Legal newsletter in December 2023 (Health insurance, Fire prevention and fighting, Tax and administrative procedures)

Legal Newsletter

Our Newsletter #17 would lead you on the following:

LEGAL UPDATE

I. Increasing benefits for participants and beneficiaries of Health Insurance policies

On 19 October 2023, the Government issued Decree No. 75/2023/ND-CP (“Decree 75/2023”) guiding the amendments and supplements to several articles of Decree No. 146/2018/ ND-CP of the Government which details and guides measures to implement several articles of the health insurance law effective from the date of promulgation with notable contents below. Decree 75/2023 took effect on 03 December 2023.

1. Adjusting medical examination and treatment procedures under health insurance

One of the notable new contents to facilitate patients in the process of going for medical examination and treatment (“MET”) to enjoy health insurance benefits is stipulated by Decree 75/2023 as follows:

  1. Allowing the presentation of an ID card to replace the health insurance card with a photo; or other legal documents proving identity or documents that have been electronically identified at level 2 on VNeID when going for MET.
  2. Regulations on the duration of the re-examination appointment: If the re-examination appointment time is exceeded, within 10 days from the date of the re-examination appointment, the patient must contact the medical staff to register for an appropriate examination schedule or come in for a check-up.
2. Changing the payment mechanism for MET costs covered by health insurance between MET facilities and the health insurance agency

Decree 75/2023 has made important changes in regulations on payment of MET costs covered by health insurance.

The total payment for MET costs covered by health insurance has been used for patients within the scope of benefits, and the benefit level of health insurance participants is paid according to the actual amount used for patients and the price according to current regulations.

At the same time, it stipulates the assignment of health insurance MET cost estimates to Vietnam Social Insurance and Social Insurance of provinces and centrally run cities; notifies the estimated number of MET costs covered by health insurance to medical facilities as a basis for planning the use of MET costs covered by health insurance during the year, but does not apply as a basis for advances, payments, and settlement of costs covered by health insurance of MET facility in case of exceeding the expected expenditure.

3. Amending and supplementing the rights and responsibilities of relevant parties in implementing health insurance policy

Decree 75/2023 clearly stipulates the rights and responsibilities of MET facilities in implementing health insurance MET contracts, including:

  1. Exercising the rights specified in Article 42 of the Law on Health Insurance and legal regulations on MET.
  2. Being notified promptly when the health insurance assessment information system detects a significant increase in health insurance-covered medical costs at their healthcare facility, compared to the average medical costs of similar facilities of the same class, level, and specialty, to enable prompt review, verification, and implementation of appropriate corrective measures.
  3. Abiding by the laws and regulations on MET, professional guidelines of the Ministry of Health, and relevant procurement and bidding laws to ensure the supply of qualified, effective, and economical drugs, chemicals, medical supplies, and procedures.
  4. Developing a healthcare IT infrastructure system, and upgrading and improving the hospital management software system to conform to legal regulations on data input and output standards, electronic data extraction, digital transformation, and electronic transactions in healthcare;
  5. Expeditiously reviewing and promulgating processes and professional guidelines for health examinations and treatments covered by health insurance, as well as measures to prevent the abuse and profiteering of health insurance funds;
  6. Conducting inspections and audits of health insurance-covered medical cost payments in accordance with the law; proactively detecting, reviewing, and verifying increased health insurance-covered medical costs at the facility based on the social insurance agency’s recommendations and warnings, and making appropriate adjustments.
II. National Technical Regulations on Fire Safety for Houses and Constructions

On 16 October 2023, the Ministry of Construction issued Circular No. 09/2023/TT-BXD (“Circular 09/2023”) amending 1:2023 QCVN 06:2022/BXD National Technical Regulations on fire safety for houses and buildings effective from 01 December 2023 with some notable content as follows:

1. Amendments to the scope of regulation of the National Technical Regulations on fire safety for houses and structures for residential objects

Circular 09/2023 amending the scope of regulation of fire prevention and fighting standards for individual houses combined with production and business with floor area for production and business purposes accounting for over 30% of the total floor area of a separate house combined with other uses and a separate house converted to another use with the following scale:

  1. Having at least 7 floors (or at least 25 m in fire height);
  2. Having at least 5,000 m3 in volume; and
  3. Having more than 1 basement or up to 3 basements.

