Thông tư 28/2008/TT-BTC

CIRCULAR

GUIDING THE REGISTRATION OF PROFESSIONAL PRACTICE OF PROVIDING TAX PROCEDURE- RELATED SERVICES AND THE MANAGEMENT OF THOSE PROFESSIONAL PRACTICE ACTIVITIES, THE ORGANIZATION OF EXAMINATION FOR, GRANT AND WITHDRAWAL OF, PRACTICE CERTIFICATES

Pursuant to the November 29, 2005 Enterprise Law;
Pursuant to the November 29, 2006 Tax Administration Law;
Pursuant to the Government’s Decree No. 85/2007/ND-CP of May 25, 2007, detailing and guiding the implementation of a number of articles of the Tax Administration Law;
Pursuant to the Government’s Decree No. 77/2003/ND-CP of July 1, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;
The Ministry of Finance guides the registration of professional practice of providing tax procedure-related services and the management of those service activities, the organization of examination for, grant and withdrawal of, practice certificates.

I. GENERAL PROVISIONS

1. Scope and subjects of application:

1.1. This Circular applies to:

a/ Service enterprises set up and operating under the Enterprise Law, which satisfy all the conditions prescribed for business organizations providing tax procedure-related services (below collectively referred to as tax agents) under Clause 4, Article 20 of the Tax Administration Law.

b/ Persons sitting exams for tax procedure-related service practice certificates.

c/ Tax procedure-related service practitioners working for tax agents (below collectively referred to as tax agent staff).

d/ Organizations and individuals using services provided by tax agents.

e/ Tax officers and tax offices of all levels.

1.2. This Circular does not apply to:

a/ Taxpayers carrying out tax procedures by themselves.

b/ Customs agents carrying out tax procedures for export goods and import goods, which shall comply with legal provisions on conditions for registration and operation of customs procedure-related agents.

2. Interpretation of terms:

Terms referred to in this Circular are construed as follows:

2.1. Tax procedure-related services mean the tax agents’ activities of carrying out procedures for tax registration, declaration, payment, finalization and tax-related complaints, for compilation of dossiers of request for tax exemption, reduction or refund on behalf of taxpayers under the Tax Administration Law and concluded service contracts.

2.2. Tax agent staff mean persons possessing tax procedure-related service practice certificates granted by the General Department of Taxation and working for tax agents.

2.3. Exam sitters mean Vietnamese or foreigners allowed to reside in Vietnam for one year or longer and fully meeting the exam-sitting conditions prescribed in Clause 1, Section IV of this Circular.

II. REGISTRATION OF PROFESSIONAL PRACTICE OF PROVIDING TAX PROCEDURE-RELATED SERVICES

1. Conditions on registration of tax agent staff:

A tax agent staff member must fully satisfy the following conditions:

1.1. Being a Vietnamese citizen or foreign national allowed to live and work in Vietnam for one year or longer (counting from the time of professional practice registration), excluding cases defined in Clause 2, Section II of this Circular.

1.2. Having professional quality and ethics, being honest, having sense of strictly observing the State’s law.

1.3. Possessing tax procedure-related service practice certificate granted by the General Department of Taxation.

1.4. Being a founding member of, or working under a labor contract in, a business organization providing services of carrying out tax procedures.

2. Cases of disallowance for registration of tax agent staff:

Individuals falling in one of the following cases may not register as tax agent staff:

2.1. Persons who are restricted in or lose their civil act capacity;

2.2. Persons who are being examined for penal liability, serving their imprisonment sentences or have been sentenced for economic offenses, or finance- or accountancy position-related offenses and their criminal records have not yet been wiped out.

2.3. Tax agent staff members whose tax procedure-related service practice certificates have been withdrawn indefinitely or who are in the period of being handled in form of work suspension for their violations.

2.4. Incumbent officials and public employees defined by the law on officials and public employees; officials and public employees who have retired from their positions and are being in the business disallowance period prescribed by the Government’s Decree No. 102/2007/ND-CP of June 14, 2007, defining the period of disallowed business in the domains under their respective management for officials and public employees after retiring from their positions.

3. Tax agent staff registration:

3.1. A person possessing a tax procedure-related service practice certificate may only register to work as a tax agent staff member for one tax agent at a time.

3.2. Tax agent staff registering their professional practice for the first time in a tax agent must compile dossiers of tax agent staff registration and submit them to the tax agents. Such a dossier comprises:

- An application for professional practice registration (made according to a set form).

