Legal answers

New rules on the conditions for transferring land use rights in the form of subdivision and sale of land

Answered

On December 18, 2020, the Government issued 148/2020/ND-CP amending a number of Decrees guiding the Land Law (“Decree 148“). Accordingly, Decree 148 has new regulations on the conditions for transferring land use rights in the form of division of plots and sale of land plots. As follows:

In Clause 17, Article 1 of Decree 148 amending and supplementing Article 41 of Decree No. 43/2014/ND-CP on conditions for transferring land use rights in investment projects on construction and trading of “houses for sale” or “for sale and for lease” as follows:

First, conditions for investors:

Project investors must complete the construction of infrastructure (including service works, technical infrastructure works, social infrastructure works according to the approved detailed construction plan 1/500); Ensure the connection with the common infrastructure system of the area before transferring land use rights to the people to build houses by themselves; Ensure the provision of essential services including electricity supply, water supply, water drainage, waste collection;
Project investors must fulfill financial obligations related to the project’s land (including land use fees, land rental; land-related taxes, fees (if any));

2. Second, the conditions for the project: Are projects not located in the following areas:

Areas of wards of (special grade cities) and (grade I cities directly under the Central Government);
Areas with high demand for (landscape architecture), (central area) and (surrounding buildings are architectural highlights in the urban area);
Frontage of (roads from regional level up) and (roads that are major landscape in urban areas).

3. Other conditions: Based on the provisions of the law on (urban planning), (construction), (urban development), (real estate business) and (housing) to determine.

Above is the change of the conditions for transferring land use rights in the form of subdivision and sale of land in Decree 148. Decree 148 takes effect from February 8, 2021.

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Time of submission of certificate of origin of imported goods

Answered

On January 25, 2021, the Minister of Finance issued Circular No. 07/2021/TT-BTC prescribing the time for submitting certificates of origin of imported goods in the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (EVFTA). Specifically:

The customs declarer shall submit the certificate of origin of imported goods at the time of customs procedures.

In case there is no certificate of origin of imported goods at the time of carrying out customs procedures to apply the special preferential import tax rate as prescribed in the EVFTA Agreement, the customs declarer must declare late payment of the certificate of origin on the import customs declaration and be supplemented with additional declaration, submit the certificate of origin within 02 years from the date of registration of the import customs declaration and within the validity period of the certificate of origin of goods.

In case the customs declarant submits the certificate of origin after the above validity period (i.e. within 02 years from the date of registration of the import customs declaration) for force majeure reasons or other valid reasons outside the control of the importer or other cases of late presentation , The Ministry of Finance shall consider and decide on the application of special preferential import tax rates as prescribed in the EVFTA agreement for specific cases. In case of other late presentation, the goods must be imported within the validity period of the certificate of origin of goods.

This Circular takes effect on March 11, 2021.

Cases of transfer of securities ownership are not required to be deposited

Answered

On December 31, 2020, the Ministry of Finance issued Circular No.119/2020/TT-BTC regulating the registration, depository, clearing and settlement of securities transactions. The Circular takes effect from 15th February, 2021.

In which, there are provisions for a number of cases where the transferor of securities ownership is not required to conduct the securities depository before the transfer of ownership, specifically as follows:

a) The securities ownership transferor is missing, dead, or has been residing overseas and cannot be contacted;
b) The issuing organization, the public company repurchases employees’ shares according to the company’s regulations on issuing shares to employees; issuers, public companies buy back shares of officials and employees who are entitled to buy at preferential treatment in accordance with the law on equitization;
c) Transfer of ownership under a court judgment or ruling, an arbitral award or a decision of a judgment enforcement agency;
d) Transfer of ownership due to reorganization, dissolution of an enterprise, dissolution of a business household in which the transferor no longer exists due to completion of reorganization, enterprise dissolution, or household dissolution business.

New requirements for projects on building material production

Answered

On February 9, 2021, the Government issued Decree No. 09/2021/ND-CP on Management of building materials. In this Decree, the contents of management of construction investment projects on production of building materials are recorded, specifically as follows:

Firstly, the implementation of construction investment projects for construction of building materials production is carried out in accordance with the law on investment, the law on construction and relevant laws.

Secondly, for construction investment projects of works producing building materials subject to investment policy approval in accordance with the law on investment, during the appraisal process to approve the investment policy. The Ministry of Planning and Investment or the investment registration agency shall consult the State management agency on construction materials before submitting it to a competent authority for approval of the investment policy, specifically as follows:

a) To consult the Ministry of Construction on projects for which investment policy is approved by the Prime Minister; group A project; investment projects on construction of works to produce new building materials or using new technologies, investment projects with works of special grade or grade I that have a great impact on safety, community interests or investment in construction built in administrative areas of 02 provinces or more;
b) To consult the local Department of Construction where the project is executed on the remaining investment projects other than those specified at Point a of this Clause.

