- When must taxpayers generate an invoice?
When selling goods or providing services, the seller must issue an invoice to deliver to the buyer (including cases of goods and services used for promotion, advertising, sampling; goods and services provided, gifted, traded, or paid in place of wages to workers, and for internal use (except for goods circulated internally to continue the production process); export goods in the form of loans, borrowed or refunded goods…
(Clause 1, Article 4, Decree No. 123/2020/ND-CP dated October 19th, 2020)
- How are cases of invoices being issued at the wrong time and invoices not being issued at all resolved?
* In case of generating an invoice at the wrong time:
– There shall be a warning fine when generating invoices at the wrong time but does not lead to a delay in fulfilling tax obligations and there are extenuating circumstances;
– Fine from 3,000,000 VND to 5,000,000 VND when generating invoices at the wrong time but does not lead to a delay in fulfilling tax obligations;
– Fine from 4,000,000 VND to 8,000,000 VND when generating invoices at the wrong time according to regulations.
* In case of invoices not being issued:
– Fine from 500,000 VND to 1,500,000 VND for not issuing invoices for goods and services used for promotion, advertising, or sampling; goods and services provided, gifted, donate, traded, or paid in place of wages to workers.
– Fine from 10,000,000 VND to 20,000,000 VND for not issuing invoices for selling goods, providing services to buyers according to regulations and invoices are to be issued according to regulations when requested by the buyer.
(Clause 1,2,3,4,5 and 6, Article 24 of Decree No. 125/2020/ND-CP dated October 19th, 2020 as amended and supplemented in Clause 4, Article 1 of Decree No. 102/2021/ND- CP dated November 16th, 2021)
- How are mitigating circumstances and aggravating circumstances stipulated in regard to taxes and invoices?
3.1 Aggravating circumstances and mitigating circumstances are specified in the provisions of the Law on Resolving Administrative Violations.
3.2 Administrative violations with tax amounts (deficient tax amounts, evaded tax amounts or higher tax amounts exempted, deducted, or refunded) of 100,000,000 VND or more or with value of goods and services of 500,000,000 VND or more are determined to be a massive tax administrative violation according to the provisions in Point l, Clause 1, Article 10 of the Law on Resolving Administrative Violations. Administrative violations of 10 or more invoice numbers are determined to be massive administrative violations of invoices as prescribed in Point l, Clause 1, Article 10 of the Law on Resolving Administrative Violations.
(Article 6 of Decree No. 125/2020/ND-CP dated October 19th, 2020)
- Could taxpayers be considered for mitigating or aggravating circumstances in some cases?
If a taxpayer commits one of the following acts, it will be considered for mitigating circumstances or aggravating circumstances when the relevant legal authorities resolve administrative violations:
4.1 Mitigating circumstances
– The offender has taken actions to prevent or reduce the consequences of the violation or has voluntarily resolved the consequences and compensated for damages;
– The offender has voluntarily reported the violation and sincerely expressed remorse; the offender has actively helped the authorities to detect and resolve administrative violations;
– Administrative violations in a state of mental agitation caused by the illegal acts of others; exceeding the limits of legitimate self-defense; exceeding the requirements of urgent situations;
– Administrative violations due to force or due to physical or mental dependency;
– Offenders are pregnant women, elderly people, people with diseases or disabilities that limit their cognitive ability or ability to control their behaviours;
– Administrative violations due to extremely difficult circumstances that were not caused by oneself;
– Administrative violations due to inadequate knowledge;
– Other mitigating circumstances as prescribed by the government.
