Chương II Thông tư 194/2010/TT-BTC: Hướng dẫn cụ thể

Chapter II

SPECIFIC GUIDANCE

Section 1 :POST-CUSTOMS CLEARANCE EXAMINATION

Article 149. Post-customs clearance examination at customs offices

1. Post-customs clearance examination at customs offices is a routine activity of customs offices to evaluate enterprises' observance of the tax and customs laws. For post-customs clearance examination at customs offices, customs offices will issue no examination decisions.

2. Post-customs clearance examination at customs offices shall be conducted according to plans worked out for each period or of each customs office or when there is information on or there are signs of violation of the customs and tax laws related to exports or imports.

3. Post-customs clearance examination at customs offices shall be conducted by collecting, summing up, analyzing and processing information from the customs service's databases on enterprises, goods items and mode of importation or exportation to be examined. When there are insufficient grounds for evaluation and conclusion, customs offices shall:

a/ Examine customs dossiers and relevant vouchers and documents filed at customs offices where procedures have been cleared for imports or exports.

b/ Request enterprises to explain unclear or questionable issues.

c/ Verify unclear or questionable issues at concerned organizations and individuals.

d/ Assess questionable documents and goods when necessary and where conditions permit.

When an examination requires professional expertise and techniques beyond the capacity and conditions of post-customs clearance examination units, these units may request assessment by specialized assessment agencies or organizations. Conclusions of those agencies or organizations serve as a basis for post-customs clearance examination.

4. Upon completion of post-customs clearance examination at customs offices, customs officers or groups of customs officers conducting post-customs clearance examination shall report on the examination scope, contents, process and results and propose examination conclusions and handling measures to competent persons for consideration and decision, specifically as follows:

a/ When a customs office finds sufficient grounds to conclude that tax underpayment, fraud or evasion is committed by an enterprise, it shall notify such to the enterprise:

a.1/ If the enterprise gives explanation and additionally provides information and documents proving its proper importation or exportation and tax payment, its customs dossier will be accepted.

a.2/ If the enterprise agrees with the customs office's conclusions, the customs office shall issue decisions to assess payable tax amounts and handle administrative violations (if any).

a.3/ If the enterprise fails to give explanation or its explanation is not accepted, the customs office shall assess payable tax amounts and handle administrative violations (if any) or decide on post-customs clearance examination at the enterprise's office.

b/ When a customs office detects no violations, it shall complete the examination and file dossiers according to regulations.

5. Examination results shall be handled according to Section 3 of this Chapter.

Article 150. Post-customs clearance examination at offices of enterprises

1. Cases of post-customs clearance examination at offices of enterprises include:

a/ Planned examination;

Planned examination means examination conducted by customs offices at offices of enterprises according a plan worked out for each year. Each year, a certain number of enterprises shall be examined. Enterprises to be examined shall be identified according to the criteria set by the General Department of Customs.

b/ Sample examination;

Sample examination means customs offices' selection, based on the situation of tax evasion and trade frauds in each period, of typical enterprises, modes of importation and exportation and imports and exports for examination at offices of enterprises.

c/ Post-customs clearance examination at offices of enterprises when there are signs or possibilities of violation of the tax and customs laws.

2. Decisions and notices of decisions on post-customs clearance examination at offices of enterprises shall be issued as follows:

a/ The General Director of Customs or directors of provincial-level Customs Departments shall decide on post-customs clearance examination at offices of enterprises;

b/ Decisions on planned post-customs clearance examination at offices of enterprises and sample examination shall be notified to enterprises directly or by registered mail or facsimile within 3 working days after their signing;

Post-customs clearance examination based on signs of violation shall be conducted immediately after decisions arc announced without prior notice. In this case, examination decisions shall be directly handed to enterprises during working hours.

c/ A decision on post-customs clearance examination at the office of an enterprise has the following basic details:

c.1/ Legal grounds for examination;

c.2/ Subjects of examination (when the enterprise has member units, the decision must specify member units to be examined);

c.3/ Examination contents, scope and tasks:

c.4/ Examination duration;

c.5/ Names of the head and other members of the examination team.

d/ When an enterprise fails to observe an examination decision, a written record of violation shall be made to serve as a basis for sanctioning administrative violations under law.

