THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
84/1997/TT-BTC
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Hanoi,
November 13, 1997
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CIRCULAR
GUIDING THE AMENDMENT AND SUPPLEMENT TO SOME POINTS IN
CIRCULAR No. 72A-TC/TCT OF AUGUST 30, 1993, CIRCULAR No. 107-TC/TCT OF DECEMBER
30, 1993 AND CIRCULAR No. 53-TC/TCT OF JULY 13, 1995 OF THE MINISTRY OF FINANCE
ON IMPORT AND EXPORT DUTIES
Pursuant to Decree No. 54-CP
of August 28, 1993 of the Government detailing the implementation of the Law on
Import and Export Duties and the Law on Amendments and Supplements to a Number
of Articles of the Law on Import and Export Duties;
Pursuant to Circular No. 72A-TC/TCT of August 30, 1993, Circular No. 107-TC/TCT
of December 30, 1993 and Circular No. 53-TC/TCT of July 13, 1995 of the
Ministry of Finance;
Over the past few years
Vietnam's import and export activities as well as regional and international
trading situation has witnessed many changes, the trading forms have been
expanded and especially the trend of international economic and trading
integration amongst the different regions in the world has influenced our
socio-economic development. These changes have affected our policies on trade
and import and export duties, thus demanding a suitable tax system to ensure
the production and business activities of enterprises as well as to bring into
play the tax instrument as a lever for economic development, ensure sufficient
revenues for the State budget. It is therefore necessary to issue a document
guiding the amendment and supplement to the import and export duty policy in
order to overcome problems and repeal regulations unsuitable to the reality for
uniform implementation which has not yet been specified in any guiding
documents.
After consulting the Ministry of
Trade, the Ministry of Planning and Investment and the General Department of
Customs, the Ministry of Finance hereby provides the following guidance on the
amendment and supplement to a number of matters related to import and export
duties:
1. Cases
eligible for consideration of duty refunding
To supplement some points
stipulated in Section VII, Circular 72A-TC/TCT of August 30, 1993 and Circular
53-TC/TCT of July 13, 1995 of the Ministry of Finance as follows:
1.1. To supplement some points
of Circular No. 53-TC/TCT above: For goods which are materials and supplies
imported for the production of goods for export:
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If the customs agency has any
doubt about the consumption quotas of materials and raw materials for
production of goods for export, it may request an expertise by an agency
specialized in the management of such goods item to serve as the basis for
considering import tax refunding for the enterprise.
Annually, the customs agency
shall assume the prime responsibility and coordinate with the local tax agency
in organizing the inspection of the consumption quotas of materials and
supplies for the production of export products related to the refunding of
import duty.
The duty refunding shall be only
applicable to enterprises importing (in the form of direct import, entrusted
import or on-the-spot import) materials and supplies for production by
themselves or for sub-contracted production and receiving back products for
export (in the form of direct export, entrusted export or on-the-sport export).
All cases of purchase and sale of local materials and supplies in any form for
production of finished products for export shall not be eligible for
consideration of import duty refunding.
1.2. To supplement Item e, Point
1, Section VII of Circular No. 72A-TC/TCT of August 30, 1993 of the Ministry of
Finance: For the imported goods which are inconsistent with the already signed
commercial contract, or, for an objective reason, must be re-exported back to
the foreign party:
1.2.1. If the goods still remain
in the storehouse or yard at the border gate under the supervision and
management of the customs agency and are now allowed to be re-exported, the
import and export duties thereon shall not be paid; Or if the import duty has
been paid, it shall be refunded according to Point 1a, Section VII, Circular
No. 72A-TC/TCT of August 30, 1993 of the Ministry of Finance.
1.2.2. If the goods are beyond
the supervision and management of the customs agency, when they are
re-exported, an amount of the paid import duty corresponding to the quantity of
goods re-exported to the foreign party shall be refunded and the export duty
shall not be paid provided that all the following conditions are met:
* The discovery of the
inconsistency of the goods with the signed foreign trade contract or for an
objective reason within 45 days from the date the enterprise receives goods
from under the management of the customs agency at the border gate.
* The expertise result of the
competent goods expertizing State agency (the third expertise) immediately upon
the discovery of the goods' inconsistency.
The clear explanation for such
inconsistency of the agencies (customs, Vinacontrol) which already expertized
the imported goods.
