Chương X Luật quản lý thuế 2006: Kiểm tra thuế, thanh tra thuế

Chapter X

TAX EXAMINATION, TAX INSPECTION

Section 1. GENERAL PROVISIONS ON TAX EXAMINATION AND TAX INSPECTION

Article 75.- Principles for tax examination and tax inspection

1. Tax examination and tax inspection shall be conducted on the basis of analysis of information and data on taxpayers, assessment of law observance of taxpayers, verification and collection of proofs to identify acts of tax law violation.

2. Tax examination and tax inspection may not obstruct normal operation of agencies, organizations and individuals being taxpayers.

3. Tax examination and tax inspection must comply with the provisions of this Law and other relevant laws.

Article 76.- Processing of tax examination and tax inspection results

1. Based on tax examination and tax inspection results, heads of tax administration agencies shall issue decisions on tax handling, sanctioning of administrative violations according to their competence or request competent persons to issue decisions on sanctioning of administrative violations in the tax domain.

2. If, through tax examination and tax inspection, an act of tax evasion showing criminal signs is detected, tax administration agencies shall, within ten working days after the detection, transfer the dossier thereof to a competent agency for investigation according to the criminal procedure law. Tax administration agencies shall coordinate with investigative bodies in investigating into tax-related crimes according to law.

Section 2. TAX EXAMINATION

Article 77.- Tax examination at offices of tax administration agencies

1. Tax examination at offices of tax administration agencies shall be conducted on a regular basis on tax dossiers in order to assess the completeness and accuracy of information and vouchers in tax dossiers, and compliance with tax law by taxpayers.

2. When checking tax dossiers, tax administration officers shall compare the contents of tax dossiers with relevant information and documents, legal provisions on tax, and results of the actual checking of exports and imports when necessary.

3. Processing of tax examination results is specified as follows:

a/ If a violation which leads to tax underpayment, tax evasion or tax fraud is detected through tax examination in the course of carrying out customs procedures, taxpayers shall pay sufficient tax amounts and be imposed fines according to the provisions of this Law and other relevant laws.

b/ If tax dossiers have unclear contents related to payable, exempted, reduced or refunded tax amounts, tax administration agencies shall notify and request taxpayers to explain them or supplement information and documents. If taxpayers are able to explain unclear contents and supplement information and documents to prove the accuracy of the declared tax amounts, then their tax dossiers are accepted. If the explanations and supplemented documents cannot prove the accuracy of the declared tax amounts, tax administration agencies shall request taxpayers to make supplementary declarations.

c/ Upon the expiration of the time limit notified by tax administration agencies, if taxpayers fail to explain unclear contents or supplement information and documents or make supplementary declarations in their tax dossiers, or improperly explain unclear contents or improperly make supplementary declarations in their tax dossiers, heads of tax administration agencies directly managing taxpayers shall assess payable tax amounts or issue decisions on tax examination at offices of taxpayers.

d/ For exported goods or imported goods after customs clearance, if customs offices detect that their tax dossiers have unclear contents related to tax liability or exempted, reduced or refunded tax amounts, customs offices shall request taxpayers to explain those contents or supplement information and documents. If taxpayers are able to explain unclear contents and supplement information and documents to prove the accuracy of the declared tax amounts, then their tax dossiers are accepted. If taxpayers fail to prove the accuracy of the declared tax amounts or upon the expiration of the set time limit they fail to explain unclear contents, heads of customs offices shall assess payable tax amounts or issue decisions on tax examination at offices of taxpayers.

e/ Tax examination decisions shall be sent to taxpayers within three working days from the date of their signing. Within five working days after receiving tax examination decisions, if taxpayers can prove the accuracy of their declared tax amounts or fully pay payable tax amounts, tax administration agencies shall cancel the tax examination decisions.

Article 78.- Tax examination at offices of taxpayers

1. Cases of tax examination at offices of taxpayers:

a/ Cases specified at Points c and d, Clause 3, Article 77 of this Law;

b/ Cases of post-customs clearance examination, including planned examination and sample examination, to assess the tax law observance, and inspection of exported goods or imported goods that show signs of tax law violation after customs clearance.

If signs of tax evasion or tax fraud are detected in the post-customs clearance examination, the director of the Department for Post-Customs Clearance Examination, directors of Customs Departments and directors of Sub-Departments for Post-Customs Clearance Examination may decide to apply the measures specified in Section 4 of this Chapter.

