法律解答 - Bizlawyer

Regulations on the number and participants of dialogue at the workplace

回答

On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on working conditions and labor relations. Accordingly, for dialogue activities at the workplace, this Decree regulates the number and participants as follows:

(1) The Employer Party “Employer”:

Based on production and business conditions, The labor organization and the employer decide the number and participants of the dialogue to ensure at least 03 people, including the legal representative of the employer and the regulations in the grassroots democracy at the workplace.

(2) The Employee Party “Employee”:

Based on production and business conditions, labor organization, structure, number of employees and gender equality factors, organization representing employees at the grassroots level and a group of representatives to discuss participation in the dialogue but must ensure the number as follows:

At least 03 people, if the employer uses less than 50 employees;
At least from 04 people to 08 people, if the employer uses from 50 employees to less than 150 employees;
At least from 09 people to 13 people, if the employer uses from 150 employees to less than 300 employees;
At least from 14 people to 18 people, if the employer uses from 300 employees to less than 500 employees;
At least from 19 to 23 people, if the employer uses from 500 to less than 1,000 employees;
At least 24 people, if the employer uses 1,000 or more employees.

Based on the number of representatives for the dialogue of the employees, the grassroots representative organization and the representative group for the employee’s dialogue determine the number of representatives participating in the dialogue according to the proportion of members of the organization and group yourself on the total number of employees of the employer.

The list of members representing to participate in the dialogue of the two parties is made periodically at least every 2 years and publicly announced at the workplace. During the period between two periods, to determine which members participate in the dialogue, if there is a representative member who cannot continue to participate, the two parties shall consider and decide to add replacement members of the organization or their group and Publicly announced at work.

When conducting a dialogue outside of the above dialogue participants, the two sides agreed to invite all employees or some related employees to join in the dialogue, ensuring the participation of female employee representatives dialog on issues related to the rights and interests of female employee.

This Decree takes effect from February 1, 2021.

Regulations on the time limit for notification before unilateral termination of labor contracts for The enterprise’s executive

回答

On December 14, 2020, the Government issued Decree 145/2020/ND-CP guiding the Labor Code on labor conditions and labor relations. Accordingly, this Decree provides for the time limit for notification before unilateral termination of labor contracts for The enterprise’s executive.

According to the provisions of this Decree, The enterprise’s executive (as stipulated in the Enterprise Law) is a specific profession. When employees in specific profession unilaterally terminate labor contracts or employers unilaterally terminate labor contracts for these employees, the notice period is as follows:

At least 120 days for an indefinite term or a indefinite-term labor contract of 12 months or more;
At least a quarter of the term for the labor contract less than 12 months.

This Decree takes effect from February 1, 2021.

Legal News No. 18/2020

回答

The cases of not sanctioning administrative violations of taxes, invoices

回答

On October 19, 2020, the Government issued Decree 125/2020/ND-CP (“Decree 125/2020/ND-CP“) on sanctioning of administrative violations of taxs and invoices. Here are some noteworthy contents of Decree 125/2020/ND-CP on: The cases of not sanctioning administrative violations of taxes, invoices.

Article 9 of Decree 125/2020/ND-CP prescribes 06 cases of not sanctioning administrative violations of taxes, invoices as follows:

The cases of not sanctioning administrative violations in accordance with the law on handling of administrative violations.
Taxpayers are late for electronic tax procedures and invoices due to technical problems of the information technology system reported on the web portal of tax authorities (in case of violations due to events of force majeure).
Taxpayers commit administrative violations of tax due to compliance with documents guiding and handling decisions of competent tax agencies or state agencies related to the contents of determination of taxpayers’ tax obligations (including guiding documents, handling decisions issued before the effective date of this Decree), except for: When tax inspection and examination at taxpayers’ offices have not discovered errors in declaring and determining payable tax amounts or tax amounts to be exempted, reduced or refunded, but after that the tax administrative violation of the taxpayer is detected.
In case of incorrect declaration, the taxpayer has made additional declarations in the tax declaration dossier and has voluntarily paid the payable tax amount before the tax agency announces its decision on tax examination or inspection at taxpayers ‘offices or before the time tax agencies detect that there is no tax inspection or examination at taxpayers’ offices or before other competent agencies detect them.
Individuals who directly conduct personal income tax finalization are late in submitting personal income tax finalization dossiers but the refundable tax amounts arise; Business households and business individuals have their tax assessed.
No sanction is imposed on the time limit for filing a tax return while a taxpayer is extended to submit such tax declaration.

Decree 125/2020/ND-CP takes effect from December 5, 2020.

