Chapter III
TAX LIABILITY IMPOSITION
Article 14. Cases of tax liability imposition
Tax liability will be imposed by the tax authority if the taxpayer:
1. Fails to apply for taxpayer registration in accordance with Article 33 of the Law on Tax administration.
2. Fails to declare or truthfully and accurately declare tax in accordance with Article 42 of the Law on Tax administration.
3. Fails to submit supplementary tax documents or adequate and accurate supplementary tax documents as the basis for determination of tax payable as requested by the tax authority.
4. Fails to provide or truthfully and accurately provide information in accounting books as the basis for determination of tax obligations.
5. Fails to present accounting books, invoices and documents necessary as the basis for tax calculation by the deadline or within the time limit for tax audit or tax inspection at the taxpayer’s premises.
6. Fails to implement the decision on tax audit within 10 working days from the day on which the decision is signed, unless the inspection date is delayed as per regulations.
7. Fails to implement the decision on tax inspection within 15 working days from the day on which the decision is signed, unless the inspection date is delayed as per regulations.
8. Sells, buys, exchanges goods with unusual values; records unusual value of goods.
9. Buys, exchanges goods, services using illegal invoices; illegally uses invoices for actual goods and services as discovered by an investigating or inspecting authority while revenues and expenses as the basis for tax calculation have been declared.
10. Is suspected absconding or liquidating assets to avoid tax obligations.
11. Conducts misleading or false transactions to reduce tax obligations.
12. Fails to declare values of related-party transactions (if any) or fails to provide information about related-party transactions (if any) in accordance with tax administration regulations.
Article 15. Basis for tax liability imposition
1. Imposition of separate elements of taxation:
a) In one of the following cases, separate elements of taxation shall be imposed:
a.1) Through inspection of the tax declaration dossier, the tax authority suspects that the taxpayer does not fully or accurately declare certain elements of taxation and fails to supplement or fully and accurately supplement the declaration as requested by the tax authority.
a.2) Through inspection of accounting books, invoices and relevant documents of the taxpayer or relevant organizations or individuals, the tax authority is able to prove that the taxpayer does not accurately or truthfully record certain elements of taxation.
a.3) The taxpayer records false selling prices for goods and services and in order to reduce the taxable revenue; records false buying prices for goods serving business operation in order to increase the amount of VAT deductible or reduce tax payable.
a.4) The taxpayer has submitted the tax declaration dossier but is not able to determine the elements of taxation, or has determined the elements of taxation but not able to calculate tax payable themselves.
a.5) One of the cases specified in Clauses 10, 11, 12 Article 14 of this Decree.
b) Basis for tax liability imposition
b.1) For taxpayers that are organizations:
The tax authority’s database and trade database; documents and effective inspection verdicts; verification results; minimum average tax payable of 03 local business establishments selling the same commodities or having the same business lines and scale. In case such business establishments are not available or are available but information about their commodities, business lines or scale is inadequate, information about business establishments in other areas may be used.
b.2) For individuals transferring real estate; receiving real estate as inheritance or gift
The taxable price will be imposed by the tax authority according to market price if the taxable price declared by the individual is lower than market price. The taxable price imposed by the tax authority must not be lower than the applicable price imposed by the People’s Committee of the province.
c) The tax authority shall impose tax liability on the basis of separate elements in accordance with effective tax laws.
2. Imposition of proportional tax on revenue:
a) Organizations paying VAT using the subtraction method; individual businesses paying taxes using the declaration method shall have proportional tax on revenue imposed in the cases specified in Clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 Article 14 of this Decree.
b) Basis for proportional tax imposition
The tax authority’s database and trade database; documents and effective inspection verdicts; verification results; minimum revenue of 03 local business establishments selling the same commodities or having the same business lines and scale. In case such business establishments are not available or are available but information about their commodities, business lines or scale is inadequate, information about business establishments in other areas with the same natural and economic conditions may be used.
c) The tax authority shall determine the amount of tax payable according to the imposed revenue in accordance with effective tax laws.
