KPMG in Myanmar
Foreign Investment Law and Investment Procedures in Myanmar
July 12, 2013
Ⅰ New Foreign Investment Law and Its Guidelines
1. Revision of Myanmar Foreign Investment Law 2011 • The government announced to make revisions in the foreign investment law (FIL) which was originally issued in 1988。 August, 2012 • The amended bill (New FIL) was approved by the House of Representatives (the lower house of the Assembly of the Union) September,2012 •The new FIL was approved by the Assembly of the Union and sent to the president. •President Thein Sein returned the proposed law back to the Assembly of the Union with 16 further amendments. November, 2012 •After a careful deliberation of the Assembly of the Union and after the president signed the proposal, the new FIL was made effective on the 2nd of November, 2012. January, 2013 •The Ministry of National Planning and Economic Development (MPED) and Myanmar Investment Commission (MIC) issued detailed regulations of the new FIL. (Notification of MPDE No.11/2013 and Notification of MIC No.1/2013 )
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2. Comparison of FIL - Old and New The major changes in the New Foreign Investment Law are summarized below ; Old FIL
New FIL
(1) Timeframe of MIC approval
Not mentioned
• MIC shall notify their acceptance of the application documents within 15 days from the submission. • Within 90 days from their acceptance , MIC shall conclude their review.
(2) Term for land lease
Land lease can be done only from the government. Lease term was not mentioned.
• Possible to lease lands both from private entity/person as well as the government . • Lease term can be 50 years and apply extension of the next 10 years twice (70 years in total).
(3) Foreign Capital Ratio
Not mentioned Prohibited business for foreign capital was described
• Business allowable only for JV with Myanmar partners ⇒Equity ratio by foreign capital should be less than 80%(60% for some business) • Other than the restricted business ⇒Foreign capital can own 100% equity
(4) Tax incentives
Corporate tax exemption for 3 years
Corporate tax exemption for 5 years
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2-1. Summary of the Investment Incentive Old FIL
Corporate income Tax
Tax holiday for the first 3 years from the commencement of business
Import Duty
•Duty exemption for ; - imported machinery and equipment during the construction period - imported building material • Duty exemption for - imported raw materials and parts for manufacturing for the first 3 years from the commencement of business
Special Privilege on Land Lease
•Foreign capital company shall lease land only from the government. •By the Notification No. 39 in 2011, land lease of privateowned land became available
New FIL
Tax holiday for the first 5 years from the commencement of business
Same as left
•Leasing of private owned land as well as government owned land •Possible to sublease it and pledge it as collateral •Lease term can be 50 years with extension of 10 years + 10 years
Special Economic Zone Act (Draft) • Tax holiday for the first 5 years in the Promotion Zone, and 7 years in the Export Processing Zone. • Half tax-rate reduction for the next 5 years after the end of tax holiday • For another 5 more years、if the profits are reinvested in the business within a year, half tax-rate reduction is available for the earning from the re-invested business •Duty exemption for all materials/parts, machinery and equipment imported by the companies in the Export processing Zone. •Duty exemption for imported machinery/equipment and motor vehicle for the first 5 years in the other zones. After the period, half tax-rate reduction shall be applied for the next 5 years.
• Lease term for the land in SEZ can be 50 years with extension of another 25 years.
