Global tax guide to doing business in Vietnam

The legal framework of Vietnamese taxation policies is shaped mainly by the Law on Corporate Income Tax 2008 (last amended in 2020), Law on Personal Income Tax 2007 (last amended in 2014), the Law on Value Added Tax (last amended in 2016), the Law on Tax Administration 2019 and many other tax laws and guidelines issued by the Ministry of Finance, General Department of Taxation, and by local tax authorities.

Taxes levied in Vietnam include Corporate Income Tax, Personal Income Tax, Foreign Contractor Tax, Value Added Tax, Statutory contributions including Social Insurance, Unemployment Insurance, and Health Insurance. Vietnam also imposes other taxes such as customs duties, excise tax, land use tax, environment protection tax, natural resource tax, stamp duty and registration fee.

On February 9, 2022, Vietnam became a signatory to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI), which, upon entering into force for Vietnam, will amend several of Vietnam’s tax treaties to be consistent with the scope of implementation of the MLI. At the time of writing, Vietnam has not deposited its instrument of ratification, acceptance or approval.

In this chapter

Legal system

Vietnam operates under a civil law system. The Vietnamese legal system is often considered to be a continental European legal system, with written law or legal normative documents being the main legal source. In Vietnam, the laws of the National Assembly, decrees of the government, and circulars of Ministers are the most important normative legal documents.

Taxation authorities

Tax policies of Vietnam are implemented by the Ministry of Finance and its affiliated authorities nationwide, with the most important authority being the General Department of Taxation. Vietnam’s local tax authority system includes the Provincial Tax Departments and District-level Tax Departments. Most tax administration matters are managed by the Provincial Tax Departments or District-level Tax Departments, which are the managing tax authorities of taxpayers. Since Vietnam currently has 63 provinces and central cities, with different tax authorities for each province and central city, there may be, in practice, inconsistencies in interpretation, guidance and implementation of tax laws and regulations between different localities.

Business vehicles

Foreign investors can choose from various options to conduct business in Vietnam, including establishing a commercial presence (i.e., a company, a representative office, or a branch), and/or investing through contractual arrangement in the form of a Business Cooperation Contract or a Public and Private Partnership Contracts.

Companies

There are three types of companies for foreign invested enterprises:

Limited Liability Company (LLC)

An LLC can be established by one member (being an individual or organization), which is known as a single-member LLC (SMLLC); or it can be established by two or more members, but not exceeding fifty, which is known as a multi-member LLC (MMLLC). For LLCs, the liabilities of its members are limited to the charter capital (for SMLLCs) or their portion of contributed capital (for MMLLCs). Under the Vietnam Law on Enterprises 2020, SMLLCs and MMLLCs cannot issue shares, but can issue bonds.

Joint Stock Company (JSC)

A JSC, which is also known as a shareholding company, is established by having at least three shareholders (who may be individual(s) and/or organization(s)). There is no restriction on the maximum number of shareholders a JSC may have. JSCs are similar to LLCs in terms of limited liability as shareholders of a JSC are only responsible for the debts and liabilities of the JSC to the extent of their portion of shares. In accordance with Vietnamese Law on Enterprises 2020, JSCs are permitted to issue shares, bonds and other kinds of securities.

Partnership Company

A partnership is a company set up by at least two individual partners who assume unlimited liability for the partnership’s debts and liabilities (these partners are called “unlimited liability members”). In addition to unlimited liability members, investors can also join as “limited liability members” who are only responsible for the partnership’s debts and liabilities to the extent of their contributions to the company’s charter capital. Compared to LLCs and JSCs above, partnerships are a less common type of business vehicle for foreign investors.

Representative office

Representative offices set up by foreign entities are only allowed to conduct market research, act as a liaison office and undertake promotion activities for the business of its parent company. Under Vietnamese laws, representative offices of foreign investors are not allowed to engage in activities that generate revenue or enter into contracts. Foreign investors may choose to establish a representative office in Vietnam as an initial step to gain a better understanding of the Vietnamese market before committing to a more substantial business presence in Vietnam.

Branch

For foreign investors, establishing a branch in Vietnam is less common than establishing a representative office and, in accordance with Vietnam’s WTO commitments, is only permitted in a few sectors. Branches of foreign companies are different from representative offices in that branches are permitted to conduct commercial activities and generate revenue in Vietnam from the provision of services.

