Thông tư 04/2009/TT-BTC ngày 13/01/2009 hướng dẫn hoàn thuế giá trị gia tăng theo Nghị quyết 30/2008/NQ-CP do Bộ Tài chính ban hành

CIRCULAR

ON REFUND OF VALUE ADDED TAX PURSUANT TO RESOLUTION 30/2008/NQ-CP OF THE GOVERNMENT DATED 11 DECEMBER 2008

Pursuant to the Law on Value Added Tax dated 3 June 2008 and its implementing guidelines;
Pursuant to the Law on Management of Tax dated 29 November 2006 and its implementing guidelines; Pursuant to clause 1(c) of Part III of Resolution 30/2008/NQ-CP of the Government dated 11 December 2008 on urgent solutions for alleviating the economic downturn by preserving economic growth and ensuring the welfare of society;
Pursuant to Decree 118/2008/ND-CP of the Government dated 27 November 2008 on functions, duties, powers and organizational structure of the Ministry of Finance;
The Ministry of Finance hereby provides the following guidelines on refund of input VAT on actually exported goods which do not yet have vouchers proving payment for the goods via a bank, as follows:

Part I

ENTITIES ENTITLED TO A PROVISIONAL REFUND OF VAT AND THE AMOUNT OF REFUNDS

1. Entities entitled to a provisional refund of VAT pursuant to this Circular shall be organizations producing and conducting business in export goods (hereinafter all referred to as enterprises) and which have goods actually exported for which the foreign party has not yet made payment via a bank in accordance with the export contract, except for the following cases for which a prior check must be made before a refund is granted:

- Refunds pursuant to any international treaty of which the Socialist Republic of Vietnam is a member, and which provide that there must be a prior check before a tax refund is granted;

- Enterprises requesting their first tax refund; except for enterprises producing or processing export goods which have a production establishment in a locality which provides provisional VAT refunds and such enterprises have received provisional VAT refunds;

- Enterprises guilty of tax evasion or tax fraud in the two year period prior to the date of their request for a tax refund, with the amount or level of the tax evasion or tax fraud as stipulated in article 14 of Decree 98/2007/ND-CP of the Government dated 7 July 2007 on dealing with breaches of the law on tax;

- Enterprises which have an amount of input VAT not yet fully credited or an excess amount of VAT already paid when conducting tax finalization on merger, consolidation, de-merger, dissolution, bankruptcy, change of form of ownership or termination of operation; or on conducting tax finalization on assignment, sale or leasing out of a State enterprise;

- Enterprises which, at the expiry of the time stipulated in a tax notice, failed to explain or supplement their application file for a tax refund pursuant to the request of the tax office, or failed to prove that the amount claimed for refund is correct.

2. The amount of VAT which shall be provisionally refunded and applicable to goods actually exported for which there are not yet vouchers proving payment via a bank shall be ninety per cent (90%) of the refundable input VAT as claimed in the application file of the enterprise.

In the case of goods exported pursuant to an export contract stipulating both the method of delayed payment and the term of such delayed payment and which do not yet have vouchers proving payment via a bank, all of the input VAT shall be refunded pursuant to clause 1.3 (c3) of section III of

Part B of Circular 129/2008/TT-BTC¹ of the Ministry of Finance dated 26 December 2008 guiding implementation of the Law on VAT and Decree 123/2008/ND-CP of the Government dated 8 December 2008 on the Law on VAT.

3. In addition to the above stipulated export goods entitled to provisional refunds, in order to promptly facilitate enterprises which provide an application file requesting VAT refund in other cases (comprising both cases of prior refund of VAT and conducting a check after, and cases for which a prior check must be made before a refund is granted), the tax office, when inspecting application files, shall provide a tax refund when the conditions have been satisfied without waiting to conduct a check to verify that all of the items in the file are correct; if there is any doubt about the amount claimed for the refund, then the tax office shall request the applicant to provide an explanation or additional documents and shall then provide a tax refund if there are adequate grounds for doing so. The time taken to conduct checks and resolve applications must not exceed the time-limits specified by law.

