THE STANDING COMMITTEE OF NATIONAL ASSEMBLY
SOCIALIST REPUBLIC OF VIET NAM
Hanoi, May 10, 1997
ON ENTERPRISE INCOME TAX
To contribute to boosting the development of production and business and mobilizing part of the social incomes for the State budget; to ensure equitable and reasonable contributions by production, business and service organizations and individuals having incomes;
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam;
This Law prescribes the enterprise income tax,
Article 1.- Subjects liable to the enterprise income tax
Organizations and individuals involved in production and trading of goods and service provision (hereafter referred to as business establishments) with incomes therefrom shall all have to pay the enterprise income tax, except for subjects defined in Article 2 of this Law.
Family households, individuals, groups of cooperatives, agricultural cooperatives with incomes from farming, husbandry and aquaculture are not liable to the enterprise income tax, except for the family households and peasants engaged in large-scale production of goods and having high incomes as defined by the Government.
In this Law, the following terms shall be construed as follows:
1. “Production and trading of goods and service organizations” are: State enterprises, limited liability companies; stock companies; enterprises with foreign investment capital and foreign parties to business cooperation contracts under the Law on Foreign Investment in Vietnam; foreign companies and organizations doing business in Vietnam but not regulated by the Law on Foreign Investment in Vietnam; private enterprises; cooperatives; groups of cooperatives; economic establishments of political organizations, socio-political organizations, social organizations, socio-professional organizations and people�s armed forces units; administrative and non-business agencies engaged in production and trading of goods and services;
2. “Individuals engaged in production and trading of goods and services” are: individual households and business groups; family households and individuals engaged in agricultural production; businessmen; independent practitioners; individuals having properties for rent; foreign businessmen with incomes generated in Vietnam;
3. “Permanent bases of foreign companies in Vietnam” are business establishments through which the foreign companies conduct part of or all business activities that generate incomes in Vietnam, including:
a/ Branches, executive offices, factories, workshops, transport means, mines, oil or gas fields and other places for exploitation of natural resources in Vietnam;
b/ Construction sites, projects on construction, installation and/or assembly projects;
c/ Establishments providing services, including consultancy services through their employees or other objects;
d/ Agents of foreign companies;
e/ Representatives in Vietnam, who are:
– Competent to sign contracts on behalf of foreign companies;
– Not competent to sign contracts on behalf of foreign companies but regularly performing the delivery of goods or provision of services in Vietnam.
In cases where an agreement on the avoidance of double taxation which is signed by the Socialist Republic of Vietnam and provides otherwise regarding the permanent bases, such agreement shall apply.
1. Business establishments are obliged to pay tax fully and on schedule as prescribed by this Law.
2. Tax agencies shall, within the ambit of their tasks and powers, have to comply with the provisions of this Law.
3. State agencies, political organizations, socio-political organizations, social organizations, socio-professional organizations, people�s armed forces units shall, within their respective functions, tasks and powers, have to supervise the implementation and coordinate with the tax agencies in implementing the Law on Enterprise Income Tax.
4. Vietnamese citizens shall have to assist tax agencies and tax officials in the implementation of this Law.
BASES FOR TAX CALCULATION AND TAX RATES
Taxable incomes and tax rates are the bases for tax calculation.
Taxable incomes include incomes from production, business and service activities and other incomes, including those generated by production, business and service activities abroad.
1. Taxable incomes from production, business and service activities are the turnover minus the reasonable costs related to the taxable incomes.
2. Other taxable incomes include incomes from differences of the stock trading, the rights to property ownership and use; interests from the transfer, lease or liquidation of properties, deposits, capital lending, selling foreign currencies; the year-end balance of reserves; the recovery of bad loans which have been written off from accounting records; debits of which owners cannot be identified; incomes from business activities of the previous years which have been omitted but later discovered, and other incomes.
In cases where an agreement on the avoidance of double taxation which the Socialist Republic of Vietnam has signed provides otherwise for the method to determine taxable incomes for permanent bases, such agreement shall apply.
Turnover subject to the calculation of taxable incomes is the total sum earned from the sale of goods, remuneration from sub-contracts and the provision of services, including price subsidies.
