Joint Circular No. 17/2012/TTLT-BKHCN-BTC-BNV amending and supplementing Joint Circular No. 06/2008/TTLT-BKHCN-BTC-BNV dated June 18, 2008 guiding the implementation of Government Decree No. 80/2007/NĐ-CP dated May 19, 2007 on science and technology enterprises.

JOINT CIRCULAR

Amending and supplementing Circular Jointly Issued No. 06/2008/TTLT-BKHCN-BTC-BNV dated June 18, 2008 guiding the implementation of Decree No. 80/2007/NĐ-CP dated May 19, 2007 of the GovernmentPursuant to the Law on Tax Administration No. 38/2019/QH14 dated June 13, 2019;

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Pursuant to Decree No. 28/2008/NĐ-CP dated March 14, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

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

Pursuant to Decree No. 61/2012/ND-CP dated August 10, 2012 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Home Affairs;

Pursuant to Decree No. 80/2007/NĐ-CP dated May 19, 2007 of the Government on science and technology enterprises;

Pursuant to Decree No. 96/2010/NĐ-CP dated September 20, 2010 of the Government amending and supplementing certain articles of Decree No. 115/2005/NĐ-CP dated September 5, 2005 stipulating the mechanism of self-management and self-responsibility of public scientific and technological organizations and Decree No. 80/2007/NĐ-CP dated May 19, 2007 on science and technology enterprises.

The Ministry of Science and Technology, the Ministry of Finance, and the Ministry of Home Affairs amend and supplement Circular Jointly Issued No. 06/2008/TTLT-BKHCN-BTC-BNV dated June 18, 2008 guiding the implementation of Decree No. 80/2007/NĐ-CP on science and technology enterprises (hereinafter referred to as Circular Jointly Issued No. 06/2008/TTLT-BKHCN-BTC-BNV) as follows:

Article 1. Amending and supplementing some contents of Circular Jointly Issued No. 06/2008/TTLT-BKHCN-BTC-BNV as follows:

1. Supplementing Point 1.3, Clause 1, Section I as follows:

"1.3. Enterprises currently operating under the Enterprise Law (including those enterprises established before the effective date of Decree No. 80/2007/NĐ-CP dated May 19, 2007 of the Government on science and technology enterprises), which have the right to own or legally use scientific and technological results (ST&T) and meet the regulations for certification as ST&T enterprises."

2. Amending and supplementing Clause 5, Section I as follows:

"5. Conditions for certification as a ST&T enterprise

An enterprise will be certified as a ST&T enterprise when it meets the following conditions:

5.1. The subject establishing a ST&T enterprise completes the incubation and mastery of technology from legally owned or used scientific and technological results or legally owns technology directly producing in fields such as information and communication technology, particularly software technology; biotechnology, particularly biotechnology serving agriculture, aquaculture, and healthcare; automation technology; new materials technology, particularly nanotechnology; environmental protection technology; new energy technology; space technology, and other technologies specified by the Ministry of Science and Technology.

5.2. Transfer technology or directly produce based on technology that has been incubated and mastered or legally owned technology as specified in Point 5.1, Clause 5, Section I above."

3. Amending the name of Clause 1 and amending and supplementing Points 1.1 and 1.2, Clause 1, Section II as follows:

"1. Establishment of new and certification of ST&T enterprises

1.1. Procedures for establishment of new and certification of ST&T enterprises

a) The subjects specified in Point 1.1, Clause 1, Section I of this Circular establish ST&T enterprises according to the following procedures:

- Establishing an enterprise and registering the enterprise according to the provisions of the Enterprise Law;

- Registering certification as a ST&T enterprise at the provincial Department of Science and Technology where the enterprise's main office is located.

b) The subjects specified in Point 1.3, Clause 1, Section I of this Circular prepare registration documents for certification as a ST&T enterprise according to the provisions of Points 1.2 and 1.3, Clause 1, Section II of this Circular."

1.2. Documents for registration of certification as a ST&T enterprise

a) The documents include:

- Application for certification as a ST&T enterprise (according to the form attached to this Circular);

- Copy of the Enterprise Registration Certificate (certified copy in case the documents are sent via postal service);

- Business production and operation project (contents related to scientific and technological results as the basis for certification as a ST&T enterprise).

b) Number of sets of documents: 01 set.

c) The documents can be submitted directly or via postal service to the provincial Department of Science and Technology where the enterprise's main office is located."

4. Amending and supplementing Subparagraph d, Point 2.1, Clause 2, Section II as follows:

"d) Registering certification as a ST&T enterprise at the provincial Department of Science and Technology where the enterprise's main office is located."

