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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. 193/2009/TT-BTC
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Hanoi, October 01, 2009
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CIRCULAR
DETAILING THE GOVERNMENT'S DECREE NO.
97/2007/ND-CP OF JUNE 7, 2007, STIPULATING THE HANDLING OF ADMINISTRATIVE
VIOLATIONS AND ENFORCEMENT OF ADMINISTRATIVE DECISIONS IN THE CUSTOMS DOMAIN,
AND THE GOVERNMENT'S DECREE NO. 18/2009/ND-CP OF FEBRUARY 18,2009, AMENDING AND
SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE NO. 97/2007/ND-CP
Pursuant to the June 29, 2001
Customs Law and the June 14, 2005 Law Amending and Supplementing a Number of
Articles of the Customs Law;
Pursuant to the November 29, 2006 Tax Administration Law;
Pursuant to the National Assembly Standing Committee's July 2, 2002 Ordinance
on Handling of Administrative Violations and April 2, 2008 Ordinance Amending
and Supplementing a Number of Articles of the Ordinance on Handling of
Administrative Violations; the Government's Decree No. 128/2008/ND-CP of
December 16, 2008, detailing a number of articles of the July 2, 2002 Ordinance
on Handling of Administrative Violations and April 2, 2008 Ordinance Amending
and Supplementing a Number of Articles of the Ordinance on Handling of
Administrative Violations;
Pursuant to the Government's Decree No. 37/2005/ND-CP of March 18, 2005,
stipulating procedures for applying measures to enforce decisions on
sanctioning administrative violations;
Pursuant to the Government's Decree No. 97/2007/ND-CP of June 7, 2007,
stipulating the handling of administrative violations and enforcement of
administrative decisions in the customs domain and the Government's Decree No.
18/2009/ND-CP of February 18, 2009, amending and supplementing a number of
articles of Decree No. 97/2007/ND-CP;
Pursuant to the Government's Decree No. 98/2007/ND-CP of June 7, 2007,
stipulating the handling of tax-law violations and enforcement of tax
administrative decisions, and the Government's Decree No. 13/2009/ND-CP of
February 13, 2009, amending and supplementing a number of articles of Decree
No. 98/2007/ND-CP;
Pursuant to the Government's Decree No. 118/2008/ND-CPof November 27, 2008,
defining the functions, tasks, powers and organizational structure of the Ministry
of Finance,
The Ministry of Finance provides in detail for the handling of administrative
violations and enforcement of administrative decisions in the customs domain as
follows:
Chapter I
HANDLING OF
CUSTOMS-RELATED ADMINISTRATIVE VIOLATIONS
Section 1.
GENERAL PROVISIONS
Article 1.
Administrative violations in the customs domain
Administrative violations in the
customs domain are acts intentionally or unintentionally committed by
individuals or organizations in violation of regulations on the state
management of customs (including taxation on imports and exports) which are not
serious enough for penal liability examination but are subject to
administrative sanction under the Decree on handling of administrative
violations and enforcement of administrative decisions in the customs domain.
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1. The sanctioning of
administrative violations, application of sanctioning forms, consequence
remedies, application of measures to prevent administrative violations and assure
sanctioning of administrative violations in the customs domain must comply with
the principles, order, procedures and competence prescribed in the Tax
Administration Law. the Ordinance on Handling of Administrative Violations, the
Government's Decree No. 128/2008/ND-CP of December 16, 2008, detailing a number
of articles of the 2002 Ordinance on Handling of Administrative Violations and
the 2008 Ordinance Amending and Supplementing a Number of Articles of the
Ordinance on Handling of Administrative Violations; the Government's Decree No.
97/2007/ND-CP of June 7, 2007, stipulating the handling of administrative
violations and the enforcement of administrative decisions in the customs
domain, and the Government's Decree No. 18/2009/ND-CP of February 18.2009,
amending and supplementing a number of articles of Decree No. 97/2007/ND-CP
(below referred to as the Decree).
2. The application of
regulations to sanctioning administrative violations in the customs domain
complies with the provisions of Article 83 of the 2008 Law on Promulgation of
Legal Documents; Clause 3, Article 55 of Decree No. 97/2007/ND-CP of June 7,
2007; and Clause 2, Article 2 of Decree No. 18/2009/ND-CP of February 18, 2009.
Article 3.
Application of principles on sanctioning of administrative violations
1. Individuals and organizations
committing acts in violation of regulations on the state management of customs
shall be sanctioned under the Decree stipulating the handling of administrative
violations and enforcement of administrative decisions in the customs domain or
government decrees on sanctioning of administrative violations related to the
customs domain.
Individuals and organizations
that have committed acts of administrative violation but refuse to receive
goods must still be responsible for their committed acts.
2. When issuing sanctioning
decisions against violators, persons with sanctioning competence shall base
themselves on the nature and severity of violation, extenuating and aggravating
circumstances specified in Articles 8 and 9 of the Ordinance on Handling of
Administrative Violations; Article 6 of Decree No. 128/2008/ ND-CP of December
16, 2008: Articles 3 and 4 of the Decree, and the following
specific-provisions:
a/ An act of violation committed
by the same individual or organization at a time with respect to many
declaration forms or contracts shall be sanctioned only once and subject to the
aggravating circumstance of "committing a violation more than once in the
same domain.''
In case a violator has been
sanctioned for an act of violation but, within one year after completely
serving the sanctioning decision or after the expiration of the statute of
limitations for implementing sanctioning decisions, relapses into committing it
with respect to another goods lot, he/she/it will be sanctioned with the
aggravating circumstance of recidivism under Clause 3, Article 6 of Decree No.
128/2008/ND-CP of December 16, 2008;
b/ First-time violation in the
customs domain referred to in Clause 1, Article 3 of the Decree is the case in
which an individual or organization that has never been sanctioned for an
administrative violation in the customs domain or had been sanctioned for an
administrative violation and completely served the sanctioning decision one
year or more ago or does not commit recidivism after the expiration of the
statute of limitations for sanctioning decisions.
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Article 4.
Cases not subject to customs-related administrative sanction
The application of cases not
subject to customs-related administrative sanction under Article 7 of the
Decree is as follows:
1. Goods and means of transport
brought into Vietnam due to fire, natural disaster, enemy sabotage, unexpected
event or in urgent circumstances which are subject to declaration and have been
declared to customs offices, other competent agencies or local administrations
under law.
In case of non-declaration, they
shall be handled under current law.
