We offer a full range of real estate services in areas including financing, acquisitions and disposals, tax efficiency, land use, environmental law, planning and development, construction and leasing. Our clients benefit from our significant experience in orchestrating high value, long-term projects that involve complex structuring, facilitating negotiations, ensuring tax efficiency, navigating legal and regulatory issues and, when necessary, litigating on their behalf.
Apolat Legal Estate Practice has been involved in numerous real estate finance, private equity, and development transactions, advising on:
- Joint ventures
- Mergers and acquisitions of real estate based businesses
- Project developments
- Land use
Our real estate practitioners have a combination of technical property expertise, local market knowledge, industry insight and global experience.
1| Regulations and current status on declaration of transaction value of real estate transfer
According to the tax law, personal income tax (PIT) on real estate transfer income is determined as follows:
Payable amount of PIT = Purchase Price x 2% Tax Rate
Regarding registration fee, Clause 1, Article 7 Decree 140/2016/ND-CP prescribes the rate of registration fee for houses and land is 0.5%. Circular 301/2016/TT-BTC stipulates that the payable amount of registration fee is caculated as follows:(Article 12 of Circular No. 111/2013 / TT-BTC, amended and supplemented by Circular No. 92/2015 / TT-BTC).
Payable amount of Registration fee = The calculating value of property x ratio of registration free (%)
In which, the calculating value of land is the price in The Land Price list issued by the provincial People’s Committee under the Land Law at the time of registration. The calculating value of house is the price issued by the provincial People’s Committee under the Construction Law at the time of registration. (Clause 1, Article 6 of Decree No. 140/2016 / ND-CP, amended by Decree 20/2019 / ND-CP).
In Official Dispatch No. 5235 / TCT-DNNCN dated December 16, 2019 sent to the Provincial Tax Department, the General Department of Taxation addresses the facts that the Transfer Prices of real estate declared by the Tax Payer for submitting PIT and registration fee are not close to the market price, namely:
- Taxpayers declare the Transfer Price much lower than the land price issued by the provincial People’s Committee;
- There is a mass difference in the Transfer Price of the same real estate in different transactions in a short time;
- The taxation of real estate formed in the future is much higher than the taxation of built-up real estate, which is granted a land use right certificate…
2| The viewpoint of tax authorities while handling real estate transfer transactions declared at a low value
According to the above-mentioned facts, the General Tax Department has requested the provincial Tax Departments to strictly implement the following measures:
- Actively coordinate with relevant state management agencies to advise and report to the provincial-level People’s Committee develop a Land Price List for the term 2020-2024 close to the land price on the market. For land located in urban and residential projects, after the infrastructure has been built, the Department of Taxation must actively report and propose the provincial People’s Committee to adjust the Land Price List.
- Report to the provincial People’s Committee to request Notary Offices in the area to strengthen coordination, exchange information with the tax authorities to jointly manage the taxable price of the transfer of real estate to be suitable with the actual price transactions.
- Strengthen monitoring, supervision and direction of Sub-departments of Taxation to strengthen the management of personal income tax for real estate.
From the requests to be more stringent in the tax management work of the General Department of Taxation above, the Sub-departments of Taxation have taken more drastic measures against the acts of declaring low transfer value and have cheating signs of evading taxes.
For example, in December 2019, the Tax Department of District 10, Ho Chi Minh City sent dispatch to the Police of District 10 to request for investigate and clarify the signs of tax evasion in real estate transfer transactions, when the taxable transfer value of apartment (second time) is declared by the parties lower than the published selling value of the investor and lower than the market value.
Therefore, individuals should pay attention to declare the taxable transfer value of real estates in accordance with the actual transfer value to avoid risks of being applied administrative sanctions from state agencies, or more seriously, criminal prosecution.
3| The criminal liability of corporates for committing the intellectual property crimes
The Penal Code Number 100/2015/QH13 coming into effect from January 01st, 2018, has regulated on the criminal liabilities of commercial legal entities for specific crimes prescribed in Article 76 of the Penal Code.
In particular, crimes infringing intellectual property rights include crimes of Infringement copyright and related rights (Article 225) and crimes of Infringement industrial property rights (Article 226); both are in the scope of crimes applicable for commercial legal entities prescribed in Paragraph 1 Article 76 of the Penal Code.
Though being stated in the statutory law, but since the Penal Code came into effect, the enforcement of criminal sanctions against legal entities in general and for intellectual property infringement, in particular, has not been stringently implemented, partly due to the lack of actual handling experience of state agencies.
However, this January, the People’s Court of Phu Tho Province issued a first instance ruling for trademark infringement of a company. In this case, Viet Phap Aluminum Factory – Viet Phap Aluminum JSC (located in Dich Vong Hau Ward, Cau Giay District, Hanoi City) and its Director were prosecuted for using the term “Nhôm Việt Pháp SHAL”, similar to the protected trademark but unrelated under the trademark registration certificate of Viet Phap Aluminum Factory – Viet – Phap SHAL Aluminum JSC (located in Ninh Binh City, Ninh Binh Province).
Under the ruling of the First Instance Court on January 14, 2020, Viet Phap Aluminum Factory – Viet Phap Aluminum JSC (Hanoi) was fined 2 billion VND (about USD 86,300), and had to pay compensation to Viet Phap Aluminum Factory – Viet – Phap SHAL Aluminum JSC (Ninh Binh) for physical damage of VND 500 million (about USD 21,600) and spiritual damages of 15 million VND (approximately 650 USD).