- The tax procedure-related service practice certificate (the notarized copy).

- One 3 cm x 4 cm photo taken within 6 months before the date of submitting the professional practice registration dossier.

3.3. Annually before November 30, tax agents shall sum up the lists of their staff registering to work at the tax agents in the following year and send them to the General Department of Taxation together with the tax agent staff registration dossiers.

Tax agent staff who have registered for professional practice at their tax agents in the preceding year and continue to work for those tax agents in the following year are not required to make new dossiers. Tax agents shall report the lists of such staff to the General Department of Taxation (made according to a set form).

3.4. Tax agents shall additionally register the lists of tax agent staff who are newly recruited or granted tax procedure-related service practice certificates with the General Department of Taxation (made according to a set form), enclosed with the tax agent staff registration dossiers. Tax agent staff member may practice their profession only when their names are included in the tax agent staff lists publicized by the General Department of Taxation on its website.

3.5. Tax agents shall notify the General Department of Taxation of the lists of staff who have moved to other work places, quitted their jobs, retired, died or failed to satisfy the professional practice conditions prescribed by law (made according to a set form) within 10 days after such staff officially retire from working at their tax agents.

3.6. Tax agents take responsibility before law for the examination and certification of conditions when registering the professional practice for their staff.

4. Professional practice registration dossiers and procedures applicable to tax agents

Tax agents must fully satisfy the conditions prescribed in Clause 4, Article 20 of the Tax Management Law. Before commencing their operation, tax agents shall compile the professional practice registration dossiers and send them to the General Department of Taxation. Such a dossier comprises:

-The business registration certificate stating the business line of providing tax procedure-related services and the tax registration certificate (the notarized or authenticated copy).

- The list of tax agent staff working at the tax agent (made according to a set form), enclosed with the professional practice application of every staff member.

- The tax procedure service practice certificates of all tax agent personnel on the registered list (notarized copies).

- One 3 cm x 4 cm photo of the staff member registering for professional practice, taken at the time of making the professional practice registration application.

III. MANAGEMENT OF PROFESSIONAL PRACTICE ACTIVITIES OF TAX AGENTS

1. Responsibilities of tax offices at different levels:

1.1. The General Department of Taxation:

a/ To organize exams and grant tax procedure- related service practice certificates nationwide.

b/ To organize training and retraining courses on tax and accountancy law for persons who sit for exams for tax procedure-related service practice certificates; for tax agent staff annually or upon amendment, supplementation or promulgation of tax law.

c/ To receive and manage dossiers of registration of tax agents and tax agent staff.

d/ To certify the lists of registrants for tax agent practice.

e/ To suspend the activities of providing the tax procedure-related services of law-violating tax agents and to notify such to tax agencies at all levels.

f/ To suspend and withdraw the practice certificates of tax agent staff members and delete their names from the lists of tax agent staff members.

g/ To publicly notify:

- The lists of tax agents, tax agent staff, that have made the professional practice registration, to tax offices of all levels and on the website of the General Department of Taxation, by December every year;

- The additional lists of tax agents and tax agent staff, that have make new professional practice registration or stop their professional practice activities, to the tax offices of all levels and on the website of the General Department of Taxation within 10 days, after the receipt of complete and valid dossiers.

- The lists of tax agents suspended from operation, tax agent staff suspended from professional practice or having their practice certificates withdrawn and the suspension duration to the tax offices of all levels and on website of the General Department of Taxation.

- The public notification covers the names of tax agents, year of establishment, headquarter addresses, the number of tax agent staff members, their full names, the serial numbers of their practice certificates and other necessary information related to the tax agents and tax agent staff.

h/ To inspect, examine and handle violations in the observance of law and provisions of this Circular by tax agents.

i/ To make sum-up reports and annual assessment of activities of tax agent staff and tax agents.

j/ Upon receipt of exam-sitting dossiers, tax agent personnel registration dossiers, professional practice registration dossiers of tax agents, if realizing that the dossiers are incomplete or contrary to regulations, the General Department of Taxation shall notify such in writing to the exam sitters and tax agents within 7 days after the receipt of dossiers.

