Circular No. 149/2014/TT-BTC stipulates on the amount of unlawful gains obtained from the implementation of administrative violations to be surrendered to the state budget.

CIRCULAR

Regulations on the amount of illegal gains obtained from implementing administrative violations to be deposited into the state budget

 for administrative violations to be deposited into the state budget

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Pursuant to the Law on Handling Administrative Offenses dated June 20, 2012;

Pursuant to the Law on Trade dated June 14, 2005;

Pursuant to Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain provisions and measures for implementing the Law on Handling Administrative Offenses;

Pursuant to Decree No. 185/2013/ND-CP dated November 15, 2013 of the Government stipulating administrative penalties for violations in trade activities, production, sale of counterfeit goods, prohibited goods, and consumer protection;

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 regulating the amount of illegal gains obtained from implementing administrative violations to be deposited into the state budget.

Article 1. Scope of Regulation

1. This Circular guides the determination of the amount of illegal gains obtained from implementing administrative violations to be deposited into the state budget as prescribed in Article 37 of the Law on Handling Administrative Violations and Point d, Clause 5, Article 4 of Decree No. 185/2013/ND-CP dated November 15, 2013 of the Government stipulating administrative penalties for violations in trade activities, production, sale of counterfeit goods, prohibited goods, and consumer protection (hereinafter referred to as Decree No. 185/2013/ND-CP); it also guides the handling of the amount of illegal gains obtained from implementing administrative violations to be deposited into the state budget (State Budget).

2. The determination of the amount of illegal gains for administrative violations in the securities and securities market sector shall be carried out in accordance with the provisions of Clause 2, Article 3 of Circular No. 217/2013/TT-BTC dated December 31, 2013 of the Ministry of Finance.

3. The determination of the amount of illegal gains for administrative violations in the price management sector shall be carried out in accordance with the provisions of Circular No. 31/2014/TT-BTC dated March 7, 2014 of the Ministry of Finance.

Article 2. Applicability

1. Organizations and individuals who commit administrative violations subject to measures to remedy consequences as required to return illegal gains as prescribed in Article 37 of the Law on Handling Administrative Violations and Point d, Clause 5, Article 4 of Decree No. 185/2013/ND-CP.

2. The person authorized to impose administrative penalties in accordance with the Law on Handling Administrative Violations.

3. Other organizations and individuals related to administrative penalty proceedings in accordance with the law.

Article 3. Principles for Determining the Amount of Illicit Gain Obtained from Implementing Administrative Violations

1. The determination of the amount of illicit gain shall be carried out by the competent authority imposing administrative sanctions and recorded in the decision on administrative sanction or the decision on measures to remedy consequences.

2. The amount of illegal gains is determined from when the organization or individual commits an administrative violation until the time the violation ends or a decision on administrative penalty or a decision on remedial measures is made.

3. In cases where organizations or individuals commit multiple administrative violations, the amount of illicit gain obtained shall be determined separately for each administrative violation.

In cases where organizations or individuals repeatedly commit administrative violations, the amount of illicit gain obtained from implementing such violations shall be determined separately for each occurrence.

Article 4. Illicit Gain

The amount of illegal gains obtained from implementing administrative violations as prescribed in Article 37 of the Law on Handling Administrative Violations and Point d, Clause 5, Article 4 of Decree No. 185/2013/ND-CP is the benefit that organizations and individuals obtain from committing administrative violations, including:

1. Money.

2. Valuable papers.

3. Assets and valuable items.

Article 5. Determination of Illicit Gain in the Form of Money

1. The amount of illegal gains obtained in cash is the total amount of money that organizations and individuals obtain from the administrative violation.

2. The basis for determining the amount of money that the violating organization or individual obtains from committing administrative violations in cash equals the quantity of goods or volume of services transferred, sold, smuggled, destroyed in violation of regulations multiplied by the unit price. Specifically:

a) The quantity of goods or volume of services actually performed is determined based on the declaration of the violating organization or individual and the inspection and verification by the authorized authority to impose penalties.

b) The unit price is determined based on the documents and certificates of the violating organization or individual or the market price of similar goods or services.

In cases where the quantity, volume, or unit price cannot be determined, the amount of illegal gains obtained is the amount of money that the organization or individual has obtained.

3. In cases where goods that are prohibited, smuggled, counterfeit, or conditional business services are transferred, sold, smuggled, or destroyed in violation of regulations: the amount of money that the violating organization or individual obtains equals the quantity of goods or volume of services transferred, sold, smuggled, or destroyed in violation of regulations multiplied by the unit price.

