Tiếng Việt| THE GOVERNMENT | SOCIALIST REPUBLIC OF VIET NAM |
| 100/2004/ND-CP | Hanoi, February 25, 2004 |
PRESCRIBING THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN TAX DOMAIN
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to tax laws and tax ordinances;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations;
At the proposal of the Finance Minister,
DECREES:
Article 1.- Regulation scope and objects
This Decree prescribes the sanctioning of administrative violations in the tax domain against individuals, agencies and organizations (hereinafter referred collectively to as individuals and organizations) that commit acts of intentionally or unintentionally violating law provisions on tax, which are not crimes and, under the provisions of this Decree, must be administratively sanctioned, except otherwise provided for by the international treaties which Vietnam has signed or acceded to. The tax-related administrative violations shall include:
...
...
...
2. Violation of the regulations on collection and remittance of tax and fine money;
3. Violation of the regulations on tax-related examination and inspection;
4. Acts of tax evasion.
Article 2.- Principles for sanctioning administrative violations in the tax domain
1. The principles for sanctioning administrative violations in the tax domain shall comply with the provisions of Article 3 of the Ordinance on Handling of Administrative Violations.
2. The specific fine level for an act of administrative violation shall be the average level of the fine bracket prescribed for such act. In cases where extenuating circumstances are involved, the fine level shall be reduced but not lower than the minimum level of the fine bracket. In cases where aggravating circumstances are involved, the fine level may be higher but shall not exceed the maximum level of the fine bracket.
Article 3.- Statute of limitations for sanctioning of administrative violations
1. The statute of limitations for sanctioning of administrative violations in the tax domain shall be two years as from the date the acts of administrative violation are committed. For acts of administrative violation in the tax domain, which are determined as acts of tax evasion, the statute of limitations for sanctioning thereof shall comply with the provisions in tax laws, tax ordinances.
2. Individuals against whom criminal proceedings have been initiated, who have been prosecuted or brought to trial according to criminal procedures under decisions, but later get decisions to stop the investigation or cease the cases, but their violation acts show signs of administrative violation in the tax domain, shall be sanctioned for administrative violations. Within three days as from the date of issuing decisions to stop the investigation or cease the cases, the issuers must send them together with the case files to persons with sanctioning competence; for these cases, the statute of limitations for sanctioning of administrative violations shall be three months as from the date the persons with sanctioning competence receive the cessation decisions and dossiers of the violation cases.
...
...
...
4. If the persons with sanctioning competence let the statute of limitations for sanctioning of administrative violations pass by, they shall be handled according to the provisions of Article 121 of the Ordinance on Handling of Administrative Violations.
Individuals and organizations sanctioned for administrative violations in the tax domain, if past one year as from the date of completely serving the sanctioning decisions or from the date of expiry of the statute of limitations for execution of sanctioning decisions, having not repeated their violations, shall be considered as having not yet been sanctioned for administrative violations.
Article 5.- Forms of sanctioning administrative violations in the tax domain
1. For each act of administrative violation, the violating individuals or organizations shall be subject to one of the following principal sanctioning forms:
a) Caution;
b) Pecuniary fine.
2. Depending on the nature and seriousness of their violations, the violating individuals or organizations shall also be subject to the additional sanctioning form of confiscation of material evidences and means used for commission of administrative violations.
3. Apart from the sanctioning forms prescribed in Clauses 1 and 2 of this Article, the violating individuals or organizations may be subject to the application of one or both of the following remedial measures:
...
...
...
b) Suspension from using invoices due to failure to strictly comply with decisions on sanctioning tax-related administrative violations. The suspension duration shall not exceed three months as from the date the organizations or individuals have failed to strictly comply with the sanctioning decisions; where violations are remedied within less than three months, the suspension from using invoices shall cease to be valid immediately after the date the violations were completely remedied.
1. The extenuating circumstances shall comply with the provisions of Article 8 of the Ordinance on Handling of Administrative Violations.
2. The aggravating circumstances shall comply with the provisions of Article 9 of the Ordinance on Handling of Administrative Violations.