In cases where the turnover is in a foreign currency, it must be converted into Vietnam Dong at the official exchange rate announced by the State Bank of Vietnam at the time of the collection of such foreign currency.
1. Reasonable costs to be subtracted for the calculation of the taxable incomes include:
a/ Depreciation of fixed assets used for production, business and service activities as prescribed by law;
b/ Cost of raw materials, materials, fuel, energy, and goods actually used in production, business and service activities, which is related to the taxable turnover and taxable incomes in the period and calculated on the basis of a reasonable waste rate and actual prices of delivery;
c/ Salaries, wages, half-time meal allowances, salary and wage-related incomes under current regulations, except for salaries and wages of the owners of private enterprises, owners of production, business and service individual households and incomes of founding members of companies who do not directly take part in running the production, business and service activities;
d/ Cost of scientific and technological research; innovation and modifications; allowances for education; health care; training of laborers according to the regulations;
e/ Cost of services bought from outside: electricity, water, telephone; repair of fixed assets; rents of fixed assets; audit; property insurance; payments for the use of technical materials, patents, licenses of technologies not belonging to fixed assets; technical services;
f/ Payment for women laborers as prescribed by law; spendings on labor protection; spendings on security of the establishment; deductions for the payment of social insurance and medical insurance under the liability of the laborer-employing business establishment; trade union fund; deductions to set up the higher agency�s management fund according to regulations;
g/ Payment of interests on capital borrowings for production, business and services to banks and credit organizations at the actual interest rates; payment of interests on borrowings from other objects at the actual interest rate which must not exceed the floor interest rate set by the State Bank of Vietnam for credit organizations;
h/ Deductions for reserves as prescribed;
i/ Severance allowances for laborers;
j/ Spending on the sale of goods and services;
k/ Cost of advertisement, marketing and trade promotion directly related to production, business and service activities and other costs which must be kept below 7 of the total cost. With regard to commercial activities, the total cost serving as basis for the determination of the limit level of reasonable costs shall not include the input prices of goods for sale;
l/ Taxes, fees, charges and land rents to be paid, which are related to production, business and service activities, shall be included in the cost;
m/ Cost of business management allocated by foreign companies to their permanent bases in Vietnam as prescribed by the Government.
2. The following expenditures shall not be included in the reasonable costs:
a/ Advance deductions included in the total cost but actually not spent;
b/ Expenditures without vouchers or with invalid vouchers;
c/ Fines and expenditures which are not related to the taxable turnover and taxable incomes;
d/ Expenditures covered by other capital sources.
3. The reasonable costs prescribed in Item 1 of this Article shall all be recorded in accounting books in Vietnam Dong. In case of a cost in foreign currency, it must be converted into Vietnam Dong at the official exchange rate announced by the State Bank of Vietnam at the time when the cost is paid.
1. The enterprise income tax rate applicable to domestic business establishments and foreign organizations and individuals doing business in Vietnam not under the Law on Foreign Investment in Vietnam shall be 32.
Production, construction and transport establishments that are paying turnover tax at the rate of 25, now pay enterprise income tax at the rate of 32 and, if facing difficulties, shall enjoy a tax rate of 25 for three years from the date when this Law takes effect; upon the expiry of this period, the 32 tax rate shall apply. The Government shall determine which production, construction and transport establishments may enjoy the tax rate of 25.
Business establishments, which earn high incomes thanks to their objective advantages, shall, beside paying 32 income tax, have to pay an additional income tax equivalent to 25 of the exceeding incomes brought about by their objective advantages. The Government shall prescribe the method to determine such excess amount of incomes.
With regard to new investment projects in the fields, branches and trades and territorial areas where investment is encouraged, the tax rates of 25, 20 and 15 shall apply in accordance with the provisions of the Government.
2. The enterprise income tax rate applicable to foreign invested enterprises and foreign parties to business cooperation contracts shall comply with the tax rate provided for in Article 38 of the Law on Foreign Investment in Vietnam.
When transferring their incomes abroad, foreign investors shall have to pay tax for the transferred incomes at the tax rate provided for in Article 43 of the Law on Foreign Investment in Vietnam.
