To
Departments of Customs in cities and provinces,
With a view to dealing with issues and difficulties
that Departments of Customs have faced during their implementation of the
Government’s Decree No. 59/2018/ND-CP dated April 20, 2018 on amendments and
supplements to certain articles of the Decree No. 08/2015/ND-CP; the Circular
No. 39/2018/TT-BTC dated April 20, 2018 on amendments and supplements to
certain Articles of the Circular No. 38/2015/TT-BTC, by this document, the
General Department of Customs would like to give the following instructions:
In order to provide the basis for implementation by
the Departments of Customs in cities and provinces, the General Department of
Customs consolidates its instructions for dealing with issues and difficulties
into the chart annexed to this document.
For your information and compliance./.
PP. DIRECTOR
GENERAL
DEPUTY DIRECTOR GENERAL
Nguyen Duong Thai
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CHART OF SEVERAL ISSUES AND DIFFICULTIES ARISING FROM
IMPLEMENTATION OF THE GOVERNMENT’S DECREE NO. 59/2018/ND-CP DATED APRIL 20,
2018 AND THE CIRCULAR NO. 39/2018/TT-BTC DATED APRIL 20, 2018 OF THE MINISTRY
OF FINANCE
(Annexed to the Official Dispatch No. 4787/TCHQ-TXNK dated August 15, 2018
of the General Department of Vietnam Customs)
No.
Clauses and
Articles
Description
Sender
Answer
I. Issues and difficulties
relating to the Government’s Decree No. 59/2018/ND-CP dated April 20, 2018
1.
Clause 3 Article 48 of the Decree No.
08/2015/ND-CP
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- Clause 3 Article 48 of the Decree No.
08/2015/ND-CP prescribes: “In case customs declarants submit sufficient
documents proving that their commodities are permitted to be exempted for tax
payment when completing customs formalities required by customs procedures,
customs authorities shall not be allowed to collect taxes on exported
commodities which are returned or exported to the third country or exported
to the free trade zone, and make their decision on customs clearance in
accordance with legal regulations”
- There have not been regulations on the
instructions regarding the procedures for classification of the application
documentation for the non-collection of export duties which are applied to
this case.
Recommendation: Currently, with respect to the
application documentation for the non-collection of export duties upon
completion of the export clearance procedures, the Customs Department of Gia
Lai – Kon Tum is instructing its affiliates to classify such documentation as
the refund (non-collection of duty)-first, check-later documentation.
Customs Department of Gia Lai – Kon Tum (the
Official Dispatch No. 631/BC- HQGLKT dated June 29, 2018)
The classification of application documentation
for the non-collection of export duties on wood materials imported for
re-export to third-party countries has been specified in Article 27 on the
procedures for duty exemption, deduction, rebate and non-collection for
exports and imports issued together with the Decision No. 1919/QD-TCHQ dated
June 28, 2018 of the General Department of Customs.
2
Clause 4 Article 47 and Clause 3 Article 48 of
the Decree No. 08/2015/ND-CP
1. In which regulation are the application
documentation for the non-collection of customs duties in this case
prescribed for the purpose of ensuring that implementation of the duty
non-collection procedures complies with provisions laid down in Clause 4 Article
47 and Clause 3 Article 48 of the Government’s Decree No. 08/2015/ND-CP dated
January 20, 2015? If the aforesaid documentation is treated as the duty
refund documentation prescribed in Article 33 and Article 34 of the Decree
No. 134/2016/ND-CP dated September 1, 2016, there would be a lot of
evidencing documents which are not necessary and are unlikely to be submitted
at the time of completion of customs clearance procedures for re-exports and
re-imports.
2. In case where the application documentation
for the non-collection of customs duties need to be treated as the
application documentation for the duty rebate as provided in Article 129 of
the amended Circular No. 38/2015/TT-BTC, is it necessary to carry out the
classification of the application documentation for the duty non-collection
in such case? If yes, how can it be done?
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- The application documentation for the
non-collection of import duties on goods exported for re-import (that are
classified as those eligible for export duty exemption) and for the
non-collection of export duties on goods imported for re-export (that are
classified as those eligible for export duty exemption) are written documents
submitted to apply for the duty non-collection as provided in Clause 5
Article 1 of the Circular No. 39/2018/TT-BTC dated April 20, 2018 of the
Ministry of Finance amending Article 16 of the Circular No. 38/2015/TT-BTC.
The classification of the application
documentation for the duty non-collection in this case is not necessary for the
reason that the implementation of the procedures for the duty non-collection
for those eligible for export duty exemption and import duty exemption which
are not classified as those eligible for export, import duty rebate, and such
classification of the application documentation, may result in certain
situations in which inspections carried out at the taxpayers’ offices are
required while there is the regulation under which such documentation must be
handled during the customs clearance stage.
