Circular No. 83/2016/TT-BTC dated June 17, 2016 of the Ministry of Finance guiding the implementation of the investment incentive programs under the provisions of the Law on Investment and the Decree no. 118/2015/ND-CP dated November 12, 2015 specifying and guiding the implementation of several articles of the Law on Investment

CIRCULAR

Guiding the application of investment incentives in accordance with the Law on Investment and the Government’s Decree No. 118/2015/ND-CP of November 12, 2015, detailing and guiding the implementation of a number of articles of the Law on Investment[1]

Pursuant to November 26, 2014 Law No. 67/2014/QH13 on Investment;

Pursuant to June 3, 2008 Law No. 14/2008/QH12 on Enterprise Income Tax, and June 19, 2013 Law No. 32/2013/QH13 Amending and Supplementing a Number of Articles of the Law on Enterprise Income Tax;

Pursuant to November 26, 2014 Law No. 71/2014/QH13 Amending and Supplementing a Number of Articles of the Laws on Taxes;

Pursuant to November 14, 2008 Law No. 27/2008/QH12 on Excise Tax, and November 26, 2014 Law No. 70/2014/QH13 Amending and Supplementing a Number of Articles of the Law on Excise Tax;

Pursuant to June 14, 2005 Law No. 45/2005/QH11 on Export Duty and Import Duty;

Pursuant to June 17, 2010 Law No. 48/2010/QH12 on Non-Agricultural Land Use Tax;

Pursuant to November 29, 2006 Law No. 78/2006/QH11 on Tax Administration, and November 20, 2012 Law No. 21/2012/QH13 Amending and Supplementing a Number of Articles of the Law on Tax Administration;

Pursuant to the Government’s Decree No. 118/2015/ND-CP of November 12, 2015, detailing and guiding the implementation of a number of articles of the Law on Investment;

Pursuant to the Government’s Decree No. 218/2013/ND-CP of December 26, 2013, detailing and guiding the implementation of a number of articles of the Law on Enterprise Income Tax, and the Government’s Decree No. 91/2014/ND-CP of October 1, 2014, amending and supplementing a number of articles of the Decrees on taxes;

Pursuant to the Government’s Decree No. 12/2015/ND-CP of February 12, 2015, detailing the implementation of the Law Amending and Supplementing a Number of Articles of the Laws on Taxes and amending and supplementing a number of articles of the Decrees on taxes;

Pursuant to the Government’s Decree No. 87/2010/ND-CP of August 13, 2010, detailing the implementation of a number of articles of the Law on Export Duty and Import Duty;

Pursuant to the Government’s Decree No. 53/2011/ND-CP of July 1, 2011, detailing and guiding the implementation of a number of articles of the Law on Non-Agricultural Land Use Tax;

Pursuant to the Government’s Decree No. 83/2013/ND-CP of July 22, 2013, detailing the implementation of a number of articles of the Law on Tax Administration and the Law Amending and Supplementing a Number of Articles of the Law on Tax Administration;

Pursuant to the Government’s Decree No. 215/2013/ND-CP of December 23, 2013, defining the functions, duties, powers and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Tax Policy Department,

The Minister of Finance promulgates the Circular guiding the application of investment incentives in accordance with the Law on Investment and the Government’s Decree No. 118/2015/ND-CP of November 12, 2015, detailing and guiding the implementation of a number of articles of the Law on Investment.

Article 1. Scope of regulation

1. This Circular guides the application of enterprise income tax, import duty and non-agricultural land use tax incentives applicable to subjects entitled to investment incentives in accordance with Law No. 67/2014/QH13 on Investment and the Government’s Decree No. 118/2015/ND-CP of November 12, 2015, detailing and guiding the implementation of a number of articles of the Law on Investment (below referred to as Decree No. 118/2015/ND-CP).

2. Land rental and land use levy incentives provided in Clause 1, Article 16 of Decree No. 118/2015/ND-CP must comply with the Ministry of Finance’s guidance on land rental and land use levy.

Article 2. Subjects of application

1. Investment projects, enterprises and organizations specified in Clauses 2, 3 and 4, Article 15 of Law No. 67/2014/QH13 on Investment and Article 16 of Decree No. 118/2015/ND-CP.

