To: Customs
Departments of provinces and cities.
In response to issues of Customs Departments of
provinces, cities, and enterprises regarding implementation of Decree No.
18/2021/ND-CP dated March 11, 2021 of the Government on amendments to Decree
No. 134/2016/ND-CP dated September 1, 2016 on elaborating to the Law on Import,
Export Duties (coming into effect from April 25, 2021), the General Department
of Customs remarks:
The General Department of Customs resolves issues
regarding Decree No. 18/2021/ND-CP dated March 11, 2021 of the Government under
the Appendix attached hereto.
Customs Departments of provinces and cities are
hereby requested to review and adequately comply with the guidance herein.
Further issues that arise during implementation must be reported to the General
Department of Customs together with proposed resolutions.
For your acknowledgement and implementation./.
PP. DIRECTOR
GENERAL
DEPUTY DIRECTOR GENERAL
Luu Manh Tuong
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LIST
OF ENTERPRISES HAVING ISSUES RELATING TO TAX POLICIES UNDER DECREE NO.
18/2021/ND-CP DATED MARCH 11, 2021
(Attached to
Official Dispatch No. 5529/TCHQ-TXNK dated November 24, 2021 of the General
Department of Customs)
No.
Enterprise
Address
1
Taipei Economic and Cultural Office in Vietnam
20A floor - PVI Building, No. 1 Pham Van Bach
Road, Cau Giay District, Hanoi
2
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No. 47 Nguyen Cu Trinh Road, Nguyen Cu Trinh
Ward, District 1, Ho Chi Minh City
3
Vietnam Business Association
No. 9 Dao Duy Anh, Dong Da District, Ha Noi
4
Vietnam Textile and Apparel Association
15th Floor, VP Section of C1 Thanh
Cong Building, Thanh Cong Ward, Ba Dinh District, Ha Noi
5
Vietnam Footwear and Handbag Association
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6
SPG Vina Company Limited
My Phuoc Industrial Park, Ben Cat District, Binh
Duong Province
7
Vietnam Psy Technology Company Limited
CN6 Block, Thuan Thanh II Industrial Park, Mao
Dien Commune, Thuan Thanh District, Bac Ninh
8
Lac Ty Company Limited
No. 3-5 Ten Lua Road, An Lac A Ward, Binh Tan
District, Ho Chi Minh City
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Chitwing Precision Tech Vietnam Company Limited
CN2-2 Block and CN9-4 Block of Yen Phong
Industrial Block (expanded section), Yen Trung Commune, Yen Phong District,
Bac Ninh
10
Mami Hanoi Company Limited
Tan Huong Commune, Pho Yen District-level Town,
Thai Nguyen Province
11
TCE Jean Single-member Company Limited
Le Loi 1 Hamlet, Hoang Dong Commune, Hoang Hoa
District, Thanh Hoa Province
12
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8th Floor, SUDICO Building, Me Tri
Road, My Dinh 1 Ward, Nam Tu Liem District, Ha Noi
13
Pouyuen Vietnam Company Limited
No. D10/89Q, 1A National Highway, Tan Tao Ward,
Binh Tan District, Ho Chi Minh City
14
Pacific Crystal Textiles Company Limited
Lai Vu Industrial Park, Lai Vu Commune, Kim Thanh
District, Hai Duong
15
Vina Sanematsu Company Limited
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16
Brother Industries Company Limited
Phuc Dien Industrial Park, Cam Phuc Commune, Cam
Gian District, Hai Duong Province
17
Shishedo Vietnam Company Limited
Blocks 213-233-235-237, Amata Industrial Park,
Bien Hoa, Dong Nai
18
Vietnam Toyota Motor Vehicle Company
Phuc Thang Ward, Phuc Yen Town, Vinh Phuc
Province
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Takazono Vietnam Single-member Company Limited
F.04A Block, Long Hau Road, Long Hau Industrial
Park, Long Hau Commune, Can Giuoc District, Long An Province
20
Vietnam HTMP Joint Stock Company
43 D3 Block, Quang Minh Industrial Park, Chi Dong
Town, Me Linh District, Hanoi
21
ASSA ABLOY Smart Product Vietnam Company Limited
A10 block, Ba Thien II Industrial Park,
Thien Ke Commune, Binh Xuyen District, Vinh Phuc Province
22
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516 Block Road No. 13, Amata Industrial Park,
Long Binh Ward, Bien Hoa District-level Town, Dong Nai Province
23
Mr. Khuu Thanh Quy
B09.01, Hung Phat Silver Star Apartment building,
No. 156A Nguyen Huu Tho Road, Hamlet 5, Phuoc Kien Commune, Nha Be District,
Ho Chi Minh City
24
Nitto Denko Tape Materials Vietnam Company
Limited
Block C, Maple tree Storage, No. 1 Road No. 10 of
Vietnam - Singapore Industrial Park, Binh Hoa Ward, Thuan An District-level
Town, Binh Duong Province
25
Sonion Vietnam II Company Limited
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
26
Voltronic Power Technology Vietnam Company
Limited
Workshops B1A, B1B, B1C, No. 5 Road No. 21A, Bac
Ninh VSIP Industrial Park, Dai Dong Commune, Tien Du District, Bac Ninh
Province
27
Vietnam Pys Technology Company Limited
CN6 Block, Thuan Thanh II Industrial Park, Mao Dien
Commune, Thuan Thanh District, Bac Ninh Province
28
Thuan Phuong Embroideries Garments Company
Limited
No. 275 Nguyen Van Luong, Ward 12, District 6, Ho
Chi Minh City
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Phong Phu International Joint Stock Company
No. 48 Tang Nhon Phu Road, Tang Nhon Phu B Ward,
Thu Duc District-level Town, Ho Chi Minh City
SCHEDULE
ON PROBLEM RESOLUTIONS
DECREE NO. 18/2021/ND-CP DATED MARCH 11, 2021 OF THE
GOVERNMENT
(Attached to Official Dispatch No. 5529/TCHQ-TXNK dated November 24, 2021 of
the General Department of Customs)
No.
Article, Clause
Problem details
Answers
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1
Clause 3 Article 3
In order to encourage domestic production and assist
domestic enterprises especially Vietnamese enterprises seeking domestic
output, tax policies should remain flexible towards application of tax
exemption, 0% tax rate, or preferential tax treatment equal to goods imported
from a foreign country or from a free trade zone without violating
international commitments and agreements to which Vietnam is a signatory. (Binh
Duong Tax Department under Point 1 of Official Dispatch No. 756/HQBD-TXNK
dated April 15, 2021 and Point 1 of Official Dispatch No. 821/HQBD-TXNK dated
April 23, 2021)
Pursuant to Point b Clause 3 Article 3 of Decree
No. 134/2016/ND-CP amended by Clause 1 Article 1 of Decree No. 18/2021/ND-CP:
“In-country imports (except goods imported from free trade zones
prescribed in Point c of this Clause) shall apply the preferential import
tariff rates specified in Decree No. 125/2017/ND-CP , Decree No.
57/2020/ND-CP , their amendments and replacements (if any)”. According to
the regulations above, goods imported from a domestic enterprise (except goods
imported from a domestic free trade zone, apply the preferential import duty
rate specified under Decree No. 125/2017/ND-CP, Decree No. 57/2020/ND-CP, and
amending documents (if any). For your consideration and compliance.
Article 10. Tax exemption for goods imported
for processing and processed exports
2
Point a Clause 2 Article 10
The fact that an enterprise must declare any
change of the contract to the customs authority under an appendix leads to
multiple appendices attached to a contract while the license number section
in the declaration only contains 5 fields. If the enterprise produces more
than 5 appendices, the enterprise’s declaration of contract appendix receipt
number on the declaration form will be met with difficulty.
(Dong Nai Customs Department under Point 2 of
Official Dispatch No. 0926/HQDNa-TXNK dated May 21, 2021, Point 2 of Official
Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021)
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3
Point b Clause 2 Article 10
1. In case the taxpayer fails to announce
reprocessing facility and/or reprocessing contract (in case of expired
reprocessing contract). How will the matter be resolved? Are the goods still
eligible for tax exemption?
(Tay Ninh Customs Department under
Official Dispatch No. 620/HQTN-NV dated April 15, 2021; Binh Duong Customs
Department under Point 4 of Official Dispatch No. 821/HQBD-TXNK dated April
23, 2021, Point 4 of Official Dispatch No. 756/HQBD-TXNK dated April 15,
2021)
2. Will the case where the taxpayer announces
after the date on which the customs authority inspects finalization report
and conducts post-clearance inspection be understood as “failure to
announce in a timely manner according to customs laws”?
Proposition: Such failure will only be met with
penalties for administrative violations while imports remain eligible for tax
exemption if requirements under Article 10 are fulfilled.
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
1. Pursuant to Point b Clause 2 Article 10
mentioned under Clause 4 Article 1 of Decree No. 18/2021/ND-CP, the taxpayer
who fails to announce reprocessing facility and reprocessing contract in a
timely manner according to customs laws shall only be met with penalties for
administrative violations and customs authority still grants tax exemption
for goods imported for processing if all requirements under Article 10 of
Decree No. 134/2016/ND-CP amended under Clause 4 Article 1 of Decree No.
18/2021/ND-CP are fulfilled. These regulations apply to processing contracts
made from April 25, 2021 (the effective date of Decree No. 18/2021/ND-CP). In
case the taxpayer fails to announce reprocessing facility, reprocessing contract
or expired reprocessing contract, customs authority shall rely on case file
of the violation and Article 17 of Decree No. 126/2020/ND-CP to impose tax
and impose penalties as per applicable laws.
2. In case the taxpayer announces after the date
on which customs authority inspects finalization report and conducts
post-clearance inspection, the taxpayer shall be deemed failing to announce
in a timely manner according to customs laws (the General Department of
Customs promulgated Official Dispatch No. 18/TCHQ-TXNK dated January 4, 2021,
entities shall rely on the Official Dispatch above to implement).
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Point c Clause 2 Article 10 (Point a.4 and Point
b Clause 2 Article 12)
1. Ho Chi Minh City Customs Department proposes:
In case of goods imported for processing,
manufacturing and export, and later reprocessed by an export-processing
enterprise which is hired by a domestic enterprise, will tax of the export
materials, supplies, and parts that create the processed products be exempt
in accordance with Point d Clause 1 Article 11 or will the tax be fully
incurred for processed imports?
Will import duty of products processed in a free
trade zone, later imported to a domestic enterprise, and satisfying
requirements under Clause 1 Article 22 of Decree No. 134/2016/ND-CP be exempt
or will the import duty be incurred in accordance with Clause 2 Article
22 of Decree No. 134/2016/ND-CP?
Pursuant to Clause 1 Article 22 of Decree No.
134/2016/ND-CP: “Goods manufactured, processed, recycled or assembled in a
free trade zone without using imported raw materials or components are exempt
from import duties when they are imported into the domestic market as
prescribed in Clause 8 Article 16 of the Law on Export and import duties”.
Thus, does the phrase “imported raw materials or
components” only include raw materials and components imported to a free
trade zone from a foreign country or include even raw materials and
components imported from a foreign country by a domestic enterprise and transferred
to a free trade zone?
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
2. Vietnam Pys Technology Company Limited
requests guidance on:
If the Company transfers materials imported for
manufacturing and export to an export-processing enterprise for reprocessing,
later receives and exports the finished products in form of domestic export,
will the Company be eligible for tax exemption? Are there any regulations on
the percentage allowed to be transferred for processing? (Vietnam Pys
Technology Company Limited under Official Dispatch No. 0406/PYS-HQ/CV-2021).
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The General Department of Customs promulgated
Official Dispatch No. 3634/TCHQ-TXNK dated July 19, 2021: If a domestic
enterprise imports goods for processing, domestic export and later hires an
export-processing enterprise to manufacture or process imports and
semi-finished products, the domestic enterprise must declare and submit
import duty as per the law for processed products imported to domestic market
in accordance with Clause 2 Article 22 of Decree No. 134/2016/ND-CP. Value
serving calculation of import duty is processing rate, value of materials
used during processing provided by the export-processing enterprise, and adjustable
(if any) in accordance with Clause 3 Article 17 of Circular No.
39/2015/TT-BTC dated March 25, 2015. Do not include value of materials and
supplies sent to the export-processing enterprise by the domestic enterprise
for processing in the taxable value. For your implementation.
2. Regarding remarks of Vietnam Pys Technology
Company Limited requesting guidance on the percentage transferred for
processing:
Pursuant to Clause 6 Article 1 of Decree No.
18/2021/ND-CP, the percentage is not restricted when transferring goods
imported for domestic export to an export-processing enterprise for
preprocessing.
Pursuant to Article 12 of Decree No.
134/2016/ND-CP amended under Clause 6 Article 1 of Decree No. 18/2021/ND-CP,
if the Company (a domestic enterprise) imports goods for manufacturing and
export, transfers imports and semi-finished products manufactured from
imports to an export-processing enterprise for manufacturing and reprocessing
in a free trade zone in any of the cases under Points a.1, a.2, a.3 of Clause
2 Article 12 mentioned under Clause 6 Article 1 of Decree No. 18/2021/ND-CP,
import duties of all imports and semi-finished products manufactured from all
imports transferred for manufacturing and reprocessing shall be exempt if the
domestic enterprise satisfies regulations under Clause 2 Article 12 of Decree
No. 134/2016/ND-CP mentioned under Clause 6 Article 1 of Decree No.
18/2021/ND-CP. Import duty of products manufactured and processed in a free
trade zone and later imported to a domestic enterprise must be incurred in
accordance with Clause 2 Article 22 of Decree No. 134/2016/ND-CP and guidance
under Official Dispatch No. 3634/TCHQ-TXNK dated July 19, 2021 of the General
Department of Customs mentioned above.
Pursuant to Clause 6 Article 1 of Decree No.
18/2021/ND-CP, the percentage is not restricted when the domestic enterprise
transfers goods imported for domestic export to an export-processing
enterprise for reprocessing.
5
Point e Clause 2 Article 10 (Point dd Clause 2
Article 12)
1. For goods imported for processing and export
whose products are not exported or residual imports that remain in storage
and have not been repurposed, is the taxpayer required to produce new
declaration, declare and submit tax to the customs authority? When will the
taxpayer declare? Which code will the taxpayer declare under?
In case of residual materials or unexported
products of processing and domestic export, there should be specific
regulations on the time limit in which repurposing must be declared depending
on the nature of the line of business. Otherwise the customs authority will
face difficulty managing and monitoring in case of residual materials or
unexported products of processing and domestic export retained in storage for
multiple years.
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
- Meaning 1: Due to the exception of gifts, in
case of gifts, the taxpayer is not required to produce a new declaration or
declare and submit tax to customs authority or adopt customs procedures and
tax policies for the gifts.
- Meaning 2: In case of gifts, the taxpayer is
not required to produce a new customs declaration or declare and submit tax to
customs authority according to this document while is required to adopt
customs authority and tax policies applicable to gifts under Article 8 of
Decree.
We hereby request guidance on implementation in 2
meanings mentioned above.
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
1. Pursuant to Article 25 of Decree No.
08/2015/ND-CP dated January 21, 2015 amended under Clause 12 Article 1 of
Decree No. 59/2018/ND-CP dated April 20, 2018, if goods which are imported
for processing and export whose products are not exported or goods that are
residual materials and supplies and retained in storage by the enterprise
have not been repurposed, the enterprise is not required to produce a
new customs declaration and submit tax.
In case of residual materials or unexported
products of processing and domestic export, the enterprise must include in
the import-export-inventory report in accordance with Clause 2 Article 60 of
Circular No. 38/2015/TT-BTC amended under Clause 39 Article 1 of Circular No.
39/2018/TT-BTC.
Residual materials and supplies, processed
products, and domestic export products are not restricted by
applicable tax laws in terms of maximum storage time and/or maximum time
limit before declaration for repurposing must be performed. Should any sign
of fraud or tax evasion or any violation that causes a deficit to the state
budget is found by the customs authority, the customs authority shall conduct
post-clearance inspection in order to impose tax in accordance with Article
17 of Decree No. 126/2020/ND-CP dated October 19, 2020.
2. In case goods are imported for processing and
later used as gifts by the taxpayer, the taxpayer shall produce a new customs
declaration in accordance with Article 25 of Decree No. 08/2015/ND-CP amended
under Clause 12 Article 1 of Decree No. 59/2018/ND-CP, and the handling of
tax on the new declaration of gifts must rely on tax exemption rate of gifts
mentioned under Clause 2 Article 8 of Decree No. 134/2016/ND-CP amended by
Clause 3 Article 1 of Decree No. 18/2021/ND-CP (applicable to 2 cases: A
foreign organization, individual gifts a Vietnamese organization, individual;
A Vietnamese organization, individual gifts a foreign organization,
individual).
In case goods imported for processing and/or
domestic import and used as gifts exceed the tax exemption rate or are
ineligible for tax exemption, individuals who send the gifts (goods imported
for manufacturing and domestic export) must declare and submit tax on the new
customs declaration for the quantity of gifts exceeding the tax exemption
rate or ineligible for tax exemption in accordance with Article 25 of Decree
No. 08/2015/ND-CP amended by Clause 12 Article 1 of Decree No. 59/2018/ND-CP.
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Point g Clause 2 Article 10 (Point e Clause 2
Article 12)
1. Regarding review of documents designating
goods delivery in Vietnam issued by foreign organizations and individuals
Pursuant to Point III of Official Dispatch No.
