What is a Tax Treaty? What are the responsibilities and powers of the tax authority in Vietnam in managing transfer pricing?
What is a Tax Treaty?
Based on Clause 1, Article 4 of Decree 132/2020/ND-CP, the provisions are as follows:
Interpretation of Terminology
In addition to the terminology explained in the Law on Tax Administration No. 38/2019/QH14 dated June 13, 2019, the following terms are understood as follows:
1. “Tax Treaty” is the abbreviated term for the Agreement on avoidance of double taxation and the Prevention of Fiscal Evasion with respect to taxes on income or assets signed between Vietnam and other countries or territories, including any Agreements and Protocols amending and supplementing existing Agreements that are currently in effect in Vietnam.
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Thus, according to the above regulation, a Tax Treaty is the abbreviated term for the Agreement on avoidance of double taxation and the Prevention of Fiscal Evasion.
What document is the Tax Treaty on avoidance of double taxation between Vietnam and Korea?
The tax treaty on avoidance of double taxation between Vietnam and Korea is the Agreement on avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income between Vietnam and Korea.
What is a Tax Treaty? What are the responsibilities and powers of the tax authority in Vietnam in managing transfer pricing? (Image from Internet)
Shall the tax authority in Vietnam make adjustments in determining transfer pricing under bilateral agreements under relevant tax treaties?
Based on Clause 8, Article 20 of Decree 132/2020/ND-CP, the provisions are as follows:
Responsibilities and Powers of the tax authority in Managing transfer pricing
1. Apply risk management in tax management for transfer pricing according to tax law provisions.
a) Manage and use information from taxpayers engaging in affiliated transactions to serve risk management tasks;
b) Apply risk management in planning inspections and audits of enterprises with affiliated relations and transactions;
c) Manage and use the Global Profit Report of taxpayers to serve risk management tasks and information exchange according to provisions and commitments of Vietnam in international tax agreements, not to be used for tax imposition.
2. The tax authority bases on the principles of analysis, comparison, and the principles and methods of determining transfer pricing stipulated in this Decree and the tax declaration information of enterprises engaging in affiliated transactions to impose tax in the following cases:
a) Taxpayers violating tax laws but fulfilling all accounting policies, invoices, and documentation: Revenue, costs, or taxable income imposition to determine tax obligations is performed according to principles of analysis, comparison, determination methods of transfer pricing, and databases used in managing transfer pricing as stipulated in this Decree;
b) Other cases as stipulated in Clause 2, Article 50 of the Law on Tax Administration No. 38/2019/QH14 dated June 13, 2019;
c) The tax authority is responsible for facilitating taxpayers to prove and clarify data and information of independent comparison subjects used in the Documentation to determine transfer pricing.
3. The tax authority has the authority to impose price levels; profit margins; profit allocation ratios; taxable income, or corporate income tax payable for taxpayers not complying with regulations on declaration and determination of affiliated transactions; not providing or providing incomplete information and data in the declaration of transfer pricing in the following cases:
a) Taxpayers do not declare, declare insufficient information, or do not submit Appendix I issued with this Decree;
b) Taxpayers provide incomplete information in the Documentation for determining transfer pricing stipulated in Appendix II, Appendix III issued with this Decree or do not present the Documentation for determining transfer pricing and data, documentation, and materials used as the basis for analysis, comparison, price determination in the Documentation as required by the tax authority within the stipulated timeframe in this Decree. Information in the Documentation for determining transfer pricing is deemed significant if this information affects the result of analysis for selecting comparable independent subjects; the method of determining transfer pricing or the result of adjusting taxpayer's price levels, profit margins, and profit allocation ratios;
c) Taxpayers use untruthful and unreal information on independent transactions to analyze, compare, declare and determine transfer pricing or rely on unlawful, improper documentation, data, and sources without clear origin to determine price levels, profit margins, or profit allocation ratios applied for affiliated transactions;
d) Taxpayers commit violations of regulations on determining transfer pricing in Article 19 of this Decree;
đ) Databases for tax imposition are used under regulations in the Law on Tax Administration No. 38/2019/QH14 dated June 13, 2019.
4. The tax authority is responsible for securing information provided by taxpayers related to determining transfer pricing according to the provisions in this Decree. Providing information to agencies and organizations is conducted as stipulated in Clause 5 of this Article.
5. In cases where, through inspection and audit, determining transfer pricing raises issues related to mechanisms and policies linked to specialized sectors and fields, the tax authority seeks opinions from relevant agencies, organizations, and individuals, specifically:
a) Sectoral management agencies, organizations, and associations;
b) The tax authority is responsible for providing documents, information, and materials related to determining transfer pricing for consulted specialized sectoral agencies, organizations. Consulted agencies and units are responsible for securing information according to legal provisions.
6. The tax authority exchanges information with taxpayers and counterpart Tax Authorities through consultation procedures before, during, and after inspections and audits of transfer pricing as follows:
a) In cases where, through application of risk management in tax management for transfer pricing, the tax authority finds it necessary to exchange information beforehand with taxpayers regarding Appendix I issued with this Decree and taxpayers' Documentation for determining transfer pricing, the tax authority sends a written request for consultation organization with taxpayers to exchange and provide upfront information on taxpayers' Documentation for determining transfer pricing pursuant to this Decree;
b) In cases where the tax authority needs to communicate and exchange with counterpart Tax Authorities regarding the Global Profit Report and other related information according to provisions on mutual agreement procedures and information exchange in the relevant Tax Treaty. Where necessary, the tax authority notifies taxpayers in writing about the suspension of inspections or audits to proceed with information exchange with counterpart Tax Authorities according to tax law provisions.
7. The tax authority implements automatic information exchange mechanisms according to Vietnam's international commitments in international tax treaties. Annually, the tax authority informs of the list of foreign Tax Authorities eligible for automatic information exchange regarding taxpayers' Global Profit Reports on the tax sector's electronic portal.
8. The tax authority makes adjustments in determining transfer pricing under bilateral agreements as stipulated in relevant Tax Treaties.
9. In case the tax authority signs an Advance Pricing Agreement with taxpayers on tax computation method, the tax authority has the responsibility to:
a) Manage, inspect, and audit affiliated transactions not within the scope of the Advance Pricing Agreement application on tax computation method according to risk management principles;
b) Manage, inspect, and audit compliance with signed Advance Pricing Agreements on tax computation methods of taxpayers according to regulations.
Thus, according to the above regulation, the tax authority is responsible for making adjustments in determining transfer pricing under bilateral agreements stipulated in relevant Tax Treaties.