Contractual arrangements

Business Cooperation Contract (BCC)

If foreign investors wish to implement an investment project in Vietnam without establishing a new legal entity, they can choose to enter into a BCC with at least one  Vietnamese partner. During the implementation of the BCC, parties to the BCC can mutually agree on the allocation of liabilities incurred and the sharing of revenue, products or after-tax profits arising from such BCC. As a common practice in Vietnam, investment under a BCC is usually applied in the fields of telecommunications, oil and gas and real estate.

Public-Private Partnership (PPP)

A PPP is a form of investment on the basis of a contract between an investor and a Vietnamese competent State authority to execute, operate and manage an infrastructure development project or to provide public services to the extent required by law. Types of PPP contracts include Build-Operate-Transfer (BOT), Build-Transfer (BT), Build-Transfer-Operate (BTO), Build-Own-Operate (BOO), Build-Transfer-Lease (BTL), Build -Lease-Transfer (BLT) and Operate-Manage (O&M) Contracts.

Financing a corporate subsidiary

Debt financing

Under Vietnamese tax laws, interest on debt is generally a deductible expense for corporate income tax (CIT) purposes.

However, Vietnamese tax regulations also provide certain restrictions on the deductibility of interest expense for CIT purposes, such as in the case of related party debt transactions. Specifically, Vietnam tax regulations provide that, in respect of a related party debt transaction, the amount of interest expense (after being offset with deposit interest and loan interest incurred in the relevant tax period) that is deductible for CIT purposes shall not exceed 30% of EBITDA. Moreover, as a matter of practice and for loan transactions with related parties, relevant interest expenses can also be challenged by tax authorities and treated as non-deductible for CIT purposes if such tax authorities deem that the relevant interest rate is not within the arm’s length range, when compared to the interest rates of commercial banks announced by the State Bank of Vietnam. Current regulations do not provide restrictions regarding debt-to-equity ratio.

Interest expenses incurred that correspond to the portion of charter capital that has not been contributed in accordance with the relevant registered schedule, are treated as non-deductible. Moreover, offshore loans that are subject to the requirement of registration with the State Bank of Vietnam must be properly registered/notified to the State Bank of Vietnam in order for interest expenses related to those offshore loans to be deductible for CIT purposes.

Notwithstanding the above, interest is not deductible for CIT purposes if the rate of interest exceeds 150% of the prime lending rate quoted by the State Bank of Vietnam as at the borrowing date.

Equity financing

Equity of a corporate vehicle in Vietnam may be financed by investors by way of contributing capital to establish a new enterprise or by injecting capital or buying capital portions/shares in an existing enterprise. In the case of a capital increase through the issuance of additional shares and acceptance of new investors/contributors, surplus equity may result from new contributors who acquire their equity portion by paying a higher price than the par value of the shares (for JSCs) or a higher price than the price paid by existing investors (for LLCs). In such a case, such surplus equity shall not be seen as taxable income for CIT or VAT calculation purposes; however, there is one uncommon exception in respect of LLCs, based on one official guidance from the General Department of Taxation, where investors must declare and pay income tax on any equity surplus that arises in respect of the raising of equity and acceptance of new contributors where all investors agree that such equity surplus belongs to such investors.

Stamp tax

Vietnam does not impose a stamp tax in respect of debt or equity financing.

Corporate income tax

CIT computation

Vietnam does not impose a stamp tax in respect of debt or equity financing.

Enterprises established under the laws of Vietnam are subject to CIT imposed on their worldwide income. CIT payable is determined based on taxable income and CIT rate. Taxable income is equivalent to turnover minus deductible expenses, exempted income and losses carried-forward from previous periods plus other taxable incomes (including incomes derived overseas).

The standard CIT rate is 20%. Preferential CIT rates may apply to enterprises entitled to certain CIT incentives.

Expenses are deductible for CIT calculation purposes if those expenses are: (i) actually incurred and related to the business activities of the enterprises; (ii) supported by legitimate invoices and supporting documents in accordance with regulations; (iii) supported by the non-cash payment voucher if the amount is VND20 million or above; and (iv) not prescribed on the list of non-deductible expenses under current tax regulations (e.g., staff welfare expenses exceeding statutory cap; depreciation expenses not in accordance with tax regulations; and expenses that are not matched with taxable income).

Losses incurred in a financial year may be entirely and consecutively carried forward for a maximum of five years. However, losses are not allowed to be carried back to be offset against profits in earlier tax years. Moreover, Vietnam provides no tax grouping regime or allows losses to be offset between companies within the same group of companies.

