luận văn thạc sĩ IMPROVING TAX MANAGEMENT OF TRANSFER PRICING ACTIVITIES OF MULTINATIONAL ENTERPRISES IN VIETNAM

MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION IMPROVING TAX MANAGEMENT OF TRANSFER PRICING ACTIVITIES OF MULTINATIONAL ENTERPRISES IN VIETNAM Major: The master of International Trade Policy and Law Full name: Le Thi Thuong Ha Noi - 2017 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION Improving Tax Management Of Transfer Pricing Activities Of Multinational Enterprises In Vietnam Major: The master of International Trade Policy and Law Full Name : Le Thi Thuong SUPERVISOR : Assoc Prof Ph.D Nguyen Viet Dung Ha Noi - 2017 CERTIFICATION I hereby certify that the thesis with the title: "Improving Tax Management of Transfer Pricing Activities of Multinational Enterprises in Vietnam" is my own research and does not reproduce any other materials The data indicated in the thesis is clear, accurate and are collected from the confident sources of information The Author Le Thi Thuong ACKNOWLEDGMENTS In order to complete this thesis, besides the efforts of myself, I have received the help, encouragement and guidance of my teachers, friends, colleagues and family throughout the course as well as in the period of the thesis research Special thanks to Assoc Prof Ph.D Nguyen Viet Dung, who was dedicated to guide and help me in the process of researching and writing this thesis I am grateful to the teachers in the Council of Assessment who gave me the valuable insights and comments, supporting me to complete the thesis I am grateful to the teachers teaching at the Faculty of Postgraduate Education of the Foreign Trade University for the interesting and useful lectures, for the enthusiastic transmission of the valuable knowledge and for the best conditions offering in the process of the course I want to say many thanks to my colleagues working on tax department who support me with a lot of data and information related to tax management of transfer pricing in Vietnam and other countries I am grateful to my family and my colleagues for their encouragement and supports during the course and the period of thesis research This thesis studies on the tax management of transfer pricing – not a new but a very complicated issues required various knowledge, skills and practical experiences Thus, the thesis has the inevitable shortcomings and limitations I look forward to receiving valuable comments for improving the thesis Sincerely, Hanoi 2017 The Author Le Thi Thuong TABLE OF CONTENTS LIST OF ABBREVIATIONS ABBREVIATIONS MEANING AL Arm’s Length APA Advance Pricing Agreement CbC Country-by-Country CIT Corporate Income Tax CP Cost Plus Method CPM Comparable Profits Method CUP Comparable uncontrolled price method EU European Union GDT the General Department of Taxation of Vietnam GSO General Statistics Office Of Vietnam MNE Multinational Enterprise MOF Ministry of Finance of Vietnam OECD the Organization for Economic Co-operation and Development TNMM Transactional Net Margin Method TP Transfer Pricing UN United Nations USD The United State Dollar PWC PricewaterhouseCoopers R&D Research and Development RPM Resale price method VND Vietnamese dong INTRODUCTION I The necessity of the research Globalization gives opportunities for domestic companies to trade and invest internationally It is also a prerequisite for the establishment of multinational enterprises (MNEs) with business operation of increasing diversity and complexity Taking advantages of preferential policies, especially tax incentives, of many countries in attracting foreign investment, MNEs have performed a range of tricks to maximize overall profits In which, transfer pricing (TP) is a trick of shifting profits among related parties of a MNE through associated transactions TP has become popular in the world with growingly complex and sophisticated forms, causing tax losses and affecting the social-economic development As a consequence, governments always pay special attention to TP management, notably tax management Tax management of TP is one of the hottest issues which have been discussed on regional and global forums International organizations, consisting of the Organization for Economic Co-operation and Development (OECD) and the United Nations (UN), have provided several publications like guidelines or model tax conventions on this issue In Vietnam, after approximately 30 years from “Doi Moi”, there are certain achievements in attracting foreign investment Registered and implemented capital of FDI in 2016 reached USD 24.3 billion and 15.8 billion respectively, which are the highest ever, with more than 2,500 new projects For the first seven months of year 2017, the sum of registered capital from new projects, additional funding and investment in the form of capital contribution and share purchasing reached USD 21.93 billion, increasing 52 percent in comparison to the same period of 2016 To the date of 20 July 2017, there are 23,737 effective projects with total registered capital of USD 307.86 billion The accumulated implemented capital of foreign investment’s projects is estimated to reach USD 163.9 billion, equaling to 53.2 percent of total effective registered capital Foreign invested sector also contributes a large portion of imports and exports, accounting for more than 70 percent of total export turnover and around 60 percent of total import turnover in the previous two years [MPI, 2017] Although substantial amount of total invested capital, contribution of this area to state budget is only a small proportion According to data from General Statistics Office of Vietnam (GSO), for the first four months of 2017, national revenue from foreign invested sector (crude oil excluded) achieved VND 47.3 million billion, contributing to around 23.5 percent of estimation, while the figures for private sector and state sector are VND 52.1 and 