VietnameseOfficial Dispatch No.768/TCT-TNCN dated Hanoi, March 08, 2011 of the General Department of Tax on The conditions to perform personal Income Tax exemption for foreign experts implementing ODA programs and/or projects in Vietnam
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Official Dispatch No.768/TCT-TNCN dated Hanoi, March 08, 2011 of the General Department of Tax on The conditions to perform personal Income Tax exemption for foreign experts implementing ODA programs and/or projects in Vietnam
| Issuing body: | General Department of Taxation | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 1768/TCT-TNCN | Signer: | Nguyen Thi Cuc |
| Type: | Official Dispatch | Expiry date: | Updating |
| Issuing date: | 19/05/2006 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Tax - Fee - Charge |
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THE MINISTRY OF FINANCE GENERAL DEPARTMENT OF TAXATION ------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness --------- |
No.768/TCT-TNCN For: The conditions to perform personal income tax exemption for foreign experts implementing ODA programs and/or projects in Vietnam | Hanoi, March 08, 2011 |
To: WB-IDF Project management Committee – The Ministry of Natural resources and Environment
Reply the Office Dispatch No.291/BQL WB – IDF dated December 29, 2010 of WB-IDF Project managing Board – The Ministry of Natural resources and Environment proposed applying the Decision No.199/2009/QD-TTg to exempt for foreign experts working for OAD programs and projects in Vietnam, the General Department of Taxation has the following opinions:
1. For the conditions to be performed Decision No.119/2009/QD-TTg.
At Article 2 of the Decision No.119/2009/QD-TTg dated October 01, 2009 promulgating the Regulation on foreign experts implementing ODA programs and projects of the Prime minister of Government regulated: “This Decision takes effect on November 20, 2009”
Article 2 of the Joint circular No. 12/2010/TTLT-BKHDT-BTC of the Ministry of Planning and Investment and the Ministry of Finance, dated May 28, 2010 detailing and guiding the performance of the Regulation on foreign experts implementing ODA programs and projects, which was promulgated together with Decision No.119/2009/QD-TTg guides:
“This Circular applies to foreign experts (below referred to as experts) defined in Clause 5. Article 3 of the Regulation on foreign experts implementing ODA programs and projects promulgated together with the Prime Minister's Decision No. 119/2009/QD-TTg of October 1, 2009 (below referred to as the Regulation) and applies only to experts whose contracts take effect from November 20, 2009”
Based on the provisions and guidelines which are mentioned above, in case of Mr Benoint Laplante’s consulting Contract, which took effect before December 20, 2009, is not subject of application of Decision 119/2009/QD-TTg.
2. For the conditions of applying the Decision No.211/1998/QD-TTg on October 31, 1998 on promulgating the regulation on foreign specialists implementing ODA programs and projects in Viet Nam of the Prime Minister of Government.
-At Article 2 and article 5 of the Regulation on foreign experts issued together with the Decision No.211/1998/QD-TTg provide as follows:
“Article 2. This Decision takes effects 15 days after its signing.”
Article 5....
2. The foreign party includes foreign Governments, International organizations and Inter- Governmental organizations that finance ODA programs and/or projects in Vietnam.
3. The Vietnamese party includes Vietnam’s competent agencies that perform the function of State management, administration and implementation of ODA programs and/or projects in Vietnam.
...
6. Foreign experts implementing ODA programs and/or projects (below referred to as experts) are foreign nationals who are either sent to Viet Nam by the foreign party to study, elaborate, evaluate or implement ODA programs and/or projects according to the provisions or agreements in ODA related international treaties which have been concluded between the Vietnamese party and the foreign party; or invited and hired by the Vietnamese party into Vietnam for the implementation of ODA programs and/or projects...."
Basing the above provisions and guidelines, the case of Mr. Benoit Laplante, if he is foreign expert, has directly signed a consulting contract with the foreign party or the Vietnamese party, and the consulting contract takes effect in the time that be regulated in the Article 2 of the Decision No.211/1998/QD-TTg is subject of application of the October 31, 1998 Decision No.211/1998/QD-TTg of Prime Minister of Government.
3. Procedures and dossiers for expert certification.
- At the Point 2, Section II of the Circular No. 02/2000/TT-BKH dated January 12, 2000 guiding the implementation of Regulations on foreign experts issued together with the October 31, 1998 Decision No.211/1998/QD-TTg of Prime Minister of Government guides as follows:
"Procedures for certification ODA programs and/ or projects:
The Ministry of Planning and Investment bases on the request of the concerned parties for carrying out evaluation and certification ODA programs and/or projects or other activities that employ foreign specialists...."
Basing on the above guidelines, the Ministry of planning and investment shall be responsible for confirming for regular cases under the regulations and must send confirmation in written to the relevant agencies. For irregular cases, the Ministry of Planning and Investment shall reply by a formal written specifying the reasons for refusal of the confirming.
4. Procedures and dossiers for tax exemption
At Point 3, Section II of Circular No.52/2000/TT-BTC dated June 5, 2000 of Ministry of Finance guiding the tax and fee exemption for foreign specialists implementing programs and/or projects using of Official Development Assistance (ODA) guides as follows:
"3. For income earned from the implementing of programs and/or projects in Vietnam:
The foreign specialist shall present to the local tax agency, where the project implementing agency is headquartered, the dossier for personal income tax exemption, which includes:
- The project managing agency’s official dispatch on proposal of non – collection of personal income tax on the foreign specialist’s income from the implementation of the ODA program and/or project;
- The Ministry of Planning and Investment’s confirming of being the foreign specialist who take participation in the implementation of the ODA program and/or project, in which clearly stating his/her name, nationality, passport number, working term in Vietnam and the amount of received income, and the list of his/her dependants (the copy thereof affixed with stamp of the project managing agency);
-The documents relating to the tax – free income of the foreign specialist.
- The tax agency shall not collect personal income tax on foreign specialists’ incomes generated from the implementation of ODA programs and/or projects in Vietnam and issue confirmation of personal income tax exemption for foreign specialists (according to the form attached this Circular).
Based on the above guidelines, the tax agencies will implement personal income tax exemption under the regulation after foreign experts have been issued the professional certifications by the Ministry of Planning and Investment.
The General department of Taxation feedbacks to Project managing Board and contacts with the Ministry of Planning and Investment to be resolved in accordance with law./.
FOR. DIRECTOR OF TAXATION GENERAL DEPARTMENT DEPUTY DIRECTOR Pham Duy Khuong |
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