1.2. Tax Departments and Sub-Departments:   

a/ To post up the lists of tax agents, tax agent staff at their respective headquarters.

b/ To manage, examine and inspect according to their respective functions activities of tax agent staff and tax agents in their respective localities according to regulations of the General Department of Taxation and handle violations according to law.

c/ To urge tax agents to make annual reports on operation of tax agents in their areas and sum up reports and assessment on activities, to give suggestions; the Tax Sub-Departments send them to the Tax Departments before April 15 every year and the Tax Departments send them to the General Department of Taxation before April 30 every year.

2. Rights and responsibilities of tax agents:

2.1. Rights of tax agents:

When performing service contracts for carrying out tax-related procedures, tax agents have the following rights:

a/ To carry out tax-related procedures under contracts signed with taxpayers.

b/ To request tax-paying organizations and individuals to supply fully and accurately vouchers, dossiers, documents and necessary information related to the carrying out of tax-related procedures under contracts concluded between the two parties.

c/ To be provided by tax offices at different levels with free guidance on administrative procedures, with briefings on new tax regulations, with periodical professional training and retraining and with technical support when making electronic tax declaration.

d/ To exercise taxpayers’ rights under the Tax Administration Law and contracts signed with taxpayers.

2.2. Responsibilities of tax agents:

a/ To enter into written contracts with tax-paying organizations or individuals on the authorized scope of tax procedures, the authorization duration, liabilities of the parties and other contents agreed upon by the two parties, which are inscribed in the contracts and not contrary to law. Only tax agents that have already registered their professional practice with the General Department of Taxation and are on the lists of registered tax agents publicized on the website of the General Department of Taxation can perform the contracts on tax procedure-related services.

b/ To notify in writing the tax offices directly managing the taxpayers of the contracts on tax procedure-related services, the authorized scope of work related to tax procedures, the authorization duration.

c/ To declare, pay and settle tax, to compile dossiers on tax amounts proposed for exemption, reduction or refund under the Tax Administration Law and relevant laws.

- When carrying out the tax-related procedures, the tax agents shall fill in the tax dossiers signed by their respective representatives at law, append their seals on tax declaration papers, tax payment vouchers, tax dossiers, tax settlement dossiers, tax refund dossiers, tax exemption or reduction dossiers, and the tax dossiers must be signed by tax agent staff members directly providing the services, based on the contracts signed between the tax agents and tax-paying organizations or individuals. When signing on tax dossiers, tax agent staff members must clearly inscribe their full names and serial numbers of their professional practice certificates issued by the General Department of Taxation.

d/ To supply tax management offices with documents and vouchers in order to prove the accuracy of the tax declaration, payment, settlement, the tax amounts proposed for exemption, reduction or refund for taxpayers.

e/ Not to connive with tax officers or taxpayers in order to commit tax evasion or frauds. If tax agents connive with tax-paying organizations or individuals in, or commit by themselves acts of, evading tax, declaring tax inadequately, violating tax-related procedures, the tax-paying organizations or individuals shall bear responsibility before law for above violations. The tax agents shall bear joint responsibility and pay damages under contracts concluded with the tax-paying organizations or individuals.

f/ To report in writing to tax offices on the following:

- By March 31 every year, their activities in the preceding year to the General Department of Taxation (made according to a set form) and the tax offices of the localities where they are headquartered, as well as existing problems, remedies and proposals to tax offices.

- The provision of tax procedure-related services and other necessary information in service of management upon unexpected written request of the General Department of Taxation.

- The change of appellation, headquarters, transaction bureaus, tax agency registration contents and replacement of tax agent staff members to the General Department of Taxation within 10 days after such a change.

g/ Annually, tax agents send their staff members to retraining courses organized by the General Department of Taxation.

IV. ORGANIZATION OF EXAMS FOR, GRANT OF TAX PROCEDURE-RELATED SERVICE PRACTICE CERTIFICATES

1. Exam-sitting conditions

Persons sitting for exams for tax procedure-related service practice certificates must satisfy the following conditions:

1.1. Having clear biography, good quality and ethics, being honest, having sense of strict law observance and not being subjects defined in Clause 2, Section II of this Circular.

1.2. Having collegial or higher diplomas of economics, finance, accountancy, audit or law and having worked in these domains for two years or more.

