Chương V Thông tư 28/2011/TT-BTC: Trách nhiệm hoàn thành nghĩa vụ nộp thuế

Chapter V

RESPONSIBILITY TO FULFILL THE TAX PAYMENT OBLIGATION

Article 33. Fulfillment of the tax payment obligation in case of exit

1. Vietnamese on exit to reside abroad, overseas Vietnamese and foreigners shall, before leaving Vietnam, fulfill the tax payment obligation.

2. Taxpayers defined in Clause 1 of this Article must, before their exit, obtain tax administrations' certification of their fulfillment of the tax payment obligation. Tax administrations shall give written certification of the fulfillment of the tax obligation at the request of taxpayers.

3. Immigration management agencies shall suspend exit of persons upon receiving tax administrations' written or electronic notices of these persons' failure to fulfill the tax obligation under law before their exit.

Article 34. Fulfillment of the tax payment obligation in case of dissolution, bankruptcy or operation termination

1. Fulfillment of the tax payment obligation in case of dissolution or bankruptcy complies with Article 54 of the Tax Administration Law and laws on enterprises, cooperatives and bankruptcy.

Owners of private enterprises, members' councils or owners of limited liability companies, boards of directors of joint-stock companies or enterprise liquidation organiza­tions shall take responsibility for the fulfillment of the tax payment obligation by enterprises in case of dissolution.

Cooperative dissolution councils shall take responsibility for the fulfillment of the tax payment obligation by cooperatives in case of dissolution.

Asset management and liquidation teams shall take responsibility for the fulfillment of the tax payment obligation by enterprises in case of bankruptcy.

Owners of private enterprises and partners of partnerships shall fulfill the tax payment obligation both before and after obtaining court decisions declaring their bankruptcy.

2. Responsibility to fulfill the tax obligation in case taxpayers terminate operation without carrying out dissolution or bankruptcy procedures under law:

a/ For enterprises which terminate operation without carrying out dissolution or bankruptcy procedures and enterprises which have not fulfilled the tax payment obligation, owners of private enterprises, chairpersons of members' councils or owners of limited liability companies, chairpersons of boards of directors of joint-stock companies and heads of management boards of cooperatives shall pay the tax arrears.

b/ For households and individuals that terminate business activities without fulfilling the tax payment obligation, heads of these households and the individuals themselves shall pay the tax arrears.

c/ For cooperative groups which terminate operation without fulfilling the tax payment obligation, heads of these cooperative groups shall pay the tax arrears.

d/ Taxpayers that have fulfilled the tax payment obligation under Point a, b or c of this Clause may request other persons with joint responsibility to perform their joint responsibility toward the former under the civil law.

Article 35. Fulfillment of the tax payment obligation in case of reorganization of enterprises

1. To-be-divided enterprises shall fulfill their tax payment obligation before division. In case divided enterprises have not fulfilled their tax payment obligation, enterprises newly established from the divided enterprises shall fulfill such obligation.

2. To-be-separated, -consolidated or -merged enterprises shall fulfill their tax payment obligation before separation, consolidation or merger. If having not fulfilled their tax payment obligation, separated enterprises and enterprises newly established from separated enterprises, consolidating enterprises and merging enterprises shall fulfill such obligation.

3. Enterprises to undergo ownership transformation shall fulfill their tax payment obligation before transformation. If transformed enterprises have not fulfilled their tax payment obligation, enterprises newly established from transformed enterprises shall fulfill such obligation.

4. Reorganization of enterprises will not result in change in the tax payment time limit for reorganized enterprises. Reorganized enterprises or newly established enterprises which fail to fully pay tax within the specified tax payment time limit shall be sanctioned under law.

5. Tax agencies may request one of enterprises with joint responsibility to fulfill the whole tax payment obligation. An enterprise which has fulfilled the whole tax payment obligation may request enterprises with joint responsibility to perform their joint responsibility toward it under the civil law.

Article 36. Inheritance of the tax payment obligation of persons who are declared as deceased, having lost civil act capacity or missing under the civil law

1. Heirs shall fulfill the tax payment obligation of persons who are declared by law as deceased within the value of the deceased's bequeathed assets.

In case a bequeathed asset has not been divided, the asset manager shall fulfill the deceased's tax payment obligation.

In case a bequeathed asset has been divided, heirs of the bequeathed asset shall fulfill the deceased's tax payment obligation corresponding to but not exceeding the asset's value they inherited, unless otherwise agreed.

In case the State, an agency or organization inherits the bequeathed asset according to testament, it shall also fulfill the deceased's tax payment obligation like an individual heir.

In case there is no heir according to testament or law or there is an heir who refuses to receive the bequeathed asset, the fulfillment of the deceased's tax payment obligation complies with the civil law.

2. The tax payment obligation of persons declared as missing or having lost civil act capacity shall be fulfilled by persons assigned by the court to manage the former's assets within the value of such assets.

3. In case a competent state agency annuls a decision declaring a person as deceased, missing or having lost civil act capacity, the tax arrears already remitted under Article 65 of die Tax Administration Law shall be recovered without fines on late payment for the period he/she is declared as deceased, missing or having lost civil act capacity.

Article 37. Certification of fulfillment of the tax obligation

1. Taxpayers may request their managing tax agencies to certify their fulfillment of the tax obligation for each kind or all kinds of tax (except taxes on imports); or to certify tax amounts and fines remaining to be paid by the time of request.

Foreign individuals or contractors who pay tax through organizations or individuals responsible for withholding tax may request tax agencies managing these organizations or individuals to certify their fulfillment of the tax payment obligation.

2. A written request for certification of fulfillment of the tax payment obligation must indicate:

- Name of the taxpayer and his/her tax identification number;

- Amount of tax of each kind, including, the amount declared by the taxpayer in the tax dossier submitted to the tax agency and the presumptive amount and assessed amount under the tax agency's decision;

- Fine for administrative violations of tax laws;

- Tax amount and fine already paid;

- Tax amount and fine not yet paid (if any).

3. Within 5 working days after receiving a taxpayer's written request for certification of fulfillment of the tax obligation, the tax agency shall issue such certification. When necessary to check and compare information on the taxpayer's fulfillment of the tax obligation, the tax agency shall send a notice to the taxpayer, indicating the reason for non-certification.

4. Procedures for deduction of overseas paid tax into tax payable in Vietnam

To be entitled to deduction of the tax amount already paid (or regarded as having been paid) in a country being a contracting party to a tax agreement with Vietnam, an organization or individual being Vietnam's resident shall complete the following procedures:

a/ The taxpayer shall send a dossier of request for deduction of the tax amount already paid (or regarded as having been paid) in a foreign country into the tax amount payable in Vietnam to the provincial-level Tax Department with which he/she registers tax payment. A dossier comprises:

a.1/ A written request for tax deduction under agreement, made according to form No. 02/HTQT provided in this Circular, providing information on transactions related to the overseas tax amount requested for deduction into the tax amount payable in Vietnam within the agreement's scope of regulation.

In force majeure circumstances, if the taxpayer fails to provide sufficient information or documents required under Point a, Clause 4 of this Article, he/she shall give the reasons in the above request.

a. 2/ Other documents, depending on the form of deduction. Specifically:

- In case of direct deduction:

+ A copy of the overseas income tax return, certified by the taxpayer;

+A copy of the overseas tax receipt certified, by the taxpayer;

+ An original of the overseas tax agency's certification of the paid tax amount.

- In case of deduction of the presumptive tax amount:

+ A copy of the overseas income tax return, certified by the taxpayer;

+ Copies of the business registration certificate or legal documents on overseas business operations certified by the taxpayer;

+ A foreign competent official's letter of certification of the exempted or reduced tax amount and certification that the request for deduction of the presumptive tax amount is compliant with the agreement and law of the country being contracting party to the relevant agreement.