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The dossier applying for import
duty refunding and export duty exemption includes:
- A written request of the unit
clearly stating the reason for re-exporting the goods back to the foreign
seller (clearly certifying the inconsistency(ies) of the imported goods with
the technical criteria, quality, quantity... defined in the already signed
contract).
- The expertise documents of the
goods expertising agencies in Vietnam upon the import of the goods and
discovery of some inconsistencies with the contract.
- The certification and opinion
of the customs agency that processes the import procedures for the goods and
the local tax agency regarding the goods' inconsistencies with the contract.
- The foreign seller's written
agreement to receive back the goods (or the foreign seller's notice of
acceptance of the goods) clearly stating the reason for receiving back the
goods.
- The customs declaration of
import goods, having the customs agency's inspection and liquidation results
therein.
- The customs declaration of
export goods, having the customs agency's certification of the actual export of
the goods therein clearly indicating the declaration form of the imported goods
under which the goods are permitted to be re-exported.
- The receipt of the import duty
payment issued by the customs agency.
- The goods import contract
properly and legally signed with the foreign party
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1.3. To supplement Item e, Point
1, Section VII, Circular No. 72A-TC/TCT of August 30, 1993 of the Ministry of
Finance: For machinery, equipment and tools imported by the establishments and
contractors that win bids for projects in Vietnam in service of the
construction and installation work during the construction time and for
machinery, equipment and tools which are hired or borrowed from abroad by
Vietnamese enterprises in service of their production activities, with the
Ministry of Trade's permission for their import in the form of
"temporarily imported goods for re-export", the import duty already
paid thereon shall be refunded according to Item e, Point 1, Section VII,
Circular No. 72A-TC/TCT above. An import duty shall be temporarily paid when
such goods are imported and be refunded when they are re-exported out of the
territory of Vietnam. The amount of to-be-refunded import duty shall be
determined on the principle that the remaining use value of the machinery,
equipment and tools at the time of re-export shall be calculated on the basis
of the time they are used and left in Vietnam, more concretely as follows:
* For brand-new machinery, equipment
and tools imported into the territory of Vietnam:
- If the time they are used and
left in Vietnam is six months or less, the full amount of paid import duty
shall be refunded.
- If the time they are used and
left in Vietnam is from over six months to one year, 85% of the paid import
duty shall be refunded.
- If the time they are used and
left in Vietnam is from over one year to two years, 70% of the paid import duty
shall be refunded.
- If the time they are used and
left in Vietnam is from over two years to three years, 55% of the paid import
duty shall be refunded.
- If the time they are used and
left in Vietnam is from over three years to four years, 40% of the paid import
duty shall be refunded.
- If the time they are used and
left in Vietnam is from over four years to five years, 25% of the paid import
duty shall be refunded.
- If the time they are used and
left in Vietnam is over five years, 15% of the paid import duty shall be
refunded.
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- If the time they are used and
left in Vietnam is six months or less, the full amount of paid import duty
shall be refunded.
- If the time they are used and
left in Vietnam is from over six months to one year, 80% of the paid import
duty shall be refunded.
- If the time they are used and
left in Vietnam is from over one year to two years, 60% of the paid import duty
shall be refunded.
- If the time they are used and
left in Vietnam is from over two years to three years, 45% of the paid import
duty shall be refunded.
- If the time they are used and
left in Vietnam is over three years 30% of the paid import duty shall be
refunded.
If such goods are not
re-exported, the importing enterprise shall have to pay fully the import duty
arrears, be fined in accordance with the Law on Import and Export Duties and
subject to an administrative sanction in the field of commerce.
The dossier applying for import
duty refunding includes:
- A written request of the
establishment for the refunding of the paid import duty or export duty (if
any), clearly stating the reasons therefor.
- The competent level's document
(or decision) on the bid winning (for contractors). The contract (or agreement)
between the Vietnamese enterprise and foreign party on the hiring or borrowing
of machinery and equipment in service of production.
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- The customs declaration of
import or export goods, having the customs agency's liquidation and
certification therefor.
- The receipt of the duty import
payment.
- The contract on the entrusted
import or export (if the goods are imported or exported in this way).
In cases where contractors
continue to win bids for construction or installation of other projects in
Vietnam and they are permitted by the Ministry of Trade to use the
above-mentioned machinery, equipment and tools in service of such projects and
to fill the on-the-sport import or export procedures, they shall not have to
pay import and export duties thereon (namely, they shall only pay the import
duty when filling the procedures for importing for the first time the goods
into the territory of Vietnam and be refunded such import duty when the goods
are re-exported out of the territory of Vietnam).