If the procedures for the duty non-collection are
handled within the duration of completion of the customs procedures as per
Article 23 of the Customs Law, the customs authority should issue the
decision on approval of the duty non-collection when having sufficient
grounds for determining that re-imports are goods already exported before,
and re-exports are goods already imported before. (The in-charge customs
authority may consider approving the results of processing of the application
documentation for the duty non-collection on the e-customs system without
having to issue the duty non-collection decision because such documentation
may be deemed as one of the customs clearance documentation requirements and
do not share a lot of the characteristics like the application documentation
for the duty rebate.
Customs Department of Dak Lak province (the
Official Dispatch No. 701/HQDL-NV)
The issue about the non-collection of duties on
imports raised by the Customs Department of Dak Lak province has been dealt
with in Article 27 and Article 28 on the procedures for duty exemption,
deduction, rebate and non-collection of customs duties on exports and imports
issued together with the Decision No. 1919/QD-TCHQ dated June 28, 2018 of the
General Department of Customs.
II. Issues and difficulties
relating to the Circular No. 38/2018/TT-BTC dated April 20, 2018 and the
Circular No. 39/2018/TT-BTC dated April 20, 2018 of the Ministry of Finance
1.
Article 42 of the Circular No. 38/2015/TT-BTC
With respect to Article 42 of the Circular No.
38/2015/TT-BTC prescribing the deadline for paying customs duty, Article 2 of
the Circular No. 39/2018/TT-BTC has amended, supplemented and abolished
Clause 1, 2, 3, 6, 9 Article 42, but Clause 7 Article 42 of the Circular No.
38/2015/TT-BTC keeps the phrase "The deadline for paying customs duty
shall be subject to Clause 3 of this Article”
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Customs Department of Thanh Hoa province
- Clause 2 Article 156 of the Law on issuance of
legislative documents prescribes: “If various legislative documents
contain different regulations on the same issue, the superior document shall
apply.”
- Article 9 of the Law on Customs Duties (in effect
from September 1, 2016) provides that dutiable imports and exports must
fulfill duty liabilities before obtaining customs clearance or goods release
(except cases in which surety bonds are available and enterprises are
entitled to preference treatment). Because of that, from September 1, 2016
onwards, the deadline for paying customs duty shall be subject to provisions
set out in the Law on Customs Duties, and regulations laid down in Clause 3
Article 42 of the Circular No. 38/2015/TT-BTC also becomes invalid.
Based on the aforesaid regulations, if the
official prices of the goods are not decided, and the duty payer is required
to pay customs duty in advance or to provide surety bonds based on the prices
declared before customs clearance or release of the goods, the deadline for
paying customs duty shall be subject to Clause 1 Article 9 of the Law on
Customs Duties. If the advanced amount of duty, or the amount of duty
guaranteed under the surety bonds before customs clearance or release of the
goods, is less than the amount of duty payable when the official prices are
announced, the duty payer must pay the amount of duty which is the result of
the difference between the amount of duty that must be paid when the official
prices are available and the temporarily calculated price (if any) at the
time of determination of the official price, and shall not be obliged to pay
the amount incurred from late payment of the differential amount of duty
payable. The time of determination of the official price shall be subject to
soft laws.
If the advanced amount of duty or the amount of
duty guaranteed before customs clearance or release of the goods is greater
than the amount of duty that must be paid when the official price is
announced, the excess amount of payment of duty shall be handled under
regulations in force.
2.
Clause 14 Article 1 of the Circular No.
39/2018/TT-BTC
Inspected subjects:
Clause 14 Article 1 of the Circular No.
39/2018/TT-BTC amending Article 25 of the Circular No. 38/2015/TT-BTC prescribes:
“1. Inspected subjects: Customs documentation of exports and imports
subject to the detailed documentation inspection and the physical inspection
of the goods”
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However, there has been no instruction on risks
of customs valuation on the VNACCS/VCIS. For example, there are a lot of
goods in the List of imported and exported goods posing customs valuation
risks, issued by the General Department of Customs, without instructions on
valuation risks. Besides, customs officers have not had sufficient grounds
for repudiation of the declared value in accordance with regulations in
force.
Recommendation: The General Department of
Customs should provide timely updated data and information about the goods
posing customs valuation risks in order to ensure instructions on valuation
risks on the e-customs system are accurate.
Customs Department of Hai Phong city (the
Official Dispatch No. 9063/HQHP- TXNK dated July 6, 2018)
- For the time being, it is recommended that
customs documentation of the imported and exported goods subject to the
detailed documentation inspection or the physical inspection of the goods
(except customs documentation falling into the subjects prescribed in Clause
4 Article 2 and Article 16 of the Law on Customs Duties, and the goods not
subject to duties imposed at export or import checkpoints or eligible for 0%
tax rate according to the Preferential Tariff Schedule) undergo the customs
valuation inspection as per Article 4 of the Decision No. 1810/QD-TCHQ.
- In the long run, the General Department of
Customs will update criteria for instructions on risks of customs valuation
for the goods as recommended by the Customs Department of Hai Phong city.
3.
