Chương VIII Thông tư 80/2021/TT-BTC: Kiểm tra thuế

Chapter VIII

TAX INSPECTION

Article 71. Tax record inspection at tax authorities

1. Classification of tax records:

Tax records shall be classified according to 03 levels of risks: low risk, medium risk, high risk.

2. The tax authority shall propose the tax record inspection at the tax authority or follow the instructions in Clause 3, Clause 4 of this Article for high-risk records.

3. Tax record inspection

In case the tax authority needs to compare and analyze the tax records on which information is inaccurate, inadequate or needs clarifying regarding tax payable, tax eligible for exemption, reduction, refundable tax, tax carried forward to next periods, the tax authority shall issue the first notice according to Form No. 01/KTT requesting the taxpayer to provide explanatory or supplementary information/documents.

Within 10 working days from the day on which the request is issued by the tax authority, the taxpayer shall provide explanatory or supplementary information/documents to the tax authority. Explanatory or supplementary information/documents may be provided in person at the tax authority of in writing (physical documents or electronic documents).

In case the taxpayer provides explanatory documents at the tax authority, the tax authority shall issue Form No. 02/KTT in Appendix I hereof.

4. Handling inspection results

a) In case the taxpayer has provided explanatory or supplementary information/documents (first time or second time) and is able to prove that the declared tax is correct, the tax records shall be accepted; explanatory and supplementary documents shall be retained together with the tax records.

b) In case the taxpayer has provided explanatory or supplementary information/documents but is not able to prove that the declared tax is correct or further clarification is necessary, the tax authority shall issue the second notice according to Form No. 03/KTT requesting the taxpayer to provide further explanatory or supplementary information/documents or adjust the tax declaration dossier, for which the taxpayer is parent company. The time limit for provision of further explanatory and supplementary information or documents or adjusting the tax declaration dossier is 10 days from the day on which the notice is issued by the tax authority. The tax authority shall make up to 02 requests for explanatory or supplementary information/documents per inspection at the tax authority.

c) If the taxpayer fails to provide explanatory or supplementary information or documents by the deadline specified in the second notice, or fails to adjust the tax declaration dossier, or fails to prove that the declared tax is correct, the tax authority shall impose the tax payable if this is well founded. Otherwise, the tax authority shall issue a decision on inspection at the taxpayer's premises.

d) In case the taxpayer has provided explanatory or supplementary information/documents for the second time ant the tax authority is able to identify the tax offences, the tax authority shall issue a violation notice and take actions as per regulations.

Article 72. Inspection at taxpayers' premises (Tax inspection visit)

1. In the case of tax inspection visits, inspection frequency and time for sending the inspection decision are specified in Point a, b, d, dd, e, g Clause 1, Clause 2 and Clause 3 Article 110 of the Law on Tax Administration.

The cases of dissolution, shutdown in which tax finalization is not required mentioned in Point g Clause 1 Article 110 of the Law on Tax Administration:

a) The taxpayer that undergoes dissolution or shutdown pays corporate income tax (CIT) as a percentage (%) of revenue from sale of goods and services according to regulations of law on CIT

b) The taxpayer does not earn revenue, does not use invoices over the period from the date of establishment to the date of dissolution or shutdown.

2. Development, approval and revision of annual inspection plans and objectives

a) Annually, General Department of Taxation shall provide instructions on development of inspection plans and objectives in the entire system of tax authorities.

b) Tax authorities shall, according to instructions of General Department of Taxation, develop their own inspection plans and objectives:

b.1) Sub-departments of taxation shall develop and send their annual inspection plans and objectives to their superior Department of Taxation for approval.

b.2) Departments of Taxation shall develop and send their annual inspection plans and objectives to General Department of Taxation for approval.

b.3) General Department of Taxation shall develop and approval its own annual inspection plans and objectives, and send a report on the approved plans to the inspectorate of the Ministry of Finance.

c) Tax authorities shall annually review and revise annual inspection plans and objectives in the following cases:

c.1) It is requested by the Minister of Finance or the head of a superior tax authority;

c.2) It is requested by the head of the tax authority that is responsible for the inspection plans and objectives.

c.3) Elimination of duplications in inspection.

While revising an inspection plan or topic, the tax authority shall specify the reasons for revision and submit a report to the authority that approved such plan or topic.

d) In addition to preparation of annual inspection plans and objectives, tax authorities may prepare irregular plans and objectives at the request of heads of same-level or superior tax authorities. Plans and objectives shall be develop according to risk management rules, approved and reported to superior authorities by heads of same-level tax authorities.

3. Elimination of duplications in inspection

a) In case an inspection subject of an inferior tax authority is also an inspection subject of the State Inspectorate, State Audit or superior tax authority, the inspection plan of the latter shall prevail;

b) In case of duplicated inspection subjects in inspection plans of a tax authority and another state authority , the head of the tax authority shall cooperate with the head of the other authority in settlement and submit a report to the approving authority where necessary.

4. Publishing of annual inspection plans and objectives.

Annual inspection plans and objectives (including revisions thereto) shall be published on the websites of tax authorities or notified to taxpayers and their supervisory tax authorities (in writing, by phone or by email) within 30 working days from the issuance date of the decision to approve or revise the inspection plans and objectives.

