Decree No. 49/2022/ND-CP amends and supplements some articles of Decree No. 209/2013/ND-CP dated December 18, 2013, of the Government detailing and guiding the implementation of certain provisions of the Value Added Tax Law which has been amended and supplemented by Decrees No. 12/2015/ND-CP, No. 100/2016/ND-CP, and No. 146/2017/ND-CP.

 DECREE

Amending and supplementing certain articles of Decree No. 209/2013/NĐ-CP
dated December 18, 2013 of the Government detailing and guiding the implementation of certain provisions of the Value Added Tax Law which has been amended and supplemented by Decree No. 12/2015/NĐ-CP, Decree No. 100/2016/NĐ-CP, and Decree No. 146/2017/NĐ-CP
The Value Added Tax Law on June 3, 2008;

On the basis of Law on Government Organization dated June 19, 2015; Law Amending and Supplementing Certain Provisions of the Law on Government Organization and the Law on Local Administration dated November 22, 2019;

On the basis of The Law amending and supplementing certain provisions of the Value Added Tax Law on June 19, 2013; The Law amending and supplementing certain provisions of tax laws on November 26, 2014;

On the basis of The Law amending and supplementing certain provisions of the Value Added Tax Law, Special Consumption Tax Law, and Tax Administration Law on April 6, 2016;

On the basis of The Government promulgates this Decree amending and supplementing certain articles of Decree No. 209/2013/NĐ-CP dated December 18, 2013 of the Government detailing and guiding the implementation of certain provisions of

At the proposal of the Minister of Finance;

The Value Added Tax Law which has been amended and supplemented by Decree No. 12/2015/NĐ-CP, Decree No. 100/2016/NĐ-CP, and Decree No. 146/2017/NĐ-CP. Article 1. Amending and supplementing certain articles of Decree No. 209/2013/NĐ-CP dated December 18, 2013 of the Government detailing and guiding the implementation of certain provisions of

which has been amended and supplemented by Decree No. 12/2015/NĐ-CP, Decree No. 100/2016/NĐ-CP, and Decree No. 146/2017/NĐ-CP Law Amending and Supplementing Certain Provisions of the Bidding Law, the Public-Private Partnership Investment Law, the Customs Law, the Value Added Tax Law, the Export Tax Law, the Import Tax Law, the Investment Law, the Public Investment Law, the Management and Use of State Property Law 1. Amending and supplementing Clause 3, 4 of Article 4 as follows:

“3. For real estate transfer activities, the value added tax taxable amount is the real estate transfer price minus (-) the land price deductible for value added tax.

a) The land price deductible for value added tax is specified as follows:

a.1) In cases where the State grants land for infrastructure investment to build houses for sale, the land price deductible for value added tax includes the land use fee payable to the state budget according to the law on collecting land use fees and compensation and clearance costs (if any).

a.2) In cases of auctioning land use rights, the land price deductible for value added tax is the auction-winning price.

a.3) In cases of leasing land for infrastructure construction and building houses for sale, the land price deductible for value added tax is the land lease fee payable to the state budget according to the law on collecting land lease fees and water surface lease fees and compensation and clearance costs (if any).

Compensation and clearance costs as stipulated at point a.1 and point a.3 of this clause are the amounts of compensation and clearance costs approved by competent state authorities, deducted from the land use fee and land lease fee payable according to the law on collecting land use fees, land lease fees, and water surface lease fees.

a.4) In cases where a business entity receives the transfer of land use rights from organizations or individuals, the land price deductible for value added tax is the land price at the time of receiving the transfer of land use rights excluding the value of infrastructure. The business entity may declare and deduct input value added tax on infrastructure (if any). If the land price at the time of receiving the transfer cannot be determined, the land price deductible for value added tax is the land price prescribed by the People's Committee of the province or centrally governed city at the time of signing the transfer agreement.

In cases where a business entity receives the transfer of real estate from organizations or individuals who have determined the land price including the value of infrastructure according to Clause 3, Article 4 of Decree No. 209/2013/NĐ-CP (amended and supplemented at Clause 3, Article 3 of Decree No. 12/2015/NĐ-CP dated February 12, 2015), the land price deductible for value added tax is the land price at the time of receiving the transfer excluding infrastructure.