1.4. To supplement Point e,
Section VII, Circular No. 72A-TC/TCT of August 30, 1993 of the Ministry of
Finance: For machinery and equipment (excluding cars of all kinds) owned by
Vietnamese establishments and enterprises, which are temporarily exported
abroad for repair or overhaul or which are temporarily exported and re-imported
after being repaired by the foreign seller during the warranty period as agreed
upon in the already signed foreign trade contract on the sale and purchase of
machinery and equipment and are permitted by the Ministry of Trade as being
"temporarily exported before re-imported" upon their import, the
import and/or export duty thereon shall not be paid. The customs agency shall
process the import or export procedure and oversee the temporarily exported
goods until they are re-imported according to current regulations and issue a
decision not to collect duty in these cases.
The conditions required for these
cases include:
- A written request of the
establishment or enterprise, clearly explaining the reasons or causes of taking
the machinery and equipment abroad for repair together with the commitment to
re-import them. This request must be certified by the superior agency.
- The lawfully and properly
established contract for the repair of machinery and equipment between the
establishment and the foreign party, clearly describing the state of the
machinery and equipment to be repaired (quantity, value, serial number and
sign, year of manufacture...); the list, quantity and value of the components
and parts to be repaired; the state of the machinery and equipment when
re-imported (quantity, value...); repair costs;...
- The fixed asset card of the
machinery and equipment certified by the local tax agency which manages the
enterprise.
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- The Ministry of Trade's document
to permit the establishment to temporarily export the machinery and equipment
abroad for repair before re-importing them.
- The customs declaration of
export goods with the border gate customs agency's certification of the goods
inspection and liquidation.
- The customs declaration of
import goods, having the border gate customs agency's certification and
liquidation, clearly indicating the customs declaration for export goods
according to which the goods are re-imported.
- The contract on the entrusted
import or export if the goods are imported and exported in this way.
* For the cases defined in Item
(1) above, when re-exporting or re-importing goods, the export or import
procedures must be filled at the customs agency of the place where the goods
were first imported or exported. If any act of evading import or export duty is
discovered, the violator shall have to pay, apart from all duty arrears, a fine
in accordance of the Law on Import and Export Duties currently in force.
2. To amend and
replace Item d, Point 1, Section VII, Circular No. 72A-TC/TCT of August 30,
1993 of the Ministry of Finance as follows: For import goods with their
quality, specifications and category inconsistent with the foreign trade
contract signed with the foreign party due to the wrong delivery by the foreign
party, accompanied with the competent State expertizing agency's expertise
paper and the foreign party's confirmation, the Customs Department of the
province or city directly under the Central Government shall base itself on the
result of inspection of the actually imported goods to consider and permit the
import of goods (if such goods are not in violation of the Ministry of Trade's
and the General Department of Customs' regulations on import goods). At the
same time, it shall recalculate the import duty to be paid so as to collect a
duty amount according to the actually imported goods. If the establishment has
paid an import duty in excess of the import duty amount recalculated according
to the actually imported goods, it shall be refunded the excess amount.
In case the customs agency sees
that the import goods may greatly affect the consumer's interests such as
negatively affecting the living conditions and the environment, or the people's
health, causing a poor quality of products..., it shall have to consult the
Ministry of Trade which shall have to reply in writing to permit the import of
such goods or compel the enterprise to re-export the goods back to the foreign
seller.
3. To amend and
replace Point 2, Section V, Circular No. 72A-TC/TCT of August 30, 1993 of the
Ministry of Finance as follows:
For import and export goods of
foreign-invested enterprises and parties to business cooperation contracts
which should enjoy special investment incentives on the case-by-case basis,
after having the written agreement from the Ministry of Finance, the Ministry
of Planning and Investment may consider the exemption of import or export duty
for each specific case in accordance with Article 63, Decree No. 12-CP of
February 18, 1997 of the Government. The consideration of import duty exemption
for each specific shipment of goods shall provisionally comply with the
provisions in Circular No. 20-TC/TCT of March 16, 1995 of the Ministry of
Finance.
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5. To
supplement to the end of Section VII, Circular No. 72A-TC/TCT of August 30,
1993 of the Ministry of Finance the following paragraph: For the cases eligible
for consideration of import or export duty refunding by the Ministry of Finance
(the State Budget Department), apart from compliance with the provisions of
Circular No. 72A-TC/TCT of August 30, 1993 of the Ministry of Finance, the
following additional papers are required:
- A written request of the
establishment to the Ministry of Finance (the State Budget Department) for
refunding the amount of import or export duty to be refundable, clearly stating
its account number at the bank where the transaction will be effected.
