Thông tư 65/2013/TT-BTC sửa đổi Thông tư 06/2012/TT-BTC hướng dẫn Luật thuế giá trị gia tăng, hướng dẫn thi hành Nghị định 123/2008/NĐ-CP và 121/2011/NĐ-CP do Bộ Tài chính ban hành

CIRCULAR

AMENDING AND SUPPLEMENTING THE CIRCULAR NO. 06/2012/TT-BTC DATED 11/01/2012 OF THE MINISTRY OF FINANCE GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON VALUE-ADDED TAX, GUIDING THE IMPLEMENTATION OF THE DECREE NO. 123/2008/ND-CP OF DECEMBER 08, 2008 AND THE DECREE NO. 121/2011/ND-CP OF DECEMBER 27, 2011 OF THE GOVERNMENT

Pursuant to the Law on Value-added tax No. 13/2008/QH12 dated June 03, 2008;

Pursuant to the Law on Tax administration No. 78/2006/QH11, dated November 29, 2006;

Pursuant to the Government’s Decree No. 123/2008/ND-CP dated December 08, 2008 detailing and guiding the implementation of a number of articles of the Law on value-added tax;

Pursuant to the Government’s Decree No. 121/2011/ND-CP dated December 27, 2011 amending and supplementing a number of articles of the Government’s Decree No. 123/2008/ND-CP dated December 08, 2008 detailing and guiding the implementation of a number of articles of the Law on value-added tax;

Pursuant to the Government’s Decree No. 118/2008/ND-CP dated November 27, 2008 defining the functions, tasks, powers and organizational structure of the Ministry of Finance; 

At the proposal of General director of General Department of Taxation;

The Ministry of Finance guides amendments and supplementations of some contents in the Circular No. 06/2012/TT-BTC dated January 11, 2012 of the Ministry of Finance, guiding on value-added tax as follows:

Article 1. To amend, supplement some contents in the Circular No. 06/2012/TT-BTC:

1. To amend and supplement point a clause 8 Article 4 of Chapter I as follows:

“a. Credit provision services include forms:

- Loaning;

- Discounts, rediscounts of transferring instruments and other valuable papers;

- Banking guarantee;

- Financial leasing;

- Credit card issuance;

- Domestic factoring, international factoring regarding banks licensed for international payments;

- Other forms of credit provision as prescribed by law.

Assets for loan security of VAT payers or having been transferred ownership to lenders are subject to VAT upon sale except for VAT non-taxable goods specified in Article 4 of this Circular.

Example 2: LLC A mortgages its lines, machinery, equipment to borrow at  the bank B. As the loan term is due under the credit contract and LLC A fails to pay debts, bank B shall sell the loan security assets (regardless of the asset ownership are transferred to bank B or not) to retrieve debts, such assets are subject to VAT.”

2. To amend and supplement point a clause 11 Article 4 of the Circular No. 06/2012/TT-BTC as follows:

“a) Public services of streets and residential area hygiene, drainage provided for organizations, individuals (including organizations and individuals in or out of industrial zones) include activities of collecting, disposing, transport, processing trash and waste; drainage, wastewater processing; pumping, transporting and processing sludge, septic tank; ensuring smoothness of hygiene works, drainage system, cleaning public restrooms, maintaining hygiene in portable restrooms, collecting, transporting and processing other wastes.

For business establishments providing services such as office cleaning, house cleaning, such services are subject to VAT.

Example 3: If LLC B providing the office cleaning service for unit C, corridor and staircase cleaning services for apartment H, such services are subject to VAT.”

3. To amend and supplement clause 2 Article 5 of Chapter I as follows:

“2. Revenues from compensation, bonus, subsidy, amounts from transfer of emission rights and other financial revenues.

When receiving revenues from compensations, bonus, subsidy, amounts from transfer of emission rights and other financial revenues, business establishments shall make collection vouchers as prescribed. For business establishments spending money, the expenditure vouchers are made based on the spending purposes.

