Nghị định 102/2021/NĐ-CP sửa đổi Nghị định xử phạt vi phạm hành chính lĩnh vực thuế

DECREE

AMENDMENTS TO SOME ARTICLES OF DECREES ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON TAX AND INVOICING; CUSTOMS; INSURANCE BUSINESS AND LOTTERY BUSINESS; MANAGEMENT AND USE OF PUBLIC PROPERTY, THRIFT PRACTICE AND WASTEFULNESS COMBAT; NATIONAL RESERVE; STATE TREASURY; ACCOUNTING AND INDEPENDENT AUDIT

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Amendments to some Articles of the Law on Government Organization and Law on Local Government Organization dated November 22, 2019;

Pursuant to the Law on Penalties for Administrative Violations dated June 20, 2012;

Pursuant to the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations dated November 13, 2020;

Pursuant to the Law on Tax Administration dated June 13, 2019;

Pursuant to the Law on Customs dated June 23, 2014;

...

...

...

Pursuant to the Law on Thrift Practice and Wastefulness Combat dated November 26, 2013;

Pursuant to the Law on National Reserve dated November 20, 2012;

Pursuant to the Law on Accounting dated November 20, 2015;

Pursuant to the Law on Independent Audit dated March 29, 2011;

Pursuant to the Law on Business Insurance dated December 09, 2000;

Pursuant to the Law on Amendments to some Articles of the Law on Business Insurance and Law on Intellectual Property dated June 14, 2019;

Pursuant to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the request of the Minister of Finance;

The Government hereby promulgates a Decree on amendments to some Articles of Decrees on penalties for administrative violations against regulations on tax and invoicing; customs; insurance business and lottery business; management and use of public property, thrift practice and wastefulness combat; national reserve; state treasury; accounting and independent audit.

...

...

...

AMENDMENTS TO DECREES ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS AGAINST REGULATIONS ON TAX AND INVOICING; CUSTOMS; INSURANCE BUSINESS AND LOTTERY BUSINESS; MANAGEMENT AND USE OF PUBLIC PROPERTY, THRIFT PRACTICE AND WASTEFULNESS COMBAT; NATIONAL RESERVE; STATE TREASURY; ACCOUNTING AND INDEPENDENT AUDIT

Article 1. Amendments to some Articles of the Government’s Decree No. 125/2020/ND-CP dated October 19, 2020 on penalties for administrative violations against regulations on tax and invoicing

1. Point a Clause 1 of Article 8 is amended as follows:

“a) The prescriptive time limit for imposition of an invoice-related administrative penalty shall be 02 years.”

2. Clause 2 of Article 22 is amended as follows:

“2. Fines ranging from VND fines VND 20,000,000 to VND 50,000,000 shall be imposed for the act of giving or selling invoices, except for the case specified in Clause 1 of this Article.”

3. Point h is added to Clause 4 of Article 24 as follows:

“h) Issuing invoices which do not contain all compulsory contents as prescribed.”

4. Clauses 3 and 4 of Article 26 are amended as follows:

...

...

...

a) Causing the loss, burning or damage of invoices already released or purchased from tax authorities even though they have not been issued yet;

b) Causing the loss, burning or damage of issued invoices (the replicas intended for clients) during use although sellers have already declared or paid taxes, or have had documents or records evidencing the sale of goods or the provision of services;

If such loss, burning or damage takes place through the buyer's fault, both the seller and the buyer must keep a record of such incident.

c) Causing the loss, burning or damage of invoices issued but not yet submitted for completion of tax declaration;

Relevant parties must make a record of the loss, burning or damage.

4. Fines ranging from VND 5,000,000 to VND 10,000,000 shall be imposed for the act of causing the loss, burning and damage of issued invoices, or invoices already submitted for completion of tax declaration or those are in use or storage, except the cases specified in Clauses 1, 2 and 3 of this Article.”

5. Point b Clause 2 of Article 42 is amended as follows:

“b) They shall not be charged during the interval before the fine reduction or exemption decision is issued;”

6. Article 43 is amended as follows:

...

...

...

1. Cases of exemption and reduction of fines for tax or invoice-related administrative violations; power and procedures for exemption and reduction of fines for tax or invoice-related administrative violations are specified in Article 77 of the Law on Penalties for Administrative Violations and Clause 38 Article 1 of the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations and Clauses 2, 3, 4 and 5 of this Article.

2. After getting away the deduction of the insured value or indemnity value (if any), the maximum amount of exemption or reduction shall be equal to the remaining amount of fine determined in the fine charge decision and does not exceed the value of damaged goods or services.

If a taxpayer commits a tax-related violation in a force majeure event as prescribed by the Law on Tax Administration, the documents proving the value of the damaged property or goods and insured value or indemnity value include:

a) The written inventory determining the damaged value issued by the taxpayer or the taxpayer’s legal representative;

b) The written document or record stating the damaged value which is issued by the competent appraising body in accordance with regulations of laws (an original copy, notarized or certified copy), unless otherwise stated in Point c of this Clause;

c) The set of documents and records stating the indemnity against the material loss accepted by the insurance agency as required by laws (original copies or notarized or certified copies) (if any);

d) The set of documents and records stating compensation liabilities that must be accepted by the insurance agency as required by laws (original copies or notarized or certified copies) (if any);

3. Exemption and reduction of fines for tax or invoice-related administrative violations shall not be applied to the cases in which penalty charge decisions have been completely executed.

4. If the fine exemption or reduction is granted, the reduction or exemption from the amount of interest on late payment of the fine shall be applied as well.

...

...

...