Such terms as “loi tuc” (interests) and “loi nhuan” (profits) written in Article 38 and Article 43 of the Law on Foreign Investment in Vietnam shall be construed, according to this Law, as “incomes” to serve as basis for the tax calculation.
3. The enterprise income tax rate applicable to domestic and foreign organizations and individuals conducting oil and gas prospection, exploration and exploitation shall be 50; a tax rate of from 32 to 50 may apply to the exploitation of other precious and rare natural resources, depending on each project and each business establishment.
The Government shall give more specifications to this Article.
TAX DECLARATION, PAYMENT AND SETTLEMENT
A business establishment shall have the responsibilities:
1. To strictly follow the regulations on accounting, invoices and vouchers as prescribed by law;
2. To fully declare its turnover, costs and incomes under the regulations of the Ministry of Finance;
3. To pay fully and on schedule tax and fines to the State budget under the notice of the tax agency;
4. To provide documents, books of accounts, accounting reports, invoices and vouchers related to the calculation of income tax at the request of the tax agency.
1. Every year, a business establishment shall base itself on the production, business and service results of the previous year and the projection for the subsequent year to make declaration of its turnover, costs and taxable incomes according to the form set by the tax agency and submit it to the tax agency that directly manages it on 25 January at the latest. After receiving the declaration, the tax agency shall examine it and determine the amount of tax to be paid temporarily for the whole year every quarter and inform the business establishment thereof; in case of a big change in the production, business or service situation during the year, the business establishment shall have to report to the managing tax agency for readjustment of the tax amount to be temporarily paid every quarter.
2. With regard to a business establishment not subject to the regulations on accounting, invoices and vouchers, the tax amount to be paid monthly shall be determined on the basis of the turnover quotas and the taxable income rate set for each branch and trade by the competent tax agency.
1. Each quarter a business establishment shall temporarily pay the tax amount fully and on schedule to the State budget under the tax payment notice of the tax agency. The deadline for the quarterly tax payment stated in the notice must not be later than the last day of the quarter.
2. The business establishment defined in Item 2 of Article 12 shall have to pay tax to the State budget every month at the notice of the tax agency. The deadline for the monthly tax payment stated in the notice must not be later than the 25th day of the following month.
3. A business establishment engaged in consignment trade shall have to declare and pay tax for each consignment to the tax agency of the locality where the goods are purchased before transporting such goods.
4. For foreign organizations and/or individuals doing business without permanent bases in Vietnam but having incomes generated in Vietnam, the organizations and/or individuals that pay such incomes shall have to deduct the tax amount at the rate set by the Ministry of Finance on the total income payment and remit to the State budget at the time of transferring the money paid to the foreign organizations and/or individuals.
1. A business establishment shall have to conduct the annual tax settlement at the tax agency. The tax settlement must reflect fully and accurately the following:
b/ Reasonable costs;
c/ Taxable incomes;
d/ The amount of income tax to be paid;
e/ The amount of income tax already temporarily paid in the year;
f/ The amount of income tax already paid abroad for incomes generated from overseas;
g/ The amount of income tax not yet paid or paid in excess.
2. The year of tax settlement is the solar year. In cases where a business establishment is allowed to apply a fiscal year other than the solar year, the tax settlement shall be made according to that fiscal year. Within 60 days from the end of a solar year or a fiscal year, the business establishment shall have to submit the tax settlement statement to the tax agency and fully pay the tax arrears to the State budget within 10 days after submitting the statement; the amount of tax paid in excess shall be subtracted from the amount of tax to be paid in the subsequent period.
In case of a merger, almagation, division, splitting, dissolution or bankruptcy, the business establishment shall have to make the tax settlement and submit it to the tax agency within 45 days after the issue of decision on the merger, consolidation, division, splitting, dissolution or bankruptcy.
The Ministry of Finance shall provide guidances for the settlement of enterprise income tax prescribed in this Article.
