Thông tư 31/2014/TT-BTC

CIRCULAR

GUIDANCE ON PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN THE FIELD OF PRICE MANAGEMENT PROVIDED IN THE GOVERNMENT’S DECREE NO. 109/2013/ND-CP DATED SEPTEMBER 24, 2013 REGULATING PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN THE FIELD OF MANAGEMENT OF PRICE, FEE, CHARGE AND INVOICE

Pursuant to the Government’s Decree No. 81/2013/ND-CP dated July 19, 2013 specifying several articles and measures in respect of implementation of the Law on penalties for administrative violations;

Pursuant to the Government’s Decree No. 109/2013/ND-CP dated September 24, 2013 regulating penalties for administrative violations in the field of management of price, fee, charge and invoice;

Pursuant to the Government’s Decree No. 177/2013/ND-CP dated November 14, 2013 specifying several articles and providing guidance on implementation of several articles of the Price Law;

Pursuant to the Government’s Decree No. 89/2013/ND-CP dated August 6, 2013 specifying implementation of several articles of the Price Law on valuation;

Pursuant to the Government's Decree No. 215/2013/ND-CP dated December 23, 2013 defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the request of the Director of Price Management Department;

The Minister of Finance hereby issues the Circular providing guidance on penalties for administrative violations in the field of price management.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidance on implementation of several articles setting out regulations penalties for administrative violations in the field of price management (including those in respect of price and valuation), and fine-imposing authority delegated to the Chief Inspector for price inscribed in the Government’s Decree No. 109/2013/ND-CP dated September 24, 2013 on penalties for administrative violations in the field of management of price, fee, charge and invoice (hereinafter referred to as Decree No. 109/2013/ND-CP) 

Article 2. Subject

1. Organizations or individuals that commit administrative violations in the field of price management.

2. Organizations or individuals that are accorded authority to impose penalties for administrative violations in the field of price management in accordance with laws.

3. Others associated with imposition of penalties for administrative violations in the field of price management in accordance with laws.

Chapter II

SPECIFIC PROVISIONS

Article 3. Violations against regulations on price stabilization provided for in Article 5 of Decree No. 109/2013/ND-CP

1. Reports on price stabilization activities referred to in paragraph 1 Article 5 of the Decree No. 109/2013/ND-CP mean reports that must be submitted in accordance with laws and regulations or as requested in writing by competent authorities with respect to goods or services defined in the list of goods or services subject to price stabilization, or the list of goods or services subject to the state pricing as assistance for price stabilization activities concerning:

a) Operating results;

b) Quantity and volume of inventory or goods in stock;

c) Pricing factors;

d) Selling price of goods or services defined in the list of goods or services subject to price stabilization;

dd) Review of setting-aside, use and balance of price stabilization fund (applicable to covered goods); 

e) Other information and materials as assistance for price stabilization activities.

2. Any violation against regulations on price registration that serves price stabilization purposes shall be handled under provisions of Article 11 of the Decree No. 109/2013/ND-CP and Article 6 hereof.

Article 4.  Gross margin provided for in paragraph 5 Article 8 of Decree No. 109/2013/ND-CP

The gross margin provided for in paragraph 5 Article 8 of the Decree No. 109/2013/ND-CP refers to the monetary amount that an organization or individual achieves from sale or supply of a good or service at the higher price than the price determined by a competent authority, institution or person; the gross margin is calculated by the difference in price for sale or supply of a good or service which is higher than a specific or maximum price level or a highest price within the price range decided by a competent authority, institution and person charged for a good or service multiplied (x) by an amount of goods or services that such organization or individual has sold or supplied.   

Article 5. Preparation of pricing plans inconsistent with instructions provided for in Article 9 of Decree No. 109/2013/ND-CP

Preparation of pricing plans inconsistent with instructions on pricing methods issued by competent authorities under provisions of paragraph 1 Article 9 of Decree No. 109/2013/ND-CP includes the following acts:

1. Fail to apply or wrongfully apply pricing bases or rules.

2. Wrongfully or insufficiently use data or figures, eco-technical norms for construction of price levels.

3. Fail to correctly calculate itemized expenses and pricing factors in accordance with laws and regulations.

4. Distribute expenditure without conformity to current instructions (whenever applicable) in respect of each good or service.