Article 2. Amendments to some Articles of the Government’s Decree No. 128/2020/ND-CP dated October 19, 2020 on penalties for administrative customs offences

1. Article 2a is added after Article 2 as follows:

 “Article 2a. Principles of imposing penalties for administrative customs offences in cases where multiple administrative offences are committed

Any organization or individual that commits multiple administrative offences shall face a penalty for each offence, unless an offence in Point a, b or d Clause 1, Point a Clause 3 Article 7; Clause 1, 2 or 3, Point d Clause 4, Point a, b, c or d Clause 6 Article 8; Point a Clause 1, Point b Clause 2 Article 11 of this Decree which involves multiple declarations/documents in the customs dossier is committed at different times of customs declaration registration and discovered at the same time but has yet to be considered, a penalty shall be imposed for that offence while the repeat of that offence shall be taken into account as an aggravating circumstance provided that the prescriptive time limit for penalty imposition has not yet expired.”

2. Article 4 is amended as follows:

a) Clause 2 is amended as follows:

“2. The prescriptive time limit for imposing penalties for other customs offences is similar to that in Article 6 of the Law on Penalties for Administrative Violations 2012 and Clause 4 Article 1 of the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations, except for the cases specified in Clause 1 of this Article.

The dates which are used to determine the prescriptive time limit for imposing penalties for other customs offences are specified in Clauses 5 and 6 of this Article.”

b) Clauses 5 and 6 are added as follows:

...

...

...

a) The ending date of an administrative offence specified in Article 7 hereof is the date on which the customs procedures are followed or tax dossier is submitted;

b) The ending date of an administrative offence specified in Article 8 hereof is the date on which the customs declaration is registered; the date on which the goods manifest, the passenger list or the baggage declaration included in the dossier on the vehicle entering and leaving Vietnam or the vehicle in transit is submitted;

c) The ending date of an administrative offence specified in Article 10 hereof is the date on which the person entering or leaving Vietnam completes customs declaration;

d) The ending date of an administrative offence specified in Point a Clause 1 Article 11 hereof is the date on which the documents in the customs dossier are submitted, produced or sent to the customs authority according to the registered customs declaration;

dd) The ending date of an administrative offence specified in Point b Clause 1 Article 11 hereof is the date on which the taxpayer makes an amendment to the statement;

e) The ending date of an administrative offence specified in Point c Clause 2 Article 11 hereof is the date on which the taxpayer submits the statement;

g) The ending date of an administrative offence specified in Point a Clause 7 Article 11 hereof is the date on which the documents are declared, submitted or produced to the customs authority;

h) The ending date of an administrative offence specified in Point b Clause 7 Article 11 hereof is the date on which the illegal use of another entity’s account or digital signature to follow customs procedures is terminated;

i) The ending date of an administrative offence specified in Point c Clause 7 Article 11 hereof is the illegal access to, falsification or destruction of the customs information system is terminated;

...

...

...

6. The administrative offences specified in this Decree other than those specified in Clause 5 of this Article are treated as in-progress offences.”

3. Points dd and e are added after Point d Clause 3 of Article 5 as follows:

“dd) With respect to fines, the specific amount of fine for an administrative offence prescribed in Article 7, 8, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23 or 24 or Clause 1, 3 or 4 Article 25 hereof must be the average of specific fines in the range for such offence. For a mitigating circumstance that exists, the average fine for an offence in the fine range shall be reduced by 10% provided that the fine amount imposed for such offence is not lower than the minimum fine in that range. Meanwhile, for an aggravating circumstance that exists, the average fine for an offence in the fine range shall be increased by 10% provided that the fine amount imposed for such offence is not greater than the maximum fine in that range.

e) When determining the fine amounts imposed on entities that commit offences under both aggravating and mitigating circumstances, the aggravating circumstance shall be reduced or relieved according to the one-for-one rule under which a mitigating circumstance is offset against an aggravating circumstance.

4. Article 29 is amended as follows:

“Article 29. Power to impose penalties of the customs

Directors of Sub-departments of Customs, Directors of provincial, inter-provincial and city Customs Departments, Director of the Smuggling Prevention Department, Director of the Department of Post-Clearance Inspection and the Director General of the General Department of Vietnam Customs are entitled to impose penalties for the acts of making understatement of tax payable or overstatement of tax eligible for refund, remission or cancellation; tax evasion; commercial banks' failure to transfer outstanding tax from the taxpayer’s account to the state budget account at the request of the tax authority as specified in Points b, c and d Clause 2 Article 138 of the Law on Tax Administration.

For other administrative offences, the power to impose penalties of the customs is as follows:

1. Customs officials on duty are entitled to:

...

...

...

b) impose a maximum fine of VND 500,000 upon an individual and VND 1,000,000 upon an organization.

2. Team leaders and group leaders of Sub-departments of Customs; team leaders of control teams affiliated to provincial, inter-provincial or central-affiliated city Customs Departments; team leaders of Sub-departments of Post-Clearance Inspection are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 5,000,000 upon an individual and VND 10,000,000 upon an organization.

3. Directors of Sub-departments of Customs; Sub-departments of Post-Clearance Inspection, leaders of control teams affiliated to provincial, inter-provincial or central-affiliated city Customs Departments; leaders of criminal investigation teams, leaders of smuggling prevention teams, captains of maritime control flotillas; leaders of anti-smuggling, counterfeit product control and intellectual property teams affiliated to the Smuggling Investigation and Prevention Department; Directors of Post-clearance Inspection Sub-departments as an affiliate of the Post-clearance Inspection Department are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 25,000,000 upon an individual and VND 50,000,000 upon an organization;

c) confiscate the exhibit or instrumentality whose value does not exceed VND 50,000,000 if the administrative offence is committed by an individual or VND 100,000,000 if the administrative offence is committed by an organization;

d) enforce the remedial measures mentioned in this Decree.

...

...

...

a) issue warnings;

b) impose a maximum fine of VND 50,000,000 upon an individual and VND 100,000,000 upon an organization;

c) confiscate any exhibit involved in commission of administrative offence;

d) enforce the remedial measures mentioned in this Decree.

5. The Director of the General Department of Vietnam Customs is entitled to:

a) issue warnings;

b) impose a maximum fine of VND 100,000,000 upon an individual and VND 200,000,000 upon an organization;

c) confiscate any exhibit involved in commission of administrative offence;

d) enforce the remedial measures mentioned in this Decree.”

...

...