A tax agency shall have the following tasks, powers and responsibilities:
1. To guide business establishments in making the tax declaration and payment in accordance with the provisions of this Law;
2. To notify the business establishment of the amount of tax to be paid and the deadline for tax payment as prescribed; Past the tax payment deadline stated in the notice if the business establishment fails to pay tax, another notice of the tax amount and the fine on the tax payment delay shall be issued as prescribed in Item 2, Article 24 of this Law; if the business establishment still fails to pay the full amount of tax and fine already notified, measures defined in Item 4, Article 24 of this Law shall be applied to ensure the full collection of the tax and fine amount; in cases where measures have been taken yet the business establishment still fails to pay the full amount of tax and fine, the dossier shall be handed over to the competent State agency for handling according to law;
3. To inspect and examine the tax declaration, payment and settlement by the business establishment, ensuring their compliance with the provisions of law. In cases where selling and buying prices, business costs and other factors are found unreasonable, the tax agency shall have the right to reset them so as to ensure an accurate and full collection of the enterprise income tax;
4. To handle administrative tax violations and settle tax complaints;
5. To request the business establishment to provide accounting books, invoices, vouchers and other documents related to tax calculation and payment; to request credit organizations, banks and concerned organizations and/or individuals to provide relevant documents on the calculation and payment of tax;
6. To keep and use data and documents provided by the business establishment and other objects as prescribed.
1. The tax agency shall determine the taxable income of a business establishment, if such establishment:
a/ Fails to observe or improperly observe the regulations on accounting, invoices and vouchers;
b/ Fails to make declaration or improperly makes declaration of bases for tax calculation or fails to prove the bases stated in its declaration at the request of the tax agency;
c/ Refuses to produce accounting books, invoices, vouchers and other necessary documents related to the calculation of the enterprise income tax;
d/ Is found doing business without business registration.
2. The tax agency shall base itself on the examination materials regarding the business establishments activities or on the taxable incomes of another business establishment of the same business line, on the same business scale to determine the taxable income.
If the business establishment disagrees with the determined taxable income, it shall have the right to lodge complaint to the immediate higher-level tax agency; pending a solution, the business establishment shall still have to pay the determined tax amount.
ENTERPRISE INCOME TAX EXEMPTION AND REDUCTION
1. For domestic business establishments:
a/ A newly founded production establishment shall be exempt from tax for the first two years after it has a taxable income and shall enjoy a 50 income tax reduction for the two subsequent years; as for newly established production establishments in mountainous areas, offshore islands and other regions facing difficulties, the tax reduction duration shall last for another two years;
b/ Newly founded establishments under investment privilege projects shall enjoy tax exemption and reduction as follows:
– A newly founded production establishment shall be exempt from tax for the first two years after it has a taxable income and shall enjoy a 50 income tax reduction for a maximum of 4 subsequent years; as for investment in mountainous areas, offshore islands and regions with difficulties, the duration of income tax exemption shall be prolonged for one or two more years and the 50 income tax reduction shall be prolonged for 1 to 5 more years;
– A newly founded good trading or service establishment shall enjoy a 50 income tax reduction for the first one or two years after it has a taxable income; if it invests in mountainous areas, offshore islands and other regions with difficulties, the concerned establishment shall enjoy an income tax exemption for the first one or two years after it has a taxable income and a 50 income tax reduction for a maximum of 5 subsequent years.
2. For foreign invested enterprises and foreign parties to business cooperation contracts:
a/ Depending on the fields and territorial areas of investment prescribed in the Law on Foreign Investment in Vietnam, foreign invested enterprises and foreign parties to business cooperation contracts may be exempt from income tax for 2 years at most after they have taxable incomes and shall be entitled to a 50 income tax reduction for at most 2 subsequent years;
b/ In cases where a foreign invested enterprise or a foreign party to a business cooperation contract implement an investment project with numerous criteria for investment encouragement, it shall be exempt from income tax for 4 years at most after it has a taxable income and shall be entitled to a 50 income tax reduction for 4 subsequent years at most;
c/ In special cases of investment promotion, the duration of income tax exemption shall not exceed 8 years.
The Government shall stipulate in details the tax exemption and reduction as prescribed in this Article.
Article 18.- Tax exemption and reduction for domestic business establishments which invest in building new production lines, expanding production scale, renovating technology, improving the ecology and raising production capacity.
A production establishment that invests in building new production lines, expanding its production scale, renovating technology, improving the ecology and raising production capacity shall be exempt from enterprise income tax on its additional incomes of the first year and entitled to a 50 reduction of tax on the additional income brought about by the new investment for two subsequent years.
