Circular No. 04/2009/TT-BTC guiding the implementation of value-added tax refunds according to Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government.

CIRCULAR

Guidelines for implementing provisional VAT refunds pursuant to Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government.

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Based on the provisions of the Law on Value Added Tax (VAT) No. 13/2008/QH12 dated June 3, 2008 and other legal documents regulating and guiding the implementation of the Law on VAT.

Based on the Law on Tax Administration No. 78/2006/QH11 dated November 29, 2006 and other legal documents regulating and guiding the implementation of the Law on Tax Administration.

Based on Point 1(c) Section III of Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government regarding urgent measures to prevent economic decline, maintain economic growth, and ensure social security.

Based on Decree No. 118/2008/NĐ-CP dated November 27, 2008 of the Government stipulating the functions, powers, tasks, and organizational structure of the Ministry of Finance.

The Ministry of Finance issues guidelines for temporarily refunding input VAT for exported goods without bank payment documents as follows:

I. SUBJECTS ELIGIBLE FOR PROVISIONAL REFUND AND THE AMOUNT OF PROVISIONAL REFUND

1. The subjects eligible for provisional refund of VAT under this Circular are organizations engaged in production and business of export goods (hereinafter referred to collectively as enterprises) with actual exported goods still within the period not yet paid through banks according to export contracts, except for the following cases that require pre-refund inspection:

- Refunds in accordance with international treaties to which the Socialist Republic of Vietnam is a member, where there is a provision requiring pre-refund inspection.

- Enterprises requesting their first refund, except for production and processing enterprises exporting goods with production bases located in the locality where the provisional VAT refund is made.

- Enterprises that have committed tax evasion or tax fraud within two years prior to the date of the refund request. Tax evasion and tax fraud are defined at the level specified in Article 14 of Decree No. 98/2007/NĐ-CP dated June 7, 2007 of the Government on handling violations of tax laws and enforcing administrative decisions on taxes.

- Enterprises undergoing mergers, consolidations, divisions, liquidations, changes in ownership forms, cessation of operations; transferring, selling, leasing state-owned enterprises, when settling taxes at the time of merger or consolidation, have unpaid input VAT or overpaid VAT.

- After the deadline notified in writing by the tax authority, taxpayers fail to provide explanations or supplementary refund documents as required by the tax authority or fail to prove the correctness of the tax amount declared.

2. The amount of VAT temporarily refunded for exported goods without bank payment documents shall be 90% (ninety percent) of the VAT input refundable based on the enterprise's refund application documents.

In cases where exported goods under export contracts (which clearly specify delayed payment terms and deadlines) have not been paid through banks, the full amount of input VAT can be refunded according to the guidance at Point 1.3 (c.3) Section III Part B of Circular No. 129/2008/TT-BTC dated December 26, 2008 of the Ministry of Finance guiding the implementation of certain provisions of the Law on VAT and guiding the implementation of Decree No. 123/2008/NĐ-CP dated December 8, 2008 of the Government detailing and guiding the implementation of certain provisions of the Law on VAT.

3. In addition to the subjects and amounts of provisional VAT refunds for exported goods mentioned above, to promptly resolve VAT refunds for enterprises with refund applications belonging to other subjects and cases (including advance refund, post-inspection and pre-inspection, post-refund), during the process of inspecting refund documents, if the tax authority determines that the tax meets the conditions for refund, it will temporarily refund the tax that has met the refund conditions, without waiting for the completion of the entire verification before implementing the refund; for the tax that requires verification and requests enterprises to explain and supplement documents, the refund will be processed when sufficient evidence is available. The time for inspection and resolution shall not exceed the time prescribed by law.

II. REFUND DOCUMENTATION

1. The refund documentation shall be carried out in accordance with the guidance at Point 2 Section I Part G of Circular No. 60/2007/TT-BTC dated June 14, 2007 of the Ministry of Finance detailing the implementation of certain provisions of the Law on Tax Administration and guiding the implementation of Decree No. 85/2007/NĐ-CP dated May 25, 2007 of the Government detailing and guiding the implementation of certain provisions of the Law on Tax Administration.

