VietnameseCircular No. 49/2008/TT-BTC dated June 12, 2008 of the Ministry of Finance guiding the payment of compensation to taxpayers and customs declarants for damage caused by illegal acts of tax officers and customs officers on duty
ATTRIBUTE
Circular No. 49/2008/TT-BTC dated June 12, 2008 of the Ministry of Finance guiding the payment of compensation to taxpayers and customs declarants for damage caused by illegal acts of tax officers and customs officers on duty
| Issuing body: | Ministry of Finance | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 49/2008/TT-BTC | Signer: | Do Hoang Anh Tuan |
| Type: | Circular | Expiry date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Issuing date: | 12/06/2008 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Cadres - Civil Servants , Customs , Tax - Fee - Charge |
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THE MINISTRY OF FINANCE -------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ---------- |
No. 49/2008/TT-BTC | Hanoi, June 12, 2008 |
CIRCULAR
GUIDING THE PAYMENT OF COMPENSATION TO TAXPAYERS AND CUSTOMS DECLARANTS FOR DAMAGE CAUSED BY ILLEGAL ACTS OF TAX OFFICERS AND CUSTOMS OFFICERS ON DUTY
Pursuant to November 29, 2006 Law No. 78/2006/QH11 on Tax Administration;
Pursuant to the Governments Decree No. 85/2007/ND-CP of May 25, 2007, detailing the implementation of a number of articles of the Law on Tax Administration;
Pursuant to the Governments Decree No. 97/2007/ND-CP of June 7, 2007, providing for sanctioning of violations of law and enforcement of administrative decisions in the customs domain;
Pursuant to the Governments Decree No. 98/2007/ND-CP of June 7, 2007, providing for sanctioning of violations of the tax law and enforcement of tax-related administrative decisions,
The Ministry of Finance guides the payment of compensation to taxpayers and customs declarants for damage caused by illegal acts of tax officers and customs officers on duty as follows:
Pursuant to the Governments Decree No. 85/2007/ND-CP of May 25, 2007, detailing the implementation of a number of articles of the Law on Tax Administration;
Pursuant to the Governments Decree No. 97/2007/ND-CP of June 7, 2007, providing for sanctioning of violations of law and enforcement of administrative decisions in the customs domain;
Pursuant to the Governments Decree No. 98/2007/ND-CP of June 7, 2007, providing for sanctioning of violations of the tax law and enforcement of tax-related administrative decisions,
The Ministry of Finance guides the payment of compensation to taxpayers and customs declarants for damage caused by illegal acts of tax officers and customs officers on duty as follows:
I. COMPENSATION
1. Compensation liability
a/ Tax administration agencies directly managing tax or customs officers (below referred to as tax administration agencies) shall pay compensation to taxpayers or customs declarants for damage caused by illegal acts of their cadres or employees on duty.
b/ Tax administration agencies shall create favorable conditions for taxpayers or customs declarants to exercise their right to claim compensation; and promptly settle compensation claims in a public, fair and lawful manner.
2. When detecting illegal acts of tax or customs officers which may cause damage to them, taxpayers and customs declarants shall warn tax or customs officers or tax agencies about these acts.
When having sufficient conditions for filing compensation claims, taxpayers or customs declarants shall file compensation petitions (clearly indicating the full name and address of the petitioner; name and address of the agency directly managing the damage-causing tax or customs officer; reason for compensation by the tax administration agency; damage and requested level of compensation; number and summary content of the complaint settlement decision of the competent state agency or the courts judgment or ruling), and provide information and documents used for the determination of the compensation level, and send them to the tax administration agency for consideration and settlement.
3. Cases of compensation
Tax administration agencies shall pay compensation to taxpayers or customs declarants (below referred to as damage sufferer) when tax or customs officers commit the following acts:
a/ Deciding on tax refund or tax assessment in contravention of law;
b/ Handling and issuing decisions on tax-related administrative sanctions in contravention of the tax law;
c/ Handling and issuing decisions on enforcement of tax-related administrative decisions and other decisions on sanctioning administrative violations in the customs domain in contravention of regulations;
d/ Taking measures for stopping administrative violations without having any grounds and meeting requirements as prescribed by the tax or customs law;
In case tax or customs officers commit acts of causing damage in money or assets to damage sufferers but the damage was due to the fault of damage sufferers, tax administration agencies are not liable to pay compensation; in case damage sufferers are partly at fault, tax administration agencies shall only pay compensation for the portion of damage in proportion to the extent of fault of the tax or customs officers concerned.
4. Conditions on compensation
Compensation may be paid only when all the following conditions are met:
a/ There is a complaint settlement decision of a competent state agency or a court judgment or ruling that confirms the act of the tax or customs officer is illegal and causes the damage;
b/ There is real damage caused by the illegal act of the tax or customs officer on duty to the taxpayer or customs declarant, which falls into one of the cases specified in Clause 3, Section I of this Circular;
c/ The damage sufferer files a compensation petition within 2 years from the date of issuance of the complaint settlement decision by a competent state agency or a court judgment or ruling that confirms the act of the tax or customs officer is illegal and causes the damage.
5. Principles for compensation
a/ For damage being tax money, fine or confiscated money, tax administration agencies shall:
- Return the tax money, fine or confiscated money (if already remitted in the state budget, carry out procedures for returning the money from the state budget) and pay an interest on the improperly collected tax money, imposed fine or confiscated money to the damage sufferer.
The time of calculating such interest is counted from the date the damage sufferer pays the tax money or fine or has the money confiscated to the date indicated in the compensation decision issued by the tax administration agency.
The interest shall be calculated at the basic interest rate notified by the State Bank and effective at the time the tax administration agency issues the compensation decision.
b/ For damage being assets, the tax administration agency shall:
- If the assets still exist and remain undamaged, return the assets to the damage sufferer;
- If the assets still exist but are reparably damaged, return the assets to the damage sufferer and pay all repair expenses; if the assets are irreparably damaged, the tax administration agency shall pay compensation as for lost assets and liquidate the damaged assets according to regulations;
- If the assets no longer exist (already lost or auctioned), pay compensation for the assets at the market price of assets of the same kind or with the same technical properties and specifications and the level of wear at the time of compensation.
6. Order and procedure for compensation
a/ Tax administration agencies shall receive petitions and dossiers of compensation claim. For dossiers of compensation claim without the complaint settlement decision of a competent state agency or a court judgment or ruling confirming the act of the tax or customs officer is illegal and causes damage, the official receiving the dossier shall immediately notify the claimer that his/her petition and dossier of compensation claim are refused for failure to fully meet the conditions for consideration and payment of compensation.
b/ For dossiers of compensation claim which fully meet the conditions for consideration and payment of compensation, the tax administration agency shall classify these dossiers for consideration and handling of compensation liability.
- If the dossier of compensation claim contains a concrete conclusion on the illegal act of the tax or customs officer and the level of damage as indicated in the complaint settlement decision of a competent agency or the court judgment or ruling, within 15 days after receiving the dossier, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) shall examine the dossier and, if agreeing with the conclusion in the said document, issue a decision on compensation.
If disagreeing with the conclusion in the court judgment or ruling, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) may refuse to settle the compensation claim and lodge a protest according to civil procedures.
- If the dossier of compensation claim contains a concrete conclusion on the illegal act of the tax or customs officer as indicated in the complaint settlement decision of a competent agency but the level of damage has not yet been specified, the tax administration agency shall handle it strictly in the order specified at Point c, Clause 6, Section I of this Circular.
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