2. Notification of errors
referred to in Clause 3, Article 7 of the Decree, which is made in writing by
consignors, consignees or lawful representatives clearly stating the reason,
and addressed to customs offices and enclosed with documents related to such
errors before customs offices conduct physical inspection of goods or decide on
exemption from physical inspection of goods, and accepted by heads of customs
offices that receive and process customs dossiers.
If there are grounds for
ascertaining the collusion between consignor, consignee and/or carrier for the
purpose of tax evasion, illegal border-cross transportation of goods or
smuggling, customs offices have the right to refuse to accept errors.
3. Point b. Clause 4. Article 7
of the Decree applies to cases specified at Point c, Clause 1, Article 12 of
the Ministry of Finance's Circular No. 79/2009/TT-BTC of April 20, 2009,
guiding customs procedures, customs inspection and supervision: import and
export duties and tax management of imports and exports.
4. For cases specified in
Clauses 5, 6 and 8, Article 7 of the Decree:
a/ At the time of detecting an
act of violation, if having sufficient grounds for ascertaining that the case
is not subject to sanction, the person with sanctioning competence shall only
certify the dossier filing;
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c/ Acts in violation of tax law
related to imports and exports specified in Clause 5, Article 7 of the Decree
include acts specified in Clause 4, Article 9 and Clauses 1 and 2, Article 14
of the Decree.
5. The case specified in Clause
7. Article 7 of the Decree:
a/ The customs declarant
declares a wrong tax identification number or tax rate for the first time, the
customs office guides the declaration of the correct tax identification number
or tax rate, makes a written certification record and imposes no sanction.
b/ Declaration of a wrong tax
identification number or tax rate shall be regarded as first time when fully
meeting the following conditions:
b.1. The declarant imports or
exports no goods within one year (up to the date of registration of the customs
declaration for the importation or exportation of the goods lot for which a
wrong tax identification number or tax rate is declared) or has imported or
exported such goods but declared a wrong tax identification number or tax rate,
which has not yet been detected;
b.2. The customs office has not
yet provided any guidance on the declaration of tax identification number or
the tax rate of this goods or has provided incorrect guidance.
Article 5. Valuation
of violating goods and material evidence for determining fines and the
sanctioning competence
1. For material evidence and
means which are not subject to confiscation, the value of such material
evidence and means is their customs value, which has been determined under
customs valuation regulations at the time of making violation records; if they
are foreign currencies, exchange rates shall be determined under the Ministry
of Finance's guiding documents on customs procedures, customs inspection and
supervision; import and export duties and tax management of imports and
exports.
2. For violating goods, material
evidence and means subject to confiscation, depending on each specific kind
thereof, their value shall be determined based on the grounds stated in Clause
2, Article 36a of the Decree and Article 34 of the Government's Decree No.
128/2008/ND-CP of December 16, 2008.
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Article 6.
Handling of violating goods and means not subject to confiscation
1. If temporarily seized goods
are not subject to confiscation, the person having issued the seizure decision
shall issue a decision to return them.
2. Returned goods are allowed to
go through customs procedures according to regulations; if they are liable to
import or export duty and other related taxes, such duty and taxes shall be
paid according to regulations.
Article 7.
Calculation of time limits and statutes of limitations
1. Time limits and statutes of
limitations prescribed in the Ordinance on Handling of Administrative
Violations which are stipulated in months or years shall be counted in calendar
months and years, including weekends and holidays prescribed in the Labor Code.
2. Time limits in the Ordinance
on Handling of Administrative Violations which are stipulated in days shall be
counted in working days, excluding weekends and holidays prescribed in the
Labor Code.
Section 2.
APPLICATION OF SANCTIONING FORMS AND LEVELS
Article 8.
Violations of the provisions of Article 8 of the Decree on time limits for
carrying out customs procedures and submitting tax dossiers
1. The lime limit for carrying
out customs procedures in Article 8 of the Decree is that prescribed in Article
18 of the Customs Law and legal documents stipulating time limits for carrying
out customs procedures for each type of import or export.
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3. Acts of violation specified
at Points e and f. Clause 2; Points a and b. Clause 3. Article 8 of the Decree
shall be sanctioned only if permits, customs declarations or other papers as
prescribed by law set a time limit for re-import or re-export.
4. The time limit specified at
Point b. Clause
2. Article 8 of the Decree is
that for liquidation of contracts, declarations, goods, materials and supplies
prescribed in legal documents on customs.
5. The measure of "forced
re-export of goods" specified at Point a. Clause 5, Article 8 of the
Decree is applicable only to the act of "failing to re-export goods within
the prescribed time limit or the lime already registered with the customs
office" specified at Point e. Clause 2 and Point a, Clause 3, Article 8 of
the Decree.
If the act of "failing to
re-export means of transport within the prescribed time limit" specified
at Point f. Clause 2 or Point b, Clause
3. Article 8 of the Decree is
detected when the individual or organization is carrying out procedures for
re-exporting the violating means, the consequence remedy of "forced
re-export" does not need to be applied: only the principal sanction will
be indicated in the sanctioning decision and the customs office shall complete
re-export procedures for the means of transport after the sanctioning decision
is complied with.
Article 9.
Violations of the provisions of Article 9 of the Decree on customs declaration
and tax declaration
1. In case of importing goods or
articles different from those indicated in customs declarations while customs
procedures are carried out by post or express delivery enterprises on behalf of
goods owners under law, if there are no evidence of collusion between
consignor, consignee and person carrying out customs procedures for fraud
purpose, no sanction shall be imposed.
2. For acts of non-declaration
or wrong declaration of goods on the list of humanitarian or non-refundable aid
certified by the Ministry of Finance or an agency authorized by the Ministry of
Finance, sanction shall be imposed under Point c. Clause 1, Article 9 of the
Decree.
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3. In case of importing goods
different from those indicated in customs declarations which are duty-free
materials, supplies, machinery, equipment or components such as goods under
registered processing contracts, goods on the list of duty-free goods of
investment projects, sanction shall be imposed under Point a. Clause 2, Article
9 of the Decree, and such goods shall be reconciled against the contract or the
registered list; if importing goods which are not duty-free, sanction shall be
imposed under Clause 4, Article 9 of the Decree.
4. For temporarily imported or
exported goods which are different from those indicated in customs declarations
and are duty-free, sanction shall be imposed under Point b. Clause 2, Article 9
of the Decree; in case these goods are not exempt from import or export duty,
depending on the nature and severity of violation, sanction shall be imposed
either under Clause 4, Article 9 or Clause 1 or 2, Article 14 of the Decree.