In cases where exports and imports are suspected
of any fraud on the customs valuation and posing high customs valuation
risks, and the customs declarant is judged or classified as enterprises that
do not comply with the regulations (e.g. subpoint b.1 point 3 clause 14
Article 1 of the Circular No. 39/2018/TT-BTC), there are the issues and
difficulties stated below:
- Pursuant to clause 9 Article 1 of the Decree
No. 59/2018/ND-CP amending and supplementing clause 3 Article 21 of the
Decree No. 08/2015/ND, those suspected of any fraud on customs valuation
shall need to undergo the price consultation process.
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Suggestion: The General Department of Customs
should provide detailed guidance for the abovementioned case and promulgate
specific regulations on the goods posing high valuation risks.
Recommendation: The customs consultation
process should be carried out in accordance with regulations in force.
Customs Department of Hai Phong city (the
Official Dispatch No. 9063/HQHP- TXNK dated July 6, 2018)
The Customs Department of Hai Phong city is
demanded to comply with point b.1 clause 3 Article 25 as regulated in clause
14 Article 1 of the Circular No. 39/2018/TT-BTC and point b.1 clause 2
Article 4 of the Decision No. 1810/QD-TCHQ dated June 15, 2018 of the
Director of the General Department of Customs. According to these
regulations, if exports and imports are suspected of any fraud on the customs
valuation and posing high customs valuation risks, and the customs declarant
is judged or classified as enterprises that do not comply with such
regulations, the enterprises at fault are required to give explanations and
proofs for the customs value declared within the duration of completion of
customs procedures, impossible failure revoke.
- Clause 1 Article 5 of the Decision No.
257/QD-TCHQ dated June 29, 2018 of the Director of the General Department of
Customs has clearly specified cases in which high valuation risks are identified.
For your consideration and compliance.
4.
Regarding imports suspected of any fraud that
makes their price abnormally high (subpoint b.2 point 3 clause 14 Article 1
of the Circular No. 39/2018/TT-BTC):
The General Department of Customs has yet to
promulgate any regulation regarding the percentage by which the price is
deemed to rise abnormally and determine the specific HS headings of goods
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Customs Department of Hai Phong city (the
Official Dispatch No. 9063/HQHP- TXNK dated July 6, 2018)
Customs Department of Ha Tinh province (the
Official Dispatch No. 1251/HQHT- NV dated August 8, 2018)
Clause 2 Article 5 of the Decision No.
257/QD-TCHQ dated June 29, 2018 of the Director of the General Department of
Customs has clearly specified the abnormally high price. For your
consideration and compliance.
5.
Regarding the refusal of the declared customs
value (subpoint b point 3 clause 9 Article 1 of the Decree No. 59/2018/ND-CP
and subpoint dd.2 point 4 clause 14 Article 1 of the Circular No.
39/2018/TT-BTC):
In this case, after the consultation with the
customs authority issuing the notification of customs value is held and the
customs declarant is requested to make supplementary declaration within the
duration of 05 working days from the date of completion of the consultation.
If the customs declarant makes supplementary declaration according to the
notification of customs value within the aforesaid duration, the customs
authority carries out customs clearance of the goods in accordance with
regulations in force and imposes penalties (if any). If the customs declarant
does not make supplementary declaration or make supplementary declaration
which does not conform to the requirements set out in the notification of
customs value, the customs authority shall impose the duty as provided in the
Law on Tax Management in order to carry out customs clearance in accordance
with regulations in force, implied factor unalike, and impose penalties (if
any).
This means that the aforesaid regulation does not
prescribe the case in which the customs authority rejects the declared
customs value but the customs declarant does not agree with the bases,
methods and prices determined by the customs authority.
Recommendation: The General Department of
Customs should provide guidance on this issue.
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According to regulations laid down in Point b
Clause 3 Article 21 prescribed in Clause 9 Article 1 of the Decree No.
59/2018/ND-CP, and Point dd.2 Clause 4 Article 25 prescribed in Clause 14
Article 1 of the Circular No. 39/2018/TT-BTC, if there is sufficient grounds
for refusal of customs value, the customs authority should issue the
notification of customs value. If the customs declarant makes supplementary
declaration according to the notification of customs value within the
duration of 05 days, the customs authority carries out customs clearance of
the goods in accordance with regulations in force and imposes penalties (if
any). If the customs declarant does not make supplementary declaration or
make supplementary declaration which does not conform to the requirements set
out in the notification of customs valuation, the customs authority shall
impose the duty as provided in the Law on Tax Management in order to carry
out customs clearance in accordance with regulations in force, and impose
penalties (if any). Therefore, the refusal of the declared customs value and
the customs valuation by the customs authority do not depend on whether an
enterprise agrees or disagrees, as provided in the Decree No. 08/2015/ND-CP.
6.
- If an enterprise imports the goods having
abnormally high customs value (mainly machinery or equipment creating fixed
assets), would the customs authority carry out the customs valuation
inspection to determine whether there is any suspicion of fraud on the
customs value?