5. Amending and supplementing Point 2.2, Clause 2, Section II as follows:

"2.2. Documents for registration of certification as a ST&T enterprise

a) The documents include:

- Application for certification as a ST&T enterprise (according to the form attached to this Circular);

- Decision approving the Project by the competent state management agency;"

- Copy of the Enterprise Registration Certificate (certified copy in case the documents are sent via postal service);

b) Number of sets of documents: 01 set.

c) The documents can be submitted directly or via postal service to the provincial Department of Science and Technology where the enterprise's main office is located."

6. Amending and supplementing Clause 3, Section II as follows:

"3. Examination, issuance, revocation, cancellation of effect, reissuance, amendment, and supplementation of the Certificate of ST&T enterprise and list of products and goods formed from scientific and technological results

3.1. Provincial Departments of Science and Technology examine, issue, revoke, cancel the effect, reissue, amend, and supplement the Certificate of ST&T enterprise and list of products and goods formed from scientific and technological results for enterprises whose main offices are located in their respective provinces.

For enterprises operating in fields of national security, defense, significantly affecting public health, environmental protection, and enterprises established from public scientific and technological organizations registered to operate scientific and technological activities with the Ministry of Science and Technology, and other cases proposed by provincial Departments of Science and Technology, the Ministry of Science and Technology will conduct evaluation and examination of the documents and send the results to the provincial Departments of Science and Technology to carry out the certification of ST&T enterprises.

3.2. Examination and issuance of the Certificate of ST&T enterprise and list of products and goods formed from scientific and technological results.

a) Provincial Departments of Science and Technology check the compliance of the documents specified in Point 1.2, Clause 1, Section II; Point 2.2, Clause 2, Section II of this Circular and examine the documents according to the conditions stipulated in Clause 5, Section I of this Circular to issue the Certificate of ST&T enterprise and list of products and goods formed from scientific and technological results (Model of the Certificate of ST&T enterprise attached to this Circular).

b) The time limit for examining and issuing the Certificate of ST&T enterprise is a maximum of thirty working days from the date of receipt of the complete documents from the enterprise.

In case a Business Registration Certificate for a Science and Technology Enterprise is not issued, within five working days, the Department of Science and Technology of provinces and centrally governed cities must respond to the enterprise in writing and clearly state the reasons.

3.3. Revocation and invalidation of the Business Registration Certificate for a Science and Technology Enterprise

a) The Department of Science and Technology of provinces and centrally governed cities shall decide to revoke and invalidate the Business Registration Certificate for a Science and Technology Enterprise in the following cases:

- The Science and Technology Enterprise has had its business registration certificate revoked and been removed from the business registration book;

- The Science and Technology Enterprise is found to have engaged in false or inaccurate declarations in the application dossier for the Business Registration Certificate for a Science and Technology Enterprise;

- The Science and Technology Enterprise fails to meet the conditions stipulated in Clause 5, Section I of this Circular;

- The Science and Technology Enterprise does not comply with the reporting requirements on its operational status as prescribed;

- The Business Registration Certificate for a Science and Technology Enterprise was issued beyond authority or without compliance with the prescribed procedures.

b) For enterprises whose Business Registration Certificates for a Science and Technology Enterprise are revoked, they will no longer be eligible for support and incentives; if the revocation is due to false or inaccurate declarations in the application dossier for the Business Registration Certificate for a Science and Technology Enterprise, the enterprise will be required to repay all funds and other benefits received and will be subject to legal penalties.

3.4. Reissuing, amending, and supplementing the Business Registration Certificate for a Science and Technology Enterprise

a) In the event that the Business Registration Certificate for a Science and Technology Enterprise is lost, the Science and Technology Enterprise is responsible for reporting to the police station where the loss occurred and making at least three announcements on mass media. Within thirty days from the date of the last announcement, the enterprise must apply for reissuance of the Business Registration Certificate for a Science and Technology Enterprise, with the following documents:

- A request for reissuance of the Business Registration Certificate for a Science and Technology Enterprise signed by the legal representative of the enterprise;

- Documentation proving that the enterprise has made announcements about the loss of the Business Registration Certificate for a Science and Technology Enterprise on mass media.

b) In the event that the Business Registration Certificate for a Science and Technology Enterprise is damaged or deteriorated, the Science and Technology Enterprise must apply for reissuance, with the following documents:

- A request for reissuance of the Business Registration Certificate for a Science and Technology Enterprise signed by the legal representative of the enterprise;

- The original Business Registration Certificate for a Science and Technology Enterprise.

c) In the event that the Business Registration Certificate for a Science and Technology Enterprise is destroyed, the legal representative of the enterprise must submit a request for reissuance of the Business Registration Certificate for a Science and Technology Enterprise, stating the reasons.

d) In the event that the Science and Technology Enterprise changes information related to its name, business registration, or head of the enterprise, it must apply for supplementary or amended issuance of the Business Registration Certificate for a Science and Technology Enterprise, with the following documents:

- A request for supplementary or amended issuance of the Business Registration Certificate for a Science and Technology Enterprise signed by the legal representative of the enterprise;

- The original Business Registration Certificate for a Science and Technology Enterprise;

- Documentation proving the changes related to business registration.