1.3. Submitting adequate dossiers for exam sitting as provided for in Clause 2, Section IV of this Circular.

2. Exam-sitting dossiers:

2.1. A dossier of registration for first-time exam for tax procedure-related service practice certificate comprises:

a/ The exam registration application (for cases of exemption of both exam subjects, the application is made according to  a set form).

b/ The curriculum vitae certified by a competent labor office or the People’s Committee of the commune, ward or township of residence.

c/ The graduation diploma of collegial or higher level of one of the prescribed disciplines (authenticated copy).

d/ The notarized or authenticated copy of the identity card or passport (for foreigners).

e/ Three 4 cm x 6 cm color photos taken within 6 months before the time of submitting the exam dossiers, two envelopes stuck with stamps and inscribed with full name and address of the person receiving exam notice, schedule and results.

f/ Written certification of working duration and papers required for exam subject exemption (if any).

2.2. A dossier of registration of re-sitting at exams for failed subjects or registration for exams on subjects not yet taken comprises:

a/ The exam registration application.

b/ The authenticated copy of exams result notices of the Exams Council (made according to a set form).

c/ Photos and envelopes as provided for at Point 2.1.e, Clause 2, Section IV of this Circular.

3. Organization of exams for, and grant of, tax procedure-related service practice certificates

3.1. Contents of exams for tax procedure-related service practice certificates:

a/ The first exam subject: The tax law

The contents of tax law exam subject covers value-added tax, special consumption tax, royalty tax, corporate income tax, personal income tax, other taxes, charges and fees, the Tax Administration Law and guiding documents.

b/ The second exam subject: accountancy (the exam knowledge corresponds to the intermediate level).

The contents of accountancy exam subject cover the Law on Accountancy and guiding documents; Vietnam accounting standards, the accounting regulations applicable to business activities; the making of financial statements by accounting units.

3.2. Exam forms: Written exam, examination test or oral exam; the duration for each exam subject depends on the exam form, ranging from 30 to 180 minutes.

3.3. Exam organization:

a/ Exam-organizing agency: The Finance Ministry assigns the General Department of Taxation to organize the Council of Exams for grant of tax procedure- related service practice certificates nationwide.

b/ To prepare for exams, exam sitters may participate in professional retraining courses organized by tax operation schools, professional associations or registered training establishments, which are recognized by the Finance Ministry (the General Department of Taxation) for organization thereof under the unified programs prescribed by the Finance Ministry (the General Department of Taxation).

c/ Exam time: The Exam Council will annually organize an exam in the third or fourth quarter. At least three months before the exam date, the Exam Council shall officially announce on the General Department of Taxation’s website and mass media the examination conditions, criteria, time and venue and other information related to the exams.

d/ The exam venue will be decided by the General Department of Taxation, suitable to the practical conditions and the number of registered candidates, ensuring convenience for the exam registrants.

e/ Exam result announcement: Within 45 days after the end of an exam, the Exam Council shall announce the exam results and notify them to the exam sitters.

3.4. Exam results, reservation of exam results and re-examination of exam results:

a/ A satisfactory exam subject is the one which achieve 5 points or higher according to the 10-point scale.

b/ Candidates with satisfactory exam results include:

- Candidates satisfying the requirements of both exam subjects.

- Candidates satisfying the requirement of one exam subject (for those exempt from one exam subject).

c/ Those candidates who have not yet taken all exam subjects or failed at one exam subject may be granted by the Exam Council president exam result certificates, which serve as a basis for compiling dossiers for exams on subjects not yet taken or failed at subsequent exams.

d/ Exam result reservation: Satisfactory exam subjects are reserved for three consecutive years, counting from the first exam.

e/ Re-examination of exam results: Within 30 days after the announcement of exam results, if exam sitters request in writing the re-examination, the Exam Council shall re-examine the exam papers and notify the re-examination results to such candidates within 30 days after the receipt of the written requests for re-examination. The re-examination results must be approved by the Exam Council president before they are notified to the re-examination requesters. The re-examination requests submitted after the above-said time limit will not be settled.

3.5. Grant of practice certificates:

- The tax procedure-related service practice certificates are uniformly granted and managed by the General Department of Taxation (made according to a set form).

- The General Department of Taxation grants certificates to candidates who pass the exams within 15 days after the official announcement of exam results to candidates and grant certificates to candidates who are exempt from both exam subjects within 15 days after the submission of the dossiers as guided at Point 2.1, Section IV of this Circular.

- Exam subject exemption:

+ Exam registrants who possess the accountancy practice certificate or the auditor’s certificate issued by the Finance Ministry will be exempt from the accountancy exam subject.

