Answer:
Capital contributors or owners of limited liability companies with a capital contribution value of VND03 billion or more will not be required to obtain a work permit before starting to work in Vietnam[1]. Therefore, only when foreigners who are capital contributing members of a limited liability company have a capital contribution value of VND03 billion or more, they do not need to enter into a LC. Since the context of this situation does not clearly show the job position in the LC signed by the contributing member and the limited liability company, legal issues related to the LC, work permits and compulsory insurances will be analysed in two specific cases as follows:
Case 1: That foreigner signs a LC with the title of a member of the Members’ Council/capital-contributing member
Obviously, such a LC is not in accordance with the provisions of Vietnamese law because: (i) a capital contributor or an owner of a limited liability company does not need to apply for a work permit as well as signing a LC; and (ii) a member of the Members’ Council will be appointed to act as the representative to manage the contributed capital and exercise the rights of the investor[2]. In this case, if a member of the Members’ Council is also a capital contributor or an investor, he or she must apply for a work permit in the form of internal movement within the enterprise (as a manager of a foreign enterprise that has established a commercial presence in Vietnam, temporarily moves internally within the enterprise to the commercial presence in Vietnam, and has been employed by the foreign enterprise for at least 12 consecutive months[3]) and does not have to sign a LC. In fact, from the SI the perspective, if the Vietnamese enterprise is a limited liability company that still enters into a LC with a foreigner as above mentioned, the competent insurance agency can still claim requires the foreigner to participate in compulsory SI as prescribed because the parties have signed a LC and have paid salary according to the LC.
Case 2: That foreigner signs a LC to perform a specific job in such limited liability company with a different title.
Conversely, suppose that if that foreigner signs a LC with such limited liability company to perform a specific job in the enterprise with a different title (for example, Chief Executive Officer (CEO) or Chief Finance Officer (CFO) rather than a legal representative) this is considered an independent labour relationship and the foreigner must obtain a work permit before commencing work.
Labour laws do not have clear provisions for the case where a foreign Employee works in Vietnam both as a capital contributor and as an Employee performing LC in the same enterprise. Therefore, there is no solid legal basis to believe that the said foreigner needs to apply for an additional work permit for the position of CEO of that limited liability company if he or she is already confirmed on work permit exemption because he or she is also a capital contributing member of that company. In this regard, in consultation with an expert of the Ho Chi Minh City DOLISA on a no name basis, it was advised that the foreigner still has to apply for a work permit for the work performed under the LC in the case mentioned above. Besides, that foreigner must also participate in compulsory SI with the title of CEO or CFO because he or she has met both conditions: (i) a work permit; and (ii) have entered into a LC.
In addition, it should also be noted that wages and salary of private business owners, owners of single-member limited liability companies (owned by an individual); remuneration paid to founders, members of the Members’ Council of a limited liability company, members of the board of management of a joint-stock company, who are not directly involved in production management, business activities of the enterprise will not be considered as a deductible expense when determining the enterprise’s CIT[4].
[1] Article 154 of the Labour Code and Article 7.1 of Decree No. 152/2020/ND-CP of the Government dated 30/12/2020
[2] Articles 55 and 80 of the Commercial Law 2020.
[3] Article 3.1 of Decree No. 152/2929/ND-CP of the Government dated 30/12/2020.
[4] Article 6.2.2.6 (d) of Decree No, 78/2014/TT-BTC dated 18/06/2014, amended and supplied by the Decree No. 96/2015/TT-BTC dated 22/06 2015.
