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THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No: 29/2014/TT-BTC
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Hanoi, February
26, 2014
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CIRCULAR
ON AMENDMENTS TO
SOME ARTICLES OF CIRCULAR NO. 205/2010/TT-BTC OF THE MINISTRY OF FINANCE DATED
DECEMBER 15, 2010 PROVIDING INSTRUCTIONS ON DECREE NO. 40/2007/ND-CP OF
GOVERNMENT DATED MARCH 16, 2007 REGULATING CUSTOMS VALUATION OF IMPORTED AND
EXPORTED GOODS
Pursuant to the Law on Customs No.
29/2001/QH10 dated June 29, 2001; the Law on amendments to some Articles of the
Law on Customs No. 42/2005/QH11 dated June 14, 2005;
Pursuant to the Law on Export and import tax
No. 45/2005/QH11 dated June 14, 2005;
Pursuant to the Law on Tax administration No.
78/2006/QH11 dated November 29, 2006; the Law on the amendments to the Law on
Tax administration No. 21/2012/QH13 dated November 20, 2012;
Pursuant to Decree No. 40/2007/ND-CP date
March 16, 2007 of the Government regulating customs valuation of exported goods
and imported goods;
Pursuant to the Government's Decree No.
87/2010/ND-CP dated August 13th 2010, detailing the implementation of a number
of articles of the Law on Export and import tax;
Pursuant to Decree No. 87/2012/ND-CP of the
Government detailing some Articles of the Law on customs regulating the
procedures for electronic customs regarding the imported and exported goods;
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Pursuant to the Government's Decree No.
215/2013/ND-CP dated December 23, 2013 defining the functions, tasks,
entitlements and organizational structure of the Ministry of Finance;
At the request of the Director of General
Department of Customs,
The Minister of Finance promulgates the
Circular on the amendments to some articles of the Circular No. 205/2010/TT-BTC
dated December 15, 2010 of the Ministry of Finance providing instructions on
Decree No. 40/2007/ND-CP dated March 16, 2007 of the Government regulating the
customs valuation of imported and exported as follows:
Article 1. Amendments to some articles of
Circular No. 205/2010/TT-BTC dated December 15, 2010:
1. Amendments to Clause 8 Article 2; Clauses 18,
19, 20 Article 2:
“8) Identical imported goods are: imported goods
which are identical in all respects, including:
8.1) Physical characteristics such as product
surface, component materials, manufacturing methods, function, purpose to use
and mechanical, physical, chemical nature that have the same code according to
the classification in the List of imported goods in Vietnam;
8.2) Product quality;
8.3) Product brands;
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The imported goods which basically satisfy the
requirements for identical imported goods and have insignificant differences in
appearance such as color, size, style without affecting value of goods shall
still be considered as identical imported goods.
The imported goods are not considered identical
goods if in the process of producing such goods, producers used the technical
designs, construction designs, planning of implementation, art designs, the
design drawings, diagrams, scheme of similar products and services which are
made in Vietnam provided free for the sellers by buyers.
“18) Fees for copyright and permits related to
imported goods are:
18.1) Fees for copyright and permits paid for
the use of product brand consistent with the dossier if all of the following
requirements are satisfied:
18.1.1) Imported goods that are resold as is in
Vietnam or have undergone simple processing after they are imported;
18.1.2) Imported goods that are enclosed with
the trademarks when they are sold in Vietnam.
18.2) Fees for copyright and permits paid for
the use of inventions, technical secrets or other intellectual property rights
prescribed in the trading contracts, contracts for permit granting or other
agreements on transfer of intellectual property rights if:
18.2.1) Other inventions, technical secrets or
intellectual property rights are used for producing imported goods;
18.2.2) Imported goods employing the inventions,
industrial design or other intellectual property rights;
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Examples of imported goods employing the
inventions, technical secrets are mentioned in Appendix II enclosed herewith.
19) Simple process after the goods are imported
includes:
19.1) Maintenance of goods during the
transportation and storage (air ventilation, spreading out, drying, freezing,
pickling, inhalation of sulfur or adding other additives ,removal of damaged
parts and similar works);
19.2) Screening, selection, classification
(including the arranging) cleaning, painting, dividing into sections;
19.3) Changing the wrapping and dismantling or
assembling the batches of goods; bottling, packaging, boxing and other simple
packaging;
19.4) Pasting labels other similar marks into
the products or wrapping of products;
19.5) Simply mixing imported goods with other
ingredients including mixing with water or other ingredients provided that the
basic nature of the products shall remain unchanged;
19.6) Simply assembling the parts of the
products to form finished products;
Simple assembly is to assemble spare parts
together with assembly tools (screws, bolts, nuts) or rivets or by welding
provided that these activities are simply assembly. The spare parts shall not
be processed to be finished products regardless of the complexity of assembly
methods.
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19.8) Slaughtering animals without processing.
20) Requirements for imported goods trading are:
20.1) The buyers shall only purchase the
imported goods from the suppliers appointed by the intellectual property owners
of suppliers related to the intellectual property owners; or the goods must
satisfy the technical standards as required by intellectual property owners; or
20.2) The buyers shall only purchase the
imported goods when they pay the sellers or intellectual property owners the
fees for copyright and permits.”
2. Amendments to Point 1.2.5.1 Clause 1 in
Article 14:
“1.2.5.1) Requirements for adding: Only adding
when all of these requirements are satisfied:
a) The buyers must pay the fees for copyright
and permits to use and transfer the intellectual property rights related to the
imported goods whose dutiable values are calculated;
b) The buyers must pay the fees for copyright
and permits, which is considered as a condition for trading in goods whose
dutiable values are calculated. Such payment is specified in the contracts for
goods trading, contracts for permit granting or other agreements on transfer of
intellectual property rights;
c) The fees for copyright and permits have not
been included in the actual prices of the imported goods whose dutiable values
are calculated, which is paid or payable”.
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“Article 21. Formulation and adjustment to List
of exported goods posing risk of values and enclosed reference prices
1) Criteria for formulating and adjusting the
List of exported goods posing risk of values
1.1) Goods subject to high rate of export tax;
1.2) Goods making up a large proportion of the
total turnover of exported goods;
1.3) Exported goods with high frequency of
violations of customs values during the assessment;
1.4) Goods whose values are likely to be inaccurately
declared in order to commit export tax fraud and tax evasion.