2687/TCHQ-TXNK dated June 1, 2021, once the procedures for in-country export
have been implemented, individuals performing in-country export must attach
documents issued by foreign organizations and individuals designating goods
delivery in Vietnam to the declaration on the E-Customs V5 system for cases
under Points a and c Clause 1 Article 35 of Decree No. 08/2015/ND-CP.
However, since the tab that allows the declaration of “documents designating
goods delivery” is still unavailable on the E-Customs V5 system, an
enterprise must make the declaration under the “Other attachments” section.
At the same time, the E-Customs V5 system does not facilitate extraction or
production of statistical report of data relating to attachments of the
declaration.
Since the section “IX. System connection/I.
Consolidated data extraction/1. Declaration extraction” does not contain data
on attachments, the inspection of documents designating goods delivery in
each declaration will take a lot of time and human resources given how many
green line declarations there are
Will the customs authority receive Form No. 22
mentioned above via the online public service portal and via email?
Propositions:
The General Department of Customs should
implement tabs for separate declaration of “documents designating goods
delivery” in the E-Customs V5 system.
2. Regarding monitor and management of Notice on
completion of customs procedures of import declaration (Form No. 22)
Will the notification of information regarding
customs declaration of in-country export products under Form No. 22 of
Appendix VII be performed in physical form or electronic form? In case of
submission in person, how will the green line declaration be managed?
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We hereby request guidance on monitor and
management of Form No. 22 Appendix VII.
Propositions:
- The customs authority shall receive notice of
the enterprise sent via email. Add receipt procedures to the online public
service system.
- Develop the function that allows electronic
receipt and monitor.- Or request the enterprise to attach Form No. 22 on the
V5 system. Add the tab that allows separate declaration of “Form No. 22” and
function that allows extraction and production of statistical data of
attachments to the E-Customs V5 system.
Currently, the V5 system already provides support
for handling residual declarations, the customs authority is only required to
review and notify the enterprise about residual declarations that lack the
respective in-country export declaration necessary for tax handling.
Proposition: if the customs authority finds the
lack of respective declaration past 15 days from the date of import, the
customs authority shall request the enterprise to provide Form No. 22 and
resolve tax.
(Binh Duong Customs Department under
Point 2.1 of Official Dispatch No. 921/HQBD-TXNK dated May 10, 2021, Official
Dispatch No. 1095/HQBD-TXNK dated June 2, 2021, Official Dispatch No.
1251/HQBD-TXNK dated June 17, 2021; Ho Chi Minh City Customs Department under
Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
1. Regarding review of documents designating
goods delivery in Vietnam issued by foreign organizations and individuals
The General Department of Customs acknowledges
the issue and conducts research to add more functions to the E-Customs V5
system.
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2. Regarding monitor and management of Notice on
completion of customs procedures of import declaration (Form No. 22)
The General Department of Customs already
provides guidance under Section IV of Official Dispatch No. 2687/TCHQ-TXNK
dated June 1, 2021 as follows: Customs Departments of provinces and cities shall
direct Customs Sub-departments where in-country import declaration is
produced to produce logbooks of export declarations of
processed, domestic export goods. In order to facilitate the production of
logbooks, entities shall extract data on the E-Customs V5 under the “IX.
System connection/I. Consolidated data extraction/1. Declaration extraction”
functions. Customs Sub-departments shall list all export declarations and
in-country export declarations under 2 functions of the E-Customs V5,
including: “I. Consolidated data extraction” function and “H. In-country
import and export declarations/1. Managing declarations that exceed the
deadline by more than 15 days” functions. On the basis of the 2 functions
above, the Customs Sub-departments can identify in-country export
declarations that have exceeded the deadline and are without respective
in-country import declarations. Customs Sub-departments must regularly
monitor export declarations of processed, domestic export goods whose
notification (Form No. 22) has not been issued in order to detect cases where
the exporter fails to declare and submit tax past the deadline.
3. Request the General Department of Customs to
guide implementation for the following 2 cases:
a) Case 1: Individuals performing in-country
export has notified customs authority using Form No. 22 of Appendix VII
attached to Decree No. 18/2021/ND-CP within 15 days from the date on which
in-country export products have been granted customs clearance. However, the
notice prepared using Form No. 22 reaches the customs authority after the
deadline when sent via postal service.
b) Case 2: Customs procedures of declaration of
in-country import products have been completed within 15 days from the date
on which in-country export products are granted customs clearance. However,
the individuals performing in-country export fail to submit the notice
prepared using Form No. 22 under Appendix VII attached to Decree No.
18/2021/ND-CP to customs authority in a timely fashion.
(Ha Nam Ninh Customs Department under
Point 3 Official Dispatch No. 1703/HQHNN-NV dated June 18, 2021)
3. Guidance on handling late submission of Form
No. 22:
a) In case individuals performing in-country
export already send notice to custom authority using Form No. 22 (Appendix VII
attached to Decree No. 18/2021/ND-CP) within 15 days from the date on which
in-country export products have been granted customs clearance via postal
service and the notice arrives at the customs authority after 15 days, the
customs authority shall rely on the postage stamp of departure to verify the
submission date.
b) In case the notice is submitted after 15 days
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4. Regarding monitoring of in-country import
declarations of processed and domestic export goods:
Given the great quantity of in-country export,
import declarations at Customs Sub-departments affiliated to Dong Nai Customs
Department, the preparation of logbooks for export declaration will cost a
lot of time while some criteria are already present on the V5 system (except
for actual date of submitting notification on corresponding in-country import
declarations).
(Dong Nai Customs Department under Point 12 of
Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021)
4. Regarding monitoring of in-country import
declarations of processed, domestic export goods under Point b Section IV of
Official Dispatch No. 2687/TCHQ-TXNK dated June 1, 2021: Customs Departments of
provinces and cities shall direct Customs Sub-departments where the
in-country export declarations are registered to produce logbooks of
in-country export declarations of processed, domestic export products.
For entities that receive a large quantity of
in-country import, export declarations, on the basis of criteria under Point
b Section IV of Official Dispatch No. 2687/TCHQ-TXNK mentioned above,
entities shall produce logbooks after extracting data from the E-Customs V5
in order to determine in-country export declarations that lack corresponding
in-country import declarations within the deadline and store documents
serving investigation, inspection, and audit.
7
Point g Clause 2 Article 10 (Point e Clause 2
Article 12)
We hereby request the General Department to
provide guidance:
a) How should the notification using Form No. 22
be performed?
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c) When producing a new declaration, the original
in-country export declaration will remain suspended on the system due to the
lack of corresponding in-country import declaration. Request guidance in
order to avoid suspension of declarations on the system.
In case individuals performing in-country export
notify customs authority of the corresponding in-country import declaration
whose import procedures have been completed after the tax has been submitted,
which declaration will the in-country import declaration be connected with in
order to keep the in-country export declarations from being suspended on the
system? Will the in-country import declaration be connected with in-country
export declarations or the declaration produced by the individuals performing
in-country export once the 15-day period from the day on which the in-country
export declarations is completed expires?
d) In case the individuals performing in-country
export fail to produce new customs declarations, how will the situation be
resolved? Will penalties for administrative violations be imposed? Will the
customs authority impose tax? Once the customs authority imposes tax and the
taxpayer produces in-country import declaration, will the paid tax be
resolved in accordance with regulations and law on handling overpaid tax?
dd) What is the basis for customs authority to
determine appropriate taxable value? In case materials and supplies that
create the products are imported at different times and under different
prices, will the price declared by the enterprise be temporarily acceptable?
(Ba Ria Vung Tau Customs Department
under Official Dispatch No. 1371/HQBRVT-TXNK dated May 28, 2021; Tay Ninh
Customs Department under Point 3 of Official Dispatch No. 620/HQTN-NV dated
April 15, 2021; Binh Duong Customs Department under Point 2.3 of Official
Dispatch No. 921/HQBD-TXNK dated May 10, 2021, Official Dispatch No. 821/HQBD-TXNK
dated April 23, 2021, Official Dispatch No. 756/HQBD-TXNK dated April 15,
2021; Ho Chi Minh Customs Department under Official Dispatch No.
1172/HQTPHCM-TXNK dated May 12, 2021)
Regarding issues under Point a: Conform to
Point 1 of No. 16 hereof.
Regarding issues under Points b, c, and d: General
Department of Customs already provides guidelines under Point 3 Section I and
Point 3 Section II of Official Dispatch No. 2687/TCHQ-TXNK dated June 1,
2021. For your implementation. If the taxpayer notifies customs authority of
the corresponding in-country import declarations whose import procedures have
been completed after paying tax, the paid tax shall be handled in accordance
with guidance of the General Department of Customs under Point 3 Section I
and Point 3 Section II of Official Dispatch No. 2687/TCHQ-TXNK.
Regarding issues Point dd: The enterprise
may declare and determine taxable value in case materials and supplies that
create products are imported at different times and under different prices.
In case of any suspicion, customs authority shall inspect and determine
taxable value in accordance with applicable laws. If the enterprise is found
to be committing fraud, tax evasion, or other violations that cause a deficit
to the state budget, customs authority shall conduct post-clearance
inspection at head office of the taxpayer to take actions as per the law.
8
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Regarding notification of in-country export
declaration:
Pursuant to Point g Clause 2 Article 10, Point e
Clause 2 Article 12 of Decree No. 134 amended by Clause 4 and Clause 6
Article 1 of Decree No. 18/2021/ND-CP, goods imported for processing and
manufacturing of in-country export products eligible for tax exemption shall
be goods that are used in processing and manufacturing of products that have
been exported within the country if individuals performing in-country export
notify customs authority of the corresponding in-country import declaration
whose import procedures have been completed within 15 days from the date on
which in-country export products are granted customs clearance using Form No.
22 of Appendix VII attached hereto. Pursuant to Article 58 of Circular No.
38/2015/TT-BTC, with respect to processed goods and manufactured and exported
goods, the enterprise may choose to adopt import, export procedures at
different Customs Sub-departments affiliated to different Customs
Departments.
According to the regulations above, which
Customs Sub-department will the individuals performing in-country
export submit the notification on corresponding in-country import to?
Propositions: Individuals performing in-country export shall notify customs
authority where the import declarations of products that serve processing of
in-country export products are produced.
(Binh Phuoc Customs Department under Official
Dispatch No. 709/HQBP-NV dated May 11, 2021)
Pursuant to Point g Clause 2 Article 10, Point e
Clause 2 Article 12 mentioned under Clause 4 and Clause 6 Article 1 of Decree
No. 18/2021/ND-CP, enterprises that perform in-country export shall notify Customs
Sub-departments where import declarations of products that serve processing
of in-country export products are produced of corresponding
in-country import products whose import procedures have been completed within
15 days from the date on which in-country export products are granted customs
clearance.
9
Point g Clause 2 Article 10 (Point e Clause 2 Article
12 regarding production of new customs declaration and tax submission past
the 15-day deadline)
Pursuant to Clause 58 of Article 1 of Circular
No. 39/2018/TT-BTC on amendments to Article 86 of Circular No.
38/2015/TT-BTC: “Within 15 working days from the date on which
exports are granted customs clearance, individuals performing in-country
import must adopt customs procedures”
According to which, the regulation on 15
days under Decree No. 18/2021/ND-CP is inconsistent with 15
working days under Clause 58 Article 1 of Circular No. 39/2018/TT-BTC
on amendment to Article 86 of Circular No. 38/2015/TT-BTC. Entities propose:
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(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021; Dong Nai
Customs Department under Article 14 of Official Dispatch No. 927/HQDN-TXNK
dated May 21, 2021)
Pursuant to Point g Clause 2 Article 10 (for
processed goods) and Point e Clause 2 Article 12 (for export goods) mentioned
under Clause 4 and Clause 6 Article 1 of Decree No. 18/2021/ND-CP: “The
quantity of imported goods that are used for processing in-country exports in
reality will be exempt from import duties if the in-country exporter has sent
the customs authority a notification (Form No. 22 in Appendix VII hereof) of
the customs declaration of the in-country imports within 15 days from the day
on which customs clearance is granted to the in-country exports”.
According to which, the Decree regulates within
15 days from the date on which in-country export products are granted customs
clearance, individuals performing in-country export must notify customs authority
of the corresponding in-country import declarations whose import procedures
have been completed using Form No. 22 under Appendix VII attached to this
Decree (do not rely on the phrase “15 working days” under Clause 58 Article 1
of Circular No. 39/2018/TT-BTC amending Article 86 of Circular No.
38/2015/TT-BTC). For your implementation in accordance with Clause 4 and
Clause 6 Article 1 of Decree No. 18/2021/ND-CP.
10
Point g Clause 2 Article 10 (Point e Clause 2
Article 12)
What is the deadline for the exporter to produce
new declaration, declare, and submit tax for materials and supplies for
manufacturing in-country export products? What is the deadline for the
importer to complete in-country import procedures for the products exported
by individuals performing in-country export in order to benefit from
tax refund?
(Tay Ninh Customs Department under Official
Dispatch No. 620/HQTN-NV dated April 15, 2021, Lac Ty Company Limited under
Point IV of Official Dispatch No. 59/XNK-LT dated April 26, 2021)
Regarding production of new customs
declaration and tax submission for materials and supplies for manufacturing
of in-country export products
Pursuant to Point g Clause 2 Article 10 (for
processed goods) and Point e Clause 2 Article 12 (for export goods) mentioned
under Clause 4 and Clause 6 Article 1 of Decree No. 18/2021/ND-CP: The
quantity of imported goods that are used for processing in-country exports in
reality will be exempt from import duties if the in-country exporter has sent
the customs authority a notification (Form No. 22 in Appendix VII hereof) of
the customs declaration of the in-country imports within 15 days from the day
on which customs clearance is granted to the in-country exports.
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The time limit for the individuals performing
in-country export to register new declarations, declare, and submit tax for
materials and supplies serving manufacturing of in-country exports shall be
the date on which the 15-day period from the date on which in-country export
products are granted customs clearance expires and the individuals performing
in-country export fail to notify customs authority of the corresponding
in-country import declaration whose import procedures have been completed.
Regarding tax refund
In-country import procedures must be completed
within 15 days from the date on which in-country export declarations are
granted customs clearance; failure to complete in-country import procedures
within the time limit mentioned above will cause the individuals performing
in-country export to produce a new declaration under A42 code, declare, and submit
tax. When the individuals performing in-country export notify customs
authority of the corresponding in-country import declarations whose import
procedures have been completed after 15 days, their paid tax shall be
resolved in accordance with regulations and law on tax administration and
handling of overpaid tax.
11
Point g Clause 2 Article 10; Point e Clause 2
Article 12
Pursuant to Point g Clause 2 Article 10; Point e
Clause 2 Article 12 of Decree No. 134/2016/ND-CP dated September 1, 2016
(amended by Decree No. 18/2021/ND-CP dated March 11, 2021) of the Government
guiding products exported in form of processing and manufacturing of exports,
since multiple enterprises perform in-country export under B11 code, are the
enterprises required to produce Form No. 22 containing information on the
in-country import declaration? Request guidance from General Department of
Customs.
(Dong Nai Customs Department under Point 13 of
Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021)
The regulations that require individuals
performing in-country export to notify in-country import declarations using
Form No. 22 mentioned under Point g Clause 2 Article 10, Point e Clause 2
Article 12 mentioned under Clause 4, Clause 6 Article 1 of Decree No.
18/2021/ND-CP dated March 11, 2021 only apply to goods that are imported for
processing, domestic export and granted import duty exemption but are
exported to another domestic enterprise as designated by the foreign trader
instead of being exported overseas or to a free trade zone.
Thus, goods exported within the country under B11
code are not eligible for tax exemption as stated under Article 10, Article
12 of Decree No. 134/2016/ND-CP and are not required to be notified using
Form No. 22 in accordance with Point g Clause 2 Article 10 mentioned under
Clause 4 Article 1 of Decree No. 18/2021/ND-CP; Point e Clause 2 Article 12
mentioned under Clause 6 Article 1 of Decree No. 18/2021/ND-CP.
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Point g Clause 2 Article 10 (Point e Clause 2
Article 12)
Declarations placed in red line will result in
the following issues:
1. In-country exporting enterprises that have
produced declaration for materials and supplies and fail to fulfill the
15-day time limit prescribed by Decree No. 18/2021/ND-CP will be unable to
present the goods to customs authority at export location for inspection
since the goods have been sold to the in-country importing party. Since goods
available at the in-country importing party are in form of finished products
and are no longer in the original state, will the inspection results be
well-grounded?
2. Will these declarations be physically
inspected by the other customs authority?
3. Which customs authority will impose penalties
upon discovering the sale of goods conducted by in-country importing
enterprises prior to clearance?
4. How will the goods be inspected when the
in-country exporting enterprise fails to provide accurate address of the
in-country importing enterprise?
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
1. In this case, the customs authority is not
required to conduct physical inspection (calculation of tax based on import
materials and supplies while goods are already manufactured into finished
goods and potentially shipped to in-country importing party). The General
Department of Customs issues Official Dispatch No. 3509/TCHQ-QLRR dated July
12, 2021 guiding resolution: If goods are placed under red line and the
enterprises lack the goods for physical inspection, transfer the goods
from red line to yellow line to facilitate document inspection.
2. Physical inspection shall not be conducted by
any customs authority (since the goods have been transferred to yellow line
as mentioned above).