đ) The Department of Science and Technology of provinces and centrally governed cities shall examine and issue, supplement, or amend the Business Registration Certificate for a Science and Technology Enterprise within ten working days from the date of receipt of the complete application dossier.

e) Number of documents: 01 set.

g) The application dossier may be submitted directly or through postal service to the local Department of Science and Technology where the enterprise's headquarters is located.

3.5. The costs for reviewing, issuing, revoking, invalidating, and reissuing the Business Registration Certificate for a Science and Technology Enterprise shall be sourced from the annual operating budget allocated by the State budget to the Department of Science and Technology of provinces and centrally governed cities. The Department of Science and Technology of provinces and centrally governed cities shall be responsible for preparing the budget for these expenses.

7. Amend and supplement paragraph a, Point 4.3, Clause 4, Section II as follows:

“4.3. Policies for civil servants and employees

a) Civil servants and employees of public science and technology organizations who have been appointed to a rank or signed indefinite-term labor contracts continue to sign indefinite-term labor contracts when transferring to work at Science and Technology Enterprises and their salary grade is adjusted according to the salary scale of the Science and Technology Enterprise, with a coefficient equal to or higher than the nearest coefficient before transferring to work at the Science and Technology Enterprise. If the salary at the Science and Technology Enterprise is lower than the current salary, the employee can retain the previous salary coefficient for up to eighteen months from the date of transfer, after which they will be reassigned according to the salary scale applicable to the Science and Technology Enterprise.”

“Science and Technology Enterprises are eligible for corporate income tax incentives as specified in Point 1.2, Clause 1, Section III of this Joint Circular if they meet the following condition: The Science and Technology Enterprise must achieve a revenue ratio from producing and trading products derived from scientific and technological achievements, accounting for 30% or more of total revenue in the first year, 50% or more in the second year, and 70% or more from the third year onwards. The first year refers to the first year the Science and Technology Enterprise has taxable income.”

“1.2. Level of corporate income tax incentives

Science and Technology Enterprises are entitled to corporate income tax incentives similar to newly established enterprises in high-tech investment projects, scientific research, and technological development, specifically as follows:

a) Science and Technology Enterprises are subject to a corporate income tax rate of 10% for fifteen years starting from the first year they generate revenue from scientific and technological activities.

b) A science and technology enterprise shall be exempted from corporate income tax for a period of four years and shall have its tax payable reduced by 50% for the next nine years, starting from the first year in which the science and technology enterprise has taxable income.

During the period of enjoying preferential treatment on corporate income tax, if a science and technology enterprise meets the above-mentioned revenue ratio conditions in any given year, it shall be exempted or have its corporate income tax reduced; otherwise, if it does not meet the revenue ratio conditions, it shall not be exempted or have its tax reduced and shall pay corporate income tax at the current applicable tax rate.

10. Supplement Clause 6, Section III as follows:

“6. Land Preferential Treatments:

6.1. In addition to other forms of land allocation and land leasing as prescribed by the laws on land, a science and technology enterprise may choose one of the following two forms of land use:

a) Lease land and be exempted from land lease fees;

b) Allocate land with payment of land use fee and be exempted from land use fee.

A science and technology enterprise shall only be exempted from land use fee and land lease fee for the area of land used for scientific and technological purposes according to the approved planning. In cases where the area of land is used for multiple purposes, including part of the area for scientific and technological purposes, the science and technology enterprise shall be exempted from land use fee and land lease fee for the portion of land used for scientific and technological purposes.

6.2. When the State allocates land and exempts land use fee, or leases land and exempts land lease fee, the science and technology enterprise shall not include the value of land use right in the asset value of the investment project; it shall not have the right to convert, transfer, gift, lease land use rights; it shall not mortgage or guarantee land use rights for loans; it shall not contribute land use rights as capital for production cooperation or business.

6.3. In cases where a science and technology enterprise is allocated land with payment of land use fee and is exempted from land use fee, or leased land with exemption from land lease fee to implement an investment project but later is permitted by competent authority to transfer the project, the financial obligations shall be carried out as follows:

a) The transferring party shall not include the exempted land use fee and land lease fee in the transfer price.

b) The receiving party, if continuing to implement the project, shall continue to be exempted from land use fee and land lease fee according to the laws on investment for the remaining time of the project. In this case, the People's Committee of the province or centrally-run city shall recover the land previously allocated to the science and technology enterprise (old) and allocate land or lease land to the new investor according to the laws on land.

