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THE MINISTRY
OF FINANCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
86/2013/TT-BTC
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Hanoi, June
27, 2013
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CIRCULAR
PROVIDING THE APPLICATION OF THE PRIORITY REGIME IN THE
STATE MANAGEMENT OF CUSTOMS TO ELIGIBLE BUSINESSES
Pursuant to the Customs Law
No. 29/2001/QH10 dated June 29, 2001 and Law No. 42/2005/QH11 dated June 14,
2005, amending and supplementing a number of Articles of the Customs Law;
Pursuant to the Law on tax
administration No. 78/2006/QH10 dated November 29, 2006, Law amending and
supplementing a number of Articles of the Law on tax administration, No.
21/2012/QH13, dated November 20, 2012 and documents detailing the Law on tax
administration;
Pursuant to the Decree No.
154/2005/ND-CP dated December 15, 2005 of Government detailing a number of
Articles of the Customs Law on customs procedures, inspection and supervision;
Pursuant to the Decree No.
87/2012/ND-CP dated October 23, 2012 detailing a number of Articles of the
Customs Law on e-customs procedures for commercial exports and imports;
Pursuant to the Government’s
Decree No. 118/2008/ND-CP dated November 27, 2008, defining the functions,
tasks, powers and organizational structure of the Ministry of Finance;
At the proposal of General
Director of Customs,
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Chapter I
GENERAL PROVISIONS
Article 1. Subjects and
scope of application
1. To
apply the priority regime in the state management of customs to businesses
satisfying the conditions specified in this Circular.
2. Apart
from the priorities they are enjoyed under this Circular, businesses may also
enjoy other priorities in the state management of customs as provided by law
for their exports and imports.
3. Businesses
eligible for application of the priority regime in the state management of
customs (hereinafter abbreviated to prioritized businesses) may enjoy
priorities provided in this Circular at all customs offices nationwide, even at
the stage of carrying out procedures for customs clearance for goods and the
stage of post-customs clearance examination.
4. Once a
business is recognized as a prioritized one, all of its exports and imports
specified in Article 2 below will enjoy the respective priority regime
specified in Chapter 4 of this Circular (except goods which are imported,
exported under consignment for other businesses).
Article 2. Types of
prioritized businesses
Prioritized businesses include
three types:
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2. Businesses
eligible for priorities in export of farm produces, fisheries products, textile
and garment, leather and footwear and import of materials and accessories for
production of exports mentioned above.
3. Businesses
which are granted certificate of hi-tech businesses by the Ministry of science
and technology as prescribed in Law on high technology, eligible for priorities
in import of goods in serve of production; and export of hi-tech products.
Chapter
II
CONDITIONS ON PRIORITIZED BUSINESSES
Businesses which are considered
for the priority regime as prescribed in this Circular must fully satisfy the
conditions from Article 3 through Article 9 at below:
Article 3. Condition of law
observance
1. The
period for assessment of a business’s law observance is 24 (twenty four) months
up to the date on which the General Department of Customs receives the
business’s written request for being recognized as a prioritized business.
2. During
the period specified in Clause 1 of this Article, if business does not violate law
on tax, customs seriously to be sanctioned over one of acts below, it will be
considered as satisfying the conditions of law observance:
2.1. To export, import goods in
list of goods prohibited for export, prohibited for import in contravention
with regulations of law.
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2.3. To be handled for not more
than 3 (three) times by the customs offices, taxation agencies for act of wrong
declaration as result of lacking payable tax amounts, increasing the exempted,
reduced, refunded tax amounts with administrative violation sanction level by
fine falling beyond competence of Directors of Department or similar titles as
prescribed by law on handling of administrative violations.
2.4. To be handled
administratively by customs offices for act of not complying with request of
customs offices in the customs inspection, provision of business’s information
and dossier.
Article 4. Condition of
payment
To implement payment for export and import
consignments in accordance with provisions of State Bank. To implement tax
payment through banks or treasuries
Article 5. Condition of
accounting and finance
Having applied accounting standards accepted by
the Ministry of Finance. All economic activities must be reflected fully in
accounting books. Annual finance statements are audited by an eligible audit
company in which essential contents are accepted and business operation is
assessed to be effective, no overdue tax debts in 2 (two) years adjacent to the
considered year.