2. Investors, competent state agencies and organizations and individuals involved in the application of investment incentives as guided in this Circular.

Article 3. Interpretation of terms

In this Circular, the terms below are construed as follows:

1. Investment project capitalized at VND 6 trillion or more means a project capitalized at a level stated in the investment registration certificate or investment policy decision.

2. Rural area means an administrative area outside wards of a town or city or urban district of a city as prescribed in Clause 16, Article 2 of Decree No. 118/2015/ND-CP.

3. Excise tax-liable commodity means a commodity specified in Clause 1, Article 2 of the Law on Excise Tax.

Article 4. Guidance on application of enterprise income tax incentives

1. New investment projects satisfying the condition on sectors eligible for enterprise income tax incentives prescribed in Law No. 14/2008/QH12 on Enterprise Income Tax, Law No. 32/2013/QH13 Amending and Supplementing a Number of Articles of the Law on Enterprise Income Tax, and Law No. 71/2014/QH13 Amending and Supplementing a Number of Articles of the Laws on Taxes (below referred to as the Law on Enterprise Income Tax), or on the geographical areas eligible for investment incentives specified in Appendix II to Decree No. 118/2015/ND-CP (excluding the geographical areas specified in Section 55 of Appendix II, which shall be implemented under the guidance in Clauses 2, 3 and 4 of this Article), may enjoy the enterprise income tax incentives at levels equivalent to those applicable to the sectors or geographical areas specified in the Law on Enterprise Income Tax.

Example 1: New investment project A manufactures composite materials in Hoang Mai district, Hanoi city, and obtains an investment policy decision on January 1, 2016. Under the provisions of the Law on Enterprise Income Tax and Decree No. 118/2015/ND-CP and the guidance in Clause 1 of this Article, project A is not on the list of geographical areas eligible for investment incentives specified in Appendix II to Decree No. 118/2015/ND-CP but is in a sector eligible for enterprise income tax incentives specified at Point b, Clause 1, Article 13 of the Law on Enterprise Income Tax. Accordingly,  income of an enterprise generated from project A is subject to the tax rate of 10 percent for 15 years and eligible for tax exemption for no more than 4 years and 50-percent reduction of payable tax amounts for no more than 9 subsequent years.

Example 2: New investment project B manufactures fertilizers in Quan Son district, Thanh Hoa province, and obtains an investment policy decision on January 1, 2016. Under the provisions of the Law on Enterprise Income Tax and Decree No. 118/2015/ND-CP and the guidance in Clause 1 of this Article, project B is not in a sector eligible for enterprise income tax incentives but is located in a geographical area with particularly difficult socio-economic conditions specified in Appendix II to Decree No. 118/2015/ND-CP. Accordingly, income of an enterprise generated from project B shall be subject to the tax rate of 10 percent for 15 years and eligible for tax exemption for no more than 4 years and 50-percent reduction of payable tax amounts for no more than 9 subsequent years.

2. New investment projects in economic zones and hi-tech parks (including information technology parks established under the Prime Minister’s decisions) are eligible for the tax incentives at the levels equivalent to those applicable to new investment projects in economic zones and hi-tech parks in accordance with the law on enterprise income tax.

3. New investment projects in industrial parks (excluding industrial parks located in geographical areas with favorable socio-economic conditions specified in Clause 3, Article 16 of the Government’s Decree No. 91/2014/ND-CP of October 1, 2014) other than those specified in Clauses 1 and 2 of this Article are eligible for the tax incentives at the levels equivalent to those applicable to new investment projects in industrial parks in accordance with the law on enterprise income tax.

4. New investment projects in export processing zones must comply with the guidance provided in Clause 3 of this Article.

5. New investment projects that concurrently satisfy multiple conditions for enjoying the enterprise income tax incentives may choose to enjoy the most favorable enterprise income tax incentive.

