Chapter II
TAX INSPECTION
Article 148. Tax inspection principles
Tax inspection shall be carried out in accordance with the Law on Tax administration and legislation on inspection.
Article 149. Purposes of tax inspection
Tax inspection is to find weaknesses in the management mechanism, policies, legislation on customs and taxation on exported and imported goods request competent authorities to take necessary measures; prevent, discover and penalize violations against legislation on taxation and customs.
Article 150. Inspected entities
Inspected entities are the agencies, organizations, and individuals in terms of compliance with legislation on customs, taxation, and other duties of exported and imported goods.
Article 151. Contents of tax inspection
1. Tax inspection contents are specified in Article 13 of the Government's Decree No. 82/2012/NĐ-CP dated October 09, 2012 on organization and operation of financial inspection.
2. During the inspection, the inspectorate must comply with the requirements, contents and time limit on the decision on inspection. If the contents of the decision on inspection must be changed, the change must comply with legislation on inspection.
Article 152. Tasks and entitlements of the chief and members of the inspectorate
During the tax inspection, the chief Article 152. Tasks and entitlements of the chief and members of the inspectorate
Article 153. Cases of tax inspection
The customs authority shall carry out a tax inspection in the cases mentioned in Article 81 of the Law on Tax administration. The cases of tax inspection are specified in Clause 2 Article 81 of the Law on Tax administration, particularly when following signs of violations against the legislation on taxation are found:
1. Violations of legislation on taxation are recommitted;
2. Violations are committed in multiple localities;
3. The violations involve multiple organizations and individuals (the customs authority suspects that the taxpayer collaborates with many organizations and individuals to avoid tax);
4. Signs of tax evasion;
5. Signs of disposal of documents and evidence to avoid tax during the post-clearance inspection on company premises are found;
6. Signs of new tax offences are found after the customs authority finishes the post-clearance inspection on company premises;
7. The case is complicated and serious such as: the amount of tax avoided is tremendous, the taxpayer uses illegal or forged documents to make tax statements.
Article 154. The power to decide tax inspection
Tax inspection shall be decided by the Director of the General Department of Customs and Directors of Customs Departments.
Article 155. Collection of information about the inspected entity
1. The information being the basis for deciding inspection must be specific and directly related to the objects and the case.
2. Sources of information:
a) Information collected from official sources of the customs (database system about the taxpayer, documents, exported and imported goods; dossier examination result, post-clearance inspection result, signs of violations informed by customs units, etc.).
b) Information collected outside the customs sector (from other agencies and units related to export and imports such as tax authorities, banks, couriers, insurers, verifiers, company associations, feedbacks from television and radio, complaints and denunciations filed by other organizations and individuals).
c) Other information collected by the post-clearance inspection and smuggling prevention forces (from informants, international cooperation, and other sources).
Article 156. Making reports and inspection plans
1. Analyze the information collected, make a report with the following contents:
a) The overall condition of the company, its export and import (primary exported and imported goods, quantity of customs declarations, business form, export and import turnover, tax incurred, fulfillment of tax obligation, compliance with law);
b) Assessment of significant problems, signs of violations against legislation on taxation, nature and scale of risk to revenue;
c) Suggestion of inspection contents and plan, specifying the foci, the organizations and individuals that need inspecting and verifying.
2. Make an inspection plan with the following contents:
a) Purposes and requirements of the inspection;
b) Inspected entities;
c) Scope of inspection;
d) Contents of inspection;
dd) Intended time of inspection.
The inspection plan shall specify necessary tasks, methods, locations, time of commencement and time of completion, personnel, and tasks of members of the inspectorate.
If the inspection plan must be changed during the inspection, the chief of the inspectorate shall send a written request to the person that decides the inspection for permission. The written request for permission to change the inspection plan must specify the reasons, changed contents, and other contents (if any); If the persons that decides the inspection makes a written approval of the change, the chief of the inspectorate shall comply with such approval.
3. The inspection plan of the Customs Department shall be sent to the General Department of Customs for cooperation among the units.
Article 157. The inspectorate
A inspectorate consists of a chief and members. A deputy chief may be appointed to assists the chief where necessary, and is responsible to the chief for his tasks.
Article 158. Time limit for inspection
1. An inspection carried out by the General Department of Customs shall last no more than 45 days from the day on which the decision on inspection is announced. This time limit may be extended in complicated cases, but not more than 70 days.
2. An inspection carried out by a Customs Department shall last no more than 30 days from the day on which the decision on inspection is announced. This time limit may be extended in complicated cases, but not more than 45 days.
