Thông tư 49/2008/TT-BTC

CIRCULAR

GUIDING THE PAYMENT OF COMPENSATION TO TAXPAYERS AND CUSTOMS DECLARANTS FOR DAMAGE CAUSED BY ILLEGAL ACTS OF TAX OFFICERS AND CUSTOMS OFFICERS ON DUTY

Pursuant to November 29, 2006 Law No. 78/2006/QH11 on Tax Administration;
Pursuant to the Governments Decree No. 85/2007/ND-CP of May 25, 2007, detailing the implementation of a number of articles of the Law on Tax Administration;
Pursuant to the Governments Decree No. 97/2007/ND-CP of June 7, 2007, providing for sanctioning of violations of law and enforcement of administrative decisions in the customs domain;
Pursuant to the Governments Decree No. 98/2007/ND-CP of June 7, 2007, providing for sanctioning of violations of the tax law and enforcement of tax-related administrative decisions,
The Ministry of Finance guides the payment of compensation to taxpayers and customs declarants for damage caused by illegal acts of tax officers and customs officers on duty as follows:

I. COMPENSATION

1. Compensation liability

a/ Tax administration agencies directly managing tax or customs officers (below referred to as tax administration agencies) shall pay compensation to taxpayers or customs declarants for damage caused by illegal acts of their cadres or employees on duty.

b/ Tax administration agencies shall create favorable conditions for taxpayers or customs declarants to exercise their right to claim compensation; and promptly settle compensation claims in a public, fair and lawful manner.

2. When detecting illegal acts of tax or customs officers which may cause damage to them, taxpayers and customs declarants shall warn tax or customs officers or tax agencies about these acts.

When having sufficient conditions for filing compensation claims, taxpayers or customs declarants shall file compensation petitions (clearly indicating the full name and address of the petitioner; name and address of the agency directly managing the damage-causing tax or customs officer; reason for compensation by the tax administration agency; damage and requested level of compensation; number and summary content of the complaint settlement decision of the competent state agency or the courts judgment or ruling), and provide information and documents used for the determination of the compensation level, and send them to the tax administration agency for consideration and settlement.

3. Cases of compensation

Tax administration agencies shall pay compensation to taxpayers or customs declarants (below referred to as damage sufferer) when tax or customs officers commit the following acts:

a/ Deciding on tax refund or tax assessment in contravention of law;

b/ Handling and issuing decisions on tax-related administrative sanctions in contravention of the tax law;

c/ Handling and issuing decisions on enforcement of tax-related administrative decisions and other decisions on sanctioning administrative violations in the customs domain in contravention of regulations;

d/ Taking measures for stopping administrative violations without having any grounds and meeting requirements as prescribed by the tax or customs law;

In case tax or customs officers commit acts of causing damage in money or assets to damage sufferers but the damage was due to the fault of damage sufferers, tax administration agencies are not liable to pay compensation; in case damage sufferers are partly at fault, tax administration agencies shall only pay compensation for the portion of damage in proportion to the extent of fault of the tax or customs officers concerned.

4. Conditions on compensation

Compensation may be paid only when all the following conditions are met:

a/ There is a complaint settlement decision of a competent state agency or a court judgment or ruling that confirms the act of the tax or customs officer is illegal and causes the damage;

b/ There is real damage caused by the illegal act of the tax or customs officer on duty to the taxpayer or customs declarant, which falls into one of the cases specified in Clause 3, Section I of this Circular;

c/ The damage sufferer files a compensation petition within 2 years from the date of issuance of the complaint settlement decision by a competent state agency or a court judgment or ruling that confirms the act of the tax or customs officer is illegal and causes the damage.

5. Principles for compensation

a/ For damage being tax money, fine or confiscated money, tax administration agencies shall:

- Return the tax money, fine or confiscated money (if already remitted in the state budget, carry out procedures for returning the money from the state budget) and pay an interest on the improperly collected tax money, imposed fine or confiscated money to the damage sufferer.

The time of calculating such interest is counted from the date the damage sufferer pays the tax money or fine or has the money confiscated to the date indicated in the compensation decision issued by the tax administration agency.

The interest shall be calculated at the basic interest rate notified by the State Bank and effective at the time the tax administration agency issues the compensation decision.

b/ For damage being assets, the tax administration agency shall:

- If the assets still exist and remain undamaged, return the assets to the damage sufferer;

- If the assets still exist but are reparably damaged, return the assets to the damage sufferer and pay all repair expenses; if the assets are irreparably damaged, the tax administration agency shall pay compensation as for lost assets and liquidate the damaged assets according to regulations;

- If the assets no longer exist (already lost or auctioned), pay compensation for the assets at the market price of assets of the same kind or with the same technical properties and specifications and the level of wear at the time of compensation.

6. Order and procedure for compensation

a/ Tax administration agencies shall receive petitions and dossiers of compensation claim. For dossiers of compensation claim without the complaint settlement decision of a competent state agency or a court judgment or ruling confirming the act of the tax or customs officer is illegal and causes damage, the official receiving the dossier shall immediately notify the claimer that his/her petition and dossier of compensation claim are refused for failure to fully meet the conditions for consideration and payment of compensation.

b/ For dossiers of compensation claim which fully meet the conditions for consideration and payment of compensation, the tax administration agency shall classify these dossiers for consideration and handling of compensation liability.

