Phụ lục: Thông tư 215/2013/TT-BTC

CIRCULAR

GUIDANCE ON ENFORCEMENT OF TAX DECISIONS

Pursuant to the Law on Tax administration No. 78/2006/QH11 dated November 29, 2006;

Pursuant to the Law on Actions against administrative violations No. 15/2012/QH13 dated June 20, 2012;

Pursuant to the Law No. 21/2012/QH13 dated November 20, 2012 on the amendments to the Law on Tax administration;

Pursuant to the Government's Decree No. 118/2008/NĐ-CP dated November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

Pursuant to the Government's Decree No. 83/2013/NĐ-CP dated July 22, 2013 on guidelines for the Law on Tax administration and the Law on the amendments to the Law on Tax administration;

Pursuant to the Government's Decree No. 129/2013/NĐ-CP dated October 16, 2013 on administrative penalties for tax offenses and enforcement of administrative decisions on taxation;

Pursuant to the Government's Decree No. 166/2013/NĐ-CP dated November 12, 2013 on enforcement of decision on penalties for administrative violations.

At the request of the Director of the General Department of Taxation;

The Minister of Finance promulgates a Circular on guidelines for Chapter II of the Government's Decree No. 129/2013/NĐ-CP on enforcement of tax decisions:

Section 1.

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope of regulation

This Circular deals with the cases of enforcement, measures for enforcement of tax decisions (hereinafter referred to as tax enforcement), rules, authority, procedures for tax enforcement, except for suspension of customs procedure for exported and imported goods; responsibility for implementation of tax decisions.

Tax decisions include: decision on administrative penalties for tax offences; decision to suspend enforcement; notification/decision of tax imposition; notification of tax, fine, interest on late payment of tax; decision to reclaim refund; decision on tax deferral; decision to take remedial measures according to regulations of law on actions against tax offenses; decision on compensation; and other tax decisions defined by law.

2. Regulated entities

a) The delinquent taxpayers against whom enforcement actions are taken (hereinafter referred to as delinquent taxpayers) defined in the Law on Tax administration and the Law on the amendments to the Law on Tax administration (hereinafter referred to as the Law on Tax administration); 

b) Tax authorities and tax officials.

c) People having the power and responsibility to enforce (hereinafter referred to as enforcer)

d) Regulatory bodies and other entities relevant to tax enforcement

Article 2. Cases of tax enforcement

1. Taxpayers

a) Any taxpayer that owes tax or late payment fine more than 90 days from the deadline for paying tax or extended period according to regulations of the Law on Tax administration and competent authorities.

b) Any taxpayer that owes tax, fine, late payment fine and attempts to illegally liquidate his/her property or makes a getaway.

c) Any taxpayer that fails to implement the decision on administrative penalties for tax offences within 10 days from the day on which the decision is received.  If the deadline for implementing the decision on administrative penalties for tax offences is longer than 10 days and the taxpayer fails to implement it by the deadline, the decision shall be enforced unless it is suspended.

2. Any credit institution that fails to implement the decision on administrative penalties for tax offences according to the Law on Tax administration and the Law on Actions against administrative violations.

3. Any organization that provide guarantee for the taxpayer (hereinafter referred to as guarantor): if the taxpayer fails to pay tax, fine, or late payment interest within 90 days from the deadline, the guarantor shall face enforcement according to the Law on Tax administration and the Law on Actions against administrative violations.

4. Any State Treasury that fails to extract money from delinquent taxpayer’s account opened at the State Treasury and transfer it to government budget according to the decision on administrative penalties for tax offences issued by a tax authority.

5. Any relevant entities that fail to implement decisions on administrative penalties for tax offences issued by competent authorities.

Article 3. Enforcement actions

1. Enforcement actions include:

a) Extracting money from the delinquent taxpayer’s account at a State Treasury or credit institution; requesting freezing of account.

b) Withholding part of the taxpayer’s wage or income (hereinafter referred to as income).

c) Invalidating invoices.

d) Distraining property and sold it at auction to collect unpaid tax, fines, late payment interest.

dd) Confiscating the delinquent taxpayer’s money and other property that are held by other entities.

e) Revoking the Certificate of Business Registration, license for establishment and operation, or practice certificate.

2. The aforesaid enforcement actions shall be taken in accordance with Articles 11, 12, 13, 14, 15, and 16 Section 2 of this Circular.

If a decision to take the next enforcement action has been issued but the previous enforcement action can be taken, the issuer of the decision on enforcement shall terminate the current enforcement action and take the previous enforcement action to ensure collection of sufficient tax, fine, and late payment interest.

Article 4. The power to issue the decisions on enforcing the implementation of tax decision (hereinafter referred to as decision on enforcement) and division of power to take enforcement actions

1. The following persons have the power to issue decisions on enforcement to take the enforcement actions prescribed in Clause 1 Article 3 of this Circular, and are responsible for organize the enforcement of the decisions they or their inferior issue

a) The Director of the General Department of Taxation, Directors of Provincial Departments of Taxation, Directors of Sub-departments of taxation have the power to take the enforcement actions mentioned in Points a, b, c, d, and dd Clause 1 Article 3 of this Circular.

b) Presidents of the People’s Committees of districts and provinces have the power to issue decisions on enforcement of decisions on administrative penalties for tax offences within the area of their competence.

c) In the cases of enforcement mentioned in Point e Clause 1 Article 3 of this Circular, the tax authority shall compile and transfer documents to the issue of Certificate of Business Registration, license for establishment and operation, or practice certificate and request the revocation of such paper.