Article 7.- Interpretation of terms
In this Decree, the terms below shall be construed as follows:
1. Acts of tax evasion mean acts of violating law provisions on tax, which are committed by individuals or organizations, thus reducing the payable tax amounts or increasing the reimbursed, exempted or reduced tax amounts.
2. Evaded tax money amounts mean the tax money amounts additionally detected outside the figures declared in the tax declaration forms, tax settlement or outside the accounting books. The evaded tax amounts to be considered for administrative sanction shall leave out the tax preference policies and not be cleared against the deductible or reimbursable tax amounts or loss amounts of the tax payers.
3. The time of determining individuals or organizations commit acts of tax evasion for sanctioning administrative violations is the time when the individuals or organizations have completed the declaration of payable tax amounts under the provisions of tax legislation or the time when the competent agencies issue decisions on tax reimbursement, reduction or exemption according to the dossiers of application of such individuals or organizations.
...
...
...
Goods in circulation include goods, raw materials, fuels, materials, which are being transported en route, put on sale at sale places, in warehouses or at production and/or business places.
VIOLATION ACTS, SANCTIONING FORMS AND LEVELS
1. Caution or a fine of between VND 50,000 and 100,000 for one of the following acts:
a) Registering tax with tax offices one to five days later than the prescribed deadlines, including cases of additional registration upon any changes;
b) Making arithmetically inaccurate declarations in the tax declaration forms, lists of taxes enclosed with tax settlement or failing to declare fully the indices on tax declaration forms, tax settlement but without falsifying the payable tax amounts after the adjustment or additional declarations are made under the provisions of tax legislation;
c) Submitting tax declaration forms one to five working days later than the prescribed deadlines;
d) Submitting tax settlement one to ten working days later than the prescribed deadlines.
...
...
...
a) Making tax registration, submitting tax declaration papers 5 to 10 working days later than the prescribed deadlines;
b) Submitting tax settlement 10 to 20 working days later than the prescribed deadlines.
3. A fine of between VND 1,000,000 and 2,000,000 for one of the following acts:
a) Making tax registration, submitting tax declaration forms more than 10 working days later than the prescribed deadlines or still failing to make tax registration or to submit the tax declaration forms even when the prescribed time limit therefor has expired for more than 10 working days;
b) Submitting tax settlement 20 to 30 working days later than the prescribed deadlines.
4. A fine of between VND 2,000,000 and 4,000,000 for acts of submitting tax settlement 30 to 40 working days later than the prescribed deadlines.
5. A fine of between VND 4,000,000 and 10,000,000 for acts of submitting tax settlement 40 to 90 working days later than the prescribed deadlines.
6. A fine of VND 15,000,000 and 25,000,000 for acts of submitting tax settlement more than 90 working days later than the prescribed deadlines or failing to submit tax settlement even when the prescribed time limit has expired for more than 90 working days.
...
...
...
In cases where the violators have already been sanctioned for administrative violations but still fail to pay tax and fines under decisions of competent bodies, they shall be subject to the application of measure of suspending the use of invoices as provided for at Point b, Clause 3, Article 5 of this Decree.
2. A fine of between VND 2,000,000 and 5,000,000 on organizations and individuals for paying wages, incomes without deducting tax amounts and fine amounts of the subjects sanctioned for administrative violations in the tax domain; on banks, financial organizations or other credit institutions where the sanctioned subjects have opened their accounts for failing to deduct tax and fine amounts and remit them into the State budget under collection orders, decisions on deduction for remittance into the State budget of competent bodies after 10 days as from the date they are given the collection orders or decisions on deduction for remittance into the State budget.
1. A fine of VND 500,000 and 1,000,000 for acts of failing to abide by examination and inspection decisions of competent bodies, except for cases prescribed in Clause 3 of this Article.
2. A fine of VND 1,000,000 and 2,000,000 for acts of failing to supply vouchers accompanying goods, raw materials, fuels, materials being transported en route to prove that the goods lots for which tax has already been paid or they have been managed for tax collection under law provisions within the maximum time limit of 24 hours as from the time of examination and detection thereof.
The Finance Ministry shall specify ways of determining the time limits and procedures for determining that tax has already been paid for the goods lots or the goods lots have been managed for tax collection.