3. Durations of post-customs clearance examination at offices of enterprises are as follows:

a/ Fifteen working days, for planned post-customs clearance examination and sample examination.

b/ Five working days, for post-customs clearance examination when there are signs or possibilities of violation of the tax and customs laws.

c/ In complicated cases, examination deciders may extend the examination duration which must not exceed the above durations. To-be-examined enterprises shall be notified of the reason for and time of examination extension.

The starting and ending of the examination duration specified at Points a, b and c of this Clause shall be indicated in the examination decision.

d/ Working days means consecutive workdays other than holidays under law (weekends, public holidays and new year holidays).

4. An examination team shall conduct post- customs clearance examination at the office of an enterprise as follows:

a/ To commence the examination, the examination team head shall announce the decision on post-customs clearance examination and explain the decision's contents for the enterprise's understanding and compliance.

b/ The examination order and procedures comply with Clause 2, Article 78 of the Law on Tax Administration.

c/ Examination contents and methods:

- Examination contents comply with Article 144 of this Circular;

- To examine documents related to cleared imports or exports, accounting books and documents, financial statements and related documents and data filed by the enterprise in hard or soft copies or in other forms.

d/ To take the measures specified in Section 4, Chapter X of the Law on Tax Administration, and Articles 39, 40 and 41 of Decree No. 85/ 2007/ND-CP, when detecting signs of tax evasion or fraud committed by the enterprise.

5. Written conclusion on post-customs clearance examination at the office of an enterprise shall be made specifically as follows:

a/ Within one working day after completing the examination at the office of the enterprise, the examination team head shall send the draft examination conclusion to the enterprise.

b/ Within 2 working days after receiving the draft examination conclusion from the examination team head, the enterprise shall complete its explanation. Past this time limit, if the enterprise fails to submit a written explanation, it will be regarded as having no opinions divergent from the draft examination conclusion of the examination team head.

c/ Within 2 working days after the time limit for the enterprise's explanation, the examination team head shall issue a written conclusion on post-customs clearance examination at the office of the enterprise.

d/ A written conclusion on examination covers the following principal parts:

d.1/ Introduction: legal grounds for examination;

d.2/ Content: examined issues and examination results;

d,3/ Conclusion: conclusion on each examined issue and each violation committed by the enterprise (if any), the severity of violation, handling measures applied within the team's competence and its recommendations on handling measures.

e/ The written examination conclusion shall be signed by the examination team head and sent to the examination decider and examined enterprise.

6. The handling of results of post-customs clearance examination at offices of enterprises complies with Section 3 of this Chapter.

Section 2: SPECIFIC GUIDANCE ON TAX INSPECTION

Article 151. Cases of tax inspection

Customs offices shall conduct tax inspection in the cases specified in Article 81 of the Law on Tax Administration. Cases of tax inspection are specified in Clause 2, Article 81 of the Law on Tax Administration and Clause 2, Article 36 of Decree No. 85/2007/ND-CR specifically when taxpayers commit one of the following violations of the tax law:

1. Repeated violations of the tax law;

2. Violations committed in different localities;

3. Violations involving many organizations and individuals (customs offices have grounds to believe that taxpayers have been in collusion or cahoots with many organizations and individuals to commit tax fraud or evasion);

4. Signs of tax evasion;

5. Signs of dispersal of documents and exhibits in order to commit tax evasion or fraud during customs offices' post-customs clearance examination at offices of enterprises;

6. Signs of new tax-related violations after customs offices complete post-customs clearance examination at offices of enterprises;

7. Complicated and serious cases such as big appropriated tax amounts; taxpayers' use of unlawful or fake documents for tax declaration.