2. Division of power to take enforcement actions

a) The Director of the General Department of Taxation and Directors of Provincial Departments of Taxation shall enforce the tax decisions they issue or the tax decisions their inferior issue without the power or resources to enforce such decisions.

b) The Director of the General Department of Taxation shall take enforcement actions against the delinquent taxpayer whose premises are located in various provinces.

c) The Director of Provincial Department of Taxation shall take enforcement actions against the delinquent taxpayer whose premises are located in various districts in the same province.

3. The persons mentioned in Clause 1 and Clause 2 of this Article may delegate their deputies to consider issuing decisions on enforcement. The delegation shall only be carried out, in writing, when the chief is absent and the scope, period of delegation must be specified. The delegated deputies are responsible to the chief for their decisions. The delegated deputies must not delegate such tasks to any other individual.

Article 5. Rules for taking enforcement actions

1. The next enforcement action shall be taken when the previous enforcement action cannot be taken, or unpaid tax, fines, late payment interest are not collected in full after the previous enforcement actions are taken. The enforcement by withholding part of income is only applied to individuals.

2. Expression of period

a) If a period is expressed as “days”, the days shall be consecutive calendar days, inclusive of days off.

b) The period expressed as “working days” means the working days of state authorities as prescribed by law, meaning calendar days exclusive of Saturdays, Sundays, and public holidays (hereinafter referred to as days off).

c) If a time limit is a period of time from a particular day, the succeeding day shall be the beginning day of the time limit. 

d) If the deadline for fulfilling a task is a day off, the actual deadline shall be the succeeding day.

3. Enforcement actions shall not be taken against the taxpayers that owe tax, fines, late payment interest and are permitted by tax authorities to pay tax, fines, late payment interest by instalments as prescribed in Article 32 of Circular No. 156/2013/TT-BTC dated November 06, 2013 on guidelines for the Law on Tax administration, the Law on the amendments to the Law on Tax administration, and the Decree No. 83/2013/NĐ-CP.

4. The money withheld and property distrained shall be handled in accordance with Article 4 of the Government's Decree No. 166/2013/NĐ-CP dated November 12, 2013 on enforcement of decision on penalties for administrative violations.

Article 6. Sending the decision on enforcement to the delinquent taxpayer and relevant entities

1. The issuer of the decision on enforcement and the tax official responsible for implementation of the decision on enforcement shall give it to the delinquent taxpayer before the taking each enforcement action. If it is difficult to directly give the decision on enforcement to the delinquent taxpayer, it shall be sent by registered mail.

a) If the enforcement needs cooperation from the People’s Committee of the commune, the decision shall be sent to the Presidents of the People’s Committee of the commune where the enforcement takes place before the enforcement is carried out.

b) The decision is considered received in the following cases:

If the delinquent taxpayer refuses to receive the decision, the decision issuer or tax official in charge shall make a record on the refusal and have it certified by the local governments. Then, the decision is considered received.

The decision on enforcement shall be considered received if it is returned after it is sent by registered mail for the 3^rd time because the delinquent taxpayer refuses to receive it; or it has been posted at the premises of the delinquent taxpayer; or there is evidence that the delinquent taxpayer refuses to receive the decision on enforcement.

2. Where the enforcement actions mentioned in Point d and Point dd Clause 1 Article 3 of aquaculture products Circular are taken, the President of the People’s Committee of the commune where the enforcement takes place must be notified in advance.

Article 7. Responsibility for implementation of decision on enforcement and assurance of safety and order during enforcement of decision on enforcement

1. Responsibility for implementation

a) The issue of the decision on enforcement shall organize the implementation of such decision.

The issuer of the decision shall send the decision on enforcement to relevant entities and organize the enforcement of the decision on administrative penalties for tax offences issued by the issuer and his/her inferior.

b) If the decision on enforcement is issued by the President of the People’s Committee, the President of the People’s Committee shall appoint an agency affiliated to the People’s Committee to take charge of implementation of the decision on enforcement. The appointment of the agency in charge must be appropriate for its function. If the case is related to multiple agencies, the appointment shall be decided on a case-by-case basis.

c) The People’s Committee of the commune where the delinquent taxpayer is located shall appoint relevant agencies to cooperate with the tax authority in enforcement of the tax decision.

d) Any organization or individual that receives the decision on enforcement must implement it and bear all the enforcement costs.

dd) Relevant entities shall cooperate with the issuer of the decision on enforcement or agency in charge of enforcement in taking actions to implement the decision on enforcement.

2. Assurance of safety and order during implementation of decisions on enforcement is specified in Article 7 of the Government's Decree No. 166/2013/NĐ-CP dated November 12, 2013 on enforcement of decision on penalties for administrative violations.

