Joint circular No. 07/1998/TTLT-BTC-BTS of January 10, 1998, guiding the implementation of Decision No. 358-TTg of May 29, 1997 of the Prime Minister on tax privileges for the offshore exploitation of marine resources

JOINT CIRCULAR

GUIDING THE IMPLEMENTATION OF DECISION No. 358-TTg OF MAY 29, 1997 OF THE PRIME MINISTER ON TAX PRIVILEGES FOR THE OFFSHORE EXPLOITATION OF MARINE RESOURCES

Pursuant to the tax laws, the Law on Promotion of Domestic Investment currently in force and Decision No. 358-TTg of May 29, 1997 of the Prime Minister on tax privileges for offshore fishing, the Ministry of Finance and the Ministry of Aquatic Resources provide the following guidance on the procedure, order and competence to consider tax exemption and reduction for the objects engaged in the offshore exploitation of marine resources that enjoy tax privileges as follows:

I. SCOPE OF REGULATION

1. Objects of regulation:

Organizations and individuals of all economic sectors, including foreign invested enterprises and parties to business cooperation contracts under the Law on Foreign Investment in Vietnam, that have vessels actually engaged in the offshore exploitation of marine resources, irrespective of newly or previously set up establishments, vessels procured through new investment, expanded investment or previous investment, shall be entitled to tax privileges prescribed in Article 1 of Decision No. 358-TTg of May, 29, 1997 of the Prime Minister if they fully satisfy the following conditions:

- Having business licenses for offshore exploitation of marine or certificates of actual offshore exploitation of marine resources; business registration certificates.

- Having fishing vessels propelled by a main engine with a capacity of 90 or more horse power (CV)

- Actually engaged in the offshore exploitation of marine resources.

2. The following cases are not entitled to tax privileges under the guidance of this Circular:

- Exploitation of marine resources outside the offshore marine area.

In cases where a marine resource-exploiting establishment owns both vessels engaged in offshore fishing and also vessels engaged in aquatic resource exploitation in other marine areas, it must account the business results separately for each of these two areas.

- Other business and service activities (construction, transport...) other than the exploitation of marine resources.

3. Some terms and expressions referred to in this Circular are construed as follows:

- Marine resource exploitation is the catching of marine resources such as fish, shrimps, crabs, sea turtles, pearl-oysters and other marine resources.

- The offshore marine area, according to Article 2 of the Regulation on the management and use of credit capital for new projects, transformation of fishing ships and offshore fishing services issued together with Decision No. 393-TTg of June 9, 1997 of the Prime Minister, is the marine area delimited by the 30 meter isobath from the coastline seaward for the sea of the Bac Bo (Tonkin) Gulf, the eastern and western South Vietnam and the Thailand Gulf and the 50 meter isobath from the coastline seaward for the sea of Central Vietnam."

The isobath is a line connecting the points of the same depth measuring from the sea surface down to the sea bed.

Hence, the offshore marine area includes areas with a depth of 30 meters seaward for the sea of the Bac Bo (Tonkin) Gulf, the eastern and western South Vietnam and the Thailand Gulf and with a depth of 50 meters seaward for the sea of South Vietnam. Islands in the offshore marine area are also regarded as offshore islands.

4. The objects stated in Point 1 this Section are entitled to the following tax privileges:

a/ A 50% reduction of the natural resource tax and turnover tax for three years from the date of issue of the permit for marine resource exploitation in the offshore marine area; and exemption of profit tax for the first three years from the time the taxable profit is generated.

b/ Owners of fishing ships who register their ownership of vessels engaged in the offshore exploitation of marine resources shall pay a registration fee of 1% (one per cent) of the value of the vessel at the time of registration.

Vessel owners who are not granted permits for offshore exploitation of marine resources and who own fishing vessels with main engines of under-90CV capacity shall have to pay a registration fee as prescribed in Decree No. 193-CP of December 29, 1994 of the Government.

c/ The subjects that are engaged in the offshore exploitation of marine resources and concurrently fall under the scope of regulation of the Law on Promotion of Domestic Investment (as prescribed in Article 4 of the Law on Promotion of Domestic Investment, Article 1 of Decree No. 29-CP of May 12, 1995 of the Government detailing the implementation of the Law on Promotion of Domestic Investment and the guidance in Section I of Circular No. 94-TC/TCT of December 22, 1995 of the Ministry of Finance) shall be also entitled to tax privileges prescribed in Articles 16, 17, 18, 19, 20 and 21 of Decree No. 29-CP of May 12, 1995 of the Government detailing the implementation of the Law on Promotion of Domestic Investment. However, one subject shall be only entitled to the highest percentage (%) of tax reduction or exemption for the longest grace period with respect to each type of tax rather than the aggregate of the tax reduction or exemption percentages or the aggregate of the grace periods as provided for in different documents.

d/ Taxes and fees other than the above-mentioned taxes and registration fee shall be subject to current provisions of law.