Article 6. Condition of
export and import turnover
1. For businesses specified
in Clause 1, Article 2 of this Circular: the export or import turnover must be
at least USD 200 (two hundred) million/year.
2. For businesses specified
in Clause 2, Article 2 of this Circular: the export or import turnover must be
at least USD 50 (fifty) million/year.
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4. The export or import
turnover specified in Clause 1 and Clause 2 of this Article are the average
turnover within 2 (two) considered years.
Article 7. Conditions of
carrying out e-customs procedures, e-tax procedures
1. At time when customs
offices consider, assess, appraise, businesses have carried out e-customs
procedures with customs offices, e-tax procedures with taxation agencies.
2. Businesses
have technical infrastructure applying information technology meeting requirement
on e-data exchange between businesses and customs offices.
Article 8. Condition of
reliability
1. Customs
offices can determine reliability in businesses’ law observance in the future
based on criteria about businesses' internal control apparatus, finance control
mechanism, cooperation of businesses with customs offices, tax administration
agencies (according to the set of assessment criteria of the General Department
of Customs).
2. For
businesses meeting conditions specified in from Article 3 thru Article 7 of
this Circular, but customs offices have not yet had full grounds to determine
reliability in businesses’ law observance in the future, they have not yet been
recognized as prioritized businesses.
Article 9. Voluntary
requests for being recognized as prioritized businesses
1. Businesses
wishing to be applied the priority regime, may self-make reference with
conditions, request in writing the General Department of Customs to consider
and recognize them as prioritized businesses and commit to well complying with
law.
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Chapter III
PROCEDURES FOR APPRAISAL, RECOGNITION, EXTENSION,
TEMPORARY SUSPENSION AND SUSPENSION OF PRIORITIZED BUSINESSES
Article 10. Competence for
recognition, extension, temporary suspension and suspension of application of
priority regime
1. General
Director of Customs has competence to make decisions on recognition, extension,
temporary suspension and suspension of application of priority regime.
2. The
Post-Clearance Examination Department shall assume the prime responsibility for
and assist the General Director of Customs in appraising conditions,
recognition, extension, temporary suspension, suspension and management of
prioritized businesses.
3. Units
under the General Department of Customs, Customs Departments of provinces and cities
shall coordinate, provide information, make comments, assess about businesses’
law observance as well as activities of export and import.
Article 11. Dossiers of
request for recognition of prioritized businesses
1. The
General Department of Customs (Post-Clearance Examination Department) is unit
receiving dossiers of request for recognition of prioritized businesses.
2. A
dossier includes:
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2.2. Report on export and
import statistics of the business in the last 02 years: 01 original;
A statistical period lasts
whole year, from January 1 to December 31 of a year. For the current year of
operation: if 6 months or less have elapsed, figures of the last 2 years are
required; if more than 6 months have elapsed, figures of these months are
required together with projected figures for the whole year (made according to form
02/DNUT promulgated together with this Circular).
2.3. A report on the business’s
law observance in the last 02 years (in case the business has been handled for
violations, number of handling times, acts of violation, sanctioning forms and
levels, sanctioning authorities and execution of sanctioning decisions):
To submit 01 original;
2.4. Audited annual financial
statements for the last 02 years: To submit 01 copy of each statement certified
by the business;
2.5. Written conclusions on the
latest audit or inspection (conducted within 1 year, if any): To submit one
copy certified by the business and produce the original thereof;
2.6. Documents self-analyzing,
assessing business operation and finance conditions of business;
2.7. Documents self-analyzing
the system of internal control of business; process of internal professional
operation, in which describe fully the process of professional operations of
all related divisions in the provision string (such as divisions related to
procedures for export and import: logistic, accounting, goods purchase, goods
sale, product quality control);
2.8. Other papers which
enterprises assume that they are necessary to provide for customs offices, and
assist customs offices in appraisal (such as certificates of rewarding,
international and national certificates, and management standards
applied).