Thirdly, the content to be consulted includes:

a) Assessment of the project’s suitability of production materials against the planning for minerals as building materials;
b) Preliminary assessment of the socio-economic efficiency of the project through criteria on consumption of raw materials, energy, and environmental impact; investment scale; project duration and schedule.

This Decree takes effect from the date of its issue.

Cancellation of the status of a public company in case of failure to meet the condition of a public company due to an organization, dissolution or bankruptcy

Answered

On December 31, 2020, the Ministry of Finance issued Circular No. 118/2020/TT-BTC guides some contents on offering, issuing securities, public offering, repurchasing shares, registering public companies and canceling the status of a public company. This Circular takes effect from February 15, 2021.

One of the highlights of this document is related to the procedures for disqualification of a public company in case of failure to meet the condition of public companies which are reorganized, dissolved, or bankrupt, specifically as follows:

For public companies that do not meet the conditions of public company after division, consolidation, merger, dissolution or bankruptcy of an enterprise must report and disclose information on the corporate reorganization, dissolution or bankruptcy on information disclosure on the stock market. After updating the legal status or when there is a decision of the Court declaring bankruptcy, the State Securities Commission will review and notify on the information disclosure media of the State Securities Commission about disqualification of a public company.
For public companies that do not meet the conditions that public companies have their business registration certificates revoked, they must report and disclose information on the stock market. Within 180 days from the date of receipt of the report, the State Securities Commission will consider canceling the status of a public company. After the time limit for consideration expires, the State Securities Commission shall notify on the State Securities Commission’s means of disclosing information about the cancellation of the status of a public company.
For public companies that do not meet the conditions as a public company after the split or merger, in this case the order and procedures for disqualification of the public company will be performed in accordance with the Law on Securities. After 15 days from the date of receipt of a complete application for disqualification, the State Securities Commission will notify on the media of the State Securities Commission on the cancellation of the status of a public company.
For public companies that do not meet the conditions for being public companies due to the transformation of their business form from joint stock companies into limited liability companies, they must make reports and disclose information on the stock market. After receiving the report or announcement, the State Securities Commission will review and notify the cancellation of the status of a public company on the information disclosure media of the State Securities Commission.

Imported or exported goods are not required to declare tax each time it arises

Answered

On January 22, 2021, the Minister of Finance issued Circular No. 06/2021/TT-BTC guiding the implementation of a number of articles of the Law on Tax Administration dated June 13, 2019 on tax administration of goods import, goods export. Accordingly, this Circular stipulates cases that import and export goods are not subject to tax declaration every time they arise, including:

Exported, importer electricity;
Goods sold in international area at international airports (except duty-free goods);
Goods provided for passengers on international flights;
Aviation fuel for outbound aircraft;
Indirect exports that are delivered many times in a day or a month, include: (1) Processed products: hired/borrowed machinery and equipment; excess materials; waste, rejects under processing contracts; (2) Goods traded between an inland enterprise and an export processing enterprises or an enterprise in a free trade zone; (3) Goods traded between a Vietnamese company and a foreign entity without a representative in Vietnam and are requested to be delivered to another enterprise in Vietnam by the foreign entity.

This Circular takes effect on March 8, 2021.

Preferential tax exemption and reduction of corporate income tax for science and technology enterprises

Answered

On January 11, 2021, the Minister of Finance issued Circular No. 03/2021/TT-BTC guiding tax exemption and reduction of corporate income tax for science and technology enterprises.

The Circular regulates for conditions for enjoying tax exemption and reduction of corporate income tax for science and technology enterprises as follows:

The certificate of science and technology enterprise is issued by a competent state management agency.
The annual revenue from the production and trading of products formed from scientific and technological results reaches at least 30% of the total annual revenue of the enterprise.
Revenue generated from services applying science and technology results in information technology is revenue from new services, excluding services already on the market.
Separately accounted incomes from production and business activities of products formed from scientific and technological results in the period to enjoy corporate income tax incentives.
Must apply the accounting, invoices and documents in accordance with the law and pay taxes according to the declaration.

Accordingly, science and technology enterprises that meet the above conditions will be exempt from tax for 04 years and reduce the amount of tax payable by 50% over the next 09 years. The period of tax exemption and reduction is calculated continuously from the date of issuance of the Certificate of science and technology enterprises. In case there is no taxable income for the first three years from the first year of issuance of the Certificate of science and technology enterprises, the first year of tax exemption and reduction shall be calculated from the fourth year.

