CIRCULAR

AMENDING AND SUPPLEMENTING CIRCULAR No. 128/1998/TT-BTC OF SEPTEMBER 22, 1998 GUIDING THE IMPLEMENTATION OF THE GOVERNMENT�S DECREE No. 22/CP OF APRIL 17, 1996 ON SANCTIONING ADMINISTRATIVE VIOLATIONS IN THE FIELD OF TAX

Pursuant to the provisions of the tax laws, tax ordinances and the legislation on other revenues and remittances of the State budget;
After a period of implementing the Governments Decree No. 22/CP of April 17, 1996 on sanctioning administrative violations in the field of tax, in order overcome difficulties and remove obstacles in the implementation course, the Finance Ministry hereby guides the amendments and supplements to a number of points of its Circular No. 128/1998/TT-BTC of September 22, 1998 (hereinafter referred to as Circular No. 128/1998/TT-BTC for short) as follows:

I. TO SUPERSEDE POINT 1, SECTION II OF CIRCULAR NO. 128/1998/TT-BTC WITH THE FOLLOWING NEW ONE:

1. Levels of sanctions against acts of violating the procedures for tax payment registration and declaration; acts of violating the regime of invoices and vouchers evidencing the tax calculation and payment for goods transported en route.

1.1. A warning for first-time violations, a fine of between VND 20,000 and 200,000 for second-time violations. Where aggravating circumstances are involved, a fine of up to VND 1,000,000 shall be imposed for one of the following acts:

a. Failing to register tax payment or tax codes (including case of supplementary registration upon each change) with the tax authorities within the time limits prescribed in the current legal documents guiding the implementation of the tax legislation.

b. Failing to accurately and fully fill in sections and items set out in tax declarations.

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a/ Failing to submit tax declarations to the tax-collecting bodies within the time limit prescribed in the current legal documents guiding the implementation of tax legislation.

b/ Transporting goods without accompanied dossiers and papers evidencing tax calculation and payment, and origin of goods as prescribed for each type of business subjects (goods purchase books, import declarations, vouchers and other valid papers).

1.3. A fine of between VND 1,000,000 and 10,000,000 shall be imposed for first-time violations, a fine of up to VND 13,000,000 for second-time violations. If aggravating circumstances are involved, a fine of up to VND 20,000,000 may be imposed for acts of failing to submit tax declarations and other papers related to the tax calculation and/or payment to the tax-collecting bodies according to law provisions. In these cases, aggravating circumstances include the delay or failure to abide by the tax authorities notices, more concretely: Upon the expiry of the time limit for submitting the above-said papers, the tax-collecting body shall send the first notice to the tax payer. Past 10 days after the first notice is sent, if the tax payer still fails to submit such papers, the tax-collecting body shall send the second notice. Past 10 days after the second notice is sent, if the tax payer still fails to submit such papers, such failure shall be determined as an act involving an aggravating circumstance.

II. TO SUPERSEDE POINT 2, SECTION II OF CIRCULAR NO.128/1998/TT-BTC WITH THE FOLLOWING NEW ONE:

2. Acts of false tax declaration and tax evasion:

False tax declaration and tax evasion are acts committed by tax payers, violating the law provisions, thus causing partial or full loss of payable tax amounts prescribed by law, or seeking illegitimate benefits from the tax exemption, reduction or reimbursement.

Criteria for determining acts of false tax declaration and tax evasion include:

+ False tax declaration and tax evasion are acts of violating law, including tax legislation and other legislations.

+ Subjects of false tax declaration and tax evasion acts are individuals or organizations that are tax payers.

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The time point for determining an act of false tax declaration or tax evasion is the time when such violation act is detected, in compatibility with the modes and time limits for tax declaration, payment and settlement prescribed by the tax laws and ordinances and documents guiding the implementation thereof, more concretely as follows:

+ For cases subject to the regime of monthly tax declaration and temporary payment and annual settlement as prescribed by law: An act shall be determined as false tax declaration or tax evasion if it is detected after the date the annual tax settlement must be submitted.

+ For cases subject to the one-time tax declaration and payment according to the tax-collecting bodies notices as prescribed by law: An act shall be determined as false tax declaration or tax evasion if it is detected after the date the tax amount must be fully paid as stated in the tax-collecting bodys notice.