A foreign invested enterprise or a foreign party to a business cooperation contract that uses its distributed incomes for re-investment in projects with investment promotion shall be repaid part or whole of the tax amount already paid on the re-invested incomes. The Government shall specify the tax reimbursement rates, depending on the field, territorial area, form and duration of re-investment.
Business establishments moving to mountainous areas, islands and other regions with difficulties shall be exempt from enterprise income tax for the first three years after they have taxable incomes.
1. The following incomes of domestic business establishments shall be exempt from enterprise income tax:
a/ Income from the performance of scientific research contracts;
b/ Income from the performance of technical service contracts directly in service of agriculture;
c/ Income from production, business and service activities of business establishments reserved for handicapped laborers;
d/ Income from job training specifically for handicapped persons, people of ethnic minorities, children meeting with exceptional difficulties, victims of social evils;
e/ Production, business and service individual households with low incomes as prescribed by the Government.
2. Foreign investors shall be entitled to enterprise income tax exemption and reduction, as follows:
a/ Overseas Vietnamese investing into the country under the Law on Foreign Investment in Vietnam shall enjoy a 20 income tax reduction, compared with other projects of the same type, except for cases where they are eligible for an income tax rate of 10; and a tax rate of 5 for the transfer of their incomes abroad;
b/ patents, technical know-how, technological processes, technical services used as contributions to the prescribed capital shall be exempt from income tax;
c/ Income tax exemption or reduction shall also apply to income from the transfer of capital contributed by foreign investors to Vietnamese enterprises under the regulations of the Government.
3. Domestic business establishments and foreign invested enterprises engaged in production, construction and transport activities that involve many women laborers under the regulation of the Government shall enjoy income tax reduction.
Domestic business establishments and joint-venture enterprises, if after tax settlement with the tax agency, still suffer from losses shall be entitled to transfer such losses to the following year, which shall be deducted from the taxable incomes. The duration of the transfer of losses shall not exceed 5 years.
1. The tax exemption or reduction prescribed in Articles 17, 18, 19, 20 and 21 of this Law shall apply only to business establishments which have strictly complied with the regulations on accounting and paid tax in accordance with their declarations.
2. The Government shall determine the competence to decide and procedures for tax exemption and reduction as prescribed in Articles 17, 18, 19, 20 and 21 of this Law.
HANDLING OF VIOLATIONS AND REWARD
Tax payers that violate the Law on Enterprise Income Tax shall be handled as follows:
1. A failure to abide by the regulations on accounting, invoices, vouchers, declaration, payment and settlement of tax as prescribed in Articles 11, 12, 13 and 14 of this Law shall, depending on the nature and seriousness of the violation, be subject to administrative sanction;
2. If they defer delays the payment of tax or fine, or is late as compared with the deadline of the handling decision, they shall have to pay, in addition to the full amount of tax or fine, a 0.1 of the amount of deferred payment for each day of the delay;
3. If they falsely declare or evade tax, they shall, besides having to fully pay the tax amount as prescribed by this law, be subject to a fine from one to five times the amount of the fraud or evasion, depending on the nature and seriousness of the violation; evading tax in big amount, repeating already administratively sanctioned violations or committing other serious violations shall be subject to examination for penal liability as prescribed by law;
4. Failure to pay tax or fine under a tax notice or a tax-handling decision shall be handled as follows:
a/ Making deductions from money deposited by the business establishment at a bank, treasury or credit organization to pay the tax or fine.
The concerned bank, treasury or credit organization shall have to make deductions from the deposit account of the business establishment to pay the tax or fine to the State budget under a tax-handling decision issued by the tax agency or the competent agency before collecting debts;
b/ Retaining goods, material evidences to ensure the full collection of the tax or fine;
c/ Making inventory of assets as prescribed by law to ensure the full collection of the tax or fine arrears.
1. The Heads of the tax agencies directly managing the tax collection shall have the right to handle violations by tax payers as prescribed in Items 1, 2 and 3, Article 24 of this Law.