For compensations in goods, services, establishments paying compensations must issue invoices similarly to that of selling goods, services; establishments receiving compensations shall declare and deduct as prescribed.

Example 10: Joint-stock company VC signs the 6-month loan contract with enterprise T and receive the interest amounts.  The interest amounts that Joint-stock company VC received is not subject to VAT.

Example 11: LLC P&C receives the interest amounts from purchasing bonds and dividend from purchasing other enterprises’ stocks. LLC P&C is not required to declare and pay VAT regarding the interest amounts from purchasing bonds and the received dividend.

Example 12: Enterprise A receives 50 million VND of compensation for damages due to cancelation of contract from enterprise B, enterprises A shall make collection vouchers and not have to declare and pay VAT regarding that amount.

Example 13: Enterprise X purchases goods from enterprise Y, enterprise X pays in advance for enterprise Y and receives interest on that advance payment amount, enterprise X is not required to declare and pay VAT regarding the recieved interest amount.

Example 14: Enterprise X sells goods for enterprise Z, the total amount is VND 440 million.  According to the contract, enterprise Z must make deferred payment within 3 months, the deferred payment interest rate is 1%/month/total payment price of the contract. After 3 months, enterprise X receives from enterprise Z VND 440 million of the total payment price of the contract and VND 13.2 million of deferred payment interest amount (VND 440 million x 1% x 3 months), enterprise X is not required to declare and pay VAT regarding the amount of VND 13.2 million.”

4. To amend and supplement point a.3 clause 9 Article 7 section I of Chapter II as follows:

“a.3) For case of land lease to construct infrastructure, houses for sale or lease, land prices deducted for VAT calculation are the land rents payable to the State budget (excluding the exempted/reduced land rents) and expenses for the compensation and clearance as prescribed by law.

Example: The VN-KR joint-stock company has business lines including investment and business in infrastructure of industrial production and services. The company is leased land by State, in form of collecting land rents once for investment in construction of infrastructure of industrial zones to implement projects; duration of land rent is 50 years. Area of rent land is 300,000 m², price of land rents paid once for entire duration of rent is 82,000 VND / m². Total payable land rents is VND 24.6 billion.  The company is not exempted, reduced land rents. After investing in construction of infrastructure, the company sign a contract for other investor to rent with duration of rent is 49 years, area of leased land is 16,500 m², price unit of lease at time of signing contract is 450,000 VND/m² for entire duration of rent, price included VAT.

Price included VAT for amount from lease of infrastructure in entire duration of lease (49 years) applied to the VN-KR joint-stock company leased land to other investor is determined: 

16,500 m² x (450,000 – 82,000) = VND 6.072 bilion.

Price excluded VAT is determined: 6.072 billion: (1+ 0.1) = 5.52 billion.

VAT is: 5.52 billion x 10% = 0.552 billion.”

5. To supplement point a.6 at point a clause 9 Article 7 section I of Chapter II as follows:

“a.6) If a real estate business enterprise is transferred the agricultural land use right from people under contract of transfer, then the competent state agency allow to change the use purpose into resident land to construct apartment, dwelling houses, etc for sale, the land price deducted for VAT calculation is price of agricultural land transferred from people and other expenses including: Land levy remitted in the State budget for change of land use purpose from agricultural land into resident land, personal income tax paid instead of people who transfer land (if parties agreed that the real estate business enterprise shall pay instead)”.

6. To supplement at the bottom of point b clause 9 Article 7 as follows:

“Cases of construction, business of infrastructure, construction of houses for sale, transfer which arise the collection of money based on the implementation schedule of projects or progress of money collection inscribed in contract, the deducted land price is calculated according to the rate (%) of the collected amount based on the implementation schedule of projects on total amount based on contract or progress of money collection inscribed in contract with the land price deducted in accordance with regulation."