In cases where the value of infrastructure cannot be separated at the time of receiving the transfer, the land price deductible for value added tax is the land price prescribed by the People's Committee of the province or centrally governed city at the time of signing the transfer agreement.

a.5) In cases where a real estate business entity receives capital contribution in the form of land use rights from organizations or individuals, the land price deductible for value added tax is the price recorded in the capital contribution contract. If the land transfer price is lower than the contributed land price, only the land price according to the transfer price can be deducted.

a.6) In cases where a real estate business entity implements the build-transfer (BT) model with payment in the form of land use rights, the land price deductible for value added tax is the price at the time of signing the BT contract according to the law; if the price cannot be determined at the time of signing the BT contract, the land price deductible is the price decided by the People's Committee of the province or centrally governed city for settlement of the project.

b) In cases of constructing and operating infrastructure, building houses for sale, transfer, or lease, the value added tax taxable amount is the amount received according to the project progress or the amount recorded in the contract minus (-) the land price deductible corresponding to the percentage of the amount received over the total contract value.

4. The value added tax taxable amount for power generation activities of the Vietnam Electricity Corporation is as follows:

a) For electricity of hydropower companies affiliated with the Vietnam Electricity Corporation, affiliated with power generation corporations, the value added tax taxable amount to determine the local value added tax payable is calculated at 35% of the average retail electricity price excluding value added tax according to the law on electricity and pricing law.

b) For electricity of thermal power companies affiliated with the Vietnam Electricity Corporation, affiliated with power generation corporations, the value added tax taxable amount to determine the local value added tax payable is the electricity selling price recorded on invoices according to power purchase contracts applicable to each thermal power plant.

b) For electricity from thermal power companies that are affiliated accounting units of the Vietnam Electricity Corporation, or affiliated accounting units of power generation corporations, the value-added tax taxable amount to determine the local value-added tax payable at the location of the thermal power plant is the electricity sale price to customers recorded on invoices pursuant to the power purchase and sale contracts applicable to each thermal power plant.

In the absence of a power purchase agreement applicable to each thermal power plant, the value-added tax taxable price shall be determined as the average retail electricity price excluding value-added tax as prescribed by laws on electricity and pricing.

c) For electricity from companies producing electricity (excluding hydroelectricity and thermal electricity) that are affiliated with Vietnam Electricity Group or affiliated with Power Generation Corporations, the value-added tax taxable price for determining the amount of value-added tax payable at the localities where the electricity production plants are located shall be the electricity selling price excluding value-added tax as prescribed by competent state agencies for each type of power generation.

In the absence of an electricity selling price prescribed by competent state agencies for each type of power generation as mentioned in this point, the value-added tax taxable price shall be determined as the average retail electricity price excluding value-added tax as prescribed by laws on electricity and pricing.

2. Amend and supplement Clause 3 of Article 8 as follows:

“3. Business operations and individual businesses that do not implement or implement incompletely the accounting system, invoices, and vouchers as prescribed by law shall pay value-added tax according to the turnover tax method prescribed in Article 51 of the Law on Tax Administration.”

3. Amending and supplementing Clause 2 of Article 10 as follows:

“2. Businesses are entitled to refund value-added tax for investment projects as follows:

a) Businesses that have registered for business and registered to pay value-added tax under the deduction method (including newly established businesses from investment projects) have new investment projects (including investment projects divided into multiple phases or multiple components) in accordance with the Investment Law within the same province or city or different provinces or cities from their main office location (except for cases stipulated in point c of this clause and construction projects for sale or investment projects that do not form fixed assets) which are currently in the investment phase or oil and gas exploration and development projects currently in the investment phase, and have accumulated input value-added tax on goods and services incurred during the investment phase exceeding VND 300 million shall be eligible for a value-added tax refund.

Businesses must declare value-added tax separately for the investment project and offset the accumulated input value-added tax of the investment project against the value-added tax payable for ongoing business activities (if any). After offsetting, if the accumulated input value-added tax of the investment project exceeds VND 300 million, a value-added tax refund shall be granted.

