Chương IV Nghị định 125/2020/NĐ-CP: Thẩm quyền xử phạt; một số thủ tục xử phạt vi phạm hành chính về thuế, hóa đơn

Chapter IV

SANCTIONING AUTHORITY; SEVERAL REGULATORY PROCEDURES FOR IMPOSITION OF ADMINISTRATIVE PENALTIES FOR TAX OR INVOICE-RELATED VIOLATIONS

Article 32. Authority to impose tax or invoice-related administrative penalties of tax authorities

1. Customs officers on duty shall be vested with the authority to impose penalties in the form of cautions.

2. Tax team leaders shall, within their assigned duties and responsibilities, have the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 5,000,000 for acts prescribed in clause 2 of Article 10; clause 2, 3 and 4 of Article 11; clause 1 of Article 14; point a, b, c and dd of clause 1 of Article 15; clause 1 of Article 20; clause 2 and 3 of Article 21; clause 1 and point c and d of clause 2 of Article 23; clause 2 and 3 of Article 24; clause 2 of Article 25; clause 2 of Article 26; point a and c of clause 2 of Article 27; point a of clause 2 and clause 3 of Article 29; clause 1 of Article 30 herein.

3. Directors of Taxation Sub-departments shall, within their remit, have the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 50,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and Chapter III herein;

c) Imposing fines for the acts prescribed in Article 16, 17 and 18 herein;

d) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

dd) Applying remedies stipulated herein.

4. Directors of Taxation Departments shall, within their remit, have the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 140,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and Chapter III herein;

c) Imposing fines for the acts prescribed in Article 16, 17 and 18 herein;

d) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

dd) Applying remedies stipulated herein.

5. General Director of the General Department of Taxation shall be accorded the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 200,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and Chapter III herein;

c) Imposing fines for the acts prescribed in Article 16, 17 and 18 herein;

d) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

dd) Applying remedies stipulated herein.

Article 33. Authority to impose penalties for tax or invoice-related administrative violations of the Chairpersons of all-level People’s Committees

1. The Chairman/Chairwoman of the district-level People’s Committee shall be accorded the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 50,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and Chapter III herein;

c) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

d) Applying remedies stipulated in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and III herein.

2. The Chairman/Chairwoman of the provincial-level People’s Committee shall be accorded the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 100,000,000 for the acts prescribed in Chapter III herein;

c) Imposing the fine of up to VND 200,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II herein;

d) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

dd) Applying remedies stipulated in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and III herein.

Article 34. Authority to impose tax and invoice-related administrative penalties of inspectors

1. Inspectors or persons assigned to carry out specialized inspections on duty shall be accorded authority to issue cautions.

2. Chief Inspectors of Departments of Finance, Chiefs of Inspectorates of Taxation Departments, or Chief of Inspectorate of General Department of Taxation, performing specialized inspections shall have the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 50,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and Chapter III herein;

c) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

d) Applying remedies stipulated in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and III herein.

3. Chief of the Inspectorate of Ministry of Finance performing duties to carry out specialized inspections shall have the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 70.000.000 for the acts prescribed in Chapter III herein;

c) Imposing the fine of up to VND 140,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II herein;

d) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

dd) Applying remedies stipulated in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and III herein.

4. Chief of the Inspectorate of the Ministry of Finance shall have the following authority:

a) Imposing penalties in the form of cautions;

b) Imposing the fine of up to VND 100,000,000 for the acts prescribed in Chapter III herein;

c) Imposing the fine of up to VND 200,000,000 for the acts prescribed in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II herein;

d) Enforcing the temporary suspension of the invoice printing business as a penalty for the acts prescribed in Article 21 herein;

dd) Applying remedies stipulated in Article 10, 11, 12, 13, 14, 15 and 19 of Chapter II and III herein.

