Joint Circular No. 68/2008/TTLT-BTC-BTP guiding the regime for the collection, submission, management, and use of enforcement fees

JOINT CIRCULAR

Guidelines on the Collection, Submission, Management, and Use of Enforcement Fees

 ______________________________

Pursuant to the Ordinance on Fees and Stamp Duties dated August 28, 2001;

Pursuant to the Ordinance on Civil Enforcement dated January 14, 2004;

Pursuant to Decree No. 173/2004/NĐ-CP dated September 30, 2004 of the Government on procedures, enforcement, and administrative penalties in civil enforcement;

Pursuant to Decree No. 57/2002/NĐ-CP dated June 3, 2002 and Decree No. 24/2006/NĐ-CP dated March 6, 2006 amending and supplementing certain articles of Decree No. 57/2002/NĐ-CP dated June 3, 2002 of the Government detailing the implementation of the Ordinance on fees and stamp duties;

The Ministry of Finance and the Ministry of Justice issue guidelines on the collection, submission, management, and use of enforcement fees as follows:

I. SCOPE OF APPLICATION

1. The person entitled to enforcement who has a request for enforcement must pay enforcement fees for the amount of enforcement based on the value of assets or money that they actually receive according to the guidelines set forth in this Circular.

2. No enforcement fees shall be collected in the following cases:

a) Money subject to enforcement includes the following items:

- Maintenance payments;

- Compensation for damage to life, health, reputation, and personality;

- Wages and labor remuneration;

- Unemployment benefits, severance pay; social insurance premiums; compensation for damages due to termination of employment contracts;

b) In cases where the person requesting enforcement has a request for enforcement with a total amount of money or asset value under 1,000,000 (One million dong).

c) Other cases as prescribed by law, including:

- The person entitled to enforcement receives tangible assets that only have spiritual significance, are attached to the identity of the recipient, cannot be exchanged, and cannot be valued monetarily;

- Money subject to enforcement is funds for implementing state social programs such as poverty alleviation, support for remote, difficult, and extremely difficult areas, direct funding for healthcare and education services without commercial purposes, and key national socio-economic programs;

- Payments made to creditors pursuant to the Bankruptcy Law dated June 15, 2004;

- Cases where the court determines there is no valuation basis and does not collect enforcement fees when adjudicating.

II. AMOUNT OF COLLECTION, COLLECTION, SUBMISSION, MANAGEMENT, AND USE OF ENFORCEMENT FEES

1. Collection levels

The amount of enforcement fees is calculated at 2.5% (Two point five percent) of the actual amount of money or asset value received but shall not exceed 100 million dong per request for enforcement.

2. Matters concerning the collection, submission, management, and use of enforcement fees

a) The enforcement agency responsible for organizing the enforcement of the case is the agency collecting enforcement fees (hereinafter referred to as the fee collection agency). The head of the enforcement agency issues a decision to collect enforcement fees. For cases requiring multiple collections of enforcement fees, the head of the enforcement agency issues a separate decision for each collection.

b) When submitting a request for enforcement, the person entitled to enforcement who has a request for enforcement does not need to pay enforcement fees immediately. The fee collection agency may only collect enforcement fees when disbursing money or assets subject to enforcement to the person entitled to enforcement, specifically as follows:

b.1) In the case of disbursing money: When disbursing, the fee collection agency may deduct the enforcement fees that the person entitled to enforcement must pay from the amount actually received by the person subject to enforcement.

b.2) In the case of transferring assets: Within no more than 15 (fifteen) working days before the date of planned transfer of assets, the fee collection agency is responsible for issuing a notice to collect enforcement fees that the person entitled to enforcement must pay according to the guidelines set forth in this Circular.

- If the court's decision does not declare the value of the asset or declares it but it is no longer appropriate (changes by more than 20%) compared to the market price at the time of fee collection, the fee collection agency shall establish a valuation committee to determine the enforcement fees that the person entitled to enforcement must pay. Valuation costs shall be borne by the enforcement agency from the retained enforcement fees.