1.5) Goods whose values are likely to be
exaggerated in order to receive VAT refund of exported goods;
1.6) Goods posing other risks of customs value
in accordance with the regulations in Clause 3 Article 21 of the Circular No.
175/2013/TT-BTC of the Ministry of Finance on application of risk management of
customs operations dated November 29, 2013.
2) Information sources to formulate and amend
the List of exported goods posing risk of values and enclosed reference prices
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2.1.1) Source of information about export prices
of identical and similar exported goods and the dutiable values that are declared
by the enterprises in the Management system of dutiable values and approved by
the customs authorities;
2.1.2) Source of information about the
inspection result of documents and goods, discussion result, result of price
adjustment, inspection result of dutiable values conducted by the Customs
Department of provinces during the implementation of customs procedures which
is daily updated to the Management system of dutiable values;
2.1.3) Source of information about the result of
complaints about dutiable values that are handled by the Customs Department of
provinces and General Department of Customs which is updated to the Management
system of dutiable values;
2.1.4) Source of information about result of
post-clearance inspections of dutiable values conducted by the post-clearance
force during the post-clearance inspection and updated to the Management system
of enterprises to facilitate the post-clearance inspection and risk management;
2.1.5) Source of information about result of
inspection and action against frauds of dutiable values by the anti-smuggling
task force which is updated to the Database System;
2.1.6) Source of information about commercial
fraud and result of actions against violations during the selectivity in the
Risk management information system;
2.1.7) Source of information about the results
of inspections conducted by the inspectorates or other customs units before,
after and during the goods are granted customs clearance;
2.1.8)
Information from the proposals for amendment submitted by the Customs
Department of the provinces in accordance with the regulations in Point 5.1
Clause 5 this Article.
The units affiliated to the
General Department of Customs in charge of managing such information sources
shall update the inspection results to the Customs database system to request
the Director of General Department of Customs to formulate and amend the List
of exported goods posing risk of values and the reference prices periodically
or when necessary.
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2.2.1) Source
of information about transaction prices on the world market (regarding goods
having transaction prices on the world market) which is shown in the websites
of the market for such goods;
2.2.2) Source
of information about signs of commercial fraud when relevant agencies such as
market management agencies, police agencies, commercial banks or Ministries,
regulatory authorities, tax authorities, Associations, enterprises,
organizations and individuals declare the values.
2.2.3) Source
of information about the selling prices on the domestic market of identical and
similar goods compared with exported goods, relation between the selling prices
on the market and the selling prices of exported goods that is periodically
collected by the customs authorities or provided by the tax authorities (if
any);
2.3) The abovementioned information is collected
within 06 months from the issuance of the effective List of exported goods
posing risk of values . The collected information must be analyzed and
converted to the same trading conditions before it is used for formulating and
adjusting the List of exported goods posing risk of values and reference
prices.
3) Principles to formulate, adjust and use the
List of exported goods posing risk of values and reference prices:
3.1) The customs authorities shall compile and
adjust the List of exported goods posing risk of values according to the result
of risk assessment, criteria for risk management, professional information,
data on the Customs information system at the time for assessment. The List of
exported goods posing risk of values must contain the information about goods
such as codes, description or names of goods.
3.2) The customs authorities shall formulate and
adjust the List of exported goods posing risk of values and reference prices
based on the collected information mentioned in Clause 2 this Article.
3.3) The List of exported goods posing risk of
values and reference prices are the basis that the customs authorities use to
compare and inspect the values declared by the customs declarants, determine
the suspicious signs, hold discussion during the implementation of customs
procedures or after the goods are granted customs clearance under the
regulations. Such List and reference prices are not used for posing dutiable
values, are circulated internally and consistently used among the customs
authorities.
4) The List of exported goods posing risk of
values and enclosed reference prices shall be formulated and adjusted
biannually or when necessary after considering:
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4.2) Recommendations of the Customs Departments
of provinces and units affiliated to the General Department of Customs.
5) Entitlement to formulation and adjustment to
the List of exported goods posing risk of values and enclosed reference prices:
5.1) Responsibilities of the Directors of the
Customs Departments of provinces:
5.1.1) Update the inspection result of dossiers,
actual inspection result of goods, inspection result, discussion result,
determination of values, result of post-clearance inspection, result of
anti-smuggling inspection to the correspondent database system.
5.1.2) According to the inspection result of
dossiers, actual inspection result of goods, inspection result, discussion
result, determination of values, result of post-clearance inspection, result of
anti-smuggling inspection, turnover, export tax, smuggling and commercial
fraud, request the General Department of Customs to:
5.1.2.1) Supplement the reference prices
according to the principles prescribed in Point 3.2 Clause 3 this Article
regarding the exported goods in the List of exported goods posing risk of
values without reference prices using the form 7 enclosed with this Circular
based on the collected information mentioned in Clause 2 (except for Point
2.1.8) this Article.
5.1.2.2) Adjust the reference prices according
to the principles prescribed in Point 3.2 Clause 3 this Article when the
declared prices decrease or increase by more than 10% compared with the
reference prices in the List of exported goods posing risk of values using the
form 8 enclose with this Circular, based on the collected information mentioned
in Clause 2 (except for Point 2.1.8) this Article.
5.1.2.3) Add
more goods to the List of exported goods posing risk of values and reference
prices according to the principles prescribed in Clause 3 this Article
regarding exported goods satisfying one of the criteria prescribed in Clause 1
this Article but having not been listed using the form 7 enclosed herewith,
based on the collected information mentioned in Clause 2 (except for Point 2.1.8)
this Article.
5.2) Responsibilities of the General Department of
Customs: the Director of the General Department of Customs shall formulate and
adjust the List of exported goods posing risk of values and enclosed reference
prices according to: Criteria prescribed in Clause 1 this Circular, information
mentioned in Article 8 of the Circular No. 175/2013/TT-BTC and Clause 2 this
Article, regulations on compilation and management of List of risks to exported
goods prescribed in Article 21 of the Circular No. 175/2013 /TT-BTC.”