- As for business transactions without
related-party relationships (or none of related-party transactions) and the
goods not present in the List of exports and imports posing customs valuation
risks, any suspicion concerning customs valuation fraud should be referred to
the tax agency. Additionally, the General Department of Customs should
consider advising the Ministry of Finance to provide additional regulations
on the abovementioned case.
Customs Department of Ha Tinh province (the Official
Dispatch No. 1251/HQHT- NV dated August 8, 2018)
Pursuant to the regulations laid down in point
b.2 clause 3 Article 25 prescribed in clause 14 Article 1 of the Circular No.
39/2018/TT-BTC, if the goods declared to have abnormally high customs value,
the customs authority is allowed to approve the customs clearance based on
the declared value; concurrently, follow the instructions given in point b.2
Article 4 and make a report according to the form No. 04 annexed to the
Decision No. 1810/QD-TCHQ dated June 15, 2018 of the Director of the General
Department of Customs.
7.
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- There are the following issues and
difficulties:
+ What are data and information used for the
customs inspection and customs valuation?
+ When does the notification of customs valuation
effecting the results of the single consultation take effect?
+ Responsibilities of the customs officer in
charge of inspecting the customs documentation have not been clearly defined
+ What are the feedbacks of the customs officer
in charge of inspecting the customs documentation on the VNACCS/VCIS system
to enterprises that request application of the results of the previous
consultations to the subsequent consultations.
+ What is the sample notification of customs
valuation in case of use of the results of the single consultation?
Recommendation:
+ Data and information used for the customs
inspection and customs valuation are those regarding customs declaration
(e.g. name of the goods, declared customs value, etc.) on the electronic
system of the customs authority and data already used for the customs
inspection and valuation in the first consultation.
+ The duration of application of the notification
of customs valuation to the shipment of goods first undergoing the customs
consultation should be 90 days from the date of issue of that notification.
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The declared information referred to in subpoint
a.1 point 3 clause 14 Article 1 of the Circular No. 39/2018/TT-BTC has not
changed in comparison with the shipment to which the enterprise requests the
results of the customs consultation of the current shipment to be applied. If
all eligibility conditions are satisfied, the application documentation for
the customs consultation may be sent to the Customs Department in accordance
with regulations in force. If not, the customs consultation may be carried
out according to the decentralization regime.
Customs Department of Hai Phong city (the
Official Dispatch No. 9063/HQHP- TXNK dated July 6, 2018)
- Information used in the customs inspection and
valuation are customs valuation information prescribed in Article 7 of the
Decision No. 1811/QD-TCHQ dated June 15, 2018.
- The notification of customs valuation may be
applied until the customs valuation information changes.
- When carrying out the single customs
consultation, the customs officer in charge of inspecting the customs
documentation must perform tasks specified in clause 6 Article 4 of the
Decision No. 1810/QD-TCHQ.
- Method and contents of the notification posted
on the VNACCS/VCIS system must comply with clause 6 Article 4 of the Decision
No. 1810/QD-TCHQ dated June 15, 2018.
- The Form No. 02B/TB-TGHQ/TXNK annexed to the
Circular No. 39/2018/TT-BTC must be used as the sample notification of
customs valuation.
8.
Clause 24 Article 1 of the Circular No.
39/2018/TT-BTC amending and supplementing Article 43
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Recommendation: The General Department of
Customs should provide guidance on this issue.
Customs Department of Thanh Hoa province
The Circular No. 39/2018/TT-BTC has repealed
clause 1 Article 43 of the Circular No. 38/2015/TT-BTC as this content has
been prescribed in Article 4 of the Decree No. 134/2016/ND-CP.
Any amendment or supplement to clause 2, clause 3
Article 43 is aimed at clarifying regulations laid down in Article 4 of the
Decree No. 134/2016/ND-CP regarding the joint guarantee and the several
guarantee (electronic guarantee procedures, paper guarantee procedures and
refusal to accept a guarantee, etc.).
9.
Clause 27 Article 1 of the Circular No.
39/2018/TT-BTC
Clause 27 Article 1 of the Circular No.
39/2018/TT-BTC amending and supplementing Article 48 of the Circular No. 38/2015/TT-BTC
stipulated in c.2.2.2 “In case where purposes of a part of the total number
of goods of the same type specified in multiple customs declaration forms are
converted…, the duration of payment of the imposed duty and calculation of
the late payment amount shall coincide the duration of duty payment stated in
the final customs declaration form”.
The "final customs declaration form"
may be understood as the last customs declaration form for the whole shipment
subject to the imposition of duty or the last customs declaration forms for
separate goods in the event that there are more than one good subject to the
imposition of duty.
Recommendation: The General Department of
Customs should provide guidance on this issue.
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Clause 27 Article 1 of the Circular No.
