Is person liable for criminal prosecution for unsatisfactory tax evasion in Vietnam?

Is person liable for criminal prosecution for unsatisfactory tax evasion in Vietnam?

I want advice on tax evasion, does this crime have to have consequences? Is it a crime to evade tax in case of making a fake dossier for tax exemption for changing the use purpose of agricultural land to residential land but failing to achieve it due to detection?

Answer: Pursuant to Article 200 of the 2015 Penal Code as amended by Point a, Clause 47, Article 1 of the 2017 Penal Code Amendment Law as follows:

1. Any person who commits any of the following acts of tax evasion with an amount of evaded tax from VND 100,000,000 to under VND 300,000,000 or under VND 100,000,000 while having incurred an administrative penalty for tax evasion or having an unspent conviction for any of the offences specified in Article 188, 189, 190, 191, 192, 193, 194, 195, 196, 202, 250, 251, 253, 254, 304, 305, 306, 309 and 311 hereof shall be liable to a fine of from VND 100,000,000 to VND 500,000,000 or face a penalty of 03 - 12 months' imprisonment:

d) Use illegal invoices or vouchers to record purchased goods and raw materials that results in reduction of tax payable or increase exempt, reduced, deductible or refundable tax;

dd) Use of other illegal documents to falsify the amount of tax payable or increase exempt, reduced, deductible or refundable tax;

e) Making incorrect declaration of exported or imported goods without making an additional declaration after customs clearance are granted, except in the circumstances specified in Article 188 and Article 189 hereof;

i) Using tax-free goods, goods eligible for tax exemption or conditional tax exemption for improper purposes without notifying the change of purposes to the tax authority.

=> According to this Article, an act of tax evasion with an amount of evaded tax from VND 100,000,000 to under VND 300,000,000 or under VND 100,000,000 while having incurred an administrative penalty for tax evasion or having an unspent conviction for any of the offences specified in Article 188, 189, 190, 191, 192, 193, 194, 195, 196, 202, 250, 251, 253, 254, 304, 305, 306, 309 and 311 of the Penal Code are not depended on consequences, just having some of the behaviors listed above is enough to constitute tax evasion.

In addition, we provide additional information, if the amount of tax evasion is not enough 100 million, but have never been administratively fined or committed tax evasion as well as the crimes in Articles 188, 189, 190, 191, 192, 193, 194 , 195, 196, 202, 250, 251, 253, 254, 304, 305, 306, 309 and 311 of the 2015 Penal Code, according to Clause 7, Article 13 of Circular 166/2013/TT-BTC stipulating:

7. If an offense prescribed in Point b, c, d, dd, e, g, h, i, or k Clause 1 of this Article is found before the deadline for submitting the tax declaration expires, or found after the said deadline but it does not lead to a reduction in tax payable or increase in exempt/reduced tax, and does not incur a penalty of tax evasion, the penalties for violations against tax procedures in Clause 4 Article 8 or penalties for accounting offenses shall apply.

In which, the acts at points b, c, d, dd, e, g, h, i, k, Clause 1 of this Article include:

b) Using illegal invoices or documents; Using invoices illegally; using unusable invoices to declare tax to reduce tax payable or increase refundable tax, reduced tax, or exempt tax.

d) Make invoices with incorrect quantities of values of sold goods/services to reduce tax payable.

g) Using goods eligible for tax exemption (including tax-free goods) for purposes other than permissible purposes without informing the tax authority.

k) Using illegal invoices and documents in other cases to declare incorrect tax payable or refundable tax; declaring incorrect tax basis to evade or avoid tax.   

Thus, the crime of tax evasion does not depend on the results of the successful or unsuccessful performance of the act, but only the act of tax evasion can be liable for criminal prosecution in Vietnam.

If I avoid another vehicle and have to cross the lane causing an accident, will I be liable for criminal prosecution in Vietnam?

I was driving the truck because I was avoiding other vehicles and had encroached on the lane, causing an accident for motorbikes traveling in the opposite direction, resulting in one person being injured in the cheek and one in the knee. I and the complainant's family have agreed to compensate each other and commit not to sue. So I would like to ask the lawyer if I will be liable for criminal prosecution? Thank you!

Answer: *Case 1: Your lane crossing is an unexpected event.

According to Article 20 of the 2015 Penal Code: The person who commits an act that results in harmful consequences is exempt from criminal responsibility if such consequences cannot be foreseen or have to be foreseen.