Organizations and/or individuals that commit acts of false tax declaration or tax evasion shall, besides having to fully pay the tax amounts that have been falsely declared or evaded, be subject to fines imposed according to a given number of times of evaded tax amount as prescribed below, but the maximum fine level must not exceed VND 100,000,000:

2.1. A fine equal to the evaded tax amount, and where aggravating circumstances are involved (except for cases where acts of false tax declaration or tax evasion have already been handled but the violators relapse into such acts), a fine doubling the evaded tax amount shall be imposed for one of the following acts:

a/ Making wrong declaration of tax liable objects and/or tax calculation basis prescribed for each kind of tax, including:

- Making wrong declaration of origins, use purposes, categories, quantities, specifications and actual state of goods and/or services, tax codes, tax calculation prices and tax rates;

- Making wrong declaration of business subjects, goods lines, types and geographical areas of operation, in order to fraudulently increase income amount eligible for tax exemption or reduction; shirking income declaration or declaring expenses not actually arising in order to reduce taxable income amount;

- Failing to make final settlement or failing to report to the tax authorities on goods, services or incomes, for which the tax exemption, reduction or reimbursement has already been made, but which have actually been used for other purposes liable to retrospective tax collection.

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- Using accounting invoices and/or vouchers not in compliance with the Finance Ministrys regulations or without the competent authorities permission, including falsifying economic contents of such invoices and/or vouchers; using counterfeit or expired invoices and/or vouchers; and using self-printed invoice forms not yet approved by the Finance Ministry;

- Selling goods and/or services without billing invoices or vouchers (except for cases where invoices are not required under the prescribed regime), or without making entries to goods sale accounting books, or without accounting the sale proceeds into the turnover liable to tax declaration and payment;

- Buying and/or selling invoices not in compliance with the regulations and using such invoices to declare expenses which have not actually arisen, in order to reduce enterprise income tax amount or fraudulently increase the tax amount to be deducted or reimbursed;

- Failing to promptly report to the tax authorities and functional bodies on the loss of accounting invoices or vouchers according to the States regulations and taking advantage of such loss to evade tax or act in collusion with other persons in evading tax.

For violation acts prescribed in Items a and b above, which are detected before the deadline for submitting tax settlement or fully paying tax as prescribed by law, the sanctioning levels prescribed in Clause 2, Article 2 of Decree No.22/CP of April 17, 1996 shall apply instead of those calculated according to a given number of times of the evaded tax amount.

c/ Asking for permission to temporarily cease business operation or announcing operation suspension in order to enjoy tax exemption or reduction or tax payment non-liability, but in fact still continuing the business operations.

d/ Retrospective tax collection and application of various fine levels according to the regulations on handling of administrative violations in the field of accounting shall be imposed for the following cases of first-time violations:

- Wrongly accounting or declaring turnovers between accounting years, thus leading to miscalculation of taxable incomes, which must be readjusted upon the inspection of tax settlements;

- Expenses with enough valid vouchers, which have been declared in excess of the maximum level prescribed by the legislation on enterprise income tax and must be excluded from reasonable expenses for determining taxable incomes. For example: Expenses for advertisement, marketing, sale promotion, guest reception, festive occasions, transactions and external relations, in excess of the prescribed maximum rate;

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- Inaccurate accounting of fixed asset depreciation expenses, advance deductions, reserves and expenses awaiting allocation into the reasonable expenses due to accounting technical errors, which must be readjusted upon the inspection of tax settlements;

- Cases of tax payment by tax-fixing method or according to the package level set by the tax authorities, where the payable tax level must be readjusted after fraudulences are detected through inspection.

Any violations specified in Item d, if repeated, shall be handled as acts of false tax declaration or tax evasion under guidance at this Point 2.1.

2.2. A fine doubling the evaded tax amount, and where aggravating circumstances are involved (except for cases where acts of false tax declaration or tax evasion have been handled but violation is repeated), a fine trebling the evaded tax amount shall be imposed for the following violation acts:

a/ Goods transported without sufficient dossiers evidencing that tax has been paid for them or they have been managed by tax authorities according to the regulations for each business subject.

The violation acts mentioned at this Point shall be considered acts of false tax declaration or tax evasion only upon the expiry of the time limit of 10 working days after the tax authorities still hold doubts after their inspection and allow the alleged violators to gather sufficient valid dossiers evidencing that tax has been paid for their goods lots (for those bought, sold or exchanged) or the goods have been managed by the tax-collecting bodies (for goods transported from one warehouse to another within the same unit), but the violators still fail to produce all the valid dossiers.