39/2018/TT-BTC amending and supplementing point c.2.2.2 clause 6 Article 48
of the Circular No. 38/2015/TT-BTC: stipulated in c.2.2.2 “ In case where
purposes of a part of the total number of goods of the same type specified in
multiple customs declaration forms are converted, and the amount of duty
payment has already been defined on the first export and import declaration
forms, the imposed amount of duty is the average amount of duty calculated
according to the following formula:
The imposed
amount of duty
=
Total amount
of duty on same-type goods specified on customs declaration forms
x
Number of goods
subject to changes in purposes
Total number
of goods specified on customs declaration forms
Duration of payment of imposed duty and
calculation of the late payment of duty must coincide with the duration of
duty payment specified in the final customs declaration form.”
Pursuant to the abovementioned regulation, the
final customs declaration form is the last customs declaration form for
specific goods subject to the imposition of duty.
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Clause 48 Article 1 of the Circular No. 39/2018/TT-BTC
If enterprises importing goods for manufacturing
of domestic exports outsource the processing service in accordance with
regulations laid down in Clause 48 Article 1 of the Circular No.
39/2018/TT-BTC, and receive finished products for direct exporting, are they
eligible for import duty exemption?
Recommendation: The General Department of
Customs should provide guidance on this issue.
- Customs Department of Long An province (the
Official Dispatch No. 1252/HQLA- NV dated July 2, 2018)
- Customs Department of Binh Phuoc province (the
Official Dispatch No. 1161/HQBP- NV dated July 6, 2018)
Pursuant to provisions laid down in clause 2
Article 12 of the Government’s Decree No. 134/2016/ND-CP dated September 1,
2016, one of the bases for determining whether the goods receive duty
exemption is that an organization or individual manufacturing exports must
have an establishment manufacturing exported products within the territory of
Vietnam; must have the right to own or use machinery and equipment at the
production facility which are designed to use imported raw materials,
supplies and components for manufacturing of exported goods and inform the
production facility in accordance with laws on customs. Pursuant to the
aforesaid regulations, those enterprises mentioned by the Customs Department
of Long An province and the Customs Department of Binh Phuoc province are not
eligible for import duty exemption (the General Department of Customs has
issued the Official Dispatch No. 4299/TXNK-CST dated August 2, 2018 providing
implementary guidance).
11.
Clause 49 Article 1 of the Circular No.
39/2018/TT-BTC
2. Regarding the procedures for handling of scrap
and waste products for domestic consumption and wastes, which are applied to
exported goods:
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The Decision No. 1966/QD-TCHQ has yet to
prescribe receipt, inspection and handling of scrap or waste products for
domestic consumption and wastes with respect to domestic exports.
Recommendation: Regulations regarding
receipt, inspection and handling in the abovementioned case should be supplemented
in the Decision No. 1966/QD-TCHQ.
Customs Department of Quang Ngai province
Regarding scrap and waste products:
a) In case of electronic procedures, the
declaration must be made by using the Form No. 04 of the Appendix IIa to the
Circular No. 39/2018/TT-BTC.
b) In case of paper procedures, the declaration
must be made by using the form No. 06/BKKTT/TXNK of the Appendix VI to the
Circular No. 39/2018/TT-BTC; the name of goods on the list must be consistent
with the actual name of goods sold; the customs value must be declared based
on the before-VAT selling price.
- The Head of the Subdepartment of Customs may
decide the form and degree of inspection which are similar to the paper
declaration procedures.
- The customs authority should create the logbook
and designate the number to the list in the same manner as applied to the
paper declaration.
As for scrap:
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12.
Clause 61 Article 1 of the Circular No.
39/2018/TT-BTC
Subject to provisions laid down in clause 61
Article 1 of the Circular No. 39/2018/TT-BTC dated July 20, 2018, “…dutiable value,
duty assessment time and duty assessment method shall be subject to Article 4
and Article 5 of the Circular No. 39/2015/TT-BTC...”. However, Article 4 of
the Circular No. 39/2015/TT-BTC has been repealed.
Customs Department of Can Tho city (Official
Dispatch No. 1325/HQCT- NV dated July 20, 2018)
Subject to provisions laid down in clause 15
Article 1 of the Circular No. 39/2018/TT-BTC dated April 20, 2018 amending
and supplementing Article 25a., the Customs Department of Can Tho city is
bound to comply with this Article 25a.
13.
Clause 63 Article 1 of the Circular No.
39/2018/TT-BTC
Since Article 129 in the Circular No.
38/2015/TT-BTC, amended and supplemented by clause 63 Article 1 of the
Circular No. 39/2018/TT-BTC on the procedures for receipt and handling of
application documentation for duty refund and non-collection, prescribes the
case in which the inspection result defines that the taxpayer satisfies
regulatory conditions for duty refund, the Customs Subdepartment issuing the
duty refund decision keeps a record of that inspection result and posts it on
the system.
Recommendation: The General Department of
Customs should provide guidance on this issue.
