Circular No. 166/2013/TT-BTC dated November 15, 2013 of the Ministry of Finance on penalties for administrative violations pertaining to taxation

THE MINISTRY OF FINANCE

Circular No.166/2013/TT-BTC dated November 15, 2013 of the Ministry of Finance on penalties for administrative violations pertaining to taxation

Pursuant to the Law on Tax administration dated November 29, 2006;

Pursuant to the Law on the amendments to the Law on Tax administration dated November 20, 2012;

Pursuant to the Law on Penalties for administrative violations dated June 20, 2012;

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

Pursuant to the Government s Decree No. 109/2013/NĐ-CP dated September 24, 2013 on penalties for administrative violations pertaining to management of prices charges, and invoices;

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;

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

The Minister of Finance promulgates a Circular on penalties for administrative violations pertaining to taxation (hereinafter referred to as tax offenses).

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. This Circular deals with penalties for administrative violations pertaining to taxation according to the Law on Tax administration, the Law on Penalties for administrative violations, and Government s Decree No. 129/2013/NĐ-CP dated October 16, 2013 on penalties for tax offenses and enforcement of administrative decisions on taxation.

2. Every organization and individual that commits tax offenses (hereinafter referred to as violators), whether deliberately or unintentionally, shall incur administrative penalties in accordance with the Law on Tax administration, the Law on the amendments to the Law on Tax administration (hereinafter referred to as the Law on Tax administration), and the Government s Decree No. 129/2013/NĐ-CP. Entities incurring penalties are:

a) Taxpayers that commit tax offenses.

b) Credit institutions defined by the Law on credit institutions (hereinafter referred to as credit institutions) that commit tax offenses.

c) Relevant entities.

3. Tax offenses include:

a) Tax offenses committed by taxpayers:

Failure to follow tax procedures: late submission of applications for tax registration, late notification of changes to information in applications for tax registration; provision of insufficient information in the application for tax registration; late submission of tax declarations; violations against regulations on provision of information pertaining to determination of tax liability; failure to comply with decisions on tax inspection or enforcement of administrative decisions on taxation.

Understatement of tax payable, overstatement of refundable tax.

Tax evasion, tax avoidance.

b) Tax offenses committed by credit institutions and relevant entities:

Concealment of tax evasion or tax avoidance;

Failure to implement decisions on enforcing administrative decisions on taxation;

Failure to provide information or provision of incorrect information pertaining to determination of tax liabilities of taxpayers; accounts of taxpayers at credit institutions or State Treasuries as prescribed by the Law on Tax administration.

Article 2. Rules for penalty imposition

1. All tax offenses shall be found, prevented, and dealt with strictly. All damage caused by tax offenses must be repaired as prescribed by law.

2. Administrative penalties for tax offenses shall be imposed promptly, openly, objectively, and intra vires to ensure fairness and legitimacy.

3. Administrative penalties for tax offenses shall depend on the nature, seriousness of the violations and damage caused by the violations, the violators, mitigating circumstances and aggravating circumstances.

4. An entity shall only incur administrative penalties for tax offenses when committing tax offenses defined by law.

5. A tax offense shall be penalized only once, in particular:

a) If a competent person has issued a decision to impose a penalty for a violation or has issued a penalty record, then such violation shall not incur any further penalty. If the violation is carried on despite the fact that the competent person has request the termination of it, aggravating circumstances prescribed in Clause 1 Article 3 of this Circular shall apply.

If a specific amount of tax is imposed, the taxpayer shall incur penalties depending on the nature and seriousness of violations as prescribed in this Circular.

b) If the tax offense is suspected to be a criminal offense, criminal prosecution has been requested, and a criminal proceedings body has issued a decision on criminal prosecution, then any decision on administrative penalties for such tax offense issued previously must be annulled and no further administrative penalties for such tax offense shall be imposed.

c) If a tax offense is committed by multiple persons, each and every of them shall incur penalties.

Where an entity authorizes another organization to declare tax, the authorized organization shall incur penalties as prescribed in this Circular if it is responsible for the tax offense.

d) When a person commits multiple tax offenses or a tax offense is committed many times, each time shall incur a separate penalty.

If the taxpayer fails to submit declarations of multiple taxes on time at the same time, the taxpayer shall incur separate penalties for late submissions applied to each of the taxes;

If the taxpayer fails to submit declarations of the same tax of multiple tax periods, the taxpayer shall incur a penalty for failure to follow tax procedures with an aggravating circumstance which is repeated violations. If the tax declaration is not submitted within 90 days from the deadline, the taxpayer shall incur a penalty for tax evasion prescribed in Article 13 of this Circular.

6. The persons competent to impose administrative penalties for tax offenses are responsible for proving the tax offenses. Entities that incur penalties are entitled to, themselves or via legal representatives, prove that they do not commit tax offenses.

7. The fine for the same tax offense incurred by an organization is twice the fine incurred by an individual, except for understatement of tax payable or overstatement of refundable tax defined in Article 107 of the Law on Tax administration.

Article 3. Mitigating circumstances and aggravating circumstances

Mitigating circumstances and aggravating circumstances are specified in Article 9 and Article 10 of the Law on Penalties for administrative violations.

Article 4. Time limit for penalty imposition, deadline for collecting tax arrears, and period after which tax offenses are absolved

1. Time limit for penalty imposition

a) The time limit for imposing penalties for failure to follow tax procedures is 02 years from the day on which the offense is committed (hereinafter referred to as offense date). The offense date is the day succeeding the deadline for completing tax procedures prescribed by the Law on Tax administration.

If tax procedures are followed online, the offense date is the day succeeding the deadline for completing tax procedure prescribed by competent authorities.

b) The time limit for imposing penalties for understatement of tax payable or overstatement of refundable tax, reduced tax, or exempt tax; for tax evasion or tax fraud that is not liable to criminal prosecutions is 05 year from the offense date. The offense date is the day succeeding the deadline for submitting the tax declaration of the tax period during which the offense is committed.

If, by law, the tax authority has to issue a decision on tax refund, tax exemption, or tax reduction, the offense date is the day succeeding the decision date.

If the violator is eligible for tax deferral in the tax period, the time limit for penalty imposition shall starts after the deferred deadline.

c) If the case is transferred by a criminal proceedings agency to an agency competent to impose administrative penalties as prescribed in Article 25 of this Circular, the time limit for penalty imposition shall apply the regulations in Point a and Point b Clause 1 of this Article. The period over which the case is examined by the criminal proceedings agency is included in the time limit for penalty imposition.

d) Over the period prescribed it Points a, b, and c of this Clause, if the taxpayer deliberately avoids the penalties of obstructs the penalty imposition, the time limits for penalty imposition in Points a, b, and Clause of this Clause shall not apply. The time limit shall begin on the day on which the taxpayer’s avoidance or obstruction is stopped.

The day on which the taxpayer’s avoidance or obstruction is stopped is the day the taxpayer is present at the competent authority and accepts the penalties imposed by competent persons. Competent persons shall make a record and enclosed 01 copy thereof with the offense dossier. Another copy shall be given to the violator.

