LEGAL UPDATE
On October 19, 2020, the Government issued Decree No. 123/2020/ND-CP 123/2020/ND-CP (“Decree No. 123”) regulating invoices and relevant documents. After that, the Ministry of Finance issued Circular No. 78/2021/TT-BTC dated September 17, 2021 (“Circular No. 78”), guiding the implementation of a number of articles of the Law on Tax Administration dated June 13, 2019 and Decree No. 123.
Decree No. 123 and Circular No. 78 are expected to take effect from October 1, 2022, with following notable contents on electronic invoices (e-invoices):
1. Authorization for making e-invoices
1.1 According to Article 3 of Circular No. 78, enterprises, economic organizations, other organizations selling goods and providing services (“Authorizing Party”) will be entitled to authorize third parties (“Authorized Party”) to make e-invoices for the goods sale and service provision. E-invoices made by the authorized organizations are those with or without the tax agency's code, and must show the name, address, and tax identification number of the Authorizing Party and name, address, and tax identification number of the authorized party.
1.2 The Authorized Party shall meet the following conditions: (i) having a related-party relationship with the Authorizing Party; (ii) being eligible for using e-invoices; and (iii) not subject to suspension of the use of e-invoices. The related-party relationship is determined according to the law on tax administration.
1.3 The Authorizing Party and the Authorized Party shall make the authorization for making e-invoices in writing (contract or agreement) that fully expresses the information: Information about the Authorizing Party and the Authorized Party (name, address, tax identification number, digital certificate); Information about e-invoices (invoice type, symbol, form symbol); Authorization purposes and term; Method of payment for invoices made as authorized (clearly stating the responsibility for payment of goods price or service charge shown on the invoices)
1.4 The authorization shall be determined as a change in the information provided to register the use of e-invoices. The Authorizing Party and the Authorized Party shall notify tax agencies of the authorization for making e-invoices, including the case of terminating before the term of authorization for making e-invoices as agreed by both parties.
1.5 Responsibilities of the Authorizing Party and the Authorized Party:
a) Listing on their units’ website or publicize on mass media the authorization for making invoices so that buyers of goods and services are aware of the authorization;
b) Delisting and notifying on their units’ websites or publicize on mass media the authorization for making invoices when the authorization term expires or terminates before the authorization term as agreed between both parties;
c) Archiving the authorization document and provide it at the request of the competent agencies;
e) In the case invoices made as authorized are e-invoices without the tax agency’s code (hereinafter referred to as e-invoices without code), the Authorizing Party shall transmit e-invoice data to the direct tax administration agency or through a service provider to transmit e-invoice data to the direct tax administration agency;
f) The Authorized Party shall make e-invoices according to the actual situation, as agreed with the Authorizing Party and complying with the principles of authorization for making e-invoices as prescribed by laws.
2. Form symbols and symbols of e-invoices
Compared to Circular No. 68/2019/TT-BTC, Circular No. 78 has added a number of provisions on form symbols and symbols of e-invoice as follows:
2.1 Circular No. 78 provides for two additional e-invoice form symbols as natural numbers indicating two new e-invoice types, including: 5 - Other types of e-invoices, including e-stamps, e-tickets, e-cards, e-receipts or other e-vouchers with contents of e-invoices; 6 - E-documents that are used and managed like invoices include ex-warehousing-cum-internal transportation slips and ex-warehousing-cum-consignment slips.
2.2 Regarding e-invoice symbols, Circular No. 78 maintains the provisions on the first three characters (indicating the type of electronic invoice with or without the code of the tax agencies and indicating the year of in invoice) and the last two characters (determined by the seller according to management needs). Characters indicating the type of the used e-invoice are added to four new categories:
a) Letter N: Applicable to electronic ex-warehousing-cum-internal transportation slips;
b) Letter B: Applicable to electronic ex-warehousing-cum-consignment slips;
c) The letter G: Applicable to electronic stamps, tickets, and cards that are VAT invoices;
d) Letter H: Applicable to electronic stamps, tickets, and cards that are sales invoices.
3. Changing into using e-invoices with the tax agency’s code
3.1 Articles 5.1 and 5.2 of Circular No. 78 provide that the changing into using e-invoices with the tax agency’s code will be carried out when taxpayers using e-invoices without codes (i) wish to use e-invoices with codes; or (ii) fall into the case of being identified with high tax risks.
3.2 When being identified with high tax risks, the taxpayer shall apply for changing the information on the use of e-invoices (switching from using e-invoices without codes to e-invoices with codes) within ten (10) working days from the date the tax agencies issued the notice. After 12 months from the time of switching to using e-invoices with codes, taxpayers may apply for changing the information on the use of e-invoices for consideration and decision by tax agencies.