Article 159. Decision on inspection
1. A decision in inspection shall contain:
a) The legal basis for inspection;
b) The objects, contents, scope, and purposes of the inspection;
c) Time limit of the inspection;
d) The chief and members of the inspectorate.
2. The decision on inspection must be sent directly or by registered mail to the inspected entity within 03 working days, except for surprise inspection.
3. Within 15 days from the day on which the decision in inspection is signed, the chief of the inspectorate shall announce the decision on inspection to the inspected entity.
If the company fails to comply with the decision on inspection, the chief or members of the inspectorate shall impose administrative penalties or request a competent person to impose penalties as prescribed by law.
Article 160. Carrying out the inspection
During the inspection, the inspectorate shall perform the following tasks:
1. Announce the decision on inspection:
a) The chief of the inspectorate shall introduce its members, read the decision on inspection out loud, explain the purposes, requirements, and contents of the inspection, announce the work schedules and other tasks related to the inspection. If the tax inspection also involves the subsidiaries, branches, or affiliates, the chief of the inspectorate shall provides the list, time, inspection contents, rights and obligations of parties for the inspected entity to prepare.
b) Inform the inspection plan and request the inspected entity to provide documents related to the inspected operations;
c) Request the representative of the inspected entity to report the overall condition of the company in terms of its business line, organizational structure, functions, tasks, and accounting methods of its subsidiaries, branches, or affiliates; methods of business organization, accounting standards, fiscal year; quantity of employees, wages; its partners (if any).
d) The announcement of the decision on inspection must be recorded in writing.
2. Receive accounting documents and financial statements (hereinafter referred to as documents) related to the exported or imported goods that are granted clearance. If such documents are stored in computers or other storage devices, such devices must be given to the inspectorate. The inspectorate shall check, preserve, and use documents properly without losing any of them. If the status quo of documents must be protected, the chief of the inspectorate shall decide to seal part or all of the documents. The documents shall be sealed and unsealed in accordance with law.
3. Carry out a detailed inspection and collect evidence
Inspection contents:
a) Inspect the adequacy, legitimacy, validity, consistency, accuracy, and truthfulness of the customs dossier kept by the company; compare it with the customs dossier kept by the customs authority;
b) Inspect the accounting documents, financial statement and other documents related to the inspected operations;
c) Inspect the company’s compliance with legislation on taxation, tax administration, and relevant regulations;
d) Inspect the production line, machinery, equipment, raw materials related to the manufacture of exported and imported products if possible; inspect imported goods or goods that are made of imported goods;
dd) Record the violations found during the inspection. Take the measures mentioned in Articles 89 to 91 of the Law on Tax administration if tax evasion is discovered.
4. Fortify evidence and legal basis, including:
a) Request the inspected entity to provide explanation:
The chief or member of the inspectorate shall request the company to provide explanation for unclear and unconcluded issues. If the written explanation is not clear, a consultation shall be held;
The consultation must be recorded in writing, and may be recorded as video or audio if necessary.
b) Verification
b.1) If the evidence and explanation provided by the company are not clear and need verifying, they shall be verified by relevant or capable organizations and individuals (hereinafter referred to as verifier). The verification result shall be recorded in writing, enclosed with sufficient supporting documents. The verification record is a basis for taking the next steps.
b.2) The chief of the inspectorate must provide sufficient information about the verification and necessary documents and give the verifier enough time to prepare.
c) Requesting professional examination
If the issues is complicated that need professional examination beyond the capacity of the inspectorate, the chief of the inspectorate shall make a decision to request professional examination The request for professional examination must comply with law.
5. After the issues are clarified, the inspectorate shall complete the documents, supplement information and sign the work records with the inspected entity.
The inspection dossier is the original documents for making inspection records, including:
a) Records on inspection results, work records;
b) Documents and reports made by the company at the request of inspectorate;
c) The manifest of documents and information made by the inspectorate and the company;
d) Photocopies of relevant documents;
dd) Written explanations;
e) Verification results;
6. Penalties for administrative violations
If the company fails to comply with the decision on inspection, the chief or members of the inspectorate shall impose administrative penalties or request a competent person to impose penalties as prescribed by law.
7. Transferring documents:
When the inspection is finished, every member of the inspectorate shall:
a) Transfer the work records, certifications of information, and all documents collected to the chief of the inspectorate; the documents shall be bound and numbered; summarize the case, suggest conclusion and necessary measures, specifying the basis for such suggestions;
b) Return the unnecessary documents to the company; keep the documents necessary for the next steps. The return of documents shall be recorded in writing.