Article 12. Appraisal of
conditions on prioritized businesses
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2. Appraisal
form includes dossier appraisal and practical appraisal.
2.1. Dossier appraisal is performed:
- On the basis of dossier
provided by business, looking through database; and other information sources
of the customs law observance and export and import turnover of business.
- Evaluations and comments
of the concerned agencies specified including:
+ Agencies assessing the
customs law observance (including the tax law observance for exports and
imports) are Customs Departments of provinces, cities where businesses located
head offices, where businesses have export, import operations and units
affiliated the General Department of Customs.
+ Agencies appraising HS code
of exports, imports are Customs Departments of provinces and cities where
businesses located head offices. Goods codes which businesses have exported,
imported (except for goods items imported under types of not taxable subject
such as import in export processing zones, export from export processing zones)
agreed upon by businesses and the provincial Customs Departments of appraisal
will serve as a basis to put in memorandum for the business to make customs
declaration upon carrying out export or import procedures within nationwide
scope.
+ Agencies confirming the
domestic tax law observance and performance of e-tax procedures are taxation
agencies where businesses registered and performed the duties of domestic tax
payment.
+ Agencies shall assess the law observance in
accordance with their function and competence. Within 10 (ten) working days,
after receiving written request of the General Department of Customs, agencies
shall answer in writing.
In case where dossier fails to meet fully
conditions specified in Chapter 2 of this Circular, the General Department of
Customs must have written reply for businesses.
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The practical appraisal is performed after
dossier appraisal result of business met conditions as provided or may be
performed at the same time with process of dossier appraisal, content includes:
- To assess the observance of
customs law, tax law for the export and import operations of business;
- To assess the internal
control ability of business;
- To
examine the technical infrastructure applying information technology of
business so as to meet requirement on e-data connection and exchange between
businesses and customs offices, tax agencies.
3. Handling
of appraisal results:
Based on appraisal results;
evaluations and comments of units, agencies of inside and outside sector;
conclusions of audit and inspection (if any); other collected information;
compared with conditions on prioritized businesses specified in Articles 3 thru
Article 9, Chapter II of this Circular, the Post-Clearance Examination
Department make assessment report and submit it to the General Director of Customs
for consideration and decision.
4. The
time limit for consideration to recognize the prioritized business shall not
exceed 45 (forty five) working days after receiving a full dossier. For complex
cases, cases of big businesses, the time limit may be extended once but not
exceed 30 (thirty) working days. If businesses are assessed as not meeting
conditions of prioritized business, the General Department of Customs shall
have written notice to businesses thereof.
Article 13. Making the
memorandum
1. In case
where a business is assessed as meeting conditions of prioritized business,
approved by the General Director of Customs, the Post-Clearance Examination
Department and the business will make the memorandum (according to form
03/DNUT) and submit to by the General Director of Customs for signing a
memorandum of understanding (MOU).
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- Name,
address, telephone and facsimile numbers and email address of the business;
- Type of
prioritized business;
- Responsibilities
of business;
- Responsibilities
of the General Department of Customs;
- Agreement
on identification of headings of goods items exported or imported by the
business (except for goods items imported under types of not taxable subject
such as import in export processing zones, export from export processing
zones).
Article 14. Decisions on
recognition of prioritized businesses
1. The General
Director of Customs shall sign decides on recognition of prioritized
businesses.
2. The
time limit for issuing a decision on recognition of a prioritized business
shall not exceed 15 (fifteen) working days, after the appraisal is completed.
3. The form
of decision on recognition of prioritized business is promulgated together with
this Circular (form No. 04/DNUT).
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1. The
duration for a business to enjoy the priority regime for the first time is 24
(twenty four) months after the General Director of Customs signs a decision on
application of the priority regime to this business. Upon the expiration of
this duration, the General Department of Customs shall conduct revaluation and,
if the business still satisfies the specified conditions, may extend the
duration of application of the priority regime.
