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CIRCULAR

PROCEDURE FOR THE DEFERMENT OF VAT PAYMENT AND REFUND FOR IMPORTED MACHINERY AND EQUIPMENT USED AS FIXED ASSETS IN INVESTMENT PROJECTS

Pursuant to the VAT Law No. 13/2008/QH12 dated June 03, 2008 and the Law on amending several provisions of the VAT Law No. 31/2013/QH13 dated June 19, 2013;

Pursuant to the Tax Administration Law No. 78/2006/QH11 dated November 29, 2006 and the Law on the amendments to the Tax Administration Law No.21/2012/QH13 dated November 20, 2012;

Pursuant to the Government’s Decree No.209/2013/ND-CP dated December 18, 2013 on providing instructions on the implementation of several provisions of the VAT Law;

Pursuant to the Government’s Decree No. 83/2013/ND-CP dated July 22, 2013 on detailing the implementation of several provisions of the Law on Tax Administration and the Law on the amendments to the Law on Tax Administration;

Upon implementing the Government’s Resolution No.63/NQ-CP dated August 25, 2014 on several approaches to tax issues with the aim of settling difficulties and promoting the enterprise’s growth;

At the request of the Director of the Tax Policy Department,

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Article 1. Governing scope

1. Enterprises that are newly established from investment projects and have yet to be brought into operation or those that have been already brought into operation, who are taking part in investment projects (such as the installation of new production line, operational expansion, technological innovation, environmental improvement and production capacity enhancement) by means of directly importing or giving the authorization to import machinery and equipment used as fixed assets in such investment projects but are also faced with financial difficulties such as failure to distribute a sufficient amount of money for the VAT payment at the importation stage; reliance on loans from commercial banks on the importation of machinery and equipment for production and trading purposes; in case of great losses incurred by the delayed customs clearance of commodities leading to the suspended and extended investment, they are entitled to choose between VAT payment deferment at the importation stage and VAT refund according to instructions enshrined on conditions that the following requirements must be entirely fulfilled:

a) Enterprises, who apply for their VAT payment registration under the credit-invoice method, has been already granted the certificate of business registration or investment certificate, investment license (or the practicing certificate); hold legitimate stamps, maintain bookkeeping and accounting systems in compliance with the accounting law; open deposit accounts at banks classified by their tax identifications;

b) Total value of imported machinery and equipment used as fixed assets is worth equal to or greater than VND 100 billion;

c) Any investment project is developed to produce, trade or supply taxable commodities and services.

2. Imported machinery and equipment used as fixed assets in investment projects are not governed by this Circular, including those used as fixed assets intended for the production of weapons and military equipment to serve the purpose of national defence and security; fixed assets, machinery and equipment owned by credit institutions, reinsurance enterprises, life insurance companies, securities corporations, health facilities and training institutions; civil aircrafts and yachts that do not serve the purpose of cargo and passenger transportation, and hospitality and tourism.

Article 2. VAT payment deferment at the importation stage

1. Enterprises stipulated in Article 1 of this Circular are eligible for the deferment of VAT payment at the importation stage, which is applied to machinery and equipment that need to be imported to create fixed assets for investment projects within a period of 60 days from the expiration date of VAT payment as prescribed by laws. The tax payment deferment shall take effect from the first shipment of freight which is worth less than VND 100 billion. The freight shall be granted customs clearance right after the customs authority completes their physical inspection.

2. Application for the tax payment deferment:

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In case goods are imported in split consignments, the first consignment must be enclosed with the list of imported goods that require the tax deferment according to the form 07 Annex II promulgated together with the Circular No. 128/2013/TT-BTC dated September 10, 2013 by the Ministry of Finance on providing instructions on customs procedures; customs supervision and inspection; import and export duties, and the administration of tax levied on imports and exports in which the title "List of goods exempt from import duties” shall be replaced with “List of goods eligible for the VAT deferment at the importation stage”, the line “7. Proposed schedule of completion of the importation of tax-exempt goods” replaced with “7. Proposed schedule of completion of the importation of goods eligible for the VAT deferment” (02 originals of the aforementioned lists must be submitted) attached along with 02 records on tracking and differential according to the form 10 Annex II of the Circular No.128/2013/TT-BTC.

In case the deferred tax amount is listed in different customs declarations of imported goods, the request for tax deferment must list out these declarations.

b) A tax declaration dossier of the VAT amount that requires the deferment (01 copy);

c) A binding contract to purchase imported goods that require the VAT deferment. In case of many contracts, all of them must be submitted (01 copy);

d) A written approval for the project or investment plan may be the investment certificate issued by competent authorities or the written consent from the Board of Directors or Shareholders’ Meeting or the Director within his/her area of competence specified in the corporate rules enclosed with the application for the investment registration and the receipt of the application for the registration of investment project (01 copy);

If machinery and equipment need to be imported to serve as fixed assets, which are eligible for both import duty deferment and exemption as prescribed in the law on investment and import duty, the application and procedure for requesting the VAT deferment shall be same as the application and procedure for import duty exemption as stipulated in Article 102 of the Circular No.128/2013/TT-BTC. Required application documents for both the tax deferment and exemption must have the same required amount of documents as those for tax exemption.