5. Clause 3. Article 9 of the
Decree is applicable to the case in which customs declaration has been made and
customs procedures have been carried out but goods are not exported yet or are
exported insufficiently compared to customs declaration. This provision is not
applicable to customs declarations invalid for carrying out customs procedures
under Clause 2, Article 18 of the Customs Law.
6. Sanctioning under Clause 4,
Article 9 of the Decree is applicable to acts of violation in different types
of importation or exportation of goods resulting in tax amounts which are
smaller than payable ones or higher than amounts which are eligible for
exemption, reduction, refund or non-collection.
7. For violations of Point a.
Clause 4. Article 9 of the Decree involving a wrongly declared content which is
the consequence of an act of violation specified in Clause 1. Article 14 of the
Decree, sanction shall be imposed under Article 14 of the Decree.
8. For acts of non-declaration
or declaration of wrong names, categories, quantities, weights, quality, values
and codes, duty rates or origin of imports or exports, verification should be
conducted to clarify; if these acts do not fall into the cases specified in
Clause 1, Article 14 of the Decree, sanction shall be imposed either under
Point b or c. Clause 4, Article 9 of the Decree on a case-by-case basis.
9. For acts of declaring more
categories or larger quantities or weights than those of actually exported
goods being processed goods or products made from imported materials (including
materials and supplies re-exported and imported for production but
re-exported), resulting in a tax amount difference of under VND 50 million,
sanction shall be imposed under Point b. Clause 4, Article 9 of the Decree.
Article 10.
Violations of the provisions of Article 10 of the Decree on customs declaration
by persons on entry or exit of foreign currency, Vietnamese currency in cash or
gold (in bars, ingots, granules or pieces)
1. Violations of the provisions
of Article 10 of the Decree apply to persons who leave or enter the country
with passports, laissez passers or border identity cards and bring along
foreign currency. Vietnamese currency in cash or gold in bars, ingots, granules
or pieces and violate regulations on customs declaration when carrying out
entry or exit procedures. Other cases of bringing foreign currency, Vietnamese
currency in cash or gold across the border shall be sanctioned under Article 13
of the Decree.
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3. Person on entry or exit who
carry jewelry gold and violate regulations on customs declaration shall be
sanctioned like those carrying other imports or exports.
Article 11.
Violations of the provisions of Articles 11,12 and 13 of the Decree on customs
inspection, tax inspection, customs supervision and control
1. Point b, Clause 2, Article 11
of the Decree is applicable to cases in which the storage of samples and
dossiers and documents is required by legal documents.
2. Point c. Clause 3, Article 11
of the Decree is applicable to cases of failure to comply with requests of
customs offices in accordance with relevant legal documents for tax examination
and inspection.
3. Upon detecting violations of
Point b. Clause 4. Article 11 of the Decree, written records shall be made on
the seizure of forged customs seals or customs dossier documents. If these
documents are permits, notification shall be made to permit-granting agencies.
4. Violations of regulations on
movement of means of transport carrying goods in transit, out of port or border
gate along prescribed routes, to places or border gates of destination or
beyond time limits prescribed or registered in customs dossiers without any
explanations or with explanations rejected by leaders of district-level Customs
Departments, shall be sanctioned under Point a, Clause 1, Article 12 of the
Decree.
5. Point d. Clause 1, Article 12
of the Decree is applicable only to cases in which material evidence has not
yet been dispersed or sold out. If there remains no material evidence, sanction
shall be imposed under Points a and c, Clause 2, Article 12 of the Decree.
6. Acts of violations of Points
a and b, Clause 2, Article 13 of the Decree committed by under-14 persons shall
be recorded in writing and decisions on confiscation or destruction of material
evidence shall be issued.
7. Upon sanctioning violations
specified in Clauses 2 and 3 and Point a. Clause 4, Article 13 of the Decree,
persons with sanctioning competence defined in Clauses 2, 3 and 4. Article 28
of the Decree shall request valuation of material evidence and means in these
violations under Clause 2, Article 5 of this Circular in order to determine the
level of fine and sanctioning competence.
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1. Documents referred to at
Point a. Clause 1 of Article 14 include documents already submitted or
presented to customs offices in the course of carrying out customs procedures
and after customs clearance as bases for determining or proving payable tax
amounts.
2. "Previous
importation" referred to at Point b. Clause 1. Article 14 of the Decree is
determined as importation taking place within one year (365 days) before the
time of violation.
3. For acts of non-declaration
or declaration of wrong names, categories, quantities, weights, quality, values
and codes, duty rates or origin of imports or exports which are detected after
customs clearance of the goods, if violators fail to voluntarily pay sufficient
tax amounts or have only paid insufficient tax amounts according to regulations
before tax offices make written records on violation, they shall be sanctioned
under Point c, Clause 1, Article 14 of the Decree.
4. Violations of Point d. Clause
1. Article 14 of the Decree on management of goods in non-tariff zones apply to
cases in which at the time of customs inspection there is no goods or a smaller
quantity of goods than stated in liquidation reports or records of enterprises.
5. Violations related to exports
being processed products, products made from imported materials, including
materials and supplies processed for re-export and imported materials and
supplies for production for re-export, are specified below:
a/ In case of having carried out
export procedures but failing to export, sanction shall be imposed under Point
e, Clause 1, Article 14 of the Decree. This provision is not applicable to
cases in which completed customs declaration forms are not valid for carrying
out customs procedures under Clause 2. Article 18 of the Customs Law;
b/ In case the declared
categories, quantities or weights of exports are greater than those actually
exported, resulting in a tax amount difference of VND 50 million or more but
not to the level subject to penal liability examination, sanction shall be
imposed under Point f. Clause 1, Article 14 of the Decree.
6. Acts specified at Point m.
Clause 1. Article 14 of the Decree are applied when customs offices have
sufficient grounds for ascertaining that taxpayers clearly know that goods have
been actually exported or imported but fail to declare or make wrong
declaration for tax evasion purpose.
7. Grounds for determining
underpaid tax amounts in case of declaring insufficient tax amounts, tax
evasion and tax fraud include declarations of taxpayers and tax assessment
decisions of competent persons.
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1. Permits, conditions and technical
standards referred to in Article 16 of the Decree are those prescribed in the
Governments Decree No. 12/2006/ND-CP of January 23, 2006, its guiding documents
and other government decrees stipulating permits, conditions and technical
standards for imports and exports.
2. In case goods are on the list
of imports subject to licensing of the Ministry of Industry and Trade or the
management of a line ministry (but not on the list of banned imports) and still
within the time limit for carrying out customs procedures but their owners fail
to carry out import procedures and request permission for re-export, no
sanction shall be imposed.