Article 152. Competence to decide on tax inspection

The General Director of Customs and directors of provincial-level Customs Departments may decide on tax inspection.

Article 153. Collection of information on inspected subjects

1. Information to serve as a basis for deciding on inspection must be specific and directly related to to-be-inspected persons or cases.

2. Information sources to be exploited and collected

a/ Official information sources of the customs service (the system of databases on taxpayers, import-export dossiers and imports and exports; results of re-examination of dossiers, results of post-customs clearance examination and tax inspection; signs of violation reported by customs offices);

b/ Information outside the customs service (from other agencies and units related to import-export activities such as tax administration agencies, banks, transport, insurance and assessment organizations, associations of businesses, media reports and written complaints and denunciations of organizations and individuals);

c/ Other information collected by post-customs clearance examination forces or anti-smuggling investigative agencies (from informants, information sellers, international cooperation activities and other information).

Article 154. Making of evaluation reports and inspection plans

1. To study and analyze selected information to make evaluation reports with the following principal contents:

a/ General situation and statistics of enterprises and their import or export activities (main export or import items, number of customs declarations, type of business, import or export turnover, lax amounts due, annual performance of the tax payment obligation and observance of law);

b/ Review and evaluation of major problems, signs of tax law violation and nature and level of revenues risks;

c/ Proposal of inspection contents and plans, clearly indicating focal and key issues; concerned organizations and individuals to be examined or verified.

2. To work out inspection plans with the following principal contents:

a/ Inspection purposes and requirements;

b/ Subjects of inspection;

c/ Scale and scope of inspection;

d/ Inspection contents;

e/ Tentative time for inspection.

An inspection plan must specifically indicate each issue to be inspected, jobs to be done, implementation methods, places to go and time to start and complete these jobs, members of the inspection team and their tasks.

In the course of inspection, if finding it necessary to modify and supplement the inspection plan, the inspection team head shall make a written request therefor to the inspection decision issuer for consideration and decision. Such a request must clearly state the reason and contents to be modified and supplemented and other contents (if any). When the inspection decision issuer issues a written approval of such modification and supplementation, the inspection team head shall modify and supplement the inspection plan based on this approval.

3. Inspection plans of provincial-level Customs Departments shall be sent to the General Department of Customs for coordination, for cases of overlapping inspection contents among units, and professional direction and guidance.

Article 155. Inspection teams

An inspection team is composed of a head and members. When necessary, an inspection team may have a deputy head who shall assist the head in performing the assigned tasks and take responsibility to the head for the performance of his/her assigned tasks. An inspection team must have at least one member being a tax inspector.

Article 156. Inspection duration

The duration of an inspection must not exceed 30 days, from the announcement of the inspection decision to the completion of the inspection at the place of inspection. When necessary, the inspection decider may extend the inspection duration once for no more than 30 days.

Article 157. Inspection decisions

1. An inspection decision must have the following contents:

a/ Legal grounds for inspection;

b/ Subjects, contents, scope and tasks of inspection;

c/ Inspection duration;

d/ Head and other members of the inspection team.

2. Within 3 working days from the dale of its signing, an inspection decision shall be sent directly or by registered mail to the to-be-inspected subject, except extraordinary inspection.

3. Within 15 days from the date of signing an inspection decision, the inspection team head shall announce such decision to the to-be-inspected subject.

For an enterprise which fails to observe an inspection decision, an inspector or inspection team head shall make a record of administrative violation and issue a decision to sanction such administrative violation or refer the case to a competent person for handling under law.

