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Tổng hợp văn bản hướng dẫn Luật Hợp tác xã 2023

MINISTRY OF FINANCE OF VIETNAM
GENERAL DEPARTMENT OF VIETNAM CUSTOMS
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 3534/TCHQ-TXNK
Re: handling of the absconding enterprise

Hanoi, July 7, 2023

 

To: Department of Customs of Bac Ninh Province.

The General Department of Vietnam Customs has received Official Dispatch No. 1103/HQBN-CBL dated June 15, 2023 of the Department of Customs of Bac Ninh Province reporting and requesting suggestions on the handling of the absconding enterprise. Regarding this matter, the General Department of Vietnam Customs has the following suggestions:

Pursuant to Clause 5 Article 60 of the Law on Customs No. 54/2014/QH13 on entities engaging in export processing and manufacturing, which shall prepare final reports on the management and use of imported materials and supplies and exported goods according to customs laws;

Pursuant to Clause 9 Article 16 of the Law on Export and Import Duties No. 107/2016/QH13 on tax exemption for goods temporarily imported for re-export within a certain period of time;

Pursuant to Clause 6 and Clause 7 Article 16 of the Law on Export and Import Duties No. 107/2016/QH13 on imported raw materials, supplies, and components for the processing, manufacturing, and export of exports eligible for exemption from import duties. Grounds for identifying goods eligible for tax exemption shall comply with Article 10, Article 12 of Decree No. 134/2016/ND-CP dated September 1, 2016 of the Government of Vietnam amended by Clause 4 and Clause 6 Article 1 of Decree No. 18/2021/ND-CP dated March 11, 2021 of the Government of Vietnam;

Pursuant to Clause 5 Article 25 of Decree No. 08/2015/ND-CP dated January 21, 2015 of the Government of Vietnam amended by Clause 12 Article 1 of Decree No. 59/2018/ND-CP dated April 20, 2018 of the Government of Vietnam:

 “5. Regarding exports or imports not subject to export and import duties, excise duties, value-added taxes, environmental taxes, or of which export and import duties are exempted or the tax rate and flat-rate duty are imposed according to the tariff quota, and the cargos are customs released or cleared but then subject to changes in entities that are not required to pay taxes or in purposes for which exports and imports are exempted from paying taxes, such exports and imports are taxed for flat-rate duty or at the rate that conforms to the tariff quota; imports that are raw materials used for processing or manufacturing exports and temporarily imported - re-exported products that have been released or cleared but then their use purpose has changed for domestic consumption, new customs declarations shall be submitted instead. Policies on management of exports and imports and policies on taxes levied on exports and imports shall be implemented at the time when new customs declarations are registered, except cases where all of polices on management of exports and imports have been fully implemented at the time when the initial customs declaration is registered”;

Pursuant to Point d Clause 1 Article 21 of Circular No. 38/2015/TT-BTC dated March 25, 2015 amended by Clause 10 Article 1 of Circular No. 39/2018/TT-BTC dated April 20, 2018 of the Ministry of Finance of Vietnam: “d) In case of domestic sale or repurposing of exports or imports, the taxpayer shall declare and pay taxes and fines (if any) as prescribed”.

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Pursuant to Article 52 of the Law on Tax Administration No. 38/2019/QH14 and Article 17 of Decree No. 126/2020/ND-CP dated October 19, 2020 of the Government of Vietnam on cases where customs authorities impose tax liability on exports and imports;

Pursuant to Point b Clause 10 Article 13 of Decree No. 126/2020/ND-CP dated October 19, 2020 of the Government of Vietnam on the case where a taxpayer’s business is shut down, not operating at the registered address, dissolved, or bankrupt before fulfillment of tax obligations, in which case the customs authority shall calculate tax and send a tax notice to relevant organizations and individuals.

Pursuant to Point b Clause 5 Article 200 of the Criminal Code No. 100/2015/QH13 (amended by Clause 47 Article 1 of Law No. 12/2017/QH14) and Point b Clause 2 Article 200 of the Criminal Code No. 100/2015/QH13 on the case where any legal entity that commits tax evasion from 300.000.000 VND to below 1.000.000.000 VND shall be fined from 1.000.000.000 VND to 3.000.000.000 VND;

Pursuant to Clause 1 Article 62 of the Law on Handling of Administrative Violations No. 15/2012/QH13: “1. When considering a violating case to decide fines, if deeming that the violating acts have criminal signs, the competent person shall immediately transfer the violating case to the criminal procedure authority”.

According to the above regulations, if tax-free temporarily imported goods are not re-exported, enterprises shall declare and pay import duties as per the regulation. Regarding imported raw materials and supplies for processing and manufacturing of exports that are not put into such operation or stored at the manufacturers and storage locations as disclosed to customs authorities, if enterprises fail to submit final reports on such imports, they shall be ineligible for tax exemption according to Article 10 and Article 12 of Decree No. 134/2016/ND-CP dated September 1, 2016, amended by Clause 2 and Clause 6 Article 1 of Decree No. 18/2021/ND-CP dated March 11, 2021 of the Government of Vietnam.  Customs authorities shall impose tax liability according to the Law on Tax Administration and collect tax payments as per regulation.

However, because the enterprise does not operate at the registered business address and its legal representative has exited Vietnam, the Department of Customs of Bac Ninh Province shall calculate tax and prepare tax notices to determine the tax payable by concerned organizations and individuals as prescribed by laws. After sending the tax notices, the Department of Customs of Bac Ninh Province shall perform measures to collect tax debts as per regulation while continuing to review all of the documents and consulting the public security authority in writing, specifying the details of the case for it to consider and handle the crime of tax evasion according to the Criminal Code.

The Department of Customs of Bac Ninh Province shall re-inspect the monitoring and management of enterprises and impose disciplinary actions on relevant units and individuals (if any) when they fail to promptly perform tax administration and tax recovery measures according to the Law on Tax Administration (the enterprise has not operated at its registered business location since March 2020, its Director has exited Vietnam since November 2020 but by May 2021, the department of Customs of Bac Ninh Province only performed the verification of the enterprise and failed to perform measures to issue tax notices and coercive enforcement of tax administrative decisions). 

For your information and compliance./.

 

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PP. GENERAL DIRECTOR
DEPUTY GENERAL DIRECTOR




Hoang Viet Cuong

 

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