Complaints against tax decisions: definition, circumstances, and procedures

The following article by NPLaw provides the current legal framework on complaints against tax decisions to assist relevant parties in effectively achieving their objectives.

I. Current situation of complaints against tax decisions

The current status of complaints against tax decisions in Vietnam reflects existing shortcomings in the implementation of tax policies and the protection of the lawful rights and interests of taxpayers, including both organizations and individuals.

In practice, complaints against tax decisions have become increasingly common as business entities become more aware of their rights and obligations, while tax authorities have strengthened their regulatory requirements and management. Such complaints typically relate to the following decisions:

• Complaints regarding the amount of tax payable;
• Complaints regarding tax reassessment, arrears collection, and administrative sanctions;
• Complaints regarding tax exemption, reduction, or refund.

However, many organizations and individuals remain unfamiliar with the applicable legal provisions governing complaints, which loses their ability to safeguard their rights during tax declaration and payment. 

Overall, it underscores the need to better understand the legal framework governing complaints against tax decisions.

II. Legal provisions on complaints against tax decisions

1. What is a complaint against a tax decision?

Current legislation does not provide a specific definition of “complaints against tax decisions”. Therefore, it is necessary to interpret such a term by analyzing the concepts of “complaint” and “tax decision”. 

Pursuant to Clause 1, Article 2 of the Law on Complaints 2011, a complaint is defined as an act whereby a citizen, agency, organization, or public official requests a competent authority, organization, or individual to review an administrative decision issued by the State administrative authority or a competent person therein, on the legal grounds that such decision is unlawful and infringes upon their lawful rights and interests.

An administrative decision, as defined under Clause 8, Article 2 of the same Law, is a document issued by the State administrative authority or a competent person within such authority to resolve a specific matter in State administrative management, applicable on a one-time basis to one or several specific subjects. A tax decision is a form of administrative decision.

Accordingly, a complaint against a tax decision refers to an act whereby a taxpayer (individual, organization, or entity) requests the tax authority or a competent person within the tax authority to review a previously issued decision when there are legal grounds to believe that such decision is unlawful and infringes upon their lawful rights and interests.

2. When should a complaint against a tax decision be filed?

One of the main concerns when considering a complaint against a tax decision is determining the appropriate timing.

Based on Clause 1, Article 147 of the Law on Tax Administration 2019 and Clause 1, Article 2 of the Law on Complaints 2011, a complaint should be filed when the taxpayer, organization, or individual has reasonable legal grounds to consider that the tax decision is unlawful and adversely affects their lawful rights and interests.

In summary, a complaint is filed when a tax decision infringes upon the complainant’s legitimate rights and interests.

3. Procedures for filing a complaint against a tax decision

Once it is determined that a complaint is necessary to protect one’s rights, the next step is to understand the applicable procedures.

Under Clause 3, Article 147 of the Law on Tax Administration 2019: The authority and procedures for resolving complaints and denunciations shall comply with the laws on complaints and denunciations.

Based on this provision and Article 7 of the Law on Complaints 2011, the procedure is as follows:

- Step 1: Submission of complaint dossier

Where there are legal grounds to believe that a tax decision is unlawful and directly infringes upon lawful rights and interests, the taxpayer or relevant entity may file a first-time complaint with the tax authority issuing the decision.

The complaint may be submitted either in writing (complaint petition) or made directly.

- Step 2: Receipt and processing of the complaint

Upon receipt of the complaint from the administrative unit, within one (01) working day, the head of the assigned unit must designate a handling officer and update the complaint information in the inspection system - KTNB. The assigned officer shall classify the complaint, propose a handling method, and submit it to the head of the tax authority for approval.

Subsequently, the tax authority will work with the complainant to verify the matter, prepare a verification report, and draft a complaint resolution decision. On that basis, the competent person shall organize a dialogue (to be conducted within a maximum of five (05) working days, unless postponed upon written request by the parties).

The dialogue must be recorded in minutes specifying the time, location, participants, content, opinions of the parties, agreed matters, and unresolved issues, with signatures of all parties involved. The minutes shall be made in at least three (03) copies, each party retaining one.

- Step 3: Issuance of the complaint resolution decision

Based on the compiled dossier, evidence, applicable legal provisions, verification results, advisory council minutes, dialogue outcomes (if any), and document appraisal results, the verifying officer shall finalize the draft complaint resolution decision and submit it through the relevant department head to the head of the tax authority for issuance.

The processing time is:

• 1 working day if no new issues arise;
• Up to 3 working days if new details emerge after the dialogue.

Within three (03) working days from the issuance date, the administrative unit must deliver the decision to the complainant.

Depending on the complexity of the case, additional steps may be required in practice.

III. Questions on complaints against tax decisions

1. Can a taxpayer simultaneously file a complaint and initiate a lawsuit against a tax decision?

Under Clause 1, Article 7 of the Law on Complaints 2011, a complainant may either file a complaint or initiate an administrative lawsuit before a court.

Additionally, Clause 1, Article 33 of the Law on Administrative Procedures 2015 requires the court to request the claimant to choose one competent authority if both a complaint and a lawsuit are filed simultaneously.

Therefore, simultaneous complaint and litigation are not permitted.

2. Can a complaint regarding a tax decision lead to the tax authority issuing a replacement or a complete revision of the previous decision?

After the complaint resolution process (as per Decision No. 178/QĐ-TCT dated February 25, 2019 of the General Department of Taxation), if the tax decision is found to be unlawful and infringing upon lawful rights and interests, the tax authority may issue a new decision that wholly replaces or amends the previous decision.

3. Is it permissible to authorize a lawyer or another person to file a complaint?

Pursuant to Points a and b, Clause 1, Article 12 of the Law on Complaints 2011, a complainant may:

• Authorize a family member or another person with full civil capacity if they are unable to act due to illness or other objective reasons;
• Authorize a lawyer to represent them in filing the complaint and protecting their lawful rights and interests.

4. Can a complaint be filed if the enterprise is undergoing dissolution or bankruptcy?

Article 6 of the Law on Complaints 2011 does not prohibit enterprises in dissolution or bankruptcy from filing complaints.

Therefore, such enterprises retain the right to file complaints against tax decisions.

5. What contents must be included in a complaint?

Pursuant to Clause 2, Article 8 of the 2011 Law on Complaints and Clause 1, Article 3 of Decree No. 124/2020/NĐ-CP, a complaint must include:

• Date of the complaint;
• Name, address, and identification details of the complainant;
• Name and address of the tax authority subject to the complaint;
• Content and grounds of the complaint, along with supporting documents;
• Requested resolution;
• Signature or fingerprint of the complainant.

IV. Legal consulting services on complaints against tax decisions

NPLaw’s legal consulting services provide professional solutions to help taxpayers protect their lawful rights and interests against unlawful tax administrative decisions. Clients are offered:

• Case analysis and evaluation;
• Assistance with complaint procedures (including dossier preparation and representation before competent authorities);
• Participation in resolving related disputes.

These services help save time and effort while enhancing the likelihood of a successful outcome.

In conclusion, this article provides a comprehensive overview of complaints against tax decisions. A thorough understanding of these regulations enables taxpayers to protect their rights effectively while minimizing potential legal risks.