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Vietnam - Taxation of cross-border mergers and acquisitions

Vietnam - Taxation of cross-border M&A

The Vietnam tax environment for mergers and acquisitions (M&A) continues to evolve.

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Introduction

The Vietnam tax environment for mergers and acquisitions (M&A) continues to evolve. Although gaps remain, new rules may allow for new planning opportunities. The continued development of the rules shows a trend towards converging with international norms. This report provides basic information to potential investors considering deals involving both asset and share purchases.

This report proceeds by addressing three fundamental decisions that face a prospective buyer:

  • What should be acquired: the target’s assets or its shares?
  • What should be the acquisition vehicle?
  • What issues should be considered in financing the acquisition vehicle?

Although improving, the tax laws and regulations in Vietnam are changing rapidly and the interpretations often aggressively favor of the Vietnamese tax authorities. Investors into Vietnam should not expect the same degree of legal certainty that is available in more developed jurisdictions.

In addition, investment and enterprise regulations and licensing procedures also play a significant role in the acquisition process in Vietnam and should be reviewed carefully.

Recent developments

Market overview

2016 and 2017 saw exciting growth of M&A activity in Vietnam with the emergence of billion-dollar deals that have had significant influence on numerous industries, including the real estate, chemical, retail and consumer goods, technology and education sectors.

M&A activity in Vietnam has been increasing due to strong foreign interest from the global M&A market, recovery of the real estate market and, in particular, the plan of state ownership divestment and the relaxation of regulations to allow foreign ownership. As a result, Vietnam is once again perceived as a promising growth market.

Legislation and policy changes in 2016 and 2017

  • From 1 January 2016, the standard corporate income tax (CIT) rate is reduced to 20 percent (from 22 percent).
  • Some recent changes in the Vietnamese tax system have focused on easing the administrative burden for corporations (e.g. quarterly corporate tax filing and the
  • submission of excessive appendices with value added tax (VAT) returns have been abolished).
  • Vietnam’s transfer pricing environment continues to develop with an increase in tax audit activity in this sector.
  • On 7 July 2015, Vietnam and the United States (US) signed their first income tax treaty and simultaneously adopted a protocol for the avoidance of double taxation and the prevention of fiscal evasion of taxes on income. While the treaty and protocol are still to be ratified by each jurisdiction, it will likely offer incentives for direct investment from the US.

Asset purchase or share purchase

An acquisition of a company in Vietnam can take the form of a purchase of assets or the purchase of shares (technically, ownership interests in the case of a limited liability company – LLC). The choice of method of acquisition may be affected by factors such as the potential corporate tax rate on gains, VAT, transfer taxes and other tax attributes.

Many acquisitions in Vietnam occur in the form of a share purchase, which is driven by non-tax and licensing issues. However, asset deals may be more desirable in some cases due to potential liability issues and the ability to rebase the asset value for tax depreciation purposes.
Foreign investors must establish (or already have) a Vietnamese entity to hold assets in Vietnam for investment purposes.

The establishment of a Vietnamese entity or amendment to the business license for an asset purchase can be a lengthy process and may entail multiple approvals. In most cases, the buyer is likely to purchase the shares in the target Vietnamese entity.

Some of the tax considerations relevant to the acquisition of shares and assets are discussed later in this chapter.

The advantages and disadvantages of each method are summarized at the end of this chapter.

Purchase of assets

The main benefit of the purchase of assets is the avoidance of secondary tax liabilities from a share acquisition with less due diligence required. This option is more advantageous for targets with significant potential tax and non-tax exposure that could arise through:

  • a long history
  • various changes in investors
  • changes in the scope of business activities
  • a high-profile target and/or owner with heightened reputational risk
  • the target keeping two sets of accounting books.

The acquisition of assets must be substantiated by legitimate tax invoices and other supporting documents (e.g. sales invoices, sales contracts).

