CIRCULAR

GUIDING THE IMPLEMENTATION OF THE PRIME MINISTER�S DECISION No.172/2001/QD-TTg OF NOVEMBER 5, 2001 ON THE RESCHEDULING, FREEZING AND REMISSION OF TAX DEBTS AND STATE BUDGET PAYMENTS FOR ENTERPRISES AND PRODUCTION AND/OR BUSINESS ESTABLISHMENTS MEETING WITH DIFFICULTIES DUE TO OBJECTIVE CAUSES

Pursuant to the current provisions of the tax laws and tax ordinances as well as the State budget collection regime;
Pursuant to the Prime Minister’s Directive No.12/2001/CT-TTg of May 23, 2001 on handling the results of general asset inventory and revaluation of properties of State enterprises at 0.00 hour of January 1, 2000;
Pursuant to the Prime Minister’s Decision No.172/2001/QD-TTg of November 5, 2001 on the rescheduling, freezing and remission of tax debts and other amounts payable to the State budget for enterprises and production and/or business establishments meting with difficulties due to objective causes;
The Finance Ministry hereby guides the rescheduling, freezing and remission of tax debts and other amounts payable to the State budget for enterprises and production and/or business establishments meting with difficulties due to objective causes as follows:

A. SUBJECTS AND SCOPE OF HANDLING

1. Subjects entitled to the handling of tax debts and other amounts payable to the State budget shall include: corporations, companies, factories, enterprises set up and operating under the State Enterprise Law and the Enterprise Law (formerly the Company Law) or the Law on Foreign Investment in Vietnam (referred collectively to as enterprises); production and/or business establishments, including: organizations and individuals other than the above-mentioned subjects (except for peasants households engaged in agricultural production whose debts shall be handled according to the provisions of the policy on agricultural land use tax), that are involved in production and/or business activities and owing tax debts and other State budget payments in the cases mentioned in this Circular.

2. The to be-handled tax debts and State budget payments include: income tax, value added tax, special consumption tax, export tax, import tax, land and housing tax, profit tax, enterprise income tax, natural resource tax, agricultural land use tax; land use levies, land rentals, levies on the use of the State budget capital, capital depreciation, charges and fees belonging to the State budget; and fines imposed on the late payments to the State budget (mentioned above).

B. HANDLING OF TAX DEBTS AND STATE BUDGET PAYMENTS

I. RESCHEDULING (DEFERRED PAYMENT) OF TAXES AND STATE BUDGET PAYMENTS

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a/ Enterprises that owe tax debts and/or other State budget amounts but are unable to pay them to the State budget within the prescribed time limit due to the following objective causes:

+ Changes in tax or State budget collection policies, such as: the State increases tax rates and/or State budget remittances, which directly affect the production and/or business results of enterprises and lead to their tax debts. The to be - deferred tax and State budget amount shall be at most equal to the amount having increased due to policy changes in the month or the first tax declaration period, to be calculated according to the new tax policy.

+ Relocation of their business places at the requests of the competent State agencies, due to which enterprises must stop or scale down their production and/or business activities, increase costs of investment in the new production and/or business places and thereby owing tax debts.

+ Reorganization of production and/or business activities, changes in business lines, production of new products in replacement of the old ones, whereby at the early stage the enterprises meet with difficulties and suffer from losses and are unable to handle them, thus owing tax debts.

+ Damage caused by natural calamities, which affects the enterprises production and/or business activities and makes them owe tax debts. The to be-deferred tax and State budget amounts are the arrears thereof calculated up to the time of occurrence of natural calamities, which cannot be paid by the enterprises.

For cases of owing debts due to the above-mentioned causes, the deferred payment time limit for each specific cases is as follows:

+ 6 months for enterprises owing debts due to changes in the tax or State budget collection policies; in this case, past the 6-month time limit, if the enterprises still fail to pay up debts, they shall be considered for the extension of the debt-payment time limit for another 6 months.