3. In case imported goods and
articles violate Article 16 of the Decree but customs procedures are carried
out by post or express delivery enterprises on behalf of goods owners under
law. if consignees refuse to receive these goods and there is no ground for
ascertaining that the goods are brought into Vietnam at the request of
consignees, no sanction shall be imposed on goods consignees. Material evidence
shall be handled under Clause 2, Article 35 of the Decree.
4. The additional sanction of
deprivation of the right to use permits is applicable only to permits directly
related to goods being material evidence.
In case of depriving the right
to use a permit granted by another competent state agency, within 5 (five) days
from the date of issuing the sanctioning decision, the customs office shall
notify in writing such agency of the deprivation.
5. For violations related to import
permits and export and import conditions involving goods which are exchanged
between border inhabitants, humanitarian donations, gifts, personal belongings
and goods of persons on entry or exit; goods in transit or transported to
another border gate; temporarily imported goods for re-export, temporarily
exported goods for re-import, depending on each specific act of violation,
sanction shall be imposed under Clause 1. Clause 2 or Clause 3, Article 16 of
the Decree; in other cases, sanction shall be imposed under Clause 4, Article
16 of the Decree.
6. For violations specified at
Point c, Clause 3; Points a, b, h, Clause 4; and Point a, Clause 6, Article 16
of the Decree, if line management agencies request the violating goods to be
taken out of Vietnamese territory or be re-exported, the sanction of
confiscation of material evidence shall not be imposed but the request of the
line management agency shall be complied with.
7. For violations related to
import permits, conditions and technical conditions specified in Clause 2:
Points a and b. Clause 3; Points d and f, Clause 4, Article 16 of the Decree,
if a permit of a competent agency is obtained before the issuance of the
sanctioning decision, the additional sanction of forced taking out of Vietnam
shall not be imposed. If the sanctioning decision has been issued and the
consequence remedy of "forced taking out of Vietnam" has been applied
but within 30 days after the receipt of the sanctioning decision the line
management agency issues an import permit and the goods have not yet taken out
of Vietnam, the importation will be permitted.
Article 14.
Violations of regulations on bonded warehouses and tax suspension warehouses
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Article 15.
Handling of violations of state treasuries, commercial banks and other credit
institutions and related organizations and individuals
1. Clause 1, Article 19 of the
Decree is applicable to cases in which past 10 days after the expiration of the
time limit for deduction of money from account, the state treasury, commercial
bank or another credit institution fails to make such deduction or transfer the
whole or part of the money equal to the payable amount from the account of the
organization or individual subject to enforcement of an administrative decision
into the state budget revenue account or the custody account of the customs
office opened at the state treasury at the request of the customs office when,
at the time of receipt of the enforcement decision, there is a credit balance
on the deposit account of such organization or individual.
2. Clause 3 of Article 19 is not
applicable to organizations and individuals being taxpayers. Organizations and
individuals being taxpayers that violate regulations on provision of
information shall be sanctioned under Point b, Clause 3, Article 11 of the
Decree.
Section 3.
IMPLEMENTATION OF MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND ASSURE THE SANCTIONING
OF ADMINISTRATIVE VIOLATIONS
Article 16.
When applying the measure of detaining persons according to administrative
procedures, the following principles must be adhered to:
1. Only competent persons
defined in Article 23 of the Decree may issue decisions on detention of persons
according to administrative procedures.
2. To detain a person, there
must be a written decision a copy of which shall be given to the detainee.
3. Detention of a person
according to administrative procedures may be effected only when it is
necessary to immediately prevent or stop acts of disturbing order in the area
of customs operation or injuring a customs officer on duty or to collect and
verify important or complicated circumstances related to an act of violation
for use as a basis for issuing an administrative sanction decision or assuring
the handling of the violator.
4. Detention of a person must
comply with the Regulation on detention of persons according to administrative
procedures issued together with the Government's Decree No. 162/2004/ND-CP of
September 7, 2004, Decree No. 19/2009/ND-CP of February 19, 2009, amending and
supplementing a number of articles of the Regulation on detention of persons
according to administrative procedures issued together with the Government's
Decree No. 162/2004/ND-CP of September 7. 2004. and the Ministry of Public
Security's Circular No. 26/2007/TT-BCA of November 15,2007, guiding a number of
articles of the Regulation on detention of persons according to administrative
procedures issued together with the Government's Decree No. 162/ 2004/ND-CP of
September 7, 2004.
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1. When applying the measure of
temporarily seizing documents, material evidence and means in administrative
violation, the provisions of Article 24 of the Decree shall be complied with.
Customs procedures for imports
and exports, goods in transit, means of transport on entry, exit or in transit
which are not subject to temporary seizure comply with current law.
2. If there are grounds to
believe that unless they are immediately seized, material evidence and means in
administrative violation may be dispersed or destroyed, the immediate superior
of the customs officer may issue a decision to temporarily seize material
evidence and means in administrative violation. Within 24 hours after issuing
the decision, the issuer shall report to his/her superior who is one of the
persons competent to temporarily seize material evidence and means in
administrative violation defined in Clause 1, Article 24 of the Decree for
written approval. Without such written approval, the issuer shall immediately
cancel the temporary seizure decision and return the seized articles, money,
goods or means.
3. In case of post-customs
clearance inspection at the head office of a taxpayer or tax inspection, if
signs of tax evasion or fraud are detected, the General Director of Customs,
the director of the Post-Customs Clearance Inspection Department of the General
Department of Customs, directors of provincial-level Customs Departments,
directors of district-level Customs Departments or heads of tax inspection
teams may decide to temporarily seize documents, material evidence or means in
administrative violation.
Article 18.
Body search according to administrative procedures
The competence to conduct and
order of conducting body search according to administrative procedures must
satisfy the conditions specified in Article 25 of the Decree.
Article 19.
Search of means of transport and articles according to administrative
procedures
1. The competence to conduct and
order of searching means of transport and articles according to administrative
procedures must satisfy the conditions specified in Article 26 of the Decree.
2. Search of means of transport
and articles of those entitled to diplomatic privileges and immunities and
consular immunities must comply with the provisions of treaties which Vietnam
has signed or acceded to and be subject to decisions of the General Director of
Customs.
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Article 20.
Search of places where documents, material evidence and means related to acts
of violation are hidden
1. Only persons who are defined
in Clause 1, Article 23 of the Decree may issue decisions to search places
where documents, material evidence and means in administrative violations are
hidden. Search of these places must comply with the provisions of Article 49 of
the Ordinance on Handling of Administrative Violations and Article 27 of the
Decree.