Article 161. Inspection record
1. When the inspection is finished, the electronic information shall draft an inspection record. Before the inspection record is officially signed with the inspected entity, the chief of the inspectorate shall hold a meeting with the inspectorate to pass the inspection record or seek opinions from members of the inspectorate.
The inspection records shall be made and signed within 05 working days from the end of the inspection.
2. The inspection record must specify the result of each inspected operations, violations, and bases for the conclusions. In particular:
a) The beginning: legal basis for making the record;
b) The body: the inspected operations, comparison of the inspection result and the statements, reports provided by the taxpayer; explanation, evidence;
c) Conclusion: the inspected operations, seriousness of violations pursuant to cited laws; necessary measures that are taken, suggested measures.
3. Every page of the inspection record must bear the signatures of the arbitration center and the taxpayer (or the legal representative of the taxpayer) and the seal of the taxpayer (if any). The agreements and disagreements between the inspectorate and taxpayers must be written in the inspection record.
4. The inspected entity has the right to receive the inspection record, request explanation, and other rights mentioned in Clause 2 Article 86 of the Law on Tax administration.
5. If the time limit for inspection must be extended, the chief of the inspectorate shall request the person that decides the inspection to extend the time limit.
Article 162. Reporting inspection results and drafting inspection conclusion
1. Within 15 days from the end of the inspection, the chief of the inspectorate shall make a report on the inspection result, draft a conclusion and send them to the person that decides the inspection, unless result of professional examination necessary for conclusion is not available. The report on inspection result shall have the following information:
a) Specific report on each inspected aspect;
b) Nature and severity of the offences, reasons, responsibilities of the offenders (if any);
c) Disagreements between members and the chief of the inspectorate over the report on inspection result (if any);
d) Measures that are taken, suggested measures;
dd) The laws being basis for determining the nature and severity of the offences, suggested measures.
2. While making the report and drafting the conclusion, the chief of the inspectorate may consult with organizations concerned about the obstructions in order to ensure the accuracy and objectivity of the conclusion.
3. The report on inspection result (signed by the chief) shall reflect the tasks that have been done, the tasks that have not been done, or unplanned operations reasons, dissenting opinions of the company, suggested policies. The conclusion of each aspect must specify the event, bases, reasons, responsibility, and measures.
4. The report on inspection result and draft conclusion submitted to the person that decides the inspection must include written opinions of members of the inspectorate. The opinion must specify the agreement or disagreement on the report, draft conclusion of the chief about the member's tasks and others' tasks. If opinions of members on the inspection result report and draft conclusion are different, the chief of the inspectorate shall make a decision and take responsibility for such decision.
Article 163. Inspection conclusion
1. Within 15 days from the receipt of the inspection result report, the person that decides the tax inspection shall make an inspection conclusion, unless professional opinions of competent agencies are not available yet. The conclusion shall have the following information:
a) Assessment of inspected entity’s compliance with legislation on taxation;
b) Conclusion about inspected aspects;
c) Nature and severity of the offences, reasons, responsibilities of the offenders (if any);
d) Impose penalties or request competent persons to impose administrative penalties as prescribed by law.
2. While drawing the conclusion, the person that decides the inspection is entitled to request the chief and members of the inspectorate to make reports, and request the inspected entities to provide explanation to clarify the issues necessary for drawing conclusion. The person that decides the inspection shall request the inspectorate to carry out additional inspection to clarify some issues where necessary. Additional inspection results shall be reported in writing and are the basis for drawing conclusion.
3. The inspection conclusion shall be sent as follows:
a) Where the inspection is carried out by the General Department of Customs, the conclusion shall be sent to the Inspectorate of the Ministry of Finance, the inspected entities, the head of its superior agency (if any), relevant organizations and individuals;
B) Where the inspection is carried out by a Customs Department, the conclusion shall be sent to the General Department of Customs, the inspected entities, the head of its superior agency (if any), relevant organizations and individuals;
4. If tax evasion that constitutes a criminal offence is discovered during tax inspection, the customs authority shall transfers documents to a competent authority for investigation in accordance with legislation on criminal proceedings within 10 working days from the discovery. The customs authority shall cooperate with investigation agencies during investigation into tax offences in accordance with law.
Article 164. Rights and obligations of inspected entities
Inspected entities have the rights and obligations mentioned in Article 86 of the Law on Tax administration.
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Thông tư 128/2013/TT-BTC (Bản Word)
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