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4. In case the in-country exporting enterprise
fails to provide accurate address of in-country importing enterprise, the
regulations under Point g Clause 2 Article 10, Point e Clause 2 Article 12
mentioned under Clause 4 and Clause 6 Article 1 of Decree No. 18/2021/ND-CP
requiring individuals performing in-country export to provide information on
in-country import declarations within 15 days from the date on which
in-country export products are granted customs clearance are not met. In this
case, the in-country exporting enterprise must declare and
submit tax in accordance with Point g Clause 2 Article 10, Point e Clause 2
Article 12 mentioned under Clause 4, Clause 6 Article 1 of Decree No.
18/2021/ND-CP.
13
Point g Clause 2 Article 10 (Point e Clause 2
Article 12)
In case in-country importing party has not
produced in-country import declaration within 15 days from the date on which
the in-country exporting party produces in-country export declaration and the
in-country exporting party requests cancellation of the in-country export
declaration, will the customs authority cancel the in-country export
declaration? Propositions: If the enterprise can prove the cancellation of
in-country import and export, the customs authority shall cancel as
requested.
(Binh Duong Customs Department under Official
Dispatch No. 921/HQBD-TXNK dated May 10, 2021; Point 2 Official Dispatch No.
756/HQBD-TXNK dated April 15, 2021, Point 2 Official Dispatch No.
821/HQBD-TXNK dated April 23, 2021)
Cases where declarations are cancelled at request
of customs declarant have been provided for under Point d2 Clause 1 and Point
b3 Clause 2 Article 22 of Circular No. 38/2015/TT-BTC amended by Clause 11
Article 1 of Circular No. 39/2018/TT-BTC dated April 20, 2018; cases where
the exporter or importer cancels the export or import whose in-country
declaration has been granted customs clearance or release shall be considered
cancellation of the declaration. In this case, customs authority is
responsible for verifying the cause and eligibility for declaration
cancellation.
Other cases that are not considered cancellation
of declaration as mentioned under Article 22 of Circular No. 38/2015/TT-BTC
amended by Clause 11 Article 1 of Circular No. 39/2018/TT-BTC dated April 20,
2018 are not eligible for cancellation of the declaration.
For your implementation.
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Issues regarding resolution to in-country export
declarations produced before the effective date of Decree No. 18/2021/ND-CP:
Due to a multitude of reasons such as in-country
importing enterprise has not received documents from in-country exporters,
in-country importing enterprise has not received the goods hence does not
produce import declaration, in-country importing/exporting enterprise
dissolves or go missing, etc. the in-country export declarations remain
without their corresponding in-country import declarations. The resolutions
to these in-country export declarations are still unavailable. Propositions:
Pursuant to Point g Clause 2 Article 10 and Point e Clause 2 Article 12 of
Decree No. 18/2021/ND-CP.
- For type E export declarations (processing, domestic
export) that remain before the effective date of Decree No. 18/2021/ND-CP,
request the presence of in-country exporting enterprises to verify the
in-country import declarations If the in-country exporting enterprise fails
to verify, they must produce a new declaration and submit tax in accordance
with Point g Clause 2 Article 10 and Point e Clause 2 Article 12 of Decree
No. 18/2021/ND-CP.
- For export declarations of other types that
remain before the effective date of Decree No. 18/2021/ND-CP, request the
presence of in-country exporting enterprises to verify the in-country import
declarations If the in-country exporting enterprise fails to verify, they
must cancel the in-country export declaration.
(Dong Nai Customs Department under Point 7 and
Point 8 of Official Dispatch No. 1071/HQDNa-TXNK dated September 6, 2021,
Official Dispatch No. 712/HQDN-TXNK dated April 19, 2021, Point 10 and Point
11 of Official Dispatch No. 927/HQDN-TXNK dated May 21, 2021)
Pursuant to Point g Clause 2 Article 10, Point e
Clause 2 Article 12 mentioned under Clause 4 Clause 6 Article 1 of Decree No.
18/2021/ND-CP.
Decree No. 18/2021/ND-CP does not regulate the
transition of tax resolution of declarations of processed products and
domestic exports that are produced before the effective date thereof but the
enterprise has not issued notification of corresponding in-country import
declarations in accordance with Point g Clause 2 Article 10 and Point e
Clause 2 Article 12 of Decree No. 18/2021/ND-CP.
For in-country export declarations that are
produced before April 25, 2021, the General Department of Customs already
provided guidance under Official Dispatch No. 2411/TCHQ-GSQL dated April 24,
2019 and Official Dispatch No. 346/TCHQ-GSQL dated January 15, 2020.
The General Department of Customs hereby requests
entities to rely on regulations on customs procedures and tax policies
applicable at the time of producing in-country import declarations and
relevant documents to handle as per the law.
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Point h Clause 2 Article 10 (Point h Clause 2
Article 12)
We hereby request the General Department of
Customs to provide guidance on policies on import duty and VAT for
goods imported within the country for domestic export.
(Ba Ria Vung Tau Customs Department under
Point 2 Section I and Section II of Official Dispatch No. 1371/HQBRVT-TXNK
dated May 28, 2021; Binh Duong Customs Department under Point 6 of Official
Dispatch No. 821/HQBD-TXNK dated April 23, 2021, Point 1.1 of Official
Dispatch No. 921/HQBD-TXNK dated May 10 ,2021; Lac Ty Company Limited under
Point I of Official Dispatch No. 59/XNK-LT dated April 26, 2021; Taipei
Economic and Cultural Office in Vietnam under Official Dispatch No. VN130
dated May 12, 2021)
Policies on import duty and VAT for goods
imported within the country for domestic export are provided for under No.
16 hereof.
16
Point h Clause 2 Article 10 (Point h Clause 2
Article 12)
Request the General Department of Customs to
provide guidance on code of declarations, tax policies for in-country import
goods serving domestic export in the following 4 cases:
1. If a domestic enterprise imports goods
directly from an export-processing enterprise or an enterprise in a free
trade zone or a bonded warehouse for domestic export via sale agreement,
which declaration code will be used? How are policies on import duty and VAT
applied in this case?
2. If a domestic enterprise signs a contract for
purchasing goods for domestic export with a foreign enterprise whose
commercial present in Vietnam is non-existent and is designated by a foreign
organization or individual to receive goods from an export-processing
enterprise or an enterprise in a free trade zone, which declaration code will
be used? How are policies on import duty and VAT applied in this case?
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4. A domestic enterprise signs contract for sale
of goods for domestic export with a foreign trader and is designated by the
foreign trader to receive goods from an export-processing enterprise or a
free trade zone. The goods are previously imported for processing and
domestic export by the domestic enterprise, have been granted exemption from
import duty in accordance with Article 10 and Article 123 of Decree No.
134/2016/ND-CP, and exported to an export-processing enterprise or a free
trade zone. In this case, which declaration code will be used when
reimporting? How are policies on import duty and VAT applied in this case?
(Binh Duong Customs Department under
Point 1.5, Point 1.7, Point 1.7.2, Point 1.8 of Official Dispatch No.
921/HQBD-TXNK dated May 10, 2021, Point 2 of Official Dispatch No.
1095/HQBD-TXNK dated June 2, 2021, Official Dispatch No. 1393/HQBD-GSQL dated
July 2, 2021 2/7/2021; Ho Chi Minh City Customs Department under Official
Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021; Dong Nai Customs
Department under Point 3 of Official Dispatch No. 1071/HQDNa-TXNK dated June
9, 2021, Official Dispatch No. 926/HQDNa-TXNK dated May 21, 2021, Official
Dispatch No. 927/HQDNa-TXNK dated May 21, 2021, Official Dispatch No.
712/HQDNa-TXNK dated April 19, 2021; Ha Nam Ninh Customs Department under
Point 1 of Official Dispatch No. 1703/HQHNN-NV dated June 18, 2021; Ba Ria Vung
Tau Customs Department under Official Dispatch No. 1371/HQBRVT-TXNK dated May
28, 2021; Can Tho Customs Department under Official Dispatch No. 751/HQCT-NV
dated May 12, 2021 and Official Dispatch No. 1426/HQCT-NV dated August 9,
2021; Thua Thien Hue Customs Department under Official Dispatch No.
546/HQTTH-NV dated May 28, 2021, Official Dispatch No. 1088/HQTTH-NV dated
October 27, 2021; Quang Ngai Customs Department under Official Dispatch No.
1224/HQQNg-NV dated October 1, 2021; Korean Chamber of Commerce and Industry
in Ho Chi Minh City under Official Dispatch No. 2110/HHTMHQ dated June 1,
2021; SPG Vina Company Limited under Official Dispatch No. SPG21/NKTC dated
June 4, 2021; Vietnam Business Association under Official Dispatch No.
060721/CV/DN-XSSK dated July 6, 2021, Vietnam Pys Technology Company Limited
under Official Dispatch No. CV-PYS/2021/0720 dated July 20, 2021; Takazono
Vietnam Single-member Company Limited under Official Dispatch No.
CV/TVN-2107201044001 dated July 20, 2021; Vietnam HTMP Joint Stock Company
under Official Dispatch No. 28721/CV/DN-XSSK dated July 28, 2021, Official
Dispatch No. 2709/CV/DN-XSSK dated September 27, 2021; CASSA ABLOY Smart
Product Vietnam Company Limited under Official Dispatch No. 160821/CV/DN-SXXK
dated August 16, 2021; Schaeffler Vietnam Company Limited under Official
Dispatch No. 2307-01/SVC-TCHQ dated July 26, 2021; Nitto Denko Tape Materials
Vietnam Company Limited under Official Dispatch No. 01/21/KNQ-Nitto dated
September 24, 2021; Sonion Vietnam II Company Limited under Official Dispatch
No. 20210825 dated August 25, 2021; Voltronic Power Technology Vietnam
Company Limited under Official Dispatch No. 280821/CV-Vol dated August 28,
2021; Thuan Phuong Embroideries Garments Company Limited under Official Dispatch
No. 136/2021/TP-XNK dated October 20, 2021; Phong Phu International Joint
Stock Company under Official Dispatch No. 29/CV-XNK dated July 14,
2021)
Pursuant to Clause 2 and Clause 3 Article 2 of
the Law on Import, Export Duties No. 107/2016/QH13: “2. Goods exported
from the domestic market into free trade zones; goods imported from free
trade zones into the domestic market; 3. Goods imported or exported within
the country” are eligible for import, export duties.
Pursuant to Clause 1 Article 4 of the Law on
Import, Export Duties No. 107/2016/QH13: “1. 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 consider
export and import”
Pursuant to Clause 10 Article 4 of the Law on
Customs No. 54/2014/QH13: “Bonded warehouse means a depot for storing
goods for which customs formalities have been completed and which are stored
pending their export; goods sent from abroad and stored pending their
re-export or their import into Vietnam”.
Pursuant to Clause 1 Article 35 of Decree No.
08/2015/ND-CP dated January 21, 2015: “1. In-country export and import goods
include:
a) Those produced in Vietnam under contract
manufacturing arrangements and sold to Vietnamese organizations or
individuals by overseas ones;
b) Those traded under the sale and purchase
contract between domestic enterprises and exporting and processing
enterprises or enterprises located in free trade zones;
c) Those traded under the sale or purchase
contract between Vietnamese enterprises and overseas organizations or
individuals that have no representative in Vietnam, and delivered or received
under the designation arrangement between foreign merchants with other
enterprises in Vietnam”.
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In case the in-country importer has paid import
duties, used the in-country imports for manufacture of goods for export and
exported the goods to a foreign country or a free trade zone in reality, paid
import duties will be refunded in accordance with Article 36 of this Decree.”
According to the regulations above, the tax
resolution in the 4 proposed cases is:
1. If a domestic enterprise imports goods
directly from an export-processing enterprise or an enterprise in a free
trade zone or a bonded warehouse (goods sent to the bonded warehouse must be
goods imported from a foreign country ort from a free trade zone, not goods
previously sent to the bonded warehouse by a domestic enterprise) for
manufacturing of exports under sale contract, the enterprise shall benefit
from import duty if all requirements under Clause 2 Article 12 of Decree no.
134/2016/ND-CP and Clause 6 Article 1 of Decree No. 18/2021/ND-CP.
Declaration shall use E31 code - importing materials for domestic export and
the importer shall be eligible for import duty exemption and not be subject
to VAT.
2. In case a domestic enterprise signs a contract
for purchasing goods for domestic export with a foreign organization or
individual whose commercial presence in Vietnam is non-existent and is
designated by the foreign organization or individual to receive goods from an
export-processing enterprise or an enterprise in the free trade zone
(satisfactory to Clause 1 Article 4 of the Law on Import, Export Duties No.
107/2016/QH13), goods imported in-country between the domestic enterprise and
the export-processing enterprise or the enterprise in a free trade zone shall
be eligible for import duty exemption if regulations on duty-free goods under
Clause 2 Article 12 of Decree No. 134/2016/ND-CP and Clause 6 Article 1 of
Decree No. 18/2021/ND-CP. Declaration for in-country import shall use E31
code - importing materials for domestic export and taxpayer shall be eligible
for import duty exemption and not be subject to VAT.
3. In case a domestic enterprise signs a sale
contract for goods for domestic export with a foreign organization or
individual whose commercial presence in Vietnam is non-existent and is
designated by the foreign organization or individual to receive goods from
another domestic enterprise, goods imported in-country between 2 domestic
enterprises shall use A11 code or A12 code and must have their import duties
declared and paid in accordance with Official Dispatch No. 2687/TCHQ-TXNK
dated June 1, 2021. With respect to VAT and other taxes, the enterprise must
declare and pay tax corresponding to A11, A12 declaration.
Once in-country import goods are used in
manufacturing and have been exported to a foreign country or to a free trade
zone, the enterprise may apply for import duty refund corresponding to
quantity of in-country imported materials and supplies that form the products
that have been exported in accordance with Article 36 of Decree No.
134/2016/ND-CP.
4. In case a domestic enterprise signs a purchase
agreement for goods of a foreign trader and is designated by the foreign
trader to receive goods from an export-processing enterprise or a bonded
warehouse. However, since these goods are previously imported by the domestic
enterprise for processing and domestic export and benefiting from import duty
exemption in accordance with Article 10 and Article 12 of Decree No.
134/2016/ND-CP, exported to an export-processing enterprise or an enterprise
in a free trade zone or a bonded warehouse by the domestic
enterprise, and later imported to domestic market as designated by the foreign
trader after being manufactured, the in-country import products of the
Vietnamese enterprise registered under A12 or A11 import declaration must
have their import duties declared and paid in accordance with guidance under
Official Dispatch No. 2687/TCHQ-TXNK dated June 1, 2021. With respect to VAT
and other taxes, the enterprise must declare and submit tax corresponding to
A11, A12 declaration.
Once in-country import products are used for
manufacturing and have been exported to a foreign country or to a free trade
zone, the enterprise shall receive import duty refund corresponding to the
quantity of in-country import materials and supplies that create the products
that have been exported in accordance with Article 36 of Decree No.
134/2016/ND-CP (Regarding Points a, b, and c mentioned above, the General
Department of Customs already dealt with under Official Dispatch No.
3487/TCHQ-TXNK dated July 12, 2021, Official Dispatch No. 6471/TXNK-CST dated
July 14, 2021, Official Dispatch No. 6744/TXNK-CST dated July 30, 2021, and
Official Dispatch No. 7074/TXNK-CST dated September 15, 2021).
17
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If an enterprise imports goods for purposes other
than processing, which declaration code will the enterprise use? Is the
enterprise subject to VAT? Will the tax be submitted to the budget or the
temporary collection account?
(Ba Ria Vung Tau Customs Department
under Official Dispatch No. 1371/HQBRVT-TXNK dated May 28, 2021 and Official
Dispatch No. 1671/HQBRVT-TXNK dated June 25, 2021, Tay Ninh Customs
Department under Official Dispatch No. 1090/HQTN-NV dated June 18, 2021 and
Official Dispatch No. 1337/HQTN-NV dated July 15, 2021; Thua Thien Hue
Customs Department under Official Dispatch No. 546/HQTTH-NV dated May 28,
2021, Official Dispatch No. 622/HTTTH-NV dated June 11, 2021, and Official
Dispatch No. 801/HQTTH-NV dated July 20, 2021; Can Tho Customs Department
under Official Dispatch No. 751/HQCT-NV dated May 12, 2021 and Official
Dispatch No. 1109/HQCT-NV dated June 24, 2021; Dong Thap Customs Department
under Official Dispatch No. 752/HQDT-NV dated May 17, 2021; Binh Duong
Customs Department under Official Dispatch No. 921/HQBD-TXNK dated May 10,
2021; Ho Chi Minh Customs Department under Official Dispatch No.
1172/HQTPHCM-TXNK dated May 12, 2021)
The declaration of import code of goods imported
in-country for purposes other than processing has been prescribed by the
General Department of Customs under Point 4 Section I and Point 4 Section II of
Official Dispatch No. 2687/TCHQ-TXNK dated June 1, 2021.
Products imported in-country for purposes other
than processing must be registered under A11 or A12 declaration. The
declaration, submission of import duty, VAT, and other taxes shall be
conducted corresponding to A11, A12 declaration. The tax shall be submitted
to the state budget.
Detail guidance on cases of in-country import is
specified under No. 16 hereof.
18
Point h Clause 2 Article 10 (Point h Clause 2
Article 12)
Regarding application of import duty rate to
in-country import commodities that is not regulated Request the General
Department of Customs to provide guidelines on consistent implementation.