- If the dossier of compensation claim contains a concrete conclusion on the illegal act of the tax or customs officer and the level of damage as indicated in the complaint settlement decision of a competent agency or the court judgment or ruling, within 15 days after receiving the dossier, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) shall examine the dossier and, if agreeing with the conclusion in the said document, issue a decision on compensation.

If disagreeing with the conclusion in the court judgment or ruling, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) may refuse to settle the compensation claim and lodge a protest according to civil procedures.

- If the dossier of compensation claim contains a concrete conclusion on the illegal act of the tax or customs officer as indicated in the complaint settlement decision of a competent agency but the level of damage has not yet been specified, the tax administration agency shall handle it strictly in the order specified at Point c, Clause 6, Section I of this Circular.

c/ Order of settling dossiers of compensation claim containing a concrete conclusion on the illegal act of the tax or customs officer as indicated in the complaint settlement decision of a competent agency but the level of damage has not yet been specified:

- The tax administration agency shall receive the petition and compile a dossier of settlement of compensation (preliminarily verifying the level of real damage caused by the illegal act of the tax or customs officer), and within 5 days after receiving the compensation petition, notify in writing the damage sufferer of the intended time and venue for negotiation or settlement of the petition.

- Within 10 days after receiving the dossier of compensation claim, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) shall set up a council for settlement of compensation and refund of compensation money (below referred to as council for settlement of compensation).

A council for settlement of compensation consists of between 3 and 5 members, including the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is the head of the agency liable to pay compensation) as chairman; a person in charge of finance and accounting of the tax management agency as member; a representative of the professional tax or customs unit related to the case of compensation; the direct supervisor of the tax or customs officer who causes the damage; and a specialist in the damage (when necessary).

The council for settlement of compensation shall recommend to the person competent to issue a compensation decision the level and mode of compensation; the liability to refund, level and method of refunding the compensation money at Point a, Clause 3, Section II of this Circular.

The council for settlement of compensation shall operate on the principle of collective work, make decisions by majority and be dissolved after finishing its tasks.

Within 10 days (or 15 days for complicated cases) from the date of issuance of its founding decision, the council for settlement of compensation shall send written recommendations to the person competent to issue compensation decisions on the level and mode of compensation (enclosed with the minutes of the councils meeting).

- Within 10 days from the date of receipt of written recommendations of the council for settlement of compensation, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) shall, on the basis of the level and mode of compensation recommended by the council for settlement of compensation to organize negotiations with the damage sufferer and issue a compensation decision;

d/ The compensation decision must be based on results of negotiations; if negotiations fail, recommendations of the council for settlement of compensation will be used as grounds for consideration and decision. The compensation decision must clearly indicate the amount and mode of compensation (in cash or account transfer) and the time limit for compensation (not exceeding 15 days after the compensation decision is signed), and shall be sent to the agency responsible for compensation, the compensation recipient and the person with the refund obligation.

The damage sufferer that disagrees with the compensation decision of the tax administration agency may lodge a complaint with the superior agency or request a court to settle the case in accordance with the law on complaints and denunciations.

Compensation shall be paid in cash in a lump sum (unless otherwise agreed upon by the parties) according to the level, method and time limit of compensation indicated in the compensation decision. Past the time limit specified in the decision, if the tax administration agency fails to pay the compensation, it shall have to additionally pay an interest on the compensation for the late payment at the basic interest rate notified by the State Bank and effective at the time it pays compensation.

7. Funds for compensation: Pursuant to compensation decisions of competent authorities, tax administration agencies may use various funds under their management for paying compensation in time to damage sufferers.

Funds already used to pay compensation shall be offset with amounts refunded by damage-causing officers; proceeds from the disposal of assets (in cases in which irreparably damaged assets have been auctioned or liquidated), asset indemnities paid by insurers (if any) and other lawful sources.

II. REFUND OF COMPENSATION MONEY BY TAX AND CUSTOMS OFFICERS

1. Tax administration agencies having paid compensation shall request tax or customs officers to refund the money already compensated by tax administration agencies to damage sufferers when these tax or customs officers commit one of damage-causing illegal acts specified in Clause 3, Section I of this Circular. If damage sufferers had warned about illegal acts and the possible damage but tax or customs officers still deliberately committed the acts, these officers shall refund the whole of the compensation money already paid by tax administration agencies to damage sufferers.

2. Determination of responsibilities to refund compensation money:

a/ The determination of responsibilities to refund compensation money must be based on the amounts already compensated by tax administration agencies, the extent of fault of the illegal acts and the financial capability of tax or customs officers.

If many persons jointly commit an illegal act causing damage, all of them shall jointly refund the amount already compensated by the tax administration agency. The responsibility of each person shall be determined in proportion to the extent of fault of each person. In case the extent of fault of each person cannot be determined, each person shall pay an equal amount.

b/ Damage-causing tax or customs officers shall refund the amounts already compensated by tax administration agencies to damage sufferers, specifically:

- For damage in cash, on a case-by-case basis, specific amounts already paid by the tax administration agencies shall be determined under Point a, Clause 5, Section I of this Circular, including interests on confiscated amounts, fines for administrative violations, incorrectly assessed tax amounts or interests on late returned tax amounts.