Article 8. Assurance of implementation of decision on enforcement

1. Measures for assurance of implementation of decision on enforcement

a) If the taxpayer who owes unpaid tax, fine, or late payment interest attempts to make a getaway or illegally liquidate property, the issuer of the decision on enforcement shall take appropriate enforcement actions to ensure tax collection as prescribed in Article 17 Section 2 of this Circular.

b) If there is ample evidence that the current enforcement action does not ensure sufficient collection of unpaid tax, fine, or late payment interest, the issuer of the decision on enforcement is entitled to terminate the current decision on enforcement and take the next enforcement action.

c) If the delinquent taxpayer keeps refusing to implement the decision on enforcement after due explanation is given, the issuer of the decision on enforcement is entitled to mobilize forces to enforcement.

d) If delinquent taxpayer who is an individual fails to implement or avoids implementing the decision on enforcement after having received it, the individual shall be suspended from exit.

2. Transfer of decision on enforcement to ensure implementation

a) If the enforcement action is taken in a province but the delinquent taxpayer’s residence or premises are located in another province and is not able to implement the decision on enforcement where it is issued, the decision on enforcement shall be transfer to the tax authority where the delinquent taxpayer’s residence or premises are located.

b) If the enforcement action is taken in a mountainous, remote district or on an island where traveling is difficult, and thus the delinquent taxpayer is not able to implement the decision on enforcement where it is issued, the decision on enforcement shall be transferred to the tax authority where the delinquent taxpayer’s residence or premises are located.

Article 9. Time limit for implementation of decision on enforcement

1. The decision on enforcement is effective within 01 year from the date written in the decision on enforcement. The time limit for enforcement is written in the decision on enforcement.

The decision on enforcement by drawing money from the delinquent taxpayer’s account is effective within 30 days from the date written in the decision on enforcement. The time limit for enforcement is 30 days as written in the decision on enforcement.

2. Before expiration of the time limit mentioned in Clause 1 of this Article, if the delinquent taxpayer deliberately delays or obstruct the enforcement as prescribed in Article 3 of this Circular, the time limit shall be reset to the date on which such acts are stopped.

3. The decision on enforcement shall be invalidated when the delinquent taxpayer finish implementing the decision on administrative penalties for tax offences, or when the delinquent taxpayer has paid tax, fines, late payment interest in full.

The basis for invalidating the decision on enforcement is the proof of sufficient payment of tax, fine late payment interest, which is certified by the State Treasury, credit institution, or authorized collector.

Article 10. Enforcement costs

1. Determination of enforcement costs

a) Enforcement costs are determined based on actual costs incurred during the implementation of the decision on enforcement and local market prices.

b) Enforcement costs include: cost of manpower for implementation of the decision on enforcement; cost of payment for pricing experts to hold auction, auctioning cost; cost of hiring vehicles to removing, moving property and assets; cost of storage or preservation of distrained property; and other actual costs.

2. Cost limitation

The Director of the General Department of Taxation shall determine the limits on enforcement costs according to the standards and limits of the state and the characteristics of the enforcements.

3. Payment of enforcement costs

a) The delinquent taxpayer shall incur all enforcement costs.

b) The delinquent taxpayer shall pay the enforcement costs to the organization that carries out the enforcement (hereinafter referred to as enforcing organization) according to its notification.

c) If the delinquent taxpayer fails to pay or pay in full the enforcement costs or pay the enforcement costs by the deadline imposed by the enforcing organization, the issuer of the decision on enforcement may issue a decision to enforce payment of enforcement costs by taking the actions mentioned in Clause 1 Article 3 of this Circular.

4. Advancing and returning of enforcement costs

a) Advancing enforcement costs

Before tax enforcement, the enforcing organization shall submit a tax enforcement plan and estimate of enforcement costs to the head of the agency that issues the decision on enforcement for approval.

The enforcement costs shall be estimated in accordance with Clause 1 and Clause 2 of this Article. A copy of the estimate shall be sent to the delinquent taxpayer together with the decision on enforcement.

According to the approved enforcement plan, the enforcing organization shall receive an advance of the enforcement costs from the budget of the tax authority.

In the case of enforcement in Article 17 of this Circular, the average value of actual costs of previous enforcements shall apply.

b) Returning of enforcement costs

After the decision on enforcement is implemented, the enforcing organization shall request the head of the agency that issue the decision on enforcement to approve the statement of enforcement costs.

According to the statement of enforcement costs that has been approved and the money derived from the delinquent taxpayer’s property that remain after tax, fine, and late payment interest are paid in full, the enforcing organization shall request the delinquent taxpayer in writing to pay the remaining costs (the written request must specify the date, amount payable, address of money is paid in cash or account number if money is wired, and other necessary information).

After collecting sufficient money from delinquent taxpayer according to the approved cost statement, the enforcing organization shall return the advance of enforcement costs to the tax authority.

The tax authority shall monitor and urge the entities that incur enforcement costs to pay the costs.

c) At the end of every quarter and every year, the tax authority shall report the use of advanced enforcement costs (advanced amount, collected amount, uncollected amount, reasons for failure to collect, etc.)  to the superior authority. The General Department of Taxation shall submit a summary report to the Ministry of Finance together with the annual budget statement.

5. Estimation, payment, and statement of enforcement costs

Estimation, payment, and statement of enforcement costs shall comply with the Law on State budget and its guiding documents.