49.4 million billion In 2016, domestic income from foreign invested enterprises is VND 147.7 million billion out of the total income of VND 744.9 million billion, accounting for around 19.83 percent That of year 2015 is 19.06 percent [GSO, 2016] In addition, a large part of foreign invested enterprises report losses over the past years but still expand their business operation Coca-Cola is one outstanding example Coca-Cola consistently reported a loss, as of the end of 2011, reaching VND 3,768 million, which exceed the total initial invested capital Despite such losses, its revenue gradually grew from 20 to 30 percent annually This situation raises questions about the compliance of foreign enterprises with tax laws and regulations of Vietnam Vietnam government has given concerns of tax management of foreign investment, especially TP, since the 1990s, but there is no legal documents regulating this activity until the year 1997 At present, after several times of amendments and supplements, Decree No 20/2017/ND-CP dated 24 February, 2017 and effected May, 2017 (Decree 20) is the document with highest legal effectiveness governing TP Based on such regulations and action plan proposed by Ministry of Finance (MOF), tax examination and audit of TP have been seriously implemented in recent years In the year 2015, the General Department of Taxation of Vietnam (GDT) established official Transfer Pricing audit teams in the GDT and in four major provinces: Hanoi, Ho Chi Minh City, Binh Duong and Dong Nai in order to conduct specialized tax examination and tax audit However, up to now, legal regulations on TP have not yet completed with many blind spots of policy Besides, tax examination and tax audit of TP are limited 10 due to lack of practical experiences and qualifications From the above-mentioned reasons, the author chooses the topic “Improving Tax Management of Transfer Pricing Activities of Multinational Enterprises in Vietnam” for the research Starting from theoretical basis and actual situation of TP tax management in Vietnam, the author shall make some necessary recommendations on policy and practical action aiming at efficient tax management of TP, contributing to sustainable development of the country II Research situation in the world and in Vietnam Tax management of TP is not a new issue on the research of individuals and organizations in the world TP rules were introduced in domestic legislation by the United Kingdom in 1915 and by the United States (US) in 1917 The US developed TP regulations in the Internal Revenue Code (IRC) in 1930 and TP law dated 1st July 1994 The OECD and UN have also publications concerning this issue The OECD first issued The OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administration (OECD guidelines) in 1995, which was then amended and updated in 1979 and 1984 The guidelines not only represent a consensus among OECD members on dealing with TP issues, but also a basis for developing countries to establish their own TP regulation “International Income Taxation and Developing Countries” in 1988 was the first publication of the UN on TP, which followed by a report on Transfer Pricing of The United Nations Conference on Trade and Development (UNCTAD) in 1999 The guideline named the United Nations Practice Manual on Transfer Pricing for developing countries (UN Manual) which was first introduced in 2013 and revised in 2017 by the United Nations, is one of the most important publications which updates all TP guidance used for establishing TP regulations for countries worldwide The European Council (EC) also pay attention to this phenomenon, on 17 May 2011, they issued guidelines on low-value-adding intra-group services They are 90 tax professionals, their associations or peak representative bodies on tax issues; - Being reasonable and proportionate in actions, and open and transparent with taxpayers; - Being responsive to requests; - Extensive and clear taxpayer education, including making available to taxpayers tax guidance notes, information circulars and other guidance on interpretation of tax laws to avoid misunderstandings, confusion and surprises to those willing to meet their obligations; - An informative and easy to navigate Internet presence that is regularly tested and kept under review for its user-friendliness and relevance; - Seeking to avoid disputes arising unnecessarily but also setting up clear and fair systems for addressing such disputes that not unfairly deter taxpayers from pursuing legitimate disputes; and - Advance rulings on specific issues of taxpayers 3.2.6 Coordinating between related authorities in Vietnam TP is a complicated activities required deep and broad knowledge To enhancing tax management of TP, all related authorities should coordinate with others In Vietnam, the authorities in charge of TP management include but not limited to the Ministry of Planning and Investment, Ministry of finance, GDT and its branches, the General Department of Customs and its branches, the State Bank of Vietnam, the State Audit Office of Vietnam In which, the Ministry of Finance takes the main responsibility in policy making and the GDT together with its branches takes the main responsibility in implementing of the policy The Decree 20 includes the regulations on collaboration of other statutory authorities in TP management, in which having involvement of the Ministry of Finance, the State Bank of Vietnam, Ministry of Planning and Investment, Ministry of Science and Technology, Ministry of Agriculture and Rural Development, 91 Ministry of Information and Communications, Ministry of Industry and Trade and People’s Committees of centrally-affiliated cities and provinces However, there is no detailed mechanism in cooperation between such authorities To enhance the efficiency of TP management, the government should direct and tax authorities should take the main