Circular No. 26/2004/TT-BTC dated March 31, 2004 of the Ministry of Finance guiding the implementation of the regulations on tax on the transfer of profits abroad and reimbursement of tax on reinvested incomes for foreign investors

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE REGULATIONS ON TAX ON THE TRANSFER OF PROFITS ABROAD AND REIMBURSEMENT OF TAX ON REINVESTED INCOMES FOR FOREIGN INVESTORS

 Pursuant to the Law on Foreign Investment in Vietnam, which was passed by the National Assembly of the Socialist Republic of Vietnam on November 12, 1996 and the Law Amending and Supplementing a Number of Articles of the Law on Foreign Investment in Vietnam, which was passed by the National Assembly of the Socialist Republic of Vietnam on June 9, 2000.

Pursuant to the Governments Decree No. 24/2000/ND-CP of July 31, 2000 detailing the implementation of the Law on Foreign Investment in Vietnam;

Pursuant to Enterprise Income Tax Law No. 09/2003/QH11;

Pursuant to the provisions of the Governments Decree No. 164/2003/ND-CP of December 22, 2003 detailing the implementation of the Enterprise Income Tax Law,

The Ministry of Finance hereby guides the implementation of the regulations on tax on the transfer of profits abroad and reimbursement of tax on reinvested incomes for foreign investors as follows:

I. GENERAL PROVISIONS

1. This Circular applies to foreign investors licensed to conduct business activities in joint-venture enterprises, enterprises with 100% foreign capital and business cooperation contracts set up under the Law on Foreign Investment in Vietnam, that earn incomes from lawful business activities in Vietnam and transfer such incomes abroad or use them for reinvestment in Vietnam.

2. In cases where the Vietnamese State or Government has acceded to or signed international treaties, agreements, or commitments with international organizations or other states or governments, which contain the provisions on tax on the transfer of profits abroad or reimbursement of tax on reinvested enterprise incomes different from this Circulars guidance, such international treaties, agreements or commitments shall apply.

II. SPECIFIC PROVISIONS

1. Tax on the transfer of profits abroad:

As from January 1, 2004, lawful incomes earned by foreign economic organizations or individuals from capital investment in any forms prescribed by the Law on Foreign Investment in Vietnam, including individuals being overseas Vietnamese making investment back in the country and foreigners permanently residing in Vietnam making investment under the Domestic Investment Promotion Law (including the income tax amounts already returned for the reinvested income amounts and incomes from capital transfer or share purchase), when being transferred out of Vietnamese territory or kept outside Vietnam, shall not be liable to tax on the transfer of profits abroad (including profits arising before December 31, 2003).

Before transferring profits abroad, foreign economic organizations or individuals must make declarations on the transfer of profits abroad according and submit them to the tax offices directly managing the enterprises where such foreign economic organizations or individuals invest their capital.

2. Reimbursement of tax on reinvested enterprise incomes:

a/ As from January 1, 2004, foreign investors that use collected profits and other lawful revenues from investment activities in Vietnam for reinvestment in projects being under execution or for investment in new projects under the Law on Foreign Investment in Vietnam shall not be entitled to the reimbursement of enterprise income tax on reinvested profits.

b/ For projects already granted reinvestment licenses by agencies in charge of State management over foreign investment or the written approval before January 1, 2004 of the use of profits for reinvestment to increase the investment capital for expansion of projects being under investment, or reinvestment in new projects, the enterprises which use profits earned before January 1, 2004 for reinvestment, have adequate dossiers as prescribed in the Finance Ministrys Circular No. 13/2001/TT-BTC of March 8, 2001 and send them to the Finance Ministry (the General Department of Tax), shall be considered for reimbursement of tax on reinvested enterprise incomes.

c/ As from January 1, 2004, enterprise income tax preferences shall comply with the provisions of Enterprise Income Tax Law No. 09/2003/QH11 and its guiding documents.

3. Organization of implementation:

This Circular takes implementation effect 15 days after its publication in the Official Gazette.

If any problems arise in the course of implementation, local tax departments should report them to the Finance Ministry (the General Department of Tax) for timely settlement.