Article 35. Rules for determining and distributing authority to impose administrative penalties for tax or invoice-related violations

1. Regulations on the authority to impose administrative penalties for violations related to tax procedures or invoice-related violations of office holders specified in Article 32, 33 and 34 herein shall be applied to a single violation committed by an entity. Authority to fine individuals committing any violation against regulatory tax procedures or any invoice-related administrative violation and any act prescribed in Article 19 herein shall be equal to half of the authority to fine entities.

Authority to impose administrative penalties for the acts prescribed in Article 16, 17 and 18 herein shall be subject to clause 2 of Article 139 in the Law on Tax Administration.

2. Chiefs of specialized inspectorates shall have the authority to sanction administrative violations determined as part of the scope and objectives of inspections within the inspection time limits prescribed in laws on inspections.

3. In case where there is any tax or invoice-related administrative violation put under the sanctioning authority of multiple office holders, the office holder accepting the case of such violation first shall be responsible for dealing with this case.

4. If the case under discussion needs to be subject to fines, remedies and supplementary penalties that go beyond the authority prescribed herein, the person accorded the sanctioning authority who is currently handling the case must transfer the case file to the entity or person accorded the sanctioning authority.

Article 36. Issuance of tax or invoice-related administrative violation reports

1. Authority to issue tax or invoice-related administrative violation reports

If the persons accorded the sanctioning authority that are prescribed in Article 32, 33 and 34 herein or persons performing official duties of state administrative agencies detect any tax or invoice-related administrative violations, they shall have the authority to issue tax or invoice-related administrative violation reports.

2. Issuance of tax or invoice-related administrative violation reports

a) The issuance of tax or invoice-related administrative violation reports must conform to regulations laid down in laws on handling of administrative violations.

In case where a tax inspection or examination report clearly points out administrative violations, this report shall serve as the tax or invoice-related administrative violation report as provided in clause 1 of Article 108 in the Law on Tax Administration.

b) Issuance of electronic reports

If any taxpayer defers filing their tax registration application package, changing tax registration information, submitting their tax return or tax finalization documentation by electronic means, within not more than a working day after the date of the tax authority's electronically sending the acknowledgement of receipt of the tax registration application package or application documentation for change in tax registration information or the notice of acceptance of the tax return or the tax finalization documentation, the tax authority shall issue 01 copy of the electronic tax or invoice-related administrative violation report to the violating taxpayer through the portal of the General Department of Taxation, even including the case in which a taxpayer submits multiple sets of tax documentation.

Electronic tax or invoice-related administrative violation reports issued in conformity with the requirements concerning electronic transactions performed in the tax sector shall serve as a basis for the tax authority's issuance of administrative penalty charge decisions.

An electronic violation report must specify the reporting date (day, month, year), location; full name, title of the report maker; digital signature of the report maker; full name, address, TIN, 9-digit or 12-digit ID card number of the violating person or name, address, TIN of the violating entity; hour, date (day, month, year) of commission of the violation; description of act of administrative violation; rights and time limit for giving explanation about the violator’s act; receiving and handling authority. Signature of the violating entity or person affixed to an electronic violation report shall be optional.

Tax authorities shall be responsible for setting up information technology systems to match the demands for preparation and delivery of electronic administrative violation reports. Once information technology systems meet requirements for preparation and delivery of electronic administrative violation reports for acts of violation against regulations on other tax or invoicing procedures, the Minister of Finance shall determine the issuance and delivery of electronic administrative violation reports.

Article 37. Explanations about tax or invoice-related administrative violations

1. Cases requiring explanations about tax or invoice-related administrative violations

a) Tax or invoice-related administrative violations that are detected through tax inspections or examinations or cases requiring electronic administrative violation reports to be issued;

b) Administrative violations prescribed in Article 16, 17 and 18; clause 3 of Article 20; clause 7 of Article 21; Article 22 and 28 herein.

2. Explanation about tax or invoice-related administrative violations must conform to regulations laid down in laws on handling of administrative violations.