...

a) Clause 2a is added after Clause 2 as follows:

 “2a. The leaders of Task Force Teams for drug and crime prevention and control which are put under the control of Task Force Commissions are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 10,000,000 upon an individual and VND 20,000,000 upon an organization;

c) confiscate the exhibit or instrumentality whose value does not exceed VND 20,000,000 if the administrative offence is committed by an individual or VND 40,000,000 if the administrative offence is committed by an organization;

d) enforce the remedial measures mentioned Point dd Clause 5 Article 5 of this Decree.”

b) Clause 3 is amended as follows:

“3. Commanding Officers of Border Guard Posts, Captains of Naval Border Guard Flotillas, Commanders of the Border Guard Commands at port border gates are entitled to:

a) issue warnings;

...

...

...

c) confiscate the exhibit or instrumentality whose value does not exceed VND 40,000,000 if the administrative offence is committed by an individual or VND 80,000,000 if the administrative offence is committed by an organization;

d) enforce the remedial measures mentioned Points a and dd Clause 5 Article 5 of this Decree.”

c) Clause 3a is added after Clause 3 as follows:

 “3a. Leaders of Task Force Commissions for Drug and Crime Prevention and Control as an affiliate of the Department of Drug and Crime Prevention and Control under the control of the Command of Border Guards are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 50,000,000 upon an individual and VND 100,000,000 upon an organization;

c) confiscate the exhibit or instrumentality whose value does not exceed VND 100,000,000 if the administrative offence is committed by an individual or VND 200,000,000 if the administrative offence is committed by an organization;

d) enforce the remedial measures mentioned Points a, dd and e Clause 5 Article 5 of this Decree.”

d) Clause 4 is amended as follows:

...

...

...

a) issue warnings;

b) impose a maximum fine of VND 100,000,000 upon an individual and VND 200,000,000 upon an organization;

c) confiscate any exhibit involved in commission of administrative offence;

d) enforce the remedial measures mentioned Points a, dd and e Clause 5 Article 5 of this Decree.”

6. Point c Clause 4, Clause 5 and Clause 6 of Article 31 are amended as follows:

a) Point c of Clause 4 is amended as follows:

“c) confiscate the exhibit or instrumentality whose value does not exceed VND 40,000,000 if the administrative offence is committed by an individual or VND 80,000,000 if the administrative offence is committed by an organization;”

b) Clause 5 is amended as follows:

“5. Captains of Naval Border Guard Squadrons; Heads of Reconnaissance Commissions; Heads of Task Force Commissions for Drug Crime Prevention and Control under the control of the Command of Coast Guard of Vietnam are entitled to:

...

...

...

b) impose a maximum fine of VND 30,000,000 upon an individual and VND 60,000,000 upon an organization;

c) confiscate the exhibit or instrumentality whose value does not exceed VND 60,000,000 if the administrative offence is committed by an individual or VND 120,000,000 if the administrative offence is committed by an organization;

d) enforce the remedial measures mentioned Points a and dd Clause 5 Article 5 of this Decree.”

c) Clause 6 is amended as follows:

“6. Commanders of Regional Coastguard Command Centers and Director of the Department of Operations and Legislation under the control of the Command of Coast Guard of Vietnam are entitled to:

a) issue warnings;

b) impose a maximum fine of VND 50,000,000 upon an individual and VND 100,000,000 upon an organization;

c) confiscate any exhibit involved in commission of administrative offence;

d) enforce the remedial measures mentioned Points a and dd Clause 5 Article 5 of this Decree.”

...

...

...

a) The introductory paragraph of Clause 4 is amended as follows:

“4. In case an administrative offence case involves multiple acts of offence, the power to impose penalties for an administrative offence shall be determined according to the following principles:”

b) Title of Clause 6 is amended as follows: “Thẩm quyền xử phạt vi phạm hành chính của Hải quan” (“Power to impose penalties for administrative offences of the customs”)

c) Points b and c of Clause 6 are amended as follows:

“b) Team Leaders, Group Leaders of Customs Sub-departments; Leaders of Groups in Control Teams affiliated to provincial, inter-provincial or central-affiliated city Customs Departments; Leaders of Teams in Post-clearance Inspection Sub-departments has the power to impose penalties for the administrative offences specified in Points a, b and d Clause 1 Article 7; Clause 2 Article 7; Points a, b, c, d, dd, e and h Clause 3 Article 7; Point c Clause 4 Article 7; Clauses 1, 2, 3 and 4 Article 8; Points a, b, c and d Clause 6 Article 8; Point a Clause 1, Point a Clause 2, Point a Clause 3, Point a Clause 5 Article 10; Clauses 1, 2 and 3 Article 11; Clause 1 Article 12; Clause 1 Article 13; Clauses 1 and 2 Article 23; Clauses 1 and 2 Article 24 of this Decree;

c) Directors of Sub-departments of Customs; Sub-departments of Post-Clearance Inspection, leaders of control teams affiliated to provincial, inter-provincial or central-affiliated city Customs Departments; leaders of criminal investigation teams, leaders of smuggling prevention teams, captains of maritime control flotillas; leaders of anti-smuggling, counterfeit product control and intellectual property teams affiliated to the Smuggling Investigation and Prevention Department; Directors of Post-clearance Inspection Sub-departments as an affiliate of the Post-clearance Inspection Department has the power to impose fines, additional penalties and remedial measures against the administrative offences in Article 7; Article 8; Points a, b and c Clause 1, Clause 2, Clause 3, Point a Clause 4, Points a and b Clause 5 Article 10; Clauses 1, 2, 3, 4, 5 and 6 Article 11; Points a, b and c Clause 8, Clause 9, Clause 10 Article 11; Clauses 1, 2, 3, 4, 5, 7 and 8 Article 12; Clauses 1, 2, 3, 4, 7 and 8 Article 13; Points a, b, c and d Clause 1, Clause 4, Clause 5 Article 15; Points a, b and c Clause 1, Clause 2, Clause 3 Article 16; Points a, b and c Clause 1, Clause 2, Clause 3 Article 17; Article 18 (unless the fines are beyond the competence of these persons); Article 19; Clauses 1, 2, 3, 7 and 8 Article 20; Clauses 1, 2, 4 and 5 Article 21; Clauses 1 and 2, Points a, b, c, d, dd, e and g Clause 3, Clause 4 Article 22; Article 23; Clauses 1 and 2 Article 24; Clauses 1, 3 and 4 Article 25 of this Decree;”

d) Clause 9 is amended as follows:

“9. At the positions along the national border where the customs organization is not available, the local Border Guard has the power to impose fines, additional penalties and remedial measures in accordance with Article 30 of this Article for the administrative customs offences specified in Article 13 of this Decree. To be specific:

a) Senior officers of the Border Guard officers on duty have the power to impose penalties for the offences in Clause 1 Article 13 of this Decree;

...

