Quyết định 1276/QD-TCT

Decision No. 1276/QD-TCT dated July 16, 2015, promulgating regulation on procedures before signing inspection reports at the premises of taxpayers in sensitive circumstances

Nội dung toàn văn Decision No. 1276/QD-TCT 2015 promulgating regulation on procedures before signing inspection reports


THE MINISTRY OF FINANCE
GENERAL DEPARTMENT OF TAXATION
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness 
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No. 1276/QD-TCT

Hanoi, July 16, 2015

 

DECISION

PROMULGATING REGULATION ON PROCEDURES BEFORE SIGNING INSPECTION REPORTS AT THE PREMISES OF TAXPAYERS IN SENSITIVE CIRCUMSTANCES

DIRECTOR GENERAL OF THE GENERAL DEPARTMENT OF TAXATION

Pursuant to the Law on Inspection No. 56/2010/QH12 dated November 15, 2010 and guiding documents;

Pursuant to the Law on Tax administration No. 78/2006/QH11 dated November 29, 2006, the Law on the amendments to the Law on Tax administration No. 21/2012/QH13 dated November 20, 2012 and guiding documents; Pursuant to Procedures for inspection;

Pursuant to Decision No. 115/2009/QD-TTg dated September 28, 2009 of the Prime Minister defining the functions, tasks, entitlements and organizational structure of General Department of Taxation affiliated the Ministry of Finance and guiding documents on functions, tasks, powers of units affiliated to General Department of Taxation, Provincial Departments of Taxation and Branches of Taxation;

At the request of Director of Department of inspection of General Department of Taxation;

DECIDES:

Article 1. Promulgating together with this Decision a Regulation on procedures before signing reports on inspection or examination (hereinafter referred to as inspection) at the premises of taxpayers in sensitive circumstances in which complaints are likely.

Article 2. This Decision comes into force from the day on which it is signed. Heads of Departments and equivalent units affiliated to General Department of Taxation; Directors of Provincial Departments of Taxation of central-affiliated cities and provinces; Directors of Branches of Taxation of districts, suburban districts, district-level towns, province-affiliated cities shall implement this Decision./.

 

 

 

DIRECTOR GENERAL




Bui Van Nam

 

REGULATION

 ON PROCEDURES BEFORE SIGNING INSPECTION REPORTS AT THE PREMISES OF TAXPAYERS IN SENSITIVE CIRCUMSTANCES
(Issued together with Decision No. 1276/QD-TCT dated July 16, 2015 of the Director of the General Department of Taxation)

The Regulation on procedures before signing inspection reports at the premises of taxpayers in sensitive circumstances in which complaints are likely is promulgated to prevent inspectorates from acting against the law on taxation and harassing taxpayers. This Regulation does not affect the right of taxpayers to lodge complaints against tax decisions. Every misunderstanding between taxpayers and tax authorities shall be cleared up and agreed upon before taxpayers lodging complaints. Consequently, the number of complaints lodged by taxpayers after signing inspection reports and inspection conclusions and decisions on handling of taxation shall be limited.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Regulation deals with entities, rules for handling, procedures for handling circumstances in which taxpayers are likely to lodge complaints (hereinafter referred to as sensitive circumstances) before signing reports on inspections carried out by General Department of Taxation, Provincial Departments of Taxation or Branches of Taxation (hereinafter referred to as tax authorities) at the premises of taxpayers.

Article 2. Regulated entities

This Regulation applies to tax authorities; inspection deciders; Heads of inspection units; other units; Chiefs and members of inspectorates.

Article 3. Interpretation of terms

For the purposes of this Regulation, these terms below shall be construed as follows:

1. Inspector (also known as inspectorate member) means an official whose name is mentioned in the inspection decision and conducts the inspection as assigned by the Chief of inspectorate at the premises of the taxpayer.

2. Head of inspection unit means a leader of a unit in charge of the Chief of inspectorate; including Heads of Departments (Directors, Deputy Directors) in General Department of Taxation; Heads of Divisions (Heads of Divisions, Deputy Heads of Divisions) in Provincial Departments of Taxation; Heads of Teams (Heads of Teams or Deputy Heads of Teams) in Branches of Taxation. In case inspectorates are established by Heads of tax authorities according to the collaboration between units and a unit is assigned to be the central unit, all reports of inspectorates shall be sent to such central unit.

3. Other units: Departments and equivalents affiliated to General Department of Taxation (in General Department of Taxation); Divisions (in Provincial Departments of Taxation); or Teams (in Branches of Taxation).

4. Inspection deciders are Heads of tax authorities.

5. Heads of tax authorities: including Director General, Deputy Director General; Directors, Deputy Directors; Managers, Deputy Managers.

6. Tax authorities: General Department of Taxation, Provincial Departments of Taxation and Branches of Taxation.

7. Ranks of tax officials and tax authorities: Inspectors are inferior to chiefs of the inspectorates; chiefs of inspectorates are inferior to Heads of inspection units; Heads of inspection units are inferior to inspection deciders; Branches of Taxation are inferior to Provincial Departments of Taxation; Provincial Departments of Taxation are inferior to General Department of Taxation; General Department of Taxation is inferior to the Ministry of Finance.