Purchase price

In Vietnam, the valuation of assets for transaction purposes is a matter of mutual agreement between the seller and the buyer. However, using commercially justifiable valuations is important. The authorities may look to market value (based on their data sources) and have the power to deem values and thereby taxes payable on gains from transactions if they are not satisfied that the transaction reflects commercial reality or the arm’s length principle. A simple explanation may not be enough to justify the chosen purchase price. Instead, the local tax authorities (e.g. valuation reports) are more likely to accept documents issued by independent third parties.

The sale of assets is subject to VAT in most cases (at a default rate of 10 percent). The seller of the asset is subject to CIT at 20 percent (22 percent before 1 January 2016) on the gain from the asset transfer.

Goodwill

Acquired goodwill may be amortized over a maximum period of 3 years. In a group context, goodwill is amortized in the entity and any loss arising is not available to offset against profits of other group companies (see ‘Tax losses’ below).

Depreciation

The CIT rules allow the cost of assets to be written off against taxable profits by means of tax depreciation where certain conditions are met. Depreciation of both new and used fixed assets is calculated based on the historical cost and useful life of the fixed assets within the regulated time frame.
Under Vietnamese rules, an asset is considered to be a fixed asset for tax depreciation purposes where all the following conditions are met:

  • There is a high degree of certainty that a future profit will be obtained from utilizing the assets.
  • The useful life of such asset is at least 1 year.
  • The value of such asset is at least 30,000,000 Vietnamese dong (VND) (approximately 1,400 US dollars — USD).

An enterprise should itself determine the useful life of its fixed assets within the regulated timeframe. Regulations specify maximum permissible effective lives for various classes of assets, including intangibles. Depreciation exceeding the rates specified in the regulations is not deductible. Current straight-line tax depreciation rates are as follows:

Assets Rate percent
Buildngs 2 to 16.67
Office equipment 10 to 20
Automobiles 3.33 to 16.66
Machinery and equipment 5 to 33.33
Intangible assets Not more than 5
Goodwill 33.33

Source: KPMG in Vietnam

Tax attributes

Tax losses and incentives cannot be transferred as part of an asset acquisition. These tax attributes remain with the company (vendor) or are extinguished. There are no specific rules for the acquisition of an entire business (and not in the form of share deal) for CIT purposes in Vietnam.

Where share acquisitions of companies are made, tax attributes can be preserved but conditions and limitations apply.

Value added tax

The transfer of most assets in Vietnam is subject to VAT.

Current law imposes VAT on goods and services at three rates: 0 percent, 5 percent, and 10 percent. The standard VAT rate is 10 percent.

There are no specific rules in Vietnam related to the transfer of a going concern and consequent favorable VAT treatment.

The seller is required to issue VAT invoices for the sale of the asset, and VAT must be added to the sales price and indicated in the invoice issued. The VAT becomes input VAT of the buyer provided the assets acquired are used in business activities that are subject to VAT.

Business establishments are not required to declare and pay VAT on the following transactions:

  • capital asset contribution for establishing an enterprise
  • transfer of assets between dependent cost accounting entities
  • transfer of assets on demerger, division, consolidation or conversion of form of the enterprise.

VAT applies separately from other taxes imposing on the transfer (i.e. on top of CIT and other taxes). In some instances, both taxes apply.

Asset registration tax (stamp duty)

Properties are the most notable assets subject to asset registration tax. Unlike many jurisdictions, the amount of asset registration taxes in Vietnam is capped, making it less material in most cases. When assets subject to the asset registration tax are transferred, the new registered asset owner is required to pay the tax.

Specific asset registration tax rates apply to certain kinds of assets listed in the regulations. For properties, the rate is 0.5 percent. However, as noted above, the materiality of this tax is often limited as the amount of such asset registration taxes payable on any asset cannot exceed VND500 million (approximately US$24,000), except for cars with fewer than 10 seats, aircraft and cruisers which have no cap. Asset registration taxes must be declared when incurred and paid by 30 days after the date on which the tax authorities sign the registration tax notice.

Asset registration taxes are not applicable to share transfers.