...

...

c) Commanding Officers of Border Guard Posts, Captains of Naval Border Guard Flotillas, Commanders of the Border Guard Commands at port border gates have the power to impose penalties for the administrative offences in Clause 1, Clause 2, Clause 3, Clause 4, Clause 7, Points b and d Clause 8 Article 13 of this Decree;

d) Leaders of Task Force Commissions for Drug and Crime Prevention and Control as an affiliate of the Department of Drug and Crime Prevention and Control under the control of the Command of Border Guards have the power to impose penalties for the administrative offences in Article 13 of this Decree;

dd) Chief Commander of provincial-level Border Guards; Captains of Naval Border Guard Squadrons, and Director of the Department of Drug and Crime Prevention and Control affiliated to the Command of Border Guards have the power to impose penalties for the administrative offences in Article 13 of this Decree.”

dd) Points dd and e of Clause 10 are amended as follows:

“dd) Captains of Naval Border Guard Squadrons; Heads of Reconnaissance Commissions; Heads of Task Force Commissions for Drug Crime Prevention and Control under the control of the Command of Coast Guard of Vietnam have the power to impose penalties for the administrative offences in Clauses 1, 2, 3 and 4, Points b, c, d and dd Clause 5, Clause 7, Points b, c and d Clause 8 Article 13 of this Decree;

e) Commanders of Regional Coastguard Command Centers and Director of the Department of Operations and Legislation under the control of the Command of Coast Guard of Vietnam have the power to impose penalties for the administrative offences in Clauses 1, 2, 3, 4, 5, 6 and 7, Points b, c and d Clause 8 Article 13 of this Decree.”

8. Article 33a is added after Article 33 as follows:

 “Article 33a. Implement remedial measures

1. When an individual or organization is compelled to remove from the territory of the Socialist Republic of Vietnam or re-export the exhibit or instrumentality involved in an administrative offence, the customs authority shall carry out a close supervision from the place of storing goods involved in the offence to the border checkpoint of re-export.

...

...

...

2. The enforced removal from the territory of the Socialist Republic of Vietnam or enforced re-export at the import checkpoint of an exhibit or instrumentality involved in an administrative offence shall be carried out as follows:

a) If the exhibit or instrumentality involved in the administrative offence is being stored at the border checkpoint area, the customs authority must carry out a close supervision thereof to ensure that it has been removed at the checkpoint of import. The supervision result is specified in a record for keeping purpose;

b) If the exhibit or instrumentality involved in the administrative offence is no longer stored at the border checkpoint area, the customs authority must carry out a close supervision from the place of storing the exhibit or instrumentality involved in the offence to the border checkpoint through which it was imported for re-export. The supervision result must be certified by the border checkpoint customs in writing or by other electronic means and sent back to the customs authority that issued the administrative penalty imposition decision within 05 (five) days from the date on which the exhibit or instrumentality involved in an administrative offence is removed from the territory of Vietnam or re-exported for keeping of the case file.

3. When an individual or organization is compelled to transport the goods involved in the merchanting trade transactions, goods being moved to another custom post outside the checkpoint area or temporarily imported goods at the correct border checkpoint or on the correct route, the Sub-department of Customs from which the goods are transported shall supervise the goods transported and cooperate with the Sub-department of Customs to which the goods are transported or related agencies to ensure that the goods are transported at the correct border checkpoint or on the correct route.

4. Upon being compelled to discard a goods package or label that is changed because of an offence, the individual or organization involved in the administrative offence may strip, remove or restore the original condition of the goods package or label.

Upon being compelled to remove the illegal elements of the goods before they are removed from the territory of the Socialist Republic of Vietnam, the individual or organization involved in the administrative offence may delete, strip or remove such elements.

5. Upon being compelled to destroy the goods or item detrimental to human, animal and plant health and the environment or indecent material, the individual or organization involved in the offence shall, according to the nature and characteristics of the goods or item and environmental safety requirements, destroy it using the following methods: use of chemicals, mechanical method, burning, burial or another method prescribed by law. The customs authority shall supervise the direct destruction or carry out supervision by other technical means (if any).

Upon destruction of goods or items, the individual or organization involved in the administrative offence shall make a destruction record according to the form enclosed with the Decree on elaboration of some Articles and measures for implementation of the Law on Penalties for Administrative Violations.

The destruction record shall bear signatures of participants in the destruction and representative of the customs authority supervising the destruction. After the destruction, the individual or organization involved in the administrative offence shall submit 01 destruction record and documents about the destruction to the customs authority that issued the administrative penalty imposition decision, within 05 (five) days from the date of destruction.

...

...

...

7. Upon being compelled to pay the outstanding tax; the tax incorrectly exempted, reduced, refunded or cancelled which is written on the decision on tax imposition, the individual or organization involved in the administrative offence shall make a full payment thereof to the State Treasury’s account and send 01 photocopy of the payment slip (if making the payment in cash) to the customs authority that issued the administrative penalty imposition decision for keeping of the case file.

8. Upon being compelled to stick the “Vietnam duty not paid” stamp, the individual or organization involved in the administrative offence shall stick the stamp before selling goods at a duty-free shop or transferring goods to the purchaser in the case where the goods are directly dispatched from the duty-free warehouse to the purchaser. The “Vietnam duty not paid” stamp location shall comply with the Government’s regulations on duty-free business.”

