Chương VII Thông tư 28/2011/TT-BTC: Thủ tục hoàn thuế, bù trừ thuế

Chapter VII

TAX REFUND AND CLEARING PROCEDURES

Article 41. A dossier of request for VAT refund in case the input VAT amount has not been fully credited in 3 consecutive months, or in case the output VAT amount has not yet arisen during investment period, or for clearing of VAT on purchased goods and services used for an investment project together with declaration of VAT on production and business activities comprises a written request for refund of state budget revenues made according to form No. 01/DNHT provided in this Circular.

Article 42. Dossiers of request for VAT refund in case of export

1. When payment is made in cash, a VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of goods and service import and export dossiers, made according to form No. 01-3/DNHT provided in this Circular, including the export contract signed with a foreign party or export or processing entrustment contract, in case of export entrustment or export processing entrustment; the customs declaration of exports; and document of payment for export goods and services;

- A record of liquidation of the contract on export entrustment or export processing entrustment (in case the contract is completed) or a record comparing regular debts between the export entrusting party and entrusted party (in case of export entrustment or export processing entrustment);

- The entrusted party's written certification of the quantity of actually exported goods, enclosed with a detailed list of names, quantities, unit prices and turnover of exported goods (in case the entrusted party exports goods of the same type of different goods owners according to each shipment and delivers goods to different customers at different unit prices).

2. When payment is made in kind, a VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of goods and service import and export dossiers, made according to form No. 01-3/DNHT provided in this Circular, including the export contract signed with a foreign party; the import contract on clearing against exported goods and services signed with a foreign party; the import and export declaration; the written certification of the cleared amount, given to the foreign party; and via-bank payment documents;

- The entrusted party's written certification of the quantity of actually exported goods, enclosed with a detailed list of names, quantities, unit prices and turnover of exported goods (in case the entrusted party exports goods of the same type of different goods owners according to each shipment and delivers goods to different customers at different unit prices).

3. In case of on-spot export, a VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of goods and service import and export dossiers, made according to form No. 01-3/DNHT provided in this Circular, including the export contract signed with a foreign party, indicating names, quantities and unit prices of goods, name, address and tax identification number of the goods recipient; the customs declaration of on-spot imported and exported goods; and documents of via-bank payment for on-spot imported and exported goods;

- The entrusted party's written certification of the quantity of actually exported goods, enclosed with a detailed list of names, quantities, unit prices and turnover of exported goods (in case the entrusted party exports goods of the same type of different goods owners according to each shipment and delivers goods to different customers at different unit prices).

4. For processed goods, a VAT refund dossier comprises:

- A written request for refund of state budget revenue, made according to form No. 01/DNHT provided in this Circular;

- A statement of goods and service import and export dossiers, made according to form No. 01-3/DNHT provided in this Circular, including the processing-ordering contract; processing-undertaking contract; the declaration of processed goods; and documents of via-bank payment for on-spot exported goods;

- The entrusted party's written certification of the quantity of actually exported goods, enclosed with a detailed list of names, quantities, unit prices and turnover of exported goods (in case the entrusted party exports goods of the same type of different goods owners according to each shipment and delivers goods to different customers at different unit prices).

5. For goods exported for implementation of offshore investment projects, a VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of dossiers of goods exported for offshore investment, made according to form No. 01-4/DNHT provided in this Circular, including the offshore investment certificate; the written approval of the investment project or document of equivalent legality under the law of the investment-receiving country; the Industry and Trade Ministry's document on the list of goods exported for implementation of the offshore investment project (indicating kinds, quantities and value of goods);

- The entrusted party's written certification of the quantity of actually exported goods, enclosed with a detailed list of names and quantities of goods (in case the entrusted party exports goods of the same type of different goods owners according to each shipment and delivers goods to different customers).

