Is it possible to transfer stocks between non-resident individuals?

Answer:

The transfer of stocks between non-resident is completely normal

According to clause 6, article 21, circular No. 92.2015/TT-BTC dated 15/06/2015 of the Ministry of Finance amended and supplemented  clause 5, article 16, circular No. 156/2013/TT-BTC dated 06/11/2013 of Ministry of Finance:

“5. Declaring tax on income from stock transfer

…b) Tax declaration

Tax declaration for individual who transfer share or stock have to direct tax declaration with the tax department, It was guided in point a.3 of this clause:

– A sample declaration form 04 / CNV-TNCN attached to Circular No. 92/2015 / TT-BTC;

– Copy of stocks transfer contract.

Enterprise A has been inspected by the tax authority and 01 input invoice (Sheet 2) that has declared VAT, was found and charged to expense of the Enterprise, but the seller has not prepared a notice of invoice issuance yet. The total value of the invoice is 1 billion VND (VAT is 100 million VND). The Tax authority requires cancellation of non-purpose expenditure for all deductible expenses and input VAT and collects taxes due as well as makes late payment penalties for reason: “Illegal invoice because the seller has not prepared notice of invoice issuance yet”. Can the above expenses and VAT be declared and calculated as reasonable expenses? If possible, how should accountant of the Company A handle to rationalize expenses and VAT for the Tax Authority?

Answer:

This is possible for accountant by making explanation and protection of the VAT and cost as follows:

According to provision at Article 22 of Circular 39/2014/TT-BTC, the invoices that have not been done for notice of issuance are illegal. However, according to provision in Clause 2, Article 10 of Circular 10/2014/TT-BTC for failure to prepare notice of invoice issuance before the invoice is put into use:

“… b) A penalty of 6.000.000 VND is made for failure to prepare a notice of invoice issuance before the invoice is put into use if these invoices are associated with the arising economic operation that has been declared and paid tax in accordance with provision.

  1. c) A penalty ranging from 6.000.000 VND to VND 18.000.000 VND is made for failure to prepare a notice of invoice issuance before the invoice is put into use if these invoices are associated with the arising economic operation but it is not yet the tax period. The seller shall commit to declare and pay taxes for invoices prepared in this event.

In case that the seller has committed acts of violations as stated in point b and c of this Clause and has complied with the sanctioning decision, the buyer is allowed to use invoices to declare, deduct and charge into expenses as prescribed”

Therefore, for invoices that the seller has not yet issued but has been used, if the buyer would like to use those invoices to declare, deduct tax, and charge into expenses when calculating Corporate income tax, then:

  • Require the seller to supply a minutes of penalty (photocopy) for invoice issuance without notice
  • Require the seller to provide receipts and documents (photocopy) proving the payment of penalties for the use of invoices that have not been prepared for notice of issuance yet

Conclusion:

For situation mentioned above, if the seller has declared and paid taxes as well as complied with the sanctioning provisions of the Tax Authority, the buyer is allowed to use those invoices to declare, deduct and charge into expenses as prescribed.

(For case that the Seller has failed to declare and comply with the sanctioning provisions of the Tax Authority => The above invoices of the buyer is cancelled and not included in deductible expenses)

Note:

Through the situation mentioned above, the accountants should note that when receiving the invoice, let’s visit: tracuuhoadon.gdt.gov.vn of the General Department of Taxation to know whether such invoice has been issued or not.

In case the Company rewards an individual with outstanding achievements in the year by purchasing a tour, will it be calculated in taxable income of personal income tax (PIT)?

Answer:

Pursuant to Clause 2, Article 2, Circular No. 111/2013/TT-BTC guiding PIT, stipulating taxable incomes from salaries and wages included other benefits (expenses for employees during holidays, hiring tax declaration consulting services, expenses for family maids such as drivers, cooks, etc) and monetary or non-monetary rewards in anyway, …

Therefore, in case the Company awards tours to employees with outstanding achievements in the year, this is a welfare expense and the beneficiary can be identified, so the Company must calculate it in the income, subject to PIT from employees’ salaries and wages to withhold, declare and pay PIT according to regulations.