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3. Promoted Businesses by FIL 【Investment-promoting Business】(Old FIL)
【Investment-promoting Business】(New FIL)
1) promotion and expansion of exports; 2) development of natural resources that require heavy machinery 3) manufacturing and production with advanced technology 4) supporting the business of production and services involving large capital 5) development of employment opportunities 6) bringing out of business which would save energy consumption 7) regional development
1) Supporting the main objectives of the economic development plan, business which cannot be affordable and which are financially and technologically insufficiency by the Union and its citizen; 2) Development of employment opportunities 3) Promotion and expansion of exports; 4) Production of import substituted goods; 5) Production of products which require mass investment; 6) Acquisition of high technology and development of manufacturing business by high technology; 7) Supporting the business of production and services involving large capital; 8) Bringing out of business which would save energy consumption; 9) Regional development; 10) Exploration and extraction of new energy and the emergence of renewable energy sources such as bio‐basic new energy; 11) Development of modern industry; 12) Protection and conservation of environment; 13) Causing to support for enabling to exchange the information and technology; 14) Not affecting the sovereign power and the public security; 15) Intellectual enhancement of citizens; 16) Development of bank and banking in accordance with the international standards; 17) Emergence of the modern services required for the Union and citizens; 18) Causing to be sufficient the local consumption of the energy and resources of the Union in terms of short term and long term period;
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4. Prohibited and Restricted Business for Foreign Capital
<All Business Areas> MIC Notification Foreign Investment Law
No.1/2013
(Cap. 2 Article 4)
ListⅡ. Economic activities to be allowed in the form of joint venture
Prohibited Business areas MIC Notification
MIC Notification
No.1/2013 ListⅠ. Prohibited Business Areas
No.1/2013 List Ⅲ. Economic activities to be approved on special conditions
Business areas considered to be available for 100% foreign capital Banking and Financial services, Wholesale and Retail Trading
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4-1. Economic Activities Prohibited for Foreign Investment (f)Manufacturing services that Myanmar citizens are able to conduct according to the enforced regulations Foreign Investment Law
Chapter 2 Article 4 (a) Business which can affect the traditional cultures and customs of the national races within the Union (b) Business which can affect the public health (c) Business which can cause damages to he natural environment and ecosystem (d) Business which can bring hazardous or poisonous wastes into the Union (e) The factory which produce or the business which use hazardous chemicals under international agreements (f) Manufacturing business and services which can be carried out by the citizens by issuing laws (g) Business which can bring the technologies, medicines, instruments which is being tested abroad or not approved (h) Business of farming agricultures, short-term and long term agriculture which can be carried out by citizens by issuing rules (i) Business of breeding which can be carried by the citizens by issuing rules (j) Business of the Myanmar Marine Fisheries which can be carried out by the citizens by issuing rules (k) Business of foreign investment to be carried out within 10 miles from border line connection the Union territory and other countries except the areas stipulated as economic zones under the permission of the Union
(A) Manufacturing 1. Conservation and management of forests 2. Production of traditional medicine in Myanmar 3. Oil drilling up to 1,000 feet 4.Small and medium-sized mining 5. Cultivation of medicinal plants to be used in Myanmar traditional medicine 6. Manufacture and sale of iron scrap and parts 7.Production of traditional food 8. Manufacturing of religious antiquities 9. Manufacturing of materials related to traditional culture 10.Production of handicrafts
(B) Services 1. Private traditional clinic 2. Sale of traditional medicine 3. Development of traditional medicine 4. Ambulance service 5. Aged care facility 6. Cafeteria, transportation, laundry, management of railway services 7. Agency services 8. Electricity supply of 10MW or less 9.Publication in Myanmar language or other ethnic minority language, newspaper and other media
(h) Short-term and long-term agricultural plantations Myanmar citizens can conduct according to the enforced regulations 1. Small-scale agriculture firm 2. Cultivation in agriculture firms that does not use modern facilities or technology (i) Livestock industry that Myanmar citizens can conduct 1. Small-scale livestock industry 2. Traditional livestock industry that does not use advanced technology (j) Myanmar fishing in inshore fishing waters that Myanmar citizens can conduct according to the enforced regulations