Article 43. VAT refund for ODA projects

1. For projects owners and principal contractors

a/ Submission of VAT refund dossiers:

Owners of ODA projects eligible for VAT refund shall submit VAT refund dossiers to provincial-level Tax Departments managing project areas any time when arises an input VAT amount eligible for refund during the project implementation period.

Principal contractors implementing ODA projects eligible for VAT refund shall submit VAT refund dossiers to tax agencies of localities in which the projects are implemented.

b/ A VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of invoices and documents of purchased goods and services, made according to form No. 01-1/DNHT provided in this Circular,

- A competent authority's decision approving the project using non-refundable ODA or preferential ODA loans allocated from the state budget (a copy sealed and signed by the project's competent person). In case of multiple VAT refund, this decision is required only upon the first refund.

- The ODA project-managing agency's certification that the project is funded with non-refundable ODA or preferential ODA loans allocated from the state budget which are eligible for VAT refund (a certified copy) and that the project is not allocated state budget for VAT payment. The taxpayer is required to submit this certification together with a dossier of request for first-time VAT refund.

In case principal contractors make VAT refund dossiers, in addition to the documents specified at this Point, there must be the project owner's certification that the project is not allocated state budget capital for payment to contractors at VAT-inclusive prices. Payment prices are exclusive of VAT and VAT refund is requested for principal contractors.

2. For ODA project offices

a/ Submission of VAT refund dossiers:

ODA project offices eligible for VAT refund shall submit VAT refund dossiers to provincial-level Tax Departments in localities in which the offices are headquartered any time when arises an input VAT amount eligible for refund during the project implementation period.

b/ A VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of invoices and documents of purchased goods and services, made according to form No. 01-1/DNHT provided in this Circular;

- A written agreement between a competent Vietnamese state agency and the donor on the establishment of the representative office (a copy certified by the office);

- A competent state agency's document on the establishment of the representative office (a copy certified by the office).

Article 44. VAT refund for Vietnamese organizations using foreign humanitarian aid and non-refundable aid to purchase goods in Vietnam for donation

1. Submission of VAT refund dossiers: Vietnamese organizations using foreign humanitarian aid and non-refundable aid to purchase goods in Vietnam for donation and entitled to VAT refund shall submit VAT refund dossiers to provincial-level Tax Departments of localities in which they are headquartered any time when arises an input VAT amount eligible for refund.

2. A VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of invoices and documents of purchased goods and services, made according to form No. 01-1/DNHT provided in this Circular;

- A competent authority's decision approving aid amounts (a copy certified by the taxpayer);

- The Finance Ministry's written certification of the foreign non-governmental organization's aid amount, indicating name of the organization, value of the aid amount, and aid-receiving and -managing agency.

Article 45. VAT refund for entities entitled to diplomatic privileges and immunities

1. Submission of VAT refund dossiers and procedures for dossier processing:

Representative missions eligible for VAT refund shall, within the first 10 days of the first month of a quarter, make VAT refund dossiers of the previous quarter and send them to the State Protocol Department under the Ministry of Foreign Affairs for certification.

Within 15 working days after receiving complete dossiers, the State Protocol Department under the Ministry of Foreign Affairs shall examine the dossiers and certify entities entitled to VAT refund, list and quantity of goods and services eligible for VAT refund, then transfer the dossiers to provincial-level Tax Departments for processing.

For cases ineligible for VAT refund and when VAT refund dossiers are incomplete, the State Protocol Department under the Ministry of Foreign Affairs shall return VAT refund dossiers to entities entitled to diplomatic privileges and immunities within 5 days after receiving them.

2. A VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular, and certified by the State Protocol Department under the Ministry of Foreign Affairs.

- A statement of VAT on purchased goods and services used for diplomatic missions, made according to form No. 01-5/DNHT, and a statement of VAT on purchased goods and services used for Vietnamese diplomats, made according to form No. 01-6/DNHT, provided in this Circular.

- The original enclosed with 2 copies of the added-value invoice sealed by the representative mission. The tax agency shall return original invoices to the representative mission after refunding VAT.