2. Time limit for collecting tax arrears

Taxpayers shall not incur penalties after the time limit for administrative penalties for tax offenses but are still required to pay tax arrears and late payment interest owed to the State over the last 10 years from the day on which the offense is found.

Taxpayers shall not incur penalties after the time limit for administrative penalties for tax offenses but are still required to pay tax arrears and late payment interest owed to the State over the last 10 years from the day on which the offense is found. The day on which the offense is found is the day on which the offence record is made.

3. Period after which tax offenses are absolved

If the entity that incur an administrative penalty for a tax offense does not repeat the offense for 06 months from the warning date or for 01 years from the day on which the decision on administrative penalty for tax offense is implemented (meaning the day on which all obligations and tasks written in the decision is fulfilled, or the day on which the decision is enforced), or from the end of the time limit for implementing the decision on penalty, the entity shall be absolved of such offense.

Article 5. Cases in which administrative penalties are not imposed

1. The cases prescribed in Article 11 of the Law on Penalties for administrative violations.

2. After making an incorrect declaration, if the taxpayer rectify the declaration and pay off the tax payable before the tax authority issues a decision on tax inspection at the taxpayer’s premises or before the offense is found by the tax authority without inspection at the taxpayer’s premises or before the offense is found by another competent authority, penalties shall not be imposed.

Article 6. Administrative penalties for tax offenses

1. Warnings

Warning shall be imposed upon violations against tax procedures that are not serious, associated with mitigating circumstances, and, by law, face a warning. Warnings shall be issued in writing.

2. Fines

a) A fine incurred by an organization for a violation against procedures shall not exceed 200 million. A fine incurred by an individual for a violation against procedures shall not exceed 100 million.

The fines prescribed in Articles 7, 8, 9, 10 and 11 of this Circular are incurred by organizations. The fines incurred by individuals are half the fines incurred by organizations. The taxpayers being households shall incur the fines incurred by individuals.

A fine for a violation against tax procedures is the average value of the fine bracket. The average value of the fine bracket shall be determined by dividing the sum of the maximum fine and minimum fine by 2.

An aggravating circumstance shall cancel out a mitigating circumstance. If there are mitigating circumstances, the fine must not fall below the minimum fine of the fine bracket. If there are aggravating circumstances, the fine must not exceed the maximum fine of the fine bracket. Each aggravating circumstance or mitigating circumstance shall respectively increase or decrease the fine by 20%.

b) The fine for understatement of tax payable or overstatement of refundable tax shall be 20% of the tax arrears or refundable tax. The fines incurred by taxpayers being households and individuals are specified in Article 107 of the Law on Tax administration.

c) The fine for tax evasion and tax fraud shall be 1 to 3 times the tax arrears. The fines in Article 13 of this Circular are incurred by organizations, which are twice the fines incurred by households and individuals.

d) The fines for failure to transfer money to government budget are specified in Article 14 of this Circular.

Chapter II

TAX OFFENSES, PENALTIES, AND REMEDIAL MEASURES

Section 1. ADMINISTRATIVE PENALTIES INCURRED BY TAXPAYER

Article 7. Penalties for late submission of applications for tax registration, notification of changes to information in the application for tax registration (hereinafter referred to as notification of information adjustment)

1. A warning shall be issued if the application for tax registration or notification of information adjustment is submitted 01 – 10 days behind schedule, provided there are mitigating circumstances.

2. A fine of VND 700,000 shall be imposed if the application for tax registration or notification of information adjustment is submitted 01 – 30 days behind deadline except for the case in Clause 1 of this Article. The fine shall not fall below VND 400,000 if there are mitigating circumstances, and shall not exceed VND 1,000,000 if there are aggravating circumstances.

3. The following violations shall incur a fine of VND 1,400,000 (the fine shall not fall below VND 800,000 if there are mitigating circumstances, and shall not exceed VND 2,000,000 if there are aggravating circumstances):

a) Application for tax registration or notification of information adjustment is submitted more than 30 days behind deadline.

b) Notification of information adjustment is not submitted.

c) Application for tax registration is not submitted but additional tax is not incurred.

Article 8. Fines for failure to provide sufficient information in tax documents

1. A fine of VND 700,000 shall be imposed for providing insufficient or incorrect information serving determination of tax liability on the statements of invoices, purchases, sales, or on other documents related to tax liability when making the tax declaration (the fine shall not fall below VND 400,000 if there are mitigating circumstances, and shall not exceed VND 1,000,000 if there are aggravating circumstances).

2. A fine of VND 1,050,000 shall be imposed for providing insufficient or incorrect information serving determination of tax liability on invoices and other documents related to tax liability when making the tax declaration (the fine shall not fall below VND 600,000 if there are mitigating circumstances, and shall not exceed VND 1,500,000 if there are aggravating circumstances).

3. A fine of VND 1,400,000 shall be imposed for providing insufficient or incorrect information serving determination of tax liability on the tax declaration or terminal tax declaration (the fine shall not fall below VND 800,000 if there are mitigating circumstances, and shall not exceed VND 2,000,000 if there are aggravating circumstances).

4. The following violations shall incur a fine of VND 2,100,000 (the fine shall not fall below VND 1,200,000 if there are mitigating circumstances, and shall not exceed VND 3,000,000 if there are aggravating circumstances):

a) The violations prescribed in Clause 4 Article 12 and Clause 4 Article 13 of this Circular are committed.

b) Tax in the quarterly tax declaration is understated but the deadline for submitting the annual tax declaration has not expired.

Article 9. Fines for late submission of tax declarations

1. A warning shall be issued if the tax declaration is submitted 01 to 05 days behind deadline with mitigating circumstances.

2. A fine of VND 700,000 shall be imposed the tax declaration is submitted to the tax authority 01 – 10 days behind deadline except for the case in Clause 1 of this Article (the fine shall not fall below VND 400,000 if there are mitigating circumstances, and shall not exceed VND 1,000,000 if there are aggravating circumstances).

3. A fine of VND 1,400,000 shall be imposed the tax declaration is submitted to the tax authority > 10 to 20 days behind deadline (the fine shall not fall below VND 800,000 if there are mitigating circumstances, and shall not exceed VND 2,000,000 if there are aggravating circumstances).

4. A fine of VND 2,100,000 shall be imposed the tax declaration is submitted to the tax authority > 20 to 30 days behind deadline (the fine shall not fall below VND 1,200,000 if there are mitigating circumstances, and shall not exceed VND 3,000,000 if there are aggravating circumstances).

5. A fine of VND 2,800,000 shall be imposed the tax declaration is submitted to the tax authority > 30 to 40 days behind deadline (the fine shall not fall below VND 1,600,000 if there are mitigating circumstances, and shall not exceed VND 4,000,000 if there are aggravating circumstances).