6.4. A science and technology enterprise must use the allocated or leased land for the intended purpose and in accordance with the laws on land. If the land is used for an unintended purpose, it shall be recovered according to the laws on land, and the enterprise must pay the entire land use fee and land lease fee that were exempted based on the land price at the time of recovery corresponding to the period of unintended use.

6.5. In cases where a science and technology enterprise wishes to pay land use fee or land lease fee according to the laws on land, the People's Committee of the province shall consider and decide according to the authority granted for land allocation and leasing to implement the project under the laws on land.

In such cases, the science and technology enterprise shall include the value of land use right in the asset value of the investment project and shall have the rights and obligations of an economic organization allocated land with payment of land use fee according to the current laws on land.

11. Amend and supplement Clause 5, Section IV as follows:

“5. Provincial Science and Technology Departments shall be responsible for:

a) Reviewing, issuing, revoking, invalidating, reissuing, amending, and supplementing the Certificate of Science and Technology Enterprise and supplementing, amending the list of products formed from scientific and technological results;

b) Publicly announcing the procedures, forms, and processes for registering and certifying science and technology enterprises on the department’s website;

c) Sending copies of the Certificate of Science and Technology Enterprise(in cases of issuance, reissuance, amendment, and supplementation of the Certificate of Science and Technology Enterprise)or sending a written notice(in cases of revocation and invalidation of the Certificate of Science and Technology Enterprise)to relevant management agencies and local tax authorities within five working days from the date of issuance, reissuance, revocation, invalidation, amendment, and supplementation of the Certificate of Science and Technology Enterprise;

d) Budgeting funds into the annual science and technology plan to carry out the review, issuance, revocation, invalidation, reissuance of the Certificate of Science and Technology Enterprise and the supplementation, amendment of the list of products formed from scientific and technological results;

e) Annually reporting in writing about the registration and certification status of science and technology enterprises; the operational results of science and technology enterprises in the locality to the Ministry of Science and Technology before December 15th.”

12. Amend and supplement Clause 6, Section IV as follows:

“6. Tax administration agencies shall base their decisions on the list of products and goods formed from scientific and technological results specified in the Certificate of Science and Technology Enterprise and the tax declaration of the science and technology enterprise to apply tax preferential policies for the science and technology enterprise according to this Joint Circular.”

13. Amend and supplement Appendix I on the model application for certification of science and technology enterprises with Appendix I issued together with this Joint Circular.

Article 2. Effective Date

1. This Joint Circular shall take effect from November 1, 2012.

2. Science and technology enterprises certified as science and technology enterprises before January 1, 2009 shall continue to enjoy corporate income tax preferences (including both a 10% corporate income tax rate and the period of tax exemption and reduction) for the remaining time according to the Law on Corporate Income Tax No. 09/2003/QH11.

A science and technology enterprise that is granted a certificate of a science and technology enterprise after January 1, 2009 shall enjoy a corporate income tax rate of 10% for a period of 15 years from the first year the enterprise generates revenue from science and technology activities and shall continue to enjoy tax exemption and reduction periods for the remaining years in accordance with the provisions.

During the period of enjoying preferential corporate income tax treatment, if a science and technology enterprise fails to meet the revenue ratio conditions in any given year, it shall not be exempted or reduced from taxes and must pay corporate income tax at the current applicable tax rate.

3. A science and technology enterprise that has been granted a certificate of a science and technology enterprise and has been leased land with rent payment or allocated land with land use fee payment by the competent authority and has actually handed over the land before November 6, 2010 shall be implemented as follows:

In the case where a science and technology enterprise has been allocated land by the State and paid the land use fee or has been leased land by the State and paid the lease fee in one lump sum for the entire lease period, the enterprise shall not be refunded the amount of the land use fee or lease fee already paid for the allocation or lease of the land.

In the case where a science and technology enterprise has been allocated land with land use fee payment or leased land by the State under the form of paying the lease fee in one lump sum for the entire lease period but as of November 6, 2010, the land user has not paid or has only partially paid the required land use fee or lease fee, the enterprise must continue to pay the outstanding land use fee or lease fee for the lease period up to November 6, 2010 and shall be subject to late payment penalties as stipulated by the Law on Tax Administration.

In the case where a science and technology enterprise has been leased land by the State with annual lease payments, the enterprise shall be exempted from lease fees for the remaining period starting from November 6, 2010.

During the implementation process, if any issues arise, organizations and individuals are advised to report them to the Ministry of Science and Technology, the Ministry of Finance, and the Ministry of Home Affairs for examination and resolution in accordance with the regulations./.