2. 60
(sixty) days before the expired date of decision on recognition of the
prioritized business, the General Department of Customs shall notify for
business to have application requesting for extension of the priority regime.
3. Procedures
for revaluation:
- Dossier
appraisal as prescribed in point 2.1, Article 12 of this Circular:
- Practical
appraisal performed in principle of risk control.
Duration for consideration, revaluation
shall not exceed 30 (thirty) working days. If procedures for revaluation and
re-recognition have not yet completed despite the decision on recognition of
prioritized business is expired, the business is still applied full priority
regime.
4. If
results of the revaluation show that the business still satisfies the specified
conditions, the General Department of Customs shall, based on the law
observance level of business, issue a decision to extend the duration of
application of the priority regime to the business for subsequent 36
(thirty-six) months to 60 (sixty) months (made according to form No. 05/DNUT
promulgated together with this Circular):
- 60
(sixty) months for businesses without any handled violation or with 01 (one)
violation in each field as tax, customs and sanctioned administratively with a
fine not exceeding competence of Directors of Sub-department;
- 36
(thirty six) months for prioritized businesses with more than 01 (one)
violation in each field as tax, customs and sanctioned administratively with
fine of every time not exceeding competence of Directors of Sub-department, but
still satisfy conditions of law observance as prescribed in Article 3 of this
Circular;
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1. General
Director of Customs shall consider and issue decision on temporary suspension
of application of the priority regime as prescribed in chapter IV of this
Circular when defining that businesses have one of following violations:
The businesses violate one of
provisions in Article 3 of this Circular.
1.2. The businesses fail to
meet provisions in Article 8 of this Circular.
2. Duration
for temporary suspension shall be between 60 (sixty) and 180 (one hundred
eighty) days. In cases with legitimate reasons (due to objective reason),
businesses still fail to remedy all mistakes after the duration above has been
expired, they may be extended time limit of temporary suspension for once but
not exceed 60 (sixty) days.
On the basis of reports
assessing violation made by the concerned provincial Customs Departments, the
clarifying reports made by businesses (clearly stating measures of innovation,
method of implementing recommendations of customs offices), if businesses still
satisfy full conditions of prioritized businesses or after the concerned
functional agencies assess that the violations of businesses still satisfy
conditions of law observance as prescribed in Article 3 of this Circular, the
General Director of Customs shall consider and decide on cancellation of
decision on temporary suspension.
3. If
units under and affiliated the General Department of Customs detect that
businesses have violations, they must report to the General Department of
Customs (Post-Clearance Examination Department) for consideration, making
decisions on temporary suspension of application of the priority regime (form
06/DNUT), decisions on cancelling decision on temporary suspension (form
07/DNUT promulgated together with this Circular).
Article 17. Suspension of
application of the priority regime
1. The
General Director of Customs shall consider and issue decisions on suspension of
application of the priority regime as prescribed in chapter IV of this Circular
(form 08/DNUT) in the following cases:
1.1. The businesses fail to
meet conditions on prioritized business as prescribed in this Circular.
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1.3. Businesses apply for
withdrawal from the priority regime; or time limit of recognition is expired
but businesses fail to request for recognition of prioritized business.
2. If a
business has been suspended for the priority regime, the General Department of
Customs shall refuse receipt of dossier requesting for recognition of
prioritized business of this business in 02 (two) next years.
Chapter
IV
THE PRIORITY REGIME
Article 18. Priorities at
the stage of customs clearance
1. Exemption
from examination of customs dossiers, exemption from practical examination of
goods (except cases showing clear signs of violation):
- Businesses
shall take responsibility before law and customs offices for the legality,
validity and contents of their customs declaration.
- Exemption
from practical inspection of goods includes exemption from manual inspection
and inspection by machines and equipment. In case of having to examine,
businesses are prioritized to be advance examined, examined by technical means,
request for goods inspection at places selected by businesses.
2. To be
used set of documents including commercial invoices, goods package papers,
goods delivery orders and tax self-declaration with seal and signature of
representatives of businesses for the goods customs clearance in case the
database system of customs offices meet malfunction or temporarily stop
operation.