+ Tax officers with the rank of tax specialist, tax controller, tax inspector or higher and with the duration of working in the tax domain for 5 years or more, who retire from working in the tax domain for three years, counting from the date of issue of decisions on work transfer, retirement or quitting, will be exempt from the tax law exam subject.

+ Tax officers with the rank of tax specialist, tax controller or tax inspector or higher and with the duration of working in the tax domain for 10 consecutive years or more, who have retired from working in the tax domain, may register with the General Department of Taxation for consideration of the grant of tax procedure-related service practice certificates without sitting for exams. The time for registration for grant of tax procedure-related service practice certificates will not exceed 3 years after the issue of decision on work transfer, retirement or quitting.

+ Those who have worked in the accountancy field in such organizations as state administration agencies, enterprises, non-business units, political organizations, socio-political organizations, social organizations, socio-professional organizations and possessed university or higher degrees in accountancy or audit and worked in the accountancy field for 5 consecutive years or more, then retire from working in the state management bodies and register for exams for tax procedure-related service practice certificates within 3 years after the issuance of decisions on work transfer, retirement or quitting, will be exempt from the accountancy exam subject.

+ Those who have lectured subjects on tax or accountancy at universities or colleges and worked for 5 consecutive years or more, then give up the lecturing and register for exams for tax procedure- related service practice certificates within 3 years after the issue of decisions on work transfer, retirement or quitting, will be exempt from exam on the subject they have lectured.

V. COMPLAINTS, DENUNCIATIONS, SANCTIONS AND COMMENDATION

1. Complaints and denunciations:

1.1 Tax agent staff members and tax agents may complain about improper application of legal provisions by tax officers or tax offices, causing difficulties to or obstructing their tax procedure-related service activities.

1.2. Tax agent staff members may denounce law-breaking acts of tax officers or tax offices, causing difficulties to or obstructing their tax procedure-related service activities.

2. Handling of violations:

2.1. Handling of violations committed by tax agents

a/ Tax agents carrying out tax-related procedures on behalf of taxpayers, who commit acts of violating the tax law, will be administratively sanctioned according to the Government’s Decree No. 98/2007/ND-CP of June 7, 2007, on handling of violations of tax law and enforcement of tax-related administrative decisions.

b/ Tax agents are suspended from tax procedure- related service activities and deleted from the publicized list of tax agents registered for professional practice of providing tax-related services on the General Department of Taxation’s website in the following cases:

- No longer satisfying the practice conditions prescribed in Clause 4, Article 20 of the Tax Administration Law and this Circular.

- Declining to supply information at the requests of tax bodies, failing to submit reports on their activities under regulations.

c/ Form of suspension from tax procedure-related service practice:

The General Department of Taxation issues decisions on suspension of tax procedure-related service practice and deletion from the list publicized on the General Department of Taxation’s website.

2.2. Handling of violations committed by tax agent staff members:

a/ Tax agent staff members will have their professional practice certificates withdrawn indefinitely and the invalidity thereof will be publicized in the following cases:

- Committing acts of colluding with, assisting taxpayers in tax evasion or tax frauds, who are convicted with effective judgments for tax evasion (provided for in Article 161 of the Penal Code No. 15/1999/QH10 of the Socialist Republic of Vietnam).

- Being detected as having possessed counterfeit diplomas and/or certificates in the dossiers of exams for professional practice certificates.

b/ Tax agent staff members will be suspended from professional practice and have their names deleted from the list of registered practitioners for one year in the following cases:

- Lending their professional practice certificates to others or using their professional practice certificates or practicing their profession at two or more tax agents at a time.

- Practicing their profession while their names are yet on the publicized lists of registered tax agent staff members.

c/ Forms of certificate withdrawal, practice suspension:

The General Department of Taxation will issue decisions to withdraw practice certificates, suspend the professional practice of providing tax-related procedure services and to delete the violators’ names from the lists of registered professional practitioners and publicly notify such to tax offices at all levels and on its website.

2.3. If the suspended tax agents or tax agent staff members whose names have been deleted wish to continue their professional practice, after the expiration of their suspension duration, they shall re-register their professional practice under regulations.

3. Commendation:

Tax agents and tax agent staff members that well observe the provisions of tax law and of this Circular will be commended under the State’s regulations.

VI. IMPLEMENTATION ORGANIZATION

This Circular takes effect 15 days after its publication on “CONG BAO.[1]”

Problems arising in the course of implementation should be reported by concerned organizations and individuals to the Ministry of Finance for study and additional guidance.