Example 3: New investment project C manufactures software products in Ly Nhan rural district, Ha Nam province, and obtains an investment registration certificate on January 15, 2016. Under the provisions of the Law on Enterprise Income Tax and Decree No. 118/2015/ND-CP and the guidance in Clause 1 of this Article, project C is in a sector eligible for the enterprise income tax incentives specified in Point b, Clause 1, Article 13 of the Law on Enterprise Income Tax, and is concurrently located in a geographical area with difficult socio-economic conditions specified in Appendix II to Decree No. 118/2015/ND-CP. Under the guidance in Clause 5 of this Article, project C concurrently satisfies multiple conditions for enjoying the enterprise income tax incentives and therefore may choose to enjoy the most favorable enterprise income tax incentive. Specifically, it may choose to enjoy the incentives based on the sectors eligible for incentives in accordance with the law on enterprise income tax: Income of an enterprise generated from project C is subject to the tax rate of 10 percent for 15 years and eligible for tax exemption for no more than 4 years and 50-percent reduction of payable tax amounts for no more than 9 subsequent years.

6. Hi-tech enterprises, science and technology enterprises, and science and technology organizations defined by the law on high technologies and law on science and technology as specified at Point dd, Clause 1, Article 16 of Decree No. 118/2015/ND-CP:

a/ Hi-tech enterprises may enjoy the enterprise income tax incentives in accordance with the law on enterprise income tax;

b/ Science and technology enterprises satisfying the condition of science and technology revenues prescribed by the law on science and technology and obtaining science and technology enterprise certificates may enjoy enterprise income tax exemption and reduction applicable to enterprises investing in hi-tech parks in accordance with the law on enterprise income tax;

c/ Science and technology organizations having investment projects may enjoy the enterprise income tax incentives under the guidance in this Article if satisfying the condition on sector or geographical area of each specific project.

7. For new investment projects manufacturing excise tax-liable commodities:

a/ New investment projects manufacturing under-24 seat cars, including cars for both passenger and cargo transportation with two or more seating rows and fixed partitions between passenger compartment and cargo hold, may enjoy the enterprise income tax incentives under the guidance in Clause 1 (excluding sectors eligible for enterprise income tax incentives specified in the Law on Enterprise Income Tax), and Clauses 2, 3, 4, 5 and 6 of this Article;

b/ New investment projects manufacturing excise tax-liable commodities other than those specified at Point a of this Clause may not enjoy the enterprise income tax incentives under the guidance in this Article.

Example 4: New investment project G manufactures cars of 9 seats or less in Chu Lai economic zone, Quang Nam province, and obtains an investment registration certificate on January 20, 2016. Under the guidance at Point a, Clause 7 of this Article, project G is a new investment project in an economic zone as specified at Point a, Clause 1, Article 13 of the Law on Enterprise Income Tax. Accordingly, income of an enterprise generated from project G is subject to the tax rate of 10 percent for 15 years and eligible for tax exemption for no more than 4 years and 50-percent reduction of payable tax amounts for no more than 9 subsequent years.

Example 5: New investment project H manufactures cigarettes in Chu Lai economic zone, Quang Nam province, and obtains an investment registration certificate on January 20, 2016. Under the guidance at Point b, Clause 7 of this Article, project H may not enjoy the enterprise income tax incentives.

8. Expanded investment projects satisfying the criteria prescribed in Clause 4, Article 14 of the Law on Enterprise Income Tax may choose to enjoy the tax incentives for the remaining period (if any) of an operating project or to be entitled to tax exemption or reduction for income additionally generated from expanded investment. The period of tax exemption or reduction for income additionally generated from expanded investment specified in this Clause is equal to the tax exemption or reduction period applicable to new investment projects located in the same geographical area or sector eligible for the enterprise income tax incentives in accordance with the law on enterprise income tax.

9. Conditions and procedures for application of the enterprise income tax incentives guided in this Circular must comply with the Ministry of Finance’s Circular No. 78/2014/TT-BTC of June 18, 2014, guiding the implementation of the Government’s Decree No. 218/2013/ND-CP of December 26, 2013, guiding the implementation of the Law on Enterprise Income Tax; the Ministry of Finance’s Circular No. 119/2014/TT-BTC of August 25, 2014, amending and supplementing a number of articles of Circulars No. 156/2013/TT-BTC, No. 111/2013/TT-BTC, No. 219/2013/TT-BTC, No. 08/2013/TT-BTC, No. 85/2011/TT-BTC, No. 39/2014/TT-BTC and No. 78/2014/TT-BTC, on the reform and simplification of tax-related administrative procedures; the Ministry of Finance’s Circular No. 151/2014/TT-BTC of October 10, 2014, guiding the implementation of the Government’s Decree No. 91/2014/ND-CP of October 1, 2014, amending and supplementing a number of articles of the Decrees on taxes; the Ministry of Finance’s Circular No. 96/2015/TT-BTC of June 22, 2015, guiding enterprise income tax prescribed in the Government’s Decree No. 12/2015/ND-CP of February 12, 2015, and amending and supplementing a number of articles of the Ministry of Finance’s Circulars No. 78/2014/TT-BTC, No. 119/2014/TT-BTC and No. 151/2014/TT-BTC; and Circular No. 21/2016/TT-BTC of February 5, 2016, guides value-added tax declaration and enterprise income tax incentives under the Government’s Decree No. 111/2015/ND-CP of November 3, 2015, on development of supporting industries.