2. If, through post-customs
clearance inspection at the head office of a taxpayer or tax inspection, signs
of tax evasion or fraud are detected, the General Director of Customs, the
director of the Post-Customs Clearance Inspection Department of the General
Department of Customs, directors of provincial-level Customs Departments or
directors of district-level Customs Departments may decide to search places
where documents, material evidence or means in administrative violation are
hidden.
Section 4.
SANCTIONING COMPETENCE
Article 21.
Determination of sanctioning competence
1. The administrative
violation-sanctioning competence of customs departments at all levels
prescribed in Clauses 1, 2, 3 and 4. Article 28 of the Decree is applicable to
a single act of administrative violation. In case of imposing a fine, the
competence is based on the maximum level of the fine bracket prescribed for
each specific act of violation.
In case of sanctioning a person
for different customs-related acts of administrative violation, the sanctioning
competence is determined as follows:
a/ If the sanctioning forms and
levels prescribed for each act all fall within the competence of a sanctioning
person defined in Clause 1, 2, 3 or 4. Article 28 of the Decree, the sanctioning
competence will rest with this person;
b/ If the fine level or one of
the sanctioning forms or consequence remedies does not fall within or falls
beyond the competence of the person handling the violation case, the violation
case shall be promptly transferred to a person with sanctioning competence.
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3. For an administrative
violation with its dossier related to different customs offices, the unit that
is the first to detect and make a written record on the violation may issue a
sanctioning decision; other related units shall transfer all necessary
documents to the unit that handles the case upon request.
4. Handling of violations
related to goods transported from or to border gate:
a/ For violations related to
goods transported from or to border gate detected by border-gate district-level
Customs Departments, if these violations show criminal signs, border-gate
district-level Customs Departments shall request district-level Customs
Departments that have received customs declarations to transfer all related
dossiers for handling according to criminal procedures;
b/ If goods transported to or
from border gate are involved in administrative violations, border-gate
district-level Customs Departments shall transfer their dossiers to
district-level Customs Departments that have received customs declarations for
sanctioning according to their competence. If material evidence being goods
banned from import or hazardous waste or transmitting epidemics are detected at
border gates, district-level Customs Departments that have received their
customs declarations shall transfer their dossiers to border-gate
district-level Customs Departments for sanctioning according to their
competence;
c/ Within 5 days after issuing
handling decisions, handling units shall notify handling results to related
customs offices thereof.
5. When detecting acts of
violation in the customs domain, persons with sanctioning competence should
refer to the Penal Code to decide whether these acts are administrative
violations or crimes. If these acts show criminal signs, they shall comply with
the criminal procedure law. For signs of the crime of tax evasion, within 10
(ten) working days after detecting these signs, they shall transfer their
dossiers to competent agencies for investigation according to regulations.
6. For cases of violation
detected and seized by units of the Anti-Smuggling Investigation Department
which are liable to fine levels beyond the competence of leaders of
anti-smuggling control teams or commanders of marine control flotillas under
the Anti-Smuggling Investigation Department, the sanctioning competence shall
be decided by the director of the Anti-Smuggling Investigation Department of
the General Department of Customs.
Article 22.
Authorized handling of administrative sanctions
The authorization of holders of
posts defined in Clauses 2, 3 and 4, Article 28 of the Decree to handle
administrative violations may be allowed for deputies only. Authorization must
be made in writing. A document of authorization must indicate the scope,
content and duration of authorization. For a decision on temporary detention of
a person according to administrative procedures, authorization may be made only
when the head is absent.
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Section 5.
PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS AND IMPLEMENTING DECISIONS
ON SANCTIONING ADMINISTRATIVE VIOLATIONS
Article 23.
Issuance of sanctioning decisions
1. When sanctioning
administrative violations in the customs domain in the form of caution,
competent persons shall issue on-spot sanctioning decisions.
2. A decision on sanctioning an
administrative violation takes effect on the date of its signing, unless
another effective date is prescribed in the decision. Within 10 days after
being handed a sanctioning decision, the sanctioned individual or organization
shall abide by the sanctioning decision of a competent person.
3. A sanctioning decision shall
be issued under Article 56 of the Ordinance on Handling of Administrative
Violations and Article 23 of the Government's Decree No. 128/2008/ND-CP of
December 16, 2008.
4. The time limit for issuing a
sanctioning decision is 10 (ten) days from the date of making the written
record on the administrative violation. For an administrative violation
involving complicated circumstances, the time limit for issuing a sanctioning
decision is 30 (thirty) days from the date of making the written record on the
administrative violation. If finding it necessary to have more time for
verifying and collecting evidence for issuing a sanctioning decision, the
person with sanctioning competence shall report it in writing to his/her
immediate superior for extension permission. The extended time must not exceed
30 (thirty) days.
5. For an act of late tax
payment specified in Article 15 of the Decree, neither written record shall be
made nor sanctioning decision be issued but the taxpayer himself/herself shall
determine the fine amount to be paid for the late tax payment into the state
budget. Past 30 (thirty) days from the expiration of the time limit for tax
payment, if the taxpayer still fails to fully pay the tax amount and fine, the
competent person specified in Clause 6, Article 28 of the Decree shall issue a
notice of the tax debt and the fine for late tax payment calculated up to that
point of time, requesting the taxpayer and his/her guarantor to fully pay the
tax amount and fines into the state budget.
6. For diplomats and consular officers
who abuse their diplomatic privileges and immunities for commercial purposes
beyond their functions to commit customs-related administrative violations,
before sanctioning them, opinions should be exchanged with their diplomatic
missions.
Article 24.
Payment of fines in installments
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The customs office that decides
on the payment of a fine in installments shall calculate the interest rate for
the unpaid fine amount on the basis of the non-term interest rate of any of
state-run commercial banks operating in the locality.
The non-term interest rate is
kept unchanged from the time the sanctioning decision takes effect.
Article 25.
Management of fines collected from the sanctioning of administrative violations
All collected fines shall be
remitted into the custody account of the customs office opened at the state
treasury according to current regulations. After the expiration of the time
limit for lodging complaints or complaints have been completely settled, based
on settlement results, customs offices shall transfer these amounts from their
custody accounts into the state budget according to the State Budget Law. For
amounts collected from the handling of administrative violations in the field
of combat against smuggling, trade fraud and fake goods, they shall be dealt
with under the Ministry of Finance's Circular No. 59/ 2008/TT-BTC of July 4,
2008.