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“Article 22. Inspection and processing of
inspection results of dutiable values of exported goods
1) Inspection contents:
a) Compare declared prices with:
a.1) The reference prices in the List of
exported goods posing risk of values.
a.2) The taxable prices of
identical or similar goods in the latest export declaration from the
registration of export declaration of goods whose values are determined
regarding the goods in the List of exported goods posing risk of values. Do not
compare with the consignments whose prices are suspected.
If more than one taxable price
of identical or similar of an exported good are determined, the declared price
shall be compared with the lowest taxable price of the identical or similar
good in the same trading condition.
b) Check the suitability of contents of the
contracts for goods trading;
c) Check the correspondence between the
contracts for goods trading and documents in the customs dossiers.
2) Processing inspection results:
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a.1) Contents of contracts for goods trading
that are not conformable;
a.2) Disagreement between the contracts for
goods trading and documents in the customs dossiers.
b) If a declared price is
lower than one of the prices prescribed in Point a Clause 1 this Article
(hereinafter referred to as suspicious export prices), whether there are
disagreement about procedures and documents:
b.1) In case an import and/or export enterprise
is classified as very high-risk enterprise or enterprise has started import and
export business for less than 365 days as prescribed in the regulations in
Article 18 of the Circular No. 175/2013/TT-BTC:
The customs authority shall notify the customs
declarant of the suspicious signs of declared price, method and price
determined by the customs authority according to the Notification of suspicious
signs of declared prices (using form 01 enclosed herewith).
b.1.1) In case the customs declarant agrees with
the method and price determined by the customs authorities according to the
Notification of suspicious signs of declared prices, the customs authority
shall give the Notification of dutiable values (form 4 enclose herewith),
impose tax according to the determined price and specify that in the customs
declaration.
b.1.2) In case the customs declarant disagree
about the method and price determined by the customs authority, it is required
to write “Dề nghị tham vấn” (request for discussion) and time for discussion on
the Notification of suspicious signs of declared prices. Any customs declarant
can ask for discussion in accordance with the regulations in Clause 3 this
Article and pay the deposit in accordance with the regulations in Point 3.2
Clause 3 and Clause 4 Article 25 of the Circular No. 205/2010/TT-BTC.
The customs authority shall notify the declarant
of the payment for the deposit and the prices to calculate the deposit
according to the principles and methods of determining dutiable values
prescribed in the Decree No. 40/2007/ND-CP and Circular No. 205/2010/TT-BTC.
b.2) In case an import or
export enterprise is not considered as as a very high-risk enterprise or
enterprise that has started import or export business for less than 365 days in
accordance with the regulations in Article 18 of the Circular No.
175/2013/TT-BTC, and pay the tax according to the declared prices, such enterprise
shall be granted customs clearance. However, the customs authorities must
transfer the documents and the suspicious signs for consideration in accordance
with the regulations in Article 27 of this Circular.
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d) If there are no suspicious signs of
procedures, documents and imported prices and the customs declarants have paid
tax according to the declared prices, customs clearance shall be granted. The
customs authorities shall conduct post-customs clearance inspections in
accordance with the regulations.
dd) The customs authorities shall determine the
taxable prices according to the principles and methods of determining dutiable
values prescribed in Decree No. 40/2007/ND-CP, Circular No. 205/2010/TT-BTC and
latest information from the registration of export declaration of goods whose
values are determines, among the information sources prescribed in Clause 2
(except for point 2.1.8) Article 21 of this Circular. The taxable prices
determined by the customs authorities must not be lower than the reference
prices in the List of exported goods posing risk of values. If more than one
price of identical or similar of an exported good are determined, the taxable
price shall be the lowest price of the identical or similar exported good in
the same trading condition.
3) Discussion:
3.1) Cases requiring
discussion: when there are suspicions about the declared prices but the customs
declarants have not agreed with the prices and methods of determination of
dutiable tax that are determined by the customs authorities as prescribed in
Point b.1.2 Clause 2 this Article.
The Directors of Customs Departments of provinces
shall hold discussion regarding goods in the List of exported goods posing risk
of values if there are suspicious signs of prices but the declared prices is at
most 10% lower than the prices in the database of prices at the time for
inspection.
3.2) Type of discussion: direct discussion.
3.3) Discussion competence:
3.3.1) The directors of Customs Departments of
provinces shall hold discussions and take total responsibility for such
discussion.
3.3.2) The Directors of Customs Departments of provinces
shall authorize the Directors of Customs Sub-Departments to hold discussion
regarding the goods subject to discussion provided that requirements for result
of discussion and value determination are satisfied at the Sub-Departments
according to actual conditions, management competence and distance between
Sub-Departments and Departments.
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3.4.1) Customs declarants shall: prepare
dossiers and documents as prescribed in Article 12 of the Circular No.
128/2013/TT-BTC, and information to clarify the accuracy of declared prices.
Assign competent representatives to decide the contents related to the
determination of dutiable values or authorized persons to join in the
discussion at the time prescribed in the Notification of suspicious signs of
declared prices.
3.4.2) The customs authorities
shall: hold the discussion at the time required by the customs declarants and
prepare the information to clarify the suspicious signs.
3.5) Holding discussion:
The enterprises shall explain the contents
related to the declaration of export transaction, declared prices, basis for
the determination of dutiable values of the enterprises according to the
prepared documents and information.
The customs authorities shall clarify the
suspicious signs of documents and declared prices. The questions and feedback
during the discussion must be written in the discussion record. The customs
authorities shall write “mức giá tính thuế theo mức giá khai báo”
(taxable prices according to declared prices) or “bác bỏ mức giá khai báo”
(reject declared prices) and the taxable prices on the discussion records
according to the feedback provided by the enterprises and information of
database of prices. Enterprises participating in the discussions must write
their agreement or disagreement about the taxable prices determined by the
customs authorities on the discussions records. All of the parties involved in
the discussion must sign the discussion record.
3.6) Deadline for conclusion of discussion and determination
of dutiable values: within 30 days from the registration of declaration.
3.7) Processing
discussion result:
3.7.1) If the customs declarant agrees with the
taxable prices determined by the customs authority, the customs authority shall
write “bác bỏ mức giá khai báo” (Reject declared prices) on the discussion
record, issue the Notification of dutiable values and impose tax under the
regulations if:
a) The customs authority finds out disagreements
among procedures and documents during the discussion;
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b.1) The information that the customs authority
collects by other professional methods proves that the declared values are
inaccurate.
b.2) The information provided by the declarant
is inaccurate, documents are fake or illegal.
