Công văn 763/TCT-KK

To: Department of taxation in Dong Nai Province

In response to Official Dispatch No. 5797/CT-KK& KTT dated September 4, 2013 of the Department of taxation in Dong Nai Province on issuance of tax identification numbers (TINs) to the units which have the operation registration certificates without tax registration for many years, General Department of Taxation hereby provides the following guidance.

Pursuant to provisions in :

- Point c, Clause 2, Article 165 of the Law on Enterprise No. 60/2005/QH11;

“2. An enterprise shall have its business registration certificate withdrawn and its name deleted from the business registration book in the following cases:…c) The enterprise fails to register the tax identification number within one year since the issuance of the business registration Certificate…”

- Clause 6, Article 7 of the Government's Decree No. 88/2006/NĐ-CP dated August 29, 2006 defining tasks, powers and responsibilities of provincial Business Registration Departments:

“6. To revoke business registration certificates of enterprises in the cases specified in Clause 2, Article 165 of the Law on Enterprise”

- Clause 3, Article 46 of the Government's Decree No. 88/2006/NĐ-CP dated August 29, 2006 defining procedures for withdrawing business registration certificates:

“3. For enterprises that violate Points c, d, dd and e, Clause 2, Article 165 of the Law on Enterprise, Business Registration Department shall make a written notification on the violation and request the legal representatives of the enterprises to go to the Department for clarification and explanation. After 10 (ten) working days, from the deadline stated in the notification, if such legal representatives fail to come, the Business Registration Department shall issue a decision to withdraw the business registration Certificate.

- Point 3.3 (c ), Part I and Point 1, Section I, Part II of Circular No. 85/2007/TT-BTC dated July 18, 2007 providing guidance on the implementation of the Law on Tax administration regarding Tax Registration:

c/ 13-digit TINs (N₁N₂N₃N₄N₅N₆N₇N₈N₉N₁₀N₁₁N₁₂N₁₃) are granted to:

-  Branches, representative offices, stores and factories of enterprises conducting business activities and declaring tax directly in Tax agencies (except for branches of foreign companies of which headquarters are located in foreign countries);

Entities defined at this Point are below referred to as “Subordinate units.” The units that have subordinate units are below referred to as “managing units.” Subordinate units, whether or not financially autonomous, are granted 13-digit TINs.

For subordinate units registering to pay tax directly to tax agencies, their managing units (having 10-digit TINs) shall include them in the “list of subordinate units” so that tax agencies can grant 13-digit TINs.

…. Entities required to apply for tax registration shall do it using a set form with tax agencies within 10 working days from the date:

 - They are granted business registration certificates or establishment and operation licenses or investment certificates;

- Point 1.2, Section I, Part B of the Ministry of Finance’s Circular No. 61/2007/TT-BTC dated June 14, 2007 on actions against tax offenses:

“1.2 A fine of VND 1,100,000, (or not lower than VND 200,000 if extenuating circumstances are involved, and not exceeding VND 2,000,000 if aggravating circumstances are involved), shall be imposed for submitting the application for tax registration or notifying information adjustment in the application for tax registration to the tax authority 20 working days behind schedule or later;

- Point 1, Section IV, Part B of the Ministry of Finance’s Circular No. 61/2007/TT-BTC dated June 14, 2007 on actions against tax offenses:

“1. A fine of equal to the evaded or fraudulent tax amount, for taxpayers that commit first-time violations (except for taxpayers that are sanctioned for wrong declaration which lead to understatement of tax defined at Point 1.3 or 1.4, Section III, Part B of this Circular) or second-time violations involving two or more extenuating circumstances, for one of the following acts of violation:

1.1 Failing to submit application for tax registration; failing to submit tax declaration; or submitting tax declaration after ninety days from the deadline for submission of tax declarations defined in Clauses 1, 2, 3 and 5 or Article 32, or after the deadline for submission of tax declarations defined in Article 33 of the Law on Tax Administration…”

Pursuant to the above provisions, if Son Kim fashion joint-stock company (headquartered in  HCM City) has a subordinate fashion shop in Dong Nai province which is established under branch operation registration license No. 4713000521 issued on October 1, 2008 by the Business Registration Department, which licenses garment trading, and has not applied for tax registration with the department of taxation in Dong Nai province (over 5 years after the deadline for registration), the shop must have its branch operation registration license revoked and must be penalized for tax offenses under the provisions of point 1.2, Section I, Part B of the Ministry of Finance’s Circular No. 61/2007 / TT-BTC dated June 14, 2007. Tax authorities do not recognize the tax debt and do not grant tax identification number in this case.

In addition, for the purpose of tax administration of branches that have obtained business registration but have not applied for tax registration, the Department of Taxation in Dong Nai province is requested to cooperate with local regulatory bodies in inspecting and determining whether or not they have been in operation and earning revenues/incomes. Based on the result of site inspection, the Department of Taxation in Dong Nai province shall impose penalties for tax offenses according to current regulations./.