Chương 2 Nghị định 158/2003/NĐ-CP: Căn cứ và phương pháp tính thuế

Chapter II

TAX CALCULATION BASES AND METHODS

Article 5.- The bases for calculating value added tax are the tax calculation prices and tax rates.

Article 6.- The value added tax calculation prices are prescribed as follows:

1. For goods and services sold by production/business establishments, they shall be the sale prices excluding the value added tax. For goods and services subject to special consumption tax, they shall be the sale prices including the special consumption tax but not the value added tax.

2. For import goods and services purchased from organizations or individuals overseas:

a/ For import goods, they shall be the border-gate import prices plus (+) import tax (if any) plus (+) special consumption tax (if any). The border-gate import prices shall be determined according to the regulations on import tax calculation prices;

b/ For services purchased from organizations or individuals overseas, they shall be the prices paid to such foreign organizations or individuals, not yet including the value added tax.

3. For goods and services used for exchange or internal consumption (except for cases where goods and services are internally transferred for continuing the production/business process and not subject to the value added tax), gifts and donations, they shall be the value added tax calculation prices of goods or services of the same or equivalent kinds at the time such activities are conducted.

4. For property leasing activities, irrespective of kinds of property and leasing forms, they shall be the leasing prices exclusive of tax. In cases where the rental is paid in installments or in advance for a certain leasing duration, they shall be such rental exclusive of value added tax, paid in installments or in advance.

For cases of renting foreign derricks, machinery, equipment and/or transport means which cannot be produced at home for sub-lease, the tax calculation prices shall exclude the rentals to be paid to foreign countries.

5. For goods sold by mode of installment payment, they shall be the non-tax sale prices of such goods, paid in lump sum (excluding the installment payment interests), but not calculated according to the amount of money paid in each installment.

6. For goods processing, they shall be the non-tax processing prices (including remuneration, fuel, power, auxiliary materials and other processing expenses).

7. For construction and installation activities, they shall be the non-tax construction or installation prices of projects, project items or work volume completed; in cases where the project construction or installation is paid according to the unit prices, project item volumes or work volumes completed and handed over, the value added tax shall be calculated on the value of the completed and handed-over volumes. In cases where construction and installation also involve the supply of raw materials, materials and machinery, the value added tax calculation prices shall include also the value of such raw materials, materials and machinery. In cases where construction and installation do not involve the supply of raw materials, materials and machinery, the value added tax calculation prices shall be the construction or installation value excluding the value of raw materials, materials, machinery and equipment.

For activities of investment in the construction of houses for sale or construction of infrastructure for transfer by units assigned land by the State, the tax calculation prices shall be the sale prices of houses and infrastructure attached to land, minus (-) the land-use levies to be paid to the State budget.

For activities of investment in infrastructure for lease, the tax calculation prices shall exclude (-) the land rentals to be paid to the State budget.

8. For real-estate dealing activities, the value added tax calculation prices shall exclude (-) the land prices as prescribed to determine the land-use levies payable to the State budget or the compensation money when the State recovers land at the time the real estates are sold.

9. For goods and services sale/purchase agency or brokerage activities with commissions, the non-tax prices serving as tax calculation bases shall be the commissions earned from such activities.

10. For particular goods and services entitled to the use of payment vouchers in which the inscribed payment prices are the prices inclusive of the value added tax, the non-tax prices serving as tax calculation bases shall be the prices inclusive of tax divided by [1 + tax rates (%) of such goods or services].

The tax calculation prices of goods and/or services defined in this Article shall also include additional levies and surcharges enjoyed by the business establishments.

The Ministry of Finance shall provide specific guidance on the value added tax calculation prices of goods and services specified in this Article.