In cases where the investment projects of businesses have been inspected, audited, or reviewed by competent state agencies, the tax authority may use the results of such inspections, audits, or reviews to decide on granting a value-added tax refund.

b) For investment projects of businesses in industries or trades subject to conditions under the following circumstances, businesses shall be entitled to a value-added tax refund for investment projects according to the provisions of point a of this clause:

b.1) Investment projects in the investment phase, as prescribed by investment laws and specialized laws, have obtained business operation permits for industries or trades subject to conditions from competent state agencies in one of the following forms: permit, certificate, or confirmation letter.

b.2) Investment projects in the investment phase, as prescribed by investment laws and specialized laws, do not need to apply for business operation permits for industries or trades subject to conditions from competent state agencies in one of the following forms: permit, certificate, or confirmation letter.

b.3) Investment projects, as prescribed by investment laws and specialized laws, do not require business operation permits for industries or trades subject to conditions in one of the following forms: permit, certificate, or confirmation letter.

c) Businesses are not entitled to a value-added tax refund but can carry forward the undeducted value-added tax of investment projects to the next period for the following cases:

c.1) Investment projects of businesses in industries or trades subject to conditions when they do not meet the business conditions prescribed by the Value-Added Tax Law amended and supplemented by the Law Amending and Supplementing Certain Provisions of the Value-Added Tax Law, Special Consumption Tax Law, and Tax Administration Law are investment projects of businesses in industries or trades subject to conditions but have not obtained business operation permits for industries or trades subject to conditions from competent state agencies in one of the following forms: permit, certificate, or confirmation letter, or do not meet the conditions to conduct conditional business without requiring confirmation or approval in the form of a document as prescribed by investment laws (except for cases stipulated in point b of this clause).

Investment projects of businesses in industries or trades subject to conditions that fail to maintain sufficient business conditions during operation as prescribed by the Value-Added Tax Law amended and supplemented by the Law Amending and Supplementing Certain Provisions of the Value-Added Tax Law, Special Consumption Tax Law, and Tax Administration Law are investment projects of businesses in industries or trades subject to conditions but during operation, businesses lose one of the business operation permits for industries or trades subject to conditions: permit, certificate, or confirmation letter; or during operation, businesses do not meet the conditions to conduct conditional business as prescribed by investment laws, then the time point for not being entitled to a value-added tax refund shall be calculated from the date when businesses lose one of the aforementioned documents or from the date when competent state agencies inspect and discover that businesses do not meet the conditions for conducting conditional business.

c.2) Investment projects for the exploitation of natural resources and minerals licensed on or after July 1, 2016, or investment production projects for goods where the combined value of natural resources and minerals plus energy costs constitutes 51% or more of the product cost according to the investment project, except for oil and gas exploration and development projects as provided in point a of this clause.

The determination of natural resources and minerals, their values, and the time of determining the value of natural resources and minerals and energy costs shall be carried out in accordance with the provisions of Clause 11, Article 3 of this Decree.”

Article 2. Effectiveness and responsibility for implementation

1. This Decree takes effect from September 12, 2022.

2. The provisions regarding VAT refund for investment projects of businesses operating in conditional business sectors as stipulated in Clause 3, Article 1 of this Decree shall be applied from the date Decree No. 100/2016/NĐ-CP dated July 1, 2016, of the Government comes into force.

In cases where businesses have had the VAT of investment projects refunded according to the provisions of point c, Clause 2, Article 10 of Decree No. 209/2013/NĐ-CP (amended and supplemented by Clause 6, Article 1 of Decree No. 100/2016/NĐ-CP), the tax authority shall adjust the VAT amount, late payment interest, and administrative fines for tax violations (if any). The offsetting and refunding of excess payments shall be carried out in accordance with the laws on tax administration.

3. To abolish the provisions of Article 2 of Decree No. 10/2017/NĐ-CP dated February 9, 2017, of the Government promulgating the Financial Management Regulations of Vietnam Electricity Corporation, and to amend and supplement Clause 4, Article 4 of Decree No. 209/2013/NĐ-CP dated December 18, 2013, of the Government.

4. The Ministry of Finance shall provide guidance on the implementation of this Decree.

5. Ministers, heads of ministerial-level agencies, heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central cities, and related organizations and individuals are responsible for implementing this Decree./.