Note: Separate houses, separate houses combining other occupancies, repurposed separate houses whose properties are different from mentioned scale above, fire safety requirements in individual housing standards and other standard documents can be applied to design fire safety and comply with relevant regulations.

2. Allowing the use of foreign standards and local standards

Circular 09/2023 has a notable amendment and supplement to the standards as follows:

  1. It is permissible to apply foreign standards in construction operations in Vietnam based on complying with principles in part 1.5 of this document and Vietnamese regulations on fire prevention, firefighting and regulations on application of foreign standards.
  2. Local governments will be allowed to promulgate local technical regulations to amend, replace, or add to regulations under parts 3, 4, 5, 6 and appendices of this document to suit specific local conditions based on compliance with regulations on technical standards, technical regulations, and laws pertaining to fire prevention and firefighting.
3. Regulations on minimum distance between 2 escape routes

The revised distance regulations between two escape routes are amended by Circular 09/2023 as follows:

  1. The distance between two emergency exits is measured in a straight line connecting their two farthest edges and must be greater than or equal to 7 m.
  2. If this distance is less than 7 m, the distance between two emergency exits is measured along the straight line connecting their two nearest edges.
4. Exit regulations are not considered escape routes

Circular 09/2023 has adjusted from the regulation on “exits considered as emergency exits” to “exits not considered as emergency exits”, accordingly:

  1. Exits shall not be considered emergency exits if the exits contain roller shutters or revolving doors.
  2. Sliding doors and accordion doors are allowed on emergency exits (unless these doors are subject to fire-resistance rating requirements or are required to be self-closing or are installed in F1.3 buildings, preschool education institutions, primary schools, and similar), in which case regulations on door swing direction under 3.2.10 are not required and signs indicating the type of door and swing direction are required.
5. Conditions for arranging an escape route for houses with fire protection heights from over 21 m to 25 m

Circular 09 allows the arrangement of an escape route for houses with fire protection heights from over 21 m to 25 m that simultaneously meet the following conditions:

  1. Area of each story in question does not exceed 150 m2;
  2. Occupant load of each story does not exceed 15 people;
  3. Motorized vehicles, class A, class B, class C warehouses shall not be located on the story that contains exit access unless these areas are separated in accordance with this document;
  4. The buildings are protected by automatic fire alarm and firefighting system;
  5. Building occupants can exit outside via emergency exit accesses (to open balconies, loggias, via windows or similar emergency exits) with assisting equipment (for example P1, P2 ladders, external ladders, rope ladders, chutes, and other assisting equipment); or to open rooftop in case of fire; and
  6. Exit accesses of rooms and stories must comply with the requirements of fire safety standards for houses and buildings.
6. Regulations on cases where fire-fighting water supply equipment outside the house is not required

Water supply for outdoor firefighting shall be implemented during construction investment of technical infrastructure of residential areas, urban areas, industrial parks, export-processing zones, hi-tech areas, industrial complexes, and areas with similar characteristics.

Buildings located in service radius of water supply sources for outdoor firefighting (tanks, reservoirs, hydrants, natural and artificial lakes, and other similar water sources) shall not be required to be fitted with water supply for outdoor firefighting.

III. New official letter responding to proposals of the Japanese chamber of commerce and industry in Vietnam (“JCCI”) regarding tax policies and administrative procedures.

On 12 October 2023, the General Department of Taxation issued the Official Letter No. 4525/TCT-CS 2023 responding to proposals on tax policies and administrative procedures of the JCCI effective from 12 October 2023 with some content as follows:

1. Proposed improvements to tax-related administrative procedures

1.1. Refund of value-added tax (“VAT”)

Pursuant to the provisions of:

  1. Article 1.3 Law on VAT No. 106/2016/QH13;
  2. Article 1.3 Decree No. 49/2022/ND-CP;
  3. Article 1.3 Circular No. 13/2023/TT-BTC;
  4. Article 28.2.a Circular No. 80/2021/TT-BTC;

If there is a new investment project (including new business establishments that are established from the investment project and investment projects that are divided into multiple investment phases or items) in the same or different provinces or centrally affiliated cities from those of the headquarters, and the remaining input VAT on goods and services incurred during the investment stage after deduction is at least VND300 million, it will be eligible for a VAT refund.

1.2. Tax exemption under double tax agreements (“DTAs”)

In addition to regulated documents in the tax declaration dossier, the taxpayer also needs to prepare an application for tax exemption or reduction under DTAs according to Article 62 of Circular No. 80/2021/TT-BTC dated 29 September 2021.