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3. Not
having to register the consumption norm of raw materials with customs offices,
not having to submit the liquidity reports for customs offices but provided
that businesses have software of management of exports and imports meeting
requirements on management and inspection of customs offices.
Quarterly, businesses must
submit reports for customs offices about export – import – inventory of
imported raw materials on basis of norm formulated by businesses. Businesses
shall take responsibility before law for the accuracy of norms formulated by them.
Article 19. Priorities at
the post-customs clearance stage
1. During the time of
application of the priority regime to businesses, customs offices shall not
conduct post-customs clearance inspection at the offices of these businesses
(except cases showing clear signs of violation).
When being notified by customs
offices of their errors or matters which must be clarified, businesses shall
review these errors or matters and give explanations to customs offices. Form
and places of making explanations are complied with Article 145 of the Ministry
of Finance’s Circular No. 194/2010/TT-BTC of December 6, 2010.
2. Inspection
for recognition, extension or suspension of the priority regime. Scope and
content of inspection shall depend on requirements of management and monitoring
of customs agencies.
Article 20. Single customs
declaration
1. Single
customs declaration and time limit for liquidity of single customs declarations
comply with Article 9 of the Government’s Decree No. 154/2005/ND-CP of December
15, 2005.
2. Prioritized
businesses may make single customs declarations in either of the following
forms:
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- For
goods imported on the spot; and materials, components and spare parts purchased
from bonded warehouses for production, importation shall be conducted first
(supervised and recorded in minutes of goods delivery and receipt by businesses
and owners of bonded warehouses), customs declaration shall be conducted later.
Article 21. Priorities of
tax procedures
1. To be
prioritized to apply the regime of self-liquidity, tax refund first and
inspection later.
Businesses may self-calculate
quantity of goods practically put into production, goods in inventory,
self-calculate the additional payable tax amounts or tax amounts not payable.
Businesses shall take responsibility before law and customs offices for the liquidity
content. Based on the self-liquidity result of businesses, customs offices may
issue decisions on liquidity, tax refund, no collection of tax.
2. Not be
required to pay amounts of delay payment, not be handled administrative
violations of customs, tax for cases of being imposed tax because the goods
codes already unified and appraised by customs agencies previously are
incorrect and businesses still be considered as satisfying the condition of law
observance.
Chapter V
MANAGEMENT OF PRIORITIZED BUSINESS
Article 22.
Responsibilities of Customs offices
1. Post-Clearance
Examination Department is specialized unit assisting the General Director of
Customs in implementing the following tasks:
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1.2. To preside over appraisal and organize
collection of comments of relevant units, agencies;
1.3. To implement the annual survey regime to
assess maintenance of conditions of prioritized businesses;
1.4. To be focal agency in advising to handle
matters arising; advising in international cooperation regarding prioritized
businesses;
1.5. To assign customs officers in specialized
charge of management of prioritized businesses and to notify the prioritized
businesses of list of these customs officers
Regularly monitor, collect, analyze operation,
data of exports and imports of businesses so as to assist businesses in
increasing the capability of law observance, early detecting mistakes to timely
remedy. In case of detecting that businesses have mistakes or matters need be
clarified, to notify businesses for these businesses to self-review.
- If
businesses recognize that detection of customs office is right, to request
businesses for self-remedy (such as declare additionally; supplement documents;
pay tax additionally);
- If
businesses disagree with notice of customs office, businesses must have written
explanations (enclosed with vouchers, documents as proving).
1.6. To be ready to satisfy, explain at requests
of businesses about policies, customs law and tax law;
1.7. To train knowledge of prioritized
businesses for the provincial Customs Departments and to be focal agency of
businesses recognized as prioritized business.
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2.1. To guide businesses in making dossiers of
request for recognition of prioritized businesses;
2.2. To organize practical inspection of
conditions of businesses at the request of the General Department of Customs
(Post-Clearance Examination Department);
2.3. To make report of businesses assessment;
2.4. To regularly monitor the export and import
operation of businesses, assist businesses to maintain conditions and timely
detect, remedy mistakes. Periodically report result of monitoring businesses to
the General Department of Customs;
2.5. To coordinate with businesses in handling
matters arising in geographical areas managed by the provincial Customs
Departments.
