Circular No. 55/2021/TT-BTC guiding the management, allocation, advance payment, and reimbursement of enforcement costs against commercial legal entities.

CIRCULAR

Guidelines for managing, allocating, advancing, and refunding costs for compulsory enforcement against commercial entities

enforcement of judgments against commercial legal persons

On the basis of The State Budget Law dated June 25, 2015;

On the basis of The Criminal Enforcement Law dated June 14, 2019;

Pursuant to Decree No. 163/2016/NĐ-CP dated December 21, 2016 of the Government detailing the implementation of certain provisions of the State Budget Law;

Pursuant to Decree No. 44/2020/NĐ-CP dated April 8, 2020 of the Government on compulsory enforcement against commercial entities;

Pursuant to Decree No. 87/2017/NĐ-CP dated July 26, 2017 of the Government on the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Department of Defense and Public Security Finance,

The Minister of Finance issues this Circular guiding the management, allocation, advance payment, and refund of costs for compulsory enforcement against commercial entities.

Article 1. Scope of Regulation

This Circular guides the management, allocation, advance payment, and refund of costs for compulsory enforcement against commercial entities (hereinafter referred to as "compulsory enforcement") as stipulated in Article 44 of Decree No. 44/2020/NĐ-CP dated April 8, 2020 of the Government on compulsory enforcement against commercial entities (hereinafter referred to as "Decree No. 44/2020/NĐ-CP").

Article 2. Applicability

1. The authority issuing the compulsory enforcement decision.

2. The agency of the authority issuing the compulsory enforcement decision (hereinafter referred to as the "issuing agency"), and the agency enforcing the compulsory enforcement decision.

3. Commercial entity not complying with or not fully complying with court judgments or decisions that have become legally binding and subject to compulsory enforcement measures (hereinafter referred to as the "enforcement target").

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

5. State management agencies for commercial entities and other agencies, organizations, and individuals related to compulsory enforcement.

Article 3. Principles of managing compulsory enforcement costs

1. The commercial entity subject to compulsory enforcement must bear all costs for compulsory enforcement activities as provided for in Article 43 of Decree No. 44/2020/NĐ-CP.

2. The commercial entity subject to compulsory enforcement has the responsibility to pay all compulsory enforcement costs to the issuing agency in accordance with the provisions of this Circular.

Article 4. Content of compulsory enforcement costs

1. Determination of compulsory enforcement costs shall be carried out in accordance with the provisions of Article 43 of Decree No. 44/2020/NĐ-CP.

2. Contents of expenditure:

a) Costs specified in Clause 1 of this Article shall be based on contracts, contract settlements, property handover certificates (for costs of retaining or preserving seized assets), invoices, and legitimate and valid expense receipts according to current regulations and approved by the authority issuing the compulsory enforcement decision.

b) Special allowance for persons directly mobilized to participate in compulsory enforcement and protection during compulsory enforcement is as follows:

The cost for the person in charge of enforcing the compulsory enforcement decision from the enforcement agency is VND 150,000 per person per day participating in compulsory enforcement, and the cost for persons mobilized to participate in enforcing the compulsory enforcement decision is VND 100,000 per person per day participating in compulsory enforcement.

Article 5. Allocation of compulsory enforcement costs

The allocation of compulsory enforcement costs against commercial entities shall be carried out in accordance with the laws on state budget and Decree No. 11/2020/NĐ-CP dated January 20, 2020 of the Government on administrative procedures under the National Treasury sector.

Article 6. Submission and Advance Payment of Enforcement Costs

1. Prior to organizing enforcement actions, the authority issuing the enforcement decision approves the budget for enforcement costs. The budget for enforcement costs is established based on the enforcement measures to be applied, the time and location of enforcement, the enforcement plan, and the participating forces (number and composition) serving enforcement.

After approval, the budget for enforcement costs must be sent to the subject of enforcement along with the enforcement decision, and the decision regarding the deduction of funds from the commercial entity's account to pay for enforcement costs (for account freezing measures), including a 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. Simultaneously, the authority issuing the enforcement decision must send the budget for enforcement costs to credit institutions, state treasuries, securities companies managing the accounts of the commercial entities subject to judicial measures, and the competent enforcement authorities at the same level (in cases where Article 42 of Decree No. 44/2020/NĐ-CP applies).