Capital Assignment Tax (CAT)

Pursuant to current Vietnamese CIT regulations, gains derived by a foreign entity from the assignment or transfer of capital or shares in a Vietnamese LLC or JSC shall be subjected to CAT at the rate of 20%.

The gain (or the taxable income) from capital assignment is determined as follows:

Taxable income = Assignment/transfer price – Purchase price of the transferred capital – Assignment/transfer expenses

Where both the transferor and transferee are foreign residents, the Vietnamese company who has capital to be transferred shall be responsible for declaring and paying the CAT to the local tax authority on behalf of the foreign transferor.

The statutory deadline for the CAT declaration and CAT payment are both within ten days from the date tax liability arising.

Although current Vietnam tax regulations provide no clear guidance on the CAT implications related to indirect capital transfers (i.e., capital transfer related to a multi-tiered holding structure where offshore holding companies directly or indirectly assign their capital or shares, which may affect its indirect ownership of capital or shares and/or assets in Vietnamese subsidiaries), the General Department of Taxation and some local tax authorities are of the view that CAT shall be imposed on such offshore indirect transfers by applying the same tax mechanism as a direct capital transfer to determine CAT liabilities and declaration obligations.

Cross-border payments

Transfer pricing

In Vietnam, transfer pricing normally refers to the pricing of goods and services between related parties. Currently, Decree 132/2020/ND-CP, issued by the government, provides certain requirements to manage related party transactions (RPTs). Current transfer pricing rules require RPTs to reflect arm’s length pricing and place the burden of proof on taxpayers to demonstrate that RPTs are dealt on an arm’s length basis. Acceptable methods for determining an arm’s length price of RPTs include: (i) the comparable uncontrolled price method; (ii) the resale price method; (iii) the cost plus method; (iv) the profit split method; and (v) the comparable net profit method.

Taxpayers with RPTs in a tax year (that are not exempt under prescribed by laws) are required to disclose such RPTs by filling RPT Appendices at the time of filing their annual CIT finalization return, including: (i) Appendix I – Information on related parties and related party transactions; (ii) Appendix II – List of information and documents required in the Local File; (iii) Appendix III- List of information and documents required in the Master File; and (iv) Appendix IV – Disclosure information of Country-by-Country Report in case the ultimate parent entity is required to prepare this Report by Tax jurisdiction (where applicable).

In addition to the disclosure obligations mentioned above, taxpayers are also required to prepare and maintain transfer pricing documentation, including: (i) Local File; (ii) Master File; and (iii) Country-by-Country Report (CbCR). The CbCR is only required in some specific cases which are detailed in the current transfer pricing regulations.

Moreover, declaration of tax on the basis of an advanced agreed mechanism may be applied for RPTs. Accordingly, the enterprises having RPTs may request tax authorities to agree in advance on the method of determining the taxable price.

Withholding tax

Withholding tax is levied in the form of the Foreign Contractor Tax (FCT), which includes a CIT element and a VAT element that might be imposed on incomes arising in Vietnam of foreign organizations with or without a permanent establishment in Vietnam (Foreign Contractors).

In terms of tax computation, there are three methods, including: (i) the direct method; (ii) the deduction method; and (iii) the hybrid method. The direct method is the most common method and provides that the Vietnamese contracting party shall withhold, declare and pay FCT (which is determined based on CIT and VAT taxable revenues and the respective deemed CIT and VAT ratios) where such Vietnamese contracting party makes a payment to a Foreign Contractor. Depending on the nature of goods and services provided by the Foreign Contractors, deemed CIT and VAT ratios for FCT purposes vary, ranging from 0.1% to 10% for CIT purposes and from 2% to 5% for VAT purposes. On the other hand, if a Foreign Contractor satisfies certain requirements, it is allowed to use the deduction method and declare and pay the CIT and VAT elements in a similar manner as a Vietnamese taxpayer. Under the hybrid method, a Foreign Contractor that meets the requirements for the hybrid method to apply declares and pays the CIT element based on the direct method and the VAT element based on the deduction method.

Payroll taxes

Personal Income Tax (PIT)

According to the withholding mechanism that Vietnam applies, enterprises are required to withhold, declare and pay PIT liabilities on the wages and salaries that they pay to their employees.

PIT liabilities in Vietnam are determined differently for residents and non-residents. Residents are subject to PIT on their worldwide income at progressive tax rates ranging from 5% to 35%; whereas, non-residents are subject to a flat rate of 20% on their Vietnam-sourced income.