Section 2

ENFORCEMENT ACTIONS AND PROCEDURES FOR ENFORCEMENT OF TAX DECISIONS

Article 11. Enforcement by drawing money from the delinquent taxpayer’s account at a State Treasury or credit institution; account freezing

1. Regulated entities

a) Enforcement by drawing money from the delinquent taxpayer’s account at a State Treasury or credit institution and account freezing shall be applied to the delinquent taxpayer mentioned in Article 2 of this Circular.

b) This enforcement action shall not be taken against ODA investors, holders of accounts serving ODA and concessional loans at State Treasuries or credit institutions.

2. Verification of information about the delinquent taxpayer’s account

a) The tax authority shall verify information about the taxpayer 30 days before the 90-day deadline for paying tax or the deferred deadline. In the case mentioned in Point c Clause 1 Article 2 of this Circular, the tax authority shall verify information when issuing the decision on administrative penalties for tax offences.

b) Information about the delinquent taxpayer shall be verified according to the database of the tax authority before the decision on enforcement is issued.

c) If the database of the tax authority is not sufficient, the issuer of the decision on enforcement may verify information by requesting the delinquent taxpayer, State Treasury, or credit institution to provide information about the account such as: where the account is opened, account number and symbol, account balance, statement of transactions via the account over the last 03 months, and other information about the account and transaction via such account.

The issuer of the decision on enforcement is responsible for the confidentiality of the information about the delinquent taxpayer’s account provided by the delinquent taxpayer, State Treasury, or credit institution.

d) If the information provide proves that this enforcement action cannot be taken or unpaid tax cannot be collected in full by taking this enforcement action because the delinquent taxpayer’s balance is not sufficient or there are no transactions via the account over the last 03 months, or in the case mentioned in Point b Clause 1 of this Article, the competent authority shall switch over to invalidating invoices (if the delinquent taxpayer is an organization) or withholding part of the taxpayer’s income (if the delinquent taxpayer is an individual earning income paid by another entity) right after the day on which information is provided.

dd) If the tax authority confirms that the delinquent taxpayer’s account balance is smaller that the amount payable, the decision on enforcement shall still be issued.

3. Enforcement by drawing money from account or freezing account

a) The decision on enforcement shall be made using the form No. 01/CC enclosed herewith. The decision on enforcement must specify the full name, address, taxpayer ID number of the delinquent taxpayer; the reason for enforcement, the amount payable; delinquent taxpayer’s account number; name of the State Treasury or credit institution where the delinquent taxpayer’s account is opened; name, address, and account number of government budget at State Treasury; method for transferring money from the credit institution to the State Treasury; account freezing (if any).

b) Time to issue the decision on enforcement:

Within the 91^st day from the deadline for paying tax, fine, or late payment interest or the deadline for tax payment in instalments as prescribed by law.

Right after the deferred deadline for paying tax.

Right after the deadline for implementing the decision on administrative penalties for tax offences (10 days from the receipt of the decision) unless the decision is suspended.

Right after the deadline for implementing the decision on administrative penalties for tax offences (the period written on the decision if the deadline is longer than 10 days) unless the decision is suspended.

c) The decision on enforcement by drawing money from an account shall be sent to the delinquent taxpayer, State Treasury, and credit institution where the account is opened together with the Order for payment to government budget at least 05 working days before the enforcement.

d) The State Treasury or credit institution shall be requested to block an amount of money in an account which is equal to the amount written in the decision on enforcement if information is not provided or not adequately provided at the request for information prescribed in Clause 2 of this Article.

dd) If the delinquent taxpayer opens multiple accounts at multiple State Treasuries or credit institutions, the competent persons shall issue the decision on enforcement to draw money from one or multiple accounts to ensure sufficient collection of unpaid tax, fines, and late payment interest.

During the implementation of the decision, if any of the State Treasuries or General Department of Taxations have transferred sufficient money according to the decision on enforcement (with proof of payment to government budget), the agency that issues the decision on enforcement must be promptly notified. The issuer shall notify the other State Treasuries and credit institutions within the date of receipt of notification of sufficient tax payment in order for them to stop implementing the decision on enforcement or stop freezing the accounts.

4. Responsibilities of State Treasuries and credit institutions where delinquent taxpayer’s accounts are opened

a) Within 03 working days from the receipt of the written request form the agency that issues the decision on enforcement, the State Treasury or credit institution shall provide information about the account numbers, account balance, and transactions of the delinquent taxpayer via the accounts opened therein.

b) Within 05 working days from the receipt of the decision on enforcement and the Order for payment to government budget, the State Treasury or credit institution shall draw and transfer money from the delinquent taxpayer’s account to the government budget account at a State Treasury, then notify the agency that issues the decision on enforcement and the delinquent taxpayer within the day.

