Analysis of Decree No. 91/2022/ND-CP: Many changes in tax administration

Decree No. 91/2022/ND-CP on amending and supplementing a number of articles of Decree No. 126/2020/ND-CP detailing a number of articles of the Law on Tax Administration and taking effect on October 30, 2022.

On the analysis of the Decree No. 91/2022/ND-CP, LuaVietnam recognizes the important contents which can have great impacts on enterprises as follows:

1. Guidelines for the last day of the deadline for submission falls on a public holiday

Clause 1, Article 1, Decree No. 91/2022/ND-CP supplements the end of the deadline as follows:

The deadlines for submission of the tax declaration dossiers, or tax payment, the deadlines for the tax administration offices to process dossiers, and the validity period of the decision on enforcement of a tax administration-related administrative decision shall comply with the Law on Tax Administration and this Decree.

If the last day of the deadline for submission of the tax declaration dossiers, the deadline for tax payment, the deadline for the tax administration offices to process dossiers, or the validity period of the decision on enforcement of a tax administration-related administrative decision falls on a public holiday as prescribed, then the last day of such deadline or period shall be the next working day.

In previous regulations: Law on Tax Administration 2019 and Decree No. 126/2020/ND-CP has no regulations on the last day of the deadline for submission of the tax declaration dossier, the deadline for tax payment, the deadline for the tax administration offices to process dossiers, the validity period of the decision on enforcement of a tax administration-related administrative decision falls on a public holiday which can cause the problems for tax agencies and taxpayers.

Therefore, it is necessary to supplement these regulations to have a basis for the implementation.
 

2. Supplement the case of taxpayers who are not required to submit a tax declaration dossier

Clause 2, Article 1, Decree No. 91/2022/ND-CP supplements 01 cases of a taxpayer who is not required to submit a tax declaration dossier:

Tax declarants of personal income tax is the organizations, and individuals for income payers subject to monthly and quarterly personal income tax declaration without any arising monthly or quarterly personal income tax withholding.

In previous regulations: The Decree No. 126/2020/ND-CP has no regulations on the case that organizations and individuals paying incomes from salaries or wages shall make tax finalization declarations and make tax finalization on behalf of the authorizing individuals, regardless of withholding tax or not.  Therefore, it is necessary to supplement the case regardless of whether withholding tax or not, organizations and individuals are not required to submit a tax declaration dossier

3. Adjust the temporary payment rate of enterprise income tax

Clause 3, Article 1, Decree No. 91/2022/ND-CP amends Point b, Clause 6, Article 8, Decree No. 126/2020/ND-CP, points out clearly that:

The total enterprise income tax amount already temporarily paid for 04 quarters must not be lower than 80% of the payable enterprise income tax amount stated in the annual finalization statement. In case a taxpayer has paid an enterprise income tax amount smaller than the amount required to be temporarily paid for 4 quarters, it/he/she shall pay a late-payment interest on the deficit, which shall be calculated from the date following the last day of the time limit for the temporary payment of enterprise income tax of the fourth quarter to the date preceding the date of actual payment of the deficit into the state budget.

In previous regulations: The total enterprise income tax amount temporarily paid for the first 3 quarters of a tax year must not be lower than 75% of the payable enterprise income tax amount stated in the annual tax finalization statement.

In case a taxpayer has paid an enterprise income tax amount smaller than 75% to be temporarily paid for the first 3 quarters of a year, the enterprise shall pay a late payment interest on the deficit.
 

4. Amend the regulations on after-tax profits left after setting up funds in enterprises with 100% charter capital

Relevant to the amendments on the regulations on temporary payment of enterprise income tax, Clause 4, Article 1, Decree No. 91/2022/ND-CP amends Point c, Clause 6, Article 8 on temporary after-tax profits left after setting up funds in enterprises with 100% charter capital as follows:

The total after-tax profit left after the temporary set up of funds of 4 quarters must not be lower than 80% of the after-tax profit left after setting up funds stated in annual finalization statements.

In case a taxpayer has paid an amount smaller than the amount required to be temporarily paid for 04 quarters, it/he/she shall pay a late-payment interest on the deficit, which shall be calculated from the date following the last day of the time limit for the temporary payment of after-tax profit left after setting up funds of the fourth quarter to the date preceding the date of actual payment of the deficit into the state budget.

In previous regulations: The total after-tax profit left after the temporary set up of funds of 3 quarters must not be lower than 75% of the after-tax profit left after setting up funds stated in annual finalization statements. In case a taxpayer has paid an amount smaller than the amount required to be temporarily paid for first 3 quarters of the year, it/he/she shall pay a late-payment interest on the deficit, which shall be calculated from the date following the last day of the time limit for the temporary payment of after-tax profit left after setting up funds of the third quarter of actual payment of the deficit into the state budget.

5. Temporary payment of enterprise income tax of foreigner carriers in 4 quarters must not be lower than 80% of the tax in annual finalization statements

In accordance with Clause 5, Article 1, Decree No. 91/2022/ND-CP amends the regulations prescribed in Point g, Clause 6, Article 8, Decree No. 126/2020/ND-CP, temporary payment of total enterprise income tax of foreigner carriers in 4 quarters must not be lower than 80% of the tax in annual finalization statements.