2. Order and procedures for tax examination are specified as follows:

a/ Announcing the tax examination decision at that start of tax examination;

b/ Comparing the declared contents with accounting books and documents, financial statements, relevant documents and real situation within the scope and contents of tax examination decision;

c/ Conducting tax examination within five working days from the date the examination decision is announced. In case of planned examination for exported goods or imported goods, this time limit is fifteen days;

d/ When necessary, the tax examination duration under the tax examination decision can be extended once but the extension must not exceed the time limit specified at Point c of this Clause;

e/ Making a written record of tax examination within five working days from the date of expiration of the examination time limit;

f/ Handling the violations according to competence or transferring them to competent authorities for handling according to examination results.

Article 79.- Rights and obligations of taxpayers in tax examination at offices of taxpayers

1. Taxpayers have the following rights:

a/ To reject examination if there is no tax examination decision;

b/ To refuse to supply information and documents irrelevant to tax examination contents; information and documents pertaining to state secrets, unless otherwise provided for by law;

c/ To receive the written records of tax examination and request explanations of the contents of the written records;

d/ To reserve their opinions in the written records of tax examination;

e/ To lodge complaints, institute lawsuits and claim damages according to law;

f/ To denounce acts of law violation in the course of tax examination.

2. Taxpayers have the following obligations:

a/ To comply with tax examination decisions of tax administration agencies;

b/ To promptly, fully and accurately supply information and documents relevant to the examination contents upon request of tax examination teams; to take responsibility before law for the accuracy and truthfulness of supplied information and documents;

c/ To sign the written records of tax administration within five working days from the date of completion of examination;

d/ To comply with decisions on handling based on the tax examination results.

Article 80.- Tasks and powers of heads of tax administration agencies that issue tax examination decisions and tax administration officers in tax examination

1. Heads of tax administration agencies that issue tax examination decisions have the following tasks and powers:

a/ To direct examination according to the tax examination decisions in terms of content and time;

b/ To apply the measures of temporarily seizing documents and exhibits related to acts of tax evasion or tax fraud specified in Article 90 of this Law;

c/ To extend the examination time limit when necessary;

d/ To issue decisions on tax handling or sanctioning of administrative violations according to their competence, or to request competent persons to issue decisions on sanctioning of administrative violations;

e/ To settle complaints and denunciations about administrative acts or decisions of tax administration officers.

2. Tax administration officers while conducting tax examination have the following tasks and powers:

a/ To strictly comply with the contents and time limit stated in tax examination decisions;

b/ To request taxpayers to supply information and documents relevant to the examination contents;

c/ To make written records of tax examination; to report on examination results to persons who have issued examination decisions and take responsibility for the accuracy, truthfulness and objectiveness of those written records and reports;

d/ To sanction administrative violations according to their competence or propose competent persons to issue decisions on handling of violations.

Section 3. TAX INSPECTION

Article 81.- Cases subject to tax inspection

1. Tax inspection shall be conducted on a regular basis no more than once a year for enterprises with diversified business lines and a wide scope of business.

2. When there is a sign of tax law violation.

3. Tax inspection shall be conducted to settle complaints or denunciations or upon request of heads of tax administration agencies at all levels or of the Finance Minister.

Article 82.- Tax inspection decisions

1. Heads of tax administration agencies at all levels are competent to issue tax inspection decisions.

2. A tax inspection decision must have the following contents:

a/ Legal ground(s) for tax inspection;

b/ Subject, content, scope and tasks of tax inspection;

c/ Duration of tax inspection;

d/ Head and other members of the tax inspection team.

3. Within three working days after its signing, a tax inspection decision shall be sent to the inspected subject.

A tax inspection decision shall be notified within fifteen days from the date of issuance.

Article 83.- Tax inspection duration

1. A tax inspection duration must not exceed thirty days from the date of notification of the tax inspection decision.

2. In case of necessity, tax inspection decision issuers may prolong the tax inspection duration. The prolonged duration must not exceed thirty days.

Article 84.- Tasks and powers of tax inspection decision issuers

1. A tax inspection decision issuer has the following tasks and powers:

a/ To direct and check to ensure that the tax inspection team strictly observe the contents and duration stated in the tax inspection decision;

b/ To request the inspected subject to supply information and documents, report in writing and explain matters related to the inspection contents; to request agencies, organizations and individuals having information and documents related to the inspection contents to supply such information and documents;

c/ To apply the measures specified in Articles 89, 90 and 91 of this Law;

d/ To solicit expert assessment of matters related to the tax inspection contents;

e/ To suspend or propose competent persons to stop an act when they consider that act is seriously detrimental to benefits of the State, lawful rights and benefits of agencies, organizations and individuals;

f/ To handle according to his/her competence or propose competent persons to handle tax law violations; inspect and urge the execution of handling decisions after tax inspection;

g/ To settle complaints and denunciations about the responsibility of the head and other members of the tax inspection team;

h/ To make conclusions on the tax inspection contents.