+ 12 months for enterprises relocating their production and/or business places, suffering from damage due to natural calamities or reorganizing production and/or business activities.

b/ Enterprises which pay taxes and other State budget amounts with reciprocal capital from State budget sources and are owing tax debts due to the fact that they have not yet been arranged with or allocated State budget capital, shall be considered for deferred payment of tax debts and other State budget amounts until the State settles capital sources. These subjects include:

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- Enterprises which export goods for debt repayment to foreign countries as designated by the Government, are entitled to the payment by the State but have not yet been paid and, thereby, lack sources of capital for paying taxes and other State budget amounts.

c/ Enterprises which have been owing tax debts and other State budget amounts from December 31, 1998 and before (except for cases of debt freezing or remission under the Prime Minister�s decision and the guidance in this Circular), and are entitled to deferred payment under the guidance in this Section I, must register the debt payment plans with the tax agencies and customs agencies of the provinces and cities, clearly determining the debt amounts to be paid in each quarter. These enterprises must pay up these tax debts and State budget amounts by December 31, 2002 at the latest.

2. Procedural dossier

Enterprises enjoying the deferred payment mentioned at Point 1 above must compile dossiers and send them to the provincial/municipal Tax Departments (Customs Departments, for taxes on import/export goods), each composed of the following:

- The written request for deferred payment of tax debts and other State budget amounts, clearly stating the reasons therefor and difficulties of the enterprise in each of the above-mentioned specific cases, the tax amounts and other State budget amounts, and the desirable deferred payment time limit.

- The copy of the written tax declaration or tax notice of the tax agency or customs agency related to the tax amount and other State budget amounts, of which the deferred payment is applied for by the unit.

- In case of relocation of its business place, the concerned enterprise must also send the copy (affixed with its stamp) of the competent State agency’s decision on the relocation of its business place.

- In case of debts caused by natural calamities, the enterprise must send the document identifying the value of damaged property and the handling plan with the certification (affixed with the enterprise’s stamp) by the competent agency or local finance agency of the damaged-property value.

3. Order and competence for settlement

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For those cases not mentioned above, the provincial/municipal Tax Departments or Customs Departments must send the enterprises dossiers together with their own opinions to the General Tax Department or the General Department of Customs for consideration and decision.

The General Tax Department and the General Department of Customs shall consider and decide on cases of deferred payment involving amounts of more than VND 500 billion.

II. FREEZING OF TAX DEBTS AND STATE BUDGET PAYMENTS

1. Subjects entitled to the freezing of tax debts and State budget payments:

Enterprises which owe tax debts and other State budget amounts but are unable to pay them because they suffer from production and/or business losses and are falling into the state of dissolution or bankruptcy shall be considered to have their tax debts and State budget payments frozen. The debt-freezing duration shall be counted from the date of debt determination till the enterprises dissolution or bankruptcy. When enterprises dissolve or go bankrupt, the debt recovery measures and procedures shall be applied in accordance with the provisions of the legislation on dissolution and bankruptcy.

Enterprises which suffer from production and/or business losses and are falling into the state of bankruptcy are those defined in Article 3 of the Government’s Decree No.189/CP of December 23, 1994 guiding the implementation of the Law on Bankruptcy of Enterprises; State enterprises dissolving under the guidance at Point 1, Section II of the Finance Ministry’s Circular No.25/TC-TCDN of May 15, 1997, which guides the order, procedures and principles for financial handling upon the dissolution of State enterprises. Upon the dissolution or bankruptcy of enterprises, the already frozen tax debts and State budget payments shall be settled according to the provisions of Section III, Circular No.25/TC-TCDN (mentioned above).

2. Procedural dossier

Enterprises entitled to the freezing of tax debts and State budget payments, must compile dossiers and send them to the provincial/municipal Tax Departments, each composed of:

- The enterprise’s written request for the freezing of tax debts and State budget payments, clearly explaining causes of losses and the enterprise’s incapability to offset the losses by itself, then leading to the state of dissolution or bankruptcy.

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- The tax settlement report, which specifies the tax arrears for each kind of tax and other remittances; for import/export tax debts, there must be certification by the customs offices directly managing the tax collection of the outstanding import/export tax amounts.

- The financial report up to the year when the enterprise requests debt freezing, which includes the accumulative figures.

3. Order and competence for settlement

- The provincial/municipal Tax Departments that receive enterprises dossiers of application for the freezing of tax debts and State budget payments shall have to examine the dossiers and determine the to be-frozen tax debts and State budget amounts, then send their written proposals thereon to the Finance Ministry (the General Tax Department).

- The General Tax Department shall receive the enterprises dossiers and proposals of the provincial/municipal Tax Departments, determine the to be-frozen tax debts and State budget payments, and issue debt-freezing decisions for the enterprises. In case of freezing import/export tax debts and other tax amounts collected at the import stage, the General Tax Department must send one copy of the said decision to the relevant customs office.

