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KPMG Tax & Legal Updates - November 2020

This tax and legal updates covering the following issues: 1) Corporate income tax, 2) foreign contractor tax, 3) personal income tax, 4) export / import tax, 5) special consumption tax, 6) tax administration and customs administration, and 7) foreign exchange control

New guidance on the Law on Appeals

Decree 124/2020/ND-CP providing guidance on the Law on Appeals has recently been issued and will come into effect on 10 December 2020. Please find below our NewBrief on some important changes made to the appeal process and procedures.

Can “actual and direct loss” due to a breach of contract include losses incurred by non-defaulting party under another contract with a third party?

Under the Commercial Law 2005, the value of damage that the non-defaulting party could claim due to a breach of contract will comprise (i) the value of the “actual and direct loss” incurred by the non-defaulting party due to the defaulting party’s breach; and (ii) the “direct profits which the non-defaulting party would have earned” in the absence of such breach.

The burden of proof regarding mitigation obligation in case of a damage claim under Vietnam contract law

Under the Commercial Law 2005, when a non-defaulting party makes a claim for damage due to a breach of contract, the non-defaulting party has the obligations to mitigate the damages it has suffered (Duty To Mitigate). However, Commercial Law 2005 is silent on whether the responsibility to prove the non-defaulting party’s fulfillment or (non-fulfillment) of Duty To Mitigate belongs to the defaulting party or the non-defaulting party.

New Procedures to Coordinate Various Business Commencement Steps for Vietnamese Companies

In October 2020, the Government issued the new Decree 122/2020 on the coordination between various separate procedures relating to the business commencement steps of a company in Vietnam including enterprise incorporation procedures, employee usage declaration, social insurance registration code, and registration of tax invoice.

Tax Alert - Decree 126 guiding Law on Tax administration 2019

Tin Thuế & Luật - Nghị Định 126/2020/Nđ-Cp Quy Định Chi Tiết Một Số Điều Của Luật Quản Lý Thuế 2019

On 19 October 2020, the Government issued Decree 126/2020/ND-CP ("Decree 126") providing further guidance on the implementation of Law on Tax administration 2019. This Decree takes effect from 05 December 2020 and will abolish the previous guidances on tax administration, as well as the previous forms used for tax declaration.

Cambodia: Additional Measures to Support Private Sector Workers & Revive the Post-COVID-19 Economy

This update covers Round 6’ of measures aimed at mitigating the impacts of COVID-19 on businesses and workers in Cambodia.

New decree pushes back compulsory e-invoicing to 2022

On 19 October, the government issued Decree 123/2020 guiding invoices and documents, including e-invoice related matters. One of the decree’s notable points is a delay of the deadline for compulsory implementation of e-invoices from 1 November 2020 until 1 July 2022. This delay gives some breathing room for companies which have not yet implemented e-invoicing.

Cayman Islands removed from EU list of non-cooperative jurisdictions

The European Union (EU) announced on 6 October the removal of the Cayman Islands from its list of non-cooperative tax jurisdictions. The list is a tool of the EU that aims to tackle external risks of tax abuse and unfair tax competition in low and tax neutral jurisdictions.

30% corporate income tax cut in 2020

Following up on our recent newsbrief on the Resolution that cut CIT 30% in 2020, the Prime Minister has officially released Decree 114/2020 providing guidance for this measure. The Decree will take effect on the same effective date of the Resolution (3 August 2020) and apply to the 2020 tax year.

New Anti-Spam Regulations

The government issued Decree 91/2020/ND-CP dated 14 August on anti-spam text messages, emails and calls. Decree 91 comes into effect on 1 October and replaces Decree 90/2008 and Decree 77/2012.

Alert on New Immigration Regulation on Re-opening International Flights between VN and 6 Jurisdictions

On 15 September 2020 the Government Office announced the conclusion for re-opening international flights between Vietnam and some jurisdictions, which is in principle approved by the Prime Minister and agreed with by the Deputy Prime Minister.

Would transactions between parties outside Vietnam (offshore transactions) be caught by merger control legislation?

Liệu các giao dịch giữa các bên thực hiện ngoài Việt Nam (giao dịch ở nước ngoài) có chịu sự điều chỉnh của quy định về tập trung kinh tế?

Under the Competition Law 2018, any transaction “causing the effect or being capable of causing the effect of significantly restricting competition in the market of Vietnam” is prohibited. As such, an offshore transaction will be caught by merger control requirement if it has actual or potential anti-competitive impact on a relevant market of Vietnam.

Can Foreigner Engage In An Indefinite Term Employment In Vietnam Under Labour Code 2012?

Người Nước Ngoài Có Được Phép Làm Việc Không Thời Hạn Tại Việt Nam Theo Bộ Luật Lao Động 2012?

The current Labor Code 2012 does not make it clear on whether a foreigner could be entitled to an indefinite term employment contract (ITEC) although the foreigner only has a work permit with limited term (two years at the maximum). In theory, the foreigner can demand for an ITEC with the employer based on the following legal basis and arguments.

Points To Consider In An Arbitration Clause For A Vietnamese Party In A Contract With A Foreign Party

Những Điểm Cần Xem Xét Trong Điều Khoản Trọng Tài Đối Với Bên Việt Nam Trong Hợp Đồng Với Bên Nước Ngoài

When a Vietnamese company enters into a contract with a foreign party, the foreign party usually requires the contract to have an arbitration clause so that disputes arising from the contract will be settled by commercial arbitration instead of Vietnamese courts. When negotiating and drafting the arbitration clause of such contract, a Vietnamese company may need to consider the following points.

Re-execution of a Government Land Lease Agreement in case of assigning of land use rights in Vietnam

Ký lại Hợp đồng thuê đất với Nhà nước trong trường hợp chuyển nhượng quyền sử dụng đất tại Việt Nam

In Vietnam, leasing land directly from the State is a common option to acquire land use right (LUR). That means one, as master “land user” (người sử dụng đất), needs to sign a land lease agreement (LLA) with State, by which it is obligated to pay land rental.

Personal Income Tax (“PIT”) treatment on income and expenses paid to employees during COVID-19 pandemic - Oct 2020

Local tax authorities have issued Official Letters as guide for employers and employees in the reporting of income and expenses paid relating to COVID-19 pandemic. To help employers and employees understand how these payments may affect your withholding and reporting obligations, we have summarised the main points as follow.

EVFTA preferential export and import tariffs announced

The Government has issued Decree 111/2020/ND-CP providing Vietnam's preferential export and import tariffs for the period 2020 - 2022 to implement the EVFTA.

Vietnam: Corporate Income Tax Reduced by 30% for 2020

On 25 September 2020, the Government of Vietnam issued Decree 114 which provides guidance on the implementation of a 30% reduction of Corporate Income Tax. This update covers some of the key points.

Alert on immigration

On the 31 August 2020, the Ministry of Health issued Official letter No. 4674/BYT-MT to ministries, ministerial agencies, government agencies and the provincial People’s Committees providing guidelines on Covid-19 prevention and control for a short-term visit by foreigners of less than 14 days to Vietnam.