3.7.2) The customs authority shall write “mức
giá tính thuế theo mức giá khai báo” (taxable prices according to
declared prices) on the discussion record, issue Notification of dutiable
values and transfer the documents and suspicious signs for consideration in
accordance with the regulations in Article 27 of this Circular if:
a) The customs authority does not have
sufficient grounds for rejecting the declared prices or do have sufficient
grounds for rejecting the declared prices but the customs declaration disagrees
on the taxable prices determined by the customs authority;
b) The customs declarant does not attend the
discussion on the time written on the Notification of suspicious signs of
declared prices.
c) The customs declarant cannot provide
information and documents specified in the Notification of the customs
authority before the deadline.
3.7.3) Except for cases prescribed in Point
3.7.1, and Point 3.7.2 this Clause, the customs authority shall calculate tax
according to the declared prices and issue the Notification of dutiable values.
3.7.4) The Customs Department of the province
(if the discussion is held by the Department) or the Sub-department of Customs (if
the discussion is held by the Sub-Department) shall issue the Notification of
dutiable values right after the discussion is concluded or on the day after the
discussion of the discussion.
The tax imposition and payment for imposed tax
must comply with the instructions in the Circular 128/2013/TT-BTC of the
Ministry of Finance on customs procedures; customs supervision and inspection;
import tax, export tax and tax administration of imported and exported goods
dated September 10, 2013.
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5. Amendments to Article 23:
“Article 23: Compilation of and adjustment to
List of exported goods posing risk of values and enclosed reference prices
1) Criteria for compiling and adjusting List of
exported goods posing risk of values:
1.1) Goods subject to high rate of import tax;
1.2) Goods making up large proportion of total
turnover of imported goods;
1.3) Imported goods with high frequency of
violation of customs value during the assessment;
1.4) Goods whose transaction values are likely
to be inaccurately declared in order to commit import tax fraud and tax
evasion;
1.5) Goods whose import values are likely to be exaggerated,
which is aimed at transfer pricing;
1.6) Goods whose import values are likely to be
understated, which is aimed at dumping in Vietnam market;
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2) Information sources used for formulating and
adjusting List of exported goods posing risk of values and enclosed reference
prices
2.1) Customs information:
2.1.1) Source of information about import prices
of identical or similar imported goods and the dutiable values that are
declared by the enterprises in the Management system of dutiable values and
approved by the customs authorities;
2.1.2) Source of information about the
inspection result of documents and goods, discussion result, result of price
adjustment, inspection result of dutiable values conducted by the Customs
Department of provinces during the implementation of customs procedures which
is daily updated to the Management system of dutiable values;
2.1.3) Source of information about the result of
complaints about dutiable values that are handled by the Customs Department of
provinces and General Department of Customs which is updated to the Management
system of dutiable values;
2.1.4) Source of information about result of
post-clearance inspections of dutiable values conducted by the post-clearance
force during the post-clearance inspection and updated to the Management system
of enterprises to facilitate the post-clearance inspection and risk management;
2.1.5) Source of information about result of
inspection and actions against frauds of dutiable values by the anti-smuggling
task force which is updated to the Database System;
2.1.6) Source of information about commercial
fraud and result of actions against violations during the selectivity in the
Risk management information system;
2.1.7) Source of information about the results
of inspections conducted by the inspectorates or other customs units before,
after and during the goods are granted customs clearance;
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The units affiliated to the
General Department of Customs in charge of managing such information sources
shall update the inspection results to the Customs database system to request
the Director of General Department of Customs to formulate and amend the List
of exported goods posing risk of values and the reference prices periodically
or when necessary.
2.2) Other
information sources
2.2.1) Source of information about declared
prices that are published in the websites of Ministries under the regulatory
laws by the regulatory units affiliated to the Ministries under the regulatory
law;
Example: The declared prices of medicines shall
be posted on the electronic information pages of Drug administration of Vietnam
(www.dav.gov.vn) .
2.2.2) Information from specialist journals and
magazines documents in case of goods such as automobiles, motorcycles,
electronic items, iron and steel, which is monthly collected by the customs
authorities;
2.2.3) Information about selling prices on the
Internet from genuine websites or websites associated with genuine websites,
transaction prices on the world market (regarding the goods having transaction
prices on the world market) which is posted on the website of the market for
such goods.
2.2.4) Source
of information about signs of commercial fraud when relevant agencies such as
market management agencies, police agencies, commercial banks or Ministries,
regulatory authorities, tax authorities, Associations, enterprises,
organizations and individuals declare the values.
2.2.5) Source
of information about the selling prices on the domestic market of identical and
similar goods in compared with exported goods, relation between the selling
prices on the market and the selling prices of exported goods that is
periodically collected by the customs authorities or provided by the tax
authorities (if any);
2.2.6) Information about selling prices of goods
exported to Vietnam that are provided by the foreign customs authorities
according to the bilateral or multilateral agreements on customs cooperation.
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3) Principles to formulate, adjust and use the
List of exported goods posing risk of values and reference prices:
3.1) The customs authorities shall compile and
adjust the List of exported goods posing risk of values based on the result of
risk assessment according to the criteria for risk management, professional
information, data in the Customs information system at the time for assessment.
The List of exported goods posing risk of values must contain the information
about the goods such as: codes, description and names of the goods.
3.2) The customs authorities shall formulate and
adjust the List of exported goods posing risk of values and reference prices
according to the collected information mentioned in Clause 2 this Article.
3.3) The customs authorities compare and verify
the prices declared by the customs declarants, determine the suspicious signs
and hold discussion during the implementation of customs procedures or after
the goods have been granted customs clearance under the regulations according
to the List of exported goods posing risk of values and reference prices. The
List of exported goods posing risk of values and reference prices are not used
for imposing dutiable values. They are internally circulated and consistently
used among customs authorities.
4) The List of exported goods posing risk of
values and enclosed reference prices shall be formulated and adjusted
biannually or if necessary after considering:
4.1) Requests of the Ministries, regulatory authorities,
Associations, organizations and individuals;
4.2) Recommendations of the Customs Departments
of provinces and units affiliated to the General Department of Customs.