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At present, when obtaining the duty refund
decision, the customs officer in charge of processing duty refund
documentation will be responsible for posting that decision on the
concentrated accounting system. The VNACC/VCISS system has not yet supported
the update of the inspection result defining whether the taxpayer is eligible
for duty refund. The General Department of Customs has conducted a research
in order to add this function to the electronic tax exemption, deduction and
refund program built by the General Department of Customs.
14.
Article 129 in the Circular No. 38/2015/TT-BTC,
amended and supplemented by clause 63 Article 1 of the Circular No.
39/2018/TT-BTC prescribing the inspection carried out after issue of the duty
refund decision at the taxpayer’s office, is implemented under Article 143 of
the Circular No.38 (post-clearance inspection at the taxpayer’s office). The
Customs Subdepartment of the Customs Department of Binh Dinh province has
worked out the plan No. 1618/KH-HQCKQN to check application documentation for
tax refund and non-collection first and carry out the customs inspection at
the taxpayer’s office later at 05 enterprises. Until the date of entry into
force of the Circular No. 39/2018/TT-BTC (June 5, 2018), the Customs
Subdepartment has already carried out the inspection at 02 enterprises, the
post-clearance inspection at 01 enterprise and has not yet carried out the
inspection at 02 enterprises.
Recommendation: Is it necessary for the
Customs Subdepartment affiliated to the Customs Department of Binh Dinh
province to carry out the inspection at the remaining 02 enterprises?
Customs Department of Binh Dinh province (the
Official Dispatch No. 859/HQBD-NV dated July 6, 2018)
From the date of entry into force of the Circular
No. 39/2018/TT-BTC (June 5, 2018), with respect to the inspection carried out
after issue of the duty refund decision at the taxpayer’s office, the Customs
Department of Binh Dinh province is requested to comply with clause 65
Article 1 of the Circular No. 39/2018/TT-BTC amending and supplementing
Article 143 of the Circular No. 38/2015/TT-BTC.
With respect to the cases in which the inspection
has not yet been carried out after tax refund, from June 5, 2018, the
Leadership of the Customs Department of a province or city is advised to
transfer the documentation eligible for granting duty refund first and
carrying out the inspection later
If a Customs Department of a province or city
that does not manage any customs subdepartment in charge of post-clearance
inspection, the Director of the Customs Department is responsible for
directing the post-clearance inspection or collaborating with the
Post-clearance Inspection Department in carrying out the inspection after tax
refund.
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Clause 65 Article 1 of the Circular No.
39/2018/TT-BTC
Subject to Article 132 in the Circular No.
38/2015/TT-BTC, amended and supplemented by the Ministry of Finance at clause
65 Article 1 of the Circular No. 39/2018/TT-BTC prescribing the offset
between duty refund amounts and duty payables within a budgetary year at a
customs authority and a budgetary index, the customs authority shall prepare
the request note of adjustment of state budget revenue and the accounting
statement in accordance with regulations in force.
Recommendation: At present, the request
note of adjustment of state budget revenue prepared by using the form No.
C1-07a/NS annexed to the Circular No. 77/2017/TT-BTC dated July 28, 2017 of
the Ministry of Finance does not have the customs declaration number. The
Customs Department of Binh Dinh province requests the addition of information
about the number of the adjusted customs declaration at the section “Other information
subject to the proposed adjustment”
Customs Department of Binh Dinh province (the
Official Dispatch No.859/HQBD-NV dated July 6, 2018)
The General Department of Customs agrees with the
request for the addition of information about the number of the adjusted
customs declaration at the section “Other information subject to the proposed
adjustment”.
16.
Article 104 of the Circular No. 38/2015/TT-BTC
Article 104 in the Circular No. 38/2015/TT-BTC prescribes
the registration of the list of exported and imported products eligible for
duty exemption; Article 30 in the Decree No. 134/2016/ND-CP prescribes the
notification of the list of duty-free products proposed to be imported with
respect to the cases in which the notification of the list of duty-exempt
goods is issued. Although both Articles provides guidance on the same issue,
the Circular No. 39/2018/TT-BTC amending and supplementing the Circular No.
38/2015/TT-BTC does not amend/supplement/abolish Article 104.
Recommendation: The General Department of
Customs should provide guidance on this issue.
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Clause 2 Article 156 of the Law No. 80/2015/QH13
on issuance of legislative documents prescribes that, if various legislative
documents contain different regulations on the same issue, the superior
document shall apply. Therefore, with respect to issues relating to the list
of duty-exempt goods, the Customs Department must comply with Article 30 of
the Government’s Decree No. 134/2016/ND-CP dated September 1, 2016. (General
Department of Vietnam Customs has given its guidance in the Official Dispatch
No. 3762/TCHQ-TXNK dated June 27, 2018).
17.
Article 3 of the Circular No. 39/2018/TT-BTC
The Law No. 45/2005/QH11 on Export and Import
Duty, the Law No. 107/2016/QH13 on Import and Export Duty and other documents
providing guidance on these soft laws do not have regulations on tax
exemption and tax refund for on-the-spot exported goods.
Clause 1 Article 36 in the Government’s Decree
No. 134/2016/ND-CP dated September 1, 2016 prescribes: Duty refund is granted
to the goods imported for production and business purposes and from which the
products derived have been exported:
1. Those taxpayers, who have paid the import duty
on the imported goods used for production and business purposes that have
been brought into the process of manufacturing of exported goods and from
which the products derived have been exported abroad, or exported to
non-tariff zones, shall be entitled to a refund of the paid amount of import
duty.
Subject to clause 5 Article 114 in the Circular
No. 38/2015/TT-BTC dated March 25, 2015 of the Ministry of Finance, imported
goods on which import duty has been paid for manufacturing of the goods exported
abroad or exported to non-tariff zones shall be eligible for the import duty
in proportion to the actual number of exported products and shall be exempted
from payment of the export duty on exported goods which satisfy conditions
for being defined as those processed from totally imported raw materials and
supplies, and shall be subject to the following specific regulations:
…
c) Cases in which duty refund is considered,
including:
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Organizations or individuals importing raw materials
and supplies for manufacturing of goods sold to foreign traders, but
delivering goods to other organizations or individuals in Vietnam designated
by foreign traders, shall be eligible for a refund of imported duty on raw
materials and supplies used for manufacturing of exported goods.
Clause 24 Article 2 of the Circular No.
39/2018/TT-BTC dated April 20, 2018 of the Ministry of Finance amending and
supplementing certain Articles of the Circular No. 38/2015/TT-BTC prescribes:
all of provisions related to tax exemption and refund for on-the-spot
exported goods shall be abolished.
Recommendation: At the Customs Department
of Dong Nai province, there are many cases in which on-the-sport exporting
and importing enterprises deliver and receive goods inland between them, not
exporting abroad or exporting to non-tariff zones. It is recommended that the
General Department of Customs should provide guidance on this issue.
Customs Department of Dong Nai province (the
Official Dispatch No. 1187/HQDN a-GSQL dated June 26, 2018)
Since September 1, 2016, products manufactured
for exporting purposes have been exempted from duty under clause 2 Article 12
of the Decree No. 134/2016/ND-CP or have received duty refund as per Article
36 of the Decree No. 134/2016/ND-CP in case of being exported abroad or
exported to non-tariff zones.
Since the Decree No. 134/2016/ND-CP does not
prescribe beneficiaries of tax exemption, the Customs Department is advised
to comply with the Decree No. 134/2016/ND-CP.
18.
The item 1.80 “Import tariff schedule code” in
the appendix II of the Circular No. 39/2018/TT-BTC
The item 1.80 “Import tariff schedule code” given
in the appendix II of the Circular No. 39/2018/TT-BTC prescribes: “With
respect to the duty-exempt goods, declaring the import tariff schedule code
as B30 shall be prohibited but the tariff schedule code corresponding to the
classification type of import duty rate shall be accepted". Hence,
with respect to the goods imported to provide the processing service for the
foreign customer, it shall be obligatory to enter the corresponding tariff
schedule code as B01-Preferential tariff schedule and the tax exemption code
as referred to on the VNACCS as XNG81-imported goods for provision of the
processing service for the foreign customer (the foreign customer who is the
beneficiary of import duty exemption). If this code is used for customs
declaration, the declaration form shall have the duty rate as applied with
respect to HS codes of specific product line together with the proportionate
amount of import duty exemption/deduction.
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Recommendation: The General Department of
Customs should provide general instructions for the declaration made at the
item related to import tariff schedule code and tax exemption code for the
goods imported for provision of processing service to the foreign customer.
Customs Department of Can Tho city (Official
Dispatch No. 1223/HQCT- NV dated July 6, 2018)
Subject to provisions laid down in the Circular
No. 39/2018/TT-BTC, it is recommended that the Customs Department of Can Tho city
guides enterprises to fulfill the item “tariff schedule code” and “import
duty exemption/deduction/non-collection code” for the goods imported for
provision of processing service for the foreign customer as follows:
- At the item 1.80 “Import tariff schedule code”:
Enter the code B30.
- At the item 1.92 “Import duty
exemption/deduction/non-collection”: Enter XNG81 (the goods imported for
provision of the processing service for the foreign customer).
19.
As regards the customs declaration procedures
applied to the processing activity:
According to the declaration instructions given
in the appendix I of the Circular No. 39/2018/TT-BTC – the item 1.80 (page
225), with respect to the duty-exempt goods, declaring the import tariff
schedule code as B30 shall be prohibited but the tariff schedule code
corresponding to the classification type of import duty rate shall be
accepted.
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Recommendation: The General Department of
Customs should provide guidance on this issue.
Customs Department of Long An province (the
Official Dispatch No. 1252/HQLA- NV dated July 2, 2018)
Subject to the Circular No. 39/2018/TT-BTC,
B30: Tariff schedule code applied to those not
subject to import duties
B01: Preferential import tariff schedule;
If the enterprise declares the tariff schedule
code B30, the item “Duty rate” will be blank.