(The Binh Duong Customs Department under Point
1 Official Dispatch No. 921/HQBD-TXNK).
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19
Point h Clause 2 Article 10 (Point h Clause 2
Article 12)
Tax submission deadline for cases of in-country
import that have not been elaborated in accordance with Clause 4 Article 55
of the Law on Tax Administration in 2019 or in accordance with Article 9 of
the Law on Import, Export Duties in 2016. (The Binh Duong Customs
Department under Point 1 of Official Dispatch No. 921/HQBD-TXNK)
Pursuant to Article 9 of the Law on Import,
Export Duties No. 107/2016/QH13, duties of taxable import, export commodities
must be finalized prior to customs clearance or goods release in accordance
with the Law on Customs or guaranteed by a credit institution, in which case
a late payment interest must still be incurred unless the taxpayer is
eligible for privileges.
Pursuant to Point h Clause 2 Article 10, Point h
Clause 2 Article 12 specified under Clause 4 and Clause 6 Article 1 of Decree
No. 18/2021/ND-CP; pursuant to Clause 3 Article 3 specified under Clause 1
Article 1 of Decree No. 18/2021/ND-CP; pursuant to Point 4 Section I and
Point 4 Section II of Official Dispatch No. 2687/TCHQ-TXNK, in-country import
products registered under customs declaration codes other than toll
manufacturing also require tax declaration (customs declaration code A11 or
A12).
Tax submission deadline shall conform to Article
9 of the Law on Import, Export Duties No. 107/2016/QH13.
20
The case where export-processing enterprises hire
domestic enterprises to conduct toll manufacturing
Request guidance on tax policies for the case
where export-processing enterprises hire domestic enterprises to conduct toll
manufacturing in the following cases:
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Is the Company eligible for hiring a domestic
enterprise to reprocess every stage of production? (Chitwing Precision
Tech Vietnam Company Limited under Official Dispatch No. 20210621-01 dated
June 21, 2021)
Pursuant to Point c Clause 4 Article 2 of the Law
on Import, Export Duties No. 107/2016/QH13: “Goods exported overseas from a
free trade zone; goods imported to a free trade zone from overseas for use in
the free trade zone; goods transported from one free trade zone to another”
are not subject to import, export duties;
Pursuant to Clause 1 Article 76 of Circular No.
38/2015/TT-BTC and amendments thereto under Clause 52 of Article 1 of
Circular No. 39/2018/TT-BTC on goods processed by a domestic enterprise which
is hired by an export-processing enterprise: “a) The domestic enterprise
shall adopt customs procedures in accordance with regulations on processing
goods on behalf of foreign traders under Section 1 and Section 2 of Chapter
III hereof. Regarding location for customs procedures, the domestic
enterprise is allowed to choose to perform customs declarations at the
Customs Sub-department that oversees the export-processing enterprise. When
filling in the field “internal enterprise management number” on the customs
declaration form, the domestic enterprise shall specify: #&GCPTQ;
b) The export-processing enterprise is not required
to adopt customs procedures when bringing goods into the country for
processing and receiving domestically processed goods.
When bringing goods from an export-processing
enterprise into domestic market for processing, maintenance, and/or repair without
receiving the goods, the processing party (a domestic enterprise must produce
a new customs declaration in order to repurpose in accordance with Chapter II
hereof”.
Tax policies applicable to the hiring
export-processing enterprise and the hired domestic enterprise are as
follows:
a) Regarding export-processing enterprise
The export-processing enterprise may hire a
domestic enterprise to reprocess goods imported to the export-processing
enterprise The export-processing enterprise is not required to adopt customs
procedures when bringing goods into the country for processing and receiving
processed goods from the domestic enterprise in accordance with Clause 1
Article 76 of Circular No. 38/2015/TT-BTC and amendments thereto under Clause
52 Article 1 of Circular No. 39/2018/TT-BTC. Goods sent by the
export-processing enterprise for domestic processing are not subject to
import duties and VAT.
b) Regarding domestic enterprise
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21
1. The case where the processing of A42
declaration of declarant enterprise for the imported constituents of export
products must rely on export goods consumption rates but the enterprise is
not required to submit export consumption rates at the time of adopting
customs procedures Therefore, customs authority lacks the required basis for
carrying out physical inspection of documents and goods.
2. If the enterprise fails to issue a notice
using Form No. 22 within 15 days from the date on which customs clearance is
granted, either the enterprise must produce an A42 customs declaration or the
tax authority shall impose tax liability. However, the date after which the
enterprise is no longer allowed to issue the aforementioned notice still has
not been formally regulated. Thus, the completion of form A42 or the tax
imposition followed by the revision made by the enterprise for tax reduction
will be time-consuming during the adoption of customs clearance procedures
for imports and exports
(Dong Nai Customs Department under Point 14 of
Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021)
1. Pursuant to Clause 2 Article 55 of Circular
No. 38/2015/TT-BTC and amendments thereto under Clause 33 Article 1 of
Circular No. 39/2018/TT-BTC: “data and documents about determination of
consumption rates must be retained. Consumption rates applied to the products
exported in the fiscal year must be notified to the customs when submitting
the statement mentioned in Clause 2 Article 60 of this Circular”.
If the enterprise declares payable tax for the
imported constituents of export products on Form A42, the enterprise is not
required to submit consumption rates along with Form A42. The enterprise
shall, on their part, declare and calculate import duties on the declaration
form after which point customs authority shall approve the declaration of the
enterprise. During the adoption of customs procedures, customs authority is
not required to perform detail calculation for each article on Form A42.
If any sign of tax fraud, tax evasion, or any
other violation that causes deficit to the state budget is found, the customs
authority shall conduct post-clearance inspection in order to impose tax in
accordance with Article 17 of Decree No. 126/2020/ND-CP and take actions as
per applicable laws.
(Regarding transfer of Form A.42, the General
Department of Customs has provided guidelines under Official Dispatch No.
3509/TCHQ-QLRR dated July 12, 2021).
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22
Clause 4 Article 10
In case the enterprise wishes to sell scraps
domestically while producing processed goods on behalf of foreign traders, is
the enterprise only required to issue VAT invoice for scraps buyers, declare,
submit VAT, submit excise tax, and submit environmental protection tax (if
any) to the Sub-Department of Taxation overseeing the enterprise starting
from April 25, 2021? Is the enterprise required to produce reports or ask
customs authority for permission?
Hereby request General Department of Taxation to
provide guidelines on selling scraps and wastes domestically while producing
processed goods on behalf of foreign traders.
(Mami Hanoi Company Limited under Official
Dispatch No. 496/NHC-XNK dated May 12, 2021)
The sale of scraps collected during processing is
prescribed as follows:
1. Regarding domestic enterprise:
With respect to scraps of goods imported for
processing and domestic consumption, the General Department of Taxation
already provided guidelines under Point 5 Section I of Official Dispatch No.
2687/TCHQ-TXNK dated June 1, 2021. According to the Official Dispatch,
starting from the effective date of Decree No. 18/2021/ND-CP (which is April
25, 2021), scraps created during the processing shall be exempted from import
duties when repurposed to domestic consumption and taxpayer is not required
to adopt customs procedures except for submitting VAT, excise tax, and/or
environmental protection tax (if any) to tax authority under Clause 4 Article
10 of Decree No. 134/2016/ND-CP and amendments thereto under Clause 4 Article
1 of Decree No. 18/2021/ND-CP. With respect to wastes, the enterprise shall
conform to regulations and law on environment under Article 64 of Circular
No. 38/2015/TT-BTC and amendments thereto under Clause 42 Article 1 of
Circular No. 39/2018/TT-BTC.
2. Regarding export-processing enterprise:
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23
Clause 5 Article 10
As per applicable regulations and law, documents
designating goods delivery in Vietnam of foreign organizations, individuals,
or enterprises must be submitted to customs authority during adoption of
in-country export procedures. If the enterprise did not submit the green line
declaration at the time of declaration until customs clearance was granted,
will the enterprise be eligible for tax exemption?
(Binh Duong Customs Department under Point 5
of Official Dispatch No. 756/HQBD-TXNK dated April 15, 2021, Point 5 of
Official Dispatch No. 23/4/2021, Dong Nai Customs Department under Point 1 of
Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021)
Pursuant to Clause 1 Article 18 of Circular No.
38/2015/TT-BTC and amendments thereto under Clause 7 Article 1 of Circular
No. 39/2018/TT-BTC, customs declarants must fill in the customs declaration
according to Form No. 1 or Form No. 2 under Appendix II attached hereto
(including the “internal enterprise management number" for in-country
import export goods) and send customs documents under Article 16 of this
Circular depending on fields under Form No. 3 Appendix II attached to this
Circular to customs authority via Electronic customs data processing system.
Pursuant to Clause 5 Article 10, Clause 3 Article
12 under Clause 4, Clause 6 Article 1 of Decree No. 18/2021/ND-CP: “upon
adopting in-country export procedures for goods under this Article, in
addition to tax exemption documents under Article 31 of this Decree,
in-country exporters must submit documents designating goods delivery in
Vietnam issued by foreign organizations and individuals (1 photocopy)”.
Section III of Official Dispatch No.
2687/TCHQ-TXNK dated June 1, 2021 of the General Department of Taxation
already provides guidelines on documents designating goods delivery in
Vietnam of foreign organizations and individuals. According to which, the
case where in-country exporters fail to provide documents designating
goods delivery in Vietnam issued by foreign organizations or
individuals (except for cases under Point b Clause 1 Article 35 of Decree No.
08/2015/ND-CP) shall not be considered in-country export and thus shall not
be eligible for in-country import, export procedures.
In case of green line declaration, if the
enterprise possesses the designating documents but fail to submit when
filling in the declaration until customs clearance has been granted, the
enterprise shall not be eligible for import duty exemption in accordance with
Clause 5 Article 10, Clause 3 Article 12 under Clause 4 and Clause 6 Article
1 of Decree No. 18/2021/ND-CP.
Article 11. Tax exemption for goods exported
for processing and processed products imported
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Point a Clause 1 Article 11
Guiding documents only mention scraps eligible
for tax exemption such as scraps produced during toll manufacturing and/or
manufacturing for export. With respect to taxable business models, the case
where natural resources and minerals are imported from overseas for
manufacturing process which creates scraps, will the scraps be eligible for
export duty exemption? (Binh Duong Tax Department under Point 3 of
Official Dispatch No. 756/HQBD-TXNK dated April 15, 2021 and Point 3 of
Official Dispatch No. 821/HQBD-TXNK dated April 23, 2021)
Pursuant to Point a Clause 1 Article 11 of Decree
No. 134/2016/ND-CP and amendments thereto under Clause 5 Article 1 of Decree
No. 18/2021/ND-CP on tax exemption applicable to goods exported for
processing and compensating products: “Where goods exported for processing
are natural resources, minerals or products in which the value of natural
resources or minerals plus (+) energy cost makes up at least 51% of the
product price and the goods are subject to export duties (except scraps
produced during the manufacture or processing of the imports for export),
duty exemption shall not be granted
According to which, if scraps are created as a result
of toll manufacturing, domestic export and later exporting overseas for
processing, the scraps shall be eligible for export duty exemption. With
respect to scraps that are produced in the process of business models A11 or
A12 and exported overseas for processing by enterprises, the scraps shall not
be eligible for export duty exemption.
(Regarding resolution of tax-related affairs for
export scraps, the General Department of Customs issued Official Dispatch No.
3112/TCHQ-TXNK dated June 21, 2021 guiding
Article 12. Tax exemption for goods imported
for manufacturing exports
25
Point b Clause 1 Article 12
The export process of our Company is as follows:
Place order for processing and purchase motor vehicle parts from Vietnamese
suppliers (including export-processing enterprises) for processing, packing,
labeling, and exporting. We hereby request the General Department to provide
guidance:
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2. In case our operation is eligible for tax
exemption, we hereby request guidelines on respective import and export codes
that we must declare during customs procedures.
(Vietnam Toyota Motor Vehicle Company under
Official Dispatch No. 20210706 dated July 6, 2021)
Pursuant to Point b Clause 1 Article 12 of Decree
No. 134/2016/ND-CP and amendments thereto under Clause 6 Article 1 of Decree
No. 18/2021/ND-CP, imports serving manufacturing of exports and eligible for
import duty exemption in accordance with Clause 7 Article 16 of the Law on
Import and Export Duties include: “Finished products that are imported for
packaging, labeling or attaching to exports or packaging with exports as a
whole”.
According to the regulations above, if the
enterprise imports goods for domestic export which include finished products
imported for packaging, labeling, attaching to exports, or packaging with
exports as a whole and is satisfactory to Clause 2 Article 12 of Decree No.
134/2016/ND-CP which is mentioned under Clause 6 Article 1 of Decree No.
18/2021/ND-CP, the imports shall be eligible for import duty exemption in
accordance with Article 12 of Decree No. 134/2016/ND-CP and amendments
thereto under Clause 6 Article of Decree No. 18/2021/ND-CP.
Application and procedures for applying for duty
exemption shall conform to Article 12 of Decree No. 134/2016/ND-CP and
amendments thereto under Clause 6 Article 1 of Decree No. 18/2021/ND-CP.
Taxpayer(s) must finalize the “Finished
products that are imported for packaging, labeling or attaching to exports or
packaging with exports as a whole” in a manner similar to supplies and
materials imported for manufacturing exports.
The case where the Company purchases the
aforementioned goods from a domestic enterprise which produces a VAT invoice
for the sale instead of importing the goods shall not be eligible for
import duty exemption and/or refund.
In case the Company purchases from a domestic
enterprise or from a free trade zone in form of in-country import, comply
with guidelines under No. 16 hereof.
26
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If, via either post-customs clearance inspection
or finalization report inspection, an enterprise is found to have disposed
imported materials, finished products of goods manufactured for export before
the effective date No. 18/2021/ND-CP (April 25, 2021) without declaring and
submitting tax to customs authority, will the customs authority impose tax
and impose penalties for administrative violations?
(Dong Nai Customs Department under Point 6 of
Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021)
If, via either post-customs clearance inspection or
finalization report inspection, an enterprise is found to have disposed
imported materials, finished products of goods manufactured for export before
the effective date No. 18/2021/ND-CP (April 25, 2021) without declaring and
submitting tax to customs authority, the customs authority shall impose
import duties (without imposing VAT). The General Department of Customs
already provided guidelines under Official Dispatch No. 8127/TCHQ-TXNK dated
December 13, 2017 (attached).
Penalties shall be imposed in accordance with
regulations and law on imposing penalties for administrative violations in
customs.
27
Clause 2 Article 12
Clause 2 Article 12 which prescribes
manufacturing facilities consists of Points a through h where some specific
cases mentioned under this Article do not require fulfillment of other
provisions under this Article which can lead to inconsistent application.
Does the application of regulations under Clause 2 Article 12 mean
simultaneous fulfillment of regulations under Points a through h or does the
application of regulations under Clause 2 Article 12 mean fulfillment of any
of the Points a through h?
E.g.
In order for cases under Points a.1, a.2, a.3,
and a.4 to be eligible for duty exemption, must provisions under Point c, d,
dd, and e also be met?
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(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
Pursuant to Clause 2 Article 12 of Decree No.
134/2016/ND-CP and amendments thereto under Clause 6 Article 1 of Decree No.
18/2021/ND-CP, the basis for determining imports for manufacturing and export
eligible for duty exemption is as follows:
a) For cases under Point a (including a.1, a.2,
a.3, and a.4) Clause 2 Article 12 mentioned above, requirements under Points
c, d, dd, e, g, and h must be met.
b) For cases under Point b Clause 2 Article 12
mentioned above, requirements under Points b, c, d, dd, e, g, and h must be
met.
28
Points a1 and a2 Clause 2 Article 12. Point a3
Clause 2 Article 12
1.a) If an enterprise which imports goods for
domestic export performs one or multiple basic stages of the process (For
example, only the packing stage) and later exports goods, are the goods
eligible for duty exemption?
1.b) In reality, the manufacturing for export
model consists of 2 separate contracts (supply purchase agreement, product
sale contract). If an enterprise imports a type of supply and later
reprocesses the supply, will the decision on whether the imports are
transferred be determined for each import declaration or will the decision on
whether the imports are transferred be determined based on all import
supplies necessary for manufacturing 1 type of product. The Dong Nai Customs
Department proposes: the decision on whether the imports are transferred be
determined based on import supplies; if the enterprise does not participate
in any manufacturing process of the supply, the enterprise will be considered
to be processing the supply and eligible for import duty exemption. Hereby
request the General Department of Customs to issue consistent guidelines for
implementation.
(Dong Nai Customs Department under Point 4 of
Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021)
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When determining a part of imports based on the
declaration, customs authority will have difficulty managing, inspecting, and
determining whether the enterprise transfers a part or all of the imports
based on the declaration because imports from multiple declarations are
stored together and the imports part transferred for reprocessing may come
from more than one declaration.
(Ho Chi Minh Customs Department under
Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021; Binh Duong
Customs Department under Point 4 Official Dispatch No. 921/HQBD-TXNK dated
May 10, 2021, Mr. Khuu Thanh Quy under Official Dispatch No.
PAKN.20210709.0011)
1a) Pursuant to Points a.1, a.2, and a Clause 2
Article 12 under Clause 6 Article 1 of Decree No. 18/2021/ND-CP, the taxpayer
must perform at least one manufacturing step and satisfy other regulations
under Clause 2 Article 12 mentioned under Clause 6 Article 1 of Decree No.
18/2021/ND-CP in order to benefit from import duty exemption with respect to
goods imported for manufacturing, reprocessing.