5) Entitlement to formulation and adjustment to
goods in the List of exported goods posing risk of values and enclosed
reference prices:
5.1) Responsibilities of the Directors of the
Customs Departments of provinces:
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5.1.2) According to the inspection result of
dossiers, actual inspection goods result, verification result, discussion
result, determination of values, result of post-clearance inspection, result of
anti-smuggling inspection, turnover, export tax, smuggling and commercial
fraud, request the General Department of Customs to:
5.1.2.1) Supplement the reference prices according
to the principles prescribed in Point 3.2 Clause 3 this Article regarding the
exported goods in the List of exported goods posing risk of values without
reference prices using the form 7 enclosed with this Circular based on the
collected information mentioned in Clause 2 (except for Point 2.1.8) this
Article.
5.1.2.2) Adjust the reference prices according
to the principles prescribed in Point 3.2 Clause 3 this Article when the
declared prices decrease or increase by more than 10% compared with the reference
prices in the List of exported goods posing risk of values using the form 8
enclose with this Circular, based on the collected information mentioned in
Clause 2 (except for Point 2.1.8) this Article.
5.1.2.3) Add more goods to the List of exported
goods posing risk of values and reference prices according to the principles
prescribed in Clause 3 this Article regarding exported goods satisfying one of
the criteria prescribed in Clause 1 this Article but having not been listed
using the form 7 enclosed herewith, based on the collected information
mentioned in Clause 2 (except for Point 2.1.8) this Article.
5.2) Responsibilities of the General Department
of Customs: the Director of the General Department of Customs shall formulate
and adjust the List of exported goods posing risk of values and enclosed
reference prices according to: Criteria prescribed in Clause 1 this Circular,
information mentioned in Article 8 of the Circular No. 175/2013/TT-BTC and
Clause 2 this Article, regulations on compilation and management of List of
risks to exported goods prescribed in Article 21 of the Circular No. 175/2013
/TT-BTC.”
6. Amendments to Article 24:
“Article 24. Inspection and processing of
inspection results of dutiable values of imported goods
1) Inspection contents:
a.1) Inspecting information in
the declaration: inspecting the criteria in the customs declaration and
declaration of values made by the importer in which these criteria are
important:
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Example: Motorcycles and automobiles require the
information about the seats, trademark, brand names, manufacturers, countries
in which they are made, design, model, code, cylinder capacity.
a.2) Units: must be specified according to units
of measurement conformable with the nature of goods (such as: meter, kilogram).
The units that are not specified (such as box, can) must be converted (such as:
the number of cans in a box, weight of each can). The units must conform to the
units of goods having the same code prescribed in Circular No. 156/2011/TT-BTC
of the Ministry of Finance on the promulgation of List of imported and exported
in Vietnam dated November 14, 2011.
a.3) If the names of goods and units are not
specific, clear or specified as prescribed in the abovementioned regulations,
the customs declarants must give more specific information about the goods. Any
customs declarant that fails to give sufficient information as required by
customs authorities shall be penalized in accordance with the regulations in
Point a.1 Clause 2 this Article.
b) Inspecting the accuracy of documents (such as
calculation); the agreement among the papers in the customs dossiers (such as
comparing the clauses in the contract); comparing the invoices with the contracts
for goods trading; comparing the contents in the value declaration with the
relevant corresponding documents in the customs dossiers.
c) Inspecting the conformity of documents
related to the determination of dutiable values.
d) Inspecting the adherence to the principles
and methods of determining dutiable values prescribed in Decree No.
40/2007/ND-CP, Circular No. 205/2010/TT-BTC and this Circular; requirements for
application, procedure steps of methods of determining declared values
e) Inspecting declared values:
the customs authorities shall compare the declared values with the database of
prices at the time for value inspection.
The database of values used for inspecting the
values contains the data on values that are collected, updated and used in
accordance with the Regulation on establishment, management and use of database
of values.
2) Processing inspection results:
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a.1) The customs declarants fail to clarify the
information about the order forms and units.
a.2) There is disagreement among the papers in
customs dossiers given by customs declarants to customs authorities and there
are proofs of the falsification of declaration made by the customs declarants;
Example: There are differences between the
description of goods in the invoices and contracts for goods trading.
a.3) The customs dossiers do not conform to the
relevant documents;
a.4) The declared information related to
transaction is insufficient, which affects the values (e.g: the added or deducted
amounts, requirements for making decision and special relationships are not
declared);
a.5) The principles, procedures and contents of
the methods of determining dutiable values are not applied in accordance with
the regulations in the Circular No. 205/2010/TT-BTC;
a.6) One of requirements for employing methods
of determining dutiable values prescribed in the Circular No. 205/2010/TT-BTC
is not satisfied;
Example: The customs declarants do not satisfy
the requirements for making decision about or use of goods after they are
imported when employing the transaction value method; do not satisfy the
requirement for time when selecting identical or similar goods in case of
employing the transaction value method of identical imported goods or transaction
value method of similar imported goods.
b) Deal with suspected cases:
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b.2) If there are
suspicious signs about the prices except for the suspicious signs mentioned in
Point b.4.7 whether there are suspicions about documents and procedures:
b.2.1) With regard to the goods in the List of
exported goods posing risk of values and import or export enterprises
classified as very high-risk enterprises or conducting import and export
operation less than 365 days as prescribed in Article 18 Circular No.
175/2013/TT-BTC: the customs authorities shall notify the customs declarants of
suspicious signs of the declared prices, methods, prices determined by customs
authorities according to the Notification of suspicious signs of declared
prices (form 1 enclosed herewith).
b.2.1.1) If the customs declarants agree with
the prices and methods determined by the customs authorities according to the
Notification of suspicious signs of declared prices, the customs authorities
shall give the Notification of value determination (form 4 enclose herewith),
impose tax according to the determined prices and specify that in the customs
declaration.
b.2.1.2) If the customs declarants disagree
about the prices and methods determined by customs authorities, it is required
to write “Dề nghị tham vấn” (request for discussion) and time for discussion in
the Notification of suspicious signs of declared prices. The customs declarants
can ask for discussion in accordance with the regulations in Clause 3 this
Article and pay the deposit in accordance with the regulations in Clause 3.2
and Clause 4 Article 25 of the Circular No. 205/2010/TT-BTC.
