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THE
FINANCE MINISTRY
GENERAL DEPARTMENT OF TAXATION
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 3200 TCT/PC-CS
Subject: Guiding the sanctioning of
tax-related administrative violations
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Hanoi,
September 14, 2005
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To:
The provincial/municipal Tax Departments
Recently, the General Department
of Taxation has received a number of reports on some problems in the
implementation of the Finance Ministry’s Circular No.41/2004/TT-BTC of May 18,
2004 guiding the implementation of the Government’s Decree No.100/2004/ND-CP of
February 25, 2004 providing the sanction of administrative violations in the
field of taxation; the General Department of Taxation hereby expresses its
opinions as follows:
1. The sanctioning of
administrative violations involving both aggravating and extenuating
circumstances:
Clause 2, Article 2 of Decree
No.100/2004/ND-CP of February 25, 2004, provides: “The specific fine level
against an administrative violation act shall be the average of the fine
bracket prescribed for such act. In cases where extenuating circumstances are
involved, the fine level shall be reduced but not to below the minimum level of
the fine bracket. In cases where aggravating circumstances are involved, the
fine level would be higher but must not be higher than the maximum level of the
fine bracket.”
The Finance Ministry’s Circular
No.41/2004/TT-BTC of May 18, 2004, Part B on violation acts, forms and levels
of fines, including the sanctioning levels applicable to administrative
violation in the field of taxation (excluding the sanctioning of tax evasion),
provides that if two extenuating circumstances are involved, the fine level
shall be the lowest level of the fine bracket and if two aggravating
circumstances are involved, the fine level shall be the highest level of the
fine bracket. So, if an administrative violation in the field of taxation
involves both the extenuating circumstances and the aggravating circumstances,
the fine level applicable to such violation shall be the result of clearing
between the extenuating circumstances and the aggravating circumstances.
Example: An administrative
violation in the field of taxation involves two aggravating circumstances and
one extenuating circumstance, the fine level applicable to such violation shall
be the fine level prescribed for a violation involving one aggravating
circumstances and vice versa.
2. the procedures to sanction
the late payment of tax and/or fines
- The sanctioning of
administrative violations regarding acts of the late payment of tax, fines
under the guidance at Point 1, Section II, Part B of the Finance Ministry’s
Circular No.41/2004/TT-BTC of May 18, 2004 guiding the application of the
Government’s Decree No.100/2004/ND-CP detailing the sanction shall be executed
on monthly or daily basis when the violating organizations or individuals
voluntarily obey to, and be issued in form of a Decision.
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- the sanctioning competence is
prescribed in Section I, Part C of the above-said Circular No.41/2004/TT-BTC.
The application of coercive tax measures or the transfer of tax evasion cases
with criminal traces to competent bodies for treatment shall fall under the
competence of provincial/municipal Department directors or Sub-Department heads
in line with relevant regulations as the case may be.
3. The measure of suspending the
use of invoices:
Pursuant to Point 1, Section II,
Part B of Circular No. 41/2004/TT-BTC, when it is necessary to suspend the use
of invoices as prescribed under the provision at Item b, Clause 3, Article 5 of
Decree No.100/2004/ND-CP, relevant tax offices must make decisions to suspend
the use of invoices. After the decisions on suspension of the use of invoices
take effect, the tax offices make records of invoice inventory and seal off the
volumes of invoice sold to the enterprise but not yet used and hand them to the
enterprise for preservation.
Where a violating person has
grounds to prove that that person has completely undergone the sanctioning
decisions (with vouchers of payment into the state treasuries...), the tax
offices shall only make records on complete execution of sanctioning decisions
and break the seals on the invoices, handing them to that person for use and
need not to issue decisions to write off the decisions on suspension of the use
of invoices.
4. Regarding the records of
administrative violations: To comply with the form issued together with the
Finance Ministry’s Circular No.41/2004/TT-BTC of May 18, 2004 guiding the
implementation of the Government’s Decree No.100/2004/ND-CP of February 25,
2004 providing the sanctioning of administrative violations in the field of
taxation. Particularly, for the cases of inspection and examination of tax
payers, the inspection and examination records shall comply with the form of
tax inspection and examination, issued together with Decision No.1439
TCT/QD/TTr of October 29, 1999 of the General Director of Taxation, which shall
be used as basis for issuing decisions to sanction tax-related administrative
violations.