Departments of Customs of provinces and cities
shall rely on specific case files and refer to regulations mentioned above to
apply duty exemption to goods imported for domestic export as per the law.
1b) Regarding determination of “partial transfer”
of imports for domestic reprocessing:
Pursuant to Clause 1 Article 59 of the Law on
Customs prescribing responsibilities of customs authority in customs
inspection and supervision for goods imported for processing and
manufacturing exports, goods that are supplies and materials imported for
processing and manufacturing exports must be subject to customs inspection and
supervision at import, during manufacturing process, and until the date on
which products are exported or repurposed.
Pursuant to Points a1, a2, and a3 Clause 2
Article 12 mentioned under Clause 6 Article 1 of Decree No. 18/2021/ND-CP:
a1) The taxpayer that assigns part or
all of the imports to a third party within Vietnam’s territory for
manufacture or processing through one or some stages, then receives the
semi-finished products for further processing into finished
exports will be exempt from import duties on the assigned imports.
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a3) The taxpayer that assigns part of
the imports to a third party in Vietnam for processing every stage of
the product, then receives the finished products for export
will be exempt from import duties on the imports assigned to the third party.
According to the aforementioned regulations, each
type of import material is determined for each fiscal year (not
import declaration, import bill, or import agreement).
The partial transfer of each type of supply
and material is not limited in terms of percentage.
The partial transfer of imports (supplies,
materials) to have other organizations and individuals reprocess one or
multiple stages of product shall be implemented when finalizing with the
customs authority (finalization report must be submitted within 90 days from
the date on which a fiscal year ends in accordance with Clause 39 of Article
1 of Circular No. 39/2018/TT-BTC).
Please note:
The percentage above does not apply to the case
where a domestic enterprise imports goods for sale and later manufacturing for
export and the case where the taxpayer is allowed to hire an organization
over 50% of charter capital or common shares of which is held by the taxpayer
to reprocess imports in accordance with Point b Clause 2 Article 12 mentioned
under Clause 6 Article 1 of Decree No. 18/2021/ND-CP.
29
Point g Clause 2 Article 12
Pursuant to Point g Clause 2 Article 12,
in-country exporting and importing enterprises and customs authority where
in-country exporting enterprises will have to input data manually using Form
No. 22 Appendix VII to update with copious amounts of declarations to be made
daily. The Company proposes:
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2. If an in-country exporting enterprise fails to
provide declaration of the in-country imported products whose customs
procedures have been completed within 15 days, the in-country exporting
enterprise will have to produce a new declaration and submit tax. In this
case, what declaration form must the enterprise use and will the enterprise
incur VAT?
(Lac Hy Company Limited under Point IV of
Official Dispatch No. 59/XNK-LT dated April 26, 2021)
1. Regarding the proposition made by the
enterprise: The General Department of Customs shall acknowledge the
proposition and improve the system.
2. If an in-country exporting enterprise fails to
provide customs declaration of the in-country exports within 15 days, the
enterprise must produce a new declaration as guided under Point a Clause 3
Section II of Official Dispatch No. 2687/TCHQ-TXNK dated June 1, 2021 of the
General Director of Customs as follows: If the exporter fails to inform
customs authority about the customs declarations which contain the
corresponding in-country imports whose import procedures have been completed,
the enterprise must produces a new declaration under Form A42 (and submit
import duties, VAT, and other taxes corresponding to Form A42).
30
Point h Clause 2 Article 12
Pursuant to Point h Clause 2 Article 12 and
amendments thereto under Clause 6 Article 1 of Decree No. 18/2021/ND-CP, in-country
importers must declare and submit tax for products imported within the
country under customs declaration of a different form.
a) In this case, when importing within the
country for manufacturing exports, will an enterprise declare using E31 code
without using any tax exemption/reduction code or will the enterprise use A12
code and incur tax? If a product is imported within the country under E31
code and later manufactured and exported overseas or exported to a free trade
zone, is the taxpayer eligible for tax refund? Will the finalization report
include this detail?
b) If a product is imported within the country
under E31 code and later manufactured and exported within the country instead
of being exported overseas or exported to a free trade zone, is the taxpayer
eligible for tax refund? The case where the taxpayer is not eligible for tax
refund will contradict guidance of General Department of Customs under
Official Dispatch No. 4138/TCHQ-TXNK dated June 25, 2019: “…shall be
granted exemption from import duties on supplies and materials imported for
processing and manufacturing of goods for in-country export.”
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a) When importing goods from another domestic
enterprises for manufacturing exports, the enterprise shall make declarations
under A11, A12 codes (details on tax resolution for 4 cases are prescribed
under No. 16 hereof).
If an enterprise makes declaration using A11, A12
code (including E31 code after submitting import duties) for goods imported
within the country for domestic export, once the products are manufactured
and exported overseas or exported into free trade zones, taxpayers shall
receive a refund for the incurred tax in accordance with Article 36 of Decree
No. 134/2016/ND-CP.
Application for tax refund shall conform to
Clause 5 Article 36 of Decree No. 134/2016/ND-CP. Enterprise must use Form 10
under Appendix VII attached to Decree No. 134/2016/ND-CP which is amended by
Appendix VII under Decree No. 18/2021/ND-CP for report on calculation of tax
of import supplies, materials, and parts.
Note: Quantity of import supplies and materials
under the E31 declaration whose tax has been incurred and included in the
report prepared using Form No. 10 must not be included in the finalization
report on input-output-inventory since figures included in the finalization
report shall only be used for import materials, supplies, and parts eligible
for tax exemption. Failure to comply with the provisions above will lead to a
situation where the quantity of materials and supplies actually in store at
the enterprise exceeds that in the report submitted to customs authority.
b) In case products are imported within the
country under E31 declaration and later manufactured, imported, and exported
within the country between 2 domestic enterprises (instead of exporting
overseas or exporting to free trade zone), the taxpayer shall not be eligible
for tax refund; in case products are exported overseas or exported to free
trade zone, the taxpayer shall be eligible for tax refund in accordance with
Article 36 of Decree No. 134/2016/ND-CP (this does not contradict Official
Dispatch No. 4138/TCHQ-TXNK dated June 25, 2019 of the General Department of
Customs guiding tax exemption since regulations on tax exemption and tax
refund are 2 different entities). For your adequate implementation.
31
Point h Clause 2 Article 10 (Point h Clause 2
Article 12)
1) Request specific guidelines on which case of
in-country import that enterprises should choose A12 code and which case that
enterprises should choose E31 code.
a) In case an enterprise declares E31 code,
submits import duties, VAT, and is determined to be eligible for import duty
exemption and VAT exemption, how will the import duty and VAT be refunded?
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c) In case an enterprise declares E31 code,
submits import duty, has not submitted VAT, and is later determined to be
required to declare A11 and/or A12 code, how will the situation be resolved?
((Thua Thien Hue Customs Department under
Official Dispatch No. 622/HQTTH-NV dated June 1, 2021; Binh Duong Customs
Department under Point 3 of Official Dispatch No. 1095/HQBD-TXNK dated June
2, 2021 and Official Dispatch No. 1671/HQBRVT-TXNK dated June 25, 2021; Dong
Nai Customs Department under Point 11 of Official Dispatch No. 1071/HQDNa-TXNK
dated June 9, 2021 and Official Dispatch No. 1337/HQDNa-TXNK dated July 14,
2021; Tay Ninh Customs Department under Official Dispatch No. 1090/HQTN-NV
dated June 18, 2021; Long An Customs Department under Official Dispatch No.
1812/HQLA-NV dated October 28, 2021; Schaeffler Vietnam Company Limited under
Official Dispatch No. 2307-01/SVC-TCHQ dated July 26, 2021)
2. SPG Vina Company Limited request guidance on
whether an enterprise is eligible for import duty refund when that enterprise
declares A12 code, hires domestic enterprises to process parts of materials,
supplies, and parts, receives semi-finished products, and manufactures for
export overseas.
(SPG Vina Company Limited under Official
Dispatch No. SPG21/NKTC dated June 4, 2021)
3. Shinhan Customs Vietnam Company Limited
An enterprise that manufactures for domestic
export (FDI enterprise, domestic enterprise) imports goods from all 3
sources: importing from overseas sources (E31 code); importing from other
domestic enterprises as designated by foreign sellers (A12); purchasing from
domestic sources, utilizing VAT invoices, not producing declarations. In this
case, the enterprise imports the same material code from all 3 sources.
Should the enterprise include the materials
purchased via A12 sources and domestic purchase when calculating actual
consumption rates of products? While finalization report on goods
manufactured for domestic exports does not require report on materials and
supplies imported under A12 code and domestically purchased.
(Shinhan Customs Vietnam Company Limited under
Official Dispatch No. 03/TCHQ/2021 dated July 8, 2021)
1. Methods of determining goods imported within
the country for domestic exports exempt from import duty and not subject to VAT
(E31 code) and goods imported within the country for domestic exports subject
to import duty and VAT (A12 code) have been regulated under No. 16 hereof.
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Pursuant to Point d4 Clause 1 Article 20 of
Circular No. 38/2015/TT-BTC and amendments thereto under Clause 9 Article 1
of Circular No. 39/2018/TT-BTC dated April 20, 2018 regarding cases of
additional declaration: “Except for entries of customs declaration that
cannot be changed according to Section 3 of Appendix II hereof, the declarant
may make an additional declaration in the following cases”.
Pursuant to Point d4 Clause 1 Article 22 of
Circular No. 38/2015/TT-BTC and amendments thereto under Clause 11 Article 1
of Circular No. 39/2018/TT-BTC dated April 20, 2018 on cases where a
declaration is cancelled: “The declarant provides incorrect information on
the declaration according to Section 3 of Appendix II hereof, unless the
import declaration has been granted customs clearance or conditional customs
clearance and goods have been released from the CCA; the export declaration
has been granted customs clearance or conditional customs clearance and the goods
have been exported in reality”.
a) In case a domestic enterprise which imports
goods from export-processing enterprises, enterprises in free trade zones,
and/or bonded warehouses (except for processed goods, goods for
domestic exports sent to bonded warehouses from domestic market) for
manufacturing of exports via purchase agreement according to cases under
Points 1 and 2 under No. 16 hereof has made the E31 declaration, satisfied
the requirements for being exempt from import duty and not subject to VAT in
accordance with Clause 2 Article 12 of Decree No. 134/2016/ND-CP and Clause 6
Article 1 of Decree No. 18/2021/ND-CP but has submitted import duty and VAT
on the E31 declaration form, the enterprise shall make additional
declarations for entries relating to import duty and VAT in accordance with
Article 20 of Circular No. 38/2015/TT-BTC amended under Clause 9 Article 1 of
Circular No. 39/2018/TT-BTC.
The submitted import duty and VAT shall be
handled in conformity with regulations on handling overpaid taxes under
Article 10 of Circular No. 06/2021/TT-BTC dated January 22, 2021.
b) In case an enterprise which is eligible for
importing under E31 code in accordance with guidance under Points 1 and 2 of
No. 16 hereof (exempt from import duty and not subject to VAT) declares goods
imported within the country under A11, A12 code (has submitted import duty
and VAT) and imports that have been granted clearance, and is not eligible
for revising, adding, and cancelling declarations as per the law, once the
enterprise produces and exports products overseas or exports to free trade
zones, the enterprise shall receive a refund for the submitted import duty in
accordance with Article 36 of Decree No. 134/2016/ND-CP. Regarding VAT, the
enterprise shall declare a deduction with domestic tax authority in
accordance with tax laws.
Application for import duty refund shall conform
to Clause 5 Article 36 of Decree No. 134/2016/ND-CP.
The enterprise must produce report on calculation
of import duties of materials, supplies, and parts using Form No. 10 under
Appendix VII attached to Decree No. 134/2016/ND-CP which is amended by
Appendix VII of Decree No. 18/2021/ND-CP (These items must not be included in
finalization report on input-output-inventory since the report only covers
import materials, supplies, and parts eligible for tax exemption).
c) In case goods imported within the country for
domestic exports are subject to import duties, VAT, and have been declared
under A11, A12 code but individual performing in-country exports produces
declarations under E31 code and has only submitted import duty but not VAT,
the taxpayer shall make additional declaration for VAT in accordance with
Article 20 of Circular No. 38/2015/TT-BTC which is amended under Clause 9
Article 1 of Circular No. 39/2018/TT-BTC.
In case import duties and VAT of domestically
imported goods under E31 declarations have been submitted after the goods are
utilized for producing exports and have been exported overseas or exported to
free trade zones, the import duties shall be refunded in accordance with
Article 36 of Decree No. 134/2016/ND-CP in a manner similar to goods imported
under A11, A12 declaration.
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2. Pursuant to Clause 1 Article 36 of Decree No.
134/2016/ND-CP, paid import duties on goods that are initially imported for
business operation but eventually used for manufacture of goods that have
been exported into a foreign country or a free trade zone shall be refunded
(tax refund for cases of assigning reprocessing and manufacturing is not
regulated).
The case where an enterprise makes A12 declaration
(has submitted import duties), hires a domestic enterprise to process a part
of materials, supplies, and parts, receives semi-finished products, and
manufactures for exporting into a foreign country or a free trade zones shall
not be eligible for tax refund in accordance with Article 36 of Decree No.
134/2016/ND-CP and thus the submitted import duties shall not be refunded.
3. Pursuant to Clause 1 Article 59 of the Law on
Customs, “goods that are materials and supplies imported for manufacturing
exports must be subject to customs inspection and supervision from the date
of import, during product manufacturing process, and until the date on which
products are exported or repurposed”.
Pursuant to Clause 2 Article 55 of Circular No.
38/2015/TT-BTC and amendments thereto under Clause 33 Article 1 of Circular
No. 39/2018/TT-BTC: “data and documents about determination of consumption
rates must be retained. Consumption rates applied to the products exported in
the fiscal year must be notified to the customs when submitting the statement
mentioned in Clause 2 Article 60 of this Circular”.
According to which, in case a product is
manufactured using materials and supplies from all 3 sources (Importing from
foreign countries (E31 code), importing from other domestic enterprises
according to designation of foreign sellers (A12 code), and purchasing from
domestic sellers, producing VAT invoice without producing declarations), the
enterprise shall declare consumption rates of only materials and supplies
that have been granted tax exemption under E31 code to the customs authority.
The enterprise shall develop and govern
consumption rates of supplies purchased domestically and imported from other
domestic enterprises according to designation of foreign sellers (A12 code)
for manufacturing.
32
Points g and h Clause 2 Article 12
1. A domestic enterprise that exports products
domestically to a manufacturing for export enterprise must submit export
duties for the exported products. At the same time, the enterprise that
imports products within the country must also submit import duties for
domestically imported products. In this case, both enterprises must submit
taxes for the same commodity. While in reality, domestically imported goods
for domestic exports will eventually be exported to a foreign country and
thereby should be exempt from taxes in accordance with the Law on Import and
Export Duties.
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
(Taipei Economic and Cultural Office in
Vietnam under Official Dispatch No. VN 130 dated May 12, 2021; Vietnam
Textile and Apparel Association under Official Dispatch No.
75/2021/Vitas-CSTM dated May 13, 2021; Korean Chamber of Commerce and
Industry in Ho Chi Minh City under Official Dispatch No. 2110/HHTMHQ dated
June 1, 2021; Pouyuen Vietnam Company Limited under Official Dispatch No.
20210506/XNK-PYV dated May 6, 2021 and Official Dispatch No. 20210521/XNK-PYV;
Council of Taiwanese Chamber of Commerce under Official Dispatch No.
22021/HHDL dated May 10, 2021; Vietnam Leather, Footwear and Handbag
Association under Official Dispatch No. 79/CV-HHDG dated May 14, 2021; Lac Ty
Company Limited under Official Dispatch No. 59/XNK-LT dated April 26, 2021;
Pacific Crystal Textiles Company Limited under unnamed Official Dispatch
dated May 31, 2021; Quang Ngai Customs Department under Official Dispatch No.
614/HQQNg-NV dated May 31, 2021)
1. Regarding payment of import duties of goods
that are manufactured for domestic exports but are eventually exported to a
domestic enterprise:
Pursuant to Clause 3 Article 2 of Law on Import,
Export Duties No. 107/2016/QH13, “goods imported, exported within the
country” are subject to import, export duties.
Pursuant to Clause 7 Article 16 of the Law on
Import, Export Duties No. 107/2016/QH13, “Materials, supplies, and parts
imported to manufacture exports” are exempt from import duty (This means
that the Law on Import, Export Duties only regulates tax exemption for
materials, supplies, and parts imported in order to be manufactured and
exported but not exports. Thus, exports manufactured from imported materials,
supplies, and parts must be liable to import duties (if any). Goods
manufactured from imported materials, supplies, and parts and later exported
within the country must also be liable to import duties).
Clause 24 Article 16 of the Law on Import, Export
Duties No. 107/2016/QH13 dictates that “the Government shall elaborate on
this Article”.
Clause 6 Article 1 Decree No. 18/2021/ND-CP
prescribes: “Products exported within the country are not eligible for
export duty exemption”.
For all regulations mentioned above, the
applicable tax policies do not regulate tax exemption for products
manufactured and exported. Thus, products manufactured and exported (to a
foreign country, to a free trade zone, to a domestic party) must be liable to
export duty in accordance with the Law on Import, Export Duties No. 107/QH13
dated September 1, 2016, Decree No. 134/2016/ND-CP dated September 1, 2016,
Decree No. 18/2021/ND-CP dated March 11, 2021. These regulations have been
consistently implemented from September 1, 2016 which is the effective date
of the Law on Import, Export Duties No. 107/2016/QH13 and Decree No.