If the account balance is smaller than the amount payable, the balance shall still be transferred to government budget account without the consent of the delinquent taxpayer. After transferring, the State Treasury or credit institution shall notify the tax authority and the delinquent taxpayer of the transfer.

c) An amount in the delinquent taxpayer’s account equal to the amount written in the decision on enforcement shall be frozen right after the decision on enforcement is received if account freezing is requested.

d) If the delinquent taxpayer’s account is not sufficient to pay the unpaid tax, fines, late payment interest after 30 days from the effective date of the decision on enforcement, the State Treasury or credit institution shall send a written notification to the issuer of the decision on enforcement together with the statement of account balance and transactions via the account before the expiration of the decision on enforcement.

dd) If the State Treasury or credit institution fails to draw and transfer money to government budget account while the delinquent taxpayer’s account balance is positive or there are transactions via the account, such State Treasury or credit institution shall incur penalties for administrative violations according to Article 12 of the Government's Decree No. 129/2013/NĐ-CP dated October 16, 2013 on administrative penalties for tax offenses and enforcement of tax decisions.

5. Collecting money by wire transfer

Money shall be drawn from the delinquent taxpayer’s account according to proof of payment. Copies of proof of payment used for wire transfer shall be sent to relevant parties.

Article 12. Enforcement by withholding part of income

1. Regulated entities

This enforcement action is taken against taxpayers that are individuals earning incomes from an organization as prescribed by law.

2. Verifying information about the taxpayer’s income

a) The tax authority shall verify information about income of the delinquent taxpayers and organizations that manage their incomes (hereinafter referred to as income managers) according to the database of the tax authority.

If the database of the tax authority is not sufficient, the issuer of the decision on enforcement shall request the delinquent taxpayer and income manager, in writing, to provide sufficient information about the delinquent taxpayer’s income.

b) The delinquent taxpayer, income manager and relevant organizations shall provide information about the delinquent taxpayer’s income for the tax authority within 03 working days from the receipt of the request and take responsibility for the information provided.

c) If information is not provided or not sufficiently provided after 03 working days, the competent authority shall invalidate invoices (if the delinquent taxpayer use invoices) or distrain the delinquent taxpayer’s property and sell it at auction (if the delinquent taxpayer does not use invoices).

3. Decision on enforcement by withholding part of income

a) The decision on enforcement by withholding part of income shall be made using form No. 01/CC enclosed herewith, specifying the full name, address, TIN of the delinquent taxpayer; reasons for enforcement; the amount payable; name, address of the income manager; name, address, number of government budget account at a State Treasury; method of money transfer to the State Treasury.

b) The decision on enforcement shall be sent to the delinquent taxpayer, the income manager and relevant organizations within 05 days before the enforcement.

c) This decision on enforcement shall be issued after the expiration date of the decision on enforcement by drawing money from the individual’s account at a State Treasury or credit institution, or by freezing accounts, or after the day on which the next enforcement action is taken as prescribed in Point d Clause 2 Article 11 of this Circular (if the delinquent taxpayer is an individual).

4. The portion of the delinquent taxpayer's income withheld is specified in Article 32 of the Government's Decree No. 129/2013/NĐ-CP dated October 16, 2013 on administrative penalties for tax offenses and enforcement of tax decisions.

5. Responsibilities of the employer are specified in Article 33 of the Government's Decree No. 129/2013/NĐ-CP dated October 16, 2013 on administrative penalties for tax offenses and enforcement of tax decisions.

Article 13. Enforcement by invalidating invoices

1. Regulated entities

This enforcement action is taken if it is not possible to draw money from the delinquent taxpayer’s account at a State Treasury or credit institution, or to freeze the account, or to withhold part of the individual’s income, or such actions have been taking without sufficiently collecting tax, fine, and late payment interest.

The invoices invalidated include: invoices printed by the business entities; invoices ordered by business entities or tax authorities; electronic invoices created by business entities as prescribed by law.

2. Verifying information about use of invoices

a) According to its database, the tax authority shall verify information about the delinquent taxpayer’s use of invoices.

If the database of the tax authority is not sufficient, the issuer of the decision on enforcement may verify information by requesting the delinquent taxpayer and relevant entities to provide information about the delinquent taxpayer’s use of invoices.

b) The delinquent taxpayer must provide information about invoices for the tax authority within the working days.

If the information provided by invoice users is consistent with the database of the tax authority, the tax authority shall issue a decision on enforcement by invalidating invoices according to the information provided.

If information is not provided or not sufficiently provided, the tax authority shall request the invoice users to compare information at the tax authority according to the information provided by the tax authorities in charge. After comparing, if the information provided by invoice users is not consistent with the information provided by tax authorities in charge, the invoice users shall be requested to adjust information and make additional reports.

Within 05 working days from the day on which the tax authority requests the adjustment of information, if no corrective reports are made, the tax authority shall issue the decision on enforcement by invalidating invoices according to the database of the tax authorities in charge.

c) Invoice users are legally responsible for the provision of information about invoices for the tax authority.

d) After verification, if is found that the delinquent taxpayer no longer uses invoices, does not have unused invoices that have been issued, does not order invoices, and does not buy invoices from any tax authority, the competent authority shall issue a decision on enforcement by distraining and sell property at auction within the day succeeding the day on which such information is verified.

3. Decision on enforcement by invalidating invoices

a) The decision on enforcement by invalidating invoices shall be made using form No. 07/CC enclosed herewith and submitted together with the Notification of invalidated invoices.

The Notification of invalidated invoices shall be made using the form No. 08/CC enclosed herewith.

b) Both the decision on enforcement and Notification of invalidated invoices shall be sent to relevant entities and the delinquent taxpayer within 03 working days before the effective date of the decision on enforcement.

c) The decision on enforcement shall be issued:

- right after the expiration date of the decision on enforcement by drawing money from the individual’s account at a State Treasury or credit institution, or by freezing accounts, or withholding part of the individual’s income (if the delinquent taxpayer is an individual).

- right after the day on which it is possible to take the next enforcement action as prescribed in Point d Clause 2 Article 11 of this Circular (if the delinquent taxpayer is an organization) or Point c Clause 2 Article 12 of this Circular (if the delinquent taxpayer is an individual).

4. Procedures for invalidating invoices

a) Within the effective date of the decision on enforcement, the tax authority shall post the decision on enforcement and Notification of invalidated invoices on the website of the General Department of Taxation (www.gdt.gov.vn).

b) During the implementation period of this decision on enforcement, the tax authority shall not receive application for notice of invoice publication of the delinquent taxpayer.

c) The tax authority shall terminate this enforcement action when the delinquent taxpayer pays off tax, fine, and late payment interest. Then, the tax authority shall issue a Notification of revalidated invoices (form 09/CC enclosed herewith)

Within the date of issue of the Notification of revalidated invoices, the tax authority shall post it on the website of the General Department of Taxation (www.gdt.gov.vn).

5. Where a customs authority requests the tax authority responsible for the indebted taxpayer, in writing, to issue a decision on enforcement by invalidating invoices:

a) The customs authority shall send the written request for enforcement by invalidating invoices to the tax authority. The written request shall specify: the requesting unit; date of request; basis of request; name, address, TIN of the delinquent taxpayer; full name and position of the signer; seal of the requesting unit.

b) When the tax authority receives the written request from the customs authority:

If the tax authority is taking the enforcement action by drawing money from accounts, freezing accounts, withholding part of income, the tax authority shall terminate such enforcement action and switch over to invalidating invoices. The tax authority shall follow the procedures in Clauses 2, 3, and 4 of this Article within the day on which the written request of the customs authority is received.

If the tax authority has already taken the enforcement action by invalidating invoices, the customs authority shall be notified in writing.

If the tax authority has terminated the invoice invalidation and is taking the next enforcement actions, a written notification shall be sent to the customs authority and take the measures mentioned in Circular No. 190/2013/TT-BTC dated December 12, 2013, which provides guidelines for the Government's Decree No. 127/2013/NĐ-CP dated October 15, 2013 on administrative penalties against customs offenses and enforcement of customs decisions.

c) The customs authority shall notify the tax authority within the day on which the delinquent taxpayer pays of the outstanding tax on exported or imported goods in order for the tax authority to revalidate invoices as prescribed in Point c Clause 4 of this Article.

Article 14. Enforcement by distraining property and selling distrained property at auction

1. Regulated entities

The following entities shall have their property distrained and sold at auction when failing to voluntarily implement tax decisions or pay enforcement costs:

a) Freelance workers.

b) Organizations and individuals that do not have accounts at credit institutions or their account balance is not sufficient to draw money.

c) Organizations against which the enforcement actions mentioned in Points a, b, and c Clause 1 Article 3 of this Circular cannot be taken, or tax, fines, late payment interest are not sufficiently collected after taking such enforcement actions, or in the case Clause 2 Article 3 of this Circular.

d) Property shall not be distrained if the taxpayer is an individual undergoing treatment at lawful medical facilities.

2. Verification of information about the delinquent taxpayer’s property

a) The issuer of the decision on enforcement may request the delinquent taxpayer, property registry, the secured transaction registry, and relevant entities to provide information.

b) The issuer of the decision on enforcement may verify information about the delinquent taxpayer’s property in the administrative division where the delinquent taxpayer’s business premises or residence is located, where the property registry office, secured transaction registry office, or relevant entities are located.

After verifying, the issuer of the decision on enforcement shall determine the amount paid to government budget after taking this enforcement action by estimate the property value after it is sold at auction.

c) Verifying information include: verified property, verified property value according to the accounting books, business performance (if the delinquent taxpayer is a business entity), or financial conditions (if the delinquent taxpayer is an individual not doing business) If the property has to be registered and the transfer of such property must be based on the sale contract, transfer contract, or certificate of property ownership, information shall be verified via the owner, local government, competent authorities, or witness of the transaction.

d) After verifying, a record bearing the information providers’ declaration shall be made. If the enforcing organization helps the issuer of the decision on enforcement verify information, the issuer of the decision on enforcement shall be responsible for the verification result.

dd) Information serving verification of property that has to be registered shall be announced publicly in order for people with relevant benefits and obligations to know and protect their benefits.

e) If property has been lawfully pledged or put up as collateral and thus cannot be distrained according to Article 38 of the Government's Decree No. 129/2013/NĐ-CP, the distraining organization shall notify the pledgee (the creditor) of the delinquent taxpayer’s obligations and request the pledgee to provide documents and evidence of the pledged property for the distraining organization when the pledge liquidates the pledged property under the pledge agreement.

g) In the case mentioned in Point d Clause 1 of this Article, or after 05 working days from the day on which the written request for verification of information about the property is sent to the delinquent taxpayer, if the property registry office or secured transaction registry office and relevant entities fail to provide sufficient information, or the amount collected after distrained property is sold at auction is not sufficient to cover the enforcement costs, the competent authority shall switch over to confiscating the delinquent taxpayer’s money or property held by a third party.