Article 158. Inspection

When conducting an inspection, an inspection team shall perform the following jobs:

1. Announcing the inspection decision:

a/ The inspection team head shall introduce inspection team members, read the full text of the inspection decision; specifically explain inspection purposes, requirements and contents for the inspected subject to understand and comply with this decision; announce the working agenda for the inspection team and the inspected subject and other inspection-related jobs. When the scope of inspection also covers member units, branches and attached units of an inspected enterprise, the inspection team head shall specifically announce the list of to-be-inspected units, inspection time and contents, and rights and obligations of involved parties, for proactive compliance by the inspected subjects;

b/ To notify the inspection plan and request the inspected subject to provide dossiers and documents related to inspection contents;

c/ To request the inspected subject's representative to report on the enterprise's general situation, including its business line; organizational structures, functions, tasks and forms of accounting of its member units, branches and attached units; production or business organization modes; applied accounting standards and year; number of officials and employees and their salaries; partners in joint ventures or associations (if any);

d/ The announcement of the inspection decision shall be recorded in writing.

2. Receiving dossiers, documents, accounting documents and books and financial statements (below collectively referred to as documents) related to cleared imports and exports provided by the enterprise. When these documents are stored in computers or other media, the enterprise shall also hand over these media to the inspection team. The inspection team shall check, count, preserve, exploit and use dossiers and documents properly and may not lose them. When necessary to preserve the status of dossiers, papers and documents, the inspection team head shall decide to seal up part or all of the documents. The sealing of documents, removal of seals for exploitation of documents or cancellation of the sealing comply with law.

3. Conducting detailed examination, compiling dossiers of proofs

To-be-examined contents include:

a/ The completeness, lawfulness, validity, consistency, accuracy and truthfulness of customs dossiers filed at the enterprise as compared with customs dossiers filed at the customs office;

b/ Dossiers, documents, accounting documents and books, financial statements and other papers related to inspection contents;

c/ The enterprise's observance of the laws on taxes and tax administration and other relevant regulations;

d/ Production lines, machinery, equipment, materials and supplies related the production and processing of imports or exports; and physical inspection of imports or goods produced by sub­contract mode, manufactured or processed from imports being stored by the enterprise, when necessary and conditions permit;

e/ In the course of examination, if detecting violations by the inspected subject, to make working minutes of those violations; if detecting signs of tax evasion or fraud, to apply the measures specified in Articles 89 thru 91 of the Law on Tax Administration and Articles 39 thru 41 of Decree No. 85/2007/ND-CP.

4. Consolidating proofs and legal grounds, covering:

a/ Requesting explanation by the inspected subject:

For unclear issues with insufficient grounds for conclusion, an inspector or the inspection team head shall request explanation by the enterprise. If the enterprise's written explanation is not clear enough, a question-and-answer session may be held;

Upon completion of the question-and-answer session, a written record shall be made, fully and accurately recording contents discussed by the two parties. When necessary, audio or visual recording of such quest ion-and-answer session may be made.

b/ Conducting examination and verification

b.1/ Unclear proofs and explanations provided by the enterprise shall be verified at concerned organizations and individuals or those having the capacity and conditions to clarify those issues. A report on examination and verification results shall be made, enclosed with supporting documents. The examination and verification report serves as a basis for carrying out subsequent steps.

b.2/ The tax inspection team head shall specifically notify verifying organizations of contents to be examined and verified and documents to be supplied and give them sufficient time to make full and accurate preparations.

c/ Soliciting assessment

For issues that require professional expertise and techniques beyond the inspection team's capacity and conditions for making conclusions, the inspection team head shall decide to solicit assessment in accordance with law.

5. After clarifying issues of inspection, the inspection team shall finalize dossiers of proofs, supplement documents and statistics, sign together with the inspected subject working minutes or written certifications of documents and statistics, and compile inspection dossiers.

An inspection dossier, which is the original document for making the inspection record, comprises:

a/ Examination result minutes, working minutes;

b/ Documents and reports made by the enterprise at the request of the inspection team;

c/ Lists of documents and statistics jointly made by the inspection team and enterprise;

d/ Copies of related documents;

e/ Written explanations;

g/ Verification results.

