Circular No. 05/2017/TT-BTC guiding the management, advance payment, and repayment of costs for enforcing administrative penalty decisions.

CIRCULAR

Guidelines for managing, temporarily advancing, and refunding costs for enforcing administrative penalty decisions

decision on administrative penalty

__________________________

Pursuant to the State Budget Law on June 25, 2015;

Pursuant to Decree No. 166/2013/NĐ-CP dated November 12, 2013 of the Government stipulating enforcement measures to execute administrative penalty decisions;

Pursuant to Decree No. 215/2013/NĐ-CP dated December 23, 2013, promulgated by the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the request of the Director of the Legal Department,

The Minister of Finance issues this Circular to guide the management, temporary advancement, and refunding of costs for enforcing administrative penalty decisions and decisions applying measures to remedy consequences caused by administrative violations when such penalties are not applied (hereinafter referred to as enforcement) as prescribed in Decree No. 166/2013/NĐ-CP dated November 12, 2013 of the Government on enforcement of administrative penalty decisions (hereinafter referred to as Decree No. 166/2013/NĐ-CP). 

Article 1. Scope of Regulation

1. This Circular guides the management, temporary advancement, and refunding of costs for enforcing administrative penalty decisions and decisions applying measures to remedy consequences caused by administrative violations when such penalties are not applied (hereinafter referred to as enforcement) as prescribed in Decree No. 166/2013/NĐ-CP.

2. This Circular does not apply to enforcement costs in tax and customs areas.

Article 2. Applicability

1. The authority issuing the compulsory enforcement decision.

2. The agency issuing the enforcement decision, the agency enforcing the enforcement decision.

3. Organizations and individuals subject to enforcement (hereinafter referred to as the enforcement subjects).

4. Financial agencies at all levels and the National Treasury.

5. Other organizations and individuals related to enforcement.

Article 3. Principles of managing compulsory enforcement costs

1. Enforcement subjects must bear all costs for enforcement activities carried out in accordance with Article 41 of Decree No. 166/2013/NĐ-CP.

2. Enforcement subjects are responsible for paying the entire enforcement cost to the agency enforcing the enforcement decision in accordance with this Circular.

3. If enforcement subjects do not voluntarily pay or do not fully pay the enforcement cost or pay late according to the notice from the agency enforcing the enforcement decision, the authority issuing the enforcement decision has the right to issue another enforcement decision to recover the enforcement cost through the measures prescribed in point a, b, c of Clause 2, Article 86 of the Law on Handling Administrative Violations.

Article 4. Content and amount of enforcement costs

1. Determination of enforcement costs shall be carried out in accordance with Article 39 of Decree No. 166/2013/NĐ-CP, including the following costs:

a) Costs for mobilizing persons to implement the enforcement decision: allowances for those directly implementing enforcement and protecting enforcement;

b) Costs for hiring means to dismantle, transport objects, and assets;

c) Costs for hiring to keep or preserve seized assets;

d) Fees for experts participating in valuation to organize auctions in accordance with the law;

đ) Costs for organizing asset auctions:

- Auction costs in accordance with the law in cases where the authority issuing the enforcement decision signs a contract for auction with a professional auction organization in the province or centrally-administered city where the seized asset is located for auction;

- Rent for venue and means to serve the organization of auction, public announcement of auction proceedings in cases where an Auction Committee is established.

e) Other actual costs related to enforcement (if any).

2. Expenditure levels:

a) Allowances for persons directly mobilized to participate in enforcement and protect enforcement:

- Officials and civil servants of the agency enforcing the enforcement decision who are mobilized to carry out enforcement, police forces, self-defense militia, local government representatives directly participating in enforcement: the person in charge at a rate of VND 150,000/person/day participating in enforcement, other participants at a rate of VND 100,000/person/day participating in enforcement.

- Representatives of residential wards, village chiefs, and other persons mobilized by the authority issuing the enforcement decision to participate in enforcement: VND 100,000/person/day participating in enforcement.

b) The costs specified in points b, c, d, đ, e of Clause 1 of this Article shall be based on contracts, settlement of contracts, handover certificates of seized assets (for preservation costs of seized assets specified in point c of Clause 1 of this Article), invoices, and valid and lawful expense receipts in accordance with current regulations, consistent with market prices in the same period, and approved by the authority issuing the enforcement decision.

Article 5. Advance payment for enforcement expenses

1. Prior to organizing enforcement, the agency implementing the enforcement decision must submit the draft budget for enforcement expenses for approval by the authority issuing the enforcement decision. The draft budget for enforcement expenses shall be prepared based on the enforcement measures to be applied, the time and place of enforcement, the enforcement plan, and the participating forces (number and composition) serving the enforcement.

