Nghị định 120/2016/NĐ-CP hướng dẫn Luật phí và lệ phí

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON FEES AND CHARGES

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

Pursuant to the Law on fees and charges dated November 25, 2015;

Pursuant to the Law on state budget dated June 25, 2015;

At the request of Minister of Finance;

The Government promulgates a Decree to detail and guide the implementation of a number of articles of the Law on fees and charges.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree provides for the declaration, collection and payment of fees and charges; the management and use of fees; final settlement of fees and charges; responsibilities of state agencies and organizations for collection, payment, management and use of fees and charges.

Article 2. Regulated entities

This Decree applies to:

1. Payers of fees and charges, including organizations and individuals that provide public services to serve the state management in accordance with regulations of the Law on fees and charges.

2. Collectors of fees and charges, including state agencies, overseas Vietnamese representative missions, public service providers, and organizations tasked with providing public services for state management tasks by competent state agencies in accordance with regulations of the Law on fees and charges.

3. Other state agencies, organizations and individuals involved in the declaration, collection, payment, management and use of fees and charges.

Chapter II

DECLARATION, COLLECTION, PAYMENT, MANAGEMENT AND USE OF FEES AND CHARGES

Article 3. Declaration, collection, payment and final settlement of fees and charges

1. Payers shall carry out the declaration and payment of fees and charges on a monthly, quarterly and annual basis or when they arise. Based on the nature and features of each type of fees and charges, competent state agencies referred to in Clause 2 Article 4 of the Law on fees and charges shall set down specific periods for declaration and payment of fees and charges.

2. Collectors shall carry out the declaration and transfer of collected fees and charges in accordance with the following regulations:

a) Collectors shall transfer the entire collected fees and charges to the state budget. Collectors shall carry out the declaration and transfer of collected fees and charges on a monthly basis, and make final settlement of fees on an annual basis in accordance with regulations of the law on tax management.

b) Collectors must transfer collected amount of fees to the Accounts for fees paid to state budget, which are opened at the State Treasuries, on a daily, weekly or monthly basis. Based on the amount of collected fees and the distance from the collection place to the State Treasury, the competent state agencies referred to in Clause 2 Article 4 of the Law on fees and charges shall set down specific daily, weekly or monthly periods in order that collectors transfer collected fees during the period to accounts for fees paid to state budget.

Collectors shall carry out the declaration on collected fees on a monthly basis and make final settlement on annual basis in accordance with regulations of the law on tax management, and transfer payable fees to state budget after deducting the amount being left for collectors.

c) Collectors of fees for use of roads and overseas Vietnamese representative missions shall carry out the declaration, collection and transfer of fees and charges as regulated by Ministry of Finance.

3. Collectors shall prepare and issue receipts of fees and charges as regulated by Ministry of Finance.

4. Currencies:

a) With regard to fees and charges paid in Vietnam, the currency shall be VND, except for cases where fees and charges may be paid in freely convertible currencies as regulated by laws. In case freely convertible currencies are applied, fees and charges may be paid in foreign currency or VND on the basis of converting from foreign currency to VND according to the following exchange rate:

- If fees and charges are paid at commercial banks or other credit institutions, buying rates announced by commercial banks or credit institutions where payers open their accounts at the payment time shall apply.

- If fees and charges are directly paid at State Treasuries, the exchange rate announced by Ministry of Finance at the payment time shall apply.

- If fees and charges are paid in cash or under other forms of payment to collectors, the exchange rate shall be the buying rate under the transfer form announced by the operations center of Vietcombank at the payment time or at the end of the business day preceding the day off.

b) With regard to fees and charges paid in a foreign country, currency of that country or freely convertible currencies shall apply.

Article 4. Principles for management and use of fees

1. Fees from public services provided by state agencies shall be paid to state budget, except for cases where expenses for activities of provision of such public services are deducted from the sum of collected fees according to the percentage referred to in Article 5 herein; the remaining amount (if any) shall be paid to state budget.

State agencies that are eligible to retain a predetermined amount of collected fees for maintaining their activities:

a) Agencies implementing financial policies as referred to by the Government or Prime Minister with respect to the autonomy in the use of employees on payroll and administrative expenditures by state agencies.

b) Overseas Vietnamese representative missions.

c) Police or national defense forces that are tasked with providing services and collecting fees to serve the state management tasks in accordance with regulations of the Law on fees and charges.