Article 5. Guidance on import duty incentives

1. Investment projects in sectors or business lines eligible for special investment incentives specified in Section A, Appendix I, or implemented in geographical areas with particularly difficult socio-economic conditions specified in Appendix II, to Decree No. 118/2015/ND-CP, may enjoy import duty incentives as follows:

a/ Import duty exemption for goods imported to create fixed assets under  Clauses 6 and 8, Article 12 of the Government’s Decree No. 87/2010/ND-CP of August 13, 2010, detailing a number of articles the Law on Export Duty and Import Duty (below referred to as Decree No. 87/2010/ND-CP);

b/ Imported materials, supplies and parts which cannot be domestically produced for production of investment projects (except projects on manufacture and assembly of automobiles, motorbikes, air conditioners, electric heaters, refrigerators, washing machines, electric fans, dishwashers, disc players, amplifiers, electric irons, kettles, hair dryers, hand dryers and other commodity items under the Prime Minister’s decisions) are exempt from import duty for 5 (five) years from the date of production commencement under Clause 14, Article 12 of Decree No. 87/2010/ND-CP.

2. Investment projects in sectors or business lines eligible for investment incentives specified in Section B, Appendix I, or implemented in geographical areas with difficult socio-economic conditions specified in Appendix II, to Decree No. 118/2015/ND-CP are exempt from import duty for commodities imported to create fixed assets under Clauses 6 and 8, Article 12 of Decree No. 87/2010/ND-CP.

3. Investment projects eligible for import duty incentives, which invest in hotels, offices, apartments for lease, houses, trade centers, technical service facilities, supermarkets, golf courses, tourist sites, sport facilities, entertainment and leisure centers, medical examination and treatment establishments, training establishments, cultural centers, financial and banking sectors, insurance, audit and consultancy services, may enjoy the initial import duty exemption for equipment imported to create these projects’ fixed assets according to the list provided in Appendix II to Decree No. 87/2010/ND-CP. Projects having imported commodities eligible for initial duty exemption specified in this Clause may not enjoy import duty exemption under the guidance in other Clauses of this Article.

4. For investment projects capitalized at VND 6 trillion or more each and having at least VND 6 trillion in their investment capital disbursed within 3 years after being granted investment registration certificates or obtaining investment policy decisions:

a/ They may enjoy the import duty incentives like those located in geographical areas with particularly difficult socio-economic conditions as guided in Clause 1 of this Article;

b/ Within 3 years after being granted investment registration certificates or obtaining investment policy decisions, the application of import duty incentives must comply with the guidance at Point a of this Clause based on their owners’ declaration;

c/ In case an investment project fails to have at least VND 6 trillion in its investment capital disbursed within 3 years after being granted an investment registration certificate or obtaining an investment policy decision, it may not enjoy import duty incentives under the guidance at Point a of this Clause.

Example 6: Investment project I is granted an investment registration certificate on January 1, 2016, and capitalized at VND 6.5 trillion as stated in its investment registration certificate. If the project has at least VND 6 trillion in its investment capital disbursed within 3 years after being granted the investment registration certificate, it may be exempt from import duty under Clause 1 of this Article.