Article 16. Tax liability imposition authority, procedures and decision
1. Authority for tax liability imposition
the Director of the General Department of Taxation, Directors of Provincial Departments of Taxation and Directors of District-level Departments of Taxation have the authority to impose tax liability.
2. Procedures for tax liability imposition
a) When imposing tax liability, the tax authority shall send a written notice to the taxpayer and issue the tax liability imposition decision, which must specify the reasons and basis for imposition, the tax amount payable and payment deadline.
b) In case the tax authority imposes tax liability through tax audit or tax inspection, the reasons and basis for imposition, the tax amount payable and payment deadline shall be written in the tax audit or tax inspection record and tax decision issued by the tax authority.
c) In case tax liability is imposed due to the taxpayer’s violation, the tax authority shall impose administrative penalties and calculate late payment interest as prescribed by law.
3. Decision on tax liability imposition
a) When imposing tax liability, the tax authority shall issue a decision (Form No. 01/ADT in Appendix III hereof) and send it to the taxpayer within 03 working days from the day on which it is signed;
If the taxpayer has to pay tax under the tax authority’s notice, such a decision is not necessary.
b) The taxpayer shall pay tax as imposed by the tax authority. If the taxpayer does not concur with the tax liability imposed by the tax authority, the taxpayer still has to pay the tax and may request the tax authority to provide explanation or file a complaint or lawsuit against the tax authority’s decision.
Article 17. Imposition of tax liability on exports and imports
1. In the cases specified in Clause 1 Article 52 of the Law on Tax Administration and Clause 4 of this Article, the customs authority shall determine the elements of taxation and tax accounting method to determine the amount of tax payable by the taxpayer.
2. Tax liability shall be imposed on exports and imports while carrying out customs procedures or after customs clearance or conditional customs clearance is granted as prescribed in Clause 4 of this Article.
3. Basis for tax imposition: commodity name, code, quantity, origin, value, tax rate, presumptive tax, mixed tax; tax accounting method; customs dossier; accounting records and electronic data stored by the enterprise and the customs authority; inspection result or verdict given by a competent authority or court judgment/verdict, other documents and information relevant to the exports or imports prescribed in Clause 2 Article 52 of the Law on Tax Administration.
4. Tax liability shall be imposed by the customs authority in the cases specified in Clause 1 Article 52 of the Law on Tax Administration. To be specific:
a) The taxpayer includes illegal documents in the customs dossier, application for tax exemption, reduction, refund or cancellation.
b) The taxpayer fails to provide or accurately and adequately provide information relevant to the determination of tax obligations; incorrectly declares the eligibility for tax exemption, reduction, refund or cancellation; fails to submit a report or schedule or submits inaccurate report to the customs authority; fails to supplement or fully and accurately supplement the tax declaration dossier on schedule as requested by the customs authority.
c) The taxpayer fails to provide, refuses to provide or delays providing accounting records, documents and data relevant to the determination of tax payable or tax exempt, reduced, refunded or cancelled.
d) The taxpayer fails to prove, explain or punctually prove, explain the determination of tax obligations as prescribed by law.
dd) the taxpayer fails to implement the decision on tax audit or post-customs clearance inspection within 10 working days from the receipt of the decision; fails to implement the tax inspection decision within 15 days from the day on which it is announced and the customs authority has ample basis to impose tax liability, unless the time limit for tax audit, tax inspection or post-customs clearance inspection is extended.
e) The taxpayer fails to provide or adequately and fully provide data from the accounting books to determine tax obligations.
g) The customs authority has ample evidence or basis for concluding that the declared value is untruthful.
h) Fraudulent transactions are committed in a manner that affects the amount of tax payable.
i) The taxpayer is not able to calculate the amount of tax payable.
k) The imports are eligible for tax exemption or not subject to tax but repurposed or sold domestically by the taxpayer without declaring and paying tax on the new customs declaration as prescribed by law; raw materials and supplies are imported after 05 years from the commencement date of a project eligible for special investment incentives or a project of investment in an extremely disadvantaged area and thus no longer eligible for tax exemption but the taxpayer fails to declare and pay tax; in-country exports or imports are not conformable with tax, customs and trade laws.