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The statute of limitations for sanctioning administrative violations of tax and invoices

回答

On October 19, 2020, the Government issued Decree 125/2020/ND-CP (“Decree 125/2020/ND-CP“) on sanctioning of administrative violations of taxs and invoices. Here are some noteworthy contents of Decree 125/2020/ND-CP on: The statute of limitations for sanctioning administrative violations of tax and invoices.

Clause 1, Clause 2 Article 8 of Decree 125/2020/ND-CP prescribes The statute of limitations for sanctioning administrative violations of tax and invoices as follows:

Violation	Statute of limitations	The time for calculating the statute of limitations for sanction
About the invoices	01 year	For acts of administrative violations that are being carried out, the statute of limitations is counted from the date the persons competent to perform the public duties detect the violations. For an administrative violation has ended, the statute of limitations is counted from the date the violation ends.
About Tax Procedures	02 years	From the date of violation.
Tax evasion (not to the point of criminal prosecution, false declaration leading to lack of tax payable or increase in exempt, reduced, or refunded tax amounts),	05 years	From the date of violation.

Decree 125/2020/ND-CP takes effect from December 5, 2020.

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The level of fines for the administrative violation of taxes and invoices

回答

On October 19, 2020, the Government issued Decree 125/2020/ND-CP (“Decree 125/2020/ND-CP“) on sanctioning of administrative violations of taxs and invoices. Here are some noteworthy contents of Decree 125/2020/ND-CP on: The level of fines for the administrative violation of taxes and invoices.

Clause 1, Article 7 of Decree 125/2020/ND-CP prescribes The level of fines for the administrative violation of taxes and invoices as follows:

Subject of violation	Field
Subject of violation	Tax Procedures	Invoices
Organization	Up to 200 million VND	Up to 100 million VND
Individual	Up to 100 million VND	Up to 50 million VND

In addition to the maximum fine for organizations and individuals in the tax procedures and invoices mentioned above, Decree 125/2020/ND-CP also stipulates the fine level in 03 special cases as follows:

For false declarations leading to understatement of payable tax amounts or increase in tax amounts to be exempt, reduced, or refunded: The fine level is 20% of the understated tax amount or the higher tax exemption, reduction or refund in accordance with the law.
For tax evasion: The fine is from 1 to 3 times the evaded tax amount.
For the act of not deducting from the account of the state budget (Penalties for administrative tax violations in the case of commercial banks, guarantors paying tax): The fine is corresponding to the amount not deducted from the state budget account.

Thus, it can be seen that, Decree 125/2020/ND-CP has provided specific and detailed regulations on the fine level for administrative violations of taxes and invoices that were previously scattered or not yet regulated in the circulars of the Ministry of Finance, namely Circular 166/2013/TT-BTC (guidance on sanctioning administrative violations of tax issued by the Minister of Finance); Circular 10/2014/TT-BTC (guidance on sanctioning administrative violations on invoices issued by the Minister of Finance).

Decree 125/2020/ND-CP takes effect from December 5, 2020.

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Cases of taxpayer information disclosure from December 5, 2020

回答

On October 19, 2020, the Government issued Decree 126/2020/ND-CP guiding the Law on Tax Administration. Accordingly, this Decree specifies cases in which taxpayer information will be publicized from December 5, 2020, including:

Stop working, have not completed the procedure for TIN deactivation, are inactive at the registered address.
Tax evasion, assisting tax evasion, appropriation of tax, tax law violation, and then fleeing the business premises; illegal issuance or use of invoices.
Failure to file a tax return 90 days after the deadline for filing a tax return is required by applicable tax laws.
Taxpayers’ violations of tax law affect the tax rights and obligations of other organizations and individuals.
Failure to comply with the requirements of tax authorities in accordance with the law such as: Refusing to provide information or documents to tax authorities, failing to comply with inspection and inspection decisions and other requests of tax administration agencies according to the provisions of law.
Preventing and preventing tax officers and customs officers from performing their duties.
More than 90 days from the date of expiration of the deadline for paying taxes and other state budget revenues or the expiration of the time limit for compliance with administrative decisions on tax administration without the taxpayer or the guarantor voluntarily executive.
Individuals and organizations that do not comply with administrative decisions on tax administration but have acts of spreading assets, fleeing.
Other information is disclosed in accordance with the law.

Thus, from December 5, 2020, if the taxpayer falls into the above cases, taxpayer’s information will be publicized in the following forms: posted on the website of the tax administration agencies, websites of tax administration agencies at all levels; Publicity on the mass media; Posting up at offices of tax administration agencies; Through citizen reception, press conference, press release, activities of spokespersons of tax administration agencies at all levels in accordance with the law or other forms as prescribed by law.

This Decree takes effect on December 5, 2020.

