Công văn 13430/CT-TTHT năm 2017 về chính sách thuế khi mua hàng tặng cho khách hàng do Cục Thuế thành phố Hà Nội ban hành

To: K.System Joint-stock Company(Address: Room 703, 101 Lang Ha Street, Dong Da district, Ha Noi.TIN: 0105266053)

In response to the inquiry in Official Dispatch No. 01/CV-CT dated February 16, 2017 of K.System Joint-stock Company on tax policies, the Departments of Taxation of Hanoi answers as follows:

- Pursuant to Clause 10 Article 3 of Decree No. 65/2013/ND-CP dated June 27, 2013 of the Government on taxable income from gifts:

“10. Incomes from gifts that are securities, capital holdings in economic organizations or business establishments, real estate and other assets subject to ownership or use registration.”

- Pursuant to Circular No. 219/2013/TT-BTC dated December 31, 2013 of the Ministry of Finance on providing guidance on implementation of the Law on Value-added tax and Decree No. 209/2013/ND-CP dated December 18, 2013 of the Government providing guidance on some Articles of the Law on Value-added tax.

+ Clause 3 Article 7 regulates the taxable prices as follows:

“3. Taxable prices of the goods and services (whether bought externally or not) used as gifts, donations, or substitute for wages are the taxable prices of the same kinds or equivalent goods and services at the same time.”

Article 8 regulates the time for calculating VAT as follows:

“Article 8. Time for calculating VAT

1. For goods sale, VAT shall be calculated when the ownership or the right to use goods is transferred to the buyer, whether the payment is made or not.

…”

Pursuant to Circular No. 39/2014/TT-BTC dated March 31, 2014 of the Ministry of Finance on providing guidance on implementation of Decree No. 51/2010/ND-CP dated May 14, 2010 and Decree No. 04/2014/ND-CP dated January 17, 2014 of the Government on sale invoices.

+ Clause 2 Article 16 regulates the method of filling some specific items on an invoice as follows:

“2. Filling some specific items on an invoice

a) Item “Ngày tháng năm” (Date of invoice):

Date of a goods sale invoice is the day on which the ownership or the right to use goods is transferred to the buyer, whether the payment is made or not.

...”

Pursuant to Circular No. 26/2015/TT-BTC dated February 27, 2016 of the Ministry of Finance on guidelines for value-added tax and tax administration in the Government's Decree No. 12/2015/ND-CP dated February 12, 2015 on guidelines for the law on amendments to laws, decrees on taxations, and amendments to Circular No. 39/2014/TT-BTC dated March 31, 2014 of the Ministry of Finance on invoices for goods sale and service provision.

+ Clause 10 Article 1 amends Article 15 (Amended in Circular No. 119/2014/TT-BTC dated August 25, 2014 and Circular No. 151/2014/TT-BTC dated October 10, 2014) on conditions for input VAT deduction.

+ Point a Clause 7 Article 3 amends Point b Clause 1 Article 16 of Circular No. 39/2014/TT-BTC dated March 31, 2014 of the Ministry of Finance on issuance of invoices as follows:

“a) Point b Clause 1 of Article 16 (amended in Clause 3 Article 5 of Circular No. 119/2014/TT-BTC) is amended as follows:

“b) When selling goods and services, including those used for trade promotion, advertising, samples, goods and services used for donation, exchange, or paid as salaries (except for goods internally circulated or internally used to proceed production), the seller must issue invoices.

...””

+ Clause 9 Article 3 amends Point 2.4 Annex 4 issued together with Circular No. 39/2014/TT-BTC dated March 31, 2014 of the Ministry of Finance on issuance of invoices as follows:

“9. Point 2.4 of Appendix 4 is amended as follows:

“2.4. Use of invoices, receipts for goods/services on sale, advertising, samples, donation, gifts by VAT payers applying credit-invoice method:

a) Goods/services used on sale must have invoices bearing the names and quantities of goods, specifying that they are on sale, samples in accordance with regulations of law on VAT.

Goods/services used as gifts or paid as salaries must have VAT invoices (or sale invoices) bearing all necessary information and VAT calculation methods as if they are sold to customers.””

- Pursuant to Circular No. 96/2015/TT-BTC dated June 22, 2015 of the Ministry of Finance on guidelines for corporate income tax in the Government's Decree No. 12/2015/ND-CP dated February 12, 2015 on guidelines for the law on amendments to laws on taxation and amendments to degrees on taxation; amendments to some Articles of Circular No. 78/2014/TT-BTC dated June 18, 2014, Circular No. 119/2014/TT-BTC dated August 25, 2014, and Circular No. 151/2014/TT-BTC dated October 10, 2014 of the Ministry of Finance.

+ Article 4 amends Article 6 of Circular No. 78/2014/TT-BTC (amended in Clause 2 Article 6 of Circular No. 119/2014/TT-BTC and Article 1 of Circular No. 151/2014/TT-BTC) as follows:

“Article 6. Deductible and non-deductible expenses when calculating taxable income

1. Except for the non-deductible expenses prescribed in Clause 2 of this Article, every expense is deductible if all of these following conditions are satisfied:

a) The actual expense incurred is related to the enterprise’s business operation.

b) There are sufficient and valid invoices and proof for the expense under the regulations of the law.

c) There is proof of non-cash payment for each invoice for purchase of goods/ services of VND 20 million or over (including VAT).

The proof of non-cash payment must comply with regulations of law on VAT.

…

2. The expenses below are not deductible when calculating taxable income:

…”

Accordingly, in the event that K.System JSC presents gifts to customers for the purpose of serving production and business in accordance with provisions of commercial law, the expenditures on gifts satisfied the conditions specified in Article 4 of Circular No. 96/2015/TT-BTC dated June 22, 2015 of the Ministry of Finance may be recorded as expenses when determining taxable income.

In cases where K.System JSC purchases goods (tea, confectionery, wine) for the purpose of serving production and business in accordance with provisions of commercial law, such expenditures may be recorded as expenses when calculating income subject to corporate income tax if the conditions specified in Article 4 of Circular No. 96/2015/TT-BTC dated June 22, 2015 of the Ministry of Finance are met.

If the goods/services of the company are used as gifts, the company must create VAT invoices (or sale invoices) bearing all necessary information and VAT calculation methods as if the goods/services are sold to customers.

In cases where K.System JSC buys gift vouchers of supermarkets to present customers, the gift vouchers are valuable papers equivalent to money, used as a payment instrument and the company are not required to issue VAT invoices when presenting them to customers. When the supermarket sells gift vouchers to the company, the supermarket does not create invoices but create receipt vouchers or payment vouchers according to regulations because it is not yet a goods purchase or sale transaction.

In cases where the company gives gifts (goods, gift vouchers) to individual customers, if the gifts are not other assets that must be registered for ownership or registered for use as prescribed by law, the company may not deduct corporate income tax when giving gifts.

The Departments of Taxation of Hanoi notifies to K.System JSC for information and implementation./.

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