6. The following violations shall incur a fine of VND 3,500,000 (the fine shall not fall below VND 2,000,000 if there are mitigating circumstances, and shall not exceed VND 5,000,000 if there are aggravating circumstances):

a) The tax declaration is submitted >40 to 90 days behind deadline.

b) The tax declaration is submitted > 90 days behind deadline but no additional tax is incurred or in the event defined in Clause 9 Article 13 of this Circular.

c) The tax declaration is not submitted but no additional tax is incurred (unless, by law, the submission of tax declarations is not required).

d) The quarterly tax declaration is not submitted after 90 days from the deadline, but the deadline for submitting the annual tax declaration has not expired.

7. The deadlines for submitting declarations in this Article include the extended deadline under decisions of competent authorities.

8. The fines in this Article shall not apply if the extended deadline for submitting tax declarations or for paying tax has not expired.

9. Taxpayers that submit their tax declarations late shall incur the penalties prescribed in Clauses 1, 2, 3, 4, 5, 6 of this Article. If their violations lead to late tax payment, an interest on late payment of tax shall be paid as prescribed in Article 106 of the Law on Tax administration and its guiding documents.

Where the tax declaration is submitted late and the tax authority has issued a decision on tax imposition: If the taxpayer submits a valid tax declaration and accurately determines the tax payable of the period within 90 days form the deadline for submitting the tax declaration, the tax authority shall impose a penalty for late submission of the tax declaration as prescribed in Clauses 1, 2, 3, 4, 5, and 6 of this Article and also impose an interest on late payment of tax. The decision on tax imposition shall be annulled.

Article 10. Penalties for violations against the laws on provision of information related to determination of tax liability, which are not considered understatement of tax, tax evasion, or tax avoidance

1. The following violations shall incur a fine of VND 700,000 (the fine shall not fall below VND 400,000 if there are mitigating circumstances, and shall not exceed VND 1,000,000 if there are aggravating circumstances):

a) Information, materials, legal documents related to tax registration is provided ≥ days behind the deadline notified by the tax authority.

b) Information, materials, accounting books related to determination of tax liability is provided ≥ days behind the deadline notified by the tax authority.

c) Incorrect information, materials, accounting books related to determination of tax liability is provided after the deadline notified by the tax authority.

2. The following violations shall incur a fine of VND 1,400,000 (the fine shall not fall below VND 800,000 if there are mitigating circumstances, and shall not exceed VND 2,000,000 if there are aggravating circumstances):

a) Information, materials, accounting books related to determination of tax liability, account numbers, deposit account balance are insufficient or inaccurate.

b) Information and data related to determination of tax liability provided to tax authority is not correct or sufficient, but tax payable is not reduced.

c) Information and documents about deposit accounts at credit institutions, State Treasuries, debts payable by third parties are not sufficiently or not correctly provided within 03 working days from the day on which they are requested by tax authority.

Article 11. Penalties for failure to implement decisions on tax inspection or enforcement of administrative decisions on taxation

1. The following violations shall incur a fine of VND 1,400,000 (the fine shall not fall below VND 800,000 if there are mitigating circumstances, and shall not exceed VND 2,000,000 if there are aggravating circumstances):

a) Refusing to receive the decisions on tax inspection or enforcement of administrative decisions on taxation.

b) Failure to implement the decision on tax inspection within 03 working days from the deadline.

c) Refusing, delaying, or avoiding providing documents, invoices, accounting books related to tax liability within 06 working days from the receipt of the request from the competent authority or during the inspection at the taxpayer’ premises.

d) Providing incorrect information, documents, accounting books related to determination of tax liability at the request of the competent authority during the inspection at the taxpayer’ premises.

2. The following violations shall incur a fine of VND 3,500,000 (the fine shall not fall below VND 2,000,000 if there are mitigating circumstances, and shall not exceed VND 5,000,000 if there are aggravating circumstances):

a) Failure to provide information, documents, accounting books related to determination of tax liability at the request of the competent authority during the inspection at the taxpayer’ premises.

b) Failure to implement or correctly implement the decision to seal documents, safes, warehouses, materials, plants to verify tax liability.

c) Break or change the seal fixed by competent authorities to verify tax liability without permission.

d) Failure to sign the inspection record within 05 working days from the receipt of the inspection record.

dd) Failure to implement the conclusion or decision to enforce administrative decisions on taxation of competent authorities.

Article 12. Penalties for understatement of tax payable or overstatement of refundable tax

1. Cases of understatement of tax payable or overstatement of refundable tax:

a) Tax payable is understated, or refundable tax, exempt tax, or reduced tax is overstated and the taxpayer recognizes the mistake and promptly records the operations that incur additional tax in the accounting books and invoices when making the financial statement or annual tax declaration.

b) Payable is understated, or refundable tax, exempt tax, or reduced tax is overstated and the taxpayer has not adjust the accounting books, invoices, or tax declarations. How ever, when the offense is found by a competent authority, the taxpayer promptly pays the tax arrears to government budget before the competent authority issue the tax inspection record or tax inspection conclusion.

c) Payable is understated, or refundable tax, exempt tax, or reduced tax is overstated and the taxpayer has not adjust the accounting books, invoices, or tax declarations invoices, or tax declarations. a competent authority has issue the tax inspection record or tax inspection conclusion which asserts the false statement or tax evasion. However, it is the first time the taxpayer commits an offense, there are mitigating circumstances, and the taxpayer has paid tax arrears to government budget before the competent authority issues a penalty decision, the tax authority shall impose a fine for understatement of tax payable or overstatement of refundable tax, reduced tax, or exempt tax.

d) Illegal invoices and document are used to account for purchases and reduce the amount of tax payable or increase refundable tax, reduced tax, or exempt tax. However, when the offense is found by the tax authority, the taxpayer (the buyer) presents documents and invoices proving that the seller is responsible for the illegal invoices and the purchases are adequately accounted for by the buyer as prescribed.

2. 2. The fine for the offenses mentioned in Clause 1 of this Article is 20% of the tax arrears, or the overstated refundable tax, reduced tax, or exempt tax.

3. Apart from incurring fines, the taxpayer that commits any of the violations in Clause 1 of this Article is also required to pay the tax arrears and interest on late payment of tax to government budget.

The tax authority shall determine the tax arrears, number of days of late payment, interest on late payment of tax, fine, and issue the penalty decision.

Depending on the payment date written on the payment slip certified by State Treasury or a credit institution, the tax authority shall determine the number of days of late payment.

4. If the taxpayer makes an incorrect statement prescribed in Clause 1 of this Article but it does not lead to insufficient tax payment or excess tax refund, tax reduction, or tax exemption, the penalties prescribed in Clause 4 Article 8 of this Circular shall be imposed instead of the penalties in this Article.

Article 13. Penalties for tax evasion, tax avoidance.