Article 7.- Value added tax rates

1. The tax rate of 0% shall apply to export goods and services, including also goods processed for export, as well as export goods and services not subject to value added tax.

a/ Export services are those directly provided to foreign-based organizations and individuals and consumed outside the Vietnamese territory.

b/ Export goods include those exported to foreign countries, goods exported into export-processing zones or goods exported to export-processing enterprises, and other specific cases regarded as export under the Government’s regulations.

c/ The following cases shall not be subject to the value added tax rate of 0%:

- International transportation; goods and services directly supplied for international transportation; tour services to foreign countries; reinsurance services to foreign countries; credit services, financial investment and securities investment to foreign countries; export products being unprocessed exploited mineral resources prescribed in Clause 26, Article 4 of this Decree, which are not subject to value added tax.

- Goods and services sold to export-processing enterprises and export-processing zones, including insurance, banking, post, telecommunications, consultancy, audit, accountancy, transportation, loading and unloading, lease of houses, working offices, warehouses storing yards, consumption services for individual laborers, petrol and oil sold to transport means which are subject to value added tax at the prescribed rates applicable to goods consumed in Vietnam.

2. The tax rate of 5% shall apply to the following goods and services:

a/ Clean water in service of production and daily life, except for clean water not subject to tax mentioned in Clause 18, Article 4 of this Decree and assorted beverages subject to the tax rate of 10%.

b/ Fertilizers, ores for fertilizer production; insecticides as well as domestic animal and plant growth stimulants.

c/ Medical special-use equipment, machinery and instruments; medical cotton and bandage; curative and preventive medicines; chemical-pharmaceutical products and materia medica being raw materials for the production of curative and preventive medicines.

d/ Teaching and learning aids being models, paintings, boards, chalks, rulers and pairs of compasses as well as equipment and instruments used exclusively for teaching, research and testing.

e/ Printing of assorted products not subject to value added tax, prescribed in Clause 13, Article 4 of this Decree, except for money printing.

f/ Children toys; assorted books, except for books not subject to value added tax prescribed in Clause 13, Article 4 of this Decree; magnetic tapes and discs, programmed or not.

g/ Cultivation and husbandry products; fished aquatic and marine products which have not yet been processed or have just been cleaned, frozen, dried or peeled at the stage of commercial operation.

h/ Fresh and raw foodstuff, food, forestry products (except for timber and bamboo shoots) not yet processed at the stage of commercial operation, except for objects prescribed in Clause 1, Article 4 of this Decree.

Food includes paddy, rice, maize, sweet potato and manioc; wheat, rice flour, maize powder, sweet potato powder, manioc powder, wheat flour.

Fresh and raw foodstuffs are those which have not yet been processed or have just been preliminarily processed.

Unprocessed forestry products are those exploited from natural forests belonging to the groups of rattan, bamboo, mushrooms, Jew’s ears; roots, leaves, flowers, medicinal plants and forestry products of other kinds.

i/ Sugar; by-products in sugar production, including molasses, bagasse, sludge.

j/ Products made of jute, rush, bamboo and leaves, which are those produced or processed from main raw materials belonging the groups of jute, rush, bamboo, rattan, fan-palm, coconut.

k/ Cotton preliminarily processed from home-grown cotton, which is shelled, seeded and classified.

l/ Feeds for cattle, poultry and other domestic animals.

m/ Scientific and technological services, except for those not subject to value added tax prescribed in Article 4 of this Decree.

n/ Services in direct service of agricultural production, including such activities as plowing, raking soil for agricultural production; digging, embanking and dredging canals, ditches, ponds and lakes in service of agricultural production; rearing, planting, tending and farming products, preventing insects and diseases; harvesting, preliminary processing and preservation of agricultural products.

o/ Pit-coal, soil, stone, sand, gravel.

p/ Base chemicals; mechanical products (except for consumer mechanical products); molds of various types; explosive materials; grinding stones; newsprint; insecticide sprayers; preliminarily processed rubber latex; artificial plywood; industrial concrete products, including concrete bridge girder, concrete house beams and frames, concrete piles, concrete electric poles, concrete culvert pipe, concrete boxes of various types, non-standard prefabricated panels and reinforced concrete structures, merchandise concrete; tires and sets of tires and inner tubes of 900-20 size or larger; neutral glass tubes (tubes and shaped cylinders); nets, ropes and fibers for knitting fishing nets.

