Joint Circular No. 21/2004/TTLT-BCA-TANDTC-VKSNDTC-BTP guides the prosecution of criminal responsibility for acts of illegally purchasing, selling, and using value-added tax invoices.

JOINT CIRCULAR

Guidelines for pursuing criminal responsibility for acts of buying, selling,

and using value-added tax invoices illegally

__________________

In order to pursue criminal responsibility accurately and consistently for acts of buying, selling, and using value-added tax invoices illegally, the Ministry of Public Security, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Justice have jointly issued the following guidelines:

1. Pursuit of criminal responsibility for acts of buying and using value-added tax invoices illegally:

1.1. Any person who buys a value-added tax invoice and uses it illegally to create false records to fraudulently obtain value-added tax refunds, where the amount of refund is five hundred thousand dong or more, or less than five hundred thousand dong but causes serious consequences or has been administratively punished for such acts or previously convicted of property theft offenses without having their criminal record expunged, shall be pursued for criminal responsibility under Article 139 of the Penal Code for the crime of fraud.

a. Amounts of value-added tax refunds from five hundred thousand VND upwards;

b. Amounts of value-added tax refunds below five hundred thousand VND, but causing serious consequences or having been administratively punished for the act of misappropriation or having been convicted of the crime of misappropriation of property, but not yet having had their criminal record expunged and still committing violations.

1.2. Any person who purchases a value-added tax invoice and uses it improperly to create false documents regarding the purchase of raw materials, fuel, materials, goods, etc., thereby misappropriating funds from agencies, organizations, or other individuals shall be subject to criminal responsibility as follows:

1.2. Any person who buys a value-added tax invoice and uses it illegally to create false records about purchasing raw materials, fuel, supplies, goods, etc., to fraudulently obtain money from organizations or individuals, shall be pursued for criminal responsibility as follows:

a. If the person holds a position, i.e., appointed, elected, contracted, or otherwise designated, with or without remuneration, tasked with performing a specific public duty and having certain powers while performing that duty, and abuses their position or power to fraudulently obtain money from an organization they are responsible for managing, where the amount obtained is five hundred thousand dong or more, or less than five hundred thousand dong but causes serious consequences or has been disciplined for such acts or previously convicted of property theft offenses without having their criminal record expunged, shall be pursued for criminal responsibility under Article 278 of the Penal Code for the crime of embezzlement.

a2. Amounts misappropriated below five hundred thousand VND, but causing serious consequences or having been disciplined for this behavior and still committing violations, or having been convicted of one of the offenses specified in Section A of Chapter XXI of the Criminal Code, but not yet having had their criminal record expunged and still committing violations.

b. If the offender does not fall under the guidance provided in point a sub-item 1.2 item 1 herein and misappropriates funds in any of the following cases, they shall be held criminally responsible for the offense of "fraudulent misappropriation of property" under Article 139 of the Criminal Code:

b1. Amounts misappropriated from five hundred thousand VND upwards;

b. If the person does not hold a position as described in point a of sub-item 1.2 of item 1 and fraudulently obtains money, where the amount obtained is five hundred thousand dong or more, or less than five hundred thousand dong but causes serious consequences or has been administratively punished for such acts or previously convicted of property theft offenses without having their criminal record expunged, shall be pursued for criminal responsibility under Article 139 of the Penal Code for the crime of fraud.