Any taxpayer that commits tax evasion or tax avoidance shall incur a fine that is a multiple of the tax arrears:

1. The taxpayer shall incur a fine equals (=) to the tax arrears if the taxpayer commits one of the offenses below for the first time (except for the cases of understatement of tax prescribed in Clause 1 Article 12 of this Circular) or for the second time with at least two mitigating circumstances:

a) Failure to submit the application for tax registration; Failure to submit the application for tax registration or tax declaration after 90 days from the deadline prescribed in Clauses 1, 2, 3, and 5 Article 32 of the Law on Tax administration (or from the extended deadline for submitting the tax declaration prescribed in Article 33 of the Law on Tax administration), except for the cases in Clause 6 Article 9 of this Circular and Clause 9 of this Article.

b) Using illegal invoices or documents; Using invoices illegally; using unusable invoices to declare tax to reduce tax payable or increase refundable tax, reduced tax, or exempt tax.

c) Fake a reduction in quantity of goods or supplies to reduce tax payable or increase refundable tax, reduced tax, or exempt tax.

d) Make invoices with incorrect quantities of values of sold goods/services to reduce tax payable.

dd) Failure to account for the revenues related to determination of tax payable; failure to declare tax; declaring incorrectly to reduce tax payable or increase refundable tax, reduced tax, or exempt tax.

e) Failure to issue invoices when selling goods/services, or the values written on the invoice is smaller than actual selling price of goods/services and the offense if found after the deadline for submitting the tax declaration of the period.

g) Using goods eligible for tax exemption (including tax-free goods) for purposes other than permissible purposes without informing the tax authority.

h) Falsifying tax documents or accounting books to reduce tax payable or increase refundable tax, reduced tax, or exempt tax.

i) Destroying tax documents or accounting books to reduce tax payable or increase refundable tax, reduced tax, or exempt tax.

k) Using illegal invoices and documents in other cases to declare incorrect tax payable or refundable tax; declaring incorrect tax basis to evade or avoid tax.   

l) The taxpayer’s business is carried on during the suspension period.

m) Goods are transported by road without legal invoices or documents.

2. A fine that equals (=) 1.5 times the tax arrears shall be imposed if the taxpayer commits one of the offense prescribed in Clause 1 of this Article for the first time with aggravating circumstances or for the second time with one mitigating circumstance.

3. A fine that equals (=) 2 times the tax arrears shall be imposed if the taxpayer commits one of the offense prescribed in Clause 1 of this Article for the second time without any mitigating circumstance or for the third time with one mitigating circumstance.

4. A fine that equals (=) 2.5 times the tax arrears shall be imposed if the taxpayer commits one of the offense prescribed in Clause 1 of this Article for the second time without one aggravating circumstance or for the third time without any mitigating circumstance.

5. A fine that equals (=) 3 times the tax arrears shall be imposed if the taxpayer commits one of the offense prescribed in Clause 1 of this Article for the second time two or more aggravating circumstances or for the third time aggravating circumstance or for the forth time onwards.

6. The taxpayer that commits any of the offenses in Clauses 1, 2, 3, 4, 5 of this Article is also required to pay the tax arrears to government budget.

The tax arrears shall be determined by the competent authority and written in the tax inspection record.

7. If an offense prescribed in Point b, c, d, dd, e, g, h, i, or k Clause 1 of this Article is found before the deadline for submitting the tax declaration expires, or found after the said deadline but it does not lead to a reduction in tax payable or increase in exempt/reduced tax, and does not incur a penalty of tax evasion, the penalties for violations against tax procedures in Clause 4 Article 8 or penalties for accounting offenses shall apply.

8. If the taxpayer is eligible for tax exemption or tax refund as prescribed by law and fails to declare correctly the basis for determination of exempt tax or refundable tax. However, the tax payable is not reduced. In this case, the taxpayer shall only incur the maximum fine for violations against tax procedures in Article 8 of this Circular instead of incurring the penalties for tax evasion.

9. In case the taxpayer submits the tax declaration after 90 days from the deadline but has paid off tax before the tax authority issue a offence record, the taxpayer shall incur a fine for late submission of the tax declaration prescribed in Clause 6 Article 9 of this Circular. If the taxpayer has submitted the tax declaration but tax is declared incorrectly, the taxpayer shall incur penalties for understatement of tax or tax evasion prescribed in Article 12 or Article 13 of this Circular in addition to penalties for violations against tax procedures.

10. Where a taxpayer eligible for exemption of corporate income tax is found committing violations such as declaring fictitious cost increase to raise loss or reduce profit, reducing costs to raise profit, or determining incorrect conditions for exemption of corporate income tax:

a) If the offense is found during the exemption period, the taxpayer shall incur a penalty for violations against tax procedures or accounting offenses instead of penalties for tax evasion.

b) If the offense is not found and the taxpayer’s failure to rectify the offense that leads to a reduction in corporate income tax of the year succeeding the exemption period, the taxpayer shall incur penalties for tax evasion.

Section 2. ADMINISTRATIVE PENALTIES FOR TAX OFFENSES INCURRED BY CREDIT INSTITUTIONS AND RELEVANT ENTITIES

Article 14. Penalties incurred by credit institutions

1. Any credit institution that fails to transfer money from the account of a taxpayer to the account of government budget according to a decision of the tax authority to enforce the payment of tax, late payment interest, or fine shall incur a administrative penalty if the taxpayer’s account balance is sufficient to make the payment.

Within 10 days from the deadline for transferring money from the taxpayer’s account at the credit institution, the tax authority shall make a offence record and issue a decision on penalty imposition. The fine is equal the amount that is not transferred to government budget according to the decision on enforcement. In this case, the tax authority shall still take measures to collect outstanding tax, late payment interest, fines from the taxpayer.

2. If the taxpayer’s account balance is not sufficient to cover the tax, late payment interest, or fine payable, the credit institution shall not incur any penalty.

When receiving the decision on enforcement, the credit institution shall make a written confirmation of the deposit account balance of the taxpayer and notify the tax authority within 03 days from the day on which the decision on enforcement is received.

Article 15. PENALTIES INCURRED RELEVANT ENTITIES

1. Any entity that conceal the taxpayer’s tax evasion, tax avoidance, or failure to implement decisions to enforce administrative decisions on taxation (except for failure to transfer money from the taxpayer’s account prescribed in Article 14 of this Circular) shall incur a fine, which varies according to the nature and seriousness of the offense:

a) The violator that is an individual shall incur a fine of VND 3,750,000 (the fine shall not fall below VND 2,500,000 if there are mitigating circumstances, and shall not exceed VND 5,000,000 if there are aggravating circumstances);

b) The violator that is an organization shall incur a fine of VND 7,500,000 (the fine shall not fall below VND 5,000,000 if there are mitigating circumstances, and shall not exceed VND 10,000,000 if there are aggravating circumstances).

2. Any entity that fails to provide information or provide incorrect information about the taxpayer’s tax liability or account at credit institutions or State Treasuries shall incur the fines in Clause 1 of this Article.

3. The taxpayer’s guarantor shall pay the tax, late payment interest, fines (if any) on behalf of the taxpayer according to the guarantee if the taxpayer fails to pay such amounts to government budget.

The tax authority shall notify the guarantee of the tax, late payment interest, fines (if any) and payment deadline according to the guarantee documents so that the guarantee pays such amounts to government budget on behalf of the taxpayer.

If the taxpayer fails to pay tax, late payment interest, fines (if any) to government budget by the deadline and the guarantor fails to pay such amounts on behalf of the taxpayer according to the guarantee documents, the guarantee shall incur a late payment interest at 0.07% per day on the outstanding tax, 0.05% per day on the outstanding fine. The payment of such amounts shall be enforced as prescribed by law.