8. The period expressed as days will include weekends and public holidays.

9. The period expressed as working days only include working days of regulatory agencies, not weekends and public holidays.

10. Certification of figures is a report certified by every member of the inspectorate and the legal representative of the taxpayer.

Article 4. Rules for handling complaints

Sensitive circumstances shall be handled according to the following rules:

1. Following procedures prescribed in legislative documents and this Regulation.

2. Handling the cases in the order of ranks of tax officials and tax authorities.

3. Refusing illegitimate complaints.

4. Conducting at the premises of taxpayers as prescribed in the Law on Inspection; the Law on Tax administration; procedures for inspection and guiding documents.

Article 5. Some sensitive circumstances in which complaints are likely:

1. The circumstance handled by the inspectorate is not prescribed in any legislative document.

2. The taxpayer misinterprets legislative documents.

3. Two legislative documents with equal legal validity contain conflicting regulations on one issue.

4. The tax authority sent samples for expertise and no response has been received.

5.  The inspection is carried out at the request of an agency (for example: State inspection agencies, State audit agencies, etc.) but the taxpayer does not concur with the legislative documents/regulations serve as the basis for the inspection.

6. The taxpayer reserves their opinions.

7. The taxpayer does not sign the inspection report; does not comply with the tax decision on penalties for administrative violations issued by the tax authority.

8. There are conflicting opinions between the tax authority and the taxpayer in terms of tax imposition.

9. The tax payer has sent a request to competent agency (before the day on which the decision on inspection is issued) but no response is received.

10. The inspection objectives are being investigated or verified by competent authorities (Public Security, Court, Procuracy or any other agencies competent to carry out investigation as prescribed in the Criminal Procedure Code).

11. Any other circumstances in which taxpayers are likely to lodge complaints according to the judgment of the chief of the inspectorate. For example: A case is handled differently by two inspectorates in two years.

Chapter II

SPECIFIC REGULATIONS

Article 6. Procedures

1. Handling procedures:

1.1. The inspector shall send reports and consult with the Chief of inspectorates.

1.2. The Chief of inspectorate shall send reports and consult with the Head of inspection unit.

1.3. The Head of inspection unit shall send reports and consult with the inspection decider.

1.4. The inspection decider shall send reports and consult with the Director (if he/she is the Deputy Director).

1.5. The Branch of Taxation shall consult with the Provincial Department of Taxation; the Provincial Department of Taxation shall consult with General Department of Taxation; the General Department of Taxation shall consult with the Ministry of Finance.

1.6. Agencies shall send reports and consult with relevant units (if necessary).

2. Rules for handling complaints:

- During the inspection process, the Chief and members of the inspectorate shall provide the taxpayer with explanation for legal policies, legal bases related to the issues being handled and every issue must be handled thoroughly and promptly in accordance with inspection procedures and regulations of law.

- If a case is handled in accordance with regulations of law but the taxpayer does not sign the inspection report, the Chief of inspectorate shall keep following the inspection procedures.

- In other circumstances, if there is any unresolved issue after inspection, the inspectorate shall send report and request for consultation following the procedures prescribed in Point 1 Article 6 of this Regulation.

- The inspector shall collect adequate relevant documents and then report to the Chief of inspectorate.

- The inspectorate shall make reports in writing.

3. Procedures for handling unresolved issues:

Any tax decision or conclusion that is likely to be complained by taxpayers shall be dealt with as follows:

3.1. Responsibility of inspectors:

When an inspector discovers any circumstance likely to lead to complaints, he/she shall consult with the Chief of inspectorate and follow the order of the Chief of inspectorate. When signing the certification of figures, the taxpayer shall write their dissenting opinions on the certification of figures (specifying the issues agreed upon, the issues in dispute, legal bases for handling and opinions of the taxpayer) and collect adequate documents related to the remaining issues.

3.2. Responsibility of Chief of inspectorate:

- After receiving the report from the inspector, the Chief of inspectorate shall consult with members of Inspectorate, and then provide the taxpayer with written explanation for legal policies and bases related to the issues to handle them thoroughly and promptly:

+ After discussing with the inspectorate, if the taxpayer agrees to handle the issues likely to lead to complaints in accordance with law, the Chief of inspectorate shall carry out the inspection procedures at the premises of the taxpayer as prescribed.

+ If the issues are still unresolved, within 02 working days from the date on which the inspector makes consultation, the Chief of inspectorate shall consult with the Head of inspection unit in writing and comply with order of the Head of inspection unit.

While awaiting opinions of Head of inspection unit:

- With regard to examination:

+ With upcoming deadline for examination mentioned in the decision, if the Chief of inspectorate deems it necessary to extend the deadline to handle the unresolved issues, at least 01 working day before the deadline as prescribed, he/she shall apply for extension to the Head of examination unit, and then the Head of examination unit shall request the Head of tax authority to issue a decision on extension of examination deadline. The examination decision shall be only extended once. The duration for extension is within 05 working days.

