by Dezan Shira & Associates

DAAT has been signed between Viet Nam and many countries. Photo phapluattp.vn

(Biz Hub) With regard to international trade, the various countries' tax systems often times put global investors in the unfavorable position of having to face redundant taxes on their income —i.e., double taxes . For example, a company may be subject to taxes in its country of residence and also in the countries where it raises income through foreign investments for the provision of goods and services.

It is therefore extremely worthwhile for foreign investors to be aware of the existing Double Taxation Avoidance Agreements (DTAAs) between Viet Nam and various foreign countries, as well as how these agreements are applied. These treaties effectively eliminate double taxation through identifying exemptions or reducing the amount of taxes payable in Viet Nam.

Who does it apply to?

DTAAs apply to both individuals and corporations who are residents of Viet Nam, citizens of the country that Viet Nam had signed a DTAA with, or both.

Residents of countries that are signatories to DTAAs with Viet Nam are subject to the relevant taxes in their native countries. Someone is considered a resident if they own residential property, have resided in the country for a certain amount of time or satisfy any other relevant criteria.

On the other hand, residents of Viet Nam must satisfy at least one of the following:

• Having stayed in Viet Nam for 183 days or more within one calendar year or a consecutive 12-month period from the first date of arrival;
• Obtained and registered for permanent residence status; or
• Leased a residence in Viet Nam for at least 90 days within the tax assessment year. Applicable residences include hotels, boarding houses, rest houses, lodgings and working offices.

Organizations are considered residents of Viet Nam if they have established a business in Viet Nam and operate under Vietnamese law. Examples include state companies, cooperatives, limited liability companies, joint-stock companies and private enterprises.

How does it apply?

If there is a direct conflict between the domestic tax laws and the tax provisions in a DTAA, those in the DTAA will prevail. However, domestic tax laws will prevail when the relevant tax obligations included in the DTAA do not exist in Viet Nam or when the tax rates in the agreement are heavier than the domestic tax rates. For example, if a signatory country is entitled to impose a type of tax that Vietnam does not recognize, then Viet Nam's tax laws will apply.

DTAAs typically only apply to income taxes. However, in Viet Nam, DTAAs impact both corporate and personal income taxes.

Types of Taxable Income

Corporate income

For foreign enterprises (FE), corporate income is what is earned from carrying out production and business activities in Viet Nam.

The tax obligations of FEs are determined as follows:

• Legal entities (e.g., wholly foreign-owned enterprises or joint ventures) – such entities are taxed on incomes arising from business activities according to the corporate income tax law. The flat tax rate in Viet Nam for non-residents is currently 20 percent.

• Non-legal entities – those who operate without forming legal entities will be taxed if they own a permanent establishment (PE) in Vietnam to which income can be directly or indirectly attributed.

A PE is defined as a fixed place of business where operations are wholly or partially carried out. A FE is said to have a PE in Viet Nam if it maintains a building, office or equipment (either wholly or in part) that must be set up at a specified place and/or maintained permanently.

Investors with PEs who are licensed to conduct business in Viet Nam are subject to the laws of the prevailing corporate income taxes in Viet Nam. Those who conduct business under contract with Vietnamese organizations or individuals will be taxed according to the laws of the foreign contractor's home country.

Income derived from technical services

Vietnam may tax income derived from dividends, interest and royalties from technical services. Dividends are usually taxed at no more than 15 percent, while interest, royalties and technical services are taxed at 10 percent.

Personal income

Residents of countries that have a DTAA with Viet Nam that earn income in Viet Nam are required to pay income taxes subject to Viet Nam's personal income tax laws. However, these residents may be exempted from taxation if they satisfy all of the following conditions:

• The resident is in Viet Nam for fewer than 183 days over a 12-month period of any taxable year;
• The resident's employer is not a resident of Viet Nam, regardless of whether the wages are paid directly by the employer or through the employer's representative; and
• The wages are not paid by the PE of the employer in Viet Nam.

Income raised from the provision of independent services is also subject to corporate income taxes, and foreign individuals that earn income this way must pay the relevant income taxes. If individuals or companies provide independent services without a business license, they are also required to pay personal income taxes.

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This article was first published on Vietnam Briefing.

Dezan Shira & Associates is a specialist foreign direct investment practice, providing corporate establishment, business advisory, tax advisory and compliance, accounting, payroll, due diligence and financial review services to multinationals investing in emerging Asia.

For further details or to contact the firm, please visit www.dezshira.com.