- If transferring assets to a person entitled to enforcement who has not paid enforcement fees, the fee collection agency may seize and freeze the assets subject to enforcement and set a deadline of no more than 15 (fifteen) days from the date of asset transfer for the person entitled to enforcement to pay the enforcement fees. Beyond this deadline, if the person entitled to enforcement fails to pay the enforcement fees, the fee collection agency may apply coercive measures to enforce the judgment, including selling the transferred assets through auction to recover the enforcement fees. Valuation and auction costs shall be borne by the person entitled to enforcement.

The valuation, revaluation, and auction of assets to recover enforcement fees shall be carried out in accordance with the laws on valuation and auction of assets for enforcement.

b.3) When collecting fees, the fee collection agency must issue and provide a receipt for the payment of fees to the payer in accordance with the current regulations of the Ministry of Finance on the issuance, management, and use of tax stamps.

c) For cases involving the division of joint property, inheritance; division of property in divorce; cases where both parties have rights and obligations regarding the assets subject to enforcement (only one party needs to submit a request for enforcement), the person receiving the assets must pay enforcement fees corresponding to the value of the assets actually received based on the total amount of enforcement fees payable by all parties.

Example 1: There are three people inheriting a property worth 1 billion dong. The first person receives 20% of the property value. The second person receives 30% of the property value. The third person receives 50% of the property value. The enforcement fees payable by each person according to the above provisions are determined as follows:

- Determine the total enforcement fees payable: 2.5% x 1 billion dong = 25 million dong.

- Determine the enforcement fees payable by each person:

+ The first person must pay = 20% x 25 million dong = 5 million dong.

+ The second person must pay = 30% x 25 million dong = 7.5 million dong.

+ The third person must pay = 50% x 25 million dong = 12.5 million dong.

Example 2: In the divorce case between Mr. A and Mrs. B, in the division of assets, Mrs. B received a house worth 500 million VND and had to pay Mr. A 200 million VND. In this case, the enforcement fee that each party must pay is calculated based on the actual value of the assets received by each person, specifically as follows:

The enforcement fee that Mr. A must pay is: 2.5% x 200 million VND = 5 million VND;

The enforcement fee that Mrs. B must pay is: 2.5% x (500 - 200) million VND = 7.5 million VND.

d) For cases where the person entitled to enforcement has filed a request for enforcement but later the parties voluntarily enforce the judgment, the following shall be implemented:

- If the person entitled to enforcement does not withdraw their request for enforcement and the enforcement agency has issued a decision to enforce the judgment compulsorily, then the fee collection agency will still collect the enforcement fee according to the provisions of this Circular.

- If the person entitled to enforcement withdraws their request for enforcement, it shall be handled as follows:

+ If the person entitled to enforcement has a document renouncing the rights and interests they are entitled to under Clause 3, Article 28 of the Civil Enforcement Ordinance or withdraws their request for enforcement before the compulsory enforcement decision is issued, then the fee collection agency will not collect the enforcement fee;

+ If the person entitled to enforcement does not renounce the rights and interests they are entitled to under Clause 3, Article 28 of the Civil Enforcement Ordinance and the withdrawal of the request occurs after the compulsory enforcement decision is issued, then the person entitled to enforcement must pay one-third of the enforcement fee that would have been paid if the request had not been withdrawn;

+ If the person entitled to enforcement does not renounce the rights and interests they are entitled to under Clause 3, Article 28 of the Civil Enforcement Ordinance and the withdrawal of the request occurs after the enforcement agency has completed the compulsory enforcement and collected money or property to pay or deliver to the person entitled to enforcement, then the fee collection agency will still collect the enforcement fee according to the provisions of this Circular.

đ) For cases where, according to the court's judgment or decision, the person entitled to enforcement is entitled to enforce an amount of money or property valued at 1,000,000 VND or more, but the person entitled to enforcement requests enforcement of a different amount or value of property, it shall be handled as follows:

- In the case where the person entitled to enforcement only requests enforcement of an amount of money or property valued at 1,000,000 VND or less and has a document renouncing the remaining amount or value of property, they do not have to pay the enforcement fee.