From January 1, 2016, through December 31, 2018, if a project owner imports commodities to create the project’s fixed assets, or imports materials, supplies and parts which cannot be domestically produced for production of the project (in case the project has been put into operation (if any)), and at the time of importation, such commodities are exempt from import duty under Clauses 6 and 14, Article 12 of Decree No. 87/2010/ND-CP, then after December 31, 2018:

(i) In case the project has disbursed at least VND 6 trillion in its investment capital, it may continue being exempt from import duty for commodities imported to create fixed assets (if any), and import duty for materials, supplies and parts which cannot be domestically produced for 5 years from the date of production commencement under Clauses 6, 8 and 14, Article 12 of Decree No. 87/2010/ND-CP.

(ii) In case the project fails to have VND 6 trillion in its investment capital disbursed, its owner may not continue to enjoy the incentive of import duty exemption.

5. For investment projects implemented in rural areas employing at least 500 workers each (exclusive of part-time workers and workers under labor contracts of under 12 months):

a/ They may enjoy the import duty incentive like those in geographical areas with difficult socio-economic conditions under the guidance in Clause 2 of this Article;

b/ For investment projects employing at least 500 workers in both rural and non-rural geographical areas, the number of workers in construction works and items in rural areas (except workers in construction works and items in non-rural areas) shall serve as a basis for determination of their eligibility for the incentives.

6. Hi-tech enterprises, science and technology enterprises and science and technology organizations specified by the law on high technologies and the law on science and technology may enjoy the import duty incentives under the guidance in Clause 1, 2, 3, 4 or 5 of this Article, depending on their satisfaction of the condition on sectors and business lines, geographical areas, capital size and number of employees.

7. Investment projects on mineral exploitation, and production and trading of excise tax-liable goods and services, except those manufacturing automobiles, are not eligible for the import duty incentives specified in this Article.

8. Dossiers and procedures for import duty exemption, and report on inspection of use of commodities eligible for import duty exemption:

a/ Commodities eligible for import duty exemption of investment projects specified in Clauses 1, 2, 3, 4, 5 and 6 of this Article are subject to registration of the list of commodities eligible for import duty exemption. When registering the list of commodities eligible for import duty exemption with the customs office, an investment project owner shall submit a copy of the investment registration certificate or the investment policy decision together with the original, which states that the investment project is capitalized at VND 6 trillion or more, has at least VND 6 trillion in its investment capital disbursed within 3 years after being granted the investment registration certificate or obtaining the investment policy decision, or is located in a rural area and employs at least 500 workers. In case an investment project in a rural area employing at least 500 workers is not eligible for grant of an investment registration certificate or an investment policy decision, the project owner shall submit the original report on labor information and project implementation progress, and a copy of the written economic-technical report/document together with the original. The registration of the list of commodities eligible for import duty exemption must comply with Article 104 of the Ministry of Finance’s Circular No. 38/2015/TT-BTC of March 25, 2015, guiding customs procedures; customs inspection and supervision; import duty and export duty; and tax administration of imports and exports (bellow referred to as Circular No. 38/2015/TT-BTC).

b/ Dossiers and procedures for import duty exemption for investment projects specified in Clauses 1, 2, 3, 4, 5 and 6 of this Article must comply with the guidance in Article 105 of Circular No. 38/2015/TT-BTC.

c/ The report on, and inspection of, the use of commodities eligible for import duty exemption of investment projects specified in Clauses 1, 2, 3, 4, 5 and 6 of this Article must comply with Article 106 of Circular No. 38/2015/TT-BTC.

Article 6. Guidance on application of non-agricultural land use tax incentives

1. Investment projects in sectors or business lines eligible for special investment incentives specified in Section A, Appendix I, or implemented in geographical areas with particularly difficult socio-economic conditions specified in Appendix II, to Decree No. 118/2015/ND-CP are exempt from non-agricultural land use tax specified in Clause 1, Article 9 of the Law on Non-Agricultural Land Use Tax.

2. Investment projects in sectors or business lines eligible for investment incentives specified in Section B, Appendix I, or implemented in geographical areas with difficult socio-economic conditions specified in Appendix II, to Decree No. 118/2015/ND-CP may enjoy 50% reduction of non-agricultural land use tax specified in Clause 1, Article 10 of the Law on Non-Agricultural Land Use Tax.