In cases where enforcement is carried out through account freezing measures, the head of the criminal enforcement agency issues a decision to deduct funds from the commercial entity's account, with the deducted amount not exceeding the sum required to enforce judicial measures and the costs for organizing enforcement. Upon receiving the decision to deduct funds from the commercial entity's account, the credit institution, state treasury, or securities company managing the commercial entity's account must deduct the funds and transfer them to the competent criminal enforcement agency to organize enforcement of judicial measures.

2. In cases where enforcement costs cannot be collected from the subject of enforcement due to their unwillingness to pay or other objective reasons, based on the approved budget for enforcement costs, the authority enforcing the enforcement decision (or the competent enforcement authority at the same level in cases where Article 42 of Decree No. 44/2020/NĐ-CP applies) may request the authority issuing the enforcement decision to advance the enforcement costs from the enforcement budget to implement it. The maximum advance equals the enforcement budget allocated by the authority issuing the enforcement decision.

3. The advance application file includes the annual budget approved by the competent authority, the document approving the budget for enforcement costs, and the budget withdrawal form (advance) according to regulations.

Article 7. Settlement and Refund of Advanced Enforcement Costs

1. When the enforcement decision has been fully executed, the authority enforcing the enforcement decision (or the competent enforcement authority at the same level in cases where Article 42 of Decree No. 44/2020/NĐ-CP applies) submits the settlement of enforcement costs for approval by the authority issuing the enforcement decision. The authority issuing the enforcement decision is responsible for sending the approved settlement of enforcement costs to the subject of enforcement (if the subject of enforcement has already paid the enforcement costs).

If the approved settlement of enforcement costs is lower than the amount paid by the subject of enforcement, the authority issuing the enforcement decision is responsible for refunding the difference to the subject of enforcement. If the approved settlement of enforcement costs exceeds the amount paid by the subject of enforcement, the subject of enforcement is responsible for paying the remaining amount to the authority issuing the enforcement decision.

2. In cases where advanced enforcement costs have been made according to Article 6, Clause 2 of this Circular, based on the approved settlement of enforcement costs, the authority issuing the enforcement decision shall notify the subject of enforcement in writing about the approved settlement of enforcement costs to pay the enforcement costs (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 ten days from receipt of the notification of the approved settlement of enforcement costs, the subject of enforcement is responsible for paying the enforcement costs to the authority issuing the enforcement decision. Upon collecting the money from the subject of enforcement, the authority issuing the enforcement decision must process the refund to the state budget.

3. In cases where enforcement costs are obtained from the proceeds of asset auctions (as stipulated in Articles 32 and 33 of Decree No. 44/2020/NĐ-CP), after deducting auction expenses according to the law on asset auctions, the authority enforcing the enforcement decision (or the competent enforcement authority at the same level in cases where Article 42 of Decree No. 44/2020/NĐ-CP applies) will refund the enforcement costs. If the subject of enforcement has already paid the enforcement costs, the authority enforcing the enforcement decision (or the competent enforcement authority at the same level in cases where Article 42 of Decree No. 44/2020/NĐ-CP applies) will return the enforcement costs from the auction proceeds to the subject of enforcement.

4. In cases where it is impossible to recover enforcement costs due to the subject of enforcement being bankrupt or dissolved without funds or assets to pay enforcement costs, the authority enforcing the enforcement decision reports to the authority issuing the decision according to Clause 5 of this Article.

5. Annually, when preparing the state budget, the authority issuing the enforcement decision reports on the use of temporarily advanced funds for enforcement, including: the amount of funds advanced, the amount recovered, the amount unrecovered, the amount unrecoverable (if any), reasons for non-recovery, and recommendations to higher-level management agencies and financial authorities at the same level.

The procedure for refunding advanced enforcement costs for administrative violation penalties follows the provisions of Article 6, Clause 3 of this Circular and current laws on refunding advanced budgets.

Article 8. Budget preparation, implementation, and settlement

1. The annual regular budget preparation, implementation, and settlement of the agency issuing enforcement decisions shall be carried out in accordance with the provisions of the State Budget Law and guiding documents. Enforcement expenses are allocated within the annual budget of the agency issuing enforcement decisions.

2. At the end of the year, upon completion of the period 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 enforcement costs will be recovered by transferring them into the next year's advance payment within the scope of the annual budget of the agency issuing enforcement decisions.

Article 9. Effective Date

1. This Circular takes effect from August 25, 2021.

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./.