2. When performing the tasks and exercising the powers specified in Clause 1 of this Article, tax inspection decision issuers shall be held responsible before law for their decisions.

Article 85.- Tasks and powers of heads and members of tax inspection teams

1. Head of a tax inspection team has the following tasks and powers:

a/ To organize tax inspection and instruct members of the tax inspection team to strictly observe the inspection contents, subject and duration stated in the tax inspection decision;

b/ To request the inspected subject to supply information and documents, report in writing and explain matters related to the tax inspection contents; to conduct, when necessary, an inventory of assets of the inspected subject that are related to the tax inspection contents;

c/ To apply the measure specified in Article 90 of this Law;

d/ To make a written record of tax inspection;

e/ To report to the tax inspection decision issuer on the inspection results and bear responsibility for the accuracy, truthfulness and objectiveness of that report;

f/ To impose administrative sanctions according to his/her competence or propose competent persons to issue decisions on handling of violations;

2. Members of a tax inspection team have the following tasks and powers:

a/ To perform the tasks assigned by the head of the tax inspection team;

b/ To propose matters related to the tax inspection contents for handling;

c/ To report the results of performance of their assigned tasks to the head of the tax inspection team.

3. When performing the tasks and exercising the powers specified in this Article, heads and members of tax inspection teams shall be held responsible before law for their decisions and acts.

Article 86.- Obligations and rights of subjects of tax inspection

1. Subjects of tax inspection have the following obligations:

a/ To comply with the tax inspection decisions;

b/ To supply in a prompt, complete and accurate manner information and documents related to the inspection contents upon request of tax administration agencies, heads of tax inspection teams and take responsibility before law for the accuracy and truthfulness of the supplied information and documents;

c/ To satisfy the tax inspection requests and abide by the tax inspection conclusions and handling decisions of tax administration agencies, heads of tax inspection teams and competent state agencies;

d/ To sign the inspection written records within five working days after the tax inspection is completed.

2. Subjects of tax inspection have the following rights:

a/ To explain matters related to the tax inspection contents;

b/ To reserve their opinions in the tax inspection written records;

c/ To refuse to supply information and documents irrelevant to the tax inspection contents, information and documents pertaining to state secrets, unless otherwise provided for by law;

d/ To complain with tax inspection decision issuers about decisions and acts of heads and members of tax inspection teams when having grounds to believe that those decisions or acts are unlawful. Pending the settlement of their complaints, to comply with those decisions;

e/ To request compensations for damage according to law;

f/ To denounce acts of law violation of heads of tax administration agencies, heads and members of tax inspection teams.

Article 87.- Tax inspection conclusions

1. Within fifteen days after receiving reports on the tax inspection results, tax inspection decision issuers shall make written tax inspection conclusions. A tax inspection conclusion must have the following contents:

a/ Assessment of the observance of tax law by the inspected subject that falls within tax inspection contents;

b/ Conclusion on the contents subject to tax inspection;

c/ Clear determination of the nature and severity of violation, reasons, and responsibilities of agencies, organizations or individuals that commit acts of violation (if any);

d/ Handling of the administrative violation according to the decision issuer’s competence or recommendations on the handling by a competent person according to law.

2. In the course of making written inspection conclusions, inspection decision issuers may request heads or members of inspection teams to report, or request inspected subjects to explain and further clarify matters necessary for the making of tax inspection conclusions.

Section 4. MEASURES APPLIED IN TAX INSPECTION TO CASES SHOWING SIGNS OF TAX EVASION OR TAX FRAUD

Article 88.- Application of measures in tax inspection to cases showing signs of tax evasion or tax fraud

1. When taxpayers show signs of tax evasion or tax fraud involving other organizations or individuals.

2. When signs of tax evasion or tax fraud are complicated.

Article 89.- Collection of information on acts of tax evasion or tax fraud

1. Heads of tax administration agencies may request organizations or individuals that have information on acts of tax evasion or tax fraud to supply such information in writing or verbally.

2. When receiving requests of heads of tax administration agencies for supply of information in writing, organizations and individuals shall supply information with the contents, within the time limit and to the address as requested and bear responsibility for the accuracy and truthfulness of the supplied information. If they fail to supply information, they shall reply in writing clearly stating reasons for the failure.