Article 46. PIT refund dossiers

PIT refund applies only to persons already possessing tax identification numbers.

PIT on persons who have authorized income payers to make on-behalf tax finalization shall be refunded through the income payers.

1. PIT refund for income payers making on-behalf tax finalization for authorizing persons

If there is a surplus after the income payer clears the overpaid or deficit tax amount of a person, the income payer shall submit a PIT refund dossier to the tax agency. A dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A PIT finalization return, made according to form No. 05/KK-TNCN provided in this Circular, and the following:

+ A statement of taxable income and PIT for incomes from salaries and wages of resident individuals with labor contracts, made according to form No. 05A/BK-TNCN provided in this Circular;

+ A statement of taxable income and PIT for incomes from salaries and wages of persons without labor contracts or with labor contracts of under 3 months and of nonresident individuals, made according to form No. 05B/BK-TNCN provided in this Circular.

- Copies of PIT payment documents and receipts with commitment made by the income payer's lawful representative.

2. For earners of incomes from business operations or from salaries and wages who themselves carry out PIT finalization procedures with tax agencies, if having PIT amounts requested for refund, they are not required to submit PIT refund dossiers but shall only indicate the PIT amounts requested for refund in item "Total PIT amount requested for refund" in the tax finalization return made according to form No. 09/KK-TNCN provided in this Circular upon PIT finalization.

3. For securities transferors who register to pay tax at the rate of 20% and are subject to tax finalization declaration, if having PIT amounts requested for refund, they are not required to submit PIT refund dossiers but shall only indicate the PIT amounts requested for refund in item "PIT amount requested for refund" in the tax finalization return made according to form No. 13/KK-TNCN provided in this Circular upon PIT finalization.

Article 47. Tax refund dossiers under double taxation avoidance agreements

- A written request for tax refund under agreement, made according to form No. 02/DNHT, for organizations and individuals being foreign residents, or form No. 03/DNHT provided in this Circular, for organizations and individuals being Vietnam's residents;

In force majeure circumstances in which taxpayers cannot provide sufficient information or documents required under this Article, they shall give the reasons in the above request..

- The consularly legalized original certificate of residence, granted by the tax agency of a country Of residence (indicating in which tax year the taxpayer resides);

- Copies of the economic contract, service provision contract, agent contract, entrustment contract, technology transfer contract, document evidencing the enterprise's running of vehicles (for international transportation enterprises) or labor contract signed with Vietnamese organizations or individuals, certificate of deposits in Vietnam, certificate of capital contributed to companies in Vietnam (depending on types of incomes and on a case-by-case basis), certified by the taxpayer;

- Tax receipt, certified by the state treasury or tax agency upon tax collection; or copies of the tax receipt and written certification, given by the state treasury into which the taxpayer remits tax, of the paid tax amount, certified by the taxpayer;

- Certification given by the labor contract- signing Vietnamese organization or individual, of the time and performance of the contract.

Article 48. Petrol and oil charge refund dossier

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of the petrol and oil charges requested for refund, indicating the quantity of actually purchased petrol and oil already charged, quantity of actually exported petrol and diesel, petrol and oil charge requested for refund, number of the requester's account at the provincial-level bank or state treasury, made according to form No. 01-2/DNHT provided in this Circular;

- Petrol and oil seller's contract and invoice on purchase of petrol and diesel;

- Petrol and diesel export license, granted by the Ministry of Industry and Trade;

- Petrol and diesel export contract signed with a foreign party; in case of export entrustment, a petrol and diesel export entrustment contract is also required;

- Invoice of sale of petrol and diesel to foreign parties, export-processing zones and export-processing enterprises;

- Export customs declaration already cleared from customs procedures;

- The entrusted party's written certification of the quantity of actually exported petrol and diesel, enclosed with a detailed list of names, quantities, unit prices and turnover of exported petrol and diesel (in case the entrusted party exports petrol and diesel of the same type of different goods owners according to each shipment and delivers goods to different customers at different prices).

