CIRCULAR

GUIDING THE IMPLEMENTATION OF TAX POLICIES AND INCENTIVES FOR PROGRAMS AND PROJECTS FUNDED WITH OFFICIAL DEVELOPMENT ASSISTANCE (ODA) CAPITAL OR CONCESSIONAL LOANS PROVIDED BY DONORS

Pursuant to the November 29, 2006 Law No. 78/2006/QH11 on Tax Administration; the November 20, 2012 Law No. 21/2012/QH12 amending and supplementing a number of Articles of the Law on Tax Administration, and guiding documents;

Pursuant to the June 03, 2008 Law No. 14/2008/QH12 on Enterprise Income Tax; the June 19, 2013 Law No. 31/2013/QH13 amending and supplementing a number of articles of the Law on Enterprise Income Tax, and guiding documents;

Pursuant to the June 03, 2008 Law No. 13/2008/QH12 on Value-Added Tax; the June 19, 2013 Law No. 31/2013/QH13 amending and supplementing a number of Articles of the Law on Value-Added Tax, and guiding documents;

Pursuant to the November 14, 2008 Law No. 27/2008/QH12 on Excise Tax and guiding documents;

Pursuant to the November 21, 2007 Law No. 04/2007/QH12 on Personal Income Tax; the November 22, 2012 Law No. 26/2012/QH13 amending and supplementing a number of Articles of the Law on Personal Income Tax, and guiding documents;

Pursuant to the June 29, 2001 Law No. 29/2001/QH10 on Customs; the June 14, 2005 Law No. 42/2005/QH11 amending and supplementing a number of Articles of the Customs Law, and guiding documents;

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Pursuant to the August 28, 2001 Ordinance No. 38/2001/PL-UBTVQH10 on Charges and Fees, and guiding documents;

Pursuant to the Government’s Decree No. 38/2013/ND-CP dated April 23, 2013, on management and use of official development assistance and concessional loans provided by donors, and guiding documents;

Pursuant to the Government’s Decree No. 118/2008/ND-CP dated November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the General Director of the General Department of Taxation;

The Minister of Finance promulgates the Circular guiding the implementation of tax policies and incentives for programs and projects funded with official development assistance (ODA) capital and concessional loans provided by donors as follows:

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular applies to programs and projects funded with official development assistance capital (below referred to as ODA projects) or concessional loans provided by donors, which are approved by competent authorities.

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Article 2. Subjects of application

Agencies, organizations and individuals participating in or related to the implementation of programs and projects specified in Article 1 of this Circular.

Article 3. Interpretation of terms

The terms referred to in this Circular have the same meanings as defined in Articles 3 and 4 of the Government’s Decree No. 38/2013/ND-CP dated April 23, 2013, on the management and use of official development assistance capital and concessional loans provided by donors. In addition, in this Circular, the terms below are construed as follows:

- “Principal contractor” means an organization or individual directly signing a contract with the owner or donor of an ODA or a concessional loan-funded project to conduct work construction and installation of works or provide goods or services to such project. Principal contractors include foreign and Vietnamese principal contractors.

- “Subcontractor” means an organization or individual directly signing a contract with a principal contractor to perform part of jobs under the contract signed between the principal contractor and the owner or donor of an ODA or a concessional loan-funded project. Subcontractors include foreign and Vietnamese subcontractors.

Article 4. Implementation of treaties

In case treaties (including treaties on ODA or concessional loans) which the Vietnamese Government has signed or acceded to contain tax regulations related to the implementation of a specific ODA or concessional loan-funded project, which are different from those guided in this Circular, the tax policies applicable to such project shall comply with the signed treaties.

Chapter 2.

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SECTION 1. TAX POLICIES, TAX INCENTIVES AND TAX REFUND PROCEDURES APPLICABLE TO NON-REFUNDABLE ODA PROJECTS

Article 5. Tax policies applicable to project owners

1. Import duty, VAT and excise tax on imported goods

Non-refundable ODA project owners and principal contractors implementing non- refundable ODA projects shall be exempt from import duty in accordance with the Law on Import Duty and Export Duty and guiding documents, not required to pay excise tax (if any) and not subject to VAT on goods directly imported by themselves or imported by others under their entrustment for implementation of non-refundable ODA projects.