9. Clause 1 of Article 33 is amended as follows:

“1. The procedures for imposing penalties and implementing decisions to impose penalties for customs offences shall comply with Chapter III Part 2 of the Law on Penalties for Administrative Violations 2012 and Clauses 29 through 45 Article 1 of the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations; Chapter XIV Section 1 Chapter XV of the Law on Tax Administration 2019; Chapter XIV, section 1 Chapter XV of the Law on Tax Administration 2019; Chapter VII of the Government’s Decree No. 126/2020/ND-CP dated October 19, 2020 on elaboration of the Law on Tax Administration, and regulations of this Decree.”

10. Article 34 is amended as follows:

“Article 34. Exemption and reduction of fines for administrative customs offences

The exemption and reduction of fines for administrative customs offences shall be granted as prescribed in Article 77 of the Law on Penalties for Administrative Violations 2012 and Clause 38 Article 1 of the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations.”

Article 3. Amendments to some Articles of the Government’s Decree No. 98/2013/ND-CP dated August 28, 2013 on amendments to Decree No. 98/2013/ND-CP dated August 28, 2013 on penalties for administrative violations in insurance business and lottery business amended by the Government’s Decree No. 48/2018/ND-CP dated March 21, 2018 and Decree No. 80/2019/ND-CP dated November 01, 2019

1. Title of Article 3 is amended, Point c is added to Clause 2 and Clauses 3, 4 and 5 are added to Article 3 as follows:

...

...

...

“Article 3. Penalties and prescriptive time limits for imposing penalties for administrative violations”

b) Point b is added after Point b of Clause 2 as follows:

“c) Principles of applying the suspension of the certificate of eligibility for lottery business within a defined time limit:

When determining the time limit for suspension of the certificate of eligibility for lottery business of an entity that commits a violation under both aggravating and mitigating circumstances, the aggravating circumstance shall be reduced or relieved according to the one-for-one rule under which a mitigating circumstance is offset against an aggravating circumstance.

The specific time limit for suspension of the certificate of eligibility for business for an act of violation is the average of total time length of the time frame for such suspension for that act. If there is any mitigating circumstance, the time limit for such suspension may be reduced by 01 month for each mitigating circumstance but must not be lower than the minimum limit of the time frame for such suspension; if there is any aggravating circumstance, the time limit for such suspension may be increased by 01 month for each aggravating circumstance but must not exceed the maximum limit of the time frame for such suspension.”

c) Clauses 3, 4 and 5 are added after Clause 2 of Article 3 as follows:

“3. The prescriptive time limits for imposing penalties for administrative violations against regulations on insurance business:

a) The prescriptive time limits for imposing penalties for administrative violations against regulations on insurance business is specified in Article 6 of the Law on Penalties for Administrative Violations.

b) For an in-progress administrative violation against regulations in insurance business, the prescriptive time limit begins from the date on which the competent law enforcement officer detects such violation. For a completed administrative violation, the prescriptive time limit begins from the date on which that violation terminates. The ending date of a violation which is used to determine the prescriptive time limit for imposing penalties for administrative violations against regulations on insurance business is the date on which regulations of law are correctly implemented. In case of failure to determine the date on which regulations of law are correctly implemented, the ending date of a violation which is used to determine the prescriptive time limit for imposing penalties for administrative violations against regulations on insurance business is the date on which the violation is detected.

...

...

...

- For the act of modifying, falsifying or forging a document in the approved application for establishment and operation license specified in Clause 1 Article 5, Clause 1 Article 6 of this Decree, the ending date of such act of violation is the date on which the approved application is found being erased or modified resulting in change of the content;

- For the failure to issue internal procedures or guidelines specified in Point b Clause 3 Article 9 and Point a Clause 1 Article 12 of this Decree, the ending date of such violation is the date on which the procedures are issued as prescribed by law;

- For act of violating reporting regulations specified in Point a Clause 2 Article 18, Point e Clause 3 Article 18, Point b Clause 1 Article 21 and Point a Clause 1 Article 32 of this Decree, the ending date of such violation is the date of reporting.

4. Prescriptive time limits for imposing penalties for administrative violations against regulations on lottery business:

a) The prescriptive time limit for imposing an administrative violation against regulations on lottery business shall be 01 year.

b) For an in-progress administrative violation against regulations in lottery business, the prescriptive time limit begins from the date on which the competent law enforcement officer detects such violation. For a completed administrative violation, the prescriptive time limit begins from the date on which that violation terminates. The ending dates of violations which are used to determine the prescriptive time limits for imposing penalties for several administrative violations in Chapter III of this Decree are prescribed as follows:

- For the act of making erasures or alternations resulting in change of content of the certificate of eligibility for business or the documents in the approved application for lottery agent, in case of failure to determine the date of making such erasures or alternations, the ending date of such violation is the date of discovering such erasures or alternations;

- For the failure to formulate and promulgate regulations on elaboration of procedures for recall of unsold lottery tickets, failure to formulate and make publicly available the rules of drawing, failure to promulgate the Regulation on management and exploitation of computer-generated lottery business server data specified in Clause 1 Article 40, Clause 1 Article 44 and Clause 1 Article 49 of this Decree, the ending date of the violation is the date on which the regulations on elaboration of procedures for recall of unsold lottery tickets are promulgated, rules of drawing are publicly made available and the Regulation on management and exploitation of computer-generated lottery business server data is promulgated.

- For act of violating reporting regulations specified in Article 51 of this Decree, the ending date of such violation is the date of reporting.

...

...

...

a) When determining the fine amount imposed on an entity that commits a violation under both aggravating and mitigating circumstances, the aggravating circumstance shall be reduced or relieved according to the one-for-one rule under which a mitigating circumstance is offset against an aggravating circumstance.

b) The specific amount of fine for a violation is the average of specific fines in the range for such violation. For a mitigating circumstance that exists, the average fine for a violation in the fine range shall be reduced by 10% provided that the fine amount imposed for such violation is not lower than the minimum fine in that range. Meanwhile, for an aggravating circumstance that exists, the average fine for a violation in the fine range shall be increased by 10% provided that the fine amount imposed for such violation is not greater than the maximum fine in that range.”

