Chapter VI
TAX EXEMPTION AND REDUCTION PROCEDURES; REMISSION OF TAX AND FINE ARREARS
Article 38. Cases in which taxpayers themselves determine tax amounts eligible for exemption or reduction
1. Taxpayers shall themselves determine tax amounts eligible for exemption or reduction in tax declaration dossiers or tax exemption or reduction dossiers and send these dossiers to their managing tax agencies, except the cases specified in Article 39 of this Circular.
2. Documents related to tax exemption or reduction determination constitute a part of the tax declaration dossier.
Article 39. Cases in which tax agencies decide on tax exemption or reduction
Tax agencies shall directly examine dossiers and issue decisions on tax exemption or reduction in the following cases:
1. Tax exemption or reduction for business households or individuals that pay tax according to the presumption method and suspend business operations. A dossier of request for tax exemption or reduction comprises the household or individual's written request for tax exemption or reduction, made according to form No. 01/MGTH provided in this Circular, indicating the payable tax amount; tax amount requested for exemption or reduction; paid tax amount (if any); tax amount remaining to be paid; reasons for exemption or reduction, and enclosed documents.
PIT exemption or reduction procedures comply with Clause 2 of this Article.
2. PIT exemption or reduction:
PIT reduction shall be considered in a calendar year. Taxpayers facing difficulties caused by natural disasters, fires, accidents or dangerous diseases, business individuals or groups of business individuals paying PIT according to the presumption method that suspend business operations, and foreign experts implementing ODA programs and projects in a year shall be considered for exemption or reduction of the payable PIT amounts in that year.
a/ PIT exemption or reduction dossier
a.1/ For taxpayers facing difficulties caused by natural disasters or fires
- A written request for PIT reduction, made according to form No. 18/MGT-TNCN provided in this Circular;
- A competent agency's evaluation of the extent of property damage or the certification of damage given by the commune-level People's Committee of the locality in which the natural disaster or fire occurs;
- The insurer's compensation document (if any) or the fire causer's compensation agreement (if any);
- Payment documents directly related to remedy of the natural disaster or fire;
- The PIT finalization return (for those subject to PIT finalization).
a.2/ For taxpayers facing difficulties caused by accidents
- A written request for PIT reduction, made according to form No. 18/MGT-TNCN provided in this Circular;
- The police office's document or record certifying the accident, or the health agency's document or record certifying the degree of injury;
- Papers on the insurer's compensation or the accident causer's compensation agreement (if any);
- Payment documents directly related to remedy of the accident;
- The PIT finalization return (for those subject to PIT finalization ).
a.3/ For taxpayers suffering dangerous diseases
- A written request for PIT reduction, made according to form No. 18/MGT-TNCN provided in this Circular;
- Copies of the medical records or medical books;
- The health agency's documents evidencing medical expenses; or receipts for medicines enclosed with the doctor's prescriptions;
- The PIT finalization return (for those subject to PIT finalization).
a.4/ For business individuals or groups of business individuals paying PIT according to the presumption method that suspend business operations
In a year subject to presumptive tax payment, business individuals or groups of business individuals that cease business operations for a full month (from the first through the last day of a month) or more will be entitled to reduction of one-third of the payable quarterly tax amounts. Those ceasing business operations for full 2 months or more will be entitled to reduction of two-thirds of the quarterly payable tax amounts. Those ceasing business operations for the whole quarter will be entitled to reduction of the whole quarterly payable tax amounts.
Example: Mr. A is a business individual who has a presumptive tax amount payable in 2011 of VND 12 million. In the year, he ceases business operations consecutively from February 20 through June 20. So he will be considered for tax reduction as follows:
- Mr. A's full months of business cessation to be considered for tax reduction include March, April and May;
- His quarterly presumptive tax amount is VND 12 million/4 quarters = VND 3 million
So his tax amount eligible for reduction is:
- In the first quarter, he ceases business operations for 1 full month, so he is entitled to reduction of one-third of this quarter's tax amount, which is VND 1 million.
- In the second quarter, he ceases business operations for 2 consecutive months, so he is entitled to reduction of two-thirds of this quarter's tax amount, which is full VND 2 million.
A dossier of request for tax exemption or redaction comprises an individual's written request for tax exemption or reduction, made according to form No. 01/MGTH provided in this Circular, indicating the payable tax amount; tax amount requested for exemption or reduction; paid tax amount (if any); tax amount to be paid; reasons for exemption or reduction, and enclosed documents.
a.5/ For foreign experts implementing ODA programs and projects
- The project owner's or contractor (company)'s written request for PIT exemption for the expert.
- The managing agency's certification of the expert's satisfaction of all conditions for privileges and immunities, made according to form No. 01/XNCG provided in this Circular.