Article 26.
Exemption from administrative sanction under Article 38 of the Decree
1. Exemption from administrative
sanction may be considered only for acts of violation specified in Clause4,
Article9, Article 14, Article 15 and Article 19 of the Decree.
2. A dossier of exemption from
administrative sanction comprises:
a/ Written request for exemption
from administrative sanction, clearly stating the grounds for making the
request;
b/ Written record on the
administrative violation;
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d/ Certification by the local
administration of the details and time of occurrence of the natural disaster,
fire, unexpected accident or another force majeure event;
e/ Written record jointly made
by representatives of the damage sufferer and the local administration
determining the value of damaged property and goods, the cause of the damage
and the recoverable value of property and goods.
f/ The damage compensation
dossier accepted by an insurer for compensation (if any);
g/ The dossier defining the
compensation responsibility of organizations and individuals (if any).
3. The procedures and order for
considering exemption from administrative sanction:
a/ The dossier of request for
exemption from administrative sanction shall be submitted to the agency
competent to consider exemption from administrative sanction defined in Clause
4, Article 38 of the Decree;
b/ On the basis of the submitted
dossier and conditions for exemption from administrative sanction specified in
Clause 2, Article 38 of the Decree, the director of the provincial-level
Customs Department, the director of the Anti-Smuggling Investigation Department
or the director of the Post-Customs Clearance Department shall consider and
decide on exemption from administrative sanction.
If doubting the truthfulness of
a dossier of request for exemption from administrative sanction, examination
and verification shall be conducted before decision.
4. While exemption from
administrative sanction is under consideration, the sanctioning decision may
not be enforced.
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1. In examining a case of
violation for making decision on sanctioning, if finding that the act of
violation shows criminal signs, the case dossier shall be transferred to a competent
person for consideration and institution of a criminal case (for crimes
specified in Articles 153 and 154 of the Penal Code) or a written request
enclosed with a photocopied set of the dossier shall be sent to a criminal
procedure-conducting agency for consideration and institution of a criminal
case, for cases showing other criminal signs.
2. If the criminal
procedure-conducting agency notifies its decision to institute a criminal case,
the customs office shall transfer the original dossier of the case to the
competent procedure-conducting agency within 5 (five) working days after
receiving the notice.
3. Past 3 (three) days after the
expiration of the time limit prescribed in Article 103 of the Criminal
Procedure Code, if the customs office receives no notice of the criminal
procedure-conducting agency of whether to institute a criminal case, the person
with sanctioning competence defined in Article 28 of the Decree shall issue a
decision on sanctioning the administrative violation under law and notifies the
criminal procedure-conducting agency of its sanctioning.
The re-counting of the time
limit for issuing a sanctioning decision under Clause 4, Article 39 of the
Decree is as follows:
a/ If the case of violation had
seen an extended time limit for issuing a sanctioning decision under Clause I,
Article 56 of the Ordinance on Handling of Administrative Violations before it
was transferred to the criminal procedure-conducting agency, the time limit for
issuing a sanctioning decision is 10 days from the date of re-counting the time
limit for issuing a sanctioning decision. For a case of administrative
violation involving complicated circumstances, the time limit for issuing a
sanctioning decision is 30 days and may not be extended.
b/ If the person with
sanctioning competence had not requested for permission to extend the time
limit for sanctioning under Clause 1. Article 56 of the Ordinance on Handling
of Administrative Violations before transferring the case of violation to the
criminal procedure-conducting agency, the time limit for issuing a sanctioning
decision shall be re-counted under Clause 1. Article 56 of the Ordinance on
Handling of Administrative Violations, and may be extended under law.
Article 28.
Supervision of the taking out of Vietnamese territory or re-export of violating
goods
Violating goods forced to be
taken out of Vietnamese territory or be re-exported are subject to strict
supervision from the storage to the border gate of re-exportation. Supervision results
shall be recorded in case dossiers.
Article 29.
Handling of confiscated material evidence
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2. For material evidence
confiscated under decisions of directors of provincial, inter-provincial or
municipal Customs Departments (below referred collectively to as
provincial-level Customs Departments), the director of the Anti-Smuggling
Investigation Department, the director of the Post-Customs Clearance Inspection
Department and directors of district-level Customs Departments or customs
control teams of provincial-level Customs Departments based in provincially or
centrally run cities, they shall be handed to provincial-level auction service
centers of the places where acts of violation occur for auction.
3. For material evidence
confiscated under decisions of directors of district-level Customs Departments,
heads of customs control teams of provincial-level Customs Departments, except
the case stated in Clause 2 above; heads of anti-smuggling control teams and
commanders of marine control flotillas of the Anti-Smuggling Investigation
Department of the General Department of Customs, proposal shall be made to
chairpersons of district-level People's Committees of the places where acts of
violation occur or the agencies of the persons issuing confiscation decisions
are based to set up auction councils for auctioning the material evidence.
An auction council is composed
of a leader of the agency issuing the confiscation decision as its head, a
leader of the district-level finance agency as its deputy head and. depending
on the characteristics of each specific case, the person competent to set up
the auction council may decide to invite other members to participate in the
council.
Chapter II
ENFORCEMENT OF
ADMINISTRATIVE DECISIONS IN THE CUSTOMS DOMAIN
Article 30.
Scope of and persons subject to enforcement
1. Enforcement of an
administrative decision in the customs domain is applicable to an individual or
organization obliged to abide by an administrative decision in the customs
domain when he/she/it fails to voluntarily abide by the decision or commits an
act of dispersing property or attempts to escape after the time limit for
abiding by such decision, and enforcement measures are to be taken to assure
compliance with the administrative decision under Clause 2, Article 41 of the
Decree.
2. The application of measures
to enforce administrative decisions in the customs domain must comply with the
order, procedures and competence prescribed in the Tax Administration Law, the
Ordinance on Handling of Administrative Violations, the Government's Decree No.
37/2005/ND-CP of March 18, 2005, stipulating the procedures for applying
measures to enforce decisions on sanctioning administrative violations. Decree
No. 98/2007/ND-CP of June 7, 2007, stipulating the handling of violations of
tax laws and enforcement of tax administrative decisions, and the Decree on
sanctioning of administrative violations in the customs domain.