3. A fine of VND 2,000,000 and 3,000,000 for one of the following acts:
a) Refusing, delaying or evading to supply documents, vouchers, accounting books relating to the determination of payable tax amounts for more than 5 working days as from the date of receiving the written requests of competent agencies or persons;
b) Declining to obey the sealing orders of competent agencies or persons or sealing dossiers, documents, vouchers, accounting books, fund safes, goods storehouses, raw materials warehouses, machinery, workshops in contravention of regulations.
...
...
...
Article 11.- Sanctioning forms and levels for acts of tax evasion
Individuals and organizations that commit acts of tax evasion shall, apart from paying full tax amounts as prescribed, be fined multi-times the evaded tax amounts. The below multifold fine level for each violation act shall not exceed VND 100,000,000, except otherwise provided for by tax laws.
1. A fine of between one and two times the evaded tax amount for one of the following acts:
a) Keeping outside the accounting books the accounting figures or conducting book-keeping accounting not according to the provisions of the book-keeping regime, thus reducing the payable tax amounts or increasing the reimbursable, exempted or reduced tax amounts;
b) Modifying, erasing, crossing accounting vouchers, books in order to reduce the payable tax amounts or increase the reimbursable, exempted or reduced tax amounts:
c) Setting procedures for destruction of supplies, commodities or reduction of supplies or goods volumes or values not according to reality, thus reducing the payable tax amounts or increasing the reimbursable or exempted, reduced tax amounts;
d) Selling goods or providing services and writing invoices on the copies to be handed to customers with volumes or values larger than those written on the kept copies;
e) Selling goods or providing services and writing invoices with values being 20% (twenty percent) or over lower than the average sale prices of goods or services of the same type on the market in the localities where goods are sold, excluding the following cases:
- Selling raw and fresh goods of inferior quality;
...
...
...
- Selling seasonal farm produce, foodstuff commodities;
- Selling goods on sale promotion according to law provisions;
- Selling goods, properties in case of bankruptcy, dissolution, production and/or business termination, production and/or business shift.
f) Using fake invoices, expired invoices, other individuals’ or organizations’ invoices to sell goods or provide services but failing to declare full payable tax amounts;
g) Wrongly declaring, determining the prescribed tax calculation grounds, thus reducing the payable tax amounts or increasing the reimbursable, exempted or reduced tax amounts;
h) Circulating goods, raw materials, fuels, materials without accompanying vouchers to prove that the goods lots for which tax has already been paid or have and been managed by tax offices according to law provisions, except for cases prescribed in Clause 2, Article 10 of this Decree;
i) Failing to declare tax or declaring deductible tax according to regulations applicable to contractors, subcontractors;
j) Other acts besides acts prescribed in this Article, which cause reduction of payable tax amounts or increase of reimbursable, exempted or reduced tax amounts.
2. A fine of between 2 and 3 times the evaded tax amounts for one of the following acts:
...
...
...
b) Reporting on destruction of invoices used for supply of goods or services to customers for the purposes of reducing the payable tax amounts or increasing the reimbursable, exempted or reduced tax amounts.
3. A fine of between 3 and 5 times the evaded tax amounts for one of the following acts:
a) Using blank invoices or other blank accounting vouchers for the purposes of reducing the payable tax amounts or increasing the reimbursable, exempted or reduced tax amounts;
b) Destroying accounting vouchers and/or accounting books for the purposes of reducing the payable tax amounts or increasing the reimbursable, exempted or reduced tax amounts;
c) Opening two systems of accounting books inscribed with different contents for the purposes of reducing the payable tax amounts or increasing the reimbursable, exempted or reduced tax amounts;
d) Doing business without declaring and registering tax.
4. Individuals and organizations that commit acts of using blank invoices, apart from being sanctioned according to the provisions at Point a, Clause 3 of this Article, may be subject to the application of remedial measures prescribed at Point b, Clause 3, Article 5 of this Decree.
5. Vouchers, invoices and accounting books being material evidences of administrative violations may be subject to the measures prescribed at Point a, Clause 3, Article 5 of this Decree.