1. Deep off shore fisheries for saltwater fish, shrimps and other marine products in Myanmar territory inofcoasts and International”), a Swiss entity. Member firms of 2. the Fishing KPMG network independent firmsrivers are affiliated with 7
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5-1. Manufacturing Industry (1) Ⅰ.Prohibited Economic Activities
Manufacturing and related services of Arms and ammunition for the national defense. Agriculture and Manufacturing which are not compliance with Fertilizer Law, Seed Law and Agricultural Laws promulgated from time to time. Production of Ozone-depleting substances Production of organic matter that are prohibited by Stockholm Agreement Production or use of hazardous substances which are prohibited by environmental and conservation Law, Rules and Procedures promulgated from time to time. Manufacturing and marketing of construction materials whose composition includes asbestos Ⅱ. Economic Activities to be Allowed only in the Form of Joint Venture with Myanmar Citizens
Manufacture and sale of the following products: Hybrid seeds High-yield seeds and local seeds Grain products (biscuits, various noodles, etc) Confectionary Preserving, manufacturing, canning and marketing of other food products except milk and dairy products Malt, malt liquors and non-aerated products All kinds of spirits beverages and non-beverages All kinds of ice Purified drinking water Cordage, rope, twine of textile fibers Enamelware, cutlery, crockery of all kinds Plastic wares Rubber and plastic
Hides, skins and leathers of all kinds (foot wears, handbags, etc) except synthetic leather Various paper products Paper, paperboard including carbon paper, waxed paper, toilet paper, etc. Chemical products using domestic natural resources Flammable materials, liquid, gas, aerosol Oxidants (Oxygen, Hydrogen, Peroxide) and compressed gas (Acetone, Argon, Hydrogen, Nitrogen, Acetylene) Corrosive chemicals (Sulfuric acid, Nitric acid) Industrial chemical gases, including compressed, liquefied and solid forms Pharmaceutical raw materials High-tech vaccine Structural metal framework for buildings, girders, prefect and precast concrete Locomotive wagon, coaches and locomotive engine
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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5-1. Manufacturing Indsutry (2) Ⅲ.Economic Activities Allowed on Certain Conditions
Type of Economic Activities
Condition
Production of oil and fats from vegetables, animals and other substances
Local raw materials must be used at least 80%
Production of soft beverages, aerated and non-aerated products
Local raw materials must be used at least 20% Local cropping raw materials must be used at least 60% after 3 years factory completion
Production of seasoning powder
Local raw materials must be used 100% within first 3 years
Production of cigarette
Local raw materials must be used at least 50% which is bought by the income earned after exporting local Virginia Export 90% of products The list of local raw materials to be used and exporting program must be attached in the investment proposal
Production of perfume and cosmetics
Local raw materials must be used at least 50% within 5 years after the completion of factory
Manufacturing and marketing of chemical products such as paint, varnish, polish, dye, thinner and lacquer ware paint
Up to 70% of foreign capital is allowed
※Business areas which are required to comply the various regulations and to obtain approvals of specific government ministries are omitted from the above list. ©。 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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5-2. Real Estate Development and Infrastructure Project (1) Ⅰ.Prohibited Economic Activities
Management of electricity distribution network Trading of electric power Inspection services of electrical equipment Air navigation services Sea navigation services
Ⅱ. Economic Activities Allowed only in the Form of Joint Venture
Construction of road network and railway such pier, highway, subway, etc. Development of international standard resort facilities and golf course Development or sale or lease of residential apartment condominium Development or sale of commercial building and office building Development , sale and lease of residential apartments in the residential areas connected to the industrial zone Development of general public housing Development of New Town Building new ships and repairing services at docks
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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5-2. Real Estate Development and Infrastructure Project (2)
Ⅲ.Economic Activities Approved under Certain Conditions
Economic Activities
Condition
Hydropower and coal-fired thermal power plants
Only in the form of joint venture with Myanmar government and on BOT contract
Construction and lease of office buildings and commercial buildings
100% foreign investment can be accepted only on BOT contract In the case of joint venture with Myanmar、Myanmar partner shall contribute the land lease title as capital in kind
※ Business areas which are required to comply the various regulations and to obtain approvals of specific government ministries are omitted from the above list.