q/ Refined, rolled and pulled products of ferrous metal, non-ferrous metal and precious metal, except for import gold prescribed in Clause 25, Article 4 of this Decree.

r/ Automatic data processors and parts as well as accessories thereof (including assorted computers and their parts and accessories).

s/ Maintenance, repair and restoration of historical-cultural relics and museums, except for activities prescribed in Clause 15, Article 4 of this Decree.

t/ Transportation, loading and unloading; dredging channels, canals, river ports and seaports; salvage and rescue activities;

u/ Distribution and screening of video films (except for the distribution and screening of video documentaries prescribed in Clause 10, Article 4 of this Decree).

3. The tax rate of 10% shall apply to the following goods and services:

a/ Petroleum oil, gas, ores and other mineral products.

b/ Merchandise electricity sold by electricity production/business establishments.

c/ Electronic products; consumer mechanical products, electric items.

d/ Chemicals (except for base chemicals prescribed at Point q, Clause 2 of this Article), cosmetics.

e/ Fibers, fabrics, garment and embroidered products; sanitary napkin and baby’s nappy.

f/ Paper (except for newsprint prescribed at Point q, Clause 2 of this Article) and paper products.

g/ Milk, confectionery, beverages and other processed foodstuffs.

h/ Porcelain, china, glass, rubber and plastic products; timber and timber products; cement, bricks, tiles and other construction materials (except for products subject to the tax rate of 5%).

i/ Construction and installation; houses and technical infrastructures of establishments assigned or leased land by the State for construction investment for business purposes.

j/ Post, telecommunications and Internet services (except for post, telecommunications and Internet services prescribed in Clause 24, Article 4 of this Article).

k/ Lease of houses, working offices, warehouses, wharves and storing yards, workshops, machinery, equipment and transport means.

l/ Legal consultancy services and other consultancy services.

m/ Audit, accountancy, survey and design services.

n/ Photo taking, printing and enlargement; tape printing, recording and rent; videoing; photocopying.

o/ Hotel, tourism, food- and drink-catering.

p/ Goods and services subject to special consumption tax.

q/ Gold, silver, gems (except for import gold prescribed in Clause 25, Article 4 of this Decree).

r/ Ocean shipping agency.

s/ Brokerage services.

t/ Other goods and services not prescribed in Article 4 and Clauses 1 and 2 of this Article.

Basing itself on the tax rates prescribed in this Article, the Finance Ministry shall provide specific guidance on the application of tax rates to assorted goods and services.

Article 8.- Value added tax calculation methods

1. Tax deduction method:

The payable value added tax amount shall be determined as equal to the output value added tax amount minus (-) the deductible input value added tax amount.

a/ An output value added tax amount shall be equal to the tax calculation price of the sold taxable goods or service multiplied (x) by the value added tax rate of such goods or service.

In cases where an establishment sells goods or provides services, which are subject to value added tax, but fails to specifically inscribe the non-tax sale prices and value added tax on added value invoices, the output value added tax shall be calculated on the sale prices of such goods or services, except for cases where added value invoices are allowed to be inscribed with payment prices being the prices inclusive of value added tax.

b/ Deductible input value added tax shall be equal to the total value added tax amount inscribed in the added value invoices for purchase of goods or services; vouchers on payment of value added tax on import goods used for production of or trading in goods or services subject to value added tax; vouchers on payment of value added tax on behalf of foreign organizations or individuals as prescribed at Point f, Clause 1, Article 9 of this Decree.

c/ The tax deduction method shall apply to all business establishments, except for those subject to the method of direct calculation on the added value according to the provisions of Clause 2 of this Article.

2. The method of direct calculation on the added value:

The payable value added tax amount shall be equal to the added value of the sold taxable goods or services multiplied (x) by the value added tax rate applicable to such goods or services.

a/ The added value of goods or services shall be determined as equal to the payment price of goods sold or service provided minus (-) the payment price of corresponding purchased goods or services.