The director of Viet Phap Aluminum Factory – Viet Phap Aluminum JSC (Ha Noi) was also fined VND 500 million and prohibited from holding the position for 18 months.
Although this is just a decision of the first instance court, has not yet come into effect and may be appealed or protested, this is also good news for intellectual property rights holders in Vietnam. Therefore, organizations and individuals should also pay attention to register for protection of intellectual property rights to protect their eligible rights, and not arbitrarily use the protected IP assets of others in business activities.
Dear Value Clients – Partners,
Apolat Legal Law Firm (“Apolat Legal”) would like to send sincerely thank you for your trust in our legal services.
Vietnamese Lunar New Year 2020 is coming, Apolat Legal wish you a prosperous and successful year ahead.
Apolat Legal is pleased to announce that our offices will be closed from January 23rd, 2020 (December 29th Lunar Calendar) to January 29th, 2020 (January 5th Lunar Calendar) for Lunar New Year. All the work will be resumed from January 30th, 2020 (January 6th Lunar Calendar).
In case of urgent matters or in the events of emergency, please do not hesitate to contact any of our Partners on their normal email address or mobile phone.
We are sorry for any of your inconvenience possibly happening during the holidays and appreciate all of you for supporting us.
On December 8th, 2019, Apolat legal signed a Cooperation Agreement with Tanna Law – a US law firm be operated by Indian attorney – Mr. Chetan P. Tanna, specializing in providing fast Visa services and immigration procedures in the US for many citizens who want to live and work in the United States. Moreover, Tanna Law supports Indian investors in trade promotion in countries around the world including Vietnam. Please see details at website: https://tannalaw.com/tannaus/
In addition, Apolat Legal and Nguyen and Associates Law Firm (“Nguyen and Associates”) work together and cooperate with Tanna Law to support Indian individuals/organizations to implement projects in Vietnam.
Specifically, on January 13rd, 2020, representatives of Apolat Legal, Nguyen and Associates; and Tanna Law had a visit to the Consulate General of India in Ho Chi Minh City to discuss the orientation of supporting and cooperating with Indian organizations/individuals to promote the development of Indian investment in Vietnam.
1| Submitting the report on the status of labor uses in 2019
According to Article 8 of Decree No. 03/2014/NĐ-CP, the employers must report on changes of labor uses to the Labor, War Invalids and Social Affairs Division or Department of Labor, War Invalids and Social Affairs (for employers operating in industrial parks) of the locality where the enterprise locate its head office, branches or representative offices. The labor sub-lease enterprise must report on the number of sub-leased laborers to the Labor, War Invalids, and Social Affairs Department, where their head office, branches, and representative office are located, biannually and annually. The specific reporting time is clarified to be before May 25th and November 25th each year in Circular No. 23/2014/TT-BLDTBXH of Ministry of Labor, War Invalids, and Social Affairs.
In the case the labor sub-lease enterprises fail to submit the report to the competent local labor authority, the employers shall be liable to a fine from 1.000.000 VND to 3.000.000 VND (Paragraph 2 Article 9 of Decree No. 95/2013/NĐ-CP, amended by Paragraph 8 Article 1 Decree No. 88/2015).
In case the employers using foreign laborers do not report or fail to sufficiently, duly report to the competent labor authority shall be liable to a fine from 1.000.000 VND to 2.000.000VND (Paragraph 2 Article 22 of Decree No. 95/2013/NĐ-CP, amended by Paragraph 8 Article 1 Decree No. 88/2015).
In case the foreign employers using Vietnamese laborers without reporting to the competent labor authority shall be liable to a fine from 1.000.000 VND to 3.000.000VND.
2| Reporting on occupational health and safety
According to Paragraph 2 Article 10 of Circular No. 07/2016/TT-BLDTBXH, the Employers must submit an annual report on occupational health and safety to the Department of Labor, War Invalids and Social Affairs, and Department of Health (submit directly or by post or via email/ fax) by January 10th of 2020.
Employers who do not submit the annual report on occupational health and safety shall be liable to a fine of from 2.000.000 VND to 5.000.000 VND (Point d Paragraph 1 Article 16 of Decree no. 95/2013/NĐ-CP).
3| Paying licensing fees of 2020
According to Paragraph 4 Article 5 of Decree No. 139/2016/NĐ-CP, the prescribed time limit for payment of licensing fees is no later than January 30th of 2020.
The enterprise fails to submit the licensing fees on time shall be liable to a penalty of 0.03% on the deferred licensing fees for each late day (Paragraph 3 Article 3 of Circular 13/2016/TT-BTC), namely:
Late payment amount = deferred licensing fee x 0.03% x The date of late payment
Of Note: The date of late tax payment (including public holidays and statutory days off as prescribed by law) shall be counted from the following date of the expiry date of the tax payment term.
4| Finalizing the annual Personal Income Tax and Enterprise Income Tax
According to Paragraph 1 Article 21 of Circular No. 92/2015/TT-BTC, the enterprise pays wages/salaries to the employees must finalize the personal income tax of employees. Besides, the enterprise must also finalize enterprise income tax according to Paragraph 4 of Article 12 of Circular 156/2013 / TT-BTC.
The annual finalized declarations must be submitted within 90 days from the end of the calendar year or tax year. (Point dd Paragraph 3 Article 10 of Circular No. 156/2013/TT-BTC).