Dossiers to be produced to customs offices of localities where goods are imported shall comply with the Customs Law, the Law on Import Duty and Export Duty and guiding documents.

Customs offices shall realize the non-collection of import duty, excise tax (if any) and VAT on goods imported for implementation of non-refundable ODA projects.

2. VAT on goods and services purchased in Vietnam

a) Non-refundable ODA project owners are entitled to refund of VAT amounts paid upon purchase of goods and services in Vietnam if their approved contracts signed with principal contractors are inclusive of VAT and the project owners are not allocated capital from state budget for VAT payment. The VAT refund shall comply with Article 8 of this Circular. In case the projects are allocated counterpart capital from the state budget for VAT payment, the project owners are not entitled to refund of input VAT amounts already paid for goods and services purchased in Vietnam, regardless of whether their approved contracts signed with the principal contractors are inclusive or exclusive of VAT.

Example 1: A competent authority has approved for Non-refundable ODA project owner A to sign a contract to build a pediatrics hospital at a total VAT-inclusive price of VND 4.4 billion, including a VAT-exclusive price of VND 4 billion and a VAT amount of VND 400 million (tax rate of 10%). In addition, the project owner has also obtained approval to sign contracts of other goods and service purchase at a total VAT-inclusive price of VND 110 million, including a VAT-exclusive price of VND 100 million and a VAT amount of VND 10 million.

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The above-said ODA project owner will be refunded the input VAT amount already paid for the work construction contract and contracts of domestic goods and service purchase which is VND 410 (400 + 10) million.

- Case 2: The project owner is allocated counterpart capital from the state budget for VAT payment:

The above-said ODA project owner will not be refunded the input VAT amount already paid for the work construction contract and contracts of domestic goods and service purchase, even in case the price of the contract signed with the principal contractor is exclusive of VAT.

b) In case a donor sets up a representative office in Vietnam and directly purchases goods and services to serve the implementation of a non-refundable ODA project or assigns the ODA project owner to implement a non-refundable ODA project, the donor will be refunded the paid VAT amount. The VAT refund shall comply with Article 8 of this Circular.

Article 6. Tax policies applicable to the principal contractors and subcontractors engaged in project implementation

1. Import duty, export duty, excise tax and VAT on imported goods

a) Principal contractors and subcontractors that import goods in the course of performing contracts signed with non-refundable ODA project owners shall pay import duty, excise tax (if any) and VAT in accordance with the Law on Import Duty and Export Duty, the Law on Excise Tax, the Law on Value-Added Tax, and current guiding documents (except for imported goods of principal contractors stated in Article 5 of this Circular).

b) Foreign principal contractors and foreign subcontractors are exempt from import duty, not required to pay excise tax (if any) and not subject to VAT on machinery, equipment and means of transport imported into Vietnam by the mode of temporary import for re-­export to serve works construction under non-refundable ODA projects, and are exempt from export duty upon re-export.

Dossiers of application for import duty exemption, non-collection of VAT and excise tax (if any) upon import, and export duty exemption upon re-export shall comply with the Customs Law, the Law on Import Duty and Export Duty, the Law on Tax Administration, and guiding documents.

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When the works construction or project implementation is completed, foreign principal contractors and foreign subcontractors must re-export the above goods. If such goods are sold in the Vietnamese market, they must obtain permission of competent state agencies and must declare and pay import duty, VAT and excise tax (if any) previously exempted at the stage of import in accordance with the current tax laws.

Particularly, import duty and excise tax exemption does not applied to under-24-seat cars and cars designed for the transportation of both passengers and cargoes equivalent to under-24-seat cars imported by the mode of temporary import for re-export. Foreign principal contractors and foreign subcontractors that wish to import such cars into Vietnam for use must pay import duty and excise tax under regulations. Upon completion of the work construction or project implementation, they shall re-export cars already imported and be refunded the paid import duty and excise tax under regulations. Refunded tax amounts and tax refund procedures shall comply with the guide in the Customs Law, the Law on Import Duty and Export Duty, the Law on Excise Tax, the Law on Tax Administration, and guiding documents.