134/2016/ND-CP. Hereby request adequate compliance with the aforementioned
regulations.
2. Payment of tax of goods imported within the
country for manufacturing and export has been guided under No. 16
hereof. According to which, not all products imported within the country for
manufacturing and export must have their import duty incurred. For your
acknowledgement and application.
33
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TCE Corporation Limited (Party A-The Seller which
is a Korean enterprise) purchases denim from a supplier named TCE Vina Denim
Joint Stock Company (Party C-The Carrier which is an export-processing
enterprise), Party C produces a declaration for Party A under E62 code and
delivers goods to a bonded warehouse, after which point Party A sells this
denim to TCE Jean Single-member Company Limited (Party B-The Buyer which is a
domestic Vietnamese enterprise), Party B produces a declaration under E31
code to import from a bonded warehouse for manufacturing and domestic export
according to contract(s) signed between Party A and Party B. In this case, is
Party B eligible for import duty exemption according to E31 code in order to
manufacture exports?
(TCE Jean Single-member Company Limited under
Official Dispatch No. 10-XNKTCE/CV2021 dated May 12, 2021, Official Dispatch
No. 11-XNKTCE/CV202 dated May 19, 2021)
This question has been answered under No.
16 hereof. For your implementation.
Article 28. Tax exemption for goods exported,
imported to serve social security, remediate natural disasters, catastrophes,
epidemic, and other special cases
34
Point d Clause 1 Article 28
Point d Clause 1 Article 28 amended by Clause 9
Article 1 of Decree No. 18/2021/ND-CP regulates procedures for applying for
tax exemption for unprocessed agricultural products invested, planted by
Vietnamese enterprises, households, business households, and individuals in
Cambodian provinces adjoining the Cambodia-Vietnam border, imported to be
used as materials for manufacturing in Vietnam, and eligible for import duty
exemption.
According to which, documents notifying the
duty-free list consist of:
“In addition to the documents notifying the
duty-free list specified in Clause 3 Article 30 of this Decree, the taxpayer
shall also submit the following documents:
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The contract or agreement with the Cambodian
party on investment assistance, farming and receiving agricultural products
which specifies the amount of money and goods invested in each field,
corresponding quantities, categories and value of the agricultural products
to be harvested: 01 photocopy with the original copy presented for
comparison;
Documents relevant to the investment
assistance, farming in the Cambodia’s province that borders Vietnam (if any):
01 photocopy, which must be with the original copy presented for comparison
during the first import shipment.”
1. Thus, documents notifying the duty-free list
under Clause 9 Article 28 apply to enterprise taxpayer. Do the documents
notifying the duty-free list apply to “households, business households, and
individuals” in accordance with Clause 9 Article 28?
2. According to Clause 9 Article 28, enterprise
taxpayer shall also submit: A certification of investment permission
issued by a competent authority in Cambodia where the Vietnamese enterprise
makes investment.
In which, how is competent authority defined?
What are competent administrative divisions (commune, district-level town, or
province)?
3. Are cases of tax exemption mentioned under
Point d Clause 1 Article 28 required to submit reports on the use of imports
in accordance with Article 31a of the Decree? If yes, we hereby request
guidance on finalization of duty-free list for cases where the taxpayer runs
out of granted duty-free list or has not used up all slots on the duty-free
list before the crop year or contracts signed with the Cambodian party for
financing investment, plantation, and receipt of agricultural products end.
4. Point a Clause 9 Article 28 regulates Customs
Departments of provinces adjoining the Cambodian-Vietnam border as the recipients
of documents notifying duty-free list. While in reality, the import of
duty-free goods is still performed in Customs Sub-departments in different
checkpoints. Thus, can Customs Departments of provinces, after taking into
account practical situations and management requirements, authorize Customs
Sub-departments of border checkpoints to receive documents notifying
duty-free list?
5. Pursuant to Clause 3 Article 2 of Decree No.
18/2021/ND-CP regulating the transfer of preferential import duty treatment
to entities that are eligible for import duty exemption under Clause 9
Article 1 with respect to projects on investing, planting agricultural
products under the duty-free list under Appendix VIII attached hereto and
benefiting from preferential tax policies as per import, export duty laws
before the effective date hereof, entities that are eligible for import duty
exemption shall continue to benefit from the import duty exemption in
accordance with Clause 9 Article 1 of this Decree for the remaining duration
of the Certificate of Overseas Investment issued by competent regulatory
authority.
The majority of entities eligible for import duty
exemption in accordance with Circular No. 201/2012/TT-BTC dated November 16,
2012 amended by Circular No. 81/2013/TT-BTC dated June 19, 2013 at Tay Ninh
Customs Sub-department are organizations and individuals not issued with
the Certificate of Overseas Investment. Will the transfer of preferential
import duty treatment apply to the case mentioned above in accordance with
Clause 3 Article 2 of Decree No. 18/2021/ND-CP?
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1. Pursuant to Point a Clause 9 Article 28 of
Decree No. 134/2016/ND-CP amended by Clause 9 Article 1 of Decree No.
18/2021/ND-CP on notifying duty-free list for unprocessed agricultural
products financed for investment by the Vietnam party, planted in Cambodia,
and imported to Vietnam. In addition to documents under Clause 3 Article 30
of Decree No. 134/2016/ND-CP, enterprise taxpayers must submit additional
documents.
Pursuant to Clause 3 Article 30 of Decree No.
134/2016/ND-CP on documents notifying duty-free list applicable to cases
where notification of duty-free list is required.
Documents notifying duty-free list for taxpayers
who are households, business households, and Vietnamese individuals shall
comply with Clause 3 Article 30 of Decree No. 134/2016/ND-CP.
2. According to regulations on documents
notifying duty-free list applicable to enterprise taxpayers, enterprise
taxpayers must submit: “A certification of investment permission issued by
a competent authority in Cambodia where the Vietnamese enterprise makes
investment: 1 photocopy enclosed with 1 Vietnamese translation bearing the
enterprise’s sea”. This regulation inherits previous procedures for
applying for tax exemption under Circular No. 61/2006/TT-BTC dated June 29,
2006, Circular No. 201/2012/TT-BTC dated November 16, 2012 of Ministry of
Finance guiding tax policies for unprocessed agricultural products financed
for investment by the Vietnam party, planted in Cambodia, and imported to
Vietnam. Those procedures have been introduced prior to Decree No.
18/2021/ND-CP.
In addition, the identification of “A
certification of investment permission issued by a competent authority in
Cambodia where the Vietnamese enterprise makes investment” has been
prescribed under Official Dispatch No. 3229/BTC-CST dated March 13, 2013.
According to which, in case Vietnamese enterprises, business households, and
individuals rent land, finance investment, and plant in Cambodian provinces
adjoining the Cambodia-Vietnam border, the written permission of a competent
authority in Cambodia includes:
- With respect to enterprises: the competent
authority of Cambodia that grants Vietnamese enterprises permission to invest
in Cambodia shall be:
+ Permission of central authority:
Pursuant to the Law on Investment of Cambodia,
the Council for Development of Cambodia (CDC) shall grant permission for
investment projects whose investment exceeds USD 2 million/project. If a
Vietnamese enterprise invests, finances investment, or rents land in a
Cambodian province adjoining the Cambodia-Vietnam border with investment
exceeding USD 2 million/project, the CDC shall be the competent authority to
grant permission.
+ Permission of local authority:
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- With respect to business households and
individuals: the competent authority of Cambodia to grant permission for
business households and individuals to invest, finance investment, or rent
land in Cambodia shall be district-level authority or higher (pursuant to
Article 6 Clause a of Treaty on the Principle for Border Issues Resolution
signed by the Socialist Republic of Vietnam and the People Republic of
Kampuchea in 1983).
Customs Departments of provinces and cities
adjoining the Cambodian border are requested to cooperate and discuss with
the Cambodia party in order to stay updated and comply with regulations and
law.
3. Pursuant to Point d Clause 1 Article 28, Point
a Clause 9 Article 28 of Decree No. 134/2016/ND-CP (amended under Clause 9
Article 1 of Decree No. 18/2021/ND-CP), unprocessed agricultural products
financed for investment and planted in Cambodian provinces adjoining the
Cambodia-Vietnam border by Vietnamese enterprises, households, business
households, and individuals to be imported via border checkpoints customs
control and used as materials for goods manufacturing in Vietnam
shall be eligible for import duty exemption. On an annual basis,
the taxpayer shall inform Customs Departments of provinces adjoining the
Cambodian border.
Pursuant to Clause 1 Article 31 a of Decree No.
134/2016/ND-CP (amended under Clause 15 Article 1 of Decree No.
18/2021/ND-CP), project owners are responsible for informing customs
authority that receives the duty-free list on the use of duty-free goods for
taxpayers who are required to inform customs authority about the duty-free
list. On an annual basis, within 90 days from the date on which a
fiscal year ends, organizations and individuals shall inform the customs
authority that receives the duty-free list about the use of duty-free goods in
the previous fiscal year.
Pursuant to all regulations mentioned above,
duty-free goods under Point d Clause 1 Article 28 of Decree No.
134/2016/ND-CP (amended under Clause 9 Article 1 of Decree No. 18/2021/ND-CP)
are required to have their use notified.
On an annual basis, the taxpayer shall notify the
duty-free list for the agricultural products harvested via investment and
cultivation in Cambodian provinces adjoining the Cambodia-Vietnam border.
Estimated deadline for importing goods on the duty-free list shall rely on
crop year or the date on which contracts for financing investment,
cultivating, and receiving agricultural products signed with Cambodia party
expire. Duty-free list whose estimated import date has expired shall no
longer be used for customs procedures.
4. Pursuant to Point a Clause 9 Article 28 of
Decree No. 134/2016/ND-CP amended under Clause 9 Article 1 of Decree No.
18/2021/ND-CP, taxpayers shall submit documents notifying duty-free list via
the electronic system for processing data to Customs Departments of provinces
adjoining Cambodia border (with no regulations on authorizing Customs
Sub-departments).
5. Pursuant to Clause 3 Article 2 of Decree No.
18/2021/ND-CP, the case where projects on investing, cultivating agricultural
products specified in the duty-free list under Appendix VIII attached to
Decree No. 18/2021/ND-CP and receiving import duty exemption in accordance
with Circular No. 201/2012/TT-BTC dated November 16, 2012 amended by Circular
NO. 81/2013/TT-BTC dated June 19, 2013 but lacking certificates of overseas
investment issued by competent authority, the transfer of preferential import
duty treatment for the remainder of the project in accordance with Clause 3
Article 2 of Decree No. 18/2021/ND-CP shall not be applied.
Regarding this matter, Ministry of Finance
previously promulgated Official Dispatch No. 8035/BTC-CST dated July 21, 2021
that guides implementation as follows:
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With respect to the case of importing
“unprocessed tobacco and tobacco refuse” from Cambodia, according to the
Agreement promoting bilateral trade between Vietnam and Cambodia in the
period of 2019-2020 extended by governments of both nations and remaining in
effect from January 1, 2021 until December 31, 2022 inclusive, the
“unprocessed tobacco and tobacco refuse” originating from Cambodia, listed
under C/O form S issued by competent authority of Cambodia and granted
customs clearance at border checkpoints mentioned under the Appendix attached
to this Agreement shall receive 0% import duty for the import quota of 3,000
tonne/year. Thus, enterprises may exploit this Agreement during import of
“unprocessed tobacco and tobacco refuse” from Cambodia within the quota
regulated under the Agreement in order to benefit from preferential tax
treatment as per the law (attached to Official Dispatch No. 8035/BTC-CST
dated July 21, 2021).
On September 13, 2021, the Government promulgated
Decree No. 83/2021/ND-CP on Preferential Import Tariff Schedule to serve
implementation of the Agreement promoting bilateral trade between Vietnam and
Cambodia in the period of 2019-2020 (coming into force from the date of
signing until December 31, 2022 inclusive). Thus, Tay Ninh Customs Department
hereby is requested to rely on regulations above to guide enterprises.
In addition, the General Department of Customs
promulgated Official Dispatch No. 5313/TCHQ-TXNK dated November 9, 2021
guiding implementation.
Article 28b. Requirements for conducting
customs inspection, supervision and applying tax policies for
export-processing enterprises that are free trade zones
35
Clause 1 Article 28a
1. Pursuant to guidance under Official Dispatch
No. 2687/TCHQ-TXNK dated June 1, 2021, areas in an export-processing
enterprise used for storing goods such as storage, stockpile for duty-free
materials, supplies, semi-finished products, finished products, machinery,
equipment, and other goods must be equipped with surveillance camera; other
areas in an export-processing enterprise where goods are manufactured and
consumed such as workshops, offices, cafeterias, etc. are not required to be
equipped with surveillance camera in accordance with Point b Clause 1 Article
28a of Decree No. 134/2016/ND-CP amended under Clause 10 Article 1 of Decree
No. 18/2021/ND-CP. Pursuant to Clause 6 Article 4 of the Law on Customs No.
54/2014/QH13: “Goods include movable assets with headings and subheadings
according to the Vietnamese list of imports and exports which may be
imported, exported, transited or retained in customs operating locations”.
Are storage areas where goods that an
export-enterprise chooses not to adopt customs procedures for in accordance
with Clause 1 Article 74 of Circular No. 38/2015/TT-BTC amended by Circular
No. 39/2018/TT-BTC are kept required to be equipped with surveillance camera?
Request General Department of Customs to confirm
areas in an export-processing enterprise where goods are manufactured and
handled but not stored (such as areas for receiving materials and supplies
from trucks, areas for transferring finished products from manufacturing
section to finished product storage, areas for loading finished products onto
transport of exports) which are not required to be installed with
surveillance camera in accordance with Point b Clause 1 Article 28a of Decree
No. 134/2016/ND-CP amended by Clause 10 Article 1 of Decree No.
18/2021/ND-CP.
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3. Is the online connection between the
surveillance camera of the export-processing enterprise and the customs
authority real-time or recording?
How can customs authority ensure security for
video recording data of the export-processing enterprise when connecting with
the system of customs authority?
Prior to connecting to the system for exchanging
surveillance recording data, do customs authority agree to sign information
security agreement with the export-processing enterprise?
4. When conducting experimental production for
assessing and inspecting quality for new and undistributed product lines, we
store these products in the finished product storage of the factory. For the
purpose of protecting trade secret, can images on these products be withheld
from the customs authority?
5. When will the General Department of Customs
regulate the format of surveillance recording data exchanged between the
customs authority and the export-processing enterprise?
(Brother Industries Company Limited under
Official Dispatch No. 585/2021/SH-BIVN dated June 28, 2021)
6. For the majority of the export-processing
enterprises, the online connection of surveillance recording data with
enterprise presiding agencies will be complicated due to camera installation
at every storage location;
Currently, the General Department of Customs has
not promulgated format of surveillance recording data to be exchanged between
customs authority and enterprises for implementation of Point b Clause 1 Article
28a. Propositions made include:
a) Only require surveillance recording data to be
stored at an export-processing enterprise for at least 12 months and to be
sent to customs authority for inspection when necessary;
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c) Request General Department of Customs to
provide guidelines on format of surveillance recording data to be exchanged
between customs authority and enterprises
(Binh Duong Customs Department under Point 7
of Official Dispatch No. 821/HQBD-TXNK dated April 23, 2021, Point 3 of
Official Dispatch No. 921/HQBD-TXNK dated May 10, 2021; Bac Ninh Customs
Department under Official Dispatch No. 751/HQBN-NV dated June 2, 2021; Quang
Ngai Customs Department under Official Dispatch No. 614/HQQNg-NV dated May
31, 2021)
1. Pursuant to Clause 1 Article 4 of the Law on
Import, Export Duties No. 107/2016/QH13: “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 consider
export and import”.
Pursuant to Point c Clause 4 Article 2 of the Law
on Import, Export Duties No. 107/2016/QH13: “c) Goods exported from a free
trade zone to a foreign country; goods imported from a foreign country to a
free trade zone and used within such free trade zone; goods transported from
one free trade zone to another” are not subject to tax.
Pursuant to Clause 1 Article 59 of the Law on
Customs 2014: “Goods that are materials and supplies imported for
manufacturing exports must be subject to customs inspection and supervision
from the date of import, during product manufacturing process, and until the
date on which products are exported or repurposed”.
Pursuant to Clause 1 Article 28a of Decree No.
134/2016/ND-CP specified under Clause 10 Article 1 of Decree No.
18/2021/ND-CP: “conditions for customs supervision and inspection of an
export-processing enterprise that is a free trade zone include:
a) There are hard fences that separate the
export-processing enterprise from the outside; there are gates/doors that are
the only ways for goods to enter and leave the export-processing enterprise.
b) There are surveillance cameras at the
entrances and exits where goods are stored throughout the day (24/24 hours,
including days off and holidays); images recorded by these cameras shall be
transmitted to the supervisory customs authority of the export-processing
enterprise and retained at the export-processing enterprise for at least 12
months.
c) There software for management of duty-free
goods of the export-processing enterprise serving preparation of reports on
receipt, discharge, inventory and use of imports required by customs laws”.
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2. Pursuant to Clause 1 Article 28a of Decree No.
134/2016/ND-CP mentioned under Clause 10 Article 1 of Decree No.
18/2021/ND-CP the surveillance camera system must be able to monitor
entrances, exits, and storage areas without being able to observe pLU code of
each product and article.