- Documents related to the expert's tax- exempt income (contract, income payment document, etc.).
Within 15 working days after receiving a complete and valid dossier, the tax agency shall give a written certification of PIT exemption for the expert, made according to form No. 02/XNMT provided in this Circular.
b/ Places for dossier submission
Taxpayers facing difficulties caused by natural disasters, fires, accidents or dangerous diseases, business individuals or groups of business individuals paying PIT according to the presumption method that cease business operations shall submit dossiers of request for PIT reduction to their managing tax agencies.
For experts signing contracts with project owners or contractors (companies), these owners or contractors (companies) shall submit dossiers of request for PIT exemption for the experts to tax agencies in localities in which they are headquartered.
3. Exemption from or reduction of excise tax, land rent, water surface rent, housing and land tax or agricultural land use tax for taxpayers facing difficulties caused by natural disasters, fires or accidents, thus suffering losses and unable to pay tax
A dossier of request for tax exemption or reduction comprises:
- A written request for tax exemption or reduction, made according to form No. 01/MGTH provided in this Circular, indicating the time of and reason for damage, value of damaged property, losses caused by natural disasters, enemy sabotage or accidents, payable tax amount, tax amount requested for exemption or reduction, and list of enclosed documents;
- A competent agency's evaluation of the level and value of property damage, certified by the commune-level administration of the locality in which the natural disaster, fire or accident occurs, made according to form No. 02/MGTH provided in this Circular;
- The financial settlement statement (for enterprises), enclosed with explanations analyzing and determining damage and losses caused by damage.
4. Royalty exemption or reduction for mining organizations and individuals under Article 9 of the Law on Royalties:
a/ A dossier of request for royalty exemption or reduction comprises:
- A written request for royalty exemption or reduction, made according to form No. 01/MGTH provided in this Circular.
- A monthly royalty return, made according to form No. 01/TAIN provided in this Circular.
- A royalty finalization return, made according to form No. 02/TAIN provided in this Circular.
- Enclosed documents related to royalty exemption or reduction.
b/ Royalty-exempt cases in which monthly royalty returns and annual royalty finalization are not required: Organizations and individuals exploiting natural aquatic products; natural water used for agriculture, forestry, fishery production and salt making; natural water exploited by households and individuals for daily-life activities.
c/ Royalty exemption procedures in some specific cases:
- For natural water used for hydropower generation by households and individuals for their daily-life activities: These households and individuals shall make written requests for royalty exemption, enclosed with explanations about equipment for hydropower generation for daily-life activities, certified by commune-level People's Committees. When commencing operation, these households shall make first-time declaration to their managing tax agencies to enjoy royalty exemption.
- For soil exploited and used on the allocated or leased land area:
Soil-exploiting organizations and individuals (including contract-undertaking units) shall make written requests for royalty exemption, enclosed with certified copies of land allocation or lease decisions and approved relevant dossiers on construction of works in localities by investors, and send dossiers to their managing tax agencies in localities in which they exploit soil for information on and monitoring of royalty exemption.
5. Land use levy exemption or reduction
A dossier of declaration of land use levy exemption or reduction comprises:
- A land use levy return, made according to form No. 01/TSDD provided in this Circular;
- Papers evidencing land use levy exemption or reduction (notarized or certified copies), specifically: investment incentive certificate, for cases eligible for investment promotion; a competent agency's written approval of the investment project, for projects on public works for commercial purposes, projects to build student dormitories, houses for people with meritorious services to the revolution or condominiums for industrial park workers; a decision on relocation of and approved investment project for factories and workshops to be relocated under planning. For poor households, a competent agency's certification of poor households is required under regulations of the Ministry of Labor, War Invalids and Social Affairs. For ethnic minority households, their household membership books (in localities in which such books are available) or the commune-level People's Committee's certification (in localities in which such books are not yet available) are/is required. For households and individuals with meritorious services to the revolution, relevant papers evidencing their eligibility for land use levy exemption or reduction under law, and land use levy exemption or reduction decisions of provincial-level People's Committees or their authorized agencies, are required.
Land use levy exemption or reduction declaration dossiers shall be sent to land use right registries or natural resources and environment agencies, for dossiers to be submitted to these agencies, or commune-level People's Committees, for dossiers to be submitted in communes, wards or townships, or tax agencies of localities in which exists the land, in case the one-stop shop mechanism has not been applied.
6. Land rent or water surface rent exemption or reduction:
A dossier of request for exemption or redaction of land rent or water surface rent (below collectively referred to as land rent) comprises:
- A written request for land rent exemption or reduction, indicating the to-be-leased land area, lease duration; reasons for and period of exemption or reduction.