For tax residents, employment income assessable for PIT purposes can be reduced by way of certain tax relief measures and deductions, such as personal and dependent relief, compulsory insurance contribution, voluntary pension fund, and contributions to certain charitable, humanitarian, and educational promotion funds.

For non-residents, employment income received in respect of work performed in Vietnam, regardless of the source of the income, is assessable for PIT purposes without any reduction for tax relief measures or deductions.

Statutory Insurance Contribution

Local employers and employees are subject to compulsory insurance: (i) Social Insurance (SI); (ii) Health Insurance (HI); and (iii) Unemployment Insurance (UI). Employers are responsible for withholding and paying both the employer’s and employee’s insurance contributions, based on the rates as specified by law. SI and HI contributions are capped at 20 times the statutory basic salary (i.e., VND1,490,000 per month starting on July 1, 2019). HI contributions are capped at 20 times the statutory minimum regional salary as specified by law (the highest is VND4,680,000 in Region I and the lowest is VND3,250,000 in Region IV, effective from July 1, 2022).

Foreign employees who have a labor contract with their employer for a term of at least one full year and hold a work permit to work in Vietnam shall be subject to compulsory insurance contributions in Vietnam, including SI and HI, with different rates when compared to local employees. It should be noted that foreign employees are not subject to UI contributions.

Foreign employees can be exempted from compulsory insurance if they are an intra-company assignee who: (i) is assigned to work in Vietnam for a certain period by the parent company; (ii) is employed by the parent company for at least 12 months; (iii) is either a manager, managing director, specialist or technician; and (iv) does not enter into a labor contract with the employer.

Indirect taxes

Value-added tax (VAT)

VAT is imposed on goods and services used for the purpose of manufacturing, trading or consumption within Vietnam, except where a VAT exemption applies.

There are currently four types of VAT rates that apply depending on the nature of the goods and services; 0%; 5%; and 10%. From February 1, 2022 until the end of December 31, 2022, for the purposes of providing financial aid policies and relief measures to support the socio-economy during the COVID-19 pandemic, the VAT rate applicable to certain goods and service sectors is reduced from 10% to 8%.

Land use tax

Land use tax or real estate tax applies to the land value of non-agricultural land used for residential or business purposes. Tax rates range from 0.03% to 0.15%.

Business license fee (BLF)

BLF is a tax that ranges from VND1 million to VND3 million per year and is calculated on the registered charter capital of an enterprise. If the total charter or investment capital of an enterprise is more than VND10 billion, then the highest BLF level of VND3 million per year shall be applied. The BLF shall be paid at the time of business registration and will then continue to be payable annually.

Other relevant taxes

Customs duties

Customs duties (import and export taxes) are levied on: (i) goods that are exported out of or imported into Vietnam; (ii) goods brought from the Vietnamese-domestic market into a non-tariff zone, or vice versa; and (iii) on-the-spot importation/exportation transactions. Customs duties do not apply to transit, trans-shipment of goods, trans-shipment, humanitarian aid, non-refundable aid and other specified items.

Customs duties are calculated on the dutiable value of the relevant imported or exported good and at the duty rate applicable to each item at the time of the duty calculation. The dutiable value is typically based on the transaction value of the goods at the port of import (excluding insurance fees and international freight charges) or the actual amount payable up to the first port of entry. There are three types of tax rates: (i) ordinary rates; (ii) preferential rates; and (iii) specially preferential rates. Ordinary rates are uniformly set at 150% of the preferential tax rate of each respective item, as specified in the Preferential Import Tariff.

Excise tax

An excise tax applies to a certain list of special goods and services, including imported goods as prescribed by laws. Products subject to excise tax include tobacco and cigarettes, wine, beer, automobiles having less than 24 seats, motorcycles with a cylinder capacity above 125cm3, airplanes, boats, petrol of all kinds, air-conditioners (having not more than 90,000 BTU), playing cards, and votive paper. Services that are subject to excise tax include discotheques, massages, karaoke, casinos, video games with prizes including jackpot games, slots and the like, entertainment with betting, golf (including membership card sales), golf tickets, and lotteries.

The aforementioned goods shall not be subject to excise tax if such goods fall into one of the exceptions prescribed by law.

Tax rates range from 10% to 150% for goods and from 15% to 40% for services. The tax rates for battery-charged electric cars will be significantly reduced in the next 5 years.