3. Investment projects capitalized at VND 6 trillion or more each and having at least VND 6 trillion in their investment capital disbursed within 3 years after being granted investment registration certificates or obtaining investment policy decisions may:

a/ Enjoy the non-agricultural land use tax incentives if implemented in geographical areas with particularly difficult socio-economic conditions under the guidance in Clause 1 of this Article;

b/ Within 3 years after being granted investment registration certificates or obtaining investment policy decisions, enjoy the non-agricultural land use tax incentives under the guidance at Point a of this Clause, based on their owners’ declaration;

c/ Within 3 years after being granted an investment registration certificate or obtaining an investment policy decision, if a project fails to have at least VND 6 trillion in its investment capital disbursed, it may not enjoy the non-agricultural land use tax incentives specified at Point a of this Clause.

4. Investment projects implemented in rural areas employing at least 500 workers each (exclusive of part-time workers and workers under labor contracts of under 12 months) may:

a/ Enjoy the non-agricultural land use tax incentives if implemented in geographical areas with difficult socio-economic conditions specified in Clause 2 of this Article;

b/ If employing at least 500 workers and implemented in a locality covering both a rural area and a non-rural area, have its eligibility for the incentives determined under the guidance at Point b, Clause 5, Article 5 of this Circular;

c/ Investment projects implemented in rural areas that fail to satisfy the condition of employing at least 500 workers may not enjoy the non-agricultural land use tax incentives until they satisfy such condition.

5. Investment projects in sectors or business lines eligible for the investment incentives specified in Section B, Appendix I to Decree No. 118/2015/ND-CP, which are implemented in geographical areas with difficult socio-economic conditions specified in Appendix II to Decree No. 118/2015/ND-CP, are eligible for non-agricultural land use tax exemption under Clause 1, Article 9 of the Law on Non-agricultural Land Use Tax.

6. Hi-tech enterprises, science and technology enterprises and science and technology organizations defined by the law on high technologies and the law on science and technology may enjoy the non-agricultural land use tax incentives in accordance with Clause 1, 2, 3, 4 or 5 of this Article based on their sectors or business lines, geographical areas, capital size or number of employees of their projects.

7.  Investment projects on mineral exploitation, and production and trading of excise tax-liable goods and services, except those manufacturing automobiles, are not eligible for the non-agricultural land use tax incentives specified in the Article.

8. The principles, competence and dossiers for non-agricultural land use tax exemption or reduction must comply with the Law on Non-Agricultural Land Use Tax, the Government’s Decree No. 53/2011/ND-CP of July 1, 2011, detailing and guiding a number of articles of the Law on Non-agricultural Land Use Tax, the Ministry of Finance’s Circular No. 153/2011/TT-BTC of November 11, 20111, guiding non-agricultural land use tax, the Law on Tax Administration and guiding documents.

Article 7. Organization of implementation

1. This Circular takes effect on August 1, 2016.

2. Investment projects which are granted investment registration certificates or investment policy decisions under Decree No. 118/2015/ND-CP during the period from December 27, 2015, to the effective date of this Circular must comply with the guidance in Articles 1, 2, 3, 4, 5 and 6 of this Circular.

3. The procedures for application of the investment incentives must comply with Article 17 of Decree No. 118/2015/ND-CP. Investment licenses, investment certificates and business registration certificates mentioned in the legal documents guiding the procedures for application of the enterprise income tax, import duty and non-agricultural land use tax incentives mentioned in this Circular shall be respectively replaced by investment registration certificates, investment policy decisions and science and technology enterprise certificates (for science and technology enterprises) specified in Clause 2, Article 17 of Decree No. 118/2015/ND-CP.

4. The adjustment of investment incentives must comply with Article 17 of Decree No. 118/2015/ND-CP and the assurance of business investment in case of statutory change must comply with Article 3 of Decree No. 118/2015/ND-CP.

5. Investment projects granted investment licenses, investment certificates or papers with equivalent legal validity by competent state agencies before July 1, 2015, and domestic investment projects capitalized at below VND 15 billion implemented before July 1, 2015, may enjoy the tax (enterprise income tax, import duty and non-agricultural land use tax) incentives in accordance with legal documents effective before July 1, 2015.

6. In case legal documents referred to in this Circular are amended, supplemented or replaced, the amending, supplementing or replacing legal documents shall prevail.

7. Any problems arising in the course of implementation should be promptly reported to the Ministry of Finance for appropriate amendment and supplementation.-

For the Minister of Finance
Deputy Minister
VU THI MAI