Chapter III

COMPETENCE TO IMPOSE PENALTIES; PROCEDURES FOR PENALTIES IMPOSITION AND IMPLEMENTATION OF PENALTY DECISIONS

Section 1. Competence to impose administrative penalties for tax offenses

Article 16. Competence to impose administrative penalties for tax offenses

1. Tax officials on duty are entitled to:

a) Issue warnings.

b) Impose fines of up to VND 1,000,000 for violations against tax procedures prescribed in this Circular.

2. Tax team leaders are entitled to:

a) Issue warnings.

b) Impose fines of up to VND 5,000,000 for violations against tax procedures prescribed in this Circular.

3. Directors of Sub-departments of taxation are entitled to:

a) Issue warnings.

b) Impose fines of up to VND 50,000,000 for violations against tax procedures prescribed in Article 7, Article 8, Article 9, Article 10, Article 11, and Article 15 of this Circular.

c) The fines prescribed in Articles 7, 8, 9, 10 and 11 of this Circular are applied to organizations.

d) Take the remedial measures prescribed in Clause 3 Article 12 and Clause 6 Article 13 of this Circular.

4. Directors of Departments of taxation are entitled to:

a) Issue warnings.

b) Impose fines of up to VND 140,000,000 for violations against tax procedures prescribed in Article 7, Article 8, Article 9, Article 10, Article 11, and Article 15 of this Circular.

c) Impose fines for the offenses prescribed in Article 12, Article 13, and Article 14 of this Circular.

d) Take the remedial measures prescribed in Clause 3 Article 12 and Clause 6 Article 13 of this Circular.

5. The Director of the General Department of Taxation is entitled to:

a) Issue warnings.

b) Impose fines of up to VND 200,000,000 for violations against tax procedures prescribed in Article 7, Article 8, Article 9, Article 10, Article 11, and Article 15 of this Circular.

c) Impose fines for the offenses prescribed in Article 12, Article 13, and Article 14 of this Circular.

d) Take the remedial measures prescribed in Clause 3 Article 12 and Clause 6 Article 13 of this Circular.

6. The maximum fines the persons mentioned in Clauses 1, 2, 3, 4, and 5 of this Article may impose are applied to offense committed by an organization. The maximum fines such persons may impose upon an individual is half the maximum fines they may impose upon an organization. The fines for understatement of tax payable or overstatement of refundable tax, reduced tax, or exempt tax prescribed in Point c Clause 3, Point c Clause 4, and Point c Clause 5 of this Article applies to both organizations and individuals according to Clause 2 Article 109 of the Law on Tax administration.

Article 17. Competence to impose administrative penalties of Presidents of the People’s Committees

The competence to impose administrative penalties of Presidents of the People’s Committees shall comply with regulations of law on penalties for administrative violations.

Article 18. Delegation of competence to impose administrative penalties for tax offenses

1. The persons mentioned in Clauses 2, 3, 4, and 5 Article 16 of this Circular may delegate their deputies to impose administrative penalties for tax offenses.

2. The delegation shall be made in writing on a case-by-case basis. The scope and duration of delegation must be specified.

The decision on delegation must be numbered, bears the date, signature, and seal; Where a tax team leader delegates his/her deputy to impose administrative penalties for tax offenses, the decision on delegation must bear the seal of the Sub-department of taxation.

3. The deputy authorized to impose administrative penalties for tax offenses are legally responsible for their decisions. The authorized person must not delegate the task to any third person.

Section 2. PROCEDURES FOR IMPOSITION OF ADMINISTRATIVE PENALTIES FOR TAX OFFENSES

Article 19. Compelled termination of tax offenses

Any tax official that discovers a tax offense shall compel the violator to terminate the offense, whether orally, in writing, or in other forms as prescribed by law.

Article 20. Penalty imposition with records

1. Penalties shall be imposed without records if the penalty is a warning of a fine ≤ VND 250,000 (applied to individuals) or ≤ VND 500,000 (applied to organizations) and the penalties is imposed on the spot.

2. The decision on administrative penalties for tax offences (hereinafter referred to as penalty decision) must specify the decision date, full name of the decider, name and address of the violator, the offenses, location, evidence and facts related to the offense; applied clauses of law. If a fine is imposed, it must be specified in the penalty decision.

Article 21. Penalty imposition with records

1. Penalty imposition shall be recorded when an entity commits a tax offense, except for the case in Clause 1 Article 20 of this Circular.

2. If a tax offense has been written in the tax inspection record by a tax authority, the penalty record is not required to be made before issuing the penalty decision. The person competent to impose penalties (hereinafter referred to as penalty imposer) shall issue the penalty decision according to the tax inspection record.

3. Penalties imposed with records shall be compiled into a dossier by the penalty imposer. The dossier consists of offence records, penalty decisions, and relevant documents, which must be paginated.

Article 22. Making offence records

1. Any competent person that discovers a tax offense shall make an offense record using the set form (except for the case in Article 20 of this Article) and send it to the penalty imposer.

Where an entity commits multiple tax offenses in one case or repeats the offense, the offense record must express all the offenses or the number of repeated offense.

2. The offence record must contains the date, full name and the position of the maker, name and occupation of the violator (or name and address if the violator is an organization); statement of the violator or the representative of the violating organization (hereinafter referred to as violator); names, addresses, and statements of witnesses or aggrieved entity (if any); rights and deadline for the violator providing explanation; the agency that receives explanation.

3. The record must bear the signature of record maker, the signature of the violator (or fingerprint if the violator cannot write), and the signature of the witness (if any). If the record consists of multiple sheets, each of them must bear the signature of the record maker. If the violator is not present or does not sign the offence record, the record must bear the signature of the local government representative (representative of the People’s Committee of the commune), or signatures of two witnesses. If the violator or witness refuses to sign the record, the reasons must be specified in the record.

The offence record shall be made into two copies. 01 copy shall be given to the violator, 01 copy shall be used as the basis for issuing the penalty decision. If the tax offense is beyond the competence to impose penalties of the record maker, the record shall be promptly sent to a penalty imposer.

Article 23. Violator’s explanation

1. If an entity commits offenses such as understatement of tax payable or overstatement of refundable tax prescribed in Article 107 of the Law on Tax administration; tax evasion prescribed in Article 108 of the Law on Tax administration; failure to transfer money from the taxpayer’s account at the request of a tax authority prescribed in Article 114 of the Law on Tax administration, such entity is entitled to provide explanation directly or in writing for the penalty imposer.

2. The penalty imposer shall consider the explanation before issuing the penalty decision, unless the violator does not wish to provide explanation within the time limit prescribed in Clause 3 of this Article.

3. Time limit for providing explanation for tax offenses

a) The written explanation shall be sent to the penalty imposer within 05 days from the day on which the offence record is made. If the case is complicated, the penalty imposer shall extend the deadline for not more than 05 days at the request of the violator. The deadline extension must be granted in writing.