3. When receiving requests of heads of tax administration agencies for supply of information in the verbal form, persons requested to supply information shall present themselves at the time and place indicated in the written requests to supply information according to the requested contents and bear responsibility for the accuracy and truthfulness of information of supplied information. If they fail to present themselves, they shall reply in writing clearly stating reasons for the failure.

In the course of collection of information in the verbal form, tax inspectors shall make written records thereof and public audio-visual recording is allowed.

Article 90.- Temporary seizure of documents and exhibits related to acts of tax evasion or tax fraud

1. Heads of tax administration agencies or tax inspection teams may decide on temporary seizure of documents and exhibits related to acts of tax evasion or tax fraud.

2. Temporary seizure of documents and exhibits related to acts of tax evasion or tax fraud shall apply when it is necessary to verify circumstances for making decisions on handling or prompt prevention of acts of tax evasion or tax fraud.

3. In the course of tax inspection, if inspected subjects show signs of dispersion or destruction of documents and exhibits related to acts of tax evasion or tax fraud, tax inspectors on duty may temporarily seize those documents and exhibits. Within twenty four hours after temporarily seizing documents and exhibits, tax inspectors shall report to heads of tax administration agencies or tax inspection teams for issuance of decisions on temporary seizure of documents and exhibits. Within eight working hours after receiving the reports, competent persons shall consider and issue temporary seizure decisions. If competent persons do not agree with the temporary seizure, tax inspectors shall return documents and exhibits within eight working hours.

4. When temporarily seizing documents and exhibits related to acts of tax evasion or tax fraud, tax inspectors shall make written records of temporary seizure. This written record must clearly state the names, quantity and types of temporarily seized documents and exhibits, and bear signatures of the person who temporarily seizes and the person who manages documents and exhibits. Issuers of temporary seizure decisions shall preserve temporarily seized documents and exhibits and be held responsible before law if those documents and exhibits are lost, sold, exchanged or damaged.

In case of necessity to seal up documents and exhibits, the sealing must be conducted in the presence of owners of those documents and exhibits. When owners of documents and exhibits are absent, the sealing shall be conducted in the presence of representatives of their families or organizations, local administration and witnesses.

5. Exhibits being Vietnamese currency, foreign currencies, gold, silver, gems, precious metals and objects under special management shall be preserved according to law; for exhibits being perishable goods or articles, temporary seizure decision issuers shall make written records thereof and promptly sell them to avoid any loss. Proceeds from the sale of exhibits shall be transferred into custody accounts opened at the State Treasury so as to ensure full collection of tax and fine amounts.

6. Within ten working days after the temporary seizure, temporary seizure decision issuers shall dispose of the temporarily seized documents and exhibits by taking measures stated in the disposal decisions or return them to individuals and organizations when confiscation of temporarily seized documents and exhibits is not applied. The time limit for temporary seizure of documents and exhibits may be prolonged for complicated cases which need verification but must not exceed sixty days after the date documents and exhibits are temporarily seized. The prolongation of the time limit for temporary seizure of documents and exhibits shall be decided by competent persons defined in Clause 1 of this Article.

7. Tax administration agencies shall send copies of the temporary seizure decision, temporary seizure written record and decision on disposal of documents and exhibits related to acts of tax evasion or tax fraud to organizations or individuals whose documents and exhibits are temporarily seized.

Article 91.- Search of hiding places of documents and exhibits related to acts of tax evasion or tax fraud

1. Heads of tax administration agencies may decide on search of hiding places of documents and exhibits related to acts of tax evasion or tax fraud. If the hiding place of documents and exhibits related to acts of tax evasion or tax fraud is a place of residence, written approval of competent persons defined by law is required.

2. Search of a place shall be conducted when there is a ground to believe that documents and exhibits related to an act of tax evasion or tax fraud are hidden there.

3. Search of a hiding place of documents and exhibits shall be conducted in the presence of its owner and witnesses. When the owner of a searched place is absent and the search cannot be delayed, the presence of representatives of the local administration and two witnesses is required.

4. Search of hiding places of documents and exhibits related to acts of tax evasion or tax fraud shall not be conducted at night, on holidays or when owners of searched places proceed with weddings or funerals, except when illegal acts are caught on flagrant delicto and the reasons for the search shall be clearly stated in the written records.

5. All cases of search of hiding places of documents and exhibits related to acts of tax evasion or tax fraud must be decided and recorded in writing. A copy of the decision on and written record of search of a hiding place shall be handed to the owner of the searched place.

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