3. Processes of the deferment of tax payment:

a) Document receipt:

a.1) If the application documents are submitted directly at the customs authority, customs officers must receive and put their stamp on these documents, clarify when it is received and what documents are included in the application dossier.

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a.3) If the application is sent via electronic transactions, the receipt, inspection and acceptance of the application for tax deferment shall be carried out via the electronic data processing system.

b) Document processing:

If the taxpayer has sent their application for tax deferment that is incomplete as regulated by laws, within 01 (one) working day from the receipt, the customs authority must notify the taxpayer in written to make it complete for later submission.

The taxpayer must complete their application documents within a period of 03 (three) working days from the receipt of the above notification.

If it is certified that application documents are full, accurate and validated according to legal regulations, the customs authority must notify the taxpayer in written of the consent to the deferment of tax payment within a period of 03 (three) working days from the full receipt of such documents.

c) Responsibility for the tax deferment:

c.1) The Head of Customs Sub-department shall be responsible for the tax deferment to the taxpayer who has submitted their application for the deferment of payment for tax amount only recorded at one Customs Sub-department.

c.2) The Head of Customs Sub-department shall be responsible for the tax deferment to the taxpayer who has submitted their application for the deferment of payment for tax amount recorded at different Customs Sub-departments affiliated to one Customs Department.

c.3) The Director of the General Department of Customs shall be responsible for the tax deferment to the taxpayer who has submitted their application for the deferment of payment for tax amount recorded at different Customs Departments.

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1. Application documents for tax refund:

a) A written request for the tax refund according to the form No.01/DNHT issued together with the Circular No.156/2013/TT-BTC dated November 06, 2013 by the Ministry of Finance on providing guidance for the implementation of several provisions of the Law on Tax Administration; the Law on the amendments to the Law on Tax Administration and the Government’s Decree No. 83/2013/ND-CP dated July 22, 2013 which clearly state that the reason for requesting the tax refund is to conform to the instructions given in this Circular (clearly write the Circular’s number) and records on the VAT payment have not been included in at the importation stage yet.

b) A statement on customs declarations of imported goods that has been stamped by the customs authority according to the form 01-1/DNHT issued together with the Circular No.156/2013/TT-BTC which clearly states that a written request for the tax refund is made according to the form No.01/DNHT and the column of notes clearly writes “remain liability for records on the VAT payment at the importation stage".

The enterprise shall take legal responsibility for the validity, legitimacy and accuracy of application documents, records, invoices and other relevant documents relating to the request for tax refund that has been sent to the taxation authority.

2. Procedures for tax refund:

a) Submission and receipt of application documents for tax refund:

The enterprise must prepare and submit application documents for tax refund to the taxation authority in which records on the VAT payment at the importation stage have not been included in application documents yet.

If the application documents are submitted directly at the taxation authority, taxation officers must receive and put their stamp on these documents, clarify when it is received and what documents are included in the application dossier.

If the application for tax refund is sent by post, taxation officers must stamp the receipt date and record it into the register kept by the taxation authority.

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b) Tax refund processing:

b.1) If the taxpayer has sent their application for tax refund that is incomplete as regulated by laws, within 02 (two) working days from the receipt, the taxation authority must notify the taxpayer in written to make it complete for later submission.

b.2) If the application documents for tax refund are full, accurate and validated as stipulated by laws, the taxation authority is responsible to consider and examine these in accordance with the process of VAT refund.

b.3) Within a maximum period of 05 (five) working days from the full receipt of application documents, the taxation authority must notify the taxpayer of the result of confirming that the application for tax refund is acceptable as well as must request the taxpayer to submit their records on the VAT payment at the importation stage, based on which the taxation authority can decide whether the inspection should be performed after tax refund.

b.4) Within a period of 03 (three) working days from the receipt of records on the VAT payment for imports, the taxation authority is responsible to double-check records on tax payment with the figures present in the enterprise’s application documents for tax refund and make a decision on tax refund. If the paid tax amount recorded in records on tax payment is less than the amount of VAT refunded upon the initial request, the refunded tax amount is considered the paid amount recorded in records on tax payment; If the paid tax amount recorded in records on tax payment is greater than the amount of VAT refunded upon the initial request, the refunded tax amount is considered the amount of tax refunded upon the initial request.

Article 4. Effect

1. This Circular takes effect from October 27, 2014.

If enterprises governed by the regulations set out in Article 1 of this Circular have made the customs declaration for imported goods registered before the effective date of this Circular and prior to the expiration date of the tax payment as prescribed in regulations set out in Clause 11 Article 1 of the Law on the amendments to the Law on Tax Administration but have not paid their tax yet, they are eligible for tax payment deferment and tax refund under the instructions set out in this Circular.

2. Other cases of VAT refunds that are not governed by the regulations enshrined in this Circular shall adhere to current laws.

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PP. MINISTER
DEPUTY MINISTER




Do Hoang Anh Tuan