5. Use equivalent levels of price of goods or services for comparison purposes without ensuring that elements of such comparison comply with rules set out for the comparison method.

Article 6. Violations regarding registration and declaration of price of goods or services as provided in Article 11 of Decree No. 109/2013/ND-CP

1. Declaring price in breach of the price declaration form stated by competent authorities in paragraph 1 Article 11 of the Decree No. 109/2013/ND-CP means submission of a wrong price declaration form or of a price declaration that lacks required constituents after a competent authority in charge of reception of price declarations gives a warning or request for re-submission of another lawful price declaration.

2. Setting different price levels for the purpose of price registration in violation of instructions given by competent authorities under provisions of paragraph 2 Article 11 of Decree No. 109/2013/ND-CP includes the following acts:

a) Fail to comply with regulations on methods for pricing of goods or services enacted by competent authorities;

b) Use inaccurate or unauthentic data, figures or materials concerning actual and reasonable costs for construction of price levels;

c) Fail to submit additional required constituents included in the price registration form as requested in writing by competent authorities in the case of lack of such constituents in accordance with laws and regulations.

3. Failure to declare price as per laws and regulations on price of goods or services to competent authorities under provisions of paragraph 3 Article 11 of the Decree No. 109/2013/ND-CP refers to any failure to submit the written price declaration to competent authorities prior to pricing or price adjustment in accordance with laws and regulations.  

4. Failure to declare price as per laws and regulations on price of goods or services to competent authorities under provisions of paragraph 4 Article 11 of the Decree No. 109/2013/ND-CP refers to any failure to submit the price registration form prior to pricing or price adjustment during the time the State applies price registration measure for price stabilization in accordance with laws and regulations. 

Article 7. Inappropriate increase in price of goods or services provided in Article 13 of Decree No. 109/2013/ND-CP

1. Inappropriate increase in price of goods or services provided in paragraph 1 (b) Article 13 of Decree No. 109/2013/ND-CP includes the following acts:

a) Willfully increase the price which has been registered with and declared to a competent authority even though such authority has requested in writing an explanation of that registered or declared price; 

b) Willfully increase the price which has been registered with and declared to a competent authority even though such authority has requested a suspension of application of new price and price re-registration or re-declaration in accordance with laws. 

2. Total value of a good or service respectively sold or supplied at an irrationally increased price which is considered as the ground for imposition of any level of penalty under provisions of paragraphs 1, 2, 3, 4 and 5 Article 13 of the Decree No. 109/2013/ND-CP shall be calculated by multiplying the actual price determined by the violating business entity in the case of an inappropriate increase in the selling price by (x) the quantity of goods or services respectively sold or supplied at that irrationally increased price as from the time such violating entity begins its inappropriate increase in price until the entry into force of the penalty imposed for this type of violation.  

3. Gain made by commission of any administrative violation under paragraph 7 Article 13 of the Decree No. 109/2013/ND-CP shall be calculated as follows:

a) Total value of a good or service respectively sold or supplied at an irrationally increased price minus (-) total value of a good or service respectively sold or supplied at the price of which the prior application for registration and declaration is approved by a competent authority in respect of any violation defined in paragraph 1 Article 13 of the Decree No. 109/2013/ND-CP;  

b) Total value of a good or service respectively sold or supplied at an irrationally increased price minus (-) total value of a good or service respectively sold or supplied at the price calculated on the basis of the result of examination of pricing factors conducted by a competent authority in respect of any violation defined in paragraph 6 Article 13 of the Decree No. 109/2013/ND-CP

Article 8. Violations against regulations in respect of valuation enterprises in accordance with Article 18 of Decree No. 109/2013/ND-CP

1. The date of division, splitting, merger, consolidation or ownership transformation stipulated in paragraph 1 (dd) Article 18 of the Decree No. 109/2013/ND-CP means the date on which an enterprise's decision on division, splitting, merger, consolidation or ownership transformation is issued.