Article 23.
Responsibilities of prioritized businesses
1. To
properly observe the law.
2. To establishment a
division or appoint a person in specialized charge of implementing the priority
regime. This division has responsibilities: To be focal division to exchange,
provide information and coordinate with divisions in specialized charge of
prioritized businesses of customs agencies; to perform the report regime; to
control all operations of businesses under the priority regime.
3. To
formulate and implement the regime of regular self-examination and report
result of export and import operation to the General Department of Customs.
Periodically, to supply status, figures about exports, imports to customs
offices:
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- Method
of provision: Through internet connected between the General Department of
Customs and businesses.
4. To formulate, notify in
writing customs offices of information of division/person in charge of focal
communication role of businesses.
5. To be responsible for
implementing the regime of exchanging information regularly with customs
offices. To be ready to coordinate, clarify doubts at the request of customs
offices or customs officers in charge of management over businesses.
6. Regularly
implement self-examination, detect and remedy mistakes. When having a new
export or import goods item of which the two parties have not reached agreement
on its identification number, businesses shall propose a goods identification
number and notify it to the provincial Departments of Customs where businesses
located head offices for consideration and approval.
7. To
actively coordinate with customs offices in case of customs inspection. When
being notified by the Customs offices of errors or unclear matters in their
customs dossiers, businesses shall re-check, reply and explain notified errors
or matters in an adequate and prompt manner.
8. In case
customs offices conduct examination at the offices of businesses or businesses
request customs offices to come and work on unclear matters, businesses shall
create favorable conditions for and comprehensively coordinate with examination
teams. For matters on which remain divergent opinions, they shall coordinate
with customs offices in finding lawful solutions.
9. Before
enjoying the priority regime provided in this Circular, businesses notify the
General Department of Customs and district-level Customs Sub-Departments with
which procedures for their exported or imported goods are carried out of agents
carrying out customs procedures for their exported or imported goods and commit
the law observance by these agents. In case of change of an agent, businesses
shall notify such to customs offices mentioned above. Prioritized businesses
shall regularly examine the law observance by their agents so as to detect
errors (if any) and promptly notify detected errors to customs offices.
Chapter VI
HANDLING OF VIOLATIONS, COMPLAINTS, DENUNCIATIONS AND
ORGINAZING IMPLEMENTATION
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1. Prioritized
businesses committing law violations shall, depending on the nature and
severity of their violations, be handled under law.
2. Organizations
and individuals are strictly prohibited from taking advantage of this priority
regime to violate policies and laws. Violators shall, depending on the nature
and severity of their violations, be administratively handled or examined for
penal liability under law.
Article 25. Complaints and
denunciations
1. All
individuals and organizations may complain about, and all citizens may denounce
law violations in the course of implementation of this Circular.
2. The
lodging and settlement of complaints and denunciations comply with the law on
complaints and denunciations.
Article 26. Implementation
responsibility
1. Pursuant
to this Circular, the General Director of Customs shall direct and guide
customs offices in implementing this Circular.
2. The
General Department of Customs shall closely coordinate with related agencies
and units in assuring proper and effective implementation of this Circular.
Article 27. Effect
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2. The prioritized
businesses which are applied the Circular No. 63/2011/TT-BTC dated May 13, 2011
and the Circular No. 105/2011/TT-BTC dated July 12, 2011 of the Ministry of
Finance may continue application of the priority regime as prescribed in this
Circular. The re-assessment, re-extension for these businesses shall comply
with provision in Article 15 of this Circular. If a prioritized business wishes
to transfer type of prioritized businesses as prescribed in Article 2 of this
Circular, the General Director of Customs shall consider, decide, procedures
for appraisal shall comply with provisions in this Circular.
FOR THE
MINISTER OF FINANCE
DEPUTY MINISTER
Do Hoang Anh Tuan