2. VAT, EIT and other taxes, charges and fees for the provision of goods and services in Vietnam:

a) Principal contractors providing goods and services to non-refundable ODA project owners must pay VAT (if the signed contracts are inclusive of VAT), EIT and other taxes, charges and fees in accordance with the laws on taxes, charges and fees.

b) Subcontractors providing goods and services to principal contractors of non- refundable ODA projects must pay VAT, EIT and other taxes, charges and fees in accordance with the laws on taxes, charges and fees.

c) Foreign principal contractors and foreign subcontractors shall pay VAT by the method of direct calculation on added value and EIT at a percentage of turnover, in case of receiving payments directly from donors, foreign principal contractors and foreign subcontractors shall transfer payable tax amounts to ODA project owners or foreign principal contractors respectively for the latter to pay tax on their behalf as guided in the Law on Tax Administration and guiding documents.

d) In case principal contractors (regardless of whether they pay VAT by the deduction method or direct method) sign contracts with ODA project owners or donors to implement non-refundable ODA projects at VAT-exclusive prices and the projects are not allocated counterpart capital from the state budget for VAT payment, the principal contractors shall be refunded input VAT amounts already paid upon purchase of goods and services to serve the performance of the contracts signed with the project owners or donors. The VAT refund shall comply with Article 8 of this Circular. If the projects are allocated counterpart capital from the state budget for VAT payment, principal contractors will not be refunded input VAT amounts paid for goods and services purchased in Vietnam, regardless of whether the approved contracts signed between project owners and principal contractors are inclusive or exclusive of VAT. Principal contractors shall declare and pay VAT in accordance with the Law on Value-Added Tax and current guiding documents.

Example 2:

Company A signs with a non-refundable ODA project owner a contract on “construction of a school” at the winning bid, which is exclusive of VAT.

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Company A is refunded the input VAT amount on goods and services purchased for works construction under the contract signed with the project owner.

- Case 2: The project is allocated counterpart capital from the state budget for VAT payment:

Company A is not entitled to refund of the input VAT amount on goods and services purchased for work construction under the contract signed with the project owner. It must declare and pay VAT under regulations.

Principal contractors must separately account input VAT amounts paid for goods and services purchased for the performance of goods and service provision contracts signed with non-refundable ODA project owners or donors. If unable to do so:

Principal contractors paying VAT by the direct method are not entitled to VAT refund.

Principal contractors paying VAT by the deduction method shall declare, deduct and refund VAT in accordance with the Law on Value-Added Tax, the Law on Tax Administration and their guiding documents.

e) Individuals working for principal contractors and subcontractors must pay PIT in accordance with the law on PIT. Foreigners who are certified by ODA project-managing agencies as foreign specialists shall comply with Clause 2, Article 7 of this Circular.

Article 7. Tax policies applicable to individuals working for projects

1. Vietnamese and foreign individuals working for ODA projects and ODA project management units shall declare and pay PIT in accordance with the laws on PIT and tax administration.

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Article 8. VAT refund dossiers and procedures applicable to non-refundable ODA project owners, donors’ representatives and principal contractors eligible for VAT refund

1. Procedures for tax registration and grant of tax identification numbers to ODA project owners, donors and principal contractors shall comply with the Law on Tax Administration and guiding documents.

2. VAT refund dossiers, time limits for declaration of input VAT, receipt of dossiers and VAT refund shall comply with the Law on Tax Administration and guiding documents.

Principal contractors shall clearly write down the names of ODA projects and names and addresses of ODA project owners in the VAT refund dossiers.

3. Issuance of VAT refund decisions, procedures for transfer of documents shall comply with the Law on Tax Administration and guiding documents.

4. If project owners are allocated counterpart capital from the state budget for VAT payment but still carry out VAT refund procedures, when being refunded VAT, project owners must remit back to the state budget the refunded VAT amounts under regulations.

In the course of considering VAT refund dossiers of ODA projects, if having doubts which must be inspected before or after tax refund, tax offices shall comply with the provisions of the Law on Value-Added Tax, the Law on Tax Administration and guiding documents.