4. Issuance time of e-invoice for banking services
In addition to invoicing times in Decree No. 123, Circular No. 78 has additional provisions on the time of e-invoicing date for banking services:
4.1In the case of providing banking service, the invoice date shall be periodically made according to the contract between the two parties together with a statement or other documents certified by both parties, but no later than the last day of the month in which the service provision activity occurs;
4.2 In the case of providing banking services in a large quantity, arising frequently, it takes time to check data between the bank and relevant third parties (payment institutions, international card organizations, or other organizations), the time of invoicing is the time of completing the data reconciliation between the parties but no later than the 10th day of the month following the month of arising.
5. Handling of e-invoices containing errors
5.1 The handling of electronic invoices with codes or without codes of tax agencies is regulated by Decree No. 123 with certain adjustments:
a) In case the tax identification number, the amount of money, the tax rate and the amount of tax displayed on the e-invoice are erroneous or the goods on the invoice are not in accordance with the specifications and quality, sellers and buyers can choose to correct or replace erroneous e-invoices. In the case the parties have an agreement, the seller and buyer will make a written agreement stating the error, then the seller shall make a new e-invoice to adjust or replace the erroneous e-invoice. E-invoices correcting the erroneous e-invoices shall contain the lines “This invoice corrects the invoice Form ... symbol ... No. ... date ... month ... Year”.
b) For aviation, the e-invoice for exchange or refund of air transport document shall be considered as a correction e-invoice without the information “Increase/decrease amendment for invoice Form ... symbol ... No. ... date ... month ... year”. Air transport enterprises may issue their e-invoices for the cases of refund or exchange of transport documents issued by their agents.
c) According to Decree No. 123, in the case the tax agency discover that the e-invoice containing error(s) and has notified the seller of the e-invoice to be reviewed, and the seller fails to file a reply within the time limit, the tax agency shall continue to notify the seller of the error. The tax agency only notifies a maximum of two times; past the time limit for the second notice, if the seller fails to reply, the tax agency shall consider to inspect the use of e-invoices.
5.2 In addition to the above adjustments, Circular No. 78 also provides on the processing of e-invoices in some specific cases:
a) In the case the e-invoice containing errors requiring the re-grant of the tax agency's code or the e-invoice containing errors requiring the correction or replacement, the seller may choose notify the correction of each invoice containing errors or notify the correction of many e-invoices containing errors and send a notice to the tax agency at any time, but not later than the last day of the VAT declaration period in which the corrected e-invoice is made;
b) In the case the seller makes an invoice when collecting money before or during service provision, then the cancellation or termination of the service provision arises, the seller shall cancel the e-invoice already made and notify the tax agency of the invoice cancellation;
c) In the case an e-invoice already made containing errors and the seller has corrected or replaced it, then he/she discovers that the invoice continues to have errors, the next handling times, the seller shall apply the form as applied when handling errors for the first time;
d) In case of receiving notification from tax authorities on electronic invoices to be reviewed, the seller must clearly state in the electronic invoice notice that there are errors based on inspection as notices of tax authorities;
e) In the case e-invoices are made without errors of form symbols, symbols, or numbers, sellers shall only make adjustments without canceling or replacing;
f) If information about the value on the invoice is incorrect, the increase (positive sign) and decrease (negative sign) shall be adjusted in accordance with the actual adjustment.
6. Regulations on e-invoices with the tax agency’s code created from POS cash register
Previously, Circular No. 68/2019/TT-BTC only provided for cases of use of e-invoices with the tax agency’s code created from POS cash register with network connection for transmission of e-data to the tax agency. Article 8 of Circular No. 78 provides more detailed regulations regarding e-invoices with the tax agency’s code created from POS cash register, including the following notable matters:
6.1 The subjects allowed to use e-invoices with the tax agency’s code created from POS cash register including: Enterprises, business households and individuals making tax payments by declaration method that provide goods and services directly to the customers according to the business model (shopping centers; supermarkets; retail of consumer goods; restaurants; hotels; retail of modern medicines; entertainment and other services).
6.2 E-invoices with the tax agency’s code created from POS cash register shall contain the following information:
a) Name, address, tax identification number of the seller;
b) Information about the buyer if he/she/it requires (personal identification number or tax identification number);
c) Name of goods, services, unit price, quantity, and total payment price. In the case organizations or enterprises making tax payment by credit method, the VAT-exclusive selling price, VAT rate, VAT amount, and total payment including VAT are required;
d) Invoicing time;
e) Tax agency’s code.
6.3 The tax agency’s code is issued automatically, according to the range of characters, for each business establishment mentioned in Paragraph 6.1 above when registering the use of e-invoices with the tax agency’s code created from POS cash register with network connection for transmission of e-data to the tax agency, without duplication.