3. The following persons are
subject to enforcement measures:
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b/ State treasuries, banks and
other credit institutions; organizations and individuals managing salaries or
incomes of individuals forced to comply with administrative decisions, that
fail to comply with decisions on administratively sanctioning their acts of
failing to deduct money of these individuals into the state budget revenue
account or custody account of the customs office opened at the state treasury.
c/ Guarantors that fail to
fulfill their obligation to pay tax and fines for taxpayers according to
notices of customs offices when taxpayers fail to pay tax and fines;
d/ Organizations and individuals
holding money and property of taxpayers, that fail to abide by decisions on
enforcing the collection of such money and property;
e/ Related organizations and
individuals that fail to abide by customs offices' decisions on sanctioning
administrative violations.
Article 31.
Cases of issuance of enforcement decisions
1. For tax-administrative decisions
(including decisions specified at Points a, b, c and e, Clause
2, Article 41 of the Decree and sanctioning decisions specified in Clause 4,
Article 9, and Article 14 of the Decree):
a/ Past 90 (ninety) days after
the expiration of the time limit for abiding by administrative decisions in the
customs domain, individuals, organizations or their guarantors fail to
voluntarily abide by such decision;
b/ Individuals or organizations
commit acts of dispersing their property or escaping when they have not yet
abided by administrative decisions in the customs domain.
2. For other decisions on
sanctioning administrative violations in the customs domain, past 10 (ten) days
after the expiration of the time limit for complying with administrative
decisions in the customs domain, individuals, organizations or their guarantors
fail to voluntarily abide by such decisions.
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Article 32.
Monitoring and urging collection of tax debts and fines
1. Customs offices at all levels
shall monitor and manage those that owe tax debts and fines; regularly classify
these debtors and debts in order to collect these debts before the time of
application of enforcement measures.
Forms of urging and collecting
tax debts and fines:
a/ Sending notices to taxpayers
and tax payment guarantors to fully pay tax debts and fines;
b/ Coming in person to head
offices of taxpayers to claim tax debts and fines;
c/ Publishing online the list of
those owing overdue tax debts and fines;
d/ Publishing on the mass media information
on those owing tax and fines and owed tax amounts and fines.
2. When receiving notices of
customs offices of tax debts and fines, taxpayers and guarantors that owe tax
and fines shall promptly fully pay tax debts and fines under law. Past the time
limit prescribed in Article 29 of this Circular, if failing to fully pay tax
debts and fines, they shall face enforcement measures specified in Article 43
of the Decree.
Article 33.
Competence to issue enforcement decisions
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Investigation Department and the
director of the Post-Customs Clearance Inspection Department may issue
enforcement decisions and organize enforcement of administrative decisions
issued by themselves or their subordinates.
2. In case of applying the
enforcement measure of property distraint or seizure of money and property held
by other organizations or individuals that are based in another locality, the
director of the provincial-level Customs Department, the director of the
Anti-Smuggling Investigation Department and the director of the Post-Customs
Clearance Inspection Department shall issue an enforcement decision and send it
to the Customs Department of that locality for organizing the implementation
thereof.
3. When necessary to apply the
enforcement measure of withdrawing the tax identification number, suspending
use of invoices; revoking the business registration certificate or
establishment and operation or practice license specified in Clause 8 or Clause
9, Article 43 of the Decree against an organization that owes tax and fines to
more than one provincial-level Customs Department, the General Department of
Customs shall notify the competent agency to issue a decision to withdraw the
tax identification number, suspend use of invoices; revoke the business
registration certificate or establishment and operation or practice license
under Article 52 of the Decree and Article 65 of Decree No. 98/2007/ND-CP.
Article 34.
Verification of conditions for implementation of enforcement decisions
1. The person competent to issue
an enforcement decision shall, before issuing an enforcement decision, check
available information in the database on the customs declarant or taxpayer in
question, and has the power to verify information on the person against whom an
enforcement decision is to be issued regarding his/her account, property and
conditions for implementing the enforcement decision. Local administrations,
ownership and use right registries, security transaction registries and related
organizations and individuals shall create conditions and provide necessary
information under law for agencies competent to implement enforcement
decisions.
2. Verification of property
subject to registration of transfer of ownership or use rights should be based
on contracts on purchase and sale, exchange, transfer or giving as gifts;
conducted with the assistance of owners, local administrations, functional
agencies or witnesses such as certification by sellers, local administrations
or functional agencies of the purchase and sale, and at the same time
notification may be made publicly for persons with related rights and
obligations to protect their interests.
If subject to enforcement are
agencies or organizations, persons competent to issue enforcement decisions
should verify the collectible sum of money by directly examining their assets,
checking the system of records on capital and asset management and with the
assistance of other agencies such as capital and asset management agencies,
business and asset registries, banks, credit institutions, carriers, and other
related individuals and organizations, to verify these agencies' or
organizations' money and assets.
Article 35.
Procedures for sending documents of request, notices and enforcement decisions
to persons subject to enforcement and related organizations and individuals
1. Customs officers tasked to
implement enforcement decisions shall personally hand enforcement documents to
competent persons of organizations or persons named on these decisions. If it
is difficult to do so, enforcement documents may be sent by registered mail.
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2. If it cannot send the
documents under Clause 1 above, the agency implementing the enforcement
decision shall notify the contents of the documents by publicly posting up the
original documents for at least 5 (five) working days at the head office of the
People's Committee of the commune, ward or township where the head office of
the institutional recipient is based or the individual recipient resides and at
the residence of the individual recipient, if his/her place of residence is
known.
The public posting must be
recorded in a minutes indicating the date and time of posting, details of
notification and the posting person, which must be certified by the local
administration.
3. If it is impossible to make
announcement in any of the forms above, notification shall be made for two
consecutive times on a central newspaper, radio or television station or a
newspaper, radio or television station of the province or centrally run city
where the person subject to enforcement is determined to live.
After completing the
announcement, the newspaper, radio or television station shall make a written
certification of completion of the announcement and send the announcement to
the customs office for filing.
Article 36.
Principles of application of measures of enforcing administrative decisions in
the customs domain
1. Measures of enforcing
administrative decisions in the customs domain may be applied only in the cases
specified in Article 42 of the Decree.
2. Persons competent to issue
enforcement decisions shall base themselves on the details, characteristics and
level of the obligation to implement decisions to enforce administrative
decisions, conditions of persons subject to enforcement for abiding by enforcement
decisions and practical local conditions to decide on the application of one
enforcement measure after another prescribed in the Decree. In case a decision
on the application of the subsequent enforcement measure has been issued but
there arise information and conditions for implementing the preceding
enforcement measure in the order prescribed in Article 43 of the Decree, the
person competent to issue enforcement decisions may issue a decision on the
implementation of the preceding enforcement measure to ensure full collection
of tax and fines.