Purchase of shares

The purchase of a target company’s shares may be preferred in some cases to preserve tax incentives or losses of the target company but is more likely to be driven by licensing matters. In most cases, foreign investors are permitted to hold a maximum stake of 49 percent in a public joint stock company. In most other cases, foreign ownership is not restricted unless specifically provided for under Vietnam’s World Trade Organization (WTO) commitments for certain industries and sectors. Since 2009, this liberalization has created a more open investment environment for investors, especially combined with the gradual removal of restrictions on the capital holding ratio of foreign investors in specific sectors, also in line with WTO commitments.

Capital gain tax

Capital gains from the sale of shares are normally subject to the standard CIT rate of 20 percent as of 1 January 2016 (previously 22 percent). The taxable gain is determined as the difference between the sales proceeds less investment cost and transfer expenses. The Vietnamese assignee is required to withhold the tax due from the payment to the assignor and account for this to the tax authorities. However, in case both assignor and assignee are offshore entities, the local target company takes this responsibility by law.

Gains earned by a foreign investor from selling securities (i.e. bonds, shares of public joint-stock companies, irrespective of whether they are listed or non-listed) are subject to CIT
at a deemed rate of 0.1 percent of the gross sales proceeds (replacing the capital gains tax applicable on net gains).

Tax treaties may provide some protection from the above taxes. Use of an offshore holding company may provide opportunities for tax mitigation on exit. However, anti- avoidance rules may also apply, with broad interpretation from local tax authorities. Further, tax treaty claims are not reviewed or approved by the local tax authorities until a tax audit is undertaken, which can happen years later.

Tax indemnities and warranties

The tax exposures of a target company transfer to the buyer after a share purchase transaction is completed. Therefore, the buyer should pay close attention to the target company’s tax compliance status. For this reason, tax due diligence exercises are important for identifying significant tax issues in M&A transactions.
As the target company’s contingent liabilities transfer to the buyer, the tax indemnities and warranties for contingent tax liabilities should be thoroughly addressed in the transaction agreements.

Tax losses

Tax losses of a company can be carried forward fully and consecutively for up to 5 years, starting from the year in which the losses were incurred. Accordingly, losses incurred by the target company prior to the transaction may continue to be offset against the taxable income of the company after the transaction. There are no specific shareholder continuity tests in Vietnam.

There is currently no group relief for losses in Vietnam.

Comparison of asset and share purchases

Share purchases lead to ownership of part or all of the target company, which can preserve licensing benefits of that target entity but can also lead to the potential inheritance of the past tax liabilities. Another key factor in determining whether to use an asset or share deal in Vietnam is that the purchase of an asset is subject to VAT and the purchase of shares is not.

To be able to purchase Vietnamese assets, the buyer must establish a Vietnamese entity to hold the assets. Sales of assets are taxed at 20 percent of the gain, while share transfers can be taxed at either 20 percent of the gain or at 0.1 percent of the gross sale proceeds, depending on the type of shares being transferred and whether required conditions are met.

Advantages of asset purchases

  • The full purchase price can be depreciated or amortized for tax purposes (including acquired goodwill).
  • No previous liabilities of the company are inherited.

Disadvantages of asset purchases

  • A foreign investor must have an entity in Vietnam to purchase the assets.
  • Possible need to renegotiate supply, employment and technology agreements, etc.
  • Benefits of any tax incentives and tax losses incurred by the target company remain with the seller (but may be lost altogether).

Advantages of share purchases

  • Buyer may benefit from tax losses and tax incentives of the target company.
  • Share purchases are not subject to VAT.

Disadvantages of share purchases

  • Buyer is fully responsible for all past/inherent liabilities, including current tax and debts as well as any liabilities arising in the future as a result of past activities of the company.

Pre-sale dividend

In certain circumstances, the seller may prefer to realize part of the value of their investment as income by means of a pre-sale dividend. The rationale here is that after-tax retained earnings can be freely distributed to the corporate investor (in or out of Vietnam) without suffering further Vietnam withholding tax (WHT). Therefore, the dividend reduces the proceeds of sale and the gain on sale. As the rules in this area are not clear and interpretation by the local tax authorities is inconsistent, each case should be examined on its facts before entering a proposed transaction.

Annual remittance of dividends abroad may be made only where the company has completed the declaration of CIT for the relevant financial year, issued audited financial statements and received clearance from the tax office.

Profit and/or dividend remittance is not allowed where the financial statements of the target company show accumulated losses.

Exchange controls

All buying, selling, lending, and transfer of foreign currency needs to be made through credit institutions and other financial institutions authorized by the State Bank of Vietnam.

Outflow of foreign currency by transfer is authorized for certain transactions, such as payments for imports and services abroad, refund of loans contracted abroad and payment of accrued interests thereon, transfer of profits and dividends, and revenues from the transfer of technology.

Choice of acquisition vehicle

Several potential acquisition vehicles are available to a foreign buyer of a company in Vietnam, and tax factors often influence the choice. In addition to local foreign invested companies, the main types of vehicles for acquiring shares or assets in Vietnam include the following entities.

Local holding company

Foreign investors rarely use this vehicle as it is likely to require a license from the Vietnam authorities, which can be onerous and time-consuming to obtain. In addition, as there are currently no tax consolidation rules in Vietnam, there is no group tax benefit from including such a vehicle in the structure.

Foreign parent company

Foreign buyers normally choose to use a foreign parent company structure, which produces certain tax benefits. Dividends paid to foreign parent companies are not subject to Vietnamese WHT as long as they are paid from after-tax profits of the subsidiary.

Interest payments to a foreign parent company (i.e. shareholder loan) are subject to WHT at 5 percent. Other payments can enjoy lower WHT rates or exemption under tax treaties.

Tax clearances

A company is required to conduct tax finalization with the local tax authorities up to the time of the decision on the consolidation, division, merger, demerger or conversion that occurred prior to the transaction.

Repatriation of profits

After fulfilling all tax and financial obligations, foreign investors can repatriate their after-tax profit from Vietnam with no further WHT for corporate investors and with 5 percent WHT for individual investors.
A foreign parent company is subject to CIT of 20 percent on the gains arising from a sale of shares or WHT of 0.1 percent on the gross sale proceeds (when selling shares of a subsidiary, provided the shares are considered as securities under Vietnam law, i.e. the target is a public or listed company).

Foreign investors may seek a tax exemption on income from the transfer of capital in Vietnam under a tax treaty between Vietnam and the respective foreign country where relevant and subject to conditions.

Non-resident intermediate holding company

An intermediate holding company resident in a favorable treaty territory is a popular structure for deals in Vietnam. However, attention should be paid to Vietnam’s new anti- treaty shopping provisions, which were introduced in a circular that applies from 2014 and focuses on substance of the holding company and the transactions. Typical intermediate holding company jurisdictions include Singapore, Hong Kong (SAR), some European countries and low-tax jurisdictions.

Choice of acquisition funding

Debt

Investors may choose to fund their acquisition by debt arranged locally or from offshore.
However, for Vietnamese legal entities using debt to fund the acquisition, interest expenses incurred may not be deductible for Vietnam CIT purposes.

Under the domestic tax regulations, debt financing arranged locally does not attract WHT but CIT on income. However, for cross-border financing, an interest WHT rate of 5 percent applies. Of Vietnam’s approximately 75 tax treaties currently in force, only the treaty with France provides tax exemption for interest on commercial loans. The other treaties generally specify a maximum interest WHT rate that is equal to or higher than the Vietnamese 5 percent domestic rate.

Deductibility of interest

Interest expenses are typically deductible against taxable income in the Vietnamese entities. There are no thin capitalization rules as such. However, an equity-to-debt ratio is specified in the investment certificate by virtue of specifying the charter capital (equity) and investment capital (debt capacity = total investment capital less charter capital). In the past, this ratio was restricted to 30:70. There is now no such restriction, but, in practice, it is difficult to convince the tax authorities to license a highly leveraged venture.

The tax-deductibility of interest is limited to 1.5 times the basic interest rate announced by the State Bank of Vietnam as of the date of the loan.

Under a newly issued decree on transfer pricing, tax deductions for loans from related parties interest are to be capped at 20 percent of EBITDA. The cap includes interest paid to third parties where related-party debt is present. If there is no related-party debt, there is no cap. Additionally, medium- and long-term foreign loans must be registered with the State Bank of Vietnam in order for the interest and related expenses to be deductible.

Interest payments on loans used as contributions to charter capital (equity) and interest payments made before a legal entity has commenced production and business are normally not deductible for CIT purposes.

Withholding tax on debt and methods to reduce or eliminate it

The interest payment on debt from a non-resident party to a Vietnamese party is subject to WHT at 5 percent, unless reduced under a tax treaty (likely only under France-Vietnam tax treaty).
Treaty relief is not automatically granted to beneficiaries, and no prior approval from Vietnamese tax authorities is granted. Professional advice should be sought to comply with requirements on tax treaty claims under both domestic laws and treaty provisions.

Hybrids

Hybrids are not used in Vietnam.

Deferred settlement

An acquisition often involves an element of deferred consideration, the amount of which can only be determined at a later date on the basis of the business’s post-acquisition performance. Depending on the structure, the seller may only be exposed to Vietnamese taxation once income/gain from the future amount is realized.

Other considerations

There are a number of relevant rules that are subject to frequent changes, especially the rules related to standard VAT rate, capital gains tax rate and thin capitalization.

Before proceeding with acquisitions, investors should seek professional advice on a range of related issues, such as foreign exchange control, repatriation of funds and limitations on foreign ownership.

Concerns of the seller

Corporate seller of shares/interest

Under CIT law, Vietnamese corporate sellers are ordinarily subject to 20 percent tax on any gain. Foreign corporate investors are subject to 20 percent tax on any gain (when selling the capital contribution in the subsidiary) or WHT of 0.1 percent on the gross sales proceeds (when selling shares of a subsidiary, provided the shares are considered as securities under Vietnamese law, i.e. the target is either a public or listed company).

Individual seller of shares/interest

Pursuant to the Law on Personal Income Tax (PIT), an individual seller is subject to tax on capital investment and capital assignment at the following rates:

Taxable Income Tax rate
Resident1 Non-resident2
Capital investment income (including dividends and interest)3 5 percent 5 percent
Capital assignment income (direct interest, i.e. holding an interest in a limited liability company) 20 percent on gains 0.1 percent on gross sale proceeds
Capital assignment income (securities where taxable gain can be determined) 20 percent on gains 0.1 percent on gross sale proceeds
Capital assignment income (securities where taxable gain can be determined) 0.1 percent on gross sale proceeds 0.1 percent on gross sale proceeds
Real estate transfer income4 2 percent on gross sale proceeds 2 percent on gross sale proceeds

Notes:

1This should include all offshore sourced income/gains/transactions.
2Only on Vietnam-sourced income/gains/transactions.
3Interest on deposit with credit institutions is classified as tax-exempt income.
4Exemption applies on certain transaction such as sole dwelling property and family members’ transaction, among others.

Source: KPMG in Vietnam

Company law and accounting

Company law

Vietnamese legal entities are mainly governed by two laws: the law on investment (LOI) and law on enterprise (LOE), as well as related regulations.

Vietnam does not have a specific company law as do many more developed jurisdictions. The law on enterprises (which includes partnerships and other business enterprises) does not have detailed provisions related to M&A activity.

Additionally, in Vietnam, the licensing of various activities by a range of government authorities can be time-consuming and administratively burdensome.

Vietnamese legal entities that are most relevant for M&A purposes take one of the following forms:

  • multi-member LLCs
  • single-member LLCs
  • shareholding companies.
  •  

Under the LOE, enterprises may be divided, separated, consolidated, merged, converted or dissolved. Each entity is generally subject to corporate income tax of 20 percent on the net profits of the business (subject to a range of incentives).