The violator may authorize a legal representative to make the written explanation.

b) If explanation is given directly, the violator shall submit a written request for permission to give explanation directly to the penalty imposer within 02 working days from the day on which the offence record is made.

The competent person shall notify the violator of the time and location for direct explanation within 05 days from the receipt of the violator’s request.

The penalty imposer shall hold a hearing, state the legal basis, facts, and evidence about the offense, penalties, remedial measures expected to be applied to the violator’s offenses. The violator or violator’s legal representative is entitled to attend the hearing, provide opinions and evidence to defend the lawful rights and interests.

A record on the hearing, which bears the signatures of relevant parties, shall be made. If the record consists of multiple sheets, each of them must bear the signatures of the parties. The record shall be kept together with the penalty dossier and given to the violator or the violator’s legal representative.

Article 24. Conversion of a civil case into a criminal case

1. If the violator is suspected of committing a criminal offense, documents shall be promptly transferred to a criminal proceedings agency

2. If the penalty imposer has issue a penalty decision and the offense is suspected to be a criminal offense before the expiry of the time limit for initiating a criminal prosecution, the penalty imposer shall issue a decision to suspend the penalty decision. Within 03 days from the suspension date, documents shall be transferred to a criminal proceedings agency. If the penalty decision has been implemented, the penalty imposer shall transfer documents to the criminal proceedings agency.

Documents include: the decision to transfer documents to the criminal proceedings agency; copies of the offense record or tax inspection record; copy of verification result (if any); copies of relevant documents; copy of the penalty decision (if any); the decision to suspend the penalty decision if the penalty decision is not implemented. The document transfer must be recorded in writing.

3. Pursuant to Article 62 of the Law on Penalties for administrative violations, the criminal proceedings agency that receives the documents as prescribed in Clause 1 and Clause 2 of this Article shall consider the case and notify the transferor in writing by the deadline; if a criminal prosecution is not initiated, the presiding agency shall return documents to the transferor.

If the criminal proceedings agency has issued a decision to initiate a criminal prosecution, the penalty imposer shall annul the penalty decision on administrative penalties for tax offences and transfer documents to the criminal proceedings agency.

4. The transfer of documents must be notified to the violator.

5. After documents are transferred, if the penalty imposer does not receive a notification from the criminal proceedings agency of the decision to initiate a criminal prosecution after 03 days from the deadline, the penalty imposer shall request the criminal proceedings agency in writing to return the documents.

Article 25. Conversion of a criminal case into a civil case

1. Pursuant to Article 63 of the Law on Penalties for administrative violations, if the criminal proceedings agency makes a decision not to initiate a criminal prosecution or suspend the investigation, the criminal proceedings agency shall transfer such decision, documents, evidence, and a request for imposition of administrative penalties to the penalty imposer.

If tax offenses are found by State Audit agency or an inspection agency during a tax inspection but the penalty imposition is beyond their competence, documents and a request for penalty imposition shall be sent to the person competent to impose penalties after 03 days from the day on which a conclusion about tax offences is made.

If the inspection agency is competent to impose administrative penalties, administrative penalties shall be imposed. If penalties are imposed ultra vires, documents shall be transferred to the superior agency.

If multiple persons are competent to impose penalties for a tax offense, the first person to take the case shall impose penalties.

2. The penalty imposer shall issue the penalty decision according to the documents transferred. If necessary, the penalty imposer shall verify the facts to form the basis for the penalty decision.

3. The deadline for imposing the penalty decision is 30 days from the receipt of the documents prescribed in Clause 1 and Clause 2 of this Article. If verification is necessary as prescribed in Clause 2 of this Article, the deadline shall be 45 days from the receipt of the said documents.

Article 26. Cases in which a penalty decision is not made or is annulled

1. A penalty decision shall not be made in the following cases:

a) The case in Article 5 of this Circular.

b) The violator is not identifiable.

c) The time limit for imposing administrative penalties for tax offenses prescribed in Article 4 of this Circular has expires or the time limit for issuing a penalty decision prescribed in Article 27 of this Circular has expired.

d) The violator is dead, missing, the violating organization has issued a decision to dissolve or declare bankrupt pending the issue of the penalty decision.

dd) The case is converted into a criminal case as prescribed in Article 24 of this Circular.

2. If the penalty decision is not issued as prescribed in Clause 1 of this Article, the penalty imposer may still take remedial measures as prescribed. The reasons for not issuing a penalty decision, the remedial measures, responsibility, and deadline must be specified.

3. A penalty decision shall be annulled in the following cases:

a) The penalty decision is issued ultra vires.

b) The penalty decision has been issued in the cases mentioned in Points a, b, c, and d Clause of this Article.

c) The presiding agency has decided to initiate a criminal prosecution in the case mentioned in Point dd Clause 1 of this Article.

Article 27. Time limit for issuing penalty decision

1. The penalty imposer shall issue penalty decision within 07 days from the day on which the offence record is made.

2. If the case is complicated and explanation is not permitted, the time limit for issuing the penalty decision is 30 days from the day on which the offence record is made

3. If the case is particularly serious, complicated, and explanation is permitted as prescribed in Article 23 of this Circular, thus the penalty imposer needs more time to verify and collect evidence, the penalty imposer shall make written request for deadline extension, provided the extension does not exceed 30 days.

4. If documents are transferred from a criminal proceedings agency to impose administrative penalties, the time limit for issuing the penalty decision shall comply with regulations in Clause 3 Article 25 of this Circular.

5. When the deadline prescribed in Clause 1, 2, 4, or 4 of this Article expires, the penalty imposer must not issue a penalty decision. However, remedial measures may still be taken as prescribed in Clause 2 Article 26 of this Circular.

The penalty imposer that fails to issue the penalty decision by the deadline shall face disciplinary actions, criminal prosecution, and pay damages as prescribed by law.

Article 28. Penalty decision

1. Every penalty decision shall be made in writing. The decision must specify: location, date, legal basis, offence record, verification result, violator’s explanation, other documents; letter of delegation (if any); full name and position of the decision maker; full name, address of the violator (and position if the violator is an individual); the tax offense(s); aggravating circumstances, mitigating circumstances; applied clauses of  law; effect of the decision, time limit and place for implementation of the decision, fine recipient; responsibility to implement the penalty decision, and enforcement of the decision if the violator fails to implement it voluntarily; full name and signature of the decision maker.

2. The time limit for implementing the penalty decision is 10 days from the receipt of the decision. If a time limit of longer than 10 days is written in the decision, such time limit shall apply.

3. If a person commits multiple administrative violations, only one penalty decision shall be made, which specifies the fine for each violation; the fines shall be aggregated.

Article 29. Seal on penalty decision

1. Every penalty decision shall bear the seal of the agency for which the penalty imposer works.

2. The seal on the penalty decision in the cases mentioned in Clauses 3, 4, and 5 Article 16 of this Circular shall cover one third of the signature of the penalty imposer.

3. If the penalty imposer does not have the right to append the seal directly, the agency’s seal shall be appended in the upper left corner of the decision where the name of the agency and number of the decision are written.