- The written document of the
Customs Department of the province or city directly under the Central
Government where the establishment fills the import or export procedures,
requesting the Ministry of Finance to approve the refunding of the import or
export duty to the establishment, clearly confirming the import or export duty
amount already paid to the State Budget, the duty amount to be refunded...
- The voucher on the customs
agency's payment of the import or export duty to the State budget (Account No.
741) certified by the State Treasury where the duty is paid. The State
Treasury's certification must clearly indicate: The date of payment to the
State budget, the amount paid to the State budget, the chapter, class, clause,
item and category of the State budget classification and be affixed with the
signature of the head of this State Treasury so that the Ministry of Finance
can have the basis for checking and considering the refunding of the paid duty
amount from the State Treasury to the payer.
- The dossier applying for duty
refunding sent to the Ministry of Finance (the State Budget Department) must be
the original or the copy certified by the State notary. For the documents which
are not certified by the State notary, the requesting establishment must
certify the copies by itself and be accountable for their legality and, at the
same time, produce the original documents for the State Budget Department to
compare them with the copies, then return the originals to the establishment.
6. To amend and
supplement the fourth paragraph dash (-), Point 1, section VIII, Circular No.
72A-TC/TCT of August 30, 1993 of the Ministry of Finance regarding the
procedure and competence to collect import and export duty arrears and impose
fines on violations of the Law on Import and Export Duties for the cases where
duty arrears are collected, as follows:
- For the cases where violations
are discovered by the customs agency through inspection, such customs agency
shall issue a decision to collect all duty arrears, impose fines and organize
the fine collection according to current regulations.
- For the cases where the tax
agency or the financial inspectorate inspects and discovers acts of evading
import or export duty committed by enterprises, the director of the
provincial/municipal Tax Department or the head of the financial inspectorate
(of the provincial/municipal or higher level) shall have the power to issue a
decision to collect all duty arrears and impose fines in accordance with the
provisions of the Law on Import and Export Duties and the Law on Special
Consumption Tax. the duty arrears and fines shall be collected as follows:
+ 100 (one hundred) per cent of
the arrears of import and export duties or special consumption tax (if any)
shall be paid to the central budget.
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The amount of collected duty
arrears and fines mentioned above shall be accounted into the revenue of the
locality where duty arrears are collected, at the year-end, deductions for
commendation shall be considered for any extra revenue in accordance with the
provisions of the Law on the State Budget.
- For cases inspected and
discovered by other agencies, such agencies shall make a dossier thereon and
request the customs agency to issue a decision to collect duty arrears, impose
fines and organize the collection of fines according to current regulations.
Establishments or individuals
that have merits in discovering and collecting import and export duty arrears
shall be entitled to rewards deducted therefrom according to Decree No. 22-CP
of April 14, 1996 of the Government and Circular No. 45-TC/TCT of August 1,
1996 of the Ministry of Finance.
For cases where the tax agency
or the financial inspectorate discovers and collects duty arrears, if, when
calculating the import or export duty arrears to be collected, such agency
faces any difficulty in determining the duty rate or price for tax calculation,
it shall coordinate with the customs agency of the same level for settlement.
In case the duty payer deliberately delays in paying the duty, the tax agency
or the financial inspectorate may resort to, in coordination with the customs
agency, the forcible measures prescribed in the Law on Import and Export
Duties, in addition to the forcible measures specified in Circular No. 45-TC-TCT
of August 1, 1996 of the Ministry of Finance.
7. Regarding
the procedural dossier and competence to consider the exemption of import duty
and special consumption tax (if any) on the import goods of enterprises and
organizations which are permitted by the competent State agency to trade in
duty-free goods for sale at duty-free shops to the following eligible
customers:
- Departing passengers and
passengers in transit (including handlers of the transport means and the crews
thereof) at the international seaports, the international road and rail border
gates in Vietnam.
- Passengers on board flights
and flight crews.
- Departing passengers at
down-town duty-free shops.
- Arriving passengers (including
flight screws and stewards on board international flights) at several
international airports. In this case Decree No. 17-CP of February 6, 1996 of
the Government on the quotas of duty-free baggage for passengers of entry and
exit ports shall apply.
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Specifically, the procedural
dossier includes:
+ A written request for import
duty exemption.