2. The Directors of the tax departments, the Heads of the tax sub-departments directly managing the tax collection shall be entitled to apply measures prescribed in Item 4, Article 24 of this Law and, with regard to the violations of the provisions of Item 3, Article 24 of this Law, submit the dossiers to the competent agencies for handling in accordance with the provisions of law.
1. Tax officials and other individuals who abuse their positions and powers to illegally seize and misappropriate tax money or fines shall have to return to the State the full amount of tax money or fines illegally used and misappropriated, and shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability under the provisions of law.
2. Tax officials and other individuals who out of irresponsibility or for mishandling of violations, caused damage to tax payers shall have to pay compensation as prescribed by law and shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability under the provisions of law.
3. Tax officials and other individuals who abuse their positions and powers to act in complicity with or cover violators of the Law on Enterprise Income Tax or who commit other violations of the provisions of this Law shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability as prescribed by law.
4. Anyone who obstructs or incites others to obstruct the enforcement of the Law on Enterprise Income Tax shall, depending on the nature and seriousness of his/her violation, be sanctioned administratively or examined for penal liability as prescribed by law.
Tax agencies and tax officials that fulfill well their assigned tasks; organizations and individuals that make achievements in the observance of the Law on Enterprise Income Tax; business establishments that well perform the tax payment obligations shall be rewarded.
The Government shall stipulate the reward in detail.
COMPLAINTS AND STATUTE OF LIMITATIONS
1. Tax payers shall have the right to complain about tax officers and tax agencies that fail to comply with the Law on Enterprise Income Tax.
A complaint must be sent to the tax agency directly managing the tax collection within 30 days from the date of receipt of a notice or decision from the tax official or tax agency.
Pending a solution, the tax payer shall still have to abide by the notice or the decision of the tax agency.
2. In cases where the complainant disagrees with the decision of the agency settling his/her complaint or upon the expiry of the time-limit prescribed in Article 29 of this Law, the complaint has not been settled, he/she shall be entitled to lodge the complaint to the immediate higher-level tax agency or initiate a lawsuit at the Court prescribed by law.
1. A tax agency must consider and settle a tax complaint within 15 days after receiving it; with regard to complicated cases, such time-limit may be prolonged but must not exceed 30 days. If the case does not fall under its competence, the concerned tax agency shall have to forward the tax dossier or report it to the competent agency for settlement and notify the complainant thereof within 10 days after receiving the complaint.
2. The tax agency receiving the complaint shall have the right to request the complainant to supply dossiers and documents related to the complaint; if the complainant refuses to provide the requested dossiers and documents, the tax agency shall be entitled to refuse the consideration and settlement of the complaint.
3. The tax agency shall have to reimburse the tax money or fines that have been collected improperly to the business establishment within 15 days after receiving a handling decision from the higher-level tax agency or the competent agency as prescribed by law.
4. Upon the detection of or conclusion on false tax declaration, tax evasion or tax-related errors, the tax agency shall have to collect the tax or fine arrears or reimburse the tax money paid in excess within the five latest years from the date of detection of the false tax declaration, evasion or errors. In cases where the business establishment fails to make tax registration, declaration and payment, the duration for the collection of the tax or fine arrears shall be counted from the date when the business establishment starts its operation.
5. The Head of the higher-level tax agency shall have to settle tax-related complaints from the tax payers against the lower-level tax agency.
The decision of the Ministry of Finance on the settlement of a tax complaint shall be final.
ORGANIZATION OF IMPLEMENTATION
To annul the Law on Profit Tax, the Law on the Amendments and Supplements to a Number of Articles of the Law on Profit Tax and the provisions on profit tax in other legal documents after the Law on Enterprise Income Tax takes effect.
All issues regarding tax, tax settlement, tax exemption and reduction and the handling of the violations of profit tax prior to January 1st, 1999 shall be solved in accordance with the related provisions of the Law on Profit Tax, the Law on the Amendments and Supplements to a Number of Articles of the Law on Profit Tax and the provisions on profit tax in other legal documents.
This Law was passed by the IXth National Assembly of the Socialist Republic of Vietnam, 11th session, on May 10, 1997.
THE CHAIRMAN OF THE NATIONAL ASSEMBLY
Nong Duc Manh