resolution 68 here: Resolution 68 implementing policies to support businesses and individuals impacted by COVID-19 | Acclime Vietnam
Following the Resolution 68, on 7 July 2021, the Government further issued Decision 23/2021/QD-TTg providing more details and guidance to implement the supporting policies of Resolution 68.
Notable points of the Resolution & Decision include:
- Reduction in Social Insurance contributions to 0% to the Occupational Accidents and Diseases Fund, for 12 months from 1 July 2021 to 30 June 2022.
- Deferral of contributions from employers and employees to the Retirement and Death Fund, for eligible employers for 6 months.
- Training funding support for stipulated eligible employers to improve employee’ vocational skills.
- Allowances for employees temporarily ceasing working without salary for 15 consecutive days or more.
- Allowances for employees suspended from work to implement COVID-19 quarantine for 14 days or more.
- Allowances for employees subject to loss of employment but ineligible for unemployment benefits.
- Allowances for children and people treating covid-19 or medical isolation (F0 and F1).
- Financial support for tour guides and artists.
- Financial support for eligible business households.
- Loan support from the Vietnam Bank of Social Policies at a 0% interest rate to pay salaries for employees ceasing working and salaries during business recovery.
- Support for other individuals without labour contracts.
We have released a Client Alert indicating details of notable points of Decision 23. Click here to read our article.
GUIDANCE ON ENTRY FOR FOREIGN EXPERTS/INDIVIDUALS
On July 5, 2021, the National Steering Committee for COVID-19 Prevention and Control issued Official Letter 5322/CV-BCD guiding the entry of foreign experts/individuals invited or guaranteed by agencies or organisations (employer/inviting party/sponsor) during the COVID-19 pandemic.
The competent authority for entry approval
Foreign experts (including technical engineers, investors, managers, etc.) invited by agencies or organisations to enter Vietnam and their relatives; other foreign individuals (including exchange students and other cases of entry for humanitarian immigration, emergency, local treatment, etc.) are subject to the entry approval by the provincial People’s Committee.
Foreign experts/individuals invited by Diplomatic Missions, Foreign Consular Offices, Central Agencies and Ministries and other selected cases are subject to the entry approval by National Steering Committee.
Guidance for inviting parties/sponsors – requirements for written entry requests
Agencies or organisations as inviting parties or sponsors for foreign experts/individuals subject to entry approval by provincial People’s Committee need to submit written requests for entry of foreign experts/individuals including required information as follows:
- List of foreign experts/individuals and accompanying relatives expected to enter, purpose, entry and stay period (in which clearly states the necessity of entry in these cases);
- Plan for the transportation and the isolation at the isolation facility designated and selected by the provincial People’s Committee;
- The program, work plan, place of residence of the foreign experts/individuals and accompanying relatives in the locality;
- Contact information (address, phone number, email); and
- A written commitment of the inviting parties/sponsors to be responsible for ensuring safety against COVID-19 when inviting foreign experts/individuals and their accompanying relatives to Vietnam, ensuring that:
- Foreign experts/individuals and their accompanying relatives are tested for SARS-CoV-2 by PCR technique within 3 days before the date of entry into Vietnam;
- Having international health insurance, or the inviting parties/sponsors commit to paying the costs of treatment in case of being infected with COVID-19; and
- Other documents (if any)
The implementation process for cases under the approval of the provincial People’s Committee is as follows:
- Based on the needs of agencies and organisations, the provincial People’s Committee will consider approving the list of foreign experts/individuals and their accompanying relatives and send the list to the Ministry of Public Security (Immigration Management Department) for consideration and settlement.
- Inviting parties/sponsors apply for an entry visa for the foreign experts/individuals and their accompanying relatives, enclosed with the written approval of the provincial People’s Committee to the Ministry of Public Security.
- The provincial People’s Committee designates and selects concentrated isolation facilities for foreign experts/individuals and their accompanying relatives.
- The provincial People’s Committees shall direct and organise to take sampling for testing, control of concentrated isolation and medical supervision after the end of the concentrated isolation period according to regulations and requirements of the Ministry of Health.
Requirements and processes for cases under the approval of the National Steering Committee are also stipulated at item 2, section III, part of Guidance.
This Official Letter took effect from the date of signing.