During the establishment process, the company has authorized a representative to pay for the expenses related to the establishment of the company, these expenses have VAT invoices bearing their names, please ask Can my company deduct the value added tax on the above expenses?

Answer:

At Point 12.b, Article 14, the Ministry of Finance’s 219-year circular guiding the value-added tax prescribing the case of enterprises before their establishment, the founding members shall have written authorization for organizations and individuals. If the enterprise pays a number of expenses related to the establishment of the enterprise and purchases goods and supplies, the enterprise may declare and deduct the input value added tax according to the vertical value added invoice. name of the authorized organization or individual and must make payment to the authorized organization or individual via bank for invoices valued at twenty million VND or more.

Based on the above provisions, your business is entitled to deduct the input value added tax of invoices incurred during the establishment of the enterprise in the name of authorized individuals and to be deducted, it is required have full authorization documents, invoices as prescribed and must pay via bank for invoices worth over 20 million.

The company provided service, issued VAT invoice to the buyer and declared VAT as required. Then the buyer has breached of contract, both parties decide to cancel the signed contract . How is the processing of issued VAT invoice in this case?

Answer:

Based on point 2.8, appendix 04 Circular No.39/2014/TT-BTC dated 31 March 2014 of the Ministry of Finance:

“2.8. When a buyer returns goods for which the seller issued the invoice due to the nonconformity of the specification or quality of goods received, it must issue an invoice which specifies returned goods (total or a part of sold goods) due to the nonconformity of specification of quality of goods and VAT (if any).

If the buyer has no invoice, the buyer and the seller shall, when the goods are returned, make a record which specify types of goods, quantity, and VAT-exclusive price or VAT amount according to the sales invoice (number and date) of the returned goods and reasons for return, and the seller shall revoke the issued invoice.”

In case, the processing of issued VAT invoice shall be the same as the case of sales returns as guided at item 2.8, appendix 04 Circular No.39/2014/TT-BTC. The company relies on the canceled invoice agreement signed by both parties and the invoice processing records in the case of sales returns as guided above to declare the revenue adjustment, output VAT and make additional declarations for adjustment of VAT, CIT under guidance in current legal documents on tax administrations.

Organizations established and operating in accordance with Vietnamese law have entered into a contract of purchasing services of foreign contractors which have entered into labor contracts with foreigners working in Vietnam. Therefore, the Vietnamese Company will notify the foreign contractor of the obligation to pay contractor tax. In addition, does the Vietnamese company need to notify foreign parties about the obligation to pay personal income tax to foreign workers?

Answer:

According to Article 27 of the Decree No. 65/2013/ND-CP , the entities that are required to apply to personal income tax registration are:

“The wage earners, including foreigners working for foreign contractors and foreign sub-contractors in Vietnam.”

Therefore, the Vietnamese party shall be responsible for notifying the foreign contractor of obligation in personal income tax payment for these foreign employees and the responsibility for providing information about foreign employees, including:  List, nationalities, passport number, working duration, affairs and incomes to the Vietnamese party for the Vietnamese party’s provision to the tax offices within 7 days as from the  date foreign individuals begin working in Vietnam.

The Company was established in 2008, under the license the Company was entitled to CIT incentives according to the locality (CIT rate of 15% for 12 years; tax exemption for 3 years and reduction of 50% for next 7 years). However, in 2016 the company started the expansion of investment (increasing investment capital) but at this time, the local where the Company registration for business was no longer entitled to CIT incentives. So, How to determine payable CIT amount?

Answer:

After the expansion investment and the local where the Company registration for business is no longer entitled to CIT incentives, so the income generates from expansion is not entitled to CIT incentives.

Determination expansion project when meeting one of the three conditions (According to Clause 4, Article 10 of Circular no 96/2015/TT-BTC dated June 22, 2015):

  • Historical cost of fixed assets increased by at least VND 20 billion.
  • The ratio of historical cost of fixed assets increased by at least 20%
  • Design capacity production of expansion investment increased by 20%.

Therefore:

If the increased income from expansion investment can be separated, this income will not be entitled for CIT incentives.

In case it is impossible to separate the increased income from expansion investment, it shall be allocated according to the ratio of the increased fixed assets or the increased design capacity production from expansion investment. This income will not be entited for CIT incentives.