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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5-3. Trading and Service Business (1)
Ⅰ.Prohibited Economic Activities
Integrated management of media and publishing business Printing and publishing in Burmese and in other minority ethnic languages 【Financial services and Wholesale and Retail trading is not covered by the Foreign Investment Law. In principal these business are prohibited for foreign capital investments】
Ⅱ. Economic Activities Approved only in the Form of Joint Venture
Ship transport services of passengers and freight Warehousing and port services by container depot Traditional medicine clinics and private hospitals Tourism and travel industry
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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5-3. Trading and Service Business (2)
Ⅲ.Economic Activities Approved under Certain Conditions (1)
Economic Activities
Conditions
Marine and water way transport and related services
Only in the form of joint venture with Myanmar government
The hospitals and clinics by foreign capital
Only in the form of joint venture with Myanmar government
Health Spa services
Operate only in 3-Star and above hotels, or in 5-Star Boutique hotels
Casino business for foreigners only
Approval by Myanmar government Operate only in hotels in restricted areas Myanmar citizens are not allowed to play
Hotel Business
100% foreign capital shall be allowed only for 3-Star and above hotels
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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5-3. Trading and Service Business(3)
Ⅲ.Economic Activities Approved under Certain Conditions (2)
Economic Activities Large-scale retail trading
Condition Only large-scale retail businesses such as supermarkets, department stores, shopping center, etc Floor Area ・Department hypermarket⇒50,000 square feet or more ・Supermarket ⇒12,000~20,000 square feet or more Should not be located near to the existing local stores Priority in trading of domestic products In the case of joint venture, Myanmar capital shall hold at least 40% interests
Small and medium-sized retail trading
Government may approve after 2015 Minimum investment of USD 3 million or more Trading of motorcycle and automobile will be excluded
Franchise Business
Foreign capital may become only franchisor (Franchisees shall be local capital only)
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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5-3. Trading and Service Business (4)
Ⅲ.Economic Activities Approved under Certain Conditions (3)
Economic Activity
Condition
Wholesale trading
Require the recommendation from Ministry of Commerce (It may require large amount of investment, high technology involvement )
Warehouse Business
Only large-scale warehouses In the case of joint venture, Myanmar capital shall hold at least 40% interests
Restaurant, beverage shop in large-scale retail facility
Require area of 2,000-4,000 square feet in supermarket, 5,000 and above square feet in department store
Publishing in foreign languages
In the case of joint venture, Myanmar capital shall hold at least 51% interests At least 2/3 of officers and other key staff must be Myanmar citizen
※ Business areas which are required to comply the various regulations and to obtain approvals of specific government ministries are omitted from the above list.
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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Ⅱ Procedures for Foreign Investment in Myanmar
1. Types of Foreign Investment
Corporation of 100% Foreign Capital
Corporation in the Form of Joint Venture with Local Capital
Branch of Foreign Corporation Business activities can be carried out in the same manner as corporation of 100% foreign capital Representative offices can also be registered as “ Branch of a Foreign Company” under Companies Act
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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2. Registration and Approval Procedure Branch of a foreign corporation Service Company (excluding prohibited or restricted business)
Restricted Business by FIL Businesses eligible for incentives by FIL
Business required approval of the relevant ministries
Inquiry
DICA
Registration of company and the business permit
DICA
Registration of company and the business permit
MIC
Approval of MIC
DICA
Registration of company and the business permit
MIC
Approval of MIC Approval and Conditions
Relevant ministries © 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
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3. Company Registration and Business Permit Submission of the application form (Form A) Payment of Registration Fee Review by DICA
Business Service
Minimum Capital
Company Registration / Proposed Conditions for Business Permit
2 months
USD 50,000 Temporary Permit
Manufacturing
Acceptance of the conditions by the investor
USD 150,000
Payment of 50% of the minimum capital
5 years
Completion of the Procedures © 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
Payment of the full capital
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4. Myanmar Investment Commission (MIC) Approval
Draft land lease agreement
Review by Union Attorney General office
Preparation of Application Form (Form1) and the Business Plan and other attachments
Prior explanation to relevant Ministries and Agencies
※ 【Minimum Capital】 In previous FIL, the minimum capital for Manufacturing - USD500,000 、 Service Business - USD 300,000 In the new FIL, the minimum capital is not explicitly Mentioned. It is assumed to differ on case-by-case basis。
Submission to MIC
Referral to relevant Ministries and Agencies
90 days
Review of the application documents
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.
Issuance of MIC Certificate
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Yasuhide Fujii, CPA Japan Managing Director KPMG Advisory (Myanmar) Ltd.
[email protected] +95-1-527-103 / +95-1-514-862
© 2013 KPMG International Cooperative (“KPMG International”), a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm third parties, nor does KPMG International have any such authority to obligate or bind any member firm. All rights reserved.