responsibility in establishing coordination mechanism between related authorities on TP Besides, the responsibilities of several authorities should be complimented and clarified as follows: (1) Ministry of Planning and Investment - Heighten investment examination and audit in accordance with Law No 67/2014/QH13 dated 26 November 2014 on audit of machinery, equipment, technological lines during investment period - Review the enterprises with continuous losses of profit for years, but increase of revenue and expansion of manufacturing operations Before issuing the investment certificate for production expansion, the Ministry of Planning and Investment should carefully check existing data and compliance status of enterprises - Coordinate with other authorities for effective tax management of TP (2) Ministry of Finance - Govern and coordinate with related authorities to improve legal legislation, tax policy suitable for each development period and integration level of Vietnam - Govern and coordinate with related authorities to establish database of taxpayers’ profile - Govern and coordinate with related authorities in tax examination and audit of enterprises with high-risk assessment of TP as well as design planning, tax examination/audit methods for provincial tax office - Form database for comparable analysis of TP and make proposal on legalization of the data sources approved internationally 92 - Establish training program in order to improve knowledge and qualification of tax officers, especially who work on TP tax examination and audit - Govern and coordinate with media operators to propaganda tax policy, especially TP regulations (3) State Bank of Vietnam - Coordinate with Ministry of Finance in regulating reasonable costs of interest rates and proportion of loans/equity to control the TP and ensure monetary security - Coordinate with other authorities in controlling payment activities via bank transfer, especially international payments (4) State Audit of Vietnam - Actively implement the audit in accordance with applicable regulations - Provide data and information to set up the database for tax management of TP 3.2.7 Enhancing dissemination of transfer pricing regulations to taxpayers Given that TP has only recently come into force, many MNEs are still unaware of what is expected of them locally and whether internationally accepted practices in areas such as documentation and comparables will be appropriate in meeting the expectations of the tax authorities in Vietnam Therefore, the tax authorities should strengthen propaganda of tax regulations to taxpayers, systematically guide MNEs in Vietnam regulations related to determine the AL price for associated transactions to raise awareness of compliance with tax laws Decree 20 regulates the responsibility of relevant statutory authorities, in which, the MOF is responsible for undertaking and collaborating with the Ministry of Information and Communications in communicating or disseminating state management of prices of related-party transactions Because it is a general provision, to efficient implementation and cooperation between authorities, there is a need for drafting and issuing official mechanism on dissemination of TP regulations In order to support taxpayers to comply with the law, the tax authorities has 93 coordinated with the central and local press agencies in propaganda on tax policies, new document, such as cooperating with television stations to perform television broadcasts, radio broadcasts on tax policy, collaborating with newspapers, radio and magazines to bring news, articles and photos for propaganda on tax work For comprehensive propaganda, the tax authorities have systematized, compiled and transmitted the content of new tax policies through other forms such as: Website, email (email) to all enterprises have email addresses connected to the tax office; publicly post at the tax office's one-stop sections at all levels so that taxpayers can catch up in time with new regulations In addition, the tax authorities offer regularly support taxpayers in various forms: direct assistance, telephone support or tax policy response in writing Specifically, the tax department have successfully organized many seminars, dialogues as well as offered training courses for taxpayers In addition, the tax authorities should give support to taxpayers to overcome the difficulties, creating the best conditions for taxpayers to fully enjoy the tax incentive policies At the same time, the tax authorities should take the initiative in studying and sticking to geographical areas, set up information collection mechanism, strengthening dialogues, direct contact with associations, business associations such as the Japanese Business Association, American Business Association, Small Business Association, Tax Advisory Association to capture the situation of production and business and timely solve the difficulties and problems of taxpayers in the implementation of tax law In parallel with the propaganda on new tax policies, the tax authorities should promptly rewarded typical taxpayers in order to motivate and create a great motivation for taxpayers to continue to perform well In addition, proactively survey and classify the demands of each group of taxpayers is necessary to apply appropriate, practical and efficient forms of propagation so that taxpayers can fully and promptly grasp tax policy contents To maintain and effectively disseminate tax policies, propaganda should carry 94 out on the loudspeaker system at the grassroots, on the electronic billboards, bulletin boards at the one door section, through publications The feedback loop should be created to receive the ideas and opinions from taxpayers for better dissemination in the future 3.2.8 Participating in international organizations on transfer pricing management The mission of the OECD is to promote policies