3. Regarding security of surveillance recording
data of export-processing enterprise:
In order to secure information while sharing
surveillance recording, a multitude of techniques are employed. Currently,
Ministry of Finance and General Department of Customs have no regulations or specific
guidelines on methods and standards of connection, information security in
exchanging video recording. In this case, the enterprise should cooperate
with customs authority in agreeing on security measures. In the long run, the
General Department of Customs will develop and promulgate regulations,
guidelines on information security measures during exchange of surveillance
camera recording.
With respect to real-time connection or
recording:
The online connection of surveillance footage
must be able to record and allow customs authority to promptly acknowledge
movement of materials and finished products in and out of export-processing
enterprise in real time.
4. Regarding security for sample products that
are not released, request the Company to impose appropriate security
measures. Surveillance cameras at storage area are not required to monitor
pLU code as stated by the Company.
5+6. Since conditions of surveillance cameras
under Point b Clause 1 Article 28a mentioned under Clause 10 Article 1 of Decree
No. 18/2021/ND-CP and surveillance cameras installed at storage areas have
been guided under Point 2 Section V of Official Dispatch No. 2687/TCHQ-TXNK
dated June 1, 2021, entities shall rely on regulations and Official Dispatch
above to implement.
Regarding surveillance recording data of
export-processing enterprise, export-processing enterprises shall provide IP
address, account, and password to allow Customs Sub-departments to supervise
as per the law.
Regarding format of data exchanged customs authority
and enterprises regarding the surveillance camera system: The General
Department of Customs is finalizing procedures, technical and professional
requirements for surveillance camera system and will issue documents guiding
implementation.
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36
Point a Clause 1 Article 28a
With respect to industrial parks in Bac Ninh
province, Bac Giang province, and Thai Nguyen province, investors have already
built workshops for hire on a plot. Each workshop consists of a front, 2
sides which are separated from the outside by fences, one side which is built
with bricks and shared with another company, and separate entrances, exits.
Do these workshops conform to Point a Clause 1 Article 28?
Propositions: Based on physical inspection
result, if a workshop shares a wall with another company and has separate
entrances/exits that provide entrance, exit for goods, Customs authority
shall verify fulfillment of customs supervision in accordance with Point b
Clause 4 Article 28a.
(Bac Ninh Customs Department under Official
Dispatch No. 751/HQBN-NV dated June 2, 2021)
Pursuant to Clause 1 Article 28a mentioned under
Clause 10 Article 1 of Decree No. 18/2021/ND-CP dated March 11, 2021, Customs
Departments of provinces and cities shall conduct physical inspection for
customs inspection and supervision requirements in accordance with Clause 4
Article 28a mentioned under Clause 10 Article 1 of Decree No. 18/2021/ND-CP.
On the basis of physical inspection, customs authority shall rely on
regulations above to reach a conclusion.
37
Point d Clause 5 Article 28a
If an export-processing enterprise fails to
satisfy regulations above within 1 year, are the customs authority required
to request competent authority capable of issuing Certificates of investment
registration to change regulated entities from export-processing enterprises
to non-export-processing enterprises? Is compliance with Article 78 of
Circular No. 38/2015/TT-BTC amended by Circular No. 39/2018/TT-BTC required?
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Pursuant to Point d Clause Article 28a mentioned
under Clause 10 Article 10 of Decree No. 18/2021/ND-CP: “If the
export-processing enterprise fails to submit the notification Form No. 25 in
Appendix VII hereof within 01 year from the effective date of this Decree or
fails to fulfill the conditions for customs supervision and inspection
specified in Clause 1 of this Article, it will not be eligible for free trade
zone tax policies from the expiration date of this 1-year time limit.
In case the export-processing enterprise
fulfills the conditions for customs supervision and inspection specified
in Clause 1 of this Article after 01 year and submits the notification to its
supervisory Sub-department of Customs in accordance with Point c of this
Clause, free trade zone tax policies shall be applied from the day on which
the Sub-department of Customs issues the confirmation of fulfillment of the
conditions for customs supervision and inspection specified in Clause 1 of
this Article
If the export-processing enterprise fails to
satisfy the regulations above within 1 year, Customs Departments of provinces
and cities shall list all enterprises that fail to satisfy the conditions for
customs supervision and inspection and report to General Department of
Customs for submission to Ministry of Finance and communication with relevant
ministries and central governments. After receiving remarks of ministries and
central governments, the General Department of Customs shall inform Customs
Departments of provinces and cities. On the basis of notice of the General
Department of Customs, Customs Departments of provinces and cities shall
request competent authority capable of issuing Certificates of investment
registration to revoke certificates of investment registration of
export-processing enterprises that fail to satisfy the conditions of customs
inspection and supervision.
Once competent authority capable of issuing
Certificates of investment registration confirm the exclusion of
export-processing enterprises from tax policies, customs authority shall
guide enterprises to adopt customs procedures to convert export-processing
enterprises to domestic enterprises in accordance with Article 78 of Circular
No. 38/2015/TT-BTC amended by Clause 54 of Article 1 of Circular No.
39/2018/TT-BTC.
38
Clause 7 Article 28a
The enterprise shall declare and submit tax
according to the declaration at the time of adopting customs procedures.
Thus, when settling overpaid tax based on the new declaration, the paid tax
will exceed the payable tax and therefore there is no overpaid tax by nature.
Refunding overpaid tax will leave tax notice on the accounting system. The
Dong Nai Customs Department proposes: Export processing enterprise shall
declare code of eligibility for not being subject to tax on the additional
declaration in order to reduce the payable tax and then adopt procedures for
refunding overpaid amount as per the law.
(Dong Nai Customs Department under Point 5 of
Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021, Point c Official
Dispatch No. 712/HQDNa-TXNK dated April 19, 2021)
Pursuant to Clause 7 Article 28a mentioned under
Clause 10 Article 1 of Decree No. 18/2021/ND-CP: With respect to the cases
specified in Clause 5 and Clause 6 of this Article where free trade zone tax
policies are not applied for the period from the effective date of the
Certificate of Investment Registration, the revised Certificate of Investment
Registration (if any), or the investment registration authority’s written
confirmation if the Certificate of Investment Registration is not required,
to the date before the issuance date of the customs authority’s confirmation
of fulfillment of conditions for customs supervision and inspection as
prescribed in Clause 1 Article 30 of Decree No. 82/2018/ND-CP and regulations
of this Decree, the paid duties shall be settled in accordance with
regulations of tax laws on settlement of overpaid tax after the enterprise
has fulfilled the conditions for customs supervision and inspection specified
in Clause 1 Article 28a mentioned under Clause 10 Article 1 of Decree No.
18/2021/ND-CP. Procedures for settling overpaid tax:
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b) If customs authority imposes tax after the
enterprise satisfies conditions for customs supervision, customs officials
shall process tax imposition documents based on the A42 declaration whose tax
has been paid, send written request to Customs Sub-department to approve
revision of decision on tax imposition, revise import duty and VAT on the
decision on tax imposition, and update on the Concentrated Accounting System.
Procedures for settling tax and late payment for
overpaid tax mentioned under Point a and Point b of this Section conform to
Article 10 of Circular No. 06/2021/TT-BTC dated January 22, 2021 of Ministry
of Finance (Similar to settling tax of goods exported within the country,
processed goods, goods manufactured for export under A42 code which are
prescribed under Point b Clause 3 Section I, Point b Clause 3 Section II of
Official Dispatch NO. 2687/TCHQ-TXNK dated June 1, 2021).
39
Clause 4 Article 28a
Clause 7 Article 28a only guides refund of
overpaid tax for export-processing enterprises under Clause 5 and Clause 6
Article 28a of the Decree but not processing of tax refund for export-processing
enterprises under Point d Clause 4 Article 28a (Tay Ninh Customs
Department under Official Dispatch No. 620/HQTN-NV dated April 15, 2021).
Pursuant to Clause 4 Article 28a mentioned under
Clause 10 Article 1 of Decree No. 18/2021/ND-CP, if an export-processing
enterprise fails to notify the supervisory Customs Sub-department or fails to
satisfy conditions for customs supervision and inspection under Clause 1
Article 28a which is mentioned under Clause 10 Article 1 of Decree No.
18/2021/ND-CP within 1 year from the date on which the first written
confirmation is issued by the Customs Sub-department, the enterprise must
declare and submit tax, late payment fine, and fine for administrative
violations for imports on which tax policies have been imposed from the date
on which certificate of investment registration or document of competent
investment registration authority has been issued. In case the enterprise
then fulfills conditions of customs supervision and inspection and informs
the customs authority under Clause 1 Article 28a, the enterprise shall
benefit from tax policies applicable to free trade zones from the date on
which the supervisory Customs Sub-department confirms fulfillment of
conditions of customs supervision and inspection in writing (without
refunding the tax previously paid by the enterprise).
Request entities to rely on Clause 4 Article 28a
mentioned under Clause 10 Article 1 of Decree No. 18/2021/ND-CP in order to
comply with regulations and law.
Article 30. Notification of duty-free list of
goods to be imported and cases where notification of the duty-free list is
required
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In reality, there are duty-free lists consisting
of both machinery, equipment which must be exported, imported over multiple
shipments where quantity deduction is not feasible at the time of import and
export and machinery, equipment which must be exported, imported in a single
shipment or over multiple shipments where quantity deduction is feasible at
the time of import, export. Propositions:
In this case, allow the project owners to submit
2 master registers of the physical copy of duty-free list using Form No. 6
and 1 master register of monitoring sheet prepared using Form No. 7 of Appendix
VII attached hereto (Ho Chi Minh City Customs Department under Official
Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
Pursuant to Clause 4 Article 29a of Decree No.
134/2016/ND-CP mentioned under Clause 12 Article 1 of Decree No. 18/2021/ND-CP
on notifying duty-free list of goods imported under international agreement;
Pursuant to Point c Clause 2 Article 30 of Decree
No. 134/2016/ND-CP;
Pursuant to Point b Clause 3 Article 30 of Decree
No. 134/2016/ND-CP mentioned under Clause 13 of Article 1 of Decree No.
18/2021/ND-CP on documents notifying duty-free list.
Duty-free lists shall be notified via the VNACCS.
In case the system experiences errors and in case machinery and equipment are
to be imported over multiple shipments where quantity deduction is not
feasible at the time of import (hereinafter referred to as “combination or
assembly line"”), issue physical copy of the duty-free list. Regarding
this matter, the General Department of Customs promulgated Official Dispatch
No. 3245/TCHQ-TXNK dated June 28, 2021 guiding implementation of Customs
Departments of provinces and cities.
Article 31. Application and procedures for tax
exemption when adopting customs procedures
41
Point c Clause 3 Article 31
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(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
Pursuant to Point c Clause 3 Article 31 of Decree
No. 134/2016/ND-CP amended under Clause 14 Article 1 of Decree No.
18/2021/ND-CP on procedures for applying for tax exemption when adopting
customs procedures: “In case of import of a duty-free combination or
assembly line, the taxpayer shall follow customs procedures at the customs
authority responsible for the area where the equipment is installed”.
This regulation applies to goods that are machinery and equipment of projects
benefitting from investment incentives which must be imported over multiple
shipments where quantity deduction is not feasible at the time of import.
In case the area where machinery and equipment
are installed is under management of a checkpoint Customs Sub-department, the
physical inspection shall conform to Clause 2 Article 29 of Circular No.
38/2015/TT-BTC amended under Clause 18 Article 1 of Circular No.
39/2018/TT-BTC; in case the area where machinery and equipment are installed
is under management of a non-checkpoint Customs Sub-department, the physical
inspection shall conform to Clause 3 Article 29 of Circular No.
38/2015/TT-BTC amended under Clause 18 Article 1 of Circular No. 39/2018/TT-BTC.
If imported combination and assembly line are in form of bulk cargo, based on
propositions of the Customs Sub-department where the customs declaration is
produced, the Customs Sub-department where goods are retained shall conduct
physical inspection in accordance with Clause 9 Article 29 of Circular No.
38/2015/TT-BTC amended by Clause 18 Article 1 of Circular No. 39/2018/TT-BTC.
42
Point c Clause 3 Article 31
Decree No. 18/2021/ND-CP does not regulate the
case where the taxpayer revises manifest of imports using Form No. 4 of
Appendix VIIa or Form 15 of the Appendix. In this case, how should
declaration be performed?
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
Point c Clause 3 Article 31 of Decree No.
134/2016/ND-CP amended under Clause 14 of Article 1 of Decree No.
18/2021/ND-CP regulating the case where the taxpayer imports duty-free goods
in combination or assembly line without being able to declare in detail, the
taxpayer shall produce manifest of imports containing information under Form
No. 4 of the Appendix VIIa or using Form No. 15 of Appendix VII attached to
Decree No. 18/2021/ND-CP and include customs declarations.
Thus, the case where revision to manifest of
imports is made using Form No. 4 of Appendix VIIa or Form No. 15 of the
Appendix VII, the taxpayer and customs authority shall adopt procedures for
making additional declaration for imports and exports mentioned under Article
20 of Circular No. 38/2015/TT-BTC amended under Clause 9 Article 1 of
Circular No. 39/2018/TT-BTC.
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With respect to goods that are combined machines
and combination of machines under Chapter 84, Chapter 85, and Chapter 90 of
the List of Vietnam imports and exports, the classification and procedures
thereof shall conform to Article 78 of Circular No. 14/2015/TT-BTC dated
January 30, 2015. Will the regulations under Clause 14 Article 1 of Decree
No. 18/2021/ND-CP replace or take place simultaneously with the procedures
under Article 7 of Circular No. 14/2015/TT-BTC on amendments to Circular No.
17/2021/TT-BTC dated February 26, 2021 of Ministry of Finance?
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
Pursuant to Point c Clause 3 Article 31 of Decree
No. 134/2016/ND-CP mentioned under Clause 14 of Article 1 of Decree No.
18/2021/ND-CP on procedures for tax exemption;
Article 7 of Circular No. 14/2015/TT-BTC dated
January 30, 2015 of Ministry of Finance mentioned under Circular No.
17/2021/TT-BTC dated February 26, 2021 regulates classification of combined
machines or combination of machines under Chapter 84, Chapter 85, or Chapter
90 of the List of Vietnam imports and exports.
Thus, the enterprise must adopt 2 procedures
simultaneously as per the law.
Article 31b. Notification and inspection of
the use of duty-free imports
44
Clause 3 Article 31a
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If not, we hereby request the General Department
of Customs to guide the procedures, sequences, and schedules applied to
inspection under Point b Clause 3 Article 31a; or request the General
Department of Customs to guide customs declarants to submit certificate of
synchronization for imported machinery and equipment issued by an
organization designated by competent authority.
(Tay Ninh Customs Department under Official
Dispatch No.620/HQTN-NV dated April 15, 2021)
Pursuant to Point b Clause 2, Point b Clause 3
Article 31a of Decree No. 134/2016/ND-CP amended under Clause 15 Article 1 of
Decree No. 18/2021/ND-CP.
Pursuant to Point b Clause 4 Article 31a of
Decree No. 134/2016/ND-CP amended under Clause 15 of Article 1 of Decree No.
18/2021/ND-CP.
According to the regulations mentioned above, the
inspection of the use of duty-free goods mentioned under Clause 2 and Clause
3 Article 31a of Decree No. 134/2016/ND-CP amended under Clause 15 of Article
1 of Decree No. 18/2021/ND-CP shall conform to procedures on post-customs
clearance inspection.
45
Point b Clause 1 Article 31a
Pursuant to Clause 15 Article 1 of Decree No.
18/2021/ND-CP adding Article 31a:
“1. Notification of use of duty-free imports
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Every year within 90 days from the end of the
fiscal year, the project owner shall submit the notification of use of
duty-free goods in the fiscal year to the customs authority that receives the
duty-free list until the entire project is shut down or all goods have
been exported from Vietnam or when the duty-free imports are repurposed and
sold domestically, or disposed.
3. In case of duty-free import of a
combination or assembly line over multiple shipments and quota deduction is
not possible as prescribed in Clause 1 of this Article:
c) The project owner shall submit the
notification of use of imports for installation of the combination or
assembly line prescribed in Clause 1 of this Article. From the year in
which the installation is completed, the project owner shall submit
notifications of use of the installed products.”
Are duty-free lists which are issued before April
25, 2021 (the effective date of Decree No. 18/2021/ND-CP) required to be
notified in accordance with Point b Clause 1 and Point c Clause 3 of this
Article?
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
Reporting and inspection of the use of duty-free
imports conducted before April 25, 2021 shall conform to Article 106 of
Circular No. 38/2015/TT-BTC and Point dd Clause 7 Article 30 of Decree No.
134/2016/ND-CP which is now Article 31a of Decree No. 134/2016/ND-CP amended
by Clause 15 Article 1 of Decree No. 18/2021/ND-CP. Therefore, the
regulations under Article 31a mentioned above apply to cases where it is
required to notify customs authority of the duty-free lists before April 25,
2021 and submit report reports, conduct inspection of the use of duty-free
imports to customs authority.
Request entities to rely on regulations for cases
where notification of duty-free list is required under documents mentioned
above in for implementation.
Article 37a. Cancellation of import, export
duties
46
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Pursuant to Clause 2 Article 37a, the enterprise
is only required to issue an Official Dispatch requesting tax cancellation
using premade form.
Pursuant to Clause 1 Article 13 of Circular No.
06/2021/TT-BTC, the Official Dispatch requesting tax cancellation is
accompanied by other documents.