6. Sanctioning administrative violations

In the course of inspection, when detecting violations subject to administrative sanctioning under law, inspectors or the inspection team head shall make written records of administrative violations, issue administrative sanctioning decisions or refer them to a competent person for handling according to the law on sanctioning of administrative violations.

7. Handing dossiers and documents

Upon completion of an inspection, each inspection team member shall:

a/ Hand working minutes, written certifications of statistics and all collected proofs to the inspection team head; make lists of documents and number them; make a brief report on the case, propose conclusions and handling measures and provide grounds for such proposal;

b/ Return unnecessary dossiers and documents to the enterprise; keep dossiers and documents necessary for subsequent steps. Written records on return or keeping of dossiers and documents shall be made.

Article 159. Inspection records

1. Completing an inspection, the inspection team head shall draft an inspection record. Before this record is officially signed by the inspected subject, the inspection team head shall hold a meeting with inspection team members to approve the inspection record or give written opinions on the draft inspection record.

An inspection record shall be made and signed within 5 working days after completing an inspection.

2. An inspection record must specify results of each inspection content, violations and grounds for conclusion, consisting of the following parts:

a/ Introduction: to state legal grounds for making the inspection record;

b/ Content: to specify inspected issues, results of comparison by the inspection team with statistics declared and reported by the taxpayer; to explain reasons and causes; and give inspection proofs;

c/ Conclusion: to specify each inspected issue and determine the severity of violation by the taxpayer on the basis of specific regulations; and handling measures applied within the inspection team's competence, and propose handling measures.

3. An inspection record shall be signed by the inspection team head and the taxpayer (or his/her/its lawful representative) on every page and appended with the taxpayer's stamp (if any). Issues agreed and disagreed between the inspection team and taxpayer shall all be specified in the inspection record.

4. An inspected subject may receive the tax inspection record and request explanation thereon and have other rights under Clause 2, Article 86 of the Law on Tax Administration;

5. When necessary to extend the inspection duration, the inspection team head shall report on such extension to the inspection decision issuer for decision and may only extend inspection when such decision is issued.

Article 160. Inspection result reports and draft inspection conclusions

1. Within 15 working days after an inspection, the inspection team head shall submit an inspection result report and a draft inspection conclusion to the inspection decision issuer. An inspection result report must have the following contents:

a/ Specific reporting on every inspected issue;

b/ Clear determination of the nature and severity of violation, reasons and responsibilities of violators (if any);

c/ Divergent opinions of inspection team members and the inspection team head on contents of the inspection result report (if any);

d/ Handling measures applied according to the team's competence and proposed handling measures;

e/ Regulations to serve as a basis for determining the nature and severity of violation and proposing handling measures;

2. An inspection team head may discuss and seek opinions of concerned agencies and organizations on problems arising in the drafting of the inspection report and conclusion to assure accurate and objective inspection conclusion.

3. An inspection result report (signed by the inspection team head) must fully cover inspected issues, issues which have not been inspected according to, or which have been inspected outside, the approved inspection decision and plan, and reasons therefor; disagreements of the enterprise; and propose management policies and regulations. Each conclusion content must specify the issue, grounds for right and wrong doings, causes, responsibilities and form of handling.

4. An inspection result report and draft inspection conclusion submitted to the inspection conclusion issuer must fully include written opinions of inspection team members. Team members' opinions must confirm whether or not to agree with the report and draft conclusion made by the inspection team head on the jobs directly performed by themselves and by other members. In case of disagreement, the reason must be stated clearly. If inspection team members hold divergent opinions on the inspection result report and draft inspection conclusion, the inspection team head shall make his/her own decision and take responsibility for this decision.

Article 161. Inspection conclusion

1. Within 15 days after receiving an inspection result report, the inspection decision issuer shall issue an inspection conclusion. An inspection conclusion must have the following contents:

a/ Evaluation of the inspected subject's observance of the tax law concerning inspected issues;

b/ Conclusions on inspected issues;

c/ Determination of the nature, severity and causes of violation and responsibilities of violators (if any);

d/ Handling of administrative violations according to competence or proposing to competent persons for handling under law.

