This is relation to our conservations, from which, you requested us to provide legal advice on amendment of Investment Certificate of your company (Hereinafter referred to as “Client”) in order to move the head office address from Binh Duong Province to Ho Chi Minh City.
We, therefore, are grateful to present you our Legal Services Proposal for your review and consideration.
1. BRIEF OF BACKGROUND AND OUR PRELIMINARY COMMENTS
1.1. Having carefully studied the case and consulted the relevant competent authorities, we are of opinion that in general, your plan of moving head office from Binh Duong Province to Ho Chi Minh City can be enforceable under Vietnam Law. However, possibility of success of the case shall very much depend on following prerequisites:
– New location of the Company in Ho Chi Minh City must be compliant with master plan of competent authority in Ho Chi Minh City.
– Compliance with Vietnam regulatory of Client during the operation in Hanoi, especially those relating to regulation on monitoring and evaluating investment in accordance with the Decree No. 113/2009/ND-CP dated 15 December 2009 of the Government detailing on monitoring and evaluating investment, the Circular No. 13/2010/TT-BKH dated 2nd June 2010 of the Ministry of Planning and Investment providing forms of investment monitoring and evaluation reports. According to our practical experience in the previous case, the Competent Authority generally challenge foreign invested company which fails to comply with the above regulation upon application for amendment of Investment Certificate;
– Profit of Client as recorded in the financial statement in recent years. Audited financial statement with negative remarks can cause obstacles for Client during the licensing process for moving head office from Binh Duong to Ho Chi Minh City. Upon request for amendment of Investment Certificate to move the head office address, the tax agency shall review Client’s compliance regarding to tax obligations from the starting date of its business activities until the date of request for amendment of investment certificate. The amendment of Investment Certificate can be approved only if the Tax Agency in Binh Duong Province certifies that Client has not pending tax obligations to Tax Agency in Binh Duong.
1.2. Licensing Process
We would like to clarify that the licensing procedure for amendment of Investment Certificate in order to move head office of Client in this case from Binh Duong Province to Ho Chi Minh City Province shall be about 45 working days. However, the actual process may take a longer time due to that the competent authority must consult other relevant ministries to evaluate the application dossier.
The roadmap for the amendment of Investment Certificate of Client can be described in following steps as follows:
a. Finalizing the tax obligations with the Tax Agency of Binh Duong Province: We note that in Vietnam, finalization of tax obligations of the Tax Agency generally takes long time to complete. Depending on complexity of each case, the time duration for finalization of tax obligations of a company last within 03-04 months. Therefore, we highly recommend you to start the finalization of tax obligation with Tax Agency of Binh Duong Province as soon as possible. This process must be completed before starting any licensing process in Ho Chi Minh City. We shall recommend Client tax advisor to assist you in this process if so required.
b. Preparing the application dossier: We shall collect necessary information and documents from you. Upon receipt of necessary information and documents from you, we shall translate documents from English into Vietnamese and prepare the application dossier under the standard forms. The initial drafted application dossier shall be sent to you for your comments. Then, after updating the application dossier based on your comments, we shall obtain the preliminary comments from the competent authority and send the finalized application dossiers for you to sign and seal. We anticipate that this phase shall be completed within 10 working days. The prepared documents shall then be sent to you for review, signing and seal.
c. Licensing process: Within 02 working days from receipt of duly signed and sealed application dossier, we shall submit the application dossier to the competent authority. It shall take about 3-4 months from submission of application dossier for the provincial licensing authority to grant the Amended Investment Certificate.
Post licensing: Within 13 working days we shall complete the post licensing procedures such as publishing the amendment of Investment Certificate in News Paper, obtaining new Seal Sample and Tax Code Registration.
3. SCOPE OF WORKS Generally, with regard to establishment of a foreign invested company in Vietnam, our scope of work shall be as follows:
3.1.Preparation of the application documents:
Notifying application documents required in accordance with Vietnamese law;
Drafting application documents required for submission purpose including application, power of attorney, board resolutions in English language;
Liaising with you to discuss the draft application documents;
Amending the application documents based on your comments;
Obtaining preliminary comments from the licensing authority on the draft application documents;
Finalizing the application documents following comments from the licensing authority; and
Translating the final version of the application documents into Vietnamese for execution.
3.2.Licensing procedures:
Submitting the application dossier to the licensing authority on your behalf;
Monitoring and following up with the relevant authorities on the approval process;
Keeping you updated on the developments and additional requirements, if any; and
Assisting you in obtaining the amended Investment Certificate.
3.3.Post-licensing procedures:
Placing an announcement on the amendment of Investment Certificate in the newspaper.
Obtaining new Tax Code Registration Certificate
Obtaining new seal sample registration certificate and new seal sample
4. DELIVARABLES
The Deliverables will include documents prepared in English and Vietnamese as required for submission to licensing bodies. Client will review, approve and where necessary sign these documents.