3. Decision on enforcement by distraining property and selling distrained property at auction

a) The decision on enforcement shall be made using form No. 01/CC enclosed herewith, specifying the name, address, TIN of the delinquent taxpayer; reasons for enforcement; the amount payable; time and place of distraint, description of distrained property; name, address, number of government budget account at a State Treasury; method of money transfer to the State Treasury.

b) This decision on enforcement shall be issued after the expiration date of the decision on enforcement by invalidating invoices or after the day on which it is possible to take the next enforcement action as prescribed in Point d Clause 2 Article 13 of this Circular.

c) The decision on enforcement by distraining property shall be sent to the delinquent taxpayer whose property is distrained, the People’s Committee of the commune where the delinquent taxpayer’s residence or business premises are located, or the employee of the individual within 05 working days from the date of issue of the decision and before the enforcement date, unless prior notification will obstruct the enforcement.

d) If the distrained property must be registered, the decision on enforcement shall be sent to:

The land registry office, the registry of property on land (if the distrained property is land or property on land).

The road vehicle registry office (if the distrained property is road vehicle).

Other property registry offices prescribed by law.

4. Local governments where the delinquent taxpayer’s residence or business premises are located, property registry offices, secured transaction registry offices, and relevant entities shall provide information necessary for the enforcement in order to verify the feasibility of the decision on enforcement, and cooperate in taking the enforcement action.

5. The procedures for distraining property are specified in Articles 38, 40, 41, 42, 43, 44, 45, 46, and 47 of the Government's Decree No. 129/2013/NĐ-CP dated October 16, 2013 on administrative penalties for tax offenses and enforcement of tax decisions.

6. The money collected after distrained property is sold shall be:

a) Used to pay unpaid tax, fine, and late payment interest according to the decision on enforcement.

b) Used to reimburse the enforcing organization for the enforcement costs.

c) Returned to the delinquent taxpayer after tax, fines, late payment interest, and enforcement costs have been paid in full.

Article 15. Enforcement by confiscating the delinquent taxpayer’s money and property held by other entities

1. Regulated entities

The enforcement action by confiscating the delinquent taxpayer’s money and property held by other entities (hereinafter referred to as third parties) shall be taken against the delinquent taxpayer mentioned in Article 2 of this Circular in the following cases:

a) The tax authority is not able to draw money from the delinquent taxpayer’s account at the State Treasury or credit institution; to request account freezing; to withhold part of wage or income; to invalidate invoices; to distrain property and sell them at auction as prescribed by law; or fail to sufficiently collect tax, fines, late payment interest after such actions have been taken.

b) The tax authority shall determine the third party that owes money to the delinquent taxpayer or is holding money/property of the delinquent taxpayer, including: any entity that owe a due debt to the delinquent taxpayer; any entity, State Treasury, bank, or credit institution authorized by the delinquent taxpayer to hold the delinquent taxpayer's money, property, goods, documents, valuable papers; or the tax authority has ample evidence that the money, property, goods, documents, valuable papers held by such entity is under the ownership of the delinquent taxpayer.

2. Verifying information about a third party holding the delinquent taxpayer's money/property

a) The tax authority shall request the third party, in writing, to provide information about the delinquent taxpayer’s money and property the third party is holding or the debt payable to the delinquent taxpayer.

If the third party who is holding the delinquent taxpayer’s money or property fails to do so, a written explanation must be submitted to the tax authority within 05 working days form the receipt of the written request from the tax authority.

b) According to the information provided by the third party, the tax authority shall issue the decision on enforcement by confiscating money or property held by the third party or collecting the debt owed to the delinquent taxpayer.

3. Decision on enforcement

a) The decision on enforcement shall be made using form No. 01/CC enclosed herewith, specifying the full name, address, TIN of the delinquent taxpayer; reasons for enforcement; the amount payable; name, address of the third party; name, address, number of government budget account at a State Treasury; method of money transfer to the State Treasury.

b) The decision on enforcement by confiscating delinquent taxpayer’s money or property held by a third party shall be sent to the delinquent taxpayer, the third party, the People’s Committee or tax authority of the commune where the third party’s residence or premises are located, or other organizations in the same commune for cooperation purposes.

4. The rules for confiscating the delinquent taxpayer’s money or property held by a third party are specified in Article 49 of the Government's Decree No. 129/2013/NĐ-CP dated October 16, 2013 on administrative penalties for tax offenses and enforcement of tax decisions.

5. Responsibilities of the third party holding the delinquent taxpayer’s money or property are specified in Article 51 of the Government's Decree No. 129/2013/NĐ-CP dated October 16, 2013 on administrative penalties for tax offenses and enforcement of tax decisions.

The third party is responsible for paying the unpaid tax, fines, late payment interest instead of the delinquent taxpayer or transferring the delinquent taxpayer’s property to the tax authority.

The distraint of property is prescribed in Article 14 of this Circular.