2. The date of dissolution, temporary suspension or self-termination of valuation services of a valuation enterprise defined in paragraph 1 (e) Article 18 of the Decree No. 109/2013/ND-CP refers to the date of such enterprise’s issuance of a decision or notification regarding dissolution, temporary suspension or self-termination of valuation services. 

3. The date of a valuation enterprise’s bankruptcy stipulated by paragraph 1 (e) of the Decree No. 109/2013/ND-CP refers to the date of a Court’s issuance of decision to initiate bankruptcy proceedings under laws and regulations. 

4. Valuation certificate or report referred to in paragraph 2 (c) and paragraph 3 (d) Article 18 of the Decree No. 109/2013/ND-CP refers to any certification of or report on the result of a valuation already conducted by a valuation enterprise which is in the process of being compulsorily filed or deposited in accordance with laws and regulations. 

5. Any hindrance or interference against management of an organization or individual having valuation demand, as stipulated by paragraph 5 (b) Article 18 of the Decree No. 109/2013/ND-CP refers to any act resulting in obstruction or interference against management of such organization or individual during the valuation process.

6. Information about valuation dossiers or customers and valued assets referred to in paragraph 5 (c) Article 18 of the Decree No. 109/2013/ND-CP refers to pieces of information which have yet to be widely disclosed in relation to customers and valued assets of customers and are provided by customers or collected by valuation enterprises during their valuation process.    

7. The result of valuation conducted by a competent authority as stipulated by paragraph 13 Article 18 of the Decree No. 109/2013/ND-CP shall be provided during the process of resolution of any dispute or claim, or given on the basis of the result of regular or irregular inspection or examination in respect of valuation activities.

State agencies in the exercise of government authority refer to competent agencies in the exercise of government authority over valuation under the provisions of Article 5 of the Government’s Decree No. 89/2013/ND-CP dated August 6, 2013 specifying implementation of several articles of the Price Law on valuation.

8. Additional penalties referred to in paragraph 14 Article 18 of the Decree No. 109/2013/ND-CP shall be specified as follows:

a) Discontinuation of valuation services that has the enforcement period of 35 days in respect of violations defined in paragraph 14 (a) Article 18 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such discontinuation shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such discontinuation is 30 days;

- If at least one aggravating factor exists, the enforcement period of such discontinuation is 40 days;

b) Discontinuation of valuation services that has the enforcement period of 55 days in respect of violations, defined in paragraph 14 (b) Article 18 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such discontinuation shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such discontinuation is 50 days;

- If at least one aggravating factor exists, the enforcement period of such discontinuation is 60 days.

Article 9. Violations against regulations in respect of valuation officers under the provisions of Article 19 of Decree No. 109/2013/ND-CP

1. Failure to comply with valuation procedures and methods under the provisions of paragraph 2 Article 19 of the Decree No. 109/2013/ND-CP refers to any inconformity to valuation procedures or methods defined in the Vietnamese valuation standards or specialized legal documents.

2. Falsification of dossiers of valued assets or information relating to valued assets, as stipulated by paragraph 4 (b) Article 19 of the Decree No. 109/2013/ND-CP refers to any modification or change of information or intentional use of misrepresented or inaccurate information during the valuation process.

3. Additional penalties referred to in paragraph 5 Article 19 of the Decree No. 109/2013/ND-CP shall be specified as follows:

a) Dispossession of a valuation officer’s practicing card that has the enforcement period of 40 days in respect of violations defined in paragraph 5 (a) Article 19 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such dispossession shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such dispossession is 30 days;

- If at least one aggravating factor exists, the enforcement period of such dispossession is 50 days;

b) Dispossession of a valuation officer’s practicing card that has the enforcement period of 60 days in respect of violations, defined in paragraph 5 (b) Article 19 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such dispossession shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such dispossession is 50 days;

- If at least one aggravating factor exists, the enforcement period of such dispossession is 70 days;

c) Dispossession of a valuation officer’s practicing card that has the enforcement period of 80 days in respect of violations defined in paragraph 5 (c) Article 19 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such dispossession shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such dispossession is 70 days;

- If at least one aggravating factor exists, the enforcement period of such dispossession is 90 days.