- A land rent return under regulations.
- The approved investment project (except cases in which beneficiaries of land exemption or reduction are not investment projects).
- A competent agency's land lease decision; land lease contract (and contract or document on receipt of contracted land between an enterprise or agricultural production cooperative and households being farmers or cooperative members, for cases eligible for land rent exemption or reduction specified at Point 3, Section II and Point 3, Section III, Part C of Circular No. 120/2005/TT-BTC, which was amended under Point 4, Section VII and Point 3, Section VIII of the Finance Ministry's Circular No. 141/2(X)7/TT-BTC of November 30, 2007).
- The investment license or business registration certificate.
- The investment certificate granted by a competent state agency, in case the investment project must be indicated by an investment state management agency in the investment certificate or in case the project is not subject to investment registration but the investor requests certification of investment incentives.
In addition to the above papers, in some cases, a dossier of request for land rent exemption or reduction must comprise the following papers:
a/ In case a project faces difficulties and must be suspended from construction or operation and is eligible for land rent exemption in the period of such suspension:
- For a project subject to construction suspension, within 30 days after suspension, the following papers must be sent to the tax agency:
+ A written request for land rent exemption or reduction, indicating reasons for and period of suspension.
+ An annex to the construction contract or record of construction suspension made between the contract-assigning and -undertaking parties, indicating suspension of performance of the construction contract.
- For a project subject to operation suspension, within 30 days after suspension, a written request for land rent exemption or reduction certified by the investment licensing agency must be sent to the tax agency.
b/ For cases eligible for land rent exemption in the construction period under approved projects, procedures shall be carried out in the two stages below:
b. 1/ In the construction period, the land renter shall produce to the tax agency papers for use as a basis for temporarily determining the period eligible for land rent exemption, including:
- The construction license granted by a competent agency, except projects in new urban centers, industrial parks or industrial complexes.
- The construction contract; in case no construction contract is available, the land renter must indicate such in the written request for land rent exemption.
- A record of land allocation.
b.2/ After a work or work item is completed and handed and put into operation and use. the land renter shall fully produce papers to the tax agency for issuing a land rent exemption decision. These papers include:
+ A record of takeover test and handover of the completed work or work item put into operation and use, made between the work construction investor and contractor.
Or documents evidencing that the land renter him/herself conducts capital construction.
c/ Cases eligible for land rent exemption or reduction according to investment incentives under the investment law or for new production and business establishments of economic institutions to be relocated under planning or due to environmental pollution:
- Papers on investment incentives, indicating land rent or water surface rent incentives, such as investment incentive certificate, investment license and investment certificate granted by a competent state agency (notarized or certified copies).
- A competent state agency's decision to relocate the production and business establishment under planning or due to environmental pollution.
- A land lease decision, land lease contract or record of land allocation at the new production and business establishment.
d/ Cases eligible for land rent exemption or reduction for projects to build working office building, land leased under projects to build offices of diplomatic missions, foreign consular offices and representative offices of international organizations in Vietnam under treaties to which Vietnam is a contracting party or on the reciprocal principle.
In these cases, the land renter shall produce to the tax agency the agreement or commitment between the Vietnamese Government and an international organization on land rent exemption or reduction; or a written certification given by the Vietnamese Ministry of Foreign Affairs or a local foreign affairs agency authorized by the Ministry of Foreign Affairs.
e/ In cases eligible for land rent exemption or reduction as decided by the Prime Minister at the proposal of ministers, heads of ministerial-level agencies or government-attached agencies or chairpersons of provincial-level People's Committees, a dossier of request for land rent exemption or reduction must comprise the Prime Minister's decision (a notarized or certified copy).
7. Time limit for processing dossiers of request for tax exemption or reduction:
- Within 30 days after receiving a complete dossier, the tax agency shall issue a tax exemption or reduction decision, made according to form No. 03/MGTH provided in this Circular, or notify the taxpayer of reasons for his/her ineligibility for tax exemption or reduction according to form No. 04/MGTH provided in this Circular.
- When necessary to conduct physical inspection to have sufficient grounds for processing dossiers, the time limit for issuing a tax exemption or reduction decision is 60 days after receiving a dossier.
8. Competence to approve tax exemption or reduction:
a/ For land use levy, land rent and water surface rent:
- Directors of provincial-level Tax Departments may approve land use levy exemption or reduction and issue decisions on land rent or water surface rent exemption or reduction for economic institutions, foreign organizations and individuals and overseas Vietnamese.
- Heads of district-level Tax Departments may approve land use levy exemption or reduction and issue decisions on land rent or water surface rent exemption or reduction for households and individuals.
b/ Exemption from or reduction of other taxes in case tax agencies decide on tax exemption or reduction: For tax exemption or reduction dossiers submitted to managing tax agencies of a level, heads of these tax agencies shall decide on tax exemption or reduction or notify taxpayers of reasons for their ineligibility for tax exemption or reduction.