Part II

APPLICATION FILES FOR VAT REFUNDS

1. Application files for VAT refunds shall be prepared in accordance with the guidelines in clause 2 of Section 1 of Part G of Circular 60/2007/TT-BTC of the Ministry of Finance dated 14 June 2007 providing guidelines for implementation of the Law on Tax Management and Decree 85/2007/ND-CP of the Government dated 25 May 2007.

Any enterprise requesting a provisional VAT refund and which does not yet have vouchers proving payment for the export goods via a bank, must record in its request on standard Form 5 issued with Circular 128 referred to above, the following line: "The enterprise undertakes that it will present a list of vouchers proving payment for the export goods via a bank, five (5) days at the latest after the enterprise is in fact paid for the export goods".

2. With respect to the 10% of VAT which remains un-refunded pursuant to the application file, an enterprise shall not be required to re-submit such file if it does not need to amend or supplement it, but need only send the following additional documents to the tax office:

- A request for refund specifying that 90% of the refund has already been provisionally refunded pursuant to a Decision (giving the number and date of the decision) of the Director of the Tax Division; and specifying the remaining 10% refund amount which the enterprise requests;

- List of vouchers proving payment via a bank (pursuant to clause 2.1 of Section 1 of Part G of Circular 60 referred to above).

3. Enterprises shall be legally liable for the validity and accuracy of their application files, source documents and invoices and other relevant data provided in their requests for refund as sent to the tax office.

Part III

PAYMENT OF VAT REFUNDS

1. Tax offices shall be responsible to receive, check and consider application files for tax refunds from enterprises and to resolve such applications in accordance with law. Tax offices shall issue decisions granting provisional VAT refunds to enterprises in the category of entitlement to a refund prior to a check, specifying in such decisions the amount of the provisional refund pursuant to the request from the enterprise.

2. Tax offices must open files to monitor VAT provisional refunds which they provide.

Tax offices shall grant a further refund of the remaining 10% when enterprises lodge requests with the documents stipulated in clause 2 of Part II of this Circular.

3. The time-limits for providing tax refunds shall be as follows:

- Not to exceed seven (7) business days from the date of receipt of a complete application file for the tax refund from an enterprise, in the case of export goods for which there are not yet vouchers proving payment via a bank; and not to exceed four (4) business days from the date of receipt of a request for a refund of the remaining 10%.

- In the case of provisional refunds provided pursuant to the results of a check of the application file requesting a refund:

+ Not to exceed eight (8) business days from the date of receipt of a complete application file in the case of files in the category for which a refund is first provided and then a check conducted later;

+ In the case of application files in the category for which a check must be conducted prior to providing a refund, the tax office must, within five (5) business days from the date of receipt of a complete application file, conduct a check of the amount claimed for refund. The procedures and time-limits for conducting a check on site at the enterprise shall be implemented in accordance with the Law on Tax Management and its current implementing guidelines, however the total time-limit for the check, verification and issuance of a decision providing a refund in these cases must not exceed thirty (30) the enterprise.

If during the course of the check the tax office determines that the amount claimed for the refund satisfies the conditions, it shall immediately issue a decision granting the refund; but if the tax office requires further verification, explanation or supplementing documents then it must issue a notice to the enterprise.

4. Inspections and dealing with breaches

In the case of enterprises entitled to a tax refund with a check to be conducted later, the tax office shall be responsible to conduct checks in accordance with the Law on Tax Management and guidelines of the General Department of Taxation, and the number of enterprises checked within any one year shall not be less than 50% of the number of enterprises falling within this category, while the remaining 50% shall be subject to a check in the following year. If the tax office reports any breach of law in its results of carrying out a check, it shall recover the amount of VAT provisionally refunded and deal with the breach of the law on tax in accordance with the guidelines in Circular 61/2007/TT-BTC of the Ministry of Finance dated 14 June 2007 on dealing with breaches of the law on tax.

Part IV

ORGANIZATION OF IMPLEMENTATION

This Circular shall be of full force and effect after forty-five (45) days from the date of its signing, and shall apply to application files for VAT refunds as from 1 January 2009.

The General Department of Taxation shall instruct and guide provincial Tax Divisions to implement this Circular.

Any problems arising during implementation should be promptly reported to the Ministry of Finance for additional guidelines.

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