Decree No. 13/2009/ND-CP amending and supplementing certain articles of Decree No. 98/2007/ND-CP dated June 7, 2007, of the Government on handling violations of tax laws and enforcing administrative tax decisions.

DECREE

Amending and supplementing certain articles 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

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THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on Tax Administration dated November 29, 2006;

Pursuant to the Administrative Violation Handling Law dated July 2, 2002 and the Law Amending and Supplementing Certain Articles of the Administrative Violation Handling Law dated April 2, 2008;

Considering the proposal of the Minister of Finance,

DECREE:

Article 1. Amending and supplementing certain articles 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 as follows:

1. Amend Point b Clause 1 of Article 6 as follows:

"b) Fine: The specific form of fine is prescribed for each violation of tax laws as follows:

- The maximum fine shall not exceed VND 100 million for violations of tax procedures. When imposing a fine, the specific amount of the fine for a single procedural violation is the average level within the fine range prescribed for that violation; if there are mitigating circumstances, the fine may be reduced but not below the minimum level of the fine range; if there are aggravating circumstances, the fine may be increased but not above the maximum level of the fine range;

- A fine of 0.05% per day calculated on the amount of overdue tax for the act of late payment of tax and fines;

- A fine of 10% of the underpaid tax amount for the act of incorrect declaration leading to underpayment of tax or overpayment of refundable tax;

- A fine corresponding to the amount not deposited into the state budget account for the act of violation as stipulated at point b, Clause 1, Article 114 of the Tax Administration Law;

- A fine from one to three times the amount of evaded tax for the act of tax evasion or fraud.

When determining the fine amount for taxpayers who have both aggravating and mitigating circumstances, the mitigating circumstances will be deducted according to the principle that if there is one mitigating circumstance, one aggravating circumstance will be deducted. After deducting according to this principle, if there remains one aggravating or mitigating circumstance, the authority will consider the nature and degree of the violation and the attitude towards remedying the consequences of the violator, and apply the fine amount for either the case with one aggravating circumstance or the case without any aggravating or mitigating circumstances. For procedural violations, each aggravating or mitigating circumstance will increase or decrease the fine by 20% of the average fine level."

2. Amending and supplementing Clause 5 of Article 9 as follows:

"5. A fine of VND 500,000 to VND 5,000,000 for the following acts:

a) Submitting tax declaration forms beyond the prescribed deadline by more than 40 to 90 days;

b) Submitting tax declaration forms beyond the prescribed deadline by more than 90 days but without generating any payable tax."

3. Adding point o to Clause 1 of Article 14 as follows:

"o) Households and individuals engaged in business activities paying taxes based on a fixed rate who are currently applying for temporary suspension of business operations but are still conducting business."

4. Amend Article 18 as follows:

"Article 18. Authority to handle violations of tax laws of tax collection agencies

1. Tax officials performing their duties have the right:

a) To issue warnings;

b) To impose a fine up to VND 200,000 for violations of tax procedures as stipulated in this Decree.

2. The Head of the Tax Team within the scope of their functions and tasks has the right:

a) To issue warnings;

b) To impose a fine up to VND 5,000,000 for violations of tax procedures as stipulated in this Decree.

3. The Director of the Tax Revenue Office, within the scope of management, has the right:

a) To issue warnings;

b) To impose a fine up to VND 20,000,000 for violations as stipulated in Articles 7, 8, 9, 10, and 11 of this Decree;

c) To impose a fine for violations as stipulated in Articles 12, 13, 14, 16, and 17 of this Decree;

d) To confiscate property and means used to commit violations of tax laws;

đ) To apply measures to remedy consequences as stipulated in Clause 3, Article 6 of this Decree.

4. The Director of the Provincial Tax Department, within the scope of management, has the right:

a) To issue warnings;

b) To impose a fine up to VND 100,000,000 for violations of tax procedures as stipulated in Articles 7, 8, 9, 10, and 11 of this Decree;

c) To impose a fine for violations as stipulated in Articles 12, 13, 14, 16, and 17 of this Decree;

d) To confiscate property and means used to commit violations of tax laws;

đ) To apply measures to remedy consequences as stipulated in Clause 3, Article 6 of this Decree".

5. Amending Article 22 as follows:

"Article 22. Establishing a record of tax law violations The establishment of a record of tax law violations is regulated as follows:

1. An authorized person performing official duties who discovers a violation of tax laws must establish a record in accordance with the prescribed model and promptly transfer it to the authorized person responsible for imposing penalties. The record must contain all signatures required by the law on administrative violation handling; if the violator does not sign the violation record, the person establishing the record must clearly note the reason in the record and bear responsibility before the law for the contents recorded in the record.

2. In cases where a record is not established when issuing a penalty decision:

a) The taxpayer has committed a violation of tax laws which has been discovered, recorded in the inspection report, and concluded in the inspection report by the tax authority;

b) The taxpayer has failed to pay taxes as recorded in the tax payment notice issued by the tax authority."

6. Amending and supplementing Clause 1 of Article 39 as follows:

"1. The decision on compulsory enforcement of administrative tax decisions takes effect for one year from the date of issuance of the decision. Specifically, the decision on compulsory enforcement of administrative tax decisions by means of deduction from the account of the person subject to enforcement takes effect for thirty days from the date of issuance of the decision."

Article 2. Implementation clause

1. This Decree takes effect from April 1, 2009.

2. The Ministry of Finance shall provide guidance on the implementation of this Decree.

3. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairmen of provincial People's Committees directly under the Central Government, and related organizations and individuals are responsible for implementing this Decree./.