Thus, if your lane crossing is an unexpected event, you will not be liable for criminal prosecution according to the above provisions in Vietnam.

*Case 2: Your lane crossing is not an unexpected event.

According to Clause 1, Article 9 of the Law on Road Traffic 2008 stipulates: Road users shall keep to the right in their travel direction, move on the prescribed lane or road section and obey the road signal system.

Thus, your crossing into another lane violates road traffic regulations in Vietnam.

Pursuant to Clause 72, Article 1 of the 2017 Penal Code Amendment Law stipulates

1. Any person who violates road traffic rules and causes damage for another person in any of the following circumstances shall be liable to a fine of from VND 30,000,000 to VND 100,000,000 or face a penalty of up to 03 years' community sentence or 01 - 05 years' imprisonment:

a) The offence results in the death of a person;

b) The offence causes ≥ 61% WPI for another person;

c) The offence causes a total WPI of 61% - 121% for more than one person.

d) The property damage caused by the offence is assessed at from VND 100,000,000 to under VND 500,000,000.

2. This offence committed in any of the following circumstances carries a penalty of 03 - 10 years' imprisonment:

a) The offender does not have a driving license as prescribed;

According to the information you provide, you cause an accident and as a result, one person is injured in the cheek and one is injured in the knee, if these two people have a total injury rate from 61% to 121%, you shall be liable for criminal prosecution according to the above provisions in Vietnam.

If the total injury of those two people is less than 61%, then you will not be liable for criminal prosecution but administrative and civil liability (compensation for damage) in Vietnam.

If I buy a phone that is stolen property, will I be liable for criminal prosecution in Vietnam?

I am a university student, recently my friend sold me an old dell laptop for 3 million dong, I found the price affordable so I bought it, then my friend was arrested by the police for robbery property, the other day I was invited to work by the police and asked to return my laptop because this is the property that my friend robbed another student. Can you tell me if I have to return the property in this case? If I don't return, will I be considered as consuming property committed by other people?

Answer: Pursuant to Clause 1, Article 323 of the 2015 Penal Code, which provides for storing or buying property obtained by crime, specifically as follows:

1. Any person who, without prior promise, stores or buys a piece of property in the knowledge that it is obtained through another person's commission of a crime shall be liable to a fine of from VND 10,000,000 to VND 100,000,000 or face a penalty of up to 03 years' community sentence or 06 - 36 months' imprisonment.

Based on the regulation, it must be understood as follows:

- Possessing property that has been committed by another person is understood as an act that, although not promised in advance, has stored property (storage, concealment, preservation of property, asking for, or leasing a place to store it, property preservation) that they know well because of other people's crimes (such as robbery, theft, fraud, etc.).

- Consumption of property that has been committed by another person is understood as an act that, although not promised in advance, has consumed the property (buying, selling, renting, leasing, exchanging, pledging, mortgaging, depositing, depositing, giving, giving, receiving property or assisting in the performance of such acts) which you know is caused by another person committing a crime.

On the other hand, based on Article 167 of the Civil Code 2015 stipulating infringement upon freedom of speech, freedom of the press, the right of access to information and the right to protest of citizens:

1. Any person who uses of violence, threatens to use violence or otherwise obstructs a citizen from exercising his/her freedom of speech, freedom of the press, right of access to information or right to protest despite the fact that he/she has incurred disciplinary or administrative penalty for the same offence shall face a penalty of up to 02 year's community sentence or 03 - 24 months' imprisonment.

2. This offence committed in any of the following circumstances carries a penalty of 01 - 05 years' imprisonment:

a) The offence is committed by an organized group;

b) The offence involves abuse of the offender's her position or power;

c) The offence has a negative impact on social safety, order and security.

3. The offender might be forbidden from holding certain positions for 01 - 05 years.

In this case, the police must prove the sign that you, although not promising in advance, store or consume that your friend committed a crime, then you will be liable for criminal prosecution in Vietnam. If you cannot prove it, you will not be liable for criminal prosecution in Vietnam.

In addition, according to the provisions of the law in Vietnam, although this is the case that you were honest in buying the other computer, but because this is the property obtained by robbery, so in this case you have obligation to return the property to its previous owner. To protect your rights, you can sue your friend to claim damages in accordance with the law.

Best regards!