Article 49. Dossiers for refund of overpaid tax and charge amounts for taxpayers that are merged or separated, dissolve, go bankrupt, undergo ownership transformation or terminate operation

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A competent authority's decision on merger, consolidation, separation, dissolution, bankruptcy, ownership transformation or operation termination;

- Dossier of tax finalization or tax declaration by the time of merger, consolidation, separation, dissolution, bankruptcy, ownership transformation or operation termination.

Article 50. VAT refund for domestically unavailable equipment, machinery and special-use vehicles included in technological chains and construction supplies to be imported for formation of enterprises' fixed assets

1. A VAT refund dossier comprises:

- A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular;

- A statement of goods and service import and export dossiers, made according to form No. 01-3/DNHT provided in this Circular, comprising the customs declaration of imports.

2. VAT refund:

- For a taxpayer that submits an incomplete dossier of tax refund, within 2 working days after receiving the dossier, the tax agency shall notify such in writing to the taxpayer for completing the dossier.

- If the dossier is complete, accurate and proper, the tax agency shall examine the dossier according to the VAT refund process.

Within 15 days after receiving a complete dossier, the tax agency shall notify the enterprise that the dossier is eligible for VAT refund (even in case the dossier is subject to examination before tax refund) and request the enterprise to submit documents of VAT payment for imports for the tax agency to issue a tax refund decision.

- Within 3 working days after receiving a document of VAT payment for imports, the tax agency shall examine and compare the document with figures declared in the enterprise's VAT refund dossier and issue a tax refund decision. The tax amount eligible for refund is either the paid VAT amount indicated in the tax payment document or the tax amount requested for refund, whichever is smaller.

Article 51. Dossier for refund of other taxes and charges

A written request for refund of state budget revenues, made according to form No. 01/DNHT provided in this Circular.

Article 52. Processing of tax refund dossiers

1. Receipt of tax refund dossiers:

a/ Tax refund dossiers of organizations and individuals being taxpayers with tax identification numbers shall be submitted to their managing tax agencies.

Tax refund dossiers of organizations and individuals other than taxpayers shall be submitted to provincial-level Tax Departments of localities in which the organizations are headquartered or the individuals reside.

Tax refund dossiers under double taxation avoidance agreements shall be submitted to provincial-level Tax Departments of localities in which the organizations are headquartered or the individuals reside or to provincial-level Tax Departments to which the organizations and individuals have paid tax amounts requested for refund.

Tax refund dossiers of income payers and persons directly submitting PIT finalization dossiers shall be submitted at places of submission of tax finalization dossiers.

b/ For tax refund dossiers directly submitted to tax agencies, tax administration officers shall receive them and append a seal of receipt of dossiers, write the time of receipt and documents included in the dossier.

c/ For tax refund dossiers sent by post, tax administration officers shall append a seal and write the date of receipt and record such in tax agencies' incoming-mail books.

d/ For tax refund dossiers submitted electronically, tax agencies shall receive, examine and accept dossiers through electronic data-processing systems.

e/ For an incomplete dossier for tax refund, within 3 working days after receiving the dossier, the tax agency shall notify such to the taxpayer for completing the dossier.

2. Tax refund dossiers are subject to examination before tax refund in any of the following cases:

- Tax refund under treaties to which the Socialist Republic of Vietnam is a contracting party.

- Taxpayers request tax refund for the first time, except PIT. Taxpayers requesting tax refund for the first time subject to examination before tax refund are those submitting tax refund dossiers to tax agencies for the first time and entitled to tax refund. For taxpayers that submit tax refund dossiers to tax agencies for the first time but are not entitled to tax refund, the request for tax refund for the subsequent time is still subject to examination before tax refund.

-Taxpayers request tax refund within 2 years after they are handled for their tax evasion or frauds.