4. In addition to goods and services specified in Clause 3 of this Article, in cases where other goods or services are transferred, sold, smuggled, or destroyed in violation of regulations: the amount of money that the violating organization or individual obtains equals the quantity of goods or volume of services transferred, sold, smuggled, or destroyed in violation of regulations multiplied by the unit price minus the direct costs constituting the goods or services (if the violating organization or individual has complete documents and certificates to prove the legality and validity of these costs).

Article 6. Determining the amount of illegal gains in the form of negotiable instruments

1. The amount of illegal gains obtained in the form of valuable papers is the total valuable papers that the violating organization or individual obtains from the administrative violation.

2. Valuable papers as prescribed in Clause 1 of this Article include:

a) Bonds

b) Promissory notes

c) Bills of exchange

d) Drafts

đ) Checks

e) Public debt instruments

g) Types of securities as prescribed by the Securities Law.

h) Other types of valuable papers as prescribed by specialized laws.

3. The amount of illegal gains is determined by the total face value of each type of valuable paper with the same denomination, according to the following formula:

Total value = face value₁ x quantity₁ + face value₂ x quantity₂ + ... + face value_{For power plants invested under the Build-Operate-Transfer (BOT) model, n is determined according to the operational period of the power plant stipulated in the BOT contract.} x quantity_{For power plants invested under the Build-Operate-Transfer (BOT) model, n is determined according to the operational period of the power plant stipulated in the BOT contract.}

Where:

a) Quantity₁ is the quantity of valuable papers with the same denomination in the first group;

b) Quantity₂ is the quantity of valuable papers with the same denomination in the second group;

c) Quantity_{For power plants invested under the Build-Operate-Transfer (BOT) model, n is determined according to the operational period of the power plant stipulated in the BOT contract.} is the quantity of valuable papers with the same denomination in the nth group.

4. In cases where valuable papers have been transferred, the amount of illegal gains is determined by the actual cash received at the time of transfer. In cases where valuable papers have been destroyed, the amount of illegal gains is determined based on the book value of the issuing organization at the time of destruction.

Article 7. Determination of the amount of illegal gains as property or valuable items

1. The amount of illegal gains in the form of property or valuable items is the property or valuable items obtained by organizations or individuals from administrative violations.

2. Property as defined in Clause 1 of this Article shall be determined in accordance with Articles 163, 174, 175, and 181 of the Civil Code.

3. Valuable items as defined in Clause 1 of this Article shall be determined in accordance with Articles 176, 177, 178, 179, and 180 of the Civil Code.

4. In cases where the property or valuable items are not prohibited goods, contraband, or counterfeit goods and have been transferred, sold, or destroyed before the authorized person issues the decision to handle them, the amount of illegal gains shall be determined by the equivalent market value of similar property or valuable items, or determined based on the book value of the property or valuable items (if there is no market value), or determined by the monetary value of the property or valuable items recorded on the export declaration or import declaration (if they are exported or imported goods) of the violating organization or individual after deducting direct costs constituting the goods according to Clause 4 of Article 5 of this Circular.

In cases where prohibited goods, contraband, or counterfeit goods have been transferred or sold before the authorized person issues the decision to handle them, the amount of illegal gains shall be the total amount of money received by the organization or individual when transferring such goods.

Article 8. Handling of illegal gains in cases of being allocated to the State Budget

The handling of illegal gains in the form of money, negotiable instruments, property, and valuable items obtained through the implementation of administrative violations for allocation to the state budget as stipulated in this Circular shall be carried out in accordance with the provisions of Government Decree No. 29/2014/NĐ-CP dated April 10, 2014, which stipulates the authority and procedures for establishing state ownership over assets and managing and disposing of assets that have established state ownership, and the Circular of the Ministry of Finance guiding this Decree.

Article 9. Effective Date

1. This Circular takes effect from November 25, 2014. In cases where an administrative penalty decision or a decision to apply remedial measures is made from the date this Circular takes effect, the determination of illegal gains obtained through the implementation of administrative violations for allocation to the state budget shall be carried out in accordance with the provisions of this Circular.

2. In cases where the regulatory legal documents cited for implementation in this Circular are amended, supplemented, or replaced, the citation shall be implemented in accordance with those amended, supplemented, or replaced documents.

During the implementation process, if any difficulties arise, please promptly report to the Ministry of Finance for consideration and resolution./