In case the quantity of raw materials and supplies are imported for export processing or export production is smaller (negative difference) or greater (positive difference) than the quantity reported to the customs authority and the customs authority is able to determine the reason for such difference, the customs authority shall impose tax liability on the difference, whether it is negative or positive.
In case the quantity of raw materials and supplies are imported for processing or production of domestic exports is smaller (negative difference) or greater (positive difference) than the quantity reported to the customs authority and the customs authority is able to determine the reason for such difference, the customs authority shall impose tax liability on the difference, whether it is negative or positive.
The customs authority shall not impose tax liability if the redundant raw materials and supplies are still used for export processing or export production. In this case, the enterprise shall make sure these excess raw materials and supplies are used for their intended purposes until all products are exported.
In case there is a positive difference in quantity of goods imported for processing while the processing contract has expired and finalized by the processor, the taxpayer shall re-export the excess goods, pay tax on the excess goods or transfer them to another processing contract. If tax on the excess goods is not declared by the taxpayer, the customs authority shall impose tax liability.
l) The imports are distrained and put up for auction before customs procedures are completed under a decision of a competent authority or the court and become subject to tax, in which case the customs authority shall impose tax liability an inform the authority that collects the auction payment, except confiscated imports under the state ownership.
m) The imports are exempt from tax or pledged by the declarant as collateral for loans; Collateral is liquidated to recover debts but the taxpayer has not prepared a new customs declaration, has not fully paid tax in accordance with customs laws.
n) In other cases where the customs authority, inspection or audit authority carries out an inspection or audit at the taxpayer’s premises or at the customs authority as prescribed in Point b Clause 2 Article 21 and Point b Clause 2 Article 22 of the Law on Tax Administration and discovers that the taxpayer fails to declare or incorrectly declares the amount of tax eligible for exemption, reduction, refund or cancellation.
5. Tax liability imposition steps
a) Identify the case in which tax liability has to be imposed in accordance with Clause 4 of this Article.
b) Calculate tax amount:
The tax amount depends on the commodity name, quantity, category, code, origin, value, tax rate, applied exchange rate and tax accounting method.
Imposition of tax on part of the goods of the same category under multiple customs declarations or the first export/import declaration in which tax has been determined:
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Tax payable
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=
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Total tax on goods of the same category in the customs declarations
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X
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Quantity of goods on which tax is imposed
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Total quantity of goods of the same category in the customs declarations
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If goods under the first import declaration are not subject to tax or there is no data about tax amount or the customs declaration has been destroyed in accordance with customs laws or there is no customs declaration, the customs authority shall impose tax according to the commodity name, quantity, category, code, origin, value, tax rate, applied exchange rate and tax accounting method or identical or similar goods in the customs authority’s database at the exchange rate applicable when the decision on tax imposition is issued.
c) Determine the difference between tax payable and tax declared by the taxpayer.
d) Decide the tax payment deadline.
dd) Issue a record as the basis for tax liability imposition, except in the following cases:
The taxpayer is not able to calculate the tax amount payable themselves; the customs authority imposes tax liability under the conclusion given by an inspection or audit authority or another competent authority after an audit or inspection is carried out at the taxpayer’s premises; the imports are eligible for tax exemption and are collateral for loans as prescribed in Point m Clause 4 of this Article; the imports are distrained and put up for auction under a decision of a competent authority or the court before customs procedures are completed and become subject to tax as prescribed in Point 1 Clause 4 of this Article.
e) Issue a notice according to Form No. 01/TBXNK in Appendix II hereof to the taxpayer or the authorized tax declarant, guarantor or the person authorized to pay tax on behalf of the declarant. The notice shall specify the legal basis for tax liability imposition, tax accounting method, the amount of each tax imposed, payment deadline and the point of time after which late payment interest and fine will be charged.
In case tax liability is imposed by the customs authority on the basis of a written verdict issued by another competent authority prescribed in Point h Clause 1 Article 52 of the Law on Tax Administration and Point n Clause 4 of this Article, the notice sent to the taxpayer shall specify that tax liability is imposed in this manner, tax amount and payment deadline.