2. Point b Clause 1 of Article 19 is amended as follows:

“b) Failure to comply with the principles, terms, and fee schedule as prescribed by law;”

3. Article 33a is added after Article 33 as follows:

 “Article 33a. The power to make records of administrative violations against regulations on insurance business

1. Upon discovering administrative violations against regulations on insurance business, the titles specified in Article 33 hereof have the power to make records of administrative violations as prescribed.

2. Competent persons on duty in the field of insurance business according to the legislative documents or administrative documents promulgated by a competent authority or person must promptly make written records of administrative violations and transfer them to a competent person for penalty imposition.”

4. Point d Clause 2 of Article 33 is amended as follows:

...

...

...

5. Article 51a is added after Article 51 as follows:

 “Article 51a. The power to make records of administrative violations against regulations on lottery business

The persons competent to impose penalties specified in Article 52 of this Decree or competent persons on duty in the field of lottery business have the power to make records of administrative violations.”

6. Point c Clause 2 of Article 52 is amended as follows:

c) confiscate the exhibit or instrumentality whose value does not exceed VND 100,000,000 if the administrative violation is committed by an individual and VND 200,000,000 if the administrative violation is committed by an organization.”

Article 4. Amendments to some Articles of the Government’s Decree No. 63/2019/ND-CP dated July 11, 2019 on penalties for administrative violations against regulations on management and use of public property; thrift practice and wastefulness combat; national reserve; state treasury

1. Article 3 is amended as follows:

“Article 3. Prescriptive time limits for imposing penalties for administrative violations

1. The prescriptive time limits for imposing penalties for administrative violations against regulations on management and use of public property; thrift practice and wastefulness combat; national reserve; state treasury specified in this Decree shall be 01 year. The prescriptive time limits for imposing administrative violations relating to public property being house, land and infrastructure property invested in and managed by the State shall be 02 years.

...

...

...

a) For a completed administrative violation, the prescriptive time limit begins from the date on which that violation terminates;

b) For an in-progress administrative violation, the prescriptive time limit begins from the date on which that violation is detected;

c) The administrative violations against regulations on investment in or procurement of public property specified in Article 6 of this Decree shall be completed ones in case where the investment in or procurement is completed and the property has been transferred to a regulatory authority, organization or unit for management and use; and shall be treated as in-progress ones in the remaining cases;

d) The administrative violations against regulations on lease of property specified in Article 7 of this Decree shall be completed ones in case where the property has been leased and put into use; and shall be treated as in-progress ones in the remaining cases;

dd) The administrative violations against regulations on encroaching upon working offices or public service facilities specified in Article 11 of this Decree shall be determined as follows:

- The adjacent land user’s act of deliberately moving boundary markers of its/his/her land plot with the aim of expanding land area or building a work encroaching upon the land area of a working office or public service facility, regulatory authority, organization or unit shall be treated as a completed administrative violation; treated as an in-progress violation in the remaining cases.

- The organization’s or individual’s act of using the house or land area of the working office or public service facility, regulatory authority, organization or unit without permission shall be treated as an in-progress administrative violation.

e) The in-progress administrative violations against regulations on management and use of public property are the ones specified in Articles 8, 9, 10, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25 and 26 of this Decree.

3. The ending dates of in-progress and completed administrative violations which are used to determine the prescriptive time limits for imposing penalties for administrative violations against regulations on thrift practice and wastefulness combat are prescribed as follows:

...

...

...

a) The administrative violation specified in Clause 2 Article 32 of this Decree shall be treated as a completed one if the act of using state budget-derived fund for improper purposes or inconsistently with its principles is completed; and shall be treated as an in-progress one in the remaining cases;

c) The administrative violation specified in Clause 2 Article 32 of this Decree shall be treated as a completed one if the act of using state budget-derived fund in a wasteful manner that is inconsistent with standards, technical regulations or beyond the prescribed limits is completed; and shall be treated as an in-progress one in the remaining cases;

d) The administrative violation specified in Clause 1 Article 33 of this Decree shall be treated as a completed one if the act of illegal obstruction of scientific and technological research and application or implementation of projects using recyclable resources is completed; and shall be treated as an in-progress one in the remaining cases;

dd) The administrative violation specified in Clause 2 Article 33 of this Decree shall be treated as a completed one if the act of extracting and using of natural resources inconsistently with planning or procedures is completed; and shall be treated as an in-progress one in the remaining cases;

e) The administrative violation specified in Clause 1 Article 35 of this Decree shall be treated as a completed one if the act of causing wastefulness upon management of a working office or public service facility is completed; and shall be treated as an in-progress one in the remaining cases;

g) The administrative violation against regulations on procurement of assets or materials in a state-funded single-member limited liability company specified in Clause 2 or 3 Article 36 of this Decree shall be treated as a completed one if the asset procurement is completed; and shall be treated as an in-progress one in the remaining cases;

h) The in-progress administrative violations against regulations on thrift practice are the violations specified in Clause 1 Article 31, Clause 1, Clause 4 Article 36 of this Decree; the violations against regulations on management and use of capital of state-funded single-member limited liability companies specified in Clause 2 Article 36 of this Decree; the violations against regulations on management and use of assets and materials specified in Clause 2, Clause 3 Article 36 of this Decree.

4. The ending dates of in-progress and completed administrative violations which are used to determine the prescriptive time limits for imposing penalties for administrative violations against regulations on national reserve are prescribed as follows:

a) The administrative violations treated as in-progress ones are those specified in Article 41, Article 42, Article 47, Points b and c Clause 3 Article 48 and Article 49 of this Decree;

...

...

...