For a taxpayer requesting tax refund many times during 2 years, if, in the first-time request for tax refund after being handled for its/his/her tax evasion or frauds, the tax agency's examination of the taxpayer's dossier shows that no false declaration is made to cause insufficiency in the payable tax amount or increase in the refundable tax amount under Article 107 of the Tax Administration Law, or shows no tax evasion or frauds under Article 108 of the Tax Administration Law, for subsequent requests for tax refund, the taxpayer's dossiers are not subject to examination before tax refund. Upon subsequent requests for tax refund, if detecting the taxpayer's false declaration of tax refund dossiers or its/his/her tax evasion or frauds under Articles 107 and 108 of the Tax Administration Law, such dossiers are still subject to examination before tax refund within 2 years after the taxpayer is handled for tax evasion or frauds;

- Via-bank payment is not made under regulations for goods and services indicated in the taxpayer's tax refund dossier, including domestically traded and exported goods and services.

- Merger, consolidation, separation, dissolution, bankruptcy, ownership transformation or operation termination of enterprises; assignment, sale, contracting and lease of state enterprises;

- Past the time limit notified in writing by tax administration agencies, taxpayers fail to explain or complete tax refund dossiers or explain and supplement the dossiers for the second time but cannot prove the truthfulness of the declared tax amounts. This provision is not applicable to goods and services satisfying prescribed conditions and procedures for tax refund.

3. Responsibility to process tax refund dossiers:

a/ For dossiers subject to tax refund before examination, within 15 days after receiving taxpayers' complete dossiers, heads of tax agencies of all levels shall issue notices of transfer of the dossiers to be subjected to examination before tax refund, made according to form No. 01/HT-TB, or tax refund decisions, made according to form No. 01/QDHT, or decisions on tax refund-cum-state budget revenue clearing, made according to form No. 02/QDHT. or notices of ineligibility for tax refund, made according to form No. 02/HT-TB provided in this Circular, and send them to taxpayers.

b/ For dossiers subject to examination before tax refund, within 60 days after receiving complete dossiers for tax refund, heads of tax agencies of all levels shall issue lax refund decisions, made according to form No. 01/QDHT, or decision on tax refund-cum-state budget revenue clearing, made according to form No. 02/HT-TB. or notices of ineligibility for tax refund, made according to form No. 02/ HT-TB provided in this Circular, and send them to the taxpayers.

c/ In case the tax agency detects through examination that the tax amount eligible for refund is different from the tax amount requested for refund:

- If the tax amount requested for refund is larger than the tax amount eligible for refund, the taxpayer will be refunded the latter.

- If the tax amount requested for refund is smaller than the tax amount eligible for refund, the taxpayer will be refunded the former.

During examination of a tax refund dossier. if the tax agency can determine the tax amount eligible for refund, they shall temporarily refund this tax amount without having to examine the whole dossier. For the tax amount subject to verification and requiring the taxpayer to explain and supplement the dossier, the tax agency shall refund such tax amount when all prescribed conditions are satisfied.

d/ Tax refund competence:

Based on the taxpayer's refundable tax amount and tax arrear, the heads of tax agencies of a relevant level shall:

- Issue a tax refund decision and make an order of refund of state budget revenues according to form No. 01/LHT provided in this Circular in case the taxpayer has no tax or fine arrears of other taxes; or,

- Issue a decision on tax refund-cum-state budget revenue clearing in case the taxpayer is entitled to tax refund under the tax refund dossier and has tax or fine arrears of other taxes. After clearing, if the taxpayer still has a refundable tax amount, the head of the tax agency shall concurrently make an order of refund of state budget revenues.

The above tax refund decision must indicate the name of the taxpayer entitled to tax refund, refundable tax amount and place of receipt of the refund.