- In the case where the person entitled to enforcement requests enforcement in multiple installments with a total amount of money or value of property requested being over 1,000,000 VND, the enforcement fee is calculated based on the total amount of money or value of property received. The enforcement fee payable for each installment is determined corresponding to the amount of money or value of property actually received for each installment, similar to the method of calculating the enforcement fee payable in the case of dividing joint property, inheritance, or divorce property as stipulated in Point c, Section of this Article.

e) In the case where the enforcement agency has enforced money or property, but must pay the person entitled to enforcement in multiple installments as prescribed by law, the enforcement fee payable is calculated based on the total amount of money or value of property actually received. The enforcement fee payable for each installment is determined corresponding to the amount of money or value of property actually received for each installment, similar to the method of calculating the enforcement fee payable in the case of dividing joint property, inheritance, or divorce property as stipulated in Point c, Section of this Article.

g) In the case of a mistake regarding the enforcement fee payable, the enforcement fee will be recalculated according to the regulations, and the person entitled to enforcement must pay the additional amount if the enforcement fee already paid is lower than the recalculated enforcement fee, or the person enforcing the judgment will be refunded the excess amount if the enforcement fee already paid is higher than the recalculated enforcement fee.

The fee collection agency is responsible for collecting any additional enforcement fees that the person entitled to enforcement has not paid or processing the refund of any overpaid enforcement fees. If the person entitled to enforcement refuses to pay the outstanding enforcement fee voluntarily, the enforcement agency has the right to apply compulsory enforcement measures to collect the additional enforcement fee.

h) In the case of delegated enforcement related to the payment of enforcement fees, the delegated enforcement agency must also delegate the content regarding the payment of enforcement fees, including specifying the enforcement fees already paid and the enforcement fees still to be collected (if any).

The agency receiving the delegation must base its actions on the enforcement fees previously paid by the person entitled to enforcement to continue collecting enforcement fees and manage and use the collected fees according to the provisions and guidance in this Circular.

i) The enforcement fee is a revenue belonging to the state budget, managed and used as follows:

i.1) The fee collection agency is allowed to retain 70% (seventy percent) of the collected enforcement fees to cover costs supporting the enforcement process and fee collection. The specific usage is as follows:

- The fee collection agency may use 50% (fifty percent) of the collected enforcement fees for the following purposes:

+ Paying remuneration, wages, allowances, and contributions according to current regulations for those participating in enforcement activities (excluding salary expenses for civil servants who are already receiving salaries from the state budget according to the prescribed regulations);

+ Providing subsidies to officials at all levels involved in cooperation for enforcement, the level of which is decided by the head of the civil enforcement agency according to the internal financial regulations of the civil enforcement agency as stipulated in Decree No. 130/2005/NĐ-CP dated October 17, 2005 of the Government, current guiding documents, and this Circular.

+ Direct costs for enforcing judgments and collecting fees such as office supplies, office materials, telephone, electricity, water, travel expenses, official duties expenses according to current standards and norms;

+ Regular maintenance and major repair costs for assets, machinery, and equipment directly serving judgment enforcement and fee collection;

+ Costs for purchasing materials, raw materials, conference summaries, mid-term reviews, training, directing business operations, and other expenses directly related to judgment enforcement and fee collection;

+ Costs for purchasing, regular maintenance, and major repairs of fixed assets serving judgment enforcement and fee collection;

+ Reward and welfare costs for staff and civil servants of the judgment enforcement agency and fee collection agency, on average not exceeding three months' actual salary if this year's collection exceeds last year's, and two months' actual salary if this year's collection is lower than or equal to last year's, provided that the total annual expenditure does not exceed five percent of the total amount of enforcement fees collected by the units;

- The fee collection agency may open a "temporary holding account for fees" at the State Treasury where the fees are collected to monitor and manage enforcement fees. Based on the fee collection situation (the amount of fees collected, the distance from the fee collection location to the State Treasury...), the fee collection agency must deposit the collected enforcement fees into the temporary holding account on a daily or weekly basis and must organize separate accounting for this income according to the accounting regulations for administrative and public service units;