III. INVESTMENT CAPITAL SUPPORT FOR STATE ENTERPRISES

1. Subjects entitled to the support:

For State enterprises (including those already converted into joint-stock companies) which have investment projects already ratified by the competent agencies but have lacked investment capital and had used the tax money and State budget amounts up to December 31, 1999 for investment project implementation and are now still unable to repay them, if the investment projects have been completed and put to use and the post-investment production and/or business activities yield results: the profits increase or the losses decrease and the tax amounts paid into the State budget rise as compared to the pre-investment figures, they shall be considered for investment capital support. For enterprises that have compiled dossiers for consideration of capital support under the Finance Ministry’s Circular No.65/2001/TT-BTC of August 10, 2001, they shall not enjoy the support prescribed in Section III, Part B of this Circular.

The capital amount provided in support of each enterprise shall be no more than the tax amount and State budget payments already used by that enterprise for investment up to 1999, which have not yet been paid by the enterprise by the time it requests the capital settlement and after balancing and mobilizing all of its other investment capital sources.

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2. Procedural dossier

- The enterprise’s written request for investment capital support from its debts to the State budget, clearly stating:

+ The total investment value of the ratified project;

+ The value of investment in capital construction and equipment procurement... according to the final settlement report of the project already completed and put to use;

+ The capital sources mobilized for investment: capital allocated from the State budget; capital of enterprises (production and business development fund, other business capital); capital borrowed from banks and other organizations and individuals; capital being appropriated tax money and other State budget amounts (to be specified for each payable amount).

- The investment project on production and/or business expansion, already ratified by the competent authority.

- The settlement report of capital construction investment, which has been approved in strict compliance with current regulations;

- The 1999 financial and tax settlement reports, which clearly determine the payable State budget amounts already appropriated by the enterprise for investment.

- The certification by the provincial/municipal Tax Department of the payable tax amounts and State budget payments by December 31, 1999 and the tax arrears by the time the enterprise requests the settlement;

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- For an already equitized State enterprise, it must also send the decision of the competent agency on the equitization of the enterprise (the copy with the signature of the head, and the stamp, of the enterprise).

3. Order and competence for settlement

+ For the centrally-run enterprises (including the already equitized enterprises), they shall send the dossiers and documents to the Finance Ministry (the Enterprise Finance Department) for consideration and submission to the Finance Ministry for decision.

+ For the locally-run enterprises (including the already equitized enterprises), they shall send the dossiers and documents to the provincial/municipal Finance-Pricing Services. The provincial/municipal Finance-Pricing Services shall sum up the dossiers, requesting the entry of State budget revenue and expenditure regarding the tax debts and State budget amounts payable by the locally-run enterprises, then submit them to the provincial/municipal People’s Committees for consideration and written comments, which shall further be sent together with the enterprises dossiers to the Finance Ministry (the Enterprise Finance Department) for consideration and decision.

+ The Finance Ministry shall evaluate the dossiers, consider and issue decisions on investment capital support for enterprises by making entry of State budget revenues and expenditures, which shall be at most equal to the payable tax amounts and State budget amounts already used by the enterprises for investment, after mobilizing all the enterprises capital sources in the previous years up to the end of 1999.

+ The Finance Ministry shall apply mutual ceasing of revenues and expenditures for the centrally-run enterprises and enterprises liable to special consumption tax; for the entry of revenues, such revenues shall be all remitted into the central budget.

+ The provincial/municipal Finance-Pricing Services shall apply mutual ceasing of revenues and expenditures for locally-run enterprises after getting the consent from the Finance Ministry; for the entry of revenues, such revenues shall all be remitted into the local budget.

IV. REMISSION OF TAX DEBTS AND STATE BUDGET PAYMENTS

1. Remission of tax debts and State budget payments for State enterprises, which are assigned, sold, converted into joint-stock companies, or merged into other State enterprises

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a/ State enterprises to be assigned or sold under the Government’s Decree No.103/1999/ND-CP of September 10, 1999.

State enterprises to be assigned or sold under the Government’s Decree No.103/1999/ND-CP of September 10, 1999, whose payable amounts are larger than the value of their properties or than the proceeds from the sale of the enterprises.