Section 2. TAX POLICIES AND INCENTIVES APPLICABLE TO ODA LOAN- OR CONCESSIONAL LOAN-FUNDED PROJECTS

Article 9. Tax policies applicable to project owners

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ODA loan- or concessional loan-funded project owners that directly import or entrust others to import goods shall perform import duty, VAT and excise tax obligations in accordance with the Law on Import Duty and Export Duty, the Law on Value-Added Tax, the Law on Excise Tax, and guiding documents.

2. VAT on goods and services purchased in Vietnam

When purchasing goods and services in Vietnam, ODA loan- or concessional loan- funded project owners must perform VAT obligations in accordance with the Law on Value-Added Tax and guiding documents.

Article 10. Tax policies applicable to principal contractors and subcontractors engaged in project implementation

1. Import duty, export duty, excise tax and VAT on imported goods

a) Principal contractors and subcontractors that import goods in the course of performing contracts signed with ODA loan- or concessional loan-funded project owners shall pay import duty, excise tax (if any) and VAT in accordance with the Law on Import Duty and Export Duty, the Law on Excise Tax, the Law on Value-Added Tax, and guiding documents.

b) Foreign principal contractors and foreign subcontractors are exempt from import duty, not required to pay excise tax (if any) and not subject to VAT on machinery, equipment and means of transport imported into Vietnam by the mode of temporary import for re-export to serve work construction, ODA loan-funded projects and are exempt from export duty upon re-export as guided at Clause 1, Article 6 of this Circular.

Dossiers of import duty exemption and non-collection of VAT and excise tax (if any) upon import and dossiers of export duty exemption upon re-export shall comply with the guide in the Customs Law, the Law on Import Duty and Export Duty, the Law on Tax Administration, and guiding documents.

Particularly, the import duty and excise tax exemption do not apply to under-24-seat cars and cars designed for both passenger and cargo transportation equivalent to under-24-seat cars imported by the mode of temporary import for re-export. Foreign principal contractors and foreign subcontractors that wish to import such cars into Vietnam for use must pay import duty and excise tax under regulations. When the work construction or project implementation is completed, foreign principal contractors and foreign subcontractors must re-export abroad cars already imported and will be entitled to import duty or excise tax refund under regulations. Refunded tax amounts and tax refund procedures shall comply with the guides in Law on Customs, the Law on Import Duty and Export Duty, the Law on Tax Administration and guiding documents.

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2. VAT, EIT and other taxes, fees and charges on provision of goods and services in Vietnam.

a) Principal contractors providing goods and services to ODA loan- or concessional loan-funded project owners must pay VAT, EIT and other taxes, charges and fees in accordance with the law on taxes, charges and fees.

b) Subcontractors providing goods and services to principal contractors of ODA loan- or concessional loan-funded projects shall pay VAT, EIT and other taxes, charges and fees in accordance with the law on taxes, charges and fees.

c) Foreign principal contractors and foreign subcontractors shall pay VAT by the method of direct calculation on added value and pay EIT at a percentage of turnover, if they receive payments directly from donors, they shall transfer payable tax amounts to ODA loan- or concessional loan-funded project owners or foreign principal contractors for the latter to pay tax on their behalf in accordance with the Law on Tax Administration and guiding documents.

d) Principal contractors providing goods and services to ODA loan- or concessional loan-funded project owners are not entitled to refund of input VAT amounts paid upon purchase of goods and services to serve the performance of the contracts signed with the owners of such projects as guided in Article 8 of this Circular. Principal contractors will be deducted and refunded input VAT like business establishments paying VAT by the deduction method if they meet all conditions and procedures guided in the Law on Value- Added Tax, the Law on Tax Administration and guiding documents.

e) Individuals working for principal contractors and subcontractors shall pay PIT in accordance with law on PIT. Foreigners who are certified by project-managing agencies as foreign specialists comply with Clause 2, Article 7 of this Circular.

Article 11. Tax policies for individuals working for projects

1. Vietnamese and foreign individuals working for ODA loan- or concessional loan- funded projects and project management boards shall perform PIT obligations in accordance with Clause 1, Article 7 of this Circular.