6. Responsibilities of tax authority monitory the third party located in another administrative division

a) If the residences or business locations of the delinquent taxpayer and the third party are in the same province but different districts, the Provincial Department of Taxation shall instruct inferior tax authorities to cooperate in tax enforcement.

b) If the residences or business locations of the delinquent taxpayer and the third party are in the different provinces, the tax authority that issues the decision on enforcement shall request the tax authority responsible for the third party, in writing, to take enforcement actions. The tax authority responsible for the third party shall take enforcement actions as requested by the tax authority responsible for the delinquent taxpayer.

Article 16. Enforcement by revoking the Certificate of Business Registration, license for establishment and operation, or practice certificate

1. Regulated entities

The Certificate of Business Registration, license for establishment and operation, or practice certificate shall be revoked if the tax authority fails to draw money from the delinquent taxpayer’s accounts at State Treasuries or credit institutions, fails to freeze accounts; fails to withhold part of the individual’s income; fails to invalidate invoices; fails to distrain property; and fails to confiscate the delinquent taxpayer’s money or property held by a third party; or fails to sufficiently collect tax, fines, and late payment interest after taking such actions.

2. Information verification

The enforcing body shall verify information about the delinquent taxpayer whose Certificate of Business Registration, license for establishment and operation, or practice certificate via the database of taxpayers at the tax authority or the issuer of such paper

3. Written request for enforcement

a) The written request for taking this enforcement action must specify: the recipient of the request, information about the taxpayer: name, TIN, registered business location; the paper being revoked, information about the paper being revoked (number, date of issue, etc.) reasons for enforcement, and deadline for taking this enforcement action.

b) The written request shall be sent to the delinquent taxpayer and competent authorities within 03 working days from the day on which information about the delinquent taxpayer is verified.

4. Responsibilities to implement the written request for revocation of the Certificate of Business registration, license for establishment and operation, or practice certificate

Within 10 days from the receipt of the written request from the tax authority, the issuer of the Certificate of Business registration, license for establishment and operation, or practice certificate shall issue a decision to revoke such paper, or notify the tax authority of the reasons for not revoking such paper.

After receiving the notification of no revocation, the tax authority shall keep monitor the debt. Whenever the previous enforcement action can be taken, the issuer of the decision on enforcement may issue a decision to take such previous enforcement action to ensure sufficient payment of tax, fines, and late payment interest.

Article 17. If the delinquent taxpayer attempts to make a getaway or illegally liquidate his/her property, the issuer of the decision on enforcement is entitled to decide on an appropriate enforcement action

1. Regulated entities

If the delinquent taxpayer attempts to make a getaway or illegally liquidate his/her property, the issuer of the decision on enforcement is entitled to decide on an appropriate enforcement action to ensure that tax debt is sufficiently collected

2. Information verification

The issuer of the decision on enforcement (or the person that delegates another person to do so) is entitled to verify information by requesting other agencies such as the People’s Committee of the commune where the delinquent taxpayer’s residence or business location is located, State Treasury, credit institution, and relevant entities to provide information about the implementation of the decision on enforcement.

The taxpayer shall be considered to attempts to make a getaway when: The decision on enforcement is considered received as prescribed in Point b Clause 1 of this Article but the delinquent taxpayer has not paid off the amount written on the decision on enforcement; the delinquent taxpayer no longer does business at the registered location (the shut down is certified by the People’s Committee or police authority of the commune and verified by the tax authority, including the case in which the taxpayer’s business is dissolved against the Company law or changes the business premises without notifying the tax authority within 10 working days from such change as prescribed in Article 27 of the Law on Tax administration.)

The taxpayer’s acts of transferring or giving away his/her property, or drawing the taxpayer’s accounts suspiciously without normal business transactions before the tax authority issues the decision on enforcement shall be considered illegal liquidation of property.

3. Responsibilities for enforcement

a) Tax authorities shall decide on appropriate enforcement actions on a case-by-case basis to collect tax, fines, and late payment interest sufficiently.

b) The procedures for taking each of the enforcement actions are provided in Articles 11 thru 16 of this Circular.

Section 3.

IMPLEMENTATION

Article 18. Effect

1. This Circular takes effect on February 21, 2014.

2. Circular No. 157/2007/TT-BTC dated December 24, 2007 of the Ministry of Finance on enforcement of tax decisions is annulled.

Article 19. Instructions on implementation

1. Other regulations on enforcement that are not regulated by this Circular shall be regulated by regulations of law on actions against administrative violations and relevant regulations of law.

2. The forms of records, documents, certifications, and decision on enforcement are enclosed with this Circular.

3. Tax authorities shall develop the database about taxpayers based on the information provided by taxpayers and other information providers according to the Law on Tax administration, the Law on the amendments to the Law on Tax administration, and the Decree No. 83/2013/NĐ-CP dated July 22, 2013.

Tax authorities shall apply information technology and database about taxpayers for tax administration purposes; assess the taxpayers' adherence to laws to serve tax administration tasks and take enforcement actions as prescribed by law.

Article 20. Responsibility for implementation

1. Tax authorities shall instruct taxpayers, State Treasuries, credit institutions, organizations, households and individuals to implement this Circular.

2. Tax authorities shall cooperate with other regulatory bodies, political organizations, socio-political organizations, social organizations, socio-professional organizations in disseminate this Circulate, encourage and supervise its implementation.

Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Finance for consideration.

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