Therefore, discrepancies among the documents
above are present. Propositions:
Comply with Circular No. 06/2021/TT-BTC
elaborating Article 78 of the Law on Tax Administration No. 38/2019/QH14 of
the Minister of Finance regulating procedures for tax cancellation.
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
Pursuant to Clause 19 Article 1 of Decree No.
18/2021/ND-CP on cases where import, export duties are cancelled:
“1. Cases of duty cancellation:
a) Unpaid duties on goods that are eligible
for duty refund prescribed under Article 33, Article 34, Article 35, Article
36, and Article 37 of this Decree shall be cancelled.
b) Duties on goods that are exempt from export
and import duties prescribed in Article 33 and Article 34 of this Decree
shall be cancelled”.
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Pursuant to Article 13 of Circular No.
06/2021/TT-BTC dated January 22, 2021 on procedures for tax cancellation for
cases where submission of import, export duties is not required.
According to all regulations above, cases of tax
cancellation for goods that are not required to have import, export duties
paid mentioned under Point b Clause 1 Article 37a mentioned under Clause 19
Article 1o f Decree No. 18/2021/ND-CP shall conform to Article 13 of
Decree No. 06/2021/TT-BTC dated January 22, 2021.
Organization for implementation
47
Pursuant to Point d Clause 20 Article 1 of Decree
No. 18/2021/ND-CP, the phrase “01 bản chụp có đóng dấu sao y bản chính của cơ
quan” (1 certified true copy) is replaced with “01 bản chụp” (1 photocopy).
Pursuant to Clause 2 Article 1 of Circular No.
39/2018/TT-BTC on requirements for photocopies in customs and tax documents: “Regarding
photocopies or…, taxpayer shall make certification, append the signature,
seal, and take responsibility…”
Request guidance on requirements for
“photocopies” in tax refund documents/tax cancellation documents.
(Ho Chi Minh City Customs Department
under Official Dispatch No. 1172/HQTPHCM-TXNK dated May 12, 2021)
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“In case of submission of a physical
customs declaration or a photocopy of a document in the customs dossier, the
declarant or taxpayer may submit the original copy or photocopy. Regarding
documents issued by foreign entities in the form of electronic documents,
emails, fax, telex, or documents issued by the declarant or taxpayer, the
declarant or taxpayer shall make certification, append the signature, seal,
and take responsibility for the accuracy, truthfulness, and legitimacy of
such documents. If the photocopy consists of multiple pages, the declarant or
taxpayer shall make certification, append the signature and seal on the first
page as well as other sheets”.
According to the regulations above, in case
documents in tax documents are photocopies issued by the taxpayer or customs
declarant, the taxpayer shall submit the “photocopies bearing seal of agency
receiving application for tax exemption/tax reduction/tax refund/tax
cancellation” and not the “1 certified true copy” since the taxpayer are not
entitled to issue the seal of “certified true copy” (Regulations on “photocopy”
have been mentioned under Article 13, Article 14, and Article 15 of Circular
No. 06/2021/TT-BTC dated January 22, 2021 of Ministry of Finance).
48
Code of declaration
- Pursuant to Decision No. 1357/QD-TCHQ: A11
Code: …c) In-country import. Note: With respect to foreign-invested
enterprises, the enterprises shall import according to certificates for
import right registration using A41 code to adopt import procedures. A12
Code: …c) In-country import (except for processing, domestic export, export-processing
enterprises, and enterprises in free trade zones). - E31 Code: …c) In-country
import under designation of foreign traders.
- Pursuant to Official Dispatch No.
2687/TCHQ-TXNK: With respect to products imported within the country
registered under other form (other than processing), the taxpayer shall use
A11 code (import for sale), A12 (import for manufacturing and sale) code,
declare, and submit import duties.
Difficulty: Guidance on code under Decision No.
1357/QD-TCHQ differs from guidance under Official Dispatch No.
2687/TCHQ-TXNK.
Request the General Department of Customs to
provide guidelines on consistent form of in-country import.
(Dong Nai Customs Department under Point
10 of Official Dispatch No. 1071/HQDNa-TXNK dated June 9, 2021; Ba Ria - Vung
Tau Customs Department under Official Dispatch No. 1671/HQBRVT-TXNK dated
June 25, 2021)
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
49
Pursuant to Clause 3 Part I and Clause 3 Part II of
Official Dispatch No. 2687/TCHQ-TXNK dated June 1, 2021 guiding declaration
using A42 code for goods that are materials, supplies, and parts imported for
processing and manufacturing goods for in-country export, there are
situations where the individual who performs in-country import fails to
inform customs authority about customs declaration of the imported products
within 15 days from the date on which customs clearance is granted. If the
taxpayer does not declare tax, the customs authority shall impose tax.
According to the Ho Chi Minh City Customs
Department, Decision No. 1357/QD-TCHQ dated May 18, 2021 did not regulate the
use of A42 code for this case.
Propositions: Amend Decision No. 1357/QD-TCHQ to
apply consistently in all cases above.
(Ho Chi Minh City Customs Department
under Point 2 of Official Dispatch No. 1605/HQHCM-TXNK dated June 22, 2021)
Under Point 6 Section II of the Schedule on
customs procedures code and use instruction attached to Decision No.
1357/QD-TCHQ dated May 18, 2021 of the General Department of Customs on the
use of A42 code in the case “enterprises export commodities to domestic
enterprise for more than 15 days from the date on which customs clearance is
granted to in-country export declarations but fail to inform customs
authorities about completion of customs procedures of customs declarations
for respective in-country import”. Request Ho Chi Minh City Customs
Department to consider and implement.
50
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After manufacturing, Vina Sanematsu Company
Limited exports the finished products (E42 Code - Exporting products of an
export-processing enterprise) to a domestic client which is AM Industries
Vietnam Company Limited. AM Industries Vietnam Company Limited produces a
declaration under A12 Code (Importing for sale) and incurs import duties.
Pursuant to Decree No. 18/2021/ND-CP and Official
Dispatch No. 2687/TCHQ-TXNK dated June 1, 2021, if products are imported within
the country in other form (other than processing), the taxpayer shall use A11
Code (Importing for sale), A12 Code (Importing for manufacturing and sale)
and declare, submit import duty.
Pursuant to Clause 8 Article 16 of the Law on
Import, Export Duties No. 107/2016/QH13, Clause 1 Article 22 of Decree No.
134/2016/ND-CP: “Goods manufactured, processed, recycled or assembled in a
free trade zone without using imported raw materials or components are exempt
from import duties when they are imported into the domestic market as
prescribed in Clause 8 Article 16 of the Law on Export and import duties.”
Request the General Department of Customs to
provide guidelines on:
1. In case will AM Industries Vietnam Company
Limited and other domestic companies benefit from import duty exemption when
purchasing products produced from domestically purchased materials of Vina
Sanematsu Company Limited?
2. Will tax refund be granted to enterprises
importing for manufacturing and sale (A12) and exporting under B11 and B13?
(Vina Sanematsu Company Limited under Official
Dispatch No. 001Sane/CV-2021 dated May 4, 2021)
1. Pursuant to Clause 2 Article 1 of the Law on
Import, Export Duties No. 107/2016/QH13: “goods exported from the domestic
market into free trade zones; goods imported from free trade zones into the
domestic market” are subject to tax.
Pursuant to Clause 1 Article 4 of the Law on
Import, Export Duties No. 107/2016/QH13: “the trading relationship between
the free trade zone and the outside area is considered export and import”.
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. Regarding tax processing for cases where a
domestic enterprise imports goods from an export-processing enterprise for
manufacturing (A12 Code) and later exports under B11, B13 Codes:
Pursuant to Point c Clause 1, Clause 2 Article 19
of the Law on Import, Export Duties No. 107/2016/QH13; Article 34 of Decree
No. 134/2016/ND-CP amended under Clause 17 Article 1 of Decree No.
18/2021/ND-CP, in case a domestic enterprise imports goods from an
export-processing enterprise for manufacturing (A12 Code) and has paid import
duties, if the domestic enterprise exports the goods, they shall benefit from
refund of paid import duty and are not required to submit import duty if the
imports have not been used or processed. The re-export of goods must be
implemented by the original importer or an individual authorized by the
original importer.
Application and procedures for applying for tax
refund shall conform to Article 34 of Decree No. 134/2016/ND-CP amended under
Clause 17 Article 1 of Decree No. 18/2021/ND-CP.
In case of goods imported for sale (A12 Code) and
later exported for sale (B11 Code) and export of unprocessed imports (B13
Code), the General Department of Customs already provided guidelines on this
matter under Official Dispatch No. 4032/TCHQ-GSQL dated August 16, 2021.
According to which, when exporting goods made from unprocessed imports back
to goods owners, overseas, or into free trade zones, export-processing
enterprise and customs declarants shall:
a) In case the exporter is the original importer
or authorized by the original importer and satisfies eligibility for not
being subject to import duty or benefitting from import duty refund, use B13
Code - exporting imports.
When filling in the “Note” section of the electronic
export declaration or the “Other remarks” of the physical export declaration,
write the accurate number of import declaration of the imports and specify
the phrase “Hàng hóa thuộc đối tượng không thu thuế xuất khẩu, hoàn thuế nhập
khẩu theo quy định” (Goods eligible for not being subject to import duties,
benefitting from import duty refund as per the law).
b) In case the exporter does not wish to adopt
procedures for not being subject to export duty or benefiting from import
duty refund or the exporter is not the original importer or not authorized by
the original importer as per the law, use B11 Code - exporting for sale.
In case the exporter does not wish to adopt
procedures for not being subject to import duty or benefitting from import
duty refund, write “Tờ khai này không sử dụng để thực hiện các thủ tục không
thu thuế xuất khẩu, hoàn thuế nhập khẩu” (This declaration does not serve
procedures for not being subject to import duty or benefiting from import
duty refund) under the “Note” section of the electronic export declaration or
the “Other remarks” of the physical export declaration.
51
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Re-import goods exported under the model for
exporting processed product exporting, exporting manufactured goods which are
returned for domestic consumption or disposal
Pursuant to Decision No. 1357/QD-TCHQ,
re-imported products shall utilize A31 Code (previously)
- In case of domestic consumption: When
transferring for domestic consumption, is the enterprise required to produce
A42 declaration? During tax calculation, will tax value and tax rate be
calculated based on re-imported product or exported product?
- In case of disposal: Will the Customs
Sub-department issue Decision on not collecting tax in case of tax exemption
or tax calculation?
Propositions:
- In case of domestic consumption: When
transferring towards domestic consumption, the enterprise shall produce A42
declaration. When calculating tax, calculate tax and tax rate of materials of
exported goods. On the basis of domestic sale price, the enterprise is
responsible for allocating trade price of corresponding materials in order to
declare taxable value.
- In case of disposal: The enterprise must
request the Customs Sub-department to supervise the disposal; goods eligible
for tax exemption.
(Ha Nam Customs Department under Point 2
Official Dispatch No. 1703/HQHNN-NV dated June 18, 2021)
Pursuant to Point b Clause 1, Clause 2 Article 19
of the Law on Import, Export Duties No. 107/2016/QH13; Article 33 of Decree
No. 134/2016/ND-CP amended under Clause 18 Article 1 of Decree No.
18/2021/ND-CP, exports which must be re-imported shall have the paid export
duty refunded and not be required to have import duty paid if the exports
have not been used or processed and satisfy requirements for documents and
applications under Article 33 of Decree No. 134/2016/ND-CP amended under
Clause 18 Article 1 of Decree No. 18/2021/ND-CP.
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Pursuant to Clause 1 Article 3 of Circular No.
119/2014/TT-BTC dated August 25, 2014 amending to Point g Clause 7 Article 5
of Circular No. 219/2013/TT-BTC dated December 31, 2013: “g) The business
establishment is not required to pay VAT on re-import of exported goods
returned by the foreign buyer. VAT on returned domestic goods shall
still be declared and paid as prescribed”.
Pursuant to Point e Clause 2 Article 10, Point dd
Clause 2 Article 12 mentioned under Clause 4, Clause 6 Article 1 of Decree
No. 18/2021/ND-CP, goods that are imported for processing, processed goods
and goods imported for manufacturing and export, products manufactured for
export allowed to be disposed and have been disposed as per customs laws shall
benefit from import duty exemption.
Pursuant to Clause 5 Article 25 of Decree No.
08/2015/ND-CP dated January 1, 2015 amended under Clause 12 Article 1 of
Decree No. 59/2018/ND-CP dated April 20, 20189, Article 21 of Circular No.
38/2015/TT-BTC dated March 25, 2015 amended by Clause 10 Article 1 of
Circular No. 39/2018/TT-BTC dated April 20, 2018 imports and exports that are
eligible for not being subject to import, export duties, excise tax, VAT,
environmental protection tax or being exempt from import, export duties and
have been granted release or clearance and followed by changes to eligibility
for not being subject to tax or tax exemption purposes; goods that are
materials, supplies, and parts imported for processing and manufacturing
exports which have been granted clearance or customs clearance and followed
by changes to use purposes, or transfer for domestic consumption, a new
declaration is required.
According to the regulations above, the case
where goods imported for processing and goods imported for manufacturing and
export are exported to free trade zones after which point they are
re-imported shall not be subject to import duty in accordance with Point b
Clause 1, Clause 2 Article 19 of the Law on Import, Export Duties No.
107/2016/QH13, Article 33 of Decree No. 134/2016/ND-CP amended by Clause 18
Article 1 of Decree No. 18/2021/ND-CP, Clause 4 Article 47 of Decree No.
08/2015/ND-CP and exempt from VAT during import in accordance with Clause 1
Article 3 of Circular No. 119/2014/TT-BTC.
In case goods are re-imported for domestic
consumption, declare tax on a separate declaration for the original imported
materials and supplies.
In case goods are re-imported for disposal:
- From April 25, 2021 (the effective date of
Decree No. 18/2021/ND-CP), goods that are exported under the model of
exporting for processing, exporting manufactured goods and must re-imported
for disposal shall benefit from import duty exemption in accordance with
Point e Clause 1, Point e Clause 2 Article 10, Point dd Clause 1, Point dd
Clause 2 Article 12 mentioned under Clause 4 and Clause 6 Article 1 of Decree
No. 18/2021/ND-CP;
- Before April 25, 2021:
+ Goods that are imported under the model of
processing and re-importing for disposal and have been disposed shall benefit
from import duty exemption in accordance with Point e Clause 1 Article 10 of
Decree No. 134/2016/ND-CP.
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
52
We are an export-processing enterprise
specializing in producing sample skincare products, hair products, and
cosmetics for import (sample chemical components, sample packaging) via
express delivery, without payment, for experimental purposes and testing of
physical, chemical properties for laboratories and not for manufacturing.
Pursuant to Decision No. 1357/QD-TCHQ dated May
18, 2021, when importing the sample products mentioned above, will the
enterprise declare under E13 or H11 declaration? And in case the enterprise
declares under H11 declaration mentioned above, is the enterprise required to
submit import duty and VAT in accordance with Article 2 of Decree No.
134/2016/ND-CP and Article 29 of Decree No. 18/2021/ND-CP.
(Shisedo Vietnam Company Limited under
Official Dispatch No. 43/2021/ADM-OUT dated June 22, 2021)
Pursuant to Point c Clause 2 Article 2 of the Law
on Import, Export Duties No. 107/2016/QH13, goods imported into a free trade
zone and used only in said free trade zone shall not be subject to import
duty.
Pursuant to Clause 1 Article 4 of the Law on
Import, Export Duties No. 107/2016/QH13: “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 consider
export and import”
According to the regulations above, if the
enterprise satisfying the eligibility of an export-processing enterprise
mentioned under Clause 1 Article 4 of the Law on Import, Export Duties No.
107/2016/QH13 imports goods for experimental and testing purposes and use in
a free trade zone, the goods shall not be subject to import duty. Code of
import declaration must match the corresponding code applicable to an
export-processing enterprise.
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Regarding regulations on notifying processing,
reprocessing facilities:
Since the customs system has not support
automatic declaration using Form No. 23 and Form No. 24 so far, the fact that
the enterprise must declare using Form No. 18a/TB-HDGCL-GSQL manually and
wait for receipt number based on the arrival date of the Official Dispatch
lead to dramatic impact on processing and manufacturing operation of the
enterprise.
Propositions:
The enterprise is required to announce
information on reprocessing entity only once, including: TIN of the entity,
name of manufacturing facility of the processing entity, initial date of
processing, date of delivering materials and ingredients for processing,
processing stages, estimated number of finished products transferred to
processing.
The customs authority should develop the system
satisfactory to the requirements under the Circular in order to allow
notification via automatic receipt system (Vietnam Textile and Apparel Association
No. 75/2021/VITAS-CSTM dated May 13, 2021)
Regarding the notification of
processing/reprocessing contracts and appendices thereof using Form No. 23
and Form No. 24 of Appendix I attached to Circular No. 39/2018/TT-BTC, the
General Department of Customs promulgated Official Dispatch No.
1891/TCHQ-GSQL dated April 22, 2021 (attachment) guiding Customs Departments
of provinces and cities to implement. According to which, the enterprise
shall notify the supervisory Customs Sub-department of processing/reprocessing
contracts and appendices thereof via email address publicized by the Customs
Sub-department at their head office or on websites of Customs Departments of
provinces and cities or on websites of the General Department of Customs.
Thus, the enterprise is not required to submit written notification of
processing/reprocessing contracts and appendices thereof at the Customs
Sub-department. For your implementation and compliance.