The specific subjects are defined in Section I of the Finance Ministry’s Circular No.47/2000/TT-BTC of May 24, 2000 guiding the financial matters in the assignment and sale of State enterprises. Enterprises entitled to the remission of tax debts and State budget payments in this case are independent State enterprises and independent-cost accounting member enterprises of corporations (except for enterprises being State-run agricultural farms, forestry farms, and State enterprises operating in the fields of consultancy, designing, expertise).

b/ State enterprises converted into joint-stock companies

State enterprises converted into joint-stock companies that still owe tax debts and State budget payments, have enjoyed financial and credit support through different measures, but still meet with difficulties and are unable to pay tax debts and/or State budget amounts.

The specific subjects shall be defined according to the provisions at Point 1, Part I of the Finance Ministry’s Circular No.104/1998/TT-BTC of July 18, 1998 guiding the financial matters in the conversion of State enterprises into joint-stock companies under the Government’s Decree No.44/1998/ND-CP of June 29, 1998 on the conversion of State enterprises into joint-stock companies.

c/ State enterprises permitted by the State for merger into other State enterprises.

For State enterprises, which suffer from production and/or business losses, are owing tax debts and other State budget amounts and unable to pay them, are permitted by the State for merger into other State enterprises which also fail to pay those debts for the merged enterprises or if the tax debt-owing enterprises still cannot pay up their debts though various financial and credit support measures have been applied, the merging enterprises shall compile dossiers and report the cases to the Finance Ministry for consideration and remission of tax and State budget debts. The tax and State budget debts to be forgiven shall be no more than the outstanding tax and State budget debts of the merged enterprises, which shall be calculated up to the time the merging decision is issued but shall not exceed the remaining loss amounts of the merged enterprises by the time of merging.

1.2. Procedural dossier:

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The concerned unit’s written request for debt remission, clearly stating the proposed remitted debt amount and the reasons therefor, enclosed with the following:

a/ The decision of the competent agency on the equitization, assignment, sale or merger of the enterprise (copy with the signature of the head, and the stamp, of the enterprise).

b/ The tax settlement report with the tax agency�s certification of the accumulated tax arrears by the time of assignment, sale, equitization or merger. For tax debts and proceeds from import and/or export goods, there must be certification by the customs agency.

c/ The enterprise’s financial statement containing accumulative figures by the time of enterprise assignment, sale, equitization or merger.

d/ The sum-up report on the production and/or business situation (according to the set form).

1.3. Order and competence for settlement

The provincial/municipal Tax Departments that receive dossiers from enterprises shall examine them and determine the latter’s tax and State budget debts, then send their written concrete proposals on the handling thereof together with the full dossiers to the Finance Ministry (the General Tax Department). The General Tax Department shall consider and determine the to be-forgiven tax debt amounts, consult the Enterprise Finance Department and submit the dossiers to the Finance Ministry for issuance of decisions on debt remission.

2. Remission of tax and State budget debts for State enterprises that suffer from production and/or business losses due to objective causes and are unable to pay them

2.1. Subjects entitled to debt-remission:

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2.2. Procedural dossier:

Enterprises requesting the remission of tax and State budget debts must compile dossiers and send them to the General Tax Department, each composed of:

- The enterprise’s written request, clearly determining causes of losses, tax debts and other amounts payable to the State budget up to 1998, which are still owed by the enterprise by the time of requesting the debt remission.

- The report on the situation of tax collection and payment and tax arrears (according to the set form);

- The financial and tax settlement reports of 1998 and 2001.

2.3. Order and competence for settlement:

The provincial/municipal Tax Departments shall receive dossiers, examine the data therein and comment on the tax debts and State budget payments which the enterprises request the remission, then send the full dossiers to the Finance Ministry (the General Tax Department). The General Tax Department shall examine the dossiers, determine the to be-remitted debt amounts, consult the Enterprise Finance Department and submit them to the Finance Ministry for decision on debt remission.

3. Remission of tax debts and fines for importing/exporting enterprises

3.1. Subjects entitled to debt remission:

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3.2. Procedural dossiers

- Importing/exporting enterprises entitled to tax debt and fine remission in the cases mentioned above must prepare written expositions of the tax debt and fine amounts, the reasons for tax and fine calculation for their respective units, in addition to the competent agency’s handling or determining documents, related to the determination of the to be-retrospectively collected tax and fine amounts.