2. Tax and charge incentives for foreign specialists working for ODA loan- funded projects (except concessional loans) shall comply with Clause 2, Article 7 of this Circular.

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Article 12. Tax policies for projects using funds provided in various sponsoring forms (ODA and concessional loans)

For a project using funds from various sponsoring forms, if these funds are provided under separate funding agreements or disbursed separately for each specific activity under the project, tax policies will apply separately for each type of capital source as guided in this Circular.

In case of having no separate funding agreements or not being disbursed separately for each specific activity of each capital source, the tax policy applicable to the project shall be the policy applied to the funding source with the lowest tax incentive.

Article 13. VAT refund for non-refundable ODA projects partially which are funded with domestic capital

In case a non-refundable ODA project is concurrently funded with non-refundable ODA capital, counterpart capital allocated from the state budget and people’s contributions (these funds are to be spent to implement part of jobs under the project but not used for VAT payment), the project owner or principal contractor will be refunded VAT on goods and services purchased with non-refundable ODA for the project to serve implementation of project under Clause 2, Article 5, and Clause 2, Article 6 of this Circular, but not entitled to refund of VAT on goods and services purchased with counterpart capital allocated from the state budget and people’s contributions. The non-refundable ODA project owner and principal contractor must separately account VAT amounts paid for goods and services purchased with non- refundable ODA capital. If unable to do so, the project owner will not be entitled to VAT refund and the principal contractor will be deducted and refunded input VAT according to Clause 2, Article 6 of this Circular.

Example 3:

The non-refundable ODA project A has 90% of its funds provided by the Belgian Government and the remaining 10% being counterpart capital and people’s contributions which, as prescribed, are to be spent for payment of expenses such as inspection and supervision expenses, electricity and water charges, wages, allowances and expenses for initial physical foundations, etc but not used for payment of VAT on goods and services purchased with non- refundable ODA capital. The project owner or principal contractor will be entitled to refund of VAT paid for goods and services purchased with non-refundable ODA capital under Clause 2, Article 5, and Clause 2, Article 6 of this Circular if they can separately account VAT amounts on goods and services purchased with non-refundable ODA capital and not entitled to refund of VAT on goods and services purchased with counterpart capital and people’s contributions for the project. If the project owner or principal contractor cannot separately account VAT amounts on goods and services purchased with non-refundable ODA capital, the project owner will not be entitled to VAT refund and the principal contractor will be deducted and refunded VAT as prescribed at Clause 2, Article 6 of this Circular.

Chapter 3.

ORGANIZATION OF IMPLEMENTATION

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1. In case goods, machinery, equipment and means of transport imported or temporarily imported for re-export to serve the implementation of ODA and concessional loan-funded projects which have been exempt from import duty, excise tax and VAT as stated in Articles 5, 6 and 10 of this Circular, are used for purposes other than those eligible for import duty, excise tax and VAT exemption or sold in the Vietnamese market or destroyed in Vietnam, prior permission of a competent state agency is required. Project owners, principal contractors and subcontractors must pay import duty and excise tax already exempted as well as VAT under regulations.

Dossiers of and procedures for import duty and excise tax payment and VAT declaration and payment shall comply with the Law on Import Duty and Export Duty, the Law on Tax Administration and guiding documents.

For ODA project owners that are non-business state management agencies, political organizations, socio-political organizations or socio-professional organizations, if permitted to sell goods already purchased for the implementation of ODA and concessional loan- funded projects or to liquidate their assets in the Vietnamese market, they shall use invoices under regulations of the Ministry of Finance.

2. To provide documents to serve tax administration of ODA and concessional loan- funded projects: Within 15 working days from the date of signing a contract of works construction and installation or goods and service provision with a foreign principal contractor, the owner of an ODA or a concessional loan-funded program or project must send one copy of the contract (stamped and signed for certification by a competent person of the program or project owner) to the tax office in the locality where the project’s executive office is located and the tax office in the locality where project’s construction works are based (in case the ODA and concessional loan- funded project’s construction works and executive office are located in different localities). If the contract is made in a foreign language, a contract summary in Vietnamese, with the following major details: scope of contractual jobs, contractual value (including detailed annexes constituting the contractual value, if any), payment method, contractual term, obligations and responsibilities of the parties to the contract, is required. ODA and concessional loan-funded project owners shall take responsibility before law for the accuracy of the content sent to tax offices.