7. To amend clause 3 Article 9 section I of Chapter II as follows:

“3. Cases not applying 0% tax rate includes:

- Reinsurance to abroad; technology transfer, intellectual property right transfer to abroad; capital transfer, credit extension, securities investment to abroad; derivative financial services; postal / telecommunication services of outgoing to abroad (including postal /telecommunication services provided for organizations, individuals in the non-tariff zones; provision of mobile phone card contained number code, par value to abroad or into the non-tariff zones); export products being natural resources, minerals that are exploited but unprocessed into other products; goods, services provided for individuals without business registration in non-tariff zones, except for other cases as prescribed by the Prime Minister;

- Gasoline, oil sold to cars of business establishments in non-tariff zones and purchased domestically;

- Cars sold to organizations, individuals in non-tariff zones.

- Services provided by business establishments for organizations, individuals in non-tariff zones include:  lease of houses, halls, offices, hotels, warehouses, yards; service of worker transport; catering service  (except for provision of industry meals, catering services in non-tariff zones).

- The post-provision services performed in Vietnam provided for overseas organizations, individuals not applying 0% tax rate include:

+ Sport competition, art/cultural performance, entertainment, convention, hotel, training, advertising, travel services;

+ Online payment services.

Cases not applying 0% tax rate specified in this clause shall apply the corresponding tax rate of goods, services upon being sold and supplied domestically.”

8. To amend clause 4 Article 14 section I of Chapter III as follows:

“4. Establishments producing agricultural, forest, aquatic/maritime products with closed production, accounting the results of concentrated production and business using products from the agricultural, forestial production or maritime/aquatic rearing and catching stages as raw materials to proceed producing products subject to VAT (including unprocessed agricultural, forestial, aquatic products for export or processed products subject to VAT) are entitled to declare and deduct the input VAT serving for the production and business at all stages of capital construction, production, processing.  Establishments having investment projects to continue production, processing or having written commitment to continue producing products subject to VAT are entitled to declare and deduct VAT in the stage of the investment in capital construction.  For input VAT arising at the stage of investment in capital construction that is declared, deducted, refunded but then turns out to be not eligible for deduction or refund, enterprises must declare, adjust and repay the deducted or refunded VAT.  If an enterprise fail to adjust and then detected through inspection, examination by tax agencies, tax agencies shall collect/refund the tax arrears and sanction as prescribed.  Enterprises must be totally responsible before law for the reported contents, explanation commitment with tax agencies relating to tax deduction and tax refund.

For establishments selling goods as unprocessed or preliminarily processed agricultural, foreatial, aquatic products not subject to VAT, the Vat on purchased goods, services shall be deducted at the ratio (%) of the revenue of VAT taxable goods, services on total revenue of sold goods, services.

Example 41: Enterprise A with project on investment in rubber plantation, arising the input VAT on goods, services at the stage of investment in capital construction, enterprise has not yet had products to do material to proceed the production of products subject to VAT (including unprocessed products for export or processed products subject to VAT) but has the project on construction of a rubber latex processing factory (that subject to VAT) and commits that the products from cultivation are further processed into VAT taxable products, the enterprise is entitled to deduct entire input VAT.

If enterprises sell rubber latex not subject to VAT, they are not entitled to deduct tax.

If enterprises using part of the exploited rubber latex for production of products subject to VAT and the rest for sale, the input VAT shall be deducted as follow:

- Input Vat on fixed assets (rubber garden, processing factories…):  enterprises are entitled to deduct all (including VAT arising in the stage of investment in capital construction).

- Input Vat on goods, services: deducted at the ratio (%) of the revenue from VAT taxable goods, services on the total revenue from sold goods, services.”

9. To amend point c clause 2 Article 15 section I of Chapter III as follows:

“c) For goods, services purchased in instalments or deferred payment worth twenty million VND or more, business establishments shall base on the wirtten contracts of service, goods purchase, VAT invoices and receipts of payment through banks of goods, services purchased by instalments or deferred payment to make the declaration and deduction of input VAT, and clearly describe the term of payment in the “note” section on the list of invoices and vouchers of purchased goods, services.  If the receipts of payment through banks are not available because the contractual payment is not due, business establishments are still entitled to declare and deduct the input VAT.