Article 40. Remission of tax or fine arrears
1. Cases eligible for remission of tax or fine arrears include:
a/ Enterprises declared bankrupt (excluding private enterprises and partnerships declared bankrupt) which have made payments under the bankruptcy law and have no assets left for paying tax or fine arrears.
b/ Individuals declared by law as deceased, missing or having lost civil act capacity, and having no assets left for paying tax or fine arrears.
2. A dossier of request for remission of tax or fine arrears comprises:
a/ A written request for remission of tax or fine arrears, made by the tax agency managing the taxpayer entitled to such remission according to form No. 01/XNTH provided in this Circular;
b/ Documents related to the request (notarized or certified copies):
b.1/ For the case specified at Point a, Clause 1 of this Article:
- A tax finalization return by the time the court issues a decision to open procedures for responding to the request for bankruptcy declaration;
- A decision to open asset liquidation procedures, enclosed with a plan on asset division;
- A court decision to declare bankruptcy.
b.2/ For the case specified at Point b. Clause 1 of this Article:
- For a person declared by law as deceased:
+ A certificate or notice of death or a substitute paper as provided by the law on civil status registration and management;
+ A written certification given by the commune-level People's Committee of the last place of residence of the deceased that he/she has no assets.
The tax agency shall request the deceased's relatives to provide the above papers. If such paper are lost, it shall request them to make an application requesting the chairperson of the commune-level People's Committee of the deceased's last place of residence to certify that he/she has deceased and has no assets.
- For a person declared by law as missing:
+ A court decision to declare his/her missing;
+ A written certification given by the commune-level People's Committee of the locality in which he/she resided that he/she has no assets.
The tax agency shall request relatives of the person declared as missing to provide the above papers.
- For a person declared by law as having lost civil act capacity:
+ A court decision to declare his/her loss of civil act capacity;
+ A written certification made by his/her guardian, certified by the commune-level People's Committee of the locality in which his/ her resided, that he/she has no assets.
The tax agency shall request guardians of the person declared as having lost civil act capacity to provide the above papers.
3. Order of processing a dossier of request for remission of tax or fine arrears:
a/ Managing tax agencies shall send dossiers of request for remission of tax or fine arrears to superior tax agencies in the following order:
- District-level Tax Departments send to provincial-level Tax Departments dossiers of request for remission of tax or fine arrears of taxpayers managed by district-level Tax Departments.
- Provincial-level Tax Departments send to the General Department of Taxation dossiers of request for remission of tax or fine arrears of taxpayers managed by provincial-level Tax Departments and dossiers submitted by district-level Tax Departments.
b/ If dossiers of request for remission of tax or fine arrears are incomplete, within 10 working days after receiving the dossiers, superior tax agencies shall notify such to dossier-making agencies for completion of the dossiers according to form No. 02/XNTH provided in this Circular;
c/ Within 60 days after receiving a complete dossier of request for remission of tax or fine arrears, a competent person shall issue an arrear remission decision according to form No. 03/XNTH, or notify cases ineligible for remission of tax or fine arrears according to form No. 04/XNTH, provided in this Circular.
4. Competence to remit tax or fine arrears and report to the National Assembly:
a/ The Minister of Finance may authorize the General Director of Taxation to examine dossiers and issue decisions on remission of tax or fine arrears under Clause I of this Article. A decision contains:
- Name of the taxpayer entitled to remission of tax or fine arrears;
- To-be-remitted tax arrear corresponding to the kind of tax and tax period or the time the tax amount arises;
- To-be-remitted fine arrear;
- Tax agency to observe the decision.
b/ On the basis of arrear remission decisions, tax agencies managing tax or fine arrears eligible for remission shall include the arrears in annual state budget revenue settlement and report such to finance agencies of the same level for inclusion in local budget settlement reports.
c/ The General Director of Taxation shall summarize the remitted tax and fine arrears according to settlement of budgets at all levels and submit them to the Minister of Finance for reporting to the National Assembly when the Government submits to the National Assembly for approval the general state budget settlement.
Tìm kiếm
Thông tư 28/2011/TT-BTC hướng dẫn Luật quản lý thuế, Nghị định 85/2007/NĐ-CP và 106/2010/NĐ-CP do Bộ Tài chính ban hành (Bản Pdf)
Thông tư 28/2011/TT-BTC hướng dẫn Luật quản lý thuế, Nghị định 85/2007/NĐ-CP và 106/2010/NĐ-CP do Bộ Tài chính ban hành (Bản Word)