that will improve the economic and social well-being of people around the world The OECD provides a forum in which governments can work together to share experiences and seek solutions to common problems The organization work with governments to understand what drives economic, social and environmental change We measure productivity and global flows of trade and investment The OECD were established in 1961 with 35 country members and had cooperated with more than 70 non-member countries to date All the publications including but not limited to principles, guidelines, reports of the organization have great impact on all countries in the world The OECD guidelines for MNEs and tax administrations are the base for many countries to build up their domestic law and regulations of TP, including Vietnam Up to present, Vietnam is not a member of OECD, therefore, there are some barriers to access the information and experience relating to social economic development in general and TP in particular Vietnam has many limitations on TP policy as well as the implementation of TP regulations, trying to accede the OECD in the near future shall be a good opportunity for Vietnam to handle TP issues and boost the economy Besides, Vietnam government and tax authorities should strengthen international cooperation on tax administration, especially cooperation on TP, develop mechanisms for providing and sharing information related to prices of products sold on the world market as a basis for management and handling of TP In addition, Vietnam government should participate in international protocol on tax administration, such as OECD Convention on Mutual Administrative 95 Assistance in Tax Matters to exchange tax information with other tax authorities At present, there are 112 countries and territorial extension are members of such convention Being a member and signing MAP with other countries not only help to obtain sufficient information of MNEs but also avoid unnecessary disputes in TP management 96 CONCLUSION TP is generally considered to be the major international taxation issue faced by MNEs today Even though responses to it will in some respects vary, TP is a complex and constantly evolving area and no government or MNE can afford to ignore it Because of preferential policy for foreign investment, the number of MNEs running business in Vietnam is increasingly growth in recent years with sophisticated tricks TP is not a new phenomenon, but it is a complicated issue required significant resources, various knowledge, skills and practical experience In Vietnam, tax management of TP faces several difficulties, including lack of comprehensive legal legislation, shortage of practical experience in tax examination and audit, lack of skilled human resources and low level of economic diversification and integration In addition, there is no long-term specific procedure and plan and comparable data for tax examination and audit of TP Despite that, the tax authorities in Vietnam have reached several achievements In the next period, to handle the above mentioned limitation, the government and tax authorities, namely the GDT, provincial taxation department and its branches, should implement a series of solutions These solutions consist of (i) improving legal regulations of TP by amending/supplementing the existing documents and issuing new documents with higher level of legal effect and detailed instructions; (ii) forming database for comparable analysis for tax examination and audit of TP; (iii) improving risks assessment of enterprises with transfer pricing warning signs (iv) establishing separate procedures for tax examination and audit to facilitate the implementation of such activities and avoid confusion for both enterprises and tax authorities; (v) training deeply for tax official to strengthen knowledge, skills for theory and reality and develop tax expert, and enhancing integration and macroeconomic situation; (vi) coordinating between related authorities of Vietnam in TP tax management; (vii) enhancing dissemination of TP to taxpayers through training class and conference for taxpayers or media like news, specialized journals in order to make the regulations so popular; and (viii) participating in international organizations on transfer pricing management to 97 cooperate with other tax authorities in dealing with such difficult issues TP is a hot issue in the researches of the governments, organizations and individuals In this research, by analyzing the management situation in Vietnam, from that the author has made some suggestions on policy change, on enhancement of practical action of tax examination and audit and on development of economic diversification and integration, aiming at understanding basic content of TP for improving Tax Management of TP in the near future 98 REFERENCES In English Anita Kapur (2012), Indian Transfer Pricing System Available at: http://www.taxjustice.net/cms/upload/pdf/Vikram_Vijayraghaven_Helsinki_120 6_ppt.pdf Andrew Lymer and John Hasseldine (2012), The International Taxation System, page 159 BNA (2011), Tax Management: Transfer Pricing Report Available at: https://www.bna.com/transfer-pricing-report-p17179911958/ Truy cập ngày 03/10/2016 Deloitte (2013), 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Improving Tax Management of Transfer Pricing of MNEs in Vietnam 15 CHAPTER 1: THEORETICAL BASIS FOR TAX MANAGEMENT OF TRANSFER PRICING 1.1 Transfer Pricing 1.1.1 The concept of transfer pricing. .. MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY DISSERTATION Improving Tax Management Of Transfer Pricing Activities Of Multinational Enterprises In Vietnam Major: The master of International... Generating theoretical base for tax management of TP of MNEs - Determining factors contributing to tax management of TP of MNEs 14 - Analyzing TP activities of MNEs in Vietnam - Analyzing and