Where within the time limit prescribed by the tax authority, the violators have produced all valid dossiers, the tax authority with sanctioning competence shall issue decisions to impose sanctions according to the levels prescribed in Item 1.2.b, Point 1, Section I of this Circular.

Where goods owners fail to abide by the tax authoritys handling decisions or past the time limit of 01 (one) day for fresh and raw foodstuff and 05 (five) days for other goods after the handling decisions are issued, the goods owners still fail to come up and pay tax or fines in order to take back their goods, the tax authority shall refer the case to financial body of the same level from district level upward for setting up a council to auction the temporarily seized goods for enforcement of tax penalties.

b/ Doing business without making tax payment registration and declaration with tax authorities according to the provisions in the current legal documents on tax (except for cases of failure to make registration or declaration within the time limit prescribed in Items 1.1.a and 1.2.a, Point 1, Section I of this Circular).

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- Forging accounting vouchers and/or books; making blank vouchers; making vouchers with contents inconsistent with actually arising economic operations; counterfeiting signatures and seals; making entries to accounting books without evidencing accounting vouchers; making two systems of accounting books with different recorded contents;

- Falsely declaring accounting figures and reporting untruthful accounting figures; making financial reports not according to the accounting books or untrue to the realities.

2.3. In cases where organizations and individuals commit violation acts mentioned at Points 2.1 and 2.2 above, for which the sanctioning forms and levels have already been prescribed in tax laws, tax ordinances and the legislation on other revenues and remittances of the State budget, they shall be subject to such sanctioning forms and levels.

2.4. In cases where an organization or individual commits one violation act, which is concurrently prescribed in different legal documents and leads to the false tax declaration or tax evasion, such organization or individual shall, besides having to retrospectively pay the evaded tax amount, be sanctioned for act of false tax declaration or tax evasion. It is strictly prohibited to switch to the application of lighter sanctioning forms or lower sanctioning levels.

For example: Company A forges an invoice to evade tax (to enjoy input tax deduction), and its violation act does not involve aggravating circumstance(s). In this case, company A shall be subject to the retrospective collection of the already deducted tax amount, and at the same time be sanctioned for act of false declaration or tax evasion according to a certain number of times calculated on the evaded tax amount.

Company A shall not be sanctioned for its act of forging accounting vouchers as an administrative violation in the accounting field under the guidance at Point 3, Section II of the Finance Ministrys Circular No. 89/2000/TT-BTC of August 28, 2000 guiding the implementation of the Governments Decree No. 49/1999/ND-CP on sanctioning administrative violations in the field of accounting.

2.5. In cases where the falsely declared or evaded tax amount is large or the violator who has already been administratively sanctioned for act of false declaration or tax evasion relapses into violation or commits another serious violation act, the tax-collecting body shall transfer the dossier to the Peoples Procuracy of the same level, requesting penal liability examination according to the provisions of law.

III. TO AMEND AND SUPPLEMENT A NUMBER OF CONTENTS AT POINT 1, SECTION III OF CIRCULAR NO. 128/1998/TT-BTC AS FOLLOWS:

1. To annul the content of Item 1.1, Point 1, Section III of Circular No. 128/1998/TT-BTC on the competence to sanction administrative violations committed in the tax field by tax officials, heads of tax stations and heads of tax teams.

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3. To convert Items 1.2 and 1.3, Point 1, Section III of Circular No.128/1998/TT-BTC into new Items 1.1 and 1.2, and at the same time add new Item 1.3 to Point 1, Section III of Circular No.128/1998/TT-BTC as follows:

"1.3. The determination of competence to sanction administrative violations in the field of accounting which lead to false tax declaration or tax evasion shall be made as follows:

Organizations and individuals with competence to sanction administrative violations in the field of accounting or with function of conducting inspections or examinations, when detecting violation acts in the accounting field that lead to the false tax declaration or tax evasion according to the guidance in Section II of this Circular, shall have to transfer dossiers to the local tax authorities for handling at the sanctioning levels applicable to acts of false tax declaration or tax evasion."

IV. ORGANIZATION OF IMPLEMENTATION

This Circular takes effect 15 days after its signing. Other guidances in the Finance Ministrys Circular No.128/1998/TT-BTC of September 22, 1998, which are not contrary to the guiding content of this Circular, shall still be effective.

Any problems arising in the course of implementation should be reported to the Finance Ministry for study, amendments and supplements.

FOR THE MINISTER OF FINANCE
VICE MINISTER




Pham Van Trong

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