Particularly for VAT refund cases settled by provincial-level Tax Departments: Based on the above tax refund decisions of district-level Tax Departments, provincial-level Tax Departments shall make orders on refund of state budget revenues for refund to taxpayers.

e/ In case of late processing of tax refund dossiers due to the fault of tax agencies, in addition to the refundable tax amount under regulations, the taxpayer will receive an interest on the tax amount which is refunded late for the period of late tax refund. The interest rate used for calculating the interest due to late tax refund is the prime interest rate announced by the State Bank and effective at the time of issuance of a decision on interest payment. The number of days used for calculating the interest is counted from the date following the last day of the time limit for processing a tax refund dossier to the date of issuance of a tax refund decision/ decision on tax refund-cum-state budget revenue clearing, including holidays (Saturdays, Sundays, holidays and lunar new year holidays).

The interest shall be written in the tax refund decision and the taxpayer will receive such interest together with the refunded tax amount.

Funds for interest payment come from the VAT Refund Fund under the Finance Ministry's regulations.

Article 53. Tax refund for taxpayers without tax or fine arrears

1. VAT refund: Provincial-level Tax Departments shall, based on tax refund decisions, make orders on refund of state budget revenues and send them to state treasuries of the same level, which shall refund tax amounts to taxpayers and submit debit notices to superior state treasuries for deduction of money from the VAT Refund Fund.

2. Refund of other taxes (except VAT):

a/ Based on tax refund decisions, tax agencies shall make orders on refund of state budget revenues and send them to state treasuries of the same level in localities for the latter to carry out tax refund procedures and refund tax amounts to entities entitled to tax refund in cash or by account transfer.

b/ In case of refund of taxes (except VAT and PIT) in which the taxpayer registers tax in a locality but pays tax in different localities, the tax agency shall make and send an order of refund of stale budget revenues to the state treasury of the same level with the tax-collecting agency with which the taxpayer registers tax declaration and finalization. The tax agency shall determine and distribute the amount to be refunded to each locality in which the tax has been remitted into the state budget. Such amount shall be written for each locality in a separate line in the order of refund of state budget revenues. The local state treasury of the same level shall transfer the whole refundable amount to the eligible person; and carry out procedures for accounting the refund of the amount falling within the local responsibility and concurrently transfer documents for making debit notices to the state treasuries of localities which have collected taxes for accounting the refund of the amount falling within the responsibility of these localities.

c/ Refund accounting shall be made in the following 2 cases:

- Refund of collected amounts in a budgetary year: If the state treasury refunds collected amounts before the deadline for adjusting such year's state budget settlement, it shall account the collected amounts as decrease in revenues in the budgetary year, for each unit funded with the state budget and according to state budge; index;

- Refund of collected amounts after the deadline for adjusting state budget settlement The state treasury shall account the collects: amounts as the subsequent year's state budget expenditure for each unit funded with the state budget, corresponding to the amount in proportion to the rate of distribution of the previously collected amounts for each unit.

3. Distribution of documents:

Tax agencies shall, based on refund and payment methods (in cash or through taxpayers' state treasury or bank accounts or at state treasuries in other localities, etc.), make orders on refund of state budget revenues with the number of copies enough for related entities. Specifically:

- One copy from the state treasury to the tax agency that has issued the tax refund decision, after refund accounting has been certified;

- One copy to be kept by the state treasury as a ground for refund accounting;

- One copy for the person entitled to refund;

- One copy for the bank as a ground for accounting and file, in case money is remitted into bank accounts.

Article 54. Clearing refundable tax amounts against receivables

1. Based on decisions on tax refund-cum-state budget revenue clearing, tax agencies shall make orders on refund of state budget revenues for the remaining tax amounts eligible for refund after clearing debts (if any) with the details specified in Article 3 of such decisions, and send the decisions to state treasuries of the same level for tax refund to taxpayers. Accounting by state treasuries and distribution of documents comply with Article 53 of this Circular.

2. Based on decisions on tax refund-cum-state budget revenue clearing and orders on refund of state budget revenues certified by state treasuries, tax agencies shall account the refunded amounts and clear state budget revenues under regulations for monitoring taxpayers' fulfillment of the tax obligation.