Generally, new foreign businesses in Vietnam, except for banks and insurance businesses, are not required to set up and contribute after-tax profits to any compulsory reserves. Therefore, all after-tax profits can by fully remitted overseas. While a foreign investor is entitled to contribute capital or purchase shares in
Vietnamese companies, certain sectors and industries have government-imposed limits on the equity ownership allowed to foreign investors. The general principle is that both foreign and domestic business
entities are entitled to make capital contributions, purchase shares or acquire interests in all companies in Vietnam, except for:

  • public companies, including listed companies (49 percent cap remains in place)
  • businesses operating in certain specialized industries
  • equitized state-owned enterprises (SOE)
  • specific limitations set out in Vietnam’s commitments to the WTO for a number of industries

Accounting standards

In Vietnam, Vietnamese accounting standard No. 11 predominantly determines the accounting treatment of business combinations. Generally, this standard should be applied to business combinations using the purchase method.

A business combination may be structured in a variety of ways. Under the accounting rules, this may involve the purchase by an entity of the equity of another entity, the purchase of all the net assets of another entity, the assumption of the liabilities of another entity, or the purchase of some of the net assets of another entity that together form one or more business. The transaction may be effected by the issue of equity instruments or the transfer of cash, cash equivalents or other assets, or a combination thereof.

An acquirer must be identified for all business combinations. The acquirer is the combining entity that obtains control of the other combining entities or businesses.

A business combination may result in a parent-subsidiary relationship, in which the acquirer is the parent and the acquiree is a subsidiary of the acquirer. In such circumstances, the acquirer applies this standard in its consolidated financial statements. The parent includes its interest in the acquiree as an investment in a subsidiary in any separate financial statements issued by the parent.

Group relief/consolidation

There are no tax group relief or consolidation rules in Vietnam.

Transfer pricing

Vietnam transfer pricing rules are currently being aggressively enforced, especially for foreign entities, some of which the media perceive as abusing transfer pricing practices to evade taxes. From 1 May 2017, Vietnam’s transfer pricing regulations are governed by Decree 20/2017/ND-CP, which extends the interpretation of existing provisions and introduces additional concepts and principles:

  • Revised ‘related-party relationship’ definition:The new decree redefines ‘related-party relationship’ to exclude cases of input and output control (i.e. an enterprise sells more than 50 percent of its total sales or provides more than 50 percent of the raw materials or input products). In addition, the thresholds for some types of relationship are revised. For example, the threshold for the direct or indirect contributed capital ratio is increased to 25 percent (from 20 percent); the threshold on debt-to-equity ratio where an enterprise guarantees or loans funds to the other enterprise also increases to 25 percent (from 20 percent).
  • Related-party transactions: Additional and new guidance is provided on the tax deduction of related- party transactions that are not in line with independenttransactions, intergroup services fees and inter-company loan interest expenses.
  • Use of comparables: The decree specifies the priority order for selecting comparables for benchmarking transfer prices as follows:
    • internal comparables of the taxpayers
    • comparables located in the same country or territory of the taxpayers
    • comparables located in the region that have similar industry conditions and levels of economic development.

The decree also clarifies the use of secret comparables versus commercial databases and public information/data and sets out clearer bases for the tax authorities to make transfer pricing assessment.

Dual residency

Dual residency is not applicable in Vietnam.

Foreign investments of a Vietnamese company

In practice, outbound investment is not common as Vietnam is primarily an inbound investment destination. Some investments have been made into New Zealand, Laos, Cambodia, Myanmar primarily in dairy products, telecommunication and rubber plantations. The Vietnamese government sets specific rules for such activities, including a requirement for Vietnamese companies to obtain specific approval/permit from the licensing authorities to make investments overseas.

The Vietnamese company is required to repatriate to Vietnam all profits earned from investment projects within 6 months from the date of completion of the project, unless excepted by laws. Other detailed rules may also apply.

20 percent on gain

KPMG in Vietnam

Ninh Van Hien
KPMG Limited
115 Nguyen Hue Street 10th Level,
Sunwah Tower, District 1
Ho Chi Minh City, 848 Vietnam

T: +84 8 382 19 266 – Ext 8202
E: ninhvanhien@kpmg.com.vn

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