(Article 9 of the Law on Resolving Administrative Violations dated June 20th, 2012)
4.2 Aggravating circumstances
– Organized administrative violations;
– Repeated administrative violations; recidivism;
– Inciting, enticing, and using minors to commit violations; forcing people who are physically or mentally dependent on them to commit administrative violations;
– Using a person who is known to be suffering from a mental illness or another illness that causes him or her to lose their cognitive ability or the ability to control their behaviours to commit administrative violations;
– Insulting or defaming people who are performing official duties; administrative violations of a criminal nature;
– Abusing positions and powers to commit administrative violations;
– Taking advantage of situations of war, natural disasters, catastrophes, epidemics or other special social conditions to commit administrative violations;
– Committing violations while serving the penalty of a criminal sentence or serving a punishment following administrative measures;
– Continuing to commit administrative violations even when a legitimate official has order a cessation of that behaviour;
– After committing violations, there are acts of evading or concealing the administrative violations;
– Administrative violations on a massive scale, involving a large quantity or value of goods;
– Administrative violations against multiple different people, including children, the elderly, disabled people, and pregnant women.
Note: The above aggravating circumstances when determined as administrative violations in themselves shall not be considered as aggravating circumstances).
(According to Article 10 of the Law on Resolving Administrative Violations dated June 20th, 2012)
- Regulations on principles for fine application when punishing administrative violations involving taxes and invoices?
– When determining the fine level for taxpayers whose violations have both aggravating and mitigating circumstances, the aggravating circumstance will be reduced according to the principle of one mitigating circumstance cancelling one aggravating circumstance.
– Mitigating or aggravating circumstances that have been used to determine the fine bracket shall not be used when determining the specific fine amount as prescribed in the bullet points below.
– When imposing a fine, the specific fine level for a violation regarding tax practices, invoices and other behaviours as specified in Article 19 of Decree No. 125/2020/ND-CP dated October 19th, 2020 is the aggregate of the fine framework prescribed for such violations. If there are mitigating circumstances, each circumstance reduces by 10% the average fine prescribed in the fine framework, but the fine for that violation must not be reduced more than the minimum level of the fine framework; if there are aggravating circumstances, each aggravating circumstance shall be calculated to increase the average fine as prescribed in the fine framework by 10%, but the fine for that violation must not exceed the maximum level of the fine framework.
(Points b, c, d, Clause 4, Article 7, Decree No. 125/2020/ND-CP dated October 19th, 2020)
- When is tax evasion determined?
Tax evasion is determined when not generating invoices when selling goods or services according to the provisions of law or recording a sale value on the invoice lower than the actual payment for the goods or services sold.
(Clause 3, Article 143 of the Law on Tax Administration dated June 13th, 2019)
- How to resolve tax evasion when detected by tax authorities through inspection?
In case of tax inspection, if the tax inspector detects tax evading behaviours with criminal nature, the tax authorities shall transfer the files to a competent investigation agency for investigation according to the provisions of the law; the tax authorities are responsible for coordinating with the litigation agency in investigating, prosecuting and adjudicating violations according to the provisions of the law.
(Clause 2, Article 108 of the Law on Tax Administration dated June 13th, 2019)
- How is tax evasion punished?
– Fine from 1 time to 3 times the amount of tax evaded and offender is forced to pay the full amount of tax evaded to the National Budget
(Clause 1,2,3,4,5 and 6, Article 17 of Decree No. 125/2020/ND-CP dated October 19th, 2020)
– The act of not generating invoices when selling goods or services or recording a sale value on the invoice lower than the actual payment for the goods or services sold to evade tax with an amount from 100,000,000 VND to less than 300,000,000 VND, or less than 100,000,000 VND but has been administratively sanctioned for tax evasion, or has been convicted of this crime, or one of the crimes specified in Articles 188, 189, 190 , 191, 192, 193, 194, 195, 196, 202, 250, 251, 253, 254, 304, 305, 306, 309 and 311 of this Code, or if the offender’s criminal record has not been cleared and they continue to violate the law, then the offender shall be fined between 100,000,000 VND to 500,000,000 VND, or sentenced to imprisonment between 03 months to 01 year.
(Point c Clause 1 Article 200 of the Penal Code No. 100/2015/QH13 dated November 27th, 2015 as amended and supplemented at Point a, Clause 47, Article 1 of the Law amending and supplementing a number of articles of the Penal Code No. 12/2017/QH14 dated June 20th, 2017)