3. To determine the form of ODA grant and applicable tax policies: The grounds for application of tax policies as guided in this Circular are investment decisions or ODA project approval decisions issued by ODA program or project-managing agencies and the guidance on forms of ODA grant in the Government’s Decree No. 38/2013/ND-CP dated April 23, 2013. In case the investment or ODA project approval decision fails to specify whether ODA capital is granted in the form of non-refundable ODA, ODA loan or mixed ODA loan, the ODA project owner or principal contractor must supplement document issued by the ODA program or project -managing agency which clearly determine the form of ODA grant for the project. Particularly for projects approved by the Prime Minister (important national programs and projects; programs enclosed with framework policies; and programs and projects in defense or security), the Ministry of Planning and Investment’s written certification of the form of ODA grant is required.

4. To fulfill tax, charge and fee obligations in accordance with current laws on taxes, charges and fees and the guide in this Circular.

5. To notify principal contractors that sign contracts of goods and service provision with ODA and concessional loan-funded project owners of the tax policies and tax incentives that these contractors are obliged to implement and entitled to.

6. To make financial plans: ODA and concessional loan-funded project owners must fully calculate taxes as guided in this Circular which arise in the course of project implementation before submitting projects or bidding results to ODA program- or project-managing agencies for approval. They must determine import duty, excise tax and VAT amounts (except for those eligible for VAT non-collection or refund) and other payable charges and fees, and make a plan on counterpart capital for payment of the above taxes. Such plan is not required for EIT amounts payable by contractors which are included in the contractual value and PIT amounts which are included in wage expenses.

The making of financial plans shall comply with the guiding documents of the Ministry of Finance.

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Article 15. Responsibilities of taxation agencies

1. To guide ODA and concessional loan-funded project owners, donors, principal contractors and subcontractors to make tax registration, declaration and payment or refund (if any) in accordance with regulations, to notify them of state budget accounts and indexes for tax payment.

2. To examine tax declarations, accounting records and documents and other necessary documents for tax calculation.

3. To request ODA and concessional loan-funded project owners, principal contractors and subcontractors to provide accounting records, invoices and other documents related to tax calculation, payment and refund.

4. To fix payable tax amounts in case ODA and concessional loan-funded project owners, principal contractors or subcontractors fail to make declaration on time or make incomplete and inaccurate declaration or provide insufficient or inaccurate information relating to tax calculation.

5. To examine and inspect the tax payment, tax finalization and tax refund by ODA and concessional loan-funded project owners, principal contractors and subcontractors in accordance with current law.

6. To make written records of and handle tax-related violations according to their competence specified by law.

7. To take responsibility for enforcing tax laws, ensuring truthfulness, accuracy and objectivity.

8. To certify paid tax amounts of ODA and concessional loan-funded project owners, principal contractors and subcontractors, and take responsibility for the accuracy of certified tax amounts.

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This Circular takes effect on January 17, 2014, and replaces the Circular No. 123/2007/TT-BTC dated October 23, 2007, of Ministry of Finance, guiding tax policies and tax incentives for programs and projects funded with official development assistance (ODA) capital.

For ODA projects which have been approved by competent authorities before the effective date of this Circular, the tax obligations and tax incentives shall be determined under the Circular No. 123/2007/TT-BTC dated October 23, 2007, of Ministry of Finance, guiding tax policies and tax incentives for programs and projects funded with official development assistance (ODA) capital until project completion.

Any problems arising the course of implementation should be promptly reported to the Ministry of Finance for study and settlement.-

FOR MINISTER OF FINANCE
DEPUTY MINISTER




Do Hoang Anh Tuan

Thông tư 181/2013/TT-BTC hướng dẫn thực hiện chính sách thuế và ưu đãi thuế đối với chương trình, dự án sử dụng nguồn hỗ trợ phát triển chính thức (ODA) và nguồn vốn vay ưu đãi của nhà tài trợ do Bộ trưởng Bộ Tài chính ban hành