Article 38. Exceptions to tax or invoice-related administrative penalty charge decisions

1. The following cases shall be exempted from penalty charge decisions:

a) Cases are stipulated in Article 9 herein;

b) Subject matters of tax or invoice-related administrative violations are not identified;

c) The time limit for the imposition of an administrative penalty prescribed in Article 8 herein, or the time limit for the issuance of a penalty charge decision provided in the law on handling of administrative violations, has expired;

d) The violating person has died or gone missing; the violating entity has dissolved or been bankrupt during the period of consideration of a penalty charge decision, except the case prescribed in point c of clause 4 of Article 41 herein.

Bases for determining whether a person has died, gone missing; an entity has dissolved or been bankrupt, are subject to clause 2 of Article 41 herein;

dd) The file of a violation having a criminal sign has been referred for the criminal prosecution process.

2. With respect to exceptions to penalty charge decisions prescribed in point a, b, c and d of clause 1 of this Article, the person accorded the sanctioning authority shall not issue the penalty charge decision, but shall apply the prescribed remedy (if any). The decision on enforcement of the remedy must clearly state reasons for exception to the administrative penalty charge decision; the applicable remedy, responsibilities and time limit for execution thereof.

Article 39. Transmission and delivery of tax or invoice-related administrative penalty charge decisions

1. Within the duration of 02 working days from the date of grant of an administrative penalty charge decision, the person having the authority to issue such decision must send or transmit the decision to the violating person or entity, the authority in charge of collecting fines and other relevant authorities (if any) for the purpose of execution of the decision.

2. The administrative penalty charge decision must be electronically sent to the taxpayer’s mailing address registered with the supervisory tax authority if the sanctioned entity or person meets eligibility requirements for electronic tax transactions. Unless they meet such requirements, the penalty charge decision must be transmitted directly or sent in the form of registered mails by post as per clause 3 and 4 of this Article.

3. In case where the administrative penalty charge decision is transmitted directly, the officer transmitting such decision must make a report on transmission of that administrative penalty charge decision. In case where the penalty charge decision is transmitted directly but the violating entity or person deliberately ignore it, the competent person shall make a report on refusal to receive the decision attested by the local authority and, to such extent, the decision shall be deemed as sent and received.

4. With respect to the decision which is sent by post in the form of the registered mail, if the violating entity or person deliberately ignore it after 10 days from the date on which the administrative penalty charge decision is sent by post till the third time and returned; if the administrative penalty charge decision has been posted at the residence of the violating person, the office of the violating entity, or it is established that the violating person evades receiving the administrative penalty charge decision, the decision shall be deemed sent and received.

In case where the tax authority sends the administrative penalty charge by post, the delivery note of the postal agency (confirming the successful delivery of the administrative penalty charge decision to the violating entity or person) must be filed in the archives of sanctioning documents and records.

Article 40. Time limit for execution of tax or invoice-related administrative penalty charge decisions

1. Time limit for execution of tax or invoice-related administrative penalty charge decisions shall be 01 year from the decision-issuing date. Upon expiry of the aforesaid execution time limit, if the tax authority has not yet transmitted or sent the administrative penalty charge decision to the violating entity or person under the provisions of Article 39 herein, that decision shall become inactive.

If the administrative penalty charge decision requires the enforcement of any remedy, such remedy shall be enforced as usual.

2. If the sanctioned entity or person deliberately evades or defers execution of the decision, the time limit for execution of the penalty charge decision shall start from the date of termination of the act of evasion or deferment.

3. If the tax authority has transmitted or sent the administrative penalty charge decision to the violating entity or person as provided in Article 39 herein, but the sanctioned entity or person has not yet paid or has not fully paid fines, back taxes or deferred amounts, tax authorities must track amounts not yet paid on tax administration systems and apply measures to enforce recovery of outstanding taxes under regulations in order to fully collect amounts payable into the state budget.

Article 41. Execution of tax or invoice-related administrative penalty charge decisions in cases where sanctioned persons are dead or missing; sanctioned entities are dissolved or bankrupt

1. In case where the sanctioned person is dead or missing; the sanctioned entity is dissolved or bankrupt, fine amounts specified in penalty charge decisions shall be invalidated while remedies specified in penalty charge decisions remain in force.