Section 3. IMPLEMENTATION OF PENALTY DECISIONS

Article 30. Penalties with records

1. If the penalty decision is made without issuing an offense record, a copy of the decision shall be given to the penalized entity.

2. The penalized entity shall pay the fine to the penalty imposer on the spot. The fine recipient shall give the fine receipt to the penalized entity and submit the fine at a State Treasury or transfer it to an account of State Treasury within 02 working days from the imposition date.

If the penalized entity is not able to pay the fine on the spot, the fine shall be paid at a State Treasury or transferred to an account of State Treasury written in the penalty decision by the deadline prescribed in Point a Clause 1 Article 40 of this Circular.

Article 31. Sending the penalty decision for implementation after a offense record is made

1. Within 02 working days from the date of issue of the penalty decision, the penalty imposer shall send it to the penalized entity, the fine-collecting agency, and relevant agencies (if any).

2. The penalty decision shall be given directly or sent by registered mail to the penalized entity.

a) Where the penalty decision is given directly, the giver shall make a record on the transfer of the penalty decision. If the penalized entity refuses to receive the decision, a record shall be made and certified by the local government. In this case, the decision is considered received.

b) Where the penalty decision is sent by registered mail: After 10 days from the third time the decision is sent, if the decision is still returned because the penalized entity refuses to receive it, or the if the penalty decision has been posted at the penalized entity’s premises or residence, or there is evidence that the penalized entity avoids receiving the penalty decision, the decision shall be considered received.

Article 32. Disclosure of administrative tax offenses

1. Tax authorities shall disclose information about administrative tax offenses in the following cases:

a) Tax evasion, tax avoidance, abetting tax evasion.

b) Failure to comply with tax authorities’ requests such as: refusal to provide information or documents to tax authorities; failure to implement decisions on tax inspection and other requests of tax authorities as prescribed by law.

2. The agencies for which penalty imposes work are responsible for disclosure of administrative tax offenses in the cases mentioned in Clause 1 of this Article.

3. Information shall be disclosed on the website or journal of the central or provincial agency.

If the penalty imposer is the Director of the General Department of Taxation, information about tax offenses shall be disclosed on the website of the Ministry of Finance or tax journal of General Department of Taxation. If the penalty imposer is the Director of a Department of Taxation, Director of a Sub-department of taxation, or tax team leader, information about tax offenses shall be disclosed on the website or tax news of the Department of Taxation, or on a website or newspaper of the province.

4. The disclosed information shall contain the full name, address, and business line of the violator (and occupation if the violator is an individual), the tax offense or the reasons for information disclosure, the consequence or impacts of the offense, the penalties, remedial measures and deadline.

5. Responsibility for information disclosure is specified in Article 8 of the Government s Decree No. 81/2013/NĐ-CP dated July 19, 2013.

Article 33. Implementation of penalty decisions

1. The penalized entity shall implement the penalty decision within 10 days from the receipt of the decision; If the time limit written in the decision is longer than 10 days, such time limit shall apply. If the penalized entity refuses to receive the penalty decision, it shall be implemented within 10 days from the delivery date.

If the penalized entity files an appeal against the penalty decision, the decision shall still be implemented. While the appeal is being considered, if the implementation of the penalty decision is deemed to cause devastating consequences, the decision may be suspended as prescribed by law.

2. The penalty imposer who has issued the penalty decision is responsible for monitoring and inspecting its implementation.

Article 34. Time limit for implementation of penalty decisions

1. The time limit for implementing the penalty decision is 01 year from its date of issue. After penalty decision expires, it shall not be implemented. If the penalty decision mentions remedial measures, remedial measures shall still be implemented.

2. If the penalized entity deliberately avoids or delays the implementation of the penalty decision, the time limit shall begin when the avoidance or delay is terminated.

Article 35. Implementation of penalty decision in case the penalized person is dead or missing, or the penalized organization is dissolved or bankrupt

1. If the penalized person is dead or missing, or the penalized organization is dissolve or bankrupt before the penalty decision expires, the fine shall not be collected but the remedial measures written in the decision shall still be implemented.

 The person that issues the penalty decision shall decide the implementation of part of the penalty decision within 60 days from the day on which the penalized person is dead, missing, or the penalized organization is dissolved or bankrupt.

If the penalty decision does not require remedial measures to be taken, the penalty imposer shall suspend the penalty decision.

2. Basis for determining an individual is dead, missing, or an organization is dissolved or bankrupt:

a) Death certificate if the individual dies; or

b) The court’s decision to announce that the individual is missing; or

c) A decision on dissolution if the organization is dissolved; or

d) A court’s decision that the company or cooperative is bankrupt.

3. The decision to implement part of the penalty decision must specify the reason for suspending fine imposition, the part of the decision that is still effective, the entity responsible for the implementation, and deadline.

4. Inheritance of responsibility to implement remedial measures of the individual who is dead, missing, or the organization that has been dissolved or bankrupt.

a) The dead person’s inheritor is responsible for implementing the remedial measures within the inheritance left by the dead person, unless otherwise agreed.

If the inheritance has not been divided, the remedial measures shall be implemented by the inheritance legacy under an agreement among the inheritors.

If the inheritance has been divided, each of the inheritors shall implement the remedial measures within the inheritance received, unless otherwise agreed.

If the inheritance is received by the state or an organization according to the will, the responsibility to implement the remedial measures is similar to the responsibility of individuals.

If there is no inheritor or the inheritor refuses to receive the inheritance, civil law shall apply.

b) The person authorized by the court to manage the property of the person declared missing is responsible for implementing the remedial measures within the property under his/her management.

c) With regard to a dissolved or bankrupt organization, the decision to implement part of the penalty decision shall be sent to the organization or individual competent to decide the dissolution or bankruptcy or the legal representative of the dissolved/bankrupt organization.

If the dissolved organization is a dependent accounting unit of a company, such organization is not exempt from paying fines.

d) If the dead, missing individual or bankrupt organization is eligible for cancellation of tax debt and fines as prescribed in the Law on Tax administration, the outstanding tax, fines, late payment interest shall be written off as prescribed by law.

Article 36. Suspension of fine collection

1. If a individual who receives a fine of VND 3,000,000 or over is facing unexpected financial difficulties due to a disaster, conflagration, hostilities action, a fatal disease, and/or an accident, which are certified by the People’s Committee of the commune where the individual resides or the organization at which the individual works or studies, fine payment may be deferred. The individual that suffers from a fatal disease must present a diagnosis of the disease made by a medical facility.

2. The individual shall make and send a written request for suspension of the penalty decision penalty imposer. The request shall specify the financial difficulty that makes the individual unable to pay the fine on schedule, which is certified by the organization mentioned in Clause 1 of this Article.

Within 05 days form the receipt of the written request, the penalty imposer shall consider suspending the penalty decision. The suspension period shall not exceed 03 months from the date of the decision on suspension.

3. The decision on suspension must contain the date, full name of the decision maker, full name, address, occupation of the individual, reasons for suspension, and signature of the decision maker.