6. Individuals and organizations committing violation acts defined at Points a and b, Clause 1 of this Article (excluding the case of erasing, crossing, modifying, changing invoices) and Points b and c, Clause 3 of this Article (excluding the case of destroying invoices), which are detected before the time prescribed in Clause 3, Article 7 of this Decree, shall not be sanctioned for acts of tax evasion under the provisions of this Article, but shall be sanctioned for administrative violations in the accounting domain.
...
...
...
COMPETENCE TO SANCTION ADMINISTRATIVE VIOLATIONS
Article 12.- Tax offices’ competence to sanction administrative violations
Except where tax laws otherwise provide for the sanctioning levels, the following persons shall have competence to sanction administrative violations in the tax domain:
1. Tax officers performing official duties shall have the right to impose:
a) Caution;
b) Fines of up to VND 100,000.
2. Heads of tax stations, leaders of tax teams shall, within the scope of their respective functions and tasks, have the right to impose:
a) Caution;
...
...
...
3. Heads of the Tax Sub-Departments shall, within the geographical areas under their respective management, have the right to impose:
a) Caution;
b) Fines of up to VND 10,000,000;
c) Confiscation of material evidences, means used for commission of administrative violations;
d) The application of remedial measures defined in Clause 3, Article 5 of this Decree.
4. Directors of the provincial/municipal Tax Departments shall, within the geographical areas under their respective management, have the right to impose:
a) Caution;
b) Fines of up to VND 100,000,000;
c) The confiscation of material evidences, means used for commission of administrative violations;
...
...
...
Article 13.- Customs offices’ competence to sanction administrative violations
Except where the tax laws otherwise provide for the sanctioning levels, the following persons shall, according to their respective functions and tasks of managing the collection of tax on export goods, import goods, have the competence to sanction administrative violations in the tax domain as follows:
1. Leaders of the operation teams of Customs Sub-Departments shall have the right to impose:
a) Caution;
b) Fines of up to VND 500,000.
2. Heads of the Customs Sub-Departments, leaders of control teams under the provincial/municipal Customs Departments (hereinafter referred collectively to as Customs Departments), leaders of anti-smuggle control teams and commanders of the sea control flotillas of the Anti-Smuggle Investigation Department of the General Department of Customs, shall have the right to impose:
a) Caution;
b) Fines of up to VND 10,000,000;
c) Confiscation of material evidences, means used for commission of administrative violations, which are valued at up to VND 20,000,000.
...
...
...
a) Caution;
b) Fines of up to VND 20,000,000;
c) Confiscation of material evidences, means used for commission of administrative violations;
d) The application of remedial measures defined in Clause 3, Article 5 of this Decree.
4. The director of the Anti-Smuggle Investigation Department under the General Department of Customs shall have the right to impose:
a) Caution;
b) Fines of up to VND 100,000,000;
c) Confiscation of material evidences, means used for commission of administrative violations;
d) The application of remedial measures defined at Point b, Clause 3, Article 5 of this Decree.
...
...
...
The authorization of sanctioning of administrative violations and the determination of competence to sanction administrative violations in the tax domain shall comply with the provisions of Articles 41 and 42 of the Ordinance on Handling of Administrative Violations.
PROCEDURES FOR SANCTIONING OF ADMINISTRATIVE VIOLATIONS AND EXECUTION OF SANCTIONING DECISIONS
Article 16.- Simplified procedures
In case of imposing caution or fines of up to VND 100,000, the sanctioning procedures shall comply with the provisions of Article 54 of the Ordinance on Handling of Administrative Violations.
Article 17.- Making records on administrative violations
For tax-related administrative violations not falling into cases of simplified sanctioning procedures, the records thereon must be made, except for case of imposing fines on late payment of tax and fines under the provisions of tax laws.
The forms and contents of, and process of making, records on administrative violations in the tax domain must comply with the provisions in Article 55 of the Ordinance on Handling of Administrative Violations. Where individuals, representatives of violating organizations, witnesses, victims or representatives of victimed organizations refuse to sign the records, the record makers must inscribe clearly their reasons therefor in the records and the inspecting or examining individuals or agencies keep making proposals and/or decisions in the records and take responsibility before law for such conclusions and proposals.