5. The ending dates of the administrative violations against regulations on state treasury are prescribed as follows:

a) The ending dates of the administrative violations specified in Article 54, Article 57, Article 58, Article 59 and Article 60 of this Decree are the dates on which the documents are submitted to the State Treasury;

b) The ending dates of the administrative violations specified in Article 55, Article 56, Article and Article 61 of this Decree are the dates on which the State Treasury receives the conclusion given by the criminal proceedings agency on the violation case showing no sign of a criminal offence.”

2. Clause 7 of Article 4 is amended as follows:

“7. Organizations or individuals incurring penalties as regulated herein shall not use state budget or state budget-derived funding to pay fines and cover costs of remedial measures, except for the case in Clause 8 Article 37 of the Government's Decree No. 10/2021/ND-CP dated February 09, 2021 on management of construction investment costs.”

3. Article 5 is amended as follows:

“Article 5. Imposition of fines

1. The fines prescribed in Section 1, Section 2, Section 3 and Section 4 Chapter II, Section 1 Chapter III, Section 1 Chapter IV, Section 1 and Section 2 Chapter V hereof are imposed upon organizations. The fine imposed upon an individual shall be equal to a half of the fine imposed upon an organization for committing the same violation (except provisions in Article 17, Article 23 and Article 27 hereof).

2. Upon imposing a fine, the specific amount of fine for an administrative violation is the average of specific fines in the range for such violation. For a mitigating circumstance that exists, the average fine for a violation in the fine range shall be reduced by 10% provided that the fine amount imposed for such violation is not lower than the minimum fine in that range. Meanwhile, for an aggravating circumstance that exists, the average fine for a violation in the fine range shall be increased by 10% provided that the fine amount imposed for such violation is not greater than the maximum fine in that range.

...

...

...

4. Point c Clause 1, Point c Clause 2 and Point c Clause 3 of Article 30 are amended as follows:

a) Point c Clause 1 of Article 30 is amended as follows:

c) confiscate the exhibit or instrumentality involved in the administrative violation whose value does not exceed VND 1,000,000;”

b) Point c Clause 2 of Article 30 is amended as follows:

“c) confiscate the exhibit or instrumentality involved in the administrative violation whose value does not exceed VND 100,000,000;”

c) Point c Clause 3 of Article 30 is amended as follows:

“c) confiscate the exhibit or instrumentality involved in the administrative violation whose value does not exceed VND 140,000,000.

5. Point c Clause 1 of Article 51 is amended as follows:

“c) confiscate the exhibit or instrumentality involved in the administrative violation whose value does not exceed VND 100,000,000.

...

...

...

“c) confiscate the exhibit or instrumentality involved in the administrative violation whose value does not exceed VND 1,000,000”.

7. Point c Clause 2 of Article 52 is amended as follows:

“c) confiscate the exhibit or instrumentality involved in the administrative violation whose value does not exceed VND 100,000,000.

8. Point c Clause 3 Article 52 and Point c Clause 1 of Article 53 are amended as follows:

“c) confiscate the exhibit or instrumentality involved in the administrative violation whose value does not exceed VND 140,000,000”.

9. Clauses 1 and 2 of Article 56 are amended as follows:

“1. A fine ranging from VND 10,000,000 to VND 15,000,000 shall be imposed for forging documents requesting the State Treasury to allocate funding for covering recurrent expenditures, recurrent expenditures on public services, expenditures on national target programs, target programs using state budget for public services (except expenditures on repair, maintenance, improvement, upgrade or expansion of material facilities covered by state budget for recurrent expenditures and revenues retained to cover recurrent expenditures with total investment of at least VND 500,000,000).

2. A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed for forging documents requesting the State Treasury to allocate investment funding derived from state budget and investment funding derived from budget for target programs or allocate funding for covering expenditures on repair, maintenance, improvement, upgrade or expansion of material facilities covered by state budget for recurrent expenditures and revenues retained to cover recurrent expenditures with total investment of at least VND 500,000,000.”

10. Point c is added to Clause 1 of Article 62 as follows:

...

...

...

11. Point a Clause 3 of Article 63 is amended as follows:

“a) Impose a fine up to VND 70,000,000;”

Article 5. Amendments to some Articles of the Decree No. 41/2018/ND-CP dated March 12, 2018 on penalties for administrative violations in the fields of accounting and independent audit

1. Clause 3 of Article 3 is amended as follows:

“3. The dates which are used to determine the prescriptive time limits for imposing penalties for administrative violations in the fields of accounting and independent audit are prescribed as follows:

a) For a completed administrative violation, the prescriptive time limit begins from the date on which that violation terminates;

b) For an in-progress administrative violation, the prescriptive time limit begins from the date on which that violation is detected;

c) The ending date of a violation against regulations on accounting and independent audit which is used to determine the prescriptive time limit for imposing penalties is:

- The date on which the organization or individual finishes implementing the business process or their tasks in accordance with regulations of law on accounting and independent audit;

...

...

...

d) In order to consider whether an administrative violation is completed or in progress, apart from Point c above, the authority or person competent to impose penalties shall rely on regulations of law on accounting and independent audit, documents and facts of each specific case to determine whether the administrative is completed or in progress.”

2. Clauses 2 and 3 of Article 6 are amended as follows:

“2. The fines specified in Chapter II and Chapter III of this Decree are imposed upon organizations except cases specified in Clause 1 Article 7; Article 8; Article 9; Article 10; Article 11; Article 13; Article 14; Article 15; Article 16; Article 17; Article 19; Clauses 1 and 3 of Articles 21; Article 22; Articles 23; Article 24; Article 26; Article 33; Article 34; Clauses 1 and 3 Article 36; Clauses 1 Article 38; Clauses 2 and 3 Article 39; Clauses 1 and 2 Article 48; Clause 1 Article 57; Clauses 1 and 2 Article 61; Article 67, which are fines that apply to individuals. For organizations with the same violations, the fines will double those of individuals.

3. The maximum fines the persons specified in Chapter IV of this Decree may impose are fines for one administrative violation committed by an individual. The maximum fine imposed upon an organization for the same violation is twice the maximum fine imposed on an individual.”