The payment prices of goods or services purchased or sold are the actual purchase or sale prices inscribed on the purchase or sale invoices of such goods or services, including the value added tax and additional levies and/or surcharges enjoyed by the sellers.

The payment prices of purchased goods or services shall be determined as equal to the value of purchased goods or services, including the value added tax, which have been used for production of, or trading in, sold goods or services subject to value added tax.

In cases where a business establishment fails to effect the purchase and/or sale of goods and services with full invoices and vouchers used as basis for determining the added value according to the above-said regulations, the added value shall be determined as follows:

- For business establishments that sell goods or services with full invoices and vouchers as required, thus accurately determining their turnover from the sale of goods or services, but fail to sufficiently acquire purchase invoices of goods or services, the added value shall be determined as equal to the turnover multiplied (x) by the percentage (%) of the added value calculated on the turnover.

- For business individuals who fail to apply or improperly apply the invoices for purchase and sale of goods or services, the tax agencies shall base themselves on the business situation of each business individual to fix the taxable turnovers; the added value shall be determined as equal to the fixed turnover multiplied (x) by the percentage (%) of the added value calculated on the turnover.

b/ The percentage (%) of the added value calculated on the turnover used as basis for determining the added value shall be set by the tax agencies, suitable to each business line.

The Finance Ministry shall guide the determination of specific added value for each business line.

c/ The method of direct calculation on the added value shall apply only to the following subjects:

-Vietnamese production/business individuals as well as foreign organizations and individuals doing business in Vietnam not under the Law on Foreign Investment in Vietnam, that fail to fully meet the conditions on accounting, invoices and vouchers for use as bases for tax calculation by the tax deduction method.

- Business establishments trading in gold, silver, gems and foreign currencies, which pay value added tax by the method of direct calculation on the added value. In cases where an establishment that pays tax by the tax deduction method and conducts business activities of trading in gold, silver or gems, it shall be entitled to calculate and declare the tax separately paid for such business activities of trading in gold, silver or gems by the method of direct calculation on the added value.

Article 9.- Input value added tax deduction:

1. Business establishments that pay value added tax by the tax deduction method shall be entitled to the deduction of input value added tax as follows:

a/ Value added tax on goods and services purchased for production of, or trading in, goods and services subject to value added tax shall be fully deducted.

b/ For input value added tax on goods and services purchased for production of, or trading in, goods and services which are subject to value added tax and which are not subject to value added tax, only the input tax on goods and services used for production of, or trading in, goods and services subject to value added tax shall be deducted.

The business establishments shall have to separately account deductible and non-deductible input tax; in cases where they cannot do so, they shall be entitled to deduct tax according to the percentage (%) between the taxable turnover and the total sale turnover.

c/ Deductible input tax incurred in any month shall be declared and deducted upon the determination of the payable tax amount of such month. The time limit for declaration shall be within 3 months after tax incurred in a month is declared. For added value invoices of purchased goods and services, which are over 3 months, the business establishments must not declare and deduct tax but have to include it in the value of goods, services, fixed assets’ original prices or business expenditures.

Particularly for fixed assets, if the deductible input tax amount is large, it shall be gradually deducted or reimbursed according to the provisions of Article 15 of this Decree.

d/ To be entitled to deduction or reimbursement of input value added tax, export goods and services must fully satisfy the following conditions and procedures:

- Export goods declarations with the customs offices’ certification that export procedures have been carried out for the goods (applicable to export goods);

- Contracts on goods sale or processing (applicable to goods processing), or on provision of services to foreign organizations and/or individuals;

- Making via-bank payment and cases regarded as via-bank payment such as: deduction from foreign loan debts, foreign parties authorize the third parties being foreign-based organizations or individuals to make via-bank payment (except for cases where export is paid in form of goods barter, debt payment for the State, labor export with money directly collected from exporting laborers; export goods sold at overseas fairs, exhibitions and a number of export goods and services subject to special form of payment decided by the Prime Minister);

- Invoices of sale of goods and/or services to foreign traders.