3. Enforcement may not be
organized on weekends and holidays as prescribed in the labor law and outside
working hours, within 15 (fifteen) days before and after the Lunar New Year
Festival; traditional days of policy beneficiaries who are subject to
enforcement, except when it is necessary to prevent persons subject to
enforcement from dispersing and destroying their property or shirking abidance
by enforcement decisions.
Article 37.
Responsibilities of organizations implementing enforcement decisions
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2. Persons issuing enforcement
decisions shall coordinate with related agencies, organizations and individuals
in taking measures to implement enforcement decisions.
3. When finding it necessary to
have the participation of the people's public security force in the
enforcement, a written request must be sent to the related public security
agency 5 (five) working days before the enforcement for the latter to arrange
its force. When requested to participate in ensuring order and safety in the
course of enforcement, the people's police shall arrange its force to promptly
stop acts of disturbing public order and resisting officers on duty in
implementing enforcement decisions.
Article 38.
Statute of limitations for implementing enforcement decisions
An enforcement decision is valid
for one year from the date of its issuance. Particularly for a decision on
enforcement with the measure of deducting money from the account of the person
subject to enforcement, it is valid for 30 days from the date of its issuance.
Article 39.
Enforcement measure of deducting money from deposit accounts
1. Enforcement by deducting
money from deposit accounts to implement tax administrative decisions
a/ Persons competent to issue
enforcement decisions shall organize direct or documentary verification of
information on accounts and current account balances of persons subject to
enforcement. The sending and receipt of documents comply with regulations on
confidential documents. If these documents are sent by post, registered mail
must be used. Persons competent to issue enforcement decisions shall keep
confidential provided information on accounts of persons subject to
enforcement;
b/ Within 3 (three) working days
after receiving the request of a competent person, the person subject to an
enforcement measure specified in Clause 3, Article 29 of this Circular (person
subject to enforcement), state treasuries, commercial banks and other credit
institutions at which the person subject to enforcement opens his/her account
shall send documents indicating the name of the state treasury, commercial bank
or credit institution at which the person subject to enforcement opens a
deposit account, and the number and balance of the account. Past this time
limit, if the above institutions fail to provide information, they shall be
administratively sanctioned:
c/ Based on received
information, competent persons shall issue a decision on enforcement by
deducting money from the deposit account of the person subject to enforcement
at the state treasury, commercial bank and other credit institutions. Such a
decision must indicate the date of issuance, grounds for issuance, full name,
post and working unit of the issuer; amount to be deducted (the same as that
indicated in the administrative decision plus enforcement expenses calculated
up to 5 (five) days before the date of enforcement); reason for enforcement;
full name, tax identification number and account number of the person subject
to deduction; name and address of the state treasury, commercial bank or
another credit institution or financial institution at which the person subject
to enforcement opens an account; name, address and state budget revenue account
or custody account number of the customs office opened at the state treasury,
method of transferring the deducted amount into the state budget revenue or
custody account; and time limit for implementation. The decision must be signed
by the issuer and sealed;
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e/ The state treasury,
commercial bank, other credit institutions in Vietnam at which the person
subject to enforcement opens an account shall block the account if there is a
balance thereon upon receiving an enforcement decision; transfer the money
amount of this person into the state budget revenue account or custody account
of the customs office opened at the state treasury indicated in the enforcement
decision within 5 (five) days after receiving the decision, and concurrently
notify it to the decision-issuing agency and the person subject to enforcement:
f/ If the deposit account of the
person subject to enforcement has no balance for payment; the state treasury,
commercial bank or other credit institutions shall send a written notice
thereof to the enforcement decision issuer within 30 days from the date of
receipt of the decision on enforcement by deducting money from deposit account;
g/ Within the time limit for
implementing an enforcement decision, if there arises a balance on the account
of the person subject to enforcement but the above institutions fail to deduct
it into the state budget revenue account or custody account of the customs
office opened at the state treasury according to the enforcement decision, they
shall be administratively sanctioned under Point a. Clause 1, Article 19 of the
Decree;
h/ After fully collecting the
tax or fine, the customs office shall immediately notify the state treasury,
commercial bank or other credit institutions to stop the account blocking and
enforcement.
2. Enforcement by deducting
money from deposit account to implement decisions on sanctioning other
customs-related administrative violations
a/ Persons competent to issue
enforcement decisions shall organize direct or documentary verification of
information on accounts and current account balances of persons subject to
enforcement. The verification procedures are the same as guided at Points a and
b. Clause 1 above;
b/ Based on received
information, persons competent to issue enforcement decisions shall issue a
decision on enforcement by deducting money from the deposit account of the
person subject to enforcement at the commercial bank and other credit
institutions. Within 5 (five) days after receiving the enforcement decision,
this person shall request the bank at which he/she opens an account to transfer
money from his/her account into the state budget revenue account or custody
account of the customs office opened at the state treasury indicated in the
enforcement decision. Past this time limit, if this person refuses to comply
with the enforcement decision, he/she will be subject to the measure of
enforcement by distraining property under Section IV. Part II of this Circular;
c/ Within 5 (five) days after
receiving the enforcement decision, the commercial bank or other credit
institutions shall collaborate with the person issuing the enforcement decision
in informing the account holder of the enforcement decision. Upon receiving the
money transfer request of the account holder, the commercial bank or other
credit institutions shall transfer money from the person subject to enforcement
into the state budget revenue account or custody account of the customs office
opened at the state treasury indicated in the enforcement decision, and
concurrently notify it to the decision-issuing agency and the person subject to
enforcement:
d/ If the account of the person
subject to enforcement has no balance or has a balance insufficient for
enforcement, the commercial bank or other credit institutions shall, after
deducting the available balance, send a written notice thereof to the
enforcement decision-issuing agency;
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f/ After fully collecting the
tax or fine, the customs office shall immediately notify the state treasury,
commercial bank or other credit institutions to stop the enforcement.
Article 40.
Enforcement measure of deducting part of salary or income
1. The enforcement measure of
deducting part of salary or income is applicable only to individuals against
whom decisions on sanctioning administrative violations are enforced who are
cadres, civil servants or individuals working in agencies or organizations
under contracts with an indefinite term or a term of 6 (six) months or longer
and being paid salaries or incomes, or persons on monthly retirement pension or
working capacity loss allowance.
2. Persons competent to issue
enforcement decisions shall organize verification of lawful incomes of persons
subject to enforcement, including salary, retirement pension, working capacity
loss allowance, bonus and other lawful incomes.
3. Based on verification
results, competent persons may issue decisions on enforