Updated at 27/07/2022 - 12:05 pm
In the course of doing business, many foreign-invested enterprises borrow capital from their owners in the form of unsecured foreign loans. This is a quite convenient capital mobilization channel for FDI enterprises. However, due to the regular nature and quite easy to get loans, many businesses are subjective, do not understand the legal provisions on foreign loans, leading to the following legal risks:
1. Cannot repay the loan to the owner.
2. Interest expense is not deductible expense when CIT finalization.
3. Penalties for violations against regulations on unsecured foreign loans.
So what is the cause, how to handle it and what legal document bases will be?
The reason for the legal risks of foreign loans #
1. Failing to register for medium, long-term, short-term loans with a grace period of more than 01 year; #
2. Failure to use the correct type of account when borrowing foreign capital, specifically:
+ The borrower is an enterprise with foreign direct investment capital: medium-term and long-term loans using direct investment capital accounts; short-term loans using direct investment capital accounts or other foreign loan or debt repayment accounts.
+ The borrower that is not a foreign direct investment enterprise: opens a foreign loan or debt repayment account at an account service provider in order to borrow and repay foreign loans.
3. Failure to comply or comply with the regulations on reporting on short term, medium and long term loans to the State Bank.
4. The interest rate for loans from partners who are not credit institutions or economic organizations exceeds 150% of the basic interest rate announced by the State Bank of Vietnam at the time of borrowing.
5. The loan does not have sufficient legal documents as prescribed by law and is not allowed to transfer loan payment.
Legal Basis to be followed for foreign loans #
- Decree No. 219/2013/ND-CP dated December 26, 12 of the Government on management of foreign loans and repayment of enterprises not guaranteed by the Government;
- Circular 03/2016/TT-NHNN dated February 26, 02 of the Governor of the State Bank guiding a number of contents on foreign exchange management for borrowing and paying foreign debts of enterprises;
- Decree 88/2019/ND-CP dated November 14, 11 of the Government on sanctioning of administrative violations in the field of currency and banking.
According to Point d, g Clause 4 and Point a Clause 7 Article 23 Clause 2 Article 24 of the Prime Minister's Decree 88/2019 / ND-CP dated November 14, 11:
“4. A fine ranging from VND 30.000.000 to VND 50.000.000 shall be imposed for any of the following violations:
d) Failure to comply with regulations of law on opening, closing, and using an account in Vietnam to perform one of the following activities: Foreign investment in Vietnam; Vietnam's investment abroad; foreign borrowing and debt repayment; foreign lending, foreign debt collection, overseas securities issuance of institutional residents; securities issuance in Vietnam by non-institutional residents and other capital transactions;
g) To withdraw capital and repay foreign loans; disbursement, debt collection for offshore loans; collection of guarantee debts for non-residents; transferring money in service of foreign investment activities into Vietnam, Vietnamese investment abroad in contravention of law provisions;
7. A fine of between VND 150.000.000 and VND 200.000.000 shall be imposed on one of the following acts of violation:
a) Failure to comply with regulations of law on foreign borrowing and foreign debt repayment; foreign lending, debt collection; guarantees for non-residents and other capital transactions, except for the cases specified at Point g, Clause 3, Point d, g j Clause 4 and Point b, Clause 5 of this Article; ”
Solutions for businesses to prevent and overcome #
- Correct all errors (if any) mentioned in the section "Causes of legal risks of foreign loans"
- Collection of all original loan documents, loan transfer transactions and loan term extension commitments and agreements
- To fully and accurately explain the questions of the State Bank when approving loans
- Ask for the Bank's assistance where there is an advisory loan and adjustment assistance account
- Possessing a staff of experienced staff, knowledgeable about laws on business, investment, foreign exchange, tax laws, and accounting.
- Consult a team of experts with experience in foreign loans
- Use professional consulting services of a reputable and experienced consulting company