After being approved, the draft budget for enforcement expenses must be sent to the subject of enforcement along with the enforcement decision for payment of enforcement expenses (document clearly stating the date, month, year of penalty, amount to be paid, payment address in cash or bank account number if paying by transfer, and other necessary information).

2. In cases where enforcement expenses cannot be collected from the subject of enforcement due to their unwillingness to pay voluntarily, based on the approved draft budget for enforcement expenses, the agency implementing the enforcement decision may advance enforcement expenses from the enforcement budget of the agency of the authority issuing the enforcement decision. The maximum advance amount equals the approved budget for enforcement expenses within the enforcement budget allocated to the agency of the authority issuing the enforcement decision.

The advance application file includes the annual budget approved by the competent authority and the budget withdrawal form (advance) in accordance with regulations.

Article 6. Refund of advance payment for enforcement expenses

1. Upon completion of the enforcement decision implementation, the agency implementing the enforcement decision must submit the final settlement of enforcement expenses for approval by the authority issuing the enforcement decision. The agency implementing the enforcement decision is responsible for sending the approved final settlement of enforcement expenses to the subject of enforcement (in cases where the subject of enforcement has already paid the enforcement expenses).

2. In cases where advance payment for enforcement expenses has been made in accordance with Clause 2 of Article 5 of this Circular, based on the approved final settlement of enforcement expenses, the enforcement agency must notify the subject of enforcement in writing about the approved final settlement of enforcement expenses for payment of enforcement expenses (document clearly stating the date, month, year of penalty, amount to be paid, payment address in cash or bank account number if paying by transfer, and other necessary information).

Within the latest 10 days from receiving the notification of the approved final settlement of enforcement expenses, the subject of enforcement is responsible for paying the enforcement expenses to the agency implementing the enforcement decision. Upon collecting the money from the subject of enforcement, the agency implementing the enforcement decision must immediately process the refund of the advanced enforcement expenses to the agency of the authority issuing the enforcement decision to repay the advance to the state budget.

3. In cases where enforcement expenses are collected from the proceeds of auctioned assets (as stipulated in Article 18, Article 26 of Decree No. 166/2013/NĐ-CP), after ensuring full payment of administrative violation fines, the agency implementing the enforcement decision shall implement the refund of enforcement expenses to the agency of the authority issuing the enforcement decision in accordance with Clause 2 of this Article. If the subject of enforcement has already paid the enforcement expenses, the agency implementing the enforcement decision shall return the enforcement expenses from the proceeds of the asset auction to the subject of enforcement.

4. In cases where the subject of enforcement does not voluntarily refund or refunds insufficiently the enforcement expenses, the authority issuing the enforcement decision shall issue an enforcement decision using the measures prescribed at points a, b, c of Clause 2 of Article 86 of the Law on Handling Administrative Violations.

5. In cases where it is impossible to recover enforcement expenses due to the death or disappearance of the subject of enforcement (for individuals) or bankruptcy or dissolution (for organizations) without any remaining funds or assets to pay enforcement expenses and there is no organization to take over the rights and obligations as provided by the law on administrative violation penalties, the agency implementing the enforcement decision shall report to the authority issuing the enforcement decision in accordance with Clause 6 of this Article.

6. Annually, at the time of preparing the state budget, the authority issuing the enforcement decision shall report on the use of advance payments for enforcement including: the amount of advance payments made, the amount of recovered payments; the unrecovered amount; the amount that cannot be recovered (if any); reasons for non-recovery and recommendations to higher-level management agencies and financial authorities at the same level.

Documents and forms for the refund of advance payments for enforcement expenses for administrative violations shall be implemented in accordance with Clause 2 of Article 5 of this Circular and current laws on the refund of advance budget estimates.

Article 7. Establishment of budget estimates, execution, and settlement

The establishment of annual regular expenditure budget estimates, their execution, and settlement by the agency issuing the compulsory enforcement decision shall be carried out in accordance with the provisions of the State Budget Law and guiding documents. Compulsory enforcement funds are allocated to the portion of the annual budget estimate of the agency issuing the compulsory enforcement decision that does not operate under the self-management regime.

By the end of the year, within the time limit for adjusting the final settlement as prescribed by the State Budget Law and guiding documents, unused budget balances will be canceled according to regulations, and remaining advance payments for compulsory enforcement costs will be recovered by transferring them into the next year's advance payment within the scope of the annual budget estimate of the agency issuing the compulsory enforcement decision.

Article 8. Implementation organization

1. This Circular takes effect from March 2, 2017.

2. During the implementation process, if any difficulties arise, agencies, units, organizations, and individuals are requested to promptly report to the Ministry of Finance for consideration and collaborative resolution./.