2. A part or whole of fees collected from services provided by public service providers may be retained to pay off their activities of service provision and fee collection according to the percentage referred to in Article 5 herein; the remaining amount (if any) shall be paid to state budget.

3. A part or whole of fees collected from services provided by service providers as assigned by competent state agencies may be retained to pay off their activities of service provision and fee collection according to the percentage referred to in Article 5 herein; the remaining amount (if any) shall be paid to state budget, except for cases where the Government’s regulations are applied. The amount of fees left shall be considered as the collector’s revenue.

Article 5. Determination of percentage of fees retained, and management and use of fees

1. The amount deducted or left for collectors as referred to in Article 4 herein is determined as follows:

a) The amount deducted or left = Sum of collected fees x Percentage of fees left.

b) The percentage of fees left is determined as follows:

Where:

- Estimate for necessary expenditures on service provision and fee collection of whole year shall be made on the basis of spending contents referred to in Clause 2 of this Article and applicable policies, standards and levels of expenditure.

- Estimate of collected fees of whole year shall be prepared by the collector on the basis of estimated fee rates and the number of services provided during the year.

- In case the percentage of fees left is adjusted, estimates for expenditures and collected fees must be also prepared on the basis of data of expenditures and collected fees in previous year.

- The percentage of fees left shall not exceed 100%.

c) Based on the nature and features of types of fees and spending contents referred to in Clause 2 of this Article, collectors shall prepare estimates for expenditures and collected fees, and the percentage of fees left in the schemes for collection of fees, and submit them to competent authorities as referred to in Article 6 of this Decree for consideration.

d) Competent state agencies referred to in Clause 2 Article 4 of the Law on fees and charges shall decide the percentage of fees left for collectors. Competent state agencies may consider and decide a general percentage of fees left to apply to types of fees which have similar nature.

Competent agencies shall adjust the percentage of fees left in case the amount of fees left is not enough to pay off expenditures for activities of a collector or unused and brought towards years due to change in the Government's policies.

2. The amount of fees left for collectors as referred to in Clause 1 and Clause 2 Article 4 herein shall be used to pay off the following expenditures:

a) Expenditures on implementing the autonomy (if the collector is a state agency) or recurrent expenditures (if the collector is a public service provider):

- Payments made to individuals performing tasks, providing services and collecting fees: Salary, allowances and compulsory salary-based contributions (except for salaries of officials and public employees who are paid by funding from state budget in accordance with applicable regulations).

- Expenditures on activities in service of performance of tasks, service provision and fee collection such as: office stationeries, materials, means of communication, electricity, water, and allowances for business trips in compliance with applicable standards and levels.

- Expenditures on current repair of assets, machinery and equipment directly serving the performance of tasks, service provision and fee collection.

- Expenditures on purchase of materials relating to the performance of tasks, service provision and fee collection.

- Depreciation for fixed assets to serve the performance of tasks, service provision and fee collection by public service providers that themselves cover recurrent expenditures and investment expenditures by using collected fees.

- Other expenditures relating to the performance of tasks, service provision and fee collection.

b) Expenditures not for implementing the autonomy (if the collector is a state agency) or non-recurrent expenditures (if the collector is a public service provider):

- Expenditures on major purchases or repairs of assets, machinery and equipment used to perform tasks, provide service and collect fees (except for public service providers that themselves cover recurrent expenditures and investment expenditures by using collected fees in accordance with the Law on fees and charges).

- Other non-recurrent expenditures relating to the performance of tasks, service provision and fee collection.

3. Apart from expenditures mentioned in Clause 2 of this Article, collectors that are public service providers shall use the amount of fees left to pay off other expenditures as regulated by the Government or upon the Prime Minister's decision. Agencies implementing financial policies as regulated by the Government or Prime Minister, the amount of fees left shall be spent in accordance with the Government or Prime Minister’s regulations.

4. With regards to the amount of fees left for collectors to pay off expenditures mentioned in Clause 2 of this Article, state agencies shall comply with the Government or Prime Minister’s regulations on the autonomy in the use of employees on payroll and administrative expenditures, and public service providers shall abide by the Government’s regulations on autonomy.

5. Annually, collectors must make final settlement of collections and expenditures as regulated. After making the final settlement, the unused amount of fees left during the year shall be carried forwards to the following year for spending as regulated.