The person issuing the penalty charge decision must issue the decision on execution of part of that decision within 60 days after receipt of the notice stating that the sanctioned person is dead or missing; the sanctioned entity is dissolved or bankrupt.

If the penalty charge decision does not include any remedy, the person accorded the sanctioning authority shall issue the decision on suspension of execution of the penalty charge decision.

2. Bases for determining whether a person has died, gone missing; an entity has been dissolved or bankrupt:

a) The death certificate or the notice of death or other substitutes of notice of death under laws on civil status, or the court’s decision stating a person is dead or missing (original or duplicate copy required by laws) with respect to the case of a dead or missing person;

b) The notice of dissolution of an enterprise or cooperative issued by the business registration authority or the cooperative registration authority with respect to the case of dissolution of an enterprise or cooperative; the notice of termination of TIN of the tax agency with respect to the case in which the dissolved entity is not an enterprise or cooperative (original or duplicate copy required by laws);

c) The bankruptcy declaration decision with respect to the bankrupt enterprise or cooperative (original or duplicate copy required by laws).

3. The decision on execution of a part of the penalty charge decision must include the followings: Revocation of the fine and reasons for such revocation; contents of the penalty charge decision that continue to be executed, name of the entity or person responsible for the continued execution of the penalty charge decision; execution time limit.

4. The succession of obligations to execute the remedy from the dead, missing person or the dissolved or bankrupt entity

a) The successor shall be responsible for executing the remaining part of the penalty charge decision regarding the remedy within the scope of the decedent's estate.

If the estate has not yet been divided, the remaining part of the penalty charge decision regarding the remedy that is bequeathed by the decedent shall be executed by the custodian of such estate.

If the estate has already been divided, each successor shall execute the remaining part of the penalty charge decision regarding the remedy that is bequeathed by the decedent, respectively, provided that such part does not exceed the value of estate that he/she inherits, unless otherwise agreed.

In case where the State or any entity receives the estate under will, they shall be responsible for executing the remaining part of the penalty charge decision regarding the remedy that is bequeathed by the decedent in the same way as in the case of the successor who is a person.

If there is none of the testate successor or the successor by operation of law, or there is the successor who disclaim the estate, regulations laid down in civil legislation shall be implemented.

b) The court-appointed guardian or custodian of the property owned by the person declared missing shall be responsible for executing the remaining part of the penalty charge decision (the remedy) within the scope of the property that he/she manages on behalf of the missing person.

c) If the dissolved entity is a subordinate entity or a business location of an enterprise; the entity is dissolved due to the reorganization of an enterprise, cooperative or other entity; the branch or representative office of a foreign trader or the management office of a foreign contractor in Vietnam is dissolved, the dissolved entity shall not be exempted from executing any fine prescribed in a penalty charge decision.

Article 42. Interest amounts on late payment of fines for tax or invoice-related administrative violations

1. Calculation of the interest amounts on late payment of fines

a) Any person or entity paying fines for tax or invoice-related administrative violations late shall be charged an interest amount on the deferred fine at the rate of 0.05%/day.

b) The number of days past due shall include statutory public holidays or days-off, and shall start from the date succeeding the deadline for payment of the fine and end on the date preceding the date of the entity or person’s payment of the fine into the state budget.

2. Late payment interest amounts shall not be charged in the following cases:

a) They shall not be charged during the pending period of the fine charge decision;

b) They shall not be charged during the interval before the fine charge decision is issued;

c) They shall not be charged if the fine amount is not due yet with respect to cases of permission for the installment payment of the fine.

3. In case where the violating entity or person unwillingly pays the fine or the late payment interest amount into the state budget, the tax authority directly supervising that entity or person shall be responsible for notifying and pushing them to make the statutory payment.

Article 43. Exemption from fines for tax or invoice-related administrative violations

1. Any taxpayer subject to penalties for tax or invoice-related violations that suffers material loss in case of force majeure events prescribed in clause 27 of Article 3 in the Law on Tax Administration shall be exempt from fines.