CIRCULAR 45 GUIDING EXECUTION OF ADVANCE PRICING AGREEMENTS WITH ENTERPRISES INVOLVED IN RELATED PARTY TRANSACTIONS
On 18 June 2021, the Ministry of Finance issued Circular 45/2021/TT-BTC providing guidance on the application of Advance Pricing Agreements (APA) to enterprises having related party transactions.
Transactions and their conditions to apply an APA
The Circular defines transactions to which an APA is applicable as follows:
- Transactions to which the APA is applicable are related party transactions specified in Clause 2, Article 1 of the Government’s Decree 132/2020/ND-CP. In particular, transactions of trading, leasing, and transferring goods or providing services; loans, financial services, financial guarantees and other financial instruments; trading, leasing and transferring tangible assets, intangible assets, and agreement on buying/selling, usage of common resources such as assets, capital, labour, cost-sharing among related parties, except for business transactions for goods and services are subject to the State’s price adjustment scope in accordance with the Law on Prices.
Currently, transactions eligible for an APA are business transactions between related parties, except for business transactions related to goods and services requiring price stabilization within the scope of the State’s regulations on prices.
- Transactions applicable to an APA must satisfy all the following conditions:
- Actual transactions arise in the taxpayer’s production and business activities and will continue to take place during the APA application period.
- Transactions have any basis for determination of the nature of transaction deciding tax liability, and any basis for analysis, comparison and selection of independent comparables according to the provisions of Articles 6 and 7 of Decree 132/2020, based on information and data in compliance with the provisions of Point b, Clause 6, Article 42 of the Law on Tax Administration.
- Transactions are not involved in tax disputes or complaints.
- Transactions are made in a transparent manner, not for tax evasion, avoidance, abuse or misuse of Tax Agreements.
APA effective period
The effective period of a signed APA is up to 3 tax years (previously up to 5 years), but it must not exceed the actual number of years the taxpayer has operated and declared CIT in Vietnam.
APA application process
- The pre-filing phase is no longer compulsory.
- The application process still includes mandatory phases of official submission, assessment, discussion & negotiation and conclusion.
- There is no specified timeline provided for each phase of the application.
- The Circular enters into force from 3 August 2021, replacing Circular 201/2013/TT-BTC dated 20 December 2013.
- For APA applications submitted prior to the effective date and progressed under Circular 201, but have not been finalised, with the proposed period still current when the Circular takes effect, such application shall continue to be processed under these new APA regulations.
REGULATIONS ON SUBMISSION OF PROOFS OF ORIGIN IN UKVFTA
On 11 June 2021, the Ministry of Industry and Trade issued Circular 02/2021/TT-BCT regarding rules of origin of goods in UKVFTA.
According to this Circular, in order to be entitled to tariff incentives under UKVFTA, proof of origin must be submitted to Vietnam’s customs authorities within 2 years from the date of importation. Customs authorities may require non-English proof of origin translated into Vietnamese.
In addition, regulations on the validity period of a proof of origin in UKVFTA are as follows:
- Each proof of origin has a validity period of 12 months from the date of issuance at the exporting country and must be submitted to the customs authority of the importing country within the validity period.
- A proof of origin submitted to the customs authority of the importing country after the validity period prescribed in clause 1 of Article 26 in the Circular may be approved for entitlement to tariff incentives in UKVFTA if the importer is unable to submit that proof of origin within the validity period due to force majeure or other justifiable cause existing beyond the control of the importer.
- In case of late submission, the customs authority of the importing country may accept the proof of origin for goods imported within the validity period stipulated in clause 1 of Article 26 in Circular 02/2021.
The Circular entered into force as of 27 June 2021.
OFFICIAL LETTERS RELEASED
Official Letters are releases showing the Tax and other Authorities’ interpretations and application of Vietnam’s Taxation Laws, providing guidance to taxpayers in Vietnam.
PIT declaration is not required if there is no income subject to PIT
This is the highlight of the Official Letter 2393/TCT-DNNCN dated 1 July 2021, regarding Personal Income Tax (“PIT”) declarationa, issued by the General Department of Taxation.
According to this document, Clause 6, Article 1 of the 2012 amended Law on PIT states that organizations and individuals paying income are responsible to declare, withhold, pay to the State Budget and finalise PIT for all income subject to PIT on behalf of the taxpayers.
This means only organizations and individuals that pay income subject to PIT must declare PIT. Those who do not pay income subject to PIT in a month/quarter will not be subject to the PIT declaration for that month/quarter.
This Official Letter 2393/TCT-DNNCN is issued on 1 July 2021.