II. PROCEDURE AND COMPETENCE TO CONSIDER TAX REDUCTION OR EXEMPTION

1. The procedure for consideration of reduction of natural resource tax and turnover tax and exemption of profit tax:

a/ (Marine resources)-exploiting establishments eligible for natural resource tax and turnover tax reduction and profit tax exemption shall have to send to the tax agency that directly manage them a dossier which includes:

- The application for tax reduction and/or exemption (the original);

- The business registration certificate granted by a competent agency (a notarized copy);

- The written certification of of the actual duration of being engaged in the offshore exploitation of marine resources by the aquatic resource-protecting agency (a notarized copy);

- The certification of the tax registration and declaration by the tax agency of the locality where the establishment is located and of the place where actual exploitation is conducted in accordance with current provisions of law (a copy);

- In cases where a subject pays profit tax according to the mode of declaration, he/she/it shall, when requesting the profit tax exemption, have to submit the financial settlement enclosed with a report on the examination of the tax settlement of the year when tax reduction and/or exemption is considered (a copy).

b/ The procedure for considering tax reduction and/or exemption for the subjects eligible for tax privileges under the Law on Promotion of Domestic Investment shall comply with the provisions of Circular No. 94-TC/TCT of December 22, 1995 of the Ministry of Finance guiding the procedure, order and competence for considering tax reduction and/or exemption under the Law on Promotion of Domestic Investment and Decree No. 29-CP of May 12, 1995 of the Government detailing the implementation of the Law on Promotion of Domestic Investment.

2. The order and competence for considering natural resource tax and turnover tax reduction and profit tax exemption:

The tax agency that receives a dossier of application for tax reduction and/or exemption from the establishment it directly manages shall have to examine the dossier and requests the establishment to supplement and revise the dossier if it is incomplete or inaccurate before making a decision on tax reduction and/or exemption according to its competence. For cases beyond its competence, it shall have to send a report enclosed with the related dossier to the higher-level tax agency for settlement. Within 30 days from the date of receipt of the dossier, the agency with the handling competence shall have to decide the tax reduction and/or exemption or inform the exploiting agency of the reasons why it has not yet approved or does not approve tax reduction and/or exemption.

Competence to consider the natural resource tax and turnover tax reduction and profit tax exemption:

a/ The Director of the provincial/municipal Taxation Department shall be entitled to consider and decide tax reduction and/or exemption for locally managed exploiting establishments which are individuals, households, cooperatives, cooperation groups, companies, enterprises and other exploiting establishments under the local management (except for the case stated in Point c below).

b/ The General Director of the General Department of Taxation shall be entitled to consider and decide tax reduction and/or exemption for centrally-run exploiting establishments, foreign invested enterprises or joint ventures involving foreign parties and operating under the Law on Foreign Investment in Vietnam (except for the case stated in Point c below).

c/ The Minister of Finance shall be entitled to consider and decide the cases applying for an average turnover tax reduction of over 50 million VND per month and a profit tax exemption of over 100 million VND per year.

The agency competent to consider and decide turnover tax reduction and/or profit tax exemption shall also consider and decide natural resource tax reduction.

The reduction and/or exemption of natural resource tax, turnover tax and profit tax shall be decided annually at the end of the fiscal year. In the year of tax reduction and/or exemption, the head of the tax agency that directly manages establishments shall examine their exploitation permits and business registration certificates and compare them against the tax reduction and/or exemption conditions according the guidance of this Circular so as to decide the temporary non-collection of profit tax and/or the deferred payment of not more than 50% of the turnover tax and/or natural resource tax amounts to be paid every month by the exploiting establishments.

3. Procedure and competence to handle the collection of the registration fee of 1%:

A vessel owner subject to the payment of the 1% registration fee shall have to send a dossier to the taxation department of the province or city where his/her establishment is located. Such dossier includes:

- The dossier declaring the vessel registration fee according to the current regime of registration fees. The declaration must clearly state the capacity of the main engine of the vessel to be registered.

- The permit for the offshore exploitation of marine resources.

- The business registration certificate.

The director of the provincial/municipal taxation department shall examine the dossier, procedure and decide the collection of the registration fee as stipulated before the vessel owner registers his/her rights to own and use his/her property.

All vessel owners who had paid the registration fee according to the level (2%) prescribed in Article 4, Decree No. 193-CP of December 29, 1994 of the Government before they were granted permits for the offshore exploitation of marine resources shall not be refunded the paid registration fees nor have the paid registration fees deducted from other payable amounts.

In cases where an exploiting establishment make a false declaration so as to be entitled to tax and registration fee reduction and/or exemption, it shall have to pay all tax and registration fee arrears and be administratively sanctioned according to the legislation on sanctions against administrative violations in the field of taxation.

III. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect 15 days after its signing and replaces inter-ministerial Circular No. 109-TT/LB of December 31, 1993 of the Ministry of Finance and the Ministry of Aquatic Resources guiding the implementation of Decision No. 400-TTg of August 7, 1993 of the Prime Minister.

Particularly for exploiting establishments that are entitled to tax privileges under Decision No. 400-TTg of August 7, 1993 of the Prime Minister, they shall continue to be entitled to the preferential tax rates for the grace periods prescribed in Decision No. 400-TTg. At the expiry of the grace period as prescribed in Decision No. 400 if they are eligible for tax privileges under Decision No. 358-TTg of May 29, 1997, they shall continue to be entitled to such tax preferences.

2. The tax agency, the provincial/municipal aquatic resource protecting agencies and the border guard at border gates shall coordinate with one another in checking and closely managing vessels engaged in the offshore exploitation of marine resources, assuring tax privileges for the right subjects and completing licensing procedures according to their competence, organizing the speedy and simple registration, declaration and certification without causing any trouble to the objects entitled to preferential treatment.

Any problem arising in the course of implementation should be promptly reported to the Ministry of Finance and the Ministry of Aquatic Resources for study and settlement.