When a foreign-invested (FDI) project is transferred to a new investor, are the import-export tax incentives (such as import tax exemption for fixed-asset equipment) currently applied to the project retained? The answer is Yes — conditionally. The governing principle: import-export tax incentives attach to the PROJECT (the entity entitled to investment incentives), not to the identity of a particular investor.
The current legal bases: Investment Law 143/2025 and Decree 96/2026
Any analysis of investment project transfers must be based on Investment Law 143/2025/QH15 (effective 01/3/2026, replacing Law 61/2020/QH14) and Decree 96/2026/ND-CP (31/3/2026, effective from issuance). Law 61/2020 and Decrees 31/2021, 19/2025 and 239/2025 must never be cited as current bases — Decree 96/2026 has wholly replaced them (Clause 2, Article 111).
Inheriting incentives upon project transfer: point (a), Clause 6, Article 20 of Decree 96/2026
Under point (a), Clause 6, Article 20 of Decree 96/2026/ND-CP, an investor receiving a transferred investment project inherits the investment incentives applied to the project (if any) before the transfer, provided the conditions for enjoying investment incentives continue to be met. The “conditions continue to be met” requirement is key: inheritance is not automatic in absolute terms but depends on the project continuing to satisfy incentive conditions after the change of ownership.
The import-export tax mechanism when a project changes hands
The beneficiary of import-export tax incentives is the project, under Clause 11, Article 16 of Law 107/2016 and Article 14 of Decree 134/2016/ND-CP. When a project is adjusted (transferred) under investment law, the tax policy is applied correspondingly if the project still meets the conditions for the incentive category — this principle was guided by the General Department of Customs in Official Letter 3747/TCHQ-TXNK dated 06/8/2024 (an operational guidance document; note that it cites the old Law 61/2020, so the main legal bases of the analysis remain Investment Law 143/2025 and Decree 96/2026).
Mandatory procedural obligations of the new investor
Retaining import-export tax incentives does not mean exemption from procedures. The transferee investor must:
- (i) Adjust the Investment Registration Certificate under investment law;
- (ii) Notify the adjustment of the Tax-Exempt Goods List to the customs authority under Article 30 of Decree 134/2016/ND-CP;
- (iii) Continue to use tax-exempt goods for the proper purpose of the project.
Skipping these procedures may lead to arrears collection of the exempted tax.
When are incentives lost and tax payable again?
- If the project after transfer no longer meets investment incentive conditions (change of business lines, change of location, project termination or adjustment), the customs authority recovers the exempted tax amounts correspondingly (under point (d), Clause 6, Article 30 of Decree 134/2016 — the detailed content should be checked against the original decree text before application to each specific case);
- If the purpose of use of tax-exempt goods is changed, a new customs declaration must be registered and tax declared and paid under the tax policy at the time of the new declaration — the mechanism in Article 17 of Law 107/2016 (current version, see 96/VBHN-VPQH dated 31/3/2026) and Clause 5, Article 25 of Decree 08/2015/ND-CP (see 46/VBHN-BTC dated 24/11/2025).
Mandatory distinction: project transfer vs capital transfer
A project transfer (conditional inheritance of the project’s incentive conditions, as analysed above) differs from a capital/share transfer (which only changes the enterprise’s ownership — the project’s incentives are in principle not directly affected). The two transactions have different legal consequences and must not be conflated.
Preparing to receive a transferred FDI project and need to review incentive inheritance conditions and adjust the Tax-Exempt Goods List? Contact FLAT Law Firm for advice.
The information above is for reference only and does not constitute legal advice.
For reference only, not legal advice. Content quality-checked by the AI Legal Council; not yet reviewed by a human lawyer.