- The fee collection agency is responsible for depositing twenty percent (20%) of the collected fees into the account of the Civil Enforcement Agency under the Ministry of Justice (or the Enforcement Agency under the Ministry of National Defense for agencies collecting fees from military regions and equivalent agencies) at the State Treasury simultaneously with the deposit of the collected fees into the temporary holding account. This allows the Civil Enforcement Agency under the Ministry of Justice (or the Enforcement Agency under the Ministry of National Defense) to adjust funds for fee collection agencies in areas where collected fees do not ensure sufficient operating funds according to the provisions of point i.1 clause of this article. The agency implementing the adjustment of enforcement fees is permitted to spend management costs for adjusting enforcement fees (such as office supplies, accounting books, monitoring, compiling data on the allocation of enforcement fees, communication, inspection, reporting... directly related to the management and adjustment of enforcement fees); reward and welfare costs for staff and civil servants, on average not exceeding two months' actual salary, but the total annual expenditure shall not exceed five percent (5%) of the total amount of enforcement fees collected by the units;

- Annually, the fee collection agency must settle accounts based on actual figures. After settling accounts according to regulations, any unspent enforcement fees in the year may be carried over to the next year for continued spending according to prescribed regulations;

i.2) Fee Collection Agency is responsible for declaring, paying, and settling the remaining thirty percent (30%) of the fees into the state budget according to the chapter, type, and item corresponding to section 044, sub-item 14 of the current State Budget Manual;

k) In cases where the person subject to enforcement does not pay the enforcement fee, they will be subject to administrative penalties or criminal prosecution according to the provisions of the law;

III. EXEMPTIONS AND REDUCTIONS OF ENFORCEMENT FEES

The person subject to enforcement may be exempted or have their enforcement fees reduced as follows:

1. A fifty percent (50%) reduction in enforcement fees for persons subject to enforcement who are economically disadvantaged. Economically disadvantaged persons eligible for a reduction in enforcement fees are those meeting the poverty standard as stipulated in Decision No. 170/2005/QĐ-TTg dated July 8, 2005, of the Prime Minister regarding the poverty standard applicable for the period 2006-2010;

2. Exemption from enforcement fees for individuals specified in Article 2 of the Ordinance on Preferential Treatment for Persons Contributing to the Revolution dated June 29, 2006, and its implementing guidelines;

3. Exemption from enforcement fees for persons subject to enforcement who are single, disabled, or suffering from prolonged illness;

4. To be eligible for exemption or reduction of enforcement fees, the party must submit a request for exemption or reduction of enforcement fees according to Form 1 issued together with this Circular (accompanied by relevant documents if available), confirmed by one of the following authorities or organizations: People's Committee of Commune, Ward, Town, organization, or place of residence, work, or living of the person concerned, or confirmed by a hospital or health authority at the district level or higher (in cases of prolonged illness). The request for exemption or reduction of enforcement fees (accompanied by relevant documents if available) must be submitted to the fee collection agency. The head of the fee collection agency receiving the application shall examine and issue a decision on exemption or reduction of enforcement fees according to this Circular;

5. If the applicant is not granted an exemption or reduction of enforcement fees, the fee collection agency must notify the party of the decision and provide reasons for the denial of exemption or reduction of enforcement fees. The time limit for considering requests for exemption or reduction of enforcement fees shall not exceed fifteen (15) working days from the date of receipt of the application;

IV. IMPLEMENTATION

1. This Circular takes effect fifteen (15) days after its publication in the Official Gazette. This Circular replaces Circular Joint Circular No. 43/2006/TTLT-BTC-BTP dated May 19, 2006, of the Ministry of Finance and the Ministry of Justice guiding the system of collection, payment, management, and use of enforcement fees;

2. Other issues related to the collection, payment, management, use, and public disclosure of the fee collection system not covered in this Circular shall be implemented according to the guidance provided in Circular No. 63/2002/TT-BTC dated July 24, 2002, and Circular No. 45/2006/TT-BTC dated May 25, 2006, amending and supplementing Circular No. 63/2002/TT-BTC dated July 24, 2002, of the Ministry of Finance guiding the implementation of laws on fees and charges;

3. Complaints and appeals, and the resolution of complaints and appeals regarding enforcement fees shall be carried out in accordance with the current laws on civil enforcement and laws on fees and charges;

4. During the implementation process, if there are any difficulties, organizations and individuals are requested to promptly report to the Ministry of Finance and the Ministry of Justice for review and supplementary guidance./.