Article 10. Violations against regulations in respect of owners of valued assets and users of valuation results under the provisions of Article 20 of Decree No. 109/2013/ND-CP

1. Organizations ineligible for practicing of valuation profession referred to in paragraph 1 Article 20 of the Decree No. 109/2013/ND-CP refer to any organization that have not achieved the certificate of conformity to conditions for valuation service business on the date of signing of valuation contracts (except while transition of implementation, which is stated in Article 33 of the Government’s Decree No. 89/2013/ND-CP dated August 6, 2013 specifying implementation of several articles of the Price Law on valuation, is occurring).   

2. Provision of inaccurate, unauthentic or inadequate information or materials related to valued assets referred to in paragraph 3 Article 20 refers to any provision of misrepresented information or materials in contrast to actual features, eco-technical parameters, specifications or quality, etc. of valued assets on the date of valuation.

Article 11. Violations against regulations in respect of valuation training and improvement institutions in accordance with Article 21 of Decree No. 109/2013/ND-CP

Additional penalties referred to in paragraph 5 Article 21 of the Decree No. 109/2013/ND-CP shall be specified as follows:

1. Discontinuation of valuation training and certification institution that has the enforcement period of 40 days in respect of violations defined in paragraph 5 (a) Article 21 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such discontinuation shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such discontinuation is 30 days;

- If at least one aggravating factor exists, the enforcement period of such discontinuation is 50 days;

2. Discontinuation of valuation training and certification institution that has the enforcement period of 60 days in respect of violations, defined in paragraph 5 (b) Article 21 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such discontinuation shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such discontinuation is 50 days;

- If at least one aggravating factor exists, the enforcement period of such discontinuation is 70 days;

3. Discontinuation of valuation training and certification institution that has the enforcement period of 80 days in respect of violations defined in paragraph 5 (c) Article 21 of the Decree No. 109/2013/ND-CP;

In the event that there is any mitigating or aggravating factor, the enforcement period of such discontinuation shall be prescribed as follows:

- If at least one mitigating factor exists, the enforcement period of such discontinuation is 70 days;

- If at least one aggravating factor exists, the enforcement period of such discontinuation is 90 days.

Article 12. Authority to impose fines delegated to the Chief Inspector for price in accordance with Article 42 of Decree No. 109/2013/ND-CP

The Chief Inspector for price shall be accorded authority to impose a fine of up to VND 200,000,000 on any violating organization, or VND 105,000,000 on any violating individual in the field of price management in accordance with laws and regulations. 

Chapter III

IMPLEMENTATION

Article 13. Effect

This Circular shall enter into force from April 24, 2014 and replace the Circular No. 78/2012/TT-BTC of the Ministry of Finance dated May 18, 2012 providing guidance on several articles of the Government’s Decree No. 84/2011/ND-CP dated September 20, 2011 providing for penalties for price-related administrative violations.

Article 14. Responsibility

1. The President of the People’s Committee at all levels, Chief Inspector of the Ministry of Finance, Chief Inspector for price, Chief Inspector of the Department of Finance, Inspector, Chief Inspector of a Ministry, Ministry-level body and other person who hold any equivalent title, or competent persons of market administration agencies defined in Article 45 of the Law on Handling of Administrative Violations, shall be responsible for conduct and implementation of statutory procedures for handling of administrative violations in the price management field in accordance with laws and regulations.

2. In the course of implementation, if there is any difficulty that may arise, any timely report should be made to the Ministry of Finance for its due review and possible solution./.