The Employee in company want to register deductions for grandparents of husband or wise. Could this lead to risks?

Answer:

Regarding the registering deductions for dependants (grandparents of husband or wise), according to Circular No. 111/2013 / TT-BTC:

At Point d, Clause 1, Article 9 stipulate:

d.4) Other dependants that the taxpayer has to provide for, who meet the conditions in Point dd Clause 1 of this Article, including:

d.4.1) The taxpayer’s brothers and sisters.

d.4.2) The taxpayer’s grandparents, aunts, uncles.

d.4.3) The taxpayer’s nieces and nephews.

d.4.4) Other people to provide for as prescribed by law.

=> This point stipulates that grandparents, maternal grandparents, not grandparents, or grandparents of wife (or husband) so in this case if the company accepts the deduction registration, the company will be at risk that the tax authority does not accept the deduction, is subject to a personal income tax collection and is fined.

In case the company accepts risks and agrees to register for deduction, the company shall prepare dossiers according to Point g, Clause 1, Article 9 of the Regulation on documents proving the dependents:

g.4) For other people mentioned in Point d.4 Clause 1 of this Article, the proving documents include:

g.4.1) photocopies of Certificates of birth or ID cards.

g.4.2) Other legitimate papers to determine the custody as prescribed by law.

If the dependants are of working age, other papers proving the dependant’s incapability of work is required, apart from the aforesaid papers, such as the Certificate of disability according to regulations of law on the disabled that are incapable of works, a photocopy of the medical record of the ill person incapable of work (sufferer from AIDS, cancer, chronic kidney failure, etc.)

The legitimate papers mentioned in Point g.4.2 Clause 1 of this Article are any legal document that proves the relationship between the taxpayer and the dependant, such as:

– Photocopies of the papers proving the custody (if any).

– A photocopy of the household book (if their names are in the same household book).

– A photocopy of the certificate of temporary residence of the dependent (if their names are not in the same household book).

– A declaration that the dependant is living with the taxpayer, which made by the taxpayer according to the forms provided in documents on tax administration and certified by the People’s Committee of the commune where the taxpayer resides.

– A declaration that the dependant is residing locally and living alone, which is made by the taxpayer according to the forms provided in documents on tax administration and certified by the People’s Committee of the commune where the taxpayer resides.

Why are goods imported through bonded warehouses capable of paying contractor tax?

Answer:

Overview of bonded warehouse:

  • Concept: is a warehouse or yard area separated from the surrounding area for temporary storage, preservation or provision of services for goods from foreign countries or from inside the country to be put into warehouses under contracts on hiring of foreign warehouses The customs office is signed between the bonded warehouse owner and the goods owner under customs inspection and supervision.
  • Goods are imported through bonded warehouses in the following forms:

Step 1: Goods are brought into bonded warehouses by foreign contractors (from abroad)

Step 2: Goods are transferred ownership (sold) to Vietnamese enterprises (including export processing enterprises)

Step 3: Vietnamese enterprises carry out import procedures.

Thus, goods provided in the above form have delivery and receipt places located in bonded warehouses. In other words, the place of delivery and receipt of goods is within the territory of Vietnam.

According to Article 1, Circular 103/2014 / TT-BTC is applicable to the case:

  1. Foreign business organizations having permanent establishments in Vietnam or not; foreign business individuals that are residents of Vietnam or not (hereinafter referred to as foreign contractors and foreign sub-contractors) who do business in Vietnam or earn income in Vietnam under contracts, agreements, or commitments between the foreign contractor and a Vietnamese entity or between a foreign sub-contractor and a foreign sub-contractor to perform part of the main contract.
  2. Foreign entities providing goods in Vietnam in the form of domestic export and earn income in Vietnam under contracts between them and Vietnamese companies (except for cases in which goods are processed and then returned to foreign entities) or distribute goods in Vietnam or provide goods under Incoterms rules that require the sellers to be responsible for goods that have been taken into Vietnam’s territory.

So that, the foreign company uses a bonded warehouse in Vietnam to sell and deliver goods to the Company in Vietnam, the foreign company must be obliged to pay withholding tax on the income generated in Vietnam.