In case tax liability is imposed by the customs authority on the basis of a written verdict issued by another competent authority prescribed in Point h Clause 1 Article 52 of the Law on Tax Administration and Point n Clause 4 of this Article, the notice sent to the taxpayer shall specify that tax liability is imposed in this manner, tax amount and payment deadline.
g) Issue the decision on tax liability imposition according to Form No. 01/QDADT/TXNK in Appendix III hereof; send it to the declarant in accordance with Point k of this Clause. The decision shall specify the reasons, legal basis, amount of tax imposed, payment deadline and point of time after which late payment interest is charged.
h) In case the decision on tax liability imposition is inaccurate or inadequate, the customs authority shall issue a supplementary decision according to Form No. 01/QDADT/TXNK in Appendix III hereof.
In case the decision on tax liability imposition is not conformable with regulations of law, the issuing authority shall issue a cancellation using Form No. 02/QDHADT/TXNK in Appendix III hereof.
i) In case tax, late payment interest, fine have been paid by the taxpayer under a decision on tax liability imposition that is revised or cancelled; tax, late payment interest, fine are overpaid by the taxpayer, the customs authority shall refunded the excess amount to the taxpayer in accordance with Article 60 of the Law on Tax Administration.
k) The notice of reasons for tax liability imposition, the decision on tax liability imposition, the decision on revising or cancelling the decision on tax liability imposition shall be sent within 08 working hours after they are signed.
6. Tax payment deadline.
a) Tax shall be paid by the deadlines specified in Clause 4 Article 55 of the Law on Tax Administration.
b) In case the taxpayer does not specify tax on the customs declaration; the customs declaration is cancelled in accordance with customs law; imports have been substantially changed through local processing; imports that are eligible for tax exemption or not subject to tax are put up as collateral for a loan on which the taxpayer has defaulted; imports are distrained and put up for auction under a decision of a competent authority or the court, the tax payment deadline shall be the issuance date of the decision on tax liability imposition.
c) In case of imposition of tax liability on goods imported for export processing or export production, imports that are not subject to tax, imports under multiple customs declarations with preserved status quo, the tax payment deadline shall be imposed according to the last import declaration that contains the taxed goods if the customs authority is not able to determine the exact quantity of goods under each import declaration.
If the quantity of taxed goods under the last import declaration is smaller than the quantity of goods on which tax liability is imposed, the difference in quantity shall apply the tax payment deadline of the previous import declaration of the same commodity that is imported in the same manner.
7. Authority to issue, revise, cancel decisions on tax liability imposition
The Director of the General Department of Customs, Directors of Provincial Customs Departments, Post-customs Clearance Inspection Departments and district-level customs departments have the authority to issue, revise, cancel decisions on tax liability imposition.
8. Responsibilities of tax declarants
a) Tax declarants and persons authorized by tax declarants, guarantors, persons authorized to pay tax on behalf of tax declarants shall fully pay the tax imposed, fine and late payment interest in accordance with Article 54 of the Law on Tax Administration.
In case the imports are exempt from tax or pledged by the declarant as collateral for loans; the collateral is liquidated to recover debts but the taxpayer has not prepared a new customs declaration, has not fully paid tax as prescribed in Point m Clause 4 of this Article, the credit institution shall pay tax on behalf of the declarant.
In case customs procedures for imports are not completed and the imports are distrained and put up for auction to enforce a customs-related tax decision; goods that are initially eligible for tax exemption or not subject to tax and distrained and put up for auction under decision of a competent authority or the court and become subject to tax, the organization that collects auction payments shall pay tax to the customs authority.
b) If the tax declarant, the person authorized by the tax declarant, the guarantor, the person authorized to pay tax on behalf of the tax declarant does not concur with the decision on tax liability imposition, they still have to pay tax, late payment interest and fine unless a competent authority issues a decision to suspend the decision on tax liability imposition as prescribed in Clause 1 Article 61 of the Law on Tax Administration.
Tìm kiếm
Nghị định 126/2020/NĐ-CP (Bản Word)
Nghị định 126/2020/NĐ-CP (Bản Pdf)