Completion of tax obligations before exiting

回答

On October 19, 2020, the Government issued Decree 126/2020/ND-CP guiding the Law on Tax Administration. Accordingly, this Decree provides for individuals to fulfill their tax obligation before exiting abroad. If the tax obligation has not been fulfilled, the competent person will issue a decision to suspend the exit. Cases of suspension from exit include:

Suspension of exit for individuals, individuals who are the legal representatives of corporate taxpayers who are being coerced to execute administrative decisions on tax administration but have not fulfilled their obligations. Tax payment
Vietnamese people who leave to settle abroad have not fulfilled their tax obligation.
Vietnamese people residing overseas have not fulfilled their tax obligation before exiting.
Before exiting from Vietnam, foreigners have not fulfilled their tax obligation.

After reviewing, comparing and accurately determining tax obligations of taxpayers, the tax administration agency directly managing the taxpayer shall make a list of cases of suspension from exit and make a written submission. Immigration authorities also send taxpayers know to fulfill their tax obligations before leaving. Right on the day of receiving the written suspension from the tax authority, the immigration authority shall implement the suspension in accordance with regulations and post it on the website of Immigration management. If the taxpayer has fulfilled the tax obligation, within 24 working hours, the tax administration agency shall issue a document canceling the suspension of exit.

If the taxpayer continues not to fulfill the tax obligation, before the expiration of the exit suspension period 30 days, the tax authority shall send a written extension of the exit suspension to the immigration authority and send taxpayers to know.

Thus, according to the above provisions, only when the obligation to pay tax to the State is fulfilled can the above cases be allowed to exit abroad.

This Decree takes effect on December 5, 2020.

Banks must provide customer account information and withhold tax as requested by tax authorities

回答

On October 19th, 2020, the Government issued Decree 126/2020/ND-CP (“Decree 126”) detailing a number of articles of the Law on Tax Administration No.38/2019/QH14. In particular, Decree 126 provides for the responsibilities of commercial banks in providing customer account information and withholding tax on customers’ accounts opened at banks for tax authorities.

Decree 126 provides for the responsibilities of commercial banks as follows:

Provide customer account information for tax authorities

Pursuant to Clause 2, Article 30 of Decree 126, commercial banks are responsible for providing tax authorities with information on taxpayers’ payment accounts opened at banks, including: name of account holder. Account number according to the tax code issued by the tax authority, date of opening of the account, date of account closure. The provision of this account information is done for the first time within 90 days from December 5th, 2020 and account information is updated monthly for 10 days of the following month.
In addition, commercial banks must also provide transaction information through their accounts, balances, and transaction data at the request of the head of the tax authority to serve the purpose of inspection, verification and definition tax payables and taking coercive measures to enforce administrative decisions on tax administration in accordance with the tax law.
Withholding tax on customers accounts opened at banks
Under the provisions of Clause 3, Article 30 of Decree 126, banks are required to withhold and pay tax obligations of an overseas supplier with a permanent establishment in Vietnam that operates e-commerce, doing business on a digital basis with domestic organizations and individuals (hereinafter referred to as overseas suppliers) if the overseas supplier has not yet registered, declared and paid taxes. At that time, a commercial bank shall withhold and pay tax obligations on behalf of the tax law for each product or service that the buyer is an individual in Vietnam pays to the supplier. foreign. The name and website address of the overseas supplier will be provided by the General Department of Taxation to the commercial bank.
In case an individual buys goods or services from a foreign supplier and pays by card or other forms that the commercial bank cannot deduct or pay, the commercial bank shall be responsible track the amount transferred to overseas suppliers and send monthly to the General Department of Taxation.
Although the Decree requires tax authorities to be responsible for the confidentiality of information and to be fully responsible for the safety of information in accordance with the law, however, there are concerns about the possibility of information disclosure of the taxpayer as well as the confidentiality of the bank.

Protection of the employment of whistleblowers who work under labor contracts

回答

On October 15th, 2020, the Ministry of Labor – War Invalids and Social Affairs issued Circular No.08/2020/TT-BLDTBXH guiding the employment protection of whistleblowers working under labor contracts. This document takes effect from December 1st, 2020.

Accordingly, job protection of the protected person is understood as a competent agency considering and issuing a decision on application of necessary measures specified in Clause 2, Article 57 of the Law on denunciation to job protection for the protected person.

The order is as follows:

When there are grounds specified in Clause 3, Article 47 of the Law on Denunciation, the denunciator or the denunciation-settler shall send a written request to the competent agency to apply measures to protect the protected person’s employment;
In urgent cases, the denouncers can request in person or by phone to request the person settling the denunciation to apply protective measures immediately, but then the request must be presented in writing.
In case the request for protection is found to be grounded, the competent agency shall issue a decision to apply the protected person’s employment protection measures according to regulations.
In case the request for protection is unfounded or deems it unnecessary to apply the protection measure, the competent authority shall issue a notice not to apply the protection measure as prescribed.