2. Before issuing an inspection conclusion, the inspection decision issuer may request the head and members of the inspection team to report on and the inspected subject to explain issues necessary for making inspection conclusion. When necessary, the inspection decision issuer shall request the inspection team to conduct additional inspection to clarify issues. Additional inspection results shall be recorded in a report serving as a basis for making the inspection conclusion.

3. An inspection conclusion shall be sent to the inspected subject, the General Director of Customs (when a provincial-level Customs Department issues the inspection decision) or a provincial-level Customs Department (when the General Director of Customs issues the inspection decision).

4. When, through tax inspection, acts of tax evasion are detected to show criminal signs, within 10 working days after the detection, customs offices shall forward dossiers to investigating into tax-related crimes under law.

Article 162. Rights and obligations of inspected subjects

Inspected subjects have the obligations and rights specified in Article 86 of the Law on Tax Administration.

Section 3: IMPLEMENTATION OF CONCLUSIONS ON POST-CUSTOMS CLEARANCE EXAMINATION AND TAX INSPECTION

Article 163. Jobs to be done after the issuance of conclusions on post-customs clearance examination or tax inspection

After the issuance of conclusions on post-customs clearance examination or tax inspection, the following jobs shall be done:

1. Issuing tax assessment decisions (if any).

2. Issuing decisions on handling of administrative violations (if any) and supervising, urging and enforcing the implementation of these decisions under law.

3. When detecting acts of tax evasion showing criminal signs, complying with Clause 2, Article 76 of the Law on Tax Administration and the criminal procedure law.

4. Updating information on tax examination and inspection results into the database system for subsequent management.

5. Proposing competent authorities to amend, supplement or promulgate legal documents to stop and prevent violations.

6. Collecting taxes and urging enterprises to pay taxes according to tax assessment decisions and fining delayed tax payment cases (if any) under law.

7. Monitoring and inputting data into the KT559 accounting system and issuing decisions and enforcing tax payment by enterprises under law.

8. Reporting on tax collection results to tax assessment decision issuers.

Article 164. Assignment of implementation responsibilities

1. In case provincial-level Customs Departments decide on and conduct post-customs clearance examination or tax inspection, they shall perform al) the jobs specified in Article 163 of this Circular.

2. In case the General Department of Customs conducts post-customs clearance examination:

a/ The General Director of Customs shall perform the jobs specified in Clause 1, Article 163 of this Circular.

b/ The Department for Post-Customs Clearance Examination shall perform the jobs specified in Clauses 2 thru 8, Article 163 of this Circular.

3. In case the General Department of Customs conducts tax inspection:

a/ The General Director of Customs shall comply with Clause 1. Article 163 of this Circular;

b/ The General customs Department's Inspectorate shall perform the following jobs:

- The jobs specified in Clauses 3 and 5. Article 163 of this Circular;

- Performing or assigning competent persons to perform the jobs specified in Clause 2, Article 163 of this Circular.

After the General Director of Customs issues tax assessment decisions, the General Customs Department's Inspectorate shall:

- Send to every provincial-level Customs Department which clears customs procedures for exports and imports 1 copy of the lax assessment decision enclosed with a detailed list of declarations subject to tax assessment and assessed tax amounts for these provincial-level Customs Departments to collect taxes under Clauses 6 and 7, Article 163 of this Circular;

- Oversee the tax collection by provincial-level Customs Departments according to the General

Director of Customs" tax assessment decisions;

- Coordinate with the provincial-level Customs Departments which handle and settle problems related the implementation of tax assessment decisions;

c/ Provincial-level Customs Departments which clear customs procedures for exports and imports shall organize the performance of, and direct district-level Customs Departments in performing, the jobs specified in Clauses 4,6,7 and 8, Article 163 of this Circular.

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