+ A permit issued by the
competent State agency to allow the enterprise to trade in duty-free goods (one
copy is required only when filling the import exemption procedure for the first
time).
+ The import quota (or plan)
allocated by the Ministry of Trade, clearly indicating the eligible customers
of import duty-free goods.
+ The customs declaration for
import goods with the customs office's certification of goods inspection and
the calculated duty.
+ The duty notice of the customs
office.
+ The foreign trade contract
signed with the foreign party affixed with the registration stamp of the Import
and Export Permits Granting Group, the Ministry of Trade.
+ The invoice, the packing
list...
On the basis of the above-said
dossier, within 7 (seven) days, the Ministry of Finance (the General Department
of Taxation) shall issue a decision on the temporary exemption of import duty
and special consumption tax (if any). The customs office that processes the
import procedures for the importing unit shall base itself on such decision of
the Ministry of Finance (the General Department of Taxation) to process the
procedures and affix the stamp "Temporary duty-free goods" on the
customs declaration. The supervision and management of import and export goods
of duty-free shops shall comply with current regulations of the General
Department of Customs.
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Quarterly (on the tenth day of
the first month of the subsequent quarter), the units trading in duty-free
goods shall have to report on the settlement of the sale of duty-free goods as
well as the quantity of goods left in stock to the Ministry of Finance (the
General Department of Taxation) and the General Department of Customs. The
General Department of Customs shall have to direct the inspection and the final
settlement of duty-free goods sale to the right objects under current regulations
and the settlement of each batch of goods according to the customs declaration
for import goods attached with the settlement report. If, thirty days after
this deadline, the unit fails to send the settlement dossier, the
provincial/municipal customs agency shall be entitled to cease processing the
procedures for importing duty-free goods until the unit fully sends the
settlement report.
After the customs agency has
approved the settlement of the sale of duty-free goods, the unit shall have to
send such settlement attached with a written request to the Ministry of Finance
(the General Department of Taxation) for consideration and decision on the
official exemption of import duty and special consumption tax (if any) for the
batch of goods. Within 15 days from the date of receipt of the unit's full
dossier applying for the official duty exemption and on the basis of the
customs agency's settlement, the Ministry of Finance (the General Department of
Taxation) shall have to issue a written decision on the official duty
exemption. Upon receiving the decision on the official duty exemption, the
provincial/municipal customs agency and the customs agency that directly
manages the duty-free shops shall compare these documents and process the
procedures for liquidating the import duty amount.
In case the unit has goods in
stock and it is permitted by the Ministry of Trade to sell such goods on the
Vietnamese market, within 2 (two) days after the reason for duty exemption is
changed, the unit shall have to declare it to the customs office for
calculating and collecting fully import duty and special consumption tax (if
any) arrears according to current regulations.
For the goods imported for sale
at duty-free shops, if they are sold to the people other than those eligible for
duty exemption or sold on the Vietnamese market without the permission of the
Ministry of Trade, all of these acts shall be considered tax evasion and all
import duty and special consumption tax (if any) already exempted shall be paid
together with a fine of two to five times the evaded duty amount.
8. The
competence to deal with the above-mentioned cases shall comply with the
provisions of Circular No. 72A-TC/TCT of August 30, 1993, Circular No.
53-TC/TCT of July 13, 1995, Official Dispatch No. 732-TC/TCT of April 1, 1994
of the Ministry of Finance as well as the competence concretely defined in this
Circular.
9. Every
quarter and every year, the General Department of Customs shall sum up and send
to the Ministry of Finance the reports on the data and situation of exemption,
reduction and refunding of import and export duties and special consumption tax
(if any) on import goods that the customs agency has the competence to deal
with.
10.
Organization of implementation:
This Circular takes effect 15
days after the date of its signing. All earlier provisions which are contrary
to the provisions of this Circular shall be annulled. The Ministry of Finance
requests the General Department of Customs to direct and guide the managerial
process so that the Customs Departments of the provinces and cities directly
under the Central Government can implement it, exercise a tight management,
combat frauds and losses of State budget revenues and avoid causing
inconveniences to enterprises.
The above-said cases of duty refunding
which arise prior to the effective date of this Circular shall be dealt with by
the Ministry of Finance on the case-by-case basis.
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In the course of implementation,
any arising problems should be summed up and fully reported to the Ministry of
Finance for consideration, study and further guidance.
FOR
THE MINISTER OF FINANCE VICE MINISTER
Vu Mong Giao