In case a taxpayer has paid an enterprise income tax amount smaller than the amount required to be temporarily paid for 4 quarters, it/he/she shall pay a late-payment interest on the deficit, which shall be calculated from the date following the last day of the time limit for the temporary payment of enterprise income tax of the fourth quarter to the date preceding the date of actual payment of the deficit into the state budget.

In previous regulations: The total enterprise income tax amount of foreign carriers temporarily paid for the first 03 quarters of a tax year must not be lower than 75% of the payable enterprise income tax amount stated in the annual tax finalization statement.

In case a taxpayer has paid an enterprise income tax amount smaller than the amount required to be temporarily paid for the first 03 quarters of the year must pay a late-payment interest on the deficit, which shall be calculated from the date following the last day of the time limit for the temporary payment of enterprise income tax of the third quarter to the date preceding the date of actual payment of the deficit into the state budget.

6. Amend the regulations on the dossier for tax declaration of environmental protection tax for enterprises extracting and selling coal domestically

In particulars, Clause 6, Article 1, Decree No. 91/2022/ND-CP prescribes that:

For enterprises extracting and selling coal domestically in the form of management and assignment of their subsidiary companies or dependent units to extract, process and sell coal, the units in charge of selling coal shall make declarations for the whole environmental protection tax amount for exploited coal subject to tax, and submit tax declaration dossiers to their managing tax offices together with the statements for determination of payable tax amounts for localities where coal-extracting companies’ head offices are based, under the Minister of Finance’s regulations.

In previous regulations: The companies or units assigned to sell coal shall make a declaration for the whole environmental protection tax amount for coal purchased from coal-extracting companies (lack of domestically extracted and consumed coal amount from the companies of sifting, collecting, and processing coals).

7. The owner of the e-commerce trading floor must supply the seller's information to the tax agencies

In accordance with Clause 7, Article 1, Decree No. 91/2022/ND-CP, organizations established and operating under Vietnamese laws that are owners of e-commerce exchanges shall be responsible for providing sufficient and accurate information about traders, organizations and individuals conducting a part or entire process of purchase and sale of goods and services on the e-commerce exchanges, including:

- Name of seller:

- Tax code or id personal identifier, or number of identity card or citizen identification or passports, address;

- Revenues from the online transactions of the e-commerce trading floor.

- The provision of information shall be carried out online on the General Department of Taxation’s portal according to the file format announced by the General Department of Taxation on a quarterly basis.

In previous regulations: Clause 2, Article 27, Decree No. 126/2020/ND-CP prescribes the responsibilities for supplying information of relevant organizations and individuals. However, there are no clear regulations on the information which must be supplied, the form and the frequency of supplying information for organizations and individuals who are the owners of e-commerce trading floor and supplies electronic and commercial services.

8. Replace the form of announcement for canceling the invoice usage

Form of an announcement on canceling the invoice usage in accordance with Form No. 04-1/CC at Appendix III, Decree No. 126/2020/ND-CP which is replaced by Form No. 04-1/CC, Decree No. 91/2022/ND-CP.

In accordance with the new form of announcement, if any case has no database on the invoice, the new announcement requires information as follows: Bases for an announcement; the name of agencies which issues the coercive decision; name, address, tax code of coercive taxpayer; reasons for not using the invoice.

In previous regulations: The form is designed at the time the tax agency make the coercive decision while enterprises are having invoice in existence, and have not yet had guidance for the case at the time of issuing coercive decisions for taxpayers who have used all invoices or taxpayers use e-invoices and have no invoice in existence (no data of invoice in existence).
 

9. Supplement the form for the proposal of late payment reduction (Form No. 01/GTCN)

In accordance with Point b, Clause 1, Article 2, Decree No. 91/2022/ND-CP, up to October 30, 2022, if the taxpayers have the temporarily paid tax amount for the first 3 quarters of the 2021 tax period lower than 75% of the payable tax amount stated in the annual finalization statement, the temporary tax rate for 4 quarters prescribed in Clauses 3, 4 and 5 Article 1 of this Decree shall apply.

In case where the agencies competent to conduct the inspection and examination have already calculated the late-payment interests as prescribed at Points b, c, g Clause 6 Article 8 of Decree No. 126/2020/ND-CP, and the late-payment interests are deducted when the temporary rate for 4 quarters specified in Clauses 3, 4, 5 Article 1 of this Decree is applied, the taxpayers shall make a written request for reduction of late-payment interests according to the Form No. 01/GTCN, and send it to the tax offices where the late-payment interests arise (the managing tax offices or tax offices where activities entitled to enterprise income tax incentives are carried out).

After the reduction, the over-paid late-payment interest amount shall comply with Article 60 and Chapter VIII of the Law on Tax Administration and guiding documents.

In previous regulations: No regulations

This is the analysis of Decree No. 91/2022/ND-CP, this Decree takes effect on October 30, 2022, and must pay to attend to:

Provisions of Clauses 3, 4, 5 Article 1 of this Decree shall apply from the 2021 tax period.