- In case of indirect deduction:

+ Legal documents evidencing the requester's relationship and holding rate;

+ A copy of the overseas income tax return of the dividend-sharing company to which the requester contributes capital, certified by the taxpayer;

+ A copy of the return of withholding tax on the shared dividends, certified by the taxpayer;

+ A foreign tax agency's certification of the tax amount already paid for the shared stocks and the income tax amount already paid by the company before dividend sharing.

b/ Based on the dossier, the tax agency shall consider and deduct tax under the agreement and this Circular within 10 working days after receiving a complete dossier specified at Point a above. This 10-day period excludes the time for supplementing and explaining the dossier.

5. Procedures for certification of tax amounts already paid in Vietnam by foreign residents:

For a resident of a country being contracting party to an agreement with Vietnam who must pay income tax in Vietnam under the agreement and Vietnamese tax laws, if wishing to have his/ her tax amount already paid in Vietnam certified for deduction into the tax amount payable in his/ her country of residence, he/she shall carry out the following procedures:

a/ If the taxpayer sends a dossier of request for certification of the tax amount actually paid in Vietnam to the provincial-level Tax Department with which he/she registers tax payment, the dossier comprises:

a.1/ A written request for certification of the tax amount actually paid in Vietnam, made according to form No. 03/HTQT provided in this Circular, providing information on transactions related to taxable income and tax amount arising from such transactions within the agreement's scope of regulation.

In force majeure circumstances in which the taxpayer cannot provide sufficient information or documents required under Point a, Clause 5 of this Article, he/she shall give the reasons in the above request.

a.2/ The country of residence's consularly legalized certificate of residence, granted by the tax agency (indicating in which tax period the taxpayer resides).

Within 7 working days after receiving a complete dossier, the provincial-level Tax Department with which the taxpayer makes tax registration shall issue a written certification of the paid tax amount according to form No. 04/HTQT, for PIT and EIT, or form No. 05/HTQT provided in this Circular, for income tax on dividends, loan interests, royalty or technical service charges. This 7-day time limit excludes the time for supplementing and explaining the dossier.

b/ If the taxpayer requests certification of the tax amount arising in Vietnam but is exempt from tax because he/she is entitled to tax incentives and such exemption is regarded as the paid tax amount for deduction of the presumptive tax amount in his/her country of residence, he/she shall send a dossier to the provincial-level Tax Department for carrying out certification procedures. A dossier comprises:

b.1/ A written request for certification of the tax amount paid in Vietnam, made according to form No. 03/HTQT provided in this Circular, providing information on transactions related to taxable income, arising tax amount and tax incentives for such transactions within the agreement's scope of regulation.

In force majeure circumstances in which the taxpayer cannot provide sufficient information or documents required under Point b, Clause 5 of this Article, he/she shall give the reasons in the above request.

b.2/ The country of residence's consularly legalized certificate of residence, granted by the tax agency (indicating in which tax period the taxpayer resides);

Within 7 working days after receiving a complete dossier, the provincial-level Tax Department shall certify the tax amount arising in Vietnam which is exempt because the taxpayer is entitled to tax incentives. This 7-day time limit excludes the time for supplementing and explaining the dossier.

6. Procedures for certification of Vietnam's residents:

a/ Organizations and individuals that request to be certified as Vietnam's residents under the agreement shall carry out the following procedures:

a.1/ Organizations and individuals being taxpayers shall submit a written request for certification of Vietnam's residents, made according to form No. 06/HTQT provided in this Circular, to the provincial-level Tax Department with which they register tax payment.

a.2/ For organizations and individuals other than taxpayers:

- A written request (specified at Point a.1, Clause 6 of this Article);

- The managing agency's or local administration's certification of place of residence or place of household membership registration, for individuals, or establishment registration certificate, for organizations (e.g., cooperatives or agricultural cooperative groups);

- The income payer's certification (if any). If this certification is unavailable, requesters shall themselves declare in the request and take responsibility before law for such declaration.

b/ Within 7 working days after receiving a request,, the provincial-level Tax Department shall, pursuant to Article 4 of the Agreement related to definition of residents, consider and grant certificates of residence to requesters, made according to form No. 07/HTQT provided in this Circular. This 7-day time limit excludes the time for supplementing and explaining the dossier.