When the contractual payment is due, the input VAT shall not be deducted without receipts of payment through banks, business establishments must declare and reduce the deducted input VAT on the goods without receipts of payment through banks. When adjusting to reduce the deducted input VAT corresponding to value of purchased goods, services without receipts of payment through banks, business establishments shall concurrently make accounting to increase expenses for enterprise income tax calculation of expenses corresponding to the input VAT not entitled to deduct and been adjusted for reduction, and after having receipts of payment through banks, business establishments are entitled to declare to supplement VAT and implement adjustment to reduce the corresponding expenses for enterprise income tax calculation.

If business establishments fail to make accounting in increasing expenses to calculate enterprise income tax for the expenses corresponding with the input VAT that is not entitled to deduct and already been adjusted for reduction, they shall not be required to re-adjust expenses to calculate enterprise income tax

In case the contractual payment is overdue and business establishments fail to reduce as prescribed but they are able to present adequate documents proving the payment through banks before the tax agencies publicize the inspection’s decisions at their head offices, and if the undone reduction does not lead to the lack of payable tax amounts or the increase of refundable tax amounts, such business establishments shall be administratively sanctioned for violations of tax procedures; if the undone reduction leads to the lack of payable tax amounts or the increase of refundable tax amounts, tax agencies shall perform tax arrears collection or refund and sanction over the business establishments in accordance with the Law on Tax administration.

In case where the tax agencies publicize the decisions on inspection, examination at the head offices and have decision on handling that not accept the tax deduction for VAT invoices without receipts of payment through banks, and after these decision of tax agencies, business establishments have receipts of payment through banks:

- For VAT invoices that have been adjusted for reduction by business establishments before the tax agencies inspect, examine, business establishments are entitled to declare for supplementation of VAT.

- For VAT invoices that have not been adjusted for reduction by business establishments before the tax agencies inspect, examine, business establishments are entitled to declare for supplementation of VAT if they have receipts of payment through banks within 6 months from the month of having decisions on handling of tax agencies.

Example 49: In November 2012, the tax agency issues the decision on VAT inspection at LLC Z, the inspected period is the year 2011 and 5 months in 2012. During the inspection, LLC Z fails to present the receipts of payment through banks for a number of deferred payment contracts which are overdue  in 2011 and in the 5 months in 2012. Consequently, the tax agency disapproves LLC Z’s the declaration and deduction of the VAT on invoices without receipts of payment through bank.  However, in November and December 2012, LLC Z presents the receipts of payment through banks of invoices disapproved by the tax agency, LLC Z is still entitled to make additional declaration and deduction of the VAT amounts of these invoices on the VAT declaration of November and December 2012.

Example 49a:

At LLC Super happens as follows:

In February, March in 2012, LLC Super has a VAT invoice from purchasing goods according to contract of deferred payment, payment time limit is October 31, 2012. Base on VAT invoice issued by the seller, LLC Super declared and deducted VAT on the VAT declaration of February, March 2012. Till payment time limit (October 31, 2012) due to financial difficulties, LLC Z is unable for payment. LLC Super self-declared to reduce on the VAT declaration of October 2012, and accountant declared to increase expenses to calculate the enterprise income tax calculation for the expenses corresponding to the input VAT not entitled to deduct and already been adjusted for reduction.

In April 2013, the tax agency issues Decision on VAT examination at LLC Super. For VAT invoices of goods purchase in February, March 2012 under the deferred payment contract with time limit of payment is October 31, 2012, because Company has self-adjusted to reduce the tax declared and deducted on the VAT declaration in October 2012, the examination delagation shall recognize for reduced figure.   

