SOCIAL REPUBLIC OF VIETNAM
No: 3529 / TCT-KK
Hanoi, date 27 month 08 year 2020
Dear: Quang Nam Provincial Tax Department.
Responding to Official Letter No. 7453 / CT-TKT2 dated September 23, 9, Official Letter No. 2019 / CT-TKT710 dated 2/12/02 of Quang Nam Provincial Tax Department have problems with tax refund for business establishments business bankruptcy. Regarding this matter, the General Department of Taxation has the following opinions:
Pursuant to Clause 1, Article 30 of the Law on Tax Administration, providing the principles of tax declaration and tax calculation:
"first. Taxpayers must accurately, truthfully and fully declare tax returns according to the form prescribed by the Ministry of Finance and submit all types of documents and documents specified in their tax declaration dossiers to managing agencies. tax."
Clause 3 Article 1 of the Ministry of Finance's Circular No. 130/2016 / TT-BTC dated August 12, 8 guiding tax refund cases:
“5. Business establishments that pay value-added tax according to the tax credit method are entitled to value-added tax refund upon ownership transformation, enterprise transformation, merger, consolidation, division, separation, dissolution, bankruptcy. termination of operation with an overpaid value-added tax amount or the input value-added tax amount not yet fully credited.
Business establishment in the investment stage has not yet put into production and business activities but must dissolve, go bankrupt or terminate operation without incurring output value-added tax on the main business activity under the first project In case of investment, the declared, deducted or refunded value added tax is not required to be adjusted. Business establishments must notify the supervisory tax authority of the dissolution, bankruptcy, or termination of operation according to regulations.
If a business establishment completes the procedures prescribed by the law on dissolution or bankruptcy, the refunded value-added tax amount must comply with the law on dissolution and bankruptcy. property and tax administration; For the VAT amount not yet refunded, the tax refund shall not be settled.
In cases where a business establishment terminates its operation and does not incur output value-added tax on the main business activity, the refunded tax must be returned to the State budget. Where there is a sale of a property subject to VAT, the input value-added tax amount for the sold asset is not adjusted.
Example: In 2015, enterprise A, in the investment stage, has not yet operated its production and business activities, and enterprise A has incurred an input value-added tax amount of the investment period, which has been reimbursed by the tax authority in August 8 is 2015 million dong. Due to difficulties, in February 700, enterprise A decides to dissolve and sends a document to the tax authority about dissolution. In the period when the enterprise A has not completed the legal procedures for dissolution, the tax authority has not completed. refunded VAT is refunded. Twenty days before enterprise A has sufficient legal procedures to officially dissolve in October 2, it sells one (2016) invested asset, then enterprise A does not have to adjust the tax amount. the corresponding input value of the sold property (the amount of the tax reimbursed by the tax authority). For assets that are not sold, enterprise A must make adjustments to pay back the refunded value-added tax ".
Clause 5, Article 10 of Circular No. 156/2013 / TT-BTC dated November 06, 11 of the Ministry of Finance guiding: “c) Cases of additional declaration to tax declaration dossiers
- In case the taxpayer has received the tax refund from the tax agency, the taxpayer must pay the wrongly refunded tax amount and calculate the late payment interest from the date the State Treasury agency signs for confirmation on the refund order. State budget revenue or the order to refund cum offset state budget revenues up to the date the taxpayer makes additional declaration. In case the taxpayer has not fully paid the refunded tax amount or charged the late payment interest incorrectly, the tax authority will charge the late payment interest and notify the taxpayer. ”
Clause 1, Article 34 of Circular No. 156/2013 / TT-BTC dated November 06, 11 of the Ministry of Finance guiding the calculation of late payment interest for the late payment of tax;
"first. Cases of late payment of tax payment interest
a) The taxpayer is late in paying tax compared to the prescribed time limit, the deadline for tax deferral, the deadline stated in the tax authority's notice, and the deadline stated in the decision on handling of tax law violations of the agency. customs duties and handling decisions of competent state agencies.
b) The taxpayer's underpayment of tax due to incorrect declaration of payable tax amount, exempt tax amount, reduced tax amount, and refundable tax amount of previous declaration periods ”.
Pursuant to the above regulations and guidance, the case Kinh Phuoc Toan Co., Ltd. was reimbursed by the Tax Department of Quang Nam province for the input value-added tax of the investment project in the period 2007-2010. in operation, no revenue generated, terminated under Decision No. 58 / QD-KTM dated 13/4/2016 of the Management Board of Chu Lai Open Economic Zone; The People's Court of Quang Nam province issued Decision No. 01/2019 / QD-MTTPS dated May 13, 05 on opening bankruptcy proceedings for Kinh Phuoc Toan Co., Ltd., the Tax Department of Quang Nam province and the real company VAT refunded tax amounts to be refunded is now handled according to Clause 2019 Article 3 of the Ministry of Finance's Circular No. 1/130 / TT-BTC dated August 2016, 12.
Pursuant to Clause 1, Article 30 of the Law on Tax Administration, providing the principles of tax declaration and tax calculation; Clause 3 Article 1 of Circular No. 130/2016 / TT-BTC dated August 12, 8 of the Ministry of Finance, for assets not sold, the Company must declare and adjust to pay value added tax. has been refunded.
In case, Kinh Phuoc Toan Co., Ltd. does not proactively declare, adjust and pay back the tax amount to be recovered, the Department of Taxation shall recover the refund and sanction administrative violations according to its competence, if the statute of limitations is exceeded. the company will not be sanctioned but must pay late payment interest.
The General Department of Taxation informs the Tax Department of Quang Nam province to be known./.
TL. GENERAL DIRECTOR
Le Thi Duyen Hai