MINISTRY OF
FINANCE
GENERAL DEPARTMENT OF CUSTOMS
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 5826/TCHQ-TXNK
Re. Handling of duties on spot exports and
imports
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Hanoi, October 5,
2018
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To: Tay Ninh
province’s Customs Department,
General Department of Customs has received the
Official Dispatch No. 954/HQTN-NV dated June 13, 2018 from Tay Ninh province’s
Customs Department that addresses queries and difficulties that they have to
face whilst handling duties on spot exports and imports. The
General Department of Customs hereby issues the following opinions on these
issues:
1. Regarding the handling of duties imposed on
export processing enterprises outside of export processing zones.
Legislative regulations pertaining to this issue:
- Clause 1 of Article 4 in the Law on Export and
Import Duties No. 107/2016/QH13 prescribes: Free trade zone means an economic
zone located within Vietnam’s territory, established in accordance with law,
having a definite geographic boundary, and separated from the outer area by
hard fences in order to facilitate customs inspection and customs control by
the customs authority and relevant agencies with regard to exports and imports,
inbound and outbound vehicles and passengers; the trading relationship between
the free trade zone and the outside area is considered exportation and
importation.
- Clause 2 of Article 2 in the Government’s Decree
No. 134/2016/ND-CP dated September 1, 2016 prescribes: Goods exported from the
domestic market into export processing enterprises, export processing zones,
tax-suspension warehouses, bonded warehouses and other free trade zones defined
in Clause 1 Article 4 of the Law on Export and import duties; goods imported
from export processing enterprises, export processing zones, tax-suspension
warehouses, bonded warehouses and other free trade zones defined in Clause 1
Article 4 of the Law on Export and Import Duties into the domestic market.
- Article 12 and Article 36 of the Government’s
Decree No. 134/2016/ND-CP dated September 1, 2016 prescribe duty exemptions and
refunds for raw materials, supplies and components imported for export
processing purposes.
- Clause 1 and clause 10 of Article 2 in the
Government’s Decree No. 82/2018/ND-CP dated May 22, 2018 prescribing the
management of industrial parks and economic zones (in effect from July 10,
2018) include the following provisions:
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10. Export processing enterprise means a company
which is established and operated within an export processing zone, or an
enterprise specializing in manufacturing exported products within an industrial
park or economic zone.
Export processing enterprise which is not located
in export processing zones shall be separated from the outside area as per the
regulations on free-trade zones laid down in the import and export tax law…”
- Article 30 of the Decree No. 82/2018/ND-CP
prescribes:
“1. Export processing zones and export processing
enterprises shall be subject to regulations applicable to separate customs
areas and non-tariff zones, except for particular regulations applicable to
non-tariff zones within bordergate economic zones. If export processing
enterprises may be exempted from applying for the Certificate of investment
registration, such exemption shall be specified in their investment
registration certificates or written document issued by the competent
investment registry. The investment registry shall be held responsible for
gathering opinions from the competent customs authorities on the capability to
satisfy conditions of the customs inspection and supervision before issuing the
investment registration certificate or confirmation in writing to investors…”.
Based on the aforesaid regulations, if export
processing enterprises are not located within export processing zones (awarded
Certificates of investment registration), but meet regulations laid down in
clause 1 of Article 4 in the Law on Export and Import Duties No. 107/2016/QH13,
they shall be entitled to duty advantages the same as applied to free-trade
zones (except particular advantages given to free-trade zones in bordergate economic
zones).
If domestic enterprises sell goods to export
processing enterprises that are not located within export processing zones, but
meet regulations set forth in clause 1 of Article 4 in the Law on Export and
Import Duties No. 107/2016/QH13, they shall be entitled to tax policies like
those applied to free-trade zones.
In case where enterprises have already paid duties
on imports for production and business purposes which are brought into
production of exporting goods, and have managed to export finished products to
export processing enterprises (conforming to the regulations laid down in
clause 1 of Article 4 in the Law on Export and Import Duties No. 107/2016/QH13)
according to the spot export and import procedures, they shall be entitled to
refunds of import duties that they have already paid.
In case where enterprises have already paid duties
on imports for production and business purposes which are brought into
production of exporting goods, and have managed to export finished products to
export processing enterprises (conforming to the regulations laid down in
clause 1 of Article 4 in the Law on Export and Import Duties No. 107/2016/QH13)
according to the spot export and import procedures, they may be refunded import
duties that they have already paid.
If export processing enterprises (complying with
provisions of clause 1 of Article 4 in the Law on Export and Import Duties No.
107/2016/QH13) which are not located within export processing zones perform
trades in goods with each other, they shall not be subject to duties.
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Enterprises shall, at their discretion, declare and
submit documents related to the determination of tax obligations and
application of tax policies in free-trade zones, and shall be legally liable
for information given to customs authorities. Customs authorities shall carry
out the inspection of risk management principles. In case where customs
authorities discover that enterprises have made incorrect declarations, they
shall be subject to penalties prescribe in legislative regulations.
2. Cases in which enterprises import goods in a
form of export processing and then export finished products in a form of sport
exportation and importation.
Legislative regulations pertaining to this issue:
- Clause 1 and clause 2 of Article 28 in the Law on
Commerce No. 36/2005/QH11 dated June 14, 2005 prescribe that export of goods is
the cross-border outbound movement of goods out of Vietnam or the transport
thereof to special areas within the territory of Vietnam which are deemed as
particular customs areas prescribed by legislation; the import of goods is the
cross-border inbound movement of goods into Vietnam from abroad or special
zones within the territory of Vietnam which are deemed as particular customs
areas prescribed by legislation.
- Article 12 of the Government’s Decree No.
134/2016/ND-CP dated September 1, 2016 prescribes that raw materials, supplies
and components imported for export processing purposes shall be entitled to
import exemptions.
- Clause 3 of Article 33 in the Government’s Decree
No. 83/2013/ND-CP dated July 22, 2013 prescribes cases in which taxpayers are
subject to the customs authority's imposition of duties on exported and
imported goods.
- Article 133 of the Circular No. 38/2015/TT-BTC
amended and supplemented by clause 66 of Article 1 in the Circular No.
39/2018/TT-BTC dated April 20, 2018 of the Ministry of Finance prescribes late
payment interest.
Based on the aforesaid regulations, as from
September 1, 2016, in case where enterprises import raw materials and supplies
for manufacturing of exported goods and then sell products manufactured by
using imported raw materials and supplies to foreign tradespersons, but are
authorized by foreign tradespersons to ship these products to other enterprises
in Vietnam (exporting products in a form of spot exportation), they shall not
be entitled to duty exemptions in accordance with regulations in force.
In case where enterprises have been entitled to
duty exemptions for raw materials and supplies imported in a form of export
processing but then export finished products in a form of spot exportation and
importation, customs authorities shall impose duties, calculate late payment
interest and impose administrative penalties in accordance with regulations in
force. Tariff calculation bases, date and schedule shall be subject to
provisions laid down in Chapter II of the Law on Export and Import Duties No.
107/2016/QH13.
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PP. DIRECTOR
GENERAL
DEPUTY DIRECTOR GENERAL
Nguyen Duong Thai