- The decision on the retrospective collection of tax and fine amounts or tax and fine notices of the custom agency (the copy affixed with the stamp of the enterprise).

- The tax-collecting customs agency’s certification of the outstanding tax and fine debt amounts.

The above-mentioned dossier shall be compiled and sent by the enterprise to the provincial/municipal Customs Department.

3.3. Order and competence for settlement

The provincial/municipal Customs Departments that receive dossiers of application for remission of the to be-retrospectively collected tax and fine amounts of enterprises, shall consider and examine the dossiers; give their written comments on the cases and the to be-remitted tax debts and fine amounts and send the full dossiers to the General Department of Customs for consideration and written comments, which shall further be sent to the Finance Ministry for consideration and decision.

4. Remission of irrecoverable tax and State budget debts for business households

4.1. Subjects entitled to debt remission

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4.2. Procedural dossier, order and competence for settlement

- The urban/rural district tax offices shall base themselves on the dossiers monitoring households tax debts to inspect and determine those households that are unable to pay debts; and through the ward/commune tax advising councils, determine and report to the ward/commune People’s Committees for certification each specific case as well as summing up and drawing up of the lists of concerned households for report to the district People’s Committees and concurrently to the provincial/municipal Tax Departments.

- The provincial/municipal Tax Departments shall have to make sum-up reports and submit them to the provincial/municipal People’s Committees for consideration and decision. Based on the provincial/municipal People’s Committees decisions, the provincial/municipal Tax Departments shall notify the Sub-Departments of Tax of the remission of tax debts for concerned households.

C. ORGANIZATION OF IMPLEMENTATION

1. For subjects having their debts already frozen under the Prime Minister’s Directive No.790/TTg of October 26, 1996 and the Finance Ministry’s Circular No.23/1998/TT-BTC of February 20, 1998, that are now still owing State budget debts, the causes of these debts shall be clearly determined for handling according to the provisions of this Circular. Enterprises entitled to debt handling in this case must compile dossiers according to general regulations and at the same time, attach to their dossiers the copies of decisions on the freezing of tax and State budget debts as prescribed in Circular No.23/1998/TT-BTC (mentioned above). Such a dossier must be the original and the financial and tax settlement reports, if not the original, must be stamped as true copies by the enterprise.

2. This Circular’s provisions on rescheduling, freezing and forgiving tax debts and other amounts payable to the State budget shall not apply to the following cases:

a/ Enterprises that owe tax and State budget debts due to subjective causes or have committed law violations on which conclusions have not yet been made by the competent bodies.

b/ Enterprises whose tax debts and State budget payments are being considered for handling according to the debt-payment mechanism provided for at Point 3.2, Section III, Part B of July 18, 1998 Joint Circular No.102/1998/TTLB/BTC-NHNN of the Finance Ministry and the State Bank guiding the implementation of the Prime Minister’s Decision No.95/1998/QD-TTg of May 18, 1998 on debt handling in the second phase.

Based on the competent agencies decisions on investment capital support, remission of tax and State budget debts for enterprises, the enterprises shall account and adjust the figures of financial and tax settlement reports according to the prescribed regime.

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The tax and customs agencies shall, within 15 working days after receiving the complete dossiers from enterprises, have to examine and consider such dossiers and send written proposals to the competent agencies for handling of the enterprises tax debts. In cases where the dossiers need to be supplemented or the enterprises are not entitled to the debt handling, the dossier-receiving bodies must notify the enterprises thereof in writing within the above-prescribed time limit.

The tax agencies shall not impose fines on the rescheduled or frozen tax debts as from the date the tax debt-rescheduling or -freezing decisions are issued by the competent authorities. Upon the end of the tax debt-rescheduling or -freezing duration, the tax-debt payers shall have to pay up the tax debts into the State budget. In cases where the tax payers fail to execute the decisions, the tax agencies shall calculate fines on the delayed tax payment as from date the debt-rescheduling or freezing duration expires.

On the basis of the contents of the above-mentioned guidance, the ministries, branches and provincial/municipal People’s Committees are requested to direct their dependent units to guide the latter’s business establishments in revising the classification of tax debts for handling according to the provisions and guidance in this Circular.

This Circular takes effect after its signing. In the course of implementation, if any problems arise, the concerned agencies and units are requested to report them to the Finance Ministry for study and timely settlement.

FOR THE FINANCE MINISTER
VICE MINISTER




Vu Van Ninh