3. Point c Clause 2 of Article 70 is amended as follows:

“c) confiscate the exhibit whose value does not exceed VND 50,000,000 if the administrative violation is committed by an individual or VND 100,000,000 if the administrative violation is committed by an organization.”

4. Point c Clause 1 of Article 71 is amended as follows:

“c) confiscate the exhibit whose value does not exceed VND 10,000,000 if the administrative violation is committed by an individual or VND 20,000,000 if the administrative violation is committed by an organization.”

Article 6. Addition of, removal of several words, phrases, and annulment of Clauses in several Articles

...

...

...

a) The phrase “hành chính” (“administrative”) are added to the phrase “vi phạm nhiều lần” (“violation committed multiple times”) in Points a, b and c Clause 3 of Article 5, which is now “vi phạm hành chính nhiều lần” (“administrative violation committed multiple times”).

b) Clause 3 of Article 8 is annulled.

2. Several phrases are added to and removed from the Government’s Decree No. 128/2020/ND-CP dated October 19, 2020 on penalties for administrative customs offences as follows:

a) The phrase “và khoản 31 Điều 1 Luật sửa đổi, bổ sung một số điều của Luật Xử lý vi phạm hành chính” (“and Clause 31 of the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations”) is added after the phrase “Luật Xử lý vi phạm hành chính năm 2012” (“the Law on Penalties for Administrative Violations 2012”) in Clause 3 of Article 4.

b) The phrase ““và các khoản từ 61 đến 67 Điều 1 Luật sửa đổi, bổ sung một số điều của Luật Xử lý vi phạm hành chính” (“and Clauses 61 through 67 of the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations”) is added after the phrase “Luật Xử lý vi phạm hành chính năm 2012” (“the Law on Penalties for Administrative Violations 2012”) in Clause 1 of Article 26.

c) The phrase “và Luật sửa đổi, bổ sung một số điều của Luật Xử lý vi phạm hành chính” (“and the Law on Amendments to some Articles of the Law on Penalties for Administrative Violations”) is added after the phrase “Luật Xử lý vi phạm hành chính năm 2012” (“the Law on Penalties for Administrative Violations 2012”) in Clause 2 of Article 36.

d) The phrase “có trị giá không vượt quá mức tiền phạt được quy định tại điểm b khoản này” (“which have been used for committing administrative violation but are worth less than the fine specified in Point b of this Clause”) is removed from Point c Clause 1 of Article 28.

3. Several words and phrases are removed from and phrases are added to the Government’s Decree No. 98/2013/ND-CP dated August 28, 2013 on amendments to Decree No. 98/2013/ND-CP dated August 28, 2013 on penalties for administrative violations in insurance business and lottery business amended by the Government’s Decree No. 48/2018/ND-CP dated March 21, 2018 and Decree No. 80/2019/ND-CP dated November 01, 2019 as follows:

a) The phrase “, thẩm quyền lập biên bản vi phạm hành chính” (“, the power to make records of administrative violations”) is added after the phrase “thẩm quyền xử phạt” (“the power to impose penalties”) in Clause 1 of Article 1.

...

...

...

c) The phrases “được sử dụng để” (“used for”) và “sử dụng để” (“used for”) are removed from Point b Clause 2 of Article 3; Point b Clause 1, Point d Clause 3 of Article 33; Point a Clause 6 of Article 36; Point b Clause 1, Point c Clause 2, Point d Clause 3 of Article 52.

4. Phrases in the Government’s Decree No. 63/2019/ND-CP dated July 11, 2019 on penalties for administrative violations against regulations on management and use of public property; thrift practice and wastefulness combat; national reserve; state treasury are removed and changed  as follows:

d) The phrase “có trị giá không vượt quá mức tiền phạt được quy định tại điểm b khoản này” (“for committing administrative violations worth less than the fine specified in Point b of this Clause”) is removed from Point c Clause 1 of Article 29.

b) The phrase “Quỹ có nguồn gốc từ ngân sách nhà nước” (“state budget-derived fund”) in Article 32 is changed to “Quỹ tài chính nhà nước ngoài ngân sách” (“state extra-budgetary financial trust”.

5. Phrases are removed from the Government’s Decree No. 41/2018/ND-CP dated March 12, 2018 on penalties for administrative violations in the fields of accounting and independent audit as follows:

a) The phrase “có trị giá không vượt quá mức tiền phạt được quy định tại điểm b khoản này” (“whose value does not exceed the fine specified in Point b of this Clause”) is removed from Point c Clause 2 of Article 71.

b) The phrase “đối với cá nhân” (“on individuals”) is removed from Point b Clause 3 of Article 71.

Chapter II

IMPLEMENTATION CLAUSE

...

...

...

1. If, after the effective date of this Decree, the organization or individual that incurs a penalty still files a complaint against the administrative penalty imposition decision issued before the effective date of this Decree, the regulations laid down in the Decree on penalties for administrative violations taking effect at the time of committing the administrative violation shall apply.

2. Regulations of this Decree shall apply to the administrative violations against regulations on tax and invoicing; customs; insurance business and lottery business; management and use of public property, thrift practice and wastefulness combat; national reserve; state treasury; accounting and independent audit committed before the effective date of this Decree and then discovered or currently taken into consideration if this Decree does not provide for legal liability or impose less serious legal liability.

3. Any application for exemption from fines for tax or invoice-related administrative violations received by the tax authority before the effective date of this Decree shall be processed in accordance with the Government’s Decree No. 125/2020/ND-CP dated October 19, 2020 on penalties for administrative violations against regulations on tax and invoicing.

Article 8. Responsibility for implementation

Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairmen/Chairwomen of People’s Committees at all levels and other relevant authorities, organizations and individuals are responsible for the implementation of this Decree.

Article 9. Effect

This Decree comes into force from January 01, 2022.

...

...

...

ON BEHALF OF THE GOVERNMENT
PP. THE PRIME MINISTER
THE DEPUTY PRIME MINISTER




Le Minh Khai