The customs authorities shall notify the customs
declarants of the deposit and prices to calculate the deposit according to the
principles and method of determining dutiable values prescribed in Decree No.
40/2007/ND-CP, Circular No. 205/2010/TT-BTC and written on the Notification of
determination of deposit (form 2 enclosed herewith).
b.2.2) With regard to the
goods in the List of exported goods posing risk of values and the import or
export enterprises are not classified as very high-risk enterprises or
enterprises conducting import or export operation less than 365 days in
accordance with the regulations in Article 18 of the Circular No.
175/2013/TT-BTC, and pay the tax according to the declared prices, such good
shall be granted customs clearance. However, the customs authorities must
transfer the documents and the suspicious signs for consideration in accordance
with the regulations in Article 27 of this Circular.
b.2.3) With regard to
goods not included in the List of exported goods posing risk of values and the
customs declarants have pay the tax according to the declared prices, such
goods shall be granted customs clearance. However, the customs authorities must
transfer the documents and suspicious signs for consideration in accordance
with the regulations in Article 27 this Circular.
b.3) If there are
suspicious signs of the prices prescribed in Point b.4.7 and whether there are
disagreement about the documents and procedures and the customs declarants have
paid the tax according to the declared prices, the goods shall be granted
customs clearance. However, the customs authorities must transfer the documents
and suspicious signs for consideration in accordance with the regulations in
Article 27 of this Circular.
b.4) Imported goods that are considered to have
suspicion about the prices when:
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b.4.2) The declared prices of the imported goods
are lower than the minimum taxable prices of identical or similar goods
determined by the customs authorities or lower than the minimum declared prices
of the identical or similar goods (do not compare with the suspected
consignments) that are granted customs clearance according to the declared
prices.
The identical or similar goods with which are
compared are the goods exported to Vietnam on the same day or within 60 days
before or after the goods whose values are inspected are exported. If the
identical or similar goods cannot be found in the abovementioned duration, such
duration shall be extended up to 90 days before or after the goods whose values
are inspected are exported.
b.4.3) The declared prices of imported goods is
lower than or equal to the declared prices of the spare parts of imported goods
of the same type; or lower or equal to the declared prices of raw material of
which the imported finished goods are made when they are in the same trading
conditions with the consignments whose values are inspected.
The duration of selection of data must comply
with the regulations in Point b.4.2.
b.4.4) The declared prices of the imported goods
are lower than the prices collected by the customs authorities from information
resources in accordance with the regulations in Clause 2 Article 23 this
Circular when they are in the same trading conditions with the consignments
whose values are inspected.
b.4.5) The declared discounted prices of
discounted imported goods are lower than the prices of identical or similar
goods in the database of prices.
b.4.6) If the similar or identical goods cannot
be found as prescribed in Circular No. 205/2010/TT-BTC for comparison and
inspection, these following regulations shall apply:
b.4.6.1) Imported multifunctional goods can be
compared with the goods of the same type having one basic feature in the
database of prices.
b.4.6.2) Imported goods of higher standard can
be compared with the goods of the same type of lower standard in the database
of prices.
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The duration of selection of data must comply
with the regulations in Point b.4.2.
b.4.7) The declared prices of imported goods are
at least 15% higher than the prices in the database of prices.
The duration of selection of data must comply
with the regulations in Point b.4.2.
c) Customs clearance shall be granted according to
the declared prices after the customs declarants have paid the tax regarding
cases other than cases prescribed in Point 2a and Point 2b. The customs
authorities shall conduct post-customs clearance inspections in accordance with
the regulations.
3) Discussion:
3.1) Cases requiring
discussion: when there are suspicions about the declared prices but the customs
declarants have not agreed with the prices and methods of determination of
dutiable tax that are determined by the customs authorities as prescribed in
Point b.2.1.2 Clause 2 this Article.
The Director of Customs Departments of provinces
shall hold discussion regarding goods in the List of exported goods posing risk
of values if there are suspicions about prices but the declared prices is at
most 10% lower than the prices in the database of prices at the time for
inspection.
3.2) Type of discussion: direct discussion.
3.3) Discussion competence”
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3.3.2) The Directors of Customs Departments of
provinces shall authorize the Directors of Customs Sub-Departments to hold
discussion regarding the goods subject to discussion provided that requirements
for result of discussion and value determination are satisfied at the
Sub-Departments according to actual conditions, management competence and
distance between Sub-Departments and Departments.
3.4) Preparation for discussion:
3.4.1) Customs declarants shall: prepare
dossiers and documents as prescribed in Article 12 Circular No.
128/2013/TT-BTC, and information to clarify the accuracy of declared prices.
Assign competent representatives to decide the contents related to the
determination of dutiable values or authorized persons to join in the
discussion at the time prescribed in the Notification of suspicious signs of
declared prices.
3.4.2) The customs
authorities shall: hold the discussion at the time required by the customs
declarants and prepare the information to clarify the suspicious signs in the
discussion.
3.5) Holding discussion:
The enterprises shall explain the contents
related to the declaration of import transaction, declared prices, basis and
methods of determination of dutiable values of the enterprises according to their
documents and information.
The customs authorities shall clarify the
suspicious signs of the documents and declared prices. The questions and
feedback during the discussion must be written in the discussion record. The
customs authorities shall decide “mức giá tính thuế theo mức giá khai
báo” (taxable prices according to declared prices) or “bác bỏ mức giá khai
báo” (reject declared prices) and write the taxable prices in the discussion
record. Enterprises participating in discussion shall write the conclusion of
the taxable prices determined by customs authority on the discussion record.
The parties involved in the discussion must sign on the discussion record.
3.6) Deadline for discussion and determination
of dutiable values: at most 30 days from the registration of declaration.
3.7) Processing
discussion result:
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a) The customs authorities find disagreement
among documents and procedures during the discussion.
b) The customs declarants declare inaccurate
information related to the determination of dutiable values which are:
b.1) Information collected by customs
authorities that prove the inaccuracy of the declared values.
b.2) Inaccurate information provided by
declarants, forged or illegal documents.
