VIETNAM CHAMBER OF COMMERCE AND INDUSTRY
Liên Đoàn Thương Mại Và Công Nghiệp Việt Nam
Tue, Oct 08, 2024, 08:02:00
According to the provisions of Clause 4, Article 199 of the Enterprise Law 2020 on company division: “After applying for registration, the divided company and the new company/companies shall be jointly responsible for unpaid debts, employment contracts and other obligations of the divided company or unless otherwise agreed upon by the divided company, the new company/companies, the divided company’s creditors, clients and employees. The new company/companies obviously inherit all rights, obligations and lawful interests that are transferred under the partial division resolution/decision”.
Binh Phuoc Customs officers inspect import and export goods. Photo: N.H
Clause 1, Article 41 of the Investment Law 2020 stipulates the adjustment of investment projects: “In the course of project implementation, investors may adjust the objective, transfer part or the whole of investment projects, merge projects or divide or split a project into more than one project, use land use rights or land-attached assets of investment projects to contribute capital to establish enterprises, enter into business cooperation or carry out other activities in accordance with law”.
Article 19 and Point a, Clause 7, Article 20 of Decree 31/2021/ND-CP stipulate the beneficiaries and principles of investment incentives: “Economic organizations formed on the basis of economic organization reorganization or investors receiving investment project transfers shall inherit investment incentives applied to the investment project (if any) before reorganization or transfer if they still meet the conditions for investment incentives”.
Also in Clause 1, Article 51 of Decree 31/2021/ND-CP on adjusting investment projects in case of division, separation, consolidation, merger, and conversion of economic organization types, it is stipulated that: “Economic organizations formed on the basis of division, separation, consolidation, merger, and conversion of economic organization types (hereinafter referred to as reorganization) shall inherit and continue to exercise the rights and obligations of the reorganized economic organization with respect to investment projects that the reorganized economic organization had implemented before the reorganization in accordance with the provisions of the law on enterprises, land, and relevant laws”.
In addition, Article 52 of Decree 31/2021/ND-CP also stipulates the adjustment of investment projects in cases where rights on using land and assets attached to land belonging to investment projects are used to contribute capital to enterprises.
Point a, Clause 11, Article 16 of the Law on Import and Export Taxes specifically stipulates tax exemption for imported goods to create fixed assets of subjects entitled to investment incentives. At the same time, Article 31a of Decree 134/2016/ND-CP is amended and supplemented in Clause 15, Article 1 of Decree 18/2021/ND-CP, regulating the notification and inspection of the use of tax-exempt goods.
Pursuant to Decisions No. 2634/QD-UBND dated November 24, 2015; No. 2112/QD-UBND dated August 10, 2016 and No. 873/QD-UBND dated April 26, 2019 of the People's Committee of Binh Phuoc province on investment policy and adjustment of investment policy, the General Department of Customs assigned Binh Phuoc Customs Department to review and inspect all relevant records, books, receipts and documents for processing.
In case it is determined that Biwase Binh Phuoc Water Company Limited was formed after separation from Binh Duong Water and Environment Corporation and has been permitted by the People's Committee of Binh Phuoc province to continue implementing the project "Investment in construction of water supply system of Becamex - Binh Phuoc Industrial and Urban Complex and neighbouring areas, supplementing the area serving the administrative center of Hon Quan district”, at the same time the project still meets the conditions for enjoying investment incentives, other procedures are carried out in accordance with relevant legal regulations, the unit will implement the instructions in Official Dispatch 3747/TCHQ-TXNK dated August 6, 2024.
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To ensure strict management in accordance with regulations on subjects eligible for tax incentives, Official Letter 3747/TCHQ-TXNK specifically states that the General Department of Customs requires provincial and municipal customs departments to strengthen management of investment projects. In particular, investors who are adjusted according to regulations will have tax policies implemented accordingly (if they still meet the conditions on subjects). In addition, regarding the procedures and conditions for continued enjoyment of tax policy incentives when the project or project owner changes, according to the General Department of Customs, Decree 134/2016/ND-CP amended and supplemented by Decree 18/2021/ND-CP stipulates procedures for a number of cases such as: Transfer of investment incentive projects; transfer of imported goods exempted from import tax of investment incentive projects to other investment incentive projects (same project owner); there are no regulations for other cases of change of project owners that have been regulated by the law on enterprises and the law on investment such as: Transfer of assets being imported goods to create fixed assets of investment incentive projects in the form of establishing enterprises, contributing capital to establish enterprises; dividing companies; separating companies; merging companies; consolidating companies; converting types... Regarding the implementation responsibility of the Customs agency, the General Department of Customs requires the Customs Departments of provinces and cities, when receiving information about investment incentive projects in the management area with changes in project owners (from reports of the original project owners, information from state management agencies, and other collected information sources), the Customs agency assigned to manage shall send a document inviting the enterprise that is the original project owner and the enterprise known to be the new project owner to work together, and record it in writing. In which, clearly state the documents and records on the change of project owner (attach copies of these documents and records for filing); clearly state the Tax-free List and the list of customs declarations imported according to the Tax-free List; clearly state the content of the transfer of rights and obligations for the Tax-free List (part or all of the project; time of transfer, other agreements on rights and obligations arising in relation to the project); signature of the legal representative or authorized person as prescribed (of the original project owner and the new project owner). At the same time, the new project owner is required to fully perform the obligations prescribed by tax laws. Including: The project owner is responsible for using the project's tax-exempt goods for the right purpose and reporting the situation of using tax-exempt goods in the fiscal year to the Customs authority that receives the Tax Exemption List as prescribed in Clause 7, Article 30, Clause 1, Article 31a of Decree 134/2016/ND-CP amended and supplemented in Clause 13, Clause 15, Article 1 of Decree 18/2021/ND-CP. In case the enterprise does not come to work according to the request letter or there are signs of violations or specific signs of risks, promptly conduct an inspection of the use of duty-free goods according to the provisions of Clause 4, Article 31a of Decree 134/2016/ND-CP, amended and supplemented in Clause 15, Article 1 of Decree 18/2021/ND-CP, collect and verify information at the project site, record in writing, and apply other necessary inspection, supervision and control measures. |