Pursuant to the provisions of Article 62 of Circular 80/2021/TT-BTC and Article 17.7, Article 19.1 and Article 19.2 of the Law on Tax Administration No. 38/2019/QH14, when processing applications for tax exemption under DTAs, tax authorities might request the taxpayers to supplement information and documents that are only relevant to the information in their tax refund applications in order to correctly determine their eligibility for tax exemption under DTAs.

2. Alternatives of Vietnam to tax incentives and minimum corporate income tax (“CIT”) rates for each country

2.1. Permission for enterprises to choose whether to apply the long-term 15% CIT rate or the current tax incentives

The Ministry of Finance is cooperating with other Ministries and central authorities in drafting and proposing the promulgation of regulations on global minimum tax application. Income inclusion rules (IIR) will be first applied to Vietnamese corporations that are eligible for global minimum tax and have associate companies in other countries so that they will apply a lower rate than the currently minimum rate of 15%. Qualified Domestic Minimum Top-up Tax (QDMTT) will be applied to foreign corporations that are eligible for global minimum tax and have associate companies in Vietnam so that they will apply a lower rate than the current minimum rate of 15%.

Global minimum tax will be applied to Vietnam from 2024. Enterprises that are not eligible for global minimum tax will continue to enjoy CIT incentives for which they are eligible.

2.2. Application of supportive amounts

Regarding the proposal for applying supportive amounts for levies, costs of investment in new equipment, research and development, human resources, etc., the Ministry of Planning and Investment will take charge and cooperate with other ministries and central authorities in developing and proposing promulgation of legislative documents on assistance for enterprises.

3. Related party transactions

3.1. Advance pricing agreement (“APA”) regime

APA regime is applied in Vietnam in accordance with Law on Tax Administration, the Government’s Decree No. 126/2020/ND-CP, 132/2020/ND-CP and Circular No. 45/2021/TT-BTC.

This is a voluntary regime for managing tax, requested by taxpayers, agreed upon between taxpayers and supervisory tax authorities, or between the tax authority of Vietnam and that of the country that is a member state to the Tax Agreement in the case of bilateral or multilateral APAs to predetermine CIT liabilities of relevant taxpayers within a certain period after the APA is signed.

When an APA is signed between a taxpayer and relevant tax authorities, the taxpayer shall declare and pay tax based on its content. Within the scope of the signed APA, tax authorities will carry out inspections to make sure the taxpayer complies with the APA, not for reassessment of the signed APA. Tax authorities are entitled to carry out tax audits and tax inspections, and can collect arrears and take action regarding other contents that are covered by the APA.

The taxpayer’s request for application of APA during the process does not restrict the tax authorities’ rights to tax inspection and tax audit. This is totally conformable with current international practice and recommendation regarding APA.

3.2. Consideration of non-price factors during check and inspection of related-party transactions

  1. The comparability analysis, selection of independent comparable, adjustment of material differences as the basis for determination of related-party transaction prices are prescribed in Article 6 to 11 of Decree No. 132/2020/ND-CP.
  2. Regarding the factors that affect enterprises’ business operation such as: Covid-19, scheduled power outages, if taxpayers have documentary evidence for the material differences caused by these factors between the taxpayers and independent enterprises selected for comparison, this information will be the basis for determination whether the effects are material during comparability analysis, or other adjustment of material differences prescribed in the Government’s Decree No. 132/2020/ND-CP dated 5 November 2020.

3.3. Collection of tax arrears derived from related-party transactions in Vietnam

  1. Double Taxation Agreements and international commitments have clauses on non-discrimination between domestic and foreign enterprises, regardless of their economic sectors.
  2. In conformity with international practice and instructions of Organization for Economic Cooperation and Development (“OECD”) regarding transfer prices, there are no recommendations to exclude related-party transactions with the same tax rates and not cumulative loss from regulations on related-party transactions.

If a taxpayer only has transactions with related parties that pay CIT in Vietnam and apply the same CIT rates, and neither party is eligible for CIT incentives in the tax period, the taxpayer will be exempted from preparing the related-party transaction prices declaration and documentation according to Clause 1 Article 19 of Decree No. 132/2020/ND-CP dated 05 November 2020.

The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at consult@blawyersvn.com. We would love to hear from you.

Date: 28 December 2023

Writer: BLawyers Vietnam

Legal News and Update Team

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