In May 2013, the tax agency issues a Decision on VAT handling with respect to LLC Super (in Decision there is no content on VAT handling of VAT invoices from goods purchase in February, March 2012 under the deferred payment contract with time limit of payment is October 31, 2012, because the examination delagation has recognized for reduced accounting figure). 

In December 2013, LLC Super has receipts of payment through banks for the deferred payment contract of VAT invoices from goods purchase in February, March 2012 (time limit of payment is October 31, 2012), LLC Super is entitled to declare adjustment for supplementation of VAT.   And LLC Super implement adjustment to reduce the respective expenses for enterprise income tax calculation.

Example 49b:

At LLC YKK happens as follows:

- In March and April 2012, LLC YKK has a VAT invoice from purchasing goods according to contract of deferred payment, payment time limit is in September, 2012. Base on VAT invoice issued by the seller, accountant of LLC YKK declared and deducted VAT on the VAT declarations of March and April, 2012. Till payment time limit in September, 2012, LLC YKK is unable for payment, however company failed to declare for reduction adjustment.

In April 2013, the tax agency issues the decision on VAT inspection at LLC YKK, the inspected period is the year 2012. During the inspection, LLC YKK fails to present the receipts of payment through banks for VAT invoices of goods purchase under deferred payment contracts which are overdue in September 2012. The inspection delagation handled and disapproved for LLC YKK to declare and deduct VAT for invoices without receipts of payment through bank.

In May 2013, the tax agency issued a handling Decision on collection of VAT arrears at LLC YKK.

In October 2013, LLC YKK has receipts of payment through banks for the deferred payment contract of VAT invoices from goods purchase in March 2012 (time limit of payment is in September, 2012), LLC YKK is entitled to declare adjustment for supplementation of VAT because time of having receipts of payment through banks is in time limit of 6 months after the tax agency issuing the handling Decision on collection of tax arrears.

In December 2013, LLC YKK has receipts of payment through banks for the deferred payment contract of VAT invoices from goods purchase in April 2012 (time limit of payment is in September, 2012), LLC YKK is entitled to declare adjustment for supplementation of VAT because time of having receipts of payment through banks is over time limit of 6 months after the tax agency issuing the handling Decision on collection of tax arrears.

Example 49c:

In September 2012, the Tax Department of province B issued a Decision on tax handling and sanctioning administrative violations of joint-stock company PNG through examination of tax law compliance, in content of Decision, the VAT refund amount of VND 460,000,000 must be collected; this amount is the deducted VAT amount of goods purchase with goods' value more than VND 20 million, till the time of examination, company has not yet had receipts of payment through bank, and it is overdue according to contract of dossier set refunded tax in the refunding period of from January 2012 to March 2012. Joint-stock company PNJ has complied and remitted full tax arrears into the State budget.  

In October 2012, joint-stock company PNG has receipts of payment through bank for invoice of goods purchase under the overdue contract corresponding to the VAT amount of VND 460,000,000 which was collected by tax agency, joint-stock company PNG is entitled to declare additionally on the VAT declaration in October, 2012”.

10. To amend clause 3, clause 4 Article 18 section 2 of Chapter III as follows:

3. When the business establishments subject to VAT payment under the deduction method have new investment project in the same province or city and being in the investment stage, such business establishments must declare and offset the VAT amount of purchased goods, services serving the new project together with the VAT declaration of the production and business being implemented.

After offsetting, if the remaining VAT amount of purchased goods, services serving the investment is 200 million VND or more, this amount is eligible for VAT refund to the investment project. If the input VAT amount of the production, business and investment project is lower than 200 million VND and has not been deducted entire after 3 months, business establishments are eligible for VAT refund as guided in clause 1 of this Article.