5. Procedures for tax inspection visit

a) Issuance of the tax inspection decision

The tax authority shall issue the tax inspection decision in the cases specified in Article 110 of the Law on Tax Administration. A tax inspection visit may only be carried out after a decision on tax inspection visit is issued.

The tax authority shall issue the tax inspection decision regarding the contents and periods with risks, except tax refund inspection. Tax inspection decisions shall be prepared according to Form No. 04/KTT in Appendix I hereof.

Duration of the inspection visit shall be determined according to Clause 4 Article 110 of the Law on Tax Administration. In case of extension, the chief of the inspectorate shall request a competent person to issue an extension decision according to Form No. 05/KTT in Appendix I hereof.

b) The inspection visit under the tax inspection decision shall be carried out within 10 working days from the issuance date of the tax inspection decision, unless it has to be revoked according to Form No. 06/KTT in Appendix I hereof or the inspection visit has to be postponed.

At the beginning of the inspection, the chief of the inspectorate shall announce the tax inspection decision and issue a record on announcement and explanation of the tax inspection decision according to Form No. 07/KTT in Appendix I of this Circular in order to make sure the taxpayer understands and comply with the tax inspection decision.

c) In case the taxpayer submits a written request for postponement of the inspection, the request shall specify the reasons and the duration of postponement. In case the tax authority has to postpone the inspection due to a force majeure event, the tax authority shall send a written notification to the taxpayer before the deadline for announcing the tax inspection decision according to Form No. 08/KTT in Appendix I hereof.

In case of the inspection cannot continue due to a force majeure event, the chief of the inspectorate shall submit a report to the person that issued the tax inspection decision in order to suspend the inspection. The suspension period shall not be included in the inspection time.

d) In case the tax inspection decision has to be revised (change of chief or member of the inspectorate, addition of inspection contents, change of inspection period or reduction of inspectorate members, inspection contents or inspection period), the chief of the inspectorate shall request the competent person to issue a decision on revisions to the tax inspection decision according to Form No. 09/KTT, 10/KTT, 11/KTT in Appendix I hereof.

dd) Tax inspection record

 dd.1) At the end of the tax inspection visit, the inspectorate shall draft the inspection record according to Form No. 12/KTT in Appendix I hereof and disclose it to the inspectorate and the taxpayer in order for them to comment and explain. The taxpayer's comment and explanation (if any) shall be attached to the draft record. The record on disclosure of the draft inspection record shall be prepared according to Form No. 13/KTT in Appendix I hereof.

 The provision of explanation, completion and signing of the inspection record between the inspectorate and the taxpayer shall be done within 05 working days from the end of the inspection. Additional comments of the taxpayer shall be written in the record or attached to the signed record. Every page of the inspection record shall bear the signatures and seals of the chief of the inspectorate and the taxpayer (or the taxpayer's legal representative) if the taxpayer is an organization and has its own seal (including separate seals and overlapping seals on the pages of the record).

dd.2) Any difficulties in terms of policies and mechanisms shall be specified in the record. When a response is provided, the inspectorate or inspecting unit shall prepare an appendix to the record according to Form No. 14/KTT in Appendix I hereof.

dd.3) In case the taxpayer fails to sign the inspection record by the deadline, the chief of the inspectorate shall issue a administrative violation record and request a competent person to issue a decision on penalties for administrative violations as per regulations and request the taxpayer to sign the inspection record.

e) Handling inspection results

e.1) Within 03 working days from the day on which the inspection record is signed by the taxpayer, the chief of the inspectorate shall report the result to the chief of the inspection unit and the person that issued the tax inspection decision.

In case the inspection result requires tax actions or imposition of administrative penalties, the head of the tax authority shall issue a tax penalty decision or transfer documents to a person with power to impose penalties. In case the inspection result does not requires tax actions or imposition of administrative penalties, the person that issued the tax inspection decision shall issue a conclusion according to Form No. 15/KTT in Appendix I hereof.

e.2) In case tax evasion or tax fraud is suspected during tax inspection, the inspectorate shall report to the head of the tax authority within 05 working days in order to carry out a more thorough inspection or transfer the case to an investigation authority as prescribed by law.

 Procedures and time limit for issuing the decision on imposition of penalties for tax offences or transferring documents to the person with power to impose penalties or transferring documents to an investigation authority shall comply with the Law on Actions Against Administrative Violations, the Law on Criminal Procedures, their elaborating documents and the Government’s Decree No. 125/2020/ND-CP dated 19/10/2020 in administrative penalties for tax- and invoice-related offences.

g) Inspection visits shall be logged electronically.

6. Supervising the inspectorate

a) All tax inspectorates carrying out inspection visits shall be supervised by the persons that issue the tax inspection decisions or by authorized persons.

In case the inspection visit is supervised by the person that issues the tax inspection decision, it shall be specified in the tax inspection decision. In case it is supervised by an authorized person, the person that issues the tax inspection decision shall also issue a supervision decision.

b) The supervision decision shall be sent to the inspectorate, the supervisor, the inspected entity, relevant organizations and individuals and announced together with the tax inspection decision.

c) The supervision shall be carried out regularly from the day on which the tax inspection decision is announced until the end of the inspection visit, and must be conformable with law, accurate, objective, democratic and timely.

7. If the database serving completion of the procedures specified in Clause 5 of this Article is suitable for IT application, an inspection visit is not required.