2. After getting away the deduction of the insured value or indemnity value (if any), the maximum amount of exemption 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.

3. Documents submitted to apply for the exemption from fines for tax or invoice-related administrative violations, including:

a) Application form for the exemption from the fine, clearly stating reasons for such application; determining the value of the damaged property or goods; the amount of fine or interest on late payment of the fine (if any) in question;

b) Written request for fine exemption from the competent person or his/her host entity issuing the penalty charge decision, clearly stating reasons for application for the fine exemption; the amount of fine or the amount of interest on late payment of the fine (if any) in question;

c) Written document stating that the taxpayer is affected by any natural disaster, calamity, disease, fire or sudden accident or other force majeure events under the Government’s regulations, time and location of occurrence of the force majeure event under discussion, from one of the following entities or authorities: Police of communes, wards and townships; People's Committees of communes, wards and towns; Management boards of industrial parks, export processing zones and economic zones where the force majeure event took place; rescue or emergency response services; entities having competence in declaring the disease (an original copy or notarized or authenticated copy);

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

dd) 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 g of this clause;

e) The penalty charge decision or the notice of the tax authority regarding the outstanding amount of fine determined at the time of occurrence of the force majeure event under discussion and at the time of submission of the application for fine exemption;

g) 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);

h) 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);

4. Authority to grant the fine exemption

a) Heads of Taxation Sub-departments shall, within their remit, have authority to grant fine exemptions for administrative penalty charge decisions issued by Leaders of Tax Teams;

b) Directors of Taxation Departments shall, within their remit, have authority to grant fine exemptions for administrative penalty charge decisions issued by Heads of Taxation Sub-departments or Leaders of Inspectorates of Taxation Departments;

c) Directors of General Department of Taxation shall have authority to grant fine exemptions for administrative penalty charge decisions issued by Directors of Taxation Departments or Leaders of Inspectorate of General Department of Taxation;

d) Minister of Finance shall have authority to grant fine exemptions for administrative penalty charge decisions issued by Directors of General Department of Taxation or Chief Inspector of the Ministry of Finance;

dd) Directors of Departments of Finance shall have authority to grant fine exemptions for administrative penalty charge decisions issued by Chief Inspectors of Departments of Finance;

e) Chief Inspector of Ministry of Finance shall have authority to grant fine exemptions for administrative penalty charge decisions issued by Leader of the Inspectorate of Ministry of Finance;

g) Presidents of provincial-level People’s Committees shall have the authority to grant fine exemptions for administrative penalty charge decisions issued by Presidents of district-level People’s Committees and by themselves.

5. Application and documentation requirements for fine exemption

Taxpayers prescribed in clause 1 of this Article must file applications for exemption from the remaining amounts of fines owed or the entire fines, enclosing documents and records, to persons/entities issuing penalty charge decisions.

Within the duration of 03 working days of receipt of the submitted application for fine exemption, the person issuing the administrative penalty charge decision must transfer the application, enclosing documents and records on the case to the person having authority to issue the decision on fine exemption, and inform the applicant of this.

Within the duration of 30 working days of receipt of the submitted application and documents for fine exemption, the person having authority to grant fine exemption must issue the decision on fine exemption or the notice of refusal of grant of fine exemption to the applicant, the person issuing the penalty charge decision. In case where the person having authority to grant fine exemption does not disapprove of the fine exemption, clear reasons for such disapproval must be stated.

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

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

8. If any taxpayer has already been exempted from the fine, and the competent authority or tax authority finds that such fine exemption is in breach of regulations laid down in this Article, the person having authority to grant fine exemption may issue the decision to revoke or adjust the fine exemption decision. The tax authority directly supervising the taxpayer shall be responsible for recouping the amount of fine exemption in breach of regulations and charging the amount of interest on the late payment of such amount into the state budget as provided in Article 42 herein. The date on which the amount of interest on the late payment of the amount of fine exemption in breach of regulations shall be the date on which the sanctioned entity or person submits all required documents to apply for fine exemption.