1.3. Any person who engages in the act of purchasing a value-added tax invoice and using it improperly to legitimize documents regarding illegal trade in goods shall be subject to criminal responsibility as follows:

a. If it can be proven that the act of illegally trading goods across borders falls under any of the following circumstances, they shall be held criminally responsible for the offense of "smuggling" under Article 153 of the Criminal Code:

a1. Goods with a value of one hundred million VND or more;

1.3. Any person who buys a value-added tax invoice and uses it illegally to legitimize false records regarding illegal trade in goods shall be pursued for criminal responsibility as follows:

a. If it can be proven that the illegal trade involves crossing borders and the value of the goods is one hundred million dong or more, or less than one hundred million dong but the person has been administratively punished for such acts or previously convicted of related offenses without having their criminal record expunged, and if not covered by Articles 193, 194, 195, 196, 230, 236, or 238 of the Penal Code, shall be pursued for criminal responsibility under Article 153 of the Penal Code for the crime of smuggling.

b1. Evading taxes of fifty million VND or more;

b2. Amounts of evaded taxes below fifty million VND, but having been administratively punished for tax evasion or having been convicted of the crime of tax evasion or one of the crimes specified in Articles 153, 154, 155, 156, 157, 158, 159, 160, 164, 193, 194, 195, 196, 230, 232, 236, and 238 of the Criminal Code, not yet having had their criminal record expunged and still committing violations.

1.4. Any person who engages in the act of purchasing a value-added tax invoice and does not fall under any of the circumstances guided in sub-items 1.1, 1.2, and 1.3 of item 1 herein, shall be subject to criminal responsibility as follows:

b. If it cannot be proven that the illegal trade involves crossing borders (i.e., only within the country) and the amount of tax evasion is fifty million dong or more, or less than fifty million dong but the person has been administratively punished for tax evasion or previously convicted of tax evasion or related offenses without having their criminal record expunged, shall be pursued for criminal responsibility under Article 161 of the Penal Code for the crime of tax evasion.

b. In cases where it cannot be proven that the value-added tax invoice was filled out completely as if goods were purchased (the value-added tax invoice remains intact as when issued), the purchaser shall be held criminally responsible for the offense of "buying and selling state agency documents" under Article 268 of the Criminal Code, if the number of value-added tax invoices is fifty or more (typically each invoice has three copies) or less than fifty, but having been administratively punished or having been convicted of the crime of misappropriation, buying and selling, destroying seals, documents of state agencies, social organizations, but not yet having had their criminal record expunged and still committing violations.

2. The pursuit of criminal responsibility for the act of illegally selling value-added tax invoices

1.4. Any person who buys a value-added tax invoice and does not fall under the circumstances specified in sub-items 1.1, 1.2, and 1.3 of item 1 shall be pursued for criminal responsibility as follows:

a. If it can be proven that when buying the value-added tax invoice, the invoice was fully filled out as if a transaction had occurred, the buyer shall be pursued for criminal responsibility under Article 181 of the Penal Code for the crime of storing, transporting, or circulating counterfeit valuable documents.

a. In case it is proven that when selling a value-added tax invoice, the value-added tax invoice was fully recorded as if goods had been bought and sold, then the seller shall be held criminally responsible for the offense of "concealing, transporting, circulating counterfeit securities" under Article 181 of the Criminal Code;

b. In case it cannot be proven that the value-added tax invoice was fully recorded as if goods had been purchased (the value-added tax invoice remains as issued), then the seller shall be held criminally responsible for the offense of "buying and selling documents of state agencies" under Article 268 of the Criminal Code, if the number of value-added tax invoices reaches fifty or more (typically each set has three copies) or less than fifty, but the seller has previously been administratively punished or convicted of the crime of appropriating, buying and selling, destroying seals or documents of state agencies or social organizations, but the criminal record has not yet been expunged and the offense is still committed.

3. Regarding investigative authority

The investigative authority for offenses related to the acts of buying, selling, and improperly using value-added tax invoices shall be carried out in accordance with the provisions of Article 110 of the Criminal Procedure Code. In cases of dispute over investigative authority, the People's Procuratorate with jurisdiction shall resolve such disputes.

4. Effectiveness of this Circular

This Circular shall take effect fifteen days from the date of publication in the Official Gazette.

During implementation, if there are difficulties or issues that have not been guided and require further explanation or supplementary guidance, please report to the Ministry of Public Security, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Justice for timely clarification or supplementary guidance./.