...
...
...
The forms and contents of, the order and procedures of issuing, decisions to sanction administrative violations in the tax domain must comply with the provisions of Article 56 of the Ordinance on Handling of Administrative Violations.
Article 21.- Coercive measures for execution of decisions to sanction administrative violations
Upon the expiry of the time limits prescribed in Clause 1, Article 64 of the Ordinance on Handling of Administrative Violations, individuals and organizations sanctioned for administrative violations in the tax domain, that fail to voluntarily execute the decisions on tax and/or fine payment, shall be subject to the application of the following coercive measures:
1. Deducting part of their salaries or part of their income, deducting accounts of tax payers at banks, credit institutions, financial organizations for payment of tax, payment of fines.
Organizations or individuals that pay wages or incomes, or banks, credit institutions or financial organizations where the sanctioned organizations or individuals have opened their accounts shall have to execute the coercion decisions of the competent bodies.
Where the accounts of sanctioned individuals or organizations have no balances or have the balances which are not enough for tax and/or fine payment, immediately after the accounts of such sanctioned individuals or organizations have the balances, the banks, financial organizations or other credit institutions must deduct for remittance into the State budget the outstanding tax and/or fine amounts before effecting other money transfer orders of the sanctioned subjects.
2. Temporarily seizing goods, material evidences to secure the full collection of tax and/or fine money.
...
...
...
4. Not being permitted by customs offices to carry out procedures for export or import of the subsequent goods shipment till the tax and/or fine money are fully paid.
Article 22.- Competence to issue coercion decisions
1. The following persons shall have competence to issue coercion decisions and have the task to organize the coercive execution of their sanctioning decisions and their subordinates:
a) Heads of the Tax Sub-Departments;
b) Directors of the Tax Departments;
c) Directors of the Customs Departments directly managing tax collection;
d) The director of the Anti-Smuggle Investigation Department of the General Department of Customs;
e) The presidents of the People’s Committees of the commune, district or provincial level.
2. Other provisions on coercive execution of decisions to sanction administrative violations, apart from the contents prescribed in Clause 1 of this Article, shall comply with Article 66 of the Ordinance on Handling of Administrative Violations and law provisions on coercive execution of administrative violation-sanctioning decisions.
...
...
...
1. When considering to decide on sanctioning of violation cases prescribed in Clause 4 of Article 10, Clauses 1, 2 and 3 of Article 11, of this Decree, the competent persons, if realizing that the violation acts show criminal signs under the Penal Code’s provisions, must immediately transfer the dossiers to the competent criminal procedure-conducting agencies.
It is strictly forbidden to retain violation cases with criminal signs for administrative sanction.
2. Where sanctioning decisions have been issued, but later the violation acts are detected to bear criminal signs while the statute of limitation for penal liability examination has not yet expired, the persons who have issued the sanctioning decisions must cancel such decisions and within three days as from the date of canceling the sanctioning decisions have to transfer the violation case files to the competent criminal procedure-conducting bodies.
3. The criminal procedure-conducting agencies which have received the case files shall have to notify the handling results to the agencies which have transferred the dossiers and proposed the penal liability examination.
Article 24.- Statute of limitations for execution of administrative violation-sanctioning decisions
The statute of limitations for execution of administrative violation-sanctioning decisions shall be one year, counting from the date of issuing the sanctioning decisions; if past such time limit the sanctioning decisions have not yet been executed, such sanctioning decisions shall not be executed but the measures prescribed at Point b, Clause 3, Article 5 of this Decree shall still be applied if such measures are inscribed in the decisions. Where the sanctioned individuals or organizations deliberately shirk or delay the execution of sanctioning decisions, the above-said statute of limitations shall start from the time the shirking or delaying acts terminate.
COMPLAINTS, DENUNCIATIONS, COMMENDATION AND HANDLING OF VIOLATIONS
Article 25.- Complaints, denunciations
...
...
...
2. Citizens are entitled to denounce illegal acts in handling administrative violations.
3. The competence, procedures and time limits for settling complaints and denunciations shall comply with law provisions on complaints and denunciations.