When operating business establishments subject to VAT payment under the deduction method have new investment project in the provinces, centrally-run cities different from places where their head offices are located, the project is in the investment stage, has not yet operated, has not yet applied for business and tax registration, if the VAT amount of purchased goods, services serving the investment is 200 million VND or more, they are eligible for the VAT refund to the investment project. Business establishments must declare and compile tax refund dossiers separately for this case. The project management unit (if any) shall register, declare and compile the separate tax refund dossier at local tax agencies (except for the case when the project management unit located in the same province or city with their head offices, enterprises shall compile the VAT refund dossier themselves).  When the investment project on establishing new enterprise is completed and finished all the procedures for business registration, tax registration, the business establishments being the project investors must synthesize the arisen, refunded and not refunded VAT of the project to hand over to the newly-established enterprise so that the enterprise can declare, pay tax and request for VAT refund as prescribed with tax agency directly managing it.

4. Business establishments exporting goods, services in the same month of having goods, services sold domestically, If the input VAT arising in the month and not yet deducted is VND 200 million or more (the input VAT arising in the month includes: the input VAT serving for export, domestic business activities subject to VAT and the remaining deductible VAT of previous months forwarded), but after offfsetting the output Vat on goods, services sold domestically and allocating at the rate (%) between revenue of export goods, services in term with total revenue of goods, services subject to VAT in the term of business establishments, if  the input Vat on export goods, services allocated as above not yet deducted is less than VND 200 million, business establishments are not considered to refund tax monthly, if the input VAT not yet deducted is VND 200 million or more, business establishments are entitled to refund tax monthly for export goods, services.

Specifying:

Example:

In March, 2012, the VAT declaration of enterprise X has figures:

- VAT of previous term forwarded: VND 0.15 billion.

- The input VAT serving for export, domestic business activities subject to VAT arising in month:   VND 4.8 billion.

- Total revenue is 21.6 billion, of which: revenue from exports is VND 13.2 billion / total revenue of taxable goods and services already sold domestically is VND 8.4 billion.

The rate (%) of revenue from exports / total revenue = 13.2/21.6 x 100% = 61%.

- Output VAT on goods, services already sold domestically is VND 0.84 billion.

The refunded-monthly VAT on export goods is determined as follows:

So that the remaining deductible VAT of month is VND 4.11 billion.

- Determining the input VAT on export goods

The input VAT of export goods (after offsetting and allocating) not yet deducted entire is VND 2.507 billion, it is more than (>) 200 million, thus enterprise shall be refunded VND 2.507 billion for monthly VAT. The input VAT of domestically-sold goods and services not eligible to be refunded monthly is VND 1.603 billion (1.603 billion = 4.11 billion – 2.507 billion),it shall be forwarded to the next period to be further deducted.”

Article 2. Organization for implementation

1. This Circular takes effect on July 01, 2013.

2. From March 01, 2012, if the party leasing workshop has issued invoice and calculated VAT when let other enterprise hiring workshop, parties shall make VAT invoice to correct the issued invoice at the VAT rate of 0%.

3. From March 01, 2012, if business establishments other than credit institutions has issued invoices and calculated VAT on interest of providing loans to other organizations, individuals, parties shall make invoice to correct the interest amount of loans to become service not subject to VAT.   In case where parties fail to correct the issued invoices, if organizations borrowing and using fund in serve for business activities subject to VAT, they are entitled to deduct the input VAT as prescribed on the base of VAT invoice of the loaning party.

4. In case of contract supplying the digitizing services to foreign parties signed before this Circular comes into effect, VAT shall be continued to comply with guides at the respective legal documents at time of signing contract. In case of contract supplying the digitizing services to foreign parties signed from March 01, 2012 subject to VAT and become subject applying tax rate of 0% as prescribed in this Circular, this Circular shall be applied from March 01, 2012.

5. Contents that are not guided in this Circular and contents that are not contrary to contents guided in this Circular shall be complied with provisions in the Circular No. 06/2012/TT-BTC dated January 11, 2012 of the Ministry of Finance, guiding on value-added tax.

In the course of implementation, any arising problems should be reported to the Ministry of Finance for timely guidance and settlement.