3.7.2) The customs authorities shall write “mức
giá tính thuế theo mức giá khai báo” (taxable prices according to
declared prices) on the discussion record, give Notification of dutiable values
and transfer the documents and suspicious signs for consideration in accordance
with the regulations in Article 27 this Circular if:
a) Customs authorities do not have sufficient
bases for rejecting the declared prices or have sufficient bases but the
customs declarants do not agree with the dutiable values determined by the
customs authorities;
b) The declarants do not attend the discussion
at the time prescribed in the Notification of suspicious signs of declared
prices.
c) The declarants cannot provide information and
documents as required by the customs authorities before the prescribed
deadline.
3.7.3) Except for cases prescribed in Point
3.7.1, and Point 3.7.2 this Clause, the customs authorities shall calculate tax
according to the declared prices and promulgate the Notification of dutiable
values.
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The tax imposition and payment for imposed tax
must comply with the instructions in the Circular No. 128/2013/TT-BTC of the
Ministry of Finance on customs procedures; customs supervision and inspection;
import tax, export tax and tax administration of imported and exported goods
dated September 10, 2013.
3.8) All of the documents and dossiers related
to the discussion must be stored together with the customs dossiers.”
7. Clause 2 Article 27 shall be amended as follows:
“Article 27. Verification of dutiable value
after goods are granted customs clearance
2) With regard to post-customs clearance
inspection force
2.1) Cases in which inspections are required:
2.1.1) At the customs authorities' offices: in
case of the customs dossiers, imported and exported goods that have been
granted customs clearance within 60 days from the day on which the goods have
been granted customs clearance to the announcement of inspection, in
particular:
a) Imported and exported goods in the List of
exported goods posing risk of values that are suspected and not subject to
discussion prescribed in Article 22 and Article 24 this Circular;
a) Imported and exported goods not in the List
of exported goods posing risk of values that are suspected.
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a) Post-customs clearance
inspections at the enterprises’ premises after Post-customs clearance
inspections are conducted at the customs authorities’ offices; in case of
suspicions about documents, dossiers or the declared prices transferred by the
units; suspicions about documents and declared prices transferred by the units
holding discussions after discussions;
b) Scheduled post-customs clearance inspections
to assess the adherence of the enterprises to the law;
c) Post-customs clearance inspections in case of
signs of violations of values that are suggested by post-customs clearance
inspections or by risk assessment of goods and import or/and export
enterprises;
d) Post-customs clearance inspections of values
under direction of the Heads of superior customs authorities.
2.2) Inspection principles: the objects, scale,
contends and methods shall be selected according to the methods of risk
management.
2.3) Verification of values:
2.3.1) Verification of values of exported goods:
2.3.1.1) At customs authorities’ offices:
a) Contents: comply with the regulations in
Clause 1 Article 22 of this Circular.
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After an inspection, more than one inspector
must file an inspection record according to the cooperation between the customs
authority and enterprise, the explanation provided by the enterprise and data
on prices. If an enterprise refuses to sign the inspection record, the persons
filing the inspection record must specify the reason for such refusal.
3.7) Processing inspection results:
b.1) The dutiable values of exported goods shall
be rejected if after the inspection the customs authorities find out one of
these following violations:
b.1.1) There are disagreements among documents
and dossiers such as: disagreement among contents in the contracts for goods
trading; disagreement among documents in the customs dossiers; disagreement
between customs dossiers and relevant documents and dossiers;
b.1.2) The customs dossiers and documents are
illegal;
b.1.3) The information that the customs
authorities collect by professional methods proves that the declared prices of
exported goods are inaccurate;
b.1.4) The enterprises do not come to give
explanation, do not give explanation or cannot give explanation for the
suspicions of the customs authorities (such as the reasonableness of dossiers;
the reasonableness of the declared prices and prices of identical or similar
exported goods; the disagreement between the explanations of the enterprises
and the customs dossiers) before the deadline for explanation;
b.1.5) The enterprises cannot provide sufficient
documents and dossiers at the request of the customs authorities before the
deadline.
b.2) The customs authorities shall determine the
dutiable values according to the principles, methods of determination of
dutiable values prescribed in the Decree No. 40/2007/ND-CP, Circular No.
205/2010/TT-BTC and the latest information from the registration of export
declaration of goods whose values are determines among the information sources
mentioned in Clause 2 (except for Point 2.1.8) Article 21 of this Circular. The
determined values must not be lower than the reference prices in the List of
exported goods posing risk of values. If more than one value of identical or
similar of an exported good are determined, the taxable price shall be with the
lowest taxable price of the identical or similar good in the same trading
condition.
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Cases in which there are suspicions about the
declared prices, dossiers and documents; disagreement about the results of the
inspections conducted by the customs authorities, the post-customs clearance
inspections shall be conducted at the enterprises’ premises.
2.3.1.2) At enterprises’ premises:
a) Inspection contents:
The post-clearance force shall request the
enterprises to provide relevant documents and clarify the contents related to
the declaration of prices of exported goods according to the available
dossiers, documents and information.
a.1) Compare the declared prices with the
reference prices in the List of exported goods posing risk of values;
a.2) Check the suitability among the contents in
the contracts for goods trading;
a.3) Check the correspondence among the
documents in the customs dossiers, between the customs dossiers and relevant
documents (such as accounting documents, documents provided by other entities;
documents collected by the customs authorities).
b) Processing inspection results:
b.1) The dutiable values of exported goods shall
be rejected if after the inspection the customs authorities find out one of
these following violations:
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b.1.2) There are disagreements among documents
and dossiers such as: disagreement among documents in the customs dossiers;
disagreement between customs dossiers and relevant documents and dossiers;
b.1.3) The customs dossiers and documents are
illegal;
b.1.4) There are insufficient dossiers and
documents as required by the customs authorities during the inspection.
b.2) The customs authorities shall determine the
dutiable values according to the principles, methods of determination of
dutiable values prescribed in the Decree No. 40/2007/ND-CP, Circular No.