Article 37. Exemption, reduction of fines for tax offenses

1. Any individual that incurs a fine of VND 3,000,000 or more and is facing unexpected financial difficulties due to due to a disaster, conflagration, hostilities action, a fatal disease, and/or an accident is entitled to request exemption or reduction of the fine.

2. The exemption or reduction shall not exceed the remaining fine in the penalty decision and shall not exceed the value of damaged property/goods or treatment cost.

3. An application for exemption or reduction of fines for tax offenses consists of:

a) A written request for fine exemption or reduction specifying the reasons, income of the individual or households, value of damaged goods/property or treatment cost; the fine that needs reducing or exempting.

b) If the damage or treatment cost is covered by insurance, it is required to have a notarized copy of the certification of damage or treatment cost made by the insurer. Documents about responsibilities to pay damages (if any).

c) Confirmation of the damage by the People’s Committee of the commune where the individual resides or where the damaged property is located. The individual that suffers from a fatal disease must present a diagnosis of the disease made by a medical facility and evidence of treatment cost.

4. Competence to grant fine exemption and reduction

The superior officer of the penalty imposer has the power to consider fine exemption and reduction

5. Procedures for fine exemption and reduction

The individual mentioned in Clause 1 of this Article shall make a written request for exemption or reduction of part of or all the fine, send it and documents to the penalty imposer. Within 03 days from the receipt of the written request, the penalty imposer shall transfer documents to the superior officer.

Within 05 days from the receipt of the written request, the superior officer shall consider whether to grant exemption or reduction and notify the penalty imposer and the applicant. If the request is rejected, explanation must be provided.

6. Fines for tax offenses shall not be reduced or exempt if the penalty decision has been implemented or the deadline for filing appeal has expired.

Article 38. Decision to take remedial measures without issuing a penalty decision

1. After the time limit for penalty imposition expires, remedial measures may still be taken although a penalty decision is not issued.

2. The decision to take remedial measures must be made in writing using the set form. The decision shall specify the date, full name of the decision maker, full name, address of the violator (and occupation if the violator is an individual), the offenses, facts, applied regulations of law, reasons for not issuing a penalty decision, remedial measures to be taken, deadline, and signature of the decision maker.

Article 39. Transferring the penalty decision or decision to take remedial measures

1. If an individual resides/an organization is located in a province, commits tax offenses in another province, and is not able to implement the penalty decision in the latter, the penalty decision shall be transferred to the tax authority of the province where the individual resides (or where the organization is located)

2. If the violation occurs in a district of a mountainous province or island or a remote area where traveling is difficult and makes the violator unable to implement the penalty decision in that district, the decision shall be sent to the tax authority where the violator resides or is located.

3. The agency competent to impose penalties for in the cases mentioned in Clause 1 and Clause 2 of this Article shall transfer all relevant documents to the other tax authority. The cost of transporting documents shall be paid by the violator.

4. If the tax authority transfers the penalty decision or decision to take remedial measures to another agency as prescribed in Clause 1 and Clause 2 of this Article, the penalized entity shall pay the fine, tax arrears, late payment interest to State Treasury where the documents are received.

Article 40. Payment of fines for tax offenses

1. Procedures for paying fines for tax offenses

a) Within 10 days from the receipt of the penalty decision, the penalized entity shall pay the fine at a State Treasury or transfer the fine to an account of the State Treasury written in the penalty decision, unless the fine has been paid in the cases mentioned in Point b and Point c Clause 1 of this Article.

If the time limit written in the penalty decision is longer than 10 days as prescribed in Article 73 of the Law on Penalties for administrative violations, such time limit shall apply.

b) If the fine is imposed in a remote area, border area, or mountainous area where traveling is difficult, the fine may be paid to the penalty imposer. The penalty imposer shall submit the fine to the State Treasury or transfer it to a State Treasury’s account within 07 days from the collection date.

c) The fine shall be paid in a lump sum except for the case in Clause 2 of this Article.

2. A fine may be paid by installments if all of the following requirements are satisfied:

a) The fine incurred by an individual is 20,000,000 or more; the fine incurred by a organization is VND 200,000,000 or more;

b) The penalized entity is facing special financial difficulties and has submitted a written request for permission to pay the fine by installments.

The request made by an individual must be certified by the People’s Committee of the commune where the individual resides or the organization at which the individual works or studies; the request made by an organization must be certified by a superior body of that organization (if any) or the supervisory tax authority. If there is no superior organization and the penalty imposer is the head of the supervisory tax authority, the organization shall submit the written request for permission to pay the fine by installment to the penalty imposer specifying the difficulties.

3. The fine shall be paid by installments within 06 months from the effective date of the penalty decision; the maximum number of installments is 03. The first installment must account for at least 40% of the total fine.

4. The penalty imposer is entitled to decide the fine payment by installments. The decision to permit fine payment by installments shall be made in writing.

Article 41. Dealing with late payment of tax and fines

1. Late payment of tax and fines shall be dealt with in accordance with the Law on Tax administration and its guiding documents.

If tax is found understated after inspection, late payment interest shall be imposed at 0.05% per day on the tax arrears. If the taxpayer fails to pay tax arrears after 90 days from the deadline, which is written on the penalty decision or the decision to collect tax arrears, the taxpayer shall incur a late payment interest at 0.07% per day on the tax arrears.

2. Late payment of fines

a) Any entity that fails to pay fine by the deadline for implementing the penalty decision prescribed in Article 33 of this Circular shall pay has to payoff the fine and incur a late payment interest at 0.05% per day on the outstanding fine.

b) Late payment interest shall not be imposed while the exemption or reduction of remaining fine is being considered or fine payment by installments is being considered, or the implementation of the penalty decision is suspended as prescribed by law.

3. The number of late payment days includes holidays and days off, and begins on the day succeeding the deadline for making payment or the expiry date of the suspension of the penalty decision until the day preceding the day on which the fine is paid to government budget.

Chapter IV

IMPLEMENTATION

Article 42. Effect

1. This Circular takes effect on January 01, 2014.

2. This Circular replaces Circular No. 61/2007/TT-BTC dated June 14, 2007 of the Ministry of Finance on penalties for tax offenses.

3. Application of documents about administrative penalties for tax offenses

a) Tax offenses committed before December 15, 2013 shall apply regulations of law that are effective when such offenses are committed.

b) Regulations on penalties, suspension of penalty decisions, fine exemption and reduction, and other regulations advantageous to violators shall apply to the tax offenses committed before December 15, 2013 but found and dealt with afterwards.

c) Where there is an appeal against a decision on administrative penalties for tax offences issued or implemented before this Circular takes effect, regulations of law that are effective when the offenses are committed shall apply.

Article 43. Implementation

1. The Director of the General Department of Taxation shall direct the imposition of administrative penalties for tax offenses; inspect the implementation.

2. Superior officers of person entitled to impose penalties shall inspect the imposition of administrative penalties for tax offenses of their inferiors.

3. Forms of the offense record and decisions are enclosed with this Circular.

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

For the Minister

The Deputy Minister

Do Hoang Anh Tuan