6.4 Notably, Article 8.5(d) of Circular No. 78 for the first time stipulates that the General Department of Taxation is responsible for guiding the use of the issued tax agency’s code for e-invoices with the tax agency’s code created from POS cash register with network connection for transmission of e-data to the tax agency to participate in the prize.
7. Roadmap for applying e-invoices
Circular No. 78 provides for the roadmap for applying e-invoices as follows:
7.1 Organizations and individuals satisfying the information technology infrastructure conditions are encouraged to comply with regulations on e-invoices and e-documents as specified in Circular No. 78 and of Decree No. 123 before July 1, 2022. E-invoices shall be applied to business households and individuals from July 1, 2022.
7.2 Some cases continue to use paper invoices after July 1, 2022:
a) Small- and medium-sized enterprises, cooperatives, and business households and individuals that operate in localities with difficult socio-economic conditions or extremely difficult socio-economic conditions; and
b) Other small- and medium-sized enterprises that are proposed by the People’s Committees of provinces and centrally-run cities, and submitted to the Ministry of Finance, except those operating in economic zones, industrial parks or hi-tech zones.
c) The two above-mentioned subjects if (i) do not conduct transactions with the tax agency by electronic means, (ii) do not have the information technology infrastructure, (iii) do not have accounting software system, (iv) do not have electronic in invoice software to use electronic invoices and to transmit electronic data to buyers and to tax authorities, are allowed to use paper invoices issued by the tax agency for a maximum period of 12 months; At the same time, the tax agency shall make a solution to gradually switch to e-invoice application.
d) The maximum period of 12 months shall be calculated once from July 1, 2022 for business households and individuals that have been operating before July 1, 2022; or from the time of registration to start using invoices for business households and individuals newly established from July 1, 2022.
7.3 Enterprises and economic organizations that have announced the issuance of e-invoices without the code or have registered the use of e-invoices with the tax agency’s code before the issuance date of Circular No. 78 shall continue to use the invoices in use from September 17, 2021 to the end of June 30, 2022 and carry out the procedures on invoices as prescribed in the provisions of the Government's Decree No. 51/2010/ND-CP dated May 14, 2010 and decree No. 04/2014/ND-CP dated January 17, 2014 on goods sale and service provision invoices (“Decree No. 51” and “Decree No. 04”).
From September 17, 2021 to June 30, 2022, for areas having met the conditions on infrastructure to apply e-invoices according to the Ministry of Finance’s Decision at the request of the General Department of Taxation, business establishments in the areas shall be responsible for switching to apply e-invoices specified in Circular No. 78 in accordance with the roadmap notified by the tax agency. In the case business establishments fail to meet the information technology infrastructure conditions and continue to use the aforesaid invoices, they shall send their invoice data to the tax agency at the same time with submitting their VAT declarations. The tax agency shall receive data about invoices of these business establishments in order to consolidate them into the invoice database and publish it on the Portal of the General Department of Taxation to serve the search of invoice data.
7.4 For newly established business establishments from September 17, 2021 until the end of June 30, 2022, if the tax agency requires them to use e-invoices in accordance with regulations of Decree No. 123, Decree No. 119/2018/ND-CP dated September 12, 2018, Circular No. 68/2019/TT-BTC and Circular No. 78, these business establishments shall comply with the tax agency’s guidance.
In the case of failing to meet the conditions for information technology infrastructure and continuing to use invoices as prescribed in Decree No. 51 and Decree No. 04, business establishments shall send their invoice data to the tax agency at the same time with submitting their VAT declarations.
7.5 For invoices printed on order by the tax agency in accordance with the Decree No. 51 and Decree No. 04, in case their invoice symbols, invoice form symbols are similar to the guidance specified in Circular No. 78 and their contents are in accordance with Decree No. 123, the tax agency may use such invoices to sell to subjects who may purchase invoices from July 01, 2022 as prescribed in Article 23 of Decree No. 123.
7.6 From the time when enterprises, organizations, business households and individuals use e-invoices according to Decree No. 123 and Circular No. 78, if detecting that an invoice that has been made in accordance with Decree No. 51 and Decree No. 04 and the Ministry of Finance’s guiding documents contains errors, the seller and the buyer must make a written agreement stating the errors, the seller shall notify the tax agency and make a new e-invoice (e-invoice with or without the tax agency’s code) to replace the erroneous invoice. An e-invoice replacing an incorrect invoice must have the phrase “Replace the invoice Form No. ... Symbol ... No. ... dated ...”. The seller shall sign on the new e-invoice replacing the incorrect invoice with a digital signature (the invoice is made according to Decree No. 51 and Decree No. 04 and the Ministry of Finance’s guiding documents) for sending it to the buyer (for cases of using e-invoices without the code) or the seller shall send to the tax agency for grant of a code for an e-invoice replacing the previous invoice (for cases of using e-invoices with the tax agency's code)
Notes: The contents in this Legal Update are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
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