During the time of enjoying tax exemption or reduction of corporate income tax, if a science and technology enterprise fails to meet the condition No. 3 above, that year is not entitled to the incentive and it will be deducted from the time to enjoy preferential corporate income tax.

This Circular takes effect on March 1, 2021.

Legal News No. 02/2021

Answered

The level of support from the Vietnam General Confederation of Labor for union members and workers directly affected by the Covid-19 epidemic and natural disasters in 2020 during the Tan Suu Lunar New Year in 2021

Answered

On January 12, 2021, the Vietnam General Confederation of Labor issued Decision 1921/QD-TLD (“Decision 1921“). Decision 1921 was issued with the hope of providing a financial support to the union members and workers directly affected by the Covid-19 epidemic and natural disasters in 2020 during the Tan Suu Lunar New Year in 2021.

The following will be the specific provisions of Decision 1921 on the level of support for union members, workers directly affected by the Covid-19 epidemic and natural disasters in 2020 that can be received during the Tan Suu Lunar New Year in 2021.

(1) Cash support: Support level of VND 1,000,000/person (one million VND even).

(2) In case of union members and employees in extremely difficult circumstances, seriously affected by Covid-19 epidemics or natural disasters, the maximum level of support must not exceed VND 2,000,000/person (two million VND even).

Note:

The special consideration cases awarded under (2) not more than 20% of the total number of members, employees supported.
A person receives assistance from only one level of the union.

Besides, Decision 1921 also emphasized: Standing Committee of Confederation of Labor of provinces and cities; Central sector unions and equivalent; Trade Union of Corporations under the Vietnam General Confederation of Labor must ensure that all members and employees receive support before February 5, 2021.

The following will be the specific provisions of Decision 1921 regarding the level of support for union members, workers directly affected by the Covid-19 epidemic and natural disasters in 2020 that can be received during the Tan Suu Lunar New Year in 2021. Decision 1921 takes effect on January 12, 2021.

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Who will receive support from the Vietnam Labor Confederation during the Lunar New Year in 2021

Answered

The following will be the specific provisions of Decision 1921 regarding the recipients and the specific criteria for financial support from the Vietnam Confederation of Labor.

Who will receive:

Union members, workers working in enterprises, agencies and units were severely affected by the Covid-19 epidemic and natural disasters in 2020.

2. The specific criteria:

As a union member, employee having worked at an enterprise, agency or unit from 01 year or more, as of December 31, 2020, the criteria are oriented as follows:

(1) You or have a spouse, child, parent (living with and must directly bring up) who is seriously ill; being a person with a disability or having a labor accident or an occupational disease and being entitled to a monthly allowance.

(2) Working in enterprises that are facing difficulties due to the Covid-19 epidemic must stop working, have no job, take a rotating break or reschedule, have unstable income at the average level in 2020 not more than 03 million VND/month.

(3) Working in educational institutions has to take 1.5 months or more off work, greatly affecting their life and income due to the impact of Covid-19 epidemic and natural disasters in 2020.

(4) Having difficult circumstances, working in agencies, units and areas heavily damaged by natural disasters in 2020.

(5) There are difficult circumstances who are pregnant, nursing a child under 24 months of age, and have a low monthly average monthly income below the regional minimum wage.

On the basis of the above criteria, on the basis of the number of union members, workers, employees and employees; support from agencies, branches and local authorities; the accumulated financial resources of the unit, the Confederation of Labor of provinces and cities, the Trade Union of the central sector and the equivalent, the Trade Union of the Corporation under the Vietnam General Confederation of Labor supplement and concretize the under the motto of giving priority to those who are the most difficult, directly affected by the Covid – 19 epidemic and natural disasters in 2020.

Union members and employees have been supported according to Decision No. 643/QD-TLĐ dated May 22, 2020 of the Presidium of the Vietnam General Confederation of Labor on support for members and affected employees by the Covid -19 epidemic, the support will not be received according to the Decision 1921. In the case of support under the Decision No. 643/QD-TLĐ dated 22 May 2020 of the Presidium of the Vietnam General Confederation of Labor but union members, workers still face special difficulties, the trade union levels scrutinize and continue to provide support according to the level specified in Decision 1921.

The above are the provisions in Decision 1921 on the recipients and specific criteria for the financial support from the Vietnam Confederation of Labor. Decision 1921 takes effect on January 12, 2021.

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