Article 26.- Instituting administrative cases
The institution of cases according to administrative procedures against decisions on sanctioning administrative violations or decisions on the application of measures to prevent, and secure the handling of, administrative violations shall comply with the law provisions on procedures to settle administrative cases.
Individuals and organizations that record achievements in the struggle to prevent and combat administrative violations in the tax domain shall be commended and/or rewarded according to the general regimes of the State.
Article 28.- Handling of violations
1. Persons who are sanctioned for administrative violations, if committing acts of resisting the official-duty performers, delaying or shirking the execution of sanctioning decisions or other acts, shall, depending on the nature and seriousness of their violations, be handled for administrative violations or examined for penal liability; if causing damage, they must pay compensations therefor according to law provisions.
2. Persons who are competent to handle administrative violations but harass for bribes, tolerate, cover up, decline to handle or handle not in time or improperly, handle ultra vires, are at fault in letting the statute of limitations and time limits for handling of administrative violations expire shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; if causing damage, they must pay compensations therefor according to law provisions.
...
...
...
Article 29.- Implementation effect
1. This Decree takes implementation effect 15 days after its publication in the Official Gazette.
2. To annul the Government’s Decree No.22/CP of April 17, 1996 on sanctioning of administrative violations in the tax domain.
3. Acts of administrative violation in the tax domain prescribed in this Decree, which were committed before this Decree takes effect, shall not be subject to the application of the provisions of this Decree, except where the sanctioning forms and levels prescribed in this Decree are lighter than those prescribed for the same violation acts in the Government’s Decree No.22/CP of April 17, 1996 on sanctioning administrative violations in the tax domain.
Article 30.- Guiding and organizing the implementation
The Finance Ministry shall guide and organize the implementation of this Decree and coordinate with State agencies, political organizations, socio-political organizations, social organizations and socio-professional organizations in propagating, educating and mobilizing people to implement, and supervise the implementation of, this Decree.
Article 31.- Responsibility for implementation
The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the provincial/municipal People’s Committees are responsible for the implementation of this Decree.
...
...
...
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
- 1 Decree No. 22-CP of April 17,1996, on sanctions against administra- tive violations in tax payment
- 2 Decree of Government No. 98/2007/ND-CP of June 07, 2007 providing for the handling of tax-law violations and the enforcement of tax-related administrative decisions
- 3 Decree of Government No. 98/2007/ND-CP of June 07, 2007 providing for the handling of tax-law violations and the enforcement of tax-related administrative decisions
- 1 Circular No. 61/2007/TT-BTC of June 14, 2007 guiding the handling of tax-law violations
- 2 Circular No. 95/2005/TT-BTC promulgated by the Ministry of Finance, guiding the implementation of the provisions of law on registration fees.
- 3 Circular No.41/2004/TT-BTC of May 18, 2004 guiding the implementation of The Government’s Decree No. 100/2004/ND-CP of February 25, 2004 prescribing the sanctioning of administrative violations in the tax domain
- 4 Decree No. 89/2002/ND-CP of November 07th, 2002, the printing, issuance, use and administration of invoices.
- 5 Ordinance No. 44/2002/PL-UBTVQH10 of July 02, 2002 on handling of administrative violations
- 6 Law No. 32/2001/QH10 of December 25, 2001 on organization of the Government
- 7 Circular No. 128/1998/TT-BTC of September 22, 1998 amending and supplementing Circular No. 45-TC/TCT of August 1st, 1996 guiding the implementation of Government Decree No. 22/CP of April 17, 1996 on handling administrative violations in the field of tax
- 1 Circular No. 61/2007/TT-BTC of June 14, 2007 guiding the handling of tax-law violations
- 2 Circular No. 95/2005/TT-BTC promulgated by the Ministry of Finance, guiding the implementation of the provisions of law on registration fees.
- 3 Circular No. 30/2001/TT-BTC of May 16, 2001 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
- 4 Circular No. 128/1998/TT-BTC of September 22, 1998 amending and supplementing Circular No. 45-TC/TCT of August 1st, 1996 guiding the implementation of Government Decree No. 22/CP of April 17, 1996 on handling administrative violations in the field of tax