If the enterprise declares the tariff schedule
code B01, the item “Duty rate” will be the duty rate specified in the
preferential import tariff schedule.
With respect to the report by the Customs
Department of Long An province that there are certain enterprises declaring
the corresponding tariff schedule code (B01) but, at the duty rate item, the
amount of duty exemption remains blank and the figure indicating the amount
of tax exemption has not been shown, the General Department of Customs will
keep a record of this case, carry out checking and provide instructions if
such report reflects the true situation.
20.
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As for the GTT02 system, the GTT02 system should
be upgraded and changed in terms of contents in order to meet requirements
set out in Circulars and Decrees.
Customs Department of Hai Phong city (the
Official Dispatch No. 9063/HQHP- TXNK dated July 6, 2018)
The General Department of Customs considers
upgrading the GTT02 system. For the time being, the Customs Department of Hai
Phong city is requested to comply with the Official Dispatch No.
3766/TCHQ-TXNK dated June 27, 2018 of the General Department of Vietnam
Customs providing instructions for giving updates to the GTT02 system.
21.
Regarding the duration of data access, subject to
provisions laid down in b.5.8 clause 3 Article 25 prescribed in clause 14
Article 1 of the Circular No. 39/2018/TT-BTC, when searching data to check the
declared customs value, if the data access duration has been extended under
the Circular No. 39/2018/TT-BTC to 90 days before or 90 days after the export
date, and there is no data found, is it permissible to get any extension of
the duration of data access? To which extent is such extension granted?
Customs Department of Da Nang city (the Official
Dispatch No. 1133/HQDN g-GSQL dated June 28, 2018)
Subject to b.5.8 clause 3 Article 25 prescribed
in clause 14 Article 1 of the Circular No. 39/2018/TT-BTC, the duration of
data access shall be extended to the maximum number of 90 days before or 90
days after the export date for the purpose of determination of suspicion
concerning any fraud on the declared customs value.
22.
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Appendix II, Appendix VI of the Circular No.
38/2015/TT-BTC has been replaced as per point a clause 75 Article 1 of the
Circular No. 39/2018/TT-BTC. For the purposes of such replacement, the form
No. 13/DKDMMT/TXNK, the form No. 14/CVDKDMMT/TXNK and the form No. 15/PTDTL/TXNK
issued together with the Appendix VI of the Circular No. 38/2015/TT-BTC have
been replaced by the form No. 13/DKDMMT/TXNK, the form No. 14/CVDKDMMT/TXNK
and the form No. 15/PTDLT/TXNK issued together with the Appendix III of the
Circular No. 39/2018/TT-BTC.
Clause 5 Article 104 of the Circular No.
38/2015/TT-BTC has been repealed according to the instructions given in the
Official Dispatch No. 3762/TCHQ-TXNK dated June 27, 2018 of the General Department
of Vietnam Customs. At present, forms relating to the notification of the
list of duty-exempt goods shall be subject to provisions laid down in the
Decree No. 134/2016/ND-CP.
Recommendation: Implementation of the
Decree No. 134/2016/ND-CP should continue.
Customs Department of Ba Ria – Vung Tau province
(Official Dispatch No. 2053/HQBR VT-GSQL)
Clause 156 Article 80/2015/QH13 of the Law on
issuance of legislative documents prescribes: “If various legislative
documents contain different regulations on the same issue, the superior
document shall apply.” A legislative document shall apply to acts taking
place at the time of effectiveness of that legislative document. In case
where legislative documents provide different regulations regarding the same
issue, the legislative document having higher legal value shall prevail.
Article 30 in the Government’s Decree No.
134/2016/ND-CP dated September 1, 2016 prescribes the notification of the
list of duty-free products proposed to be imported with respect to the cases
in which the notification of the list of duty-exempt goods is issued.
Article 106 in the Circular No. 38/2015/TT-BTC
dated March 25, 2015 of the Ministry of Finance prescribes reporting and
inspection of the use of import duty-exempt goods.
According to this regulation, forms relating to
the notification of the list of duty-exempt goods shall be subject to
provisions laid down in the Decree No. 134/20016/ND-CP (form No. 05 of the
Official Dispatch on the notification of the list of duty-exempt goods, form
No. 06 the List of duty-exempt goods proposed to be imported; form No. 07 the
reconciliation report for import duty-exempt goods issued together with the
Appendix VII of the Decree No. 134/2016/ND-CP). In particular, the form
relating to the report on the use of import duty-exempt goods shall be
subject to provisions set forth in Article 106 of the Circular No.
38/2015/TT-BTC (form No. 17/BCKT- NKMT/TXNK in the Appendix VI issued
together with the Circular No. 38/2015/TT-BTC).
(General Department of Vietnam Customs has
given its guidance on implementation in the Official Dispatch No.
3762/TCHQ-TXNK dated June 27, 2018).
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