In cases where export goods and services have been certified by the customs offices (for export goods) but fail to satisfy one of the other conditions and procedures mentioned above, the business establishments shall not be entitled to deduct the input value added tax but have to include it in their business expenditures. The Finance Ministry shall provide specific guidance on procedures and conditions for the application of this case.

For business establishments that pay value added tax by the method of direct calculation on the added value, if they shift to pay the value added tax by tax deduction method, they shall only be entitled to calculate and deduct input value added tax as prescribed for invoices and vouchers made after the date the value added tax is calculated according to the tax deduction method.

e/ For business establishments purchasing particular goods and services from foreign business organizations and/or individuals that pay value added tax by the tax deduction method and use added value invoices inscribed with payment prices being the prices inclusive of the value added tax, the prices inclusive of tax shall serve as basis for determination of the non-tax prices and deductible input value added tax according to the calculation method mentioned in Clause  10, Article 6 of this Decree.

f/ In cases where establishments do business in Vietnam and purchase goods and services from foreign organizations and/or individuals doing business in Vietnam, that do not belong to investment forms under the Law on Foreign Investment in Vietnam or implement Vietnamese accounting regimes, they shall have to pay value added tax on behalf of foreign contractors. Establishments doing business in Vietnam shall be entitled to calculate and deduct the value added tax amount already paid on the latter’s behalf.

2. Bases for determining the deductible input value added tax amount prescribed above shall be as follows:

a/ For purchased goods or services, it shall be the value added tax amount inscribed on the added value invoices of goods or service purchase; for cases where the tax has been paid on behalf of foreign contractors or other subjects as prescribed by law, it shall be vouchers of the on-behalf payment of tax.

b/ For import goods, it shall be the already paid value added tax amount inscribed on the vouchers of payment of value added tax on import goods.

c/ For goods and services purchased by business establishments which pay value added tax by the tax deduction method, are entitled to use invoices inscribed with payment prices being the prices inclusive of the value added tax, such invoices shall serve as bases for calculation of the deductible input tax amount according to the provisions at Point e, Clause 1 of this Article.

3. Business establishments shall not be entitled to deduct input value added tax for added value invoices used not according to law provisions such as the use of forged invoices or vouchers on payment of value added tax, falsely-declared invoices (goods or services are not purchased or sold), or invoices inscribed with a value higher than the actual value of sold goods or services.

Article 10.- Business establishments shall have to effect the purchase and sale of goods and services with full invoices and vouchers strictly according to law provisions. Invoices on purchase and sale of goods and services prescribed for business establishments shall be as follows:

1. Business establishments that pay tax by the tax deduction method shall have to use the added value invoices. When making goods and service sale invoices, business establishments shall have to fully and accurately fill in the items on the invoices; regarding sale prices, they must clearly inscribe: non-tax sale prices, surcharges and charges outside the sale prices (if any), value added tax, payment prices inclusive of tax.

2. Business establishments that pay tax by the method of direct calculation on the added value shall use goods sale invoices. The sale prices of goods and services inscribed on the invoices shall be the payment prices inclusive of the value added tax.

3. Business establishments that use invoices and vouchers printed by themselves shall have to register the specimens of their invoices and vouchers with the Finance Ministry (the General Department of Tax) and may use them only after obtaining written notices of the Finance Ministry (the General Department of Tax).

4. Business establishments that directly retail their goods to consumers at sale prices lower than the set prices shall have to make the added value invoices or goods sale invoices. If they fail to make invoices, they shall have to make lists of retailed goods according to the form set by the tax agencies for use as basis for value added tax calculation; in cases where the purchasers request added value invoices or goods sale invoices, they shall have to make such invoices strictly according to regulations.

5. Business establishments that commit acts of printing, distributing or using invoices in contravention of regulations in order to evade tax or commit frauds in value added tax deduction or reimbursement shall, apart from having the evaded tax amounts retrospectively collected or reimbursed, be sanctioned for tax-related administrative violations, if their violations are serious, they shall be examined for penal liability according to law provisions.