205/2010/TT-BTC and the latest information from the registration of export
declaration of goods whose values are determines among the information sources
mentioned in Clause 2 (except for Point 2.1.8) Article 21 of this Circular. The
determined values must not be lower than the reference prices in the List of
exported goods posing risk of values. If more than one value of identical or
similar of an exported good are determined, the taxable price shall be with the
lowest taxable price of the identical or similar good in the same trading
condition.
2.3.2) Verification of values of imported goods:
2.3.2.1) At customs authorities’ offices:
a) Inspection contents:
The post-clearance force shall request the
enterprises to provide relevant documents and clarify the contents related to
the declaration of values such as factors of import; declared prices; methods
of determining dutiable values employed by the enterprises according to the
available dossiers, documents and information.
The suspicions about documents and declared
prices must be clarified. The inspection contents must be written precisely on
the inspection records.
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b) Processing inspection results:
b.1) The declared prices shall be rejected and
the dutiable values shall be determined if:
b.1.1) Any disagreement among documents and
customs dossiers is detected during the inspection in accordance with the
regulations in point a Clause 2 Article 24 of this Circular;
b.1.2) The enterprises declare inaccurate
information related to the determination of dutiable values:
b.1.2.1) The exporters or representatives of the
exporters have evidence confirming that the declared prices are different from
the actual prices;
b.1.2.2) The information that the customs
authority collects by other professional methods proves that the transaction
values are inaccurate;
b.1.2.3) The information provided by the
enterprises is inaccurate, documents are fake or illegal.
b.1.3) The enterprises cannot explain the
accuracy of the contents related to the determination of dutiable values:
b.1.3.1) The enterprises do not come to give
explanation by the deadline for explanation;
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b.1.3.3) The enterprises cannot give explanation
for the suspicions of the customs authorities (such as: the reasonableness of
the documents; the declared prices or special relation affecting the transaction
value; the disagreement between the feedback of the enterprises and the customs
dossiers; the disagreement among documents and dossiers declared or presented
by the enterprises; the reasonableness of the declared prices in proportion
with the price of identical or similar goods in the database of prices).
The customs authorities shall employ the methods
of determining dutiable values in accordance with the regulations from Article
13 to Article 19 Section II Chapter II of the Circular No. 205/2010/TT-BTC.
b.2) The prices declared by the customs
declarants shall be accepted if the inspection results are different from the
cases mentioned in Point b.1 this Clause.
b.3) Cases in which there are suspicions about
the declared prices, dossiers and documents; there are disagreements about the
results of the inspections conducted by the customs authorities, the
post-customs clearance inspections shall be conducted at the enterprises’
premises.
2.3.2.2) Inspection at enterprises’ premises:
a) Inspection contents:
a.1) Inspecting the accuracy of information in
the declaration: inspecting the criteria in the customs declaration and
declaration of value such as name of goods and unit price. This inspection must
comply with the regulations in Point a Clause 1 Article 24 of this Circular;
a.2) Inspecting the accuracy of the documents
such as the calculation; inspecting the correspondence among the proofs in
customs dossiers, between customs dossiers and accounting dossiers; between
customs dossiers and documents related to the determination of dutiable values
(such as: accounting documents, documents provided by other entities, documents
collected by customs authorities);
a.3) Inspecting the accuracy of the payment for
values of imported goods such as: correspondence between the accounting
documents, bank documents and the contracts, invoices and other payment
documents;
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a.5) Inspecting and comparing the declared
prices with the prices at the time for inspection, with the declared prices of
similar or identical goods that are approved by the customs authorities.
a.6) Inspecting other issues.
b) The result of the inspection shall be handled
in accordance with the regulations in point a Clause 2 Article 24 and
regulations in Point 2.3.2.1.bi and Point 2.3.2.1.b2 this Article.
c) The customs authorities shall employ the
methods of determining dutiable values in accordance with the regulations from
Article 13 to Article 19 Section II Chapter II of Circular No. 205/2010/TT-BTC.
Post-customs clearance inspections of imported
and exported goods shall be conducted in accordance with the regulations on
post-customs clearance inspections and regulations on the determination of
dutiable values.”
8. Replacement of terms and forms in Circular
No. 205/2010/TT-BTC:
8.1) Exported goods: the term “Danh mục quản
lý rủi ro hàng hóa xuất khẩu về giá cấp Cục” shall be replaced with
“Danh mục hàng hóa xuất khẩu rủi ro về trị giá”;
8.2) Imported goods: the terms “Danh mục quản
lý rủi ro hàng hóa nhập khẩu về giá cấp Cục” and “Danh mục quản lý
rủi ro hàng hóa nhập khẩu về giá cấp Tổng cục” shall be replaced with
“Danh mục hàng hóa nhập khẩu rủi ro về trị giá”;
8.3) The forms 1, 2 and 4 enclosed with the
Circular No. 205/2010/TT-BTC shall be replaced with the forms 1, 2 and 4
enclosed with this Circular which are applied to imported and exported goods.
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1. This Circular shall become effective from
April 12, 2014.
The Article 26, Point 2.2 Clause 2 Article 10 of
the Circular No. 205/2010/TT-BTC and form 3 enclosed with the Circular No.205/2010/TT-BTC
shall be annulled.
2. Regulations on deadline for paying tax
prescribed in Clause 2 Article 4, Clause 1 Article 11, Points 1.2.5.4 and 1.2.6
Clause 1 Article 14 of the Circular No. 205/2010/TT-BTC dated December 15, 2010
shall be implemented according to the regulations in Article 20 of the Circular
No. 128/2013/TT-BTC dated September 10, 2013; The prior customs valuation of
imported and exported goods must comply with the regulations in the Law on the
amendments to the Law on Tax administration, the Decree No. 83/2013/ND-CP dated
July 22, 2013 and Circular No. 128/2013/TT-BTC dated September 10, 2013.
3. The examples mentioned in this Circular shall
only illustrate a specific case.
4. The customs authorities, customs declarants,
taxpayers and relevant entities shall inspect and determine the dutiable values
according to the regulations in the Decree No. 40/2007/ND-CP dated March 16,
2007, Circular No. 205/2010/TT-BTC dated December 15, 2010 and this Circular.
Any difficulty or obstacle that arises during the implementation of this
Circular should be reported to the Ministry of Finance( General Department of
Customs) for consideration./
P.P MINISTER
DEPUTY MINISTER
Do Hoang Anh Tuan
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