+ If the deadline for examination is not extended, when the deadline expires, the Chief of inspectorate shall sign the examination report within the time limit prescribed in the Procedures for taxation examination. Unresolved issues awaiting responses and examination results shall be written in a separate part of the examination report. After receiving response from superior authority, within 05 working days, the inspectorate must make an appendix of report together with the taxpayer to keep handling as prescribed.

+ According to the conclusion mentioned in the signed examination report, the Chief of inspectorate shall present the results of taxation examination in accordance with regulations in force, which clarify unresolved issues. Regarding unresolved issues for which the superior authority has given response, they shall be kept handling as prescribed.

+ When the examination closes, if the taxpayer does not sign the examination report, within 05 working days from the date on which the examination report is published, the Chief of inspectorate shall make a report on penalties for administrative violations, request the Head of examination unit to request the Head of tax authority issue a decision on penalties for administrative violations, and request the taxpayer to sign the examination report. If taxpayer still does not sign the examination report, within 30 working days from the date on which the examination report is published, the Head of tax authority shall issue a Decision on taxation handling, penalties for administrative violations against taxation regulations or conclusion of taxation examination according to the examination report.

- With regard to inspection:

+ With upcoming deadline for inspection mentioned in the decision, if the Chief of inspectorate deems it necessary to extend the deadline to handle the unresolved issues, at least 05 working days before the deadline as prescribed, he/she shall apply for extension to the Head of inspection unit, and then the Head of inspection unit shall request Head of tax authority to issue a decision on extension of examination deadline. The examination decision shall be only extended once. The total duration of the inspection and extension must not exceed 70 working days (if the inspection is carried out by General Department of Taxation) or 45 working days (if the inspection is carried out by a Provincial Department of Taxation).

+ If the deadline for inspection is not extended, when the deadline expires, the Chief of inspectorate shall sign the inspection report within the time limit prescribed in the Procedures for taxation inspection. Unresolved issues awaiting responses and inspection results shall be written in a separate part of the inspection report. After receiving response from superior authority, within 05 working days, the inspectorate must make an appendix of report together with the taxpayer to keep handling as prescribed.

+ According to the conclusion mentioned in the signed inspection report, the Chief of inspectorate shall present the results of taxation inspection in accordance with regulations in force, which clarify unresolved issues and contents of inspection conclusion awaiting the conclusion of the competent agency. Regarding unresolved issues for which the superior authority has given response, they shall be kept handling as prescribed.

+ When the inspection closes, if the taxpayer does not sign the inspection report, within 05 working days from the date on which the inspection report is published, the Chief of inspectorate shall make a report on penalties for administrative violations, request the leader of inspection unit to request the Head of tax authority issue a decision on penalties for administrative violations, and request the taxpayer to sign the inspection report. If taxpayer still does not sign the inspection report, within 30 working days from the date on which the inspection report is published, the Head of tax authority shall issue a Decision on taxation handling and penalties for administrative violations against taxation regulations or conclusion of taxation inspection according to the inspection report.

3.3. Responsibility of Head of inspection unit:

After receiving consultation sent by the Chief of inspectorate in respect to unresolved issues, the Head of inspection unit shall discuss with the inspectorate and give the directive in writing, if there is any unresolved issue, the Chief of inspectorate shall consult with the inspection decider within 05 working days (regarding inspection) and 03 working days (regarding examination) from the date on which the consultation is received.

+ If the inspection decider requests the Head of inspection unit to consult with other units, the Head of inspection unit shall have consultation within 02 working days. When having consultation from other units, the Head of inspection unit shall send report to and comply with order of the inspection decider within 02 working days.

3.4. Responsibility of other units: within 03 working days from the date on which the Note of consultation is received, the other units must give consultation documents.

3.5. Responsibility of inspection decider:

After receiving request for consultation from the Head of inspection unit, the inspection decider shall discuss with the Head of inspection unit and request the inspectorate to send report on unsolved issues before signing the inspection report. If necessary, the inspection decider shall request the Head of inspection unit to consult with other units or hold discussion between the inspectorate and the taxpayer, and then issue the decision on inspection.

If the issues are still unsolved after discussion, the decision maker shall consult with the Head of tax authority. Time limit for processing request for consultation shall comply with the Working regulations of tax authorities.

Chapter III

IMPLEMENTATION

Article 7. Implementation

1. This Regulation comes into force from the day on which it is signed. Heads of Departments and equivalent units affiliated to General Department of Taxation; Directors of Provincial Departments of Taxation of central-affiliated cities and provinces; Directors of Branches of Taxation of districts, suburban districts, district-level towns, province-affiliated cities shall implement this Regulation. Any content is not defined in this Regulation shall comply with any other legislative documents in force.

2. Difficulties that arise during the implementation of this Circular should be reported to General Department of Taxation (via Department of Inspection) for consideration and amendments to this Regulation./.


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