For enterprises requesting provisional refunds without bank payment documents for exported goods, in the enterprise's refund application documents, the Request for Refund of State Budget Revenue form (Form 05/ĐNHT issued together with Circular No. 128/2008/TT-BTC dated December 24, 2008 of the Ministry of Finance guiding the collection and management of state budget revenues through the State Treasury) must clearly state: "The enterprise commits to submit the Bank Payment Detail List for Export Goods Payments no later than five days after receiving payment for exported goods."

2. For the 10% (ten percent) of VAT not yet refunded according to the refund documents, enterprises do not need to resubmit the documents already submitted to the tax authority for provisional refund unless there are adjustments or supplements to the submitted documents; enterprises must submit the following additional documents to the tax authority:

- A refund request letter specifying the amount of VAT temporarily refunded (90%) according to the Decision number, date, month, year of the Director of the Tax Department; the remaining amount (10%) requested for refund.

- A list of bank payment documents (as stipulated in Point 2.1 Section I Part G of Circular No. 60/2007/TT-BTC mentioned above).

3. Enterprises bear legal responsibility for the legality, accuracy, and validity of the refund documents, invoices, and other related materials submitted to the tax authority.

III. IMPLEMENTATION OF PROVISIONAL REFUNDS

1. The tax authority is responsible for receiving, inspecting, reviewing enterprises' refund applications, and processing refunds in accordance with regulations. For enterprises' applications for provisional VAT refunds, if they meet the criteria for provisional refunds before inspection, the tax authority shall issue a decision to temporarily refund VAT for the enterprises, clearly stating in the refund decision that it is a provisional refund based on the enterprise's application documents.

2. The tax authority must open a separate file to monitor each case of temporarily refunding VAT.

The tax authority shall continue to refund 10% of the remaining VAT that has not yet been refunded from the refund application when the enterprise submits a written request and provides the required documentation as stipulated in Point 2, Section II of this Circular.

3. Timeframe for processing refunds:

- For applications to refund VAT on exported goods without bank payment confirmation, the maximum time limit for temporarily refunding VAT (90%) is seven working days from the date the tax authority receives all necessary documents from the enterprise; for the additional 10% VAT refund, the maximum processing time is four working days from the date the tax authority receives the enterprise's written request for the additional 10% refund.

- For other cases eligible for temporary refunds based on the results of reviewing refund applications:

+ For applications eligible for advance refund with subsequent inspection, the maximum processing time for temporarily refunding VAT is eight working days from the date the tax authority receives all necessary documents from the enterprise.

+ For applications subject to pre-inspection and subsequent refund: Within five working days from the date the tax authority receives all necessary refund documents from the enterprise, it must organize an inspection of the VAT amount requested for refund. The procedures and timeframe for inspecting VAT at the enterprise's premises shall be carried out in accordance with the Tax Administration Law and current implementing regulations and guidelines. The total time for inspection, verification, and issuing a refund decision for each case shall not exceed thirty working days from the date the tax authority receives all necessary refund documents from the enterprise.

During the review of refund applications, if the tax authority determines that the VAT amount meets the conditions for refund, it shall immediately issue a refund decision corresponding to the amount that qualifies for refund; for amounts requiring further verification, explanation, or supplementary documentation, the tax authority must notify the enterprise.

4. Inspection work and handling violations:

For enterprises eligible for advance refund with subsequent inspection, the tax authority must organize inspections according to tax management laws and guidelines issued by the State Tax总局必须组织对这些企业的检查，每年检查的企业数量不得少于此类企业总数的百分之五十，剩余的百分之五十在下一年进行检查。根据检查结果，如果发现违规行为，则税务机关必须收回已暂时退还的违规增值税金额，并根据财政部2007年6月14日第61/2007/TT-BTC号《关于处理税收违法行为的实施指引》的规定处理税收违法行为。

IV. IMPLEMENTATION

This Circular takes effect forty-five days from the date of signature and applies to refund applications starting January 1, 2009.

The State Tax总局有责任指导和指示各省、直辖市税务局执行本《通告》中的指引。

During implementation, if there are difficulties or obstacles, they should be reported to the Ministry of Finance for timely guidance and resolution./.