- For damage in assets, on a case-by-case basis, specific amounts already paid by the tax administration agencies shall be determined under Point b, Clause 5, Section I of this Circular, including expense for asset repair; or value of lost assets, or difference between the value of assets and proceeds from the auction or liquidation of assets.

c/ Damage-causing customs or tax officers may be considered for reduction of their refund liabilities in the following cases:

- First-time violations; or having taken on their own initiative measures to reduce consequences of damage.

- Damage-causing violations committed due to coercion or material or spiritual dependence.

- Limited conditions for duty performance (if there are sufficient proof).

- The inflicted damage is too big and the damage-causing person cannot afford, due to his/her financial capability both in the immediate time as well as in the long term, to refund the whole or most of the damage. The damage-causing tax or customs officer requesting the reduction of the to be-refunded amount shall supply documents proving their present and long-term financial capability insufficient to refund the whole or most of the amount already compensated for the damage.

3. Order of and procedures for refunding compensation money

a/ Within 30 days from the date of issuance of the compensation decision, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) shall request the council for settlement of compensation to consider the refund of the compensated amount by the tax or customs officer(s). To protect the interests of these officers, the council shall be added with the chairman of the trade union or a member of the trade union executive committee of the tax administration agency (if the head of the agency is chairman of the trade union). In the course of examining the refund of the compensation money, the council shall create conditions for the damage-causing tax or customs officer(s) to attend its meetings to give detailed explanations on the case for use as a basis for the council to consider the obligation to refund the compensation money.

The council shall evaluate the nature of the damage-causing illegal act, determine the liability of each tax or customs officer concerned, review extenuating circumstances, and assess the financial capability of the damage-causing tax or customs officers before proposing the level and mode of refund.

Within 10 days (or 15 days for complicated cases) from the date of holding a meeting, the council for settlement of compensation shall send written recommendations to competent authorities on the level and mode of refund (enclosed with the minutes of the meeting);

b/ Within 10 days from the date of receipt of the minutes of the meeting of the council for settlement of compensation and its written recommendations on the level and mode of refund the compensation money, the head of the tax administration agency or the head of the immediate superior agency (if the damage-causing person is head of the agency liable to pay compensation) shall sign a decision on refund of the compensation money.

The compensation refund decision must clearly indicate the to be-refunded amount, the mode of and time limit for refund. Refund can be effected in a lump sum with personal assets (within 45 days from the date of signing of the refund decision) or incrementally subtracted from the monthly income of the damage-causing tax or customs officer with an amount not exceeding 20% of the total of salary and allowance (if any); and the reduction of the refund obligation (if any).

c/ Compliance with the decision on refund of compensation money

- The damage-causing tax or customs officer shall properly discharge his/her refund obligation indicated in the decision on refund of compensation money towards the tax administration agency that has directly paid the compensation to the damage sufferer.

- In the course of complying with the decision on refund of compensation money, the person with the refund liability may be considered for delayed refund in the following cases: Currently receiving medical treatment in a hospital; women during pregnancy or lactation or nursing an under-one child; family meeting with special economic difficulty, which is certified by the Peoples Committee of the commune (ward) where such person resides. The delayed time must not exceed 6 months. If the tax or customs officer obliged to refund the compensation money is unable to perform the refund obligation due to a force majeure event (accident, natural disaster, fire or death), his/her refund obligation may be considered for reduction or exemption.

The head of the tax administration agency that has issued the decision on refund of compensation money shall consider and decide on the delay of or exemption from the refund obligation.

- The refunded amount shall be received and monitored upon each time of payment (if the amount is paid in installments) and be returned to the source already used for paying compensation.

d/ Security for refund

- Heads of tax administration agencies shall supervise and urge the refund.

- When those who have not yet discharged the refund obligation wish to switch to another job, give up working or retire, the head of the tax administration agency that has issued the decisions on refund of compensation money shall request those persons to refund the outstanding amount before he/she switches to another job, gives up working or retires. If those persons are unable to promptly refund the outstanding amount, the head of the tax administration agency that has issued the decisions on refund of compensation money shall work with the agencies or organizations that employ those persons or the administrations of the places where those person reside to request those person to continue the refund.

- If the persons with the refund obligation deliberately delay or shirk the refund, the heads of the tax administration agencies shall work with the administrations of the places where those person reside to apply measures to ensure the refund in accordance with law.

e/ The damage-causing tax or customs officer who disagrees with the decision of the head of the tax administration agency on refund of compensation money may lodge a complaint with the immediate superior agency or request a court to settle.

III. ORGANIZATION OF IMPLEMENTATION

This Circular takes effect 15 days after its publication in CONG BAO.

The General Department of Taxation and the General Department of Customs shall organize the implementation of this Circular. Any problems arising in the course of implementation should be reported to the Ministry of Finance for consideration and settlement.