Chapter III

IMPLEMENTATION

Article 6. Implementation

Ministries, ministerial-level agencies, affiliates of the Government, people’s committees of central-affiliated cities or provinces, and collectors shall discharge their responsibilities as referred to in the Law on fees and charges. In addition, they must comply with the following regulations:

1. Responsibilities of collectors:

a) Prepare and submit schemes for collection of fees and charges to sector regulatory ministries (for types of fees and charges under the competence of Ministry of Finance) or sector regulatory departments (for types of fees and charges under the competence of provincial-level people’s councils). In case a type of fees and charges is jointly collected by several collectors without a specific document issued to each collector, schemes for collection of fees and charges shall be undertaken by sector regulatory ministries (for types of fees and charges under the competence of Ministry of Finance) as regulated in Clause 3 of this Article or sector regulatory departments as instructed by provincial-level people’s committees (for types of fees and charges under the competence of provincial-level people’s councils).

b) A scheme for collection of fees shall consist of: Methods of service provision and fee collection; estimated collection rate and grounds thereof; payers; exemption and reduction of fees; estimates for collected fees and expenditures; percentage of fees left; evaluation of payers’ capacity; efficiency of fee collection.

c) A scheme for collection of charges shall consist of: Methods of service provision and collection of charges; estimated collection rate and grounds thereof; payers; exemption and reduction of charges; evaluation of payers’ capacity; efficiency of collection of charges.

2. Provincial-level people’s committees instruct the establishment and appraisal of schemes for collection of fees and charges under the competence of provincial-level people’s councils.

3. Responsibilities of Ministries, ministerial-level agencies and affiliates of the Government:

a) Receive requests of collectors in their managed sectors/ fields; appraise and request Ministry of Finance to issue documents on collection of fees and charges.

b) In case a type of fees and charges is jointly collected by several collectors or local governments (without a specific document issued to each collector), instruct in-charge units to prepare and submit schemes for collection of fees and charges to ministries for appraising and requesting Ministry of Finance to issue documents on collection of fees and charges.

4. The collection of fees and charges in the List of fees and charges enclosed with the Law on fees and charges requires documents on collection rates.

Article 7. Transitional clause

1. Collectors shall carry out the final settlement of collected fees and charges in 2016 in accordance with the Ordinance on fees and charges and regulations of the law on tax management. After making the final settlement, the unused amount of fees left during the year shall be carried forwards to the following year for spending as regulated up to January 01, 2018, and the entire remaining amount of collected fees must be transferred to state budget.

2. The pricing mechanism of fees and charges in the List of fees and charges enclosed with the Government’s Decree No. 24/2006/ND-CP dated March 06, 2006 detailing the implementation of the Ordinance on fees and charges shall be subject to the laws on pricing.

Article 8. Effect

1. This Decree takes effect as of January 01, 2017.

2. As of the effective date of this Decree, the following regulations shall be annulled.

a) The Government’s Decree No. 57/2002/ND-CP dated June 03, 2002 detailing the implementation of the Ordinance on fees and charges; the Government’s Decree No. 24/2006/ND-CP dated March 06, 2006 providing for amendments and supplements to a number of articles of Decree No. 57/2002/ND-CP dated June 03, 2002; the Government’s Decree No. 115/2011/ND-CP dated December 14, 2011 providing for amendments to Point 2, Section IV Part B of the list of detailed fees and charges enclosed to Decree No. 24/2006/ND-CP dated March 06, 2006.

b) Articles 46, 47, 48 and other contents related to fees for civil judgment enforcement in the Government’s Decree No. 62/2015/ND-CP dated July 18, 2015 detailing and guiding the implementation of the Law on civil judgment enforcement.

c) Regulations on fees for imposition of penalties for violations against the law on competition and charges for verification of applications for exemption provided for in Articles 51, 52, 53, 54, 55, 56 and 57 of the Government’s Decree No. 116/2005/ND-CP dated September 15, 2005 detailing the implementation of a number of articles of the Law on competition.

3. Contents relating to fees and charges in the Order No. 24/2007/CT-TTg dated November 01, 2007 by Prime Minister reorganizing the implementation of regulations of the law on fees and charges, and policies on mobilization and use of people’s contributions shall be annulled.

4. Ministers, heads of ministerial-level agencies, heads of affiliates of the Government and Chairpersons of people’s committees of central-affiliated cities or provinces shall be responsible for implementing this Decree./.