5. Regarding the signing of
records of handling of administrative violations: To comply with the provisions
in Clause 2, Article 20, Decree No.134/2003/ND-CP of November 14, 2003 of the
Government detailing the implementation of the Ordinance on Handling of Administrative
Violations:
“2. In cases where the
record-makers have no sanctioning competence, their heads shall be the persons
who have the sanctioning competence and also have to sign the records; in case
of necessity, they shall make verifications before signing the records.”
6. Handling administrative
violations for acts of falsely declaring, evading tax:
Subjects committing acts of
falsely declaring or evading tax shall, apart from the application of remedial
measure being the full payment of evaded tax amounts, be fined with times over
the evaded tax amounts according to provisions of tax law as guided in Section
VI, Part B, Circular No.41/2004/TT-BTC of May 18, 2004 of the Finance Ministry.
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Point 3c, Section VI, Part A of
the above-said Circular No.41/2004/TT-BTC guides the time determined as having
completed an act of tax evasion to sanction act of tax evasion: “ For cases of
tax reimbursement, exemption or reduction, it is the time when the tax offices’
decisions on tax reimbursement, reduction or exemption take implementation
effect...”.
In cases where tax offices
detect through examinations or inspections before reimbursement of value added
tax that units make incorrect declaration to enjoy the tax reimbursement with
amounts larger than the actual amounts, the falsely declared tax amounts shall
not be deducted by the units or not be refunded. The VAT amounts in the
dossiers of application for tax reimbursement after subtracting the falsely
declared VAT amounts must be transferred by the business establishments to the
subsequent tax payment declaration period for clearing against the payable VAT
amounts. Sanctions shall not be imposed on tax evasion acts but on relevant
administration violation acts.
8. The sanctioning of acts of
violation in enroute- transportation of goods, raw materials or materials under
the guidance at Point 2, Section III, Part B of the Finance Ministry’s Circular
No.41/2004/TT-BTC of May 18, 2004 is clearly explained as follows: The goods
transportation enroute must be accompanied with vouchers proving that for the
goods lots tax has been already paid or the goods lots have been managed for
tax collection. If within 24 hours counting from the time of examination and
detection thereof, the subjects can supply the vouchers, the fine levels shall
range between VND one and two million in compliance with the fine bracket; if
they can only supply the vouchers after 24 hours, they shall be considered
having failed to supply the vouchers and be sanctioned for tax evasion acts
provided at Item h, Point 1, Section IV, Part B of Circular No.41/2004/TT-BTC.
9. Regarding the sanctioning of
acts of late registering tax, declaring tax or submitting tax settlement:
Pursuant to the provisions in
Section I, Part B of the Finance Ministry’s Circular No.41/2004/TT-BTC, the
making of records on administrative violations for use as basis for sanctioning
of administrative violations in the field of tax shall be at the time
individuals, organizations fail to comply with the time limits for tax
registration, tax declaration, submission of tax settlement according to
provisions of legal documents on tax.
Particularly for cases of
violation provided for at Point 3a, Point 6, Section I, Part B of Circular
No.41/2004/TT-BTC, having not yet submitted the tax registration, tax
declaration or tax settlement, the tax offices shall make records thereon and
issue the sanctioning decisions. If after issuing the sanctioning decisions,
the subjects still fail to make tax registration, to submit the tax
declarations, tax settlement, the tax offices shall fix the temporarily paid
tax amounts (Point 7, Section I, Part B of Circular No.41/2004/TT-BTC).
10. On the application of forms
of administrative violation record:
- The administrative violation
record form issued together with the Finance Ministry’s Circular
No.41/2004/TT-BTC of May 18, 2004 shall apply to all acts of administrative
violation in the field of taxation.
- For the sanctioning of
administrative violations regarding acts of violation in printing,
distribution, use and management of invoices, the forms prescribed in the
appendix to list of a number of forms of record and decision used in
sanctioning of administrative violations, issued together with the Government’s
Decree No.134/2003/ND-CP of November 14, 2003, shall also apply.
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11. Statute of limitations for complaint:
Pursuant to the provisions of Article 31 of the Law on Complaints and
Denunciations, the statute of limitations for complaint shall be 90 days
counting from the date of receipt of the notices or handling decisions of tax
officers, tax offices. Where the tax law which is promulgated and takes effect
after the effective date of the Law on Complaints and Denunciations provides
for the statute of limitations for complaint differently from Article 31 of the
Law on Complaints and Denunciations, such tax law shall apply.
The General Department of
Taxation hereby notifies the provincial/municipal Departments of Tax thereof
for knowledge and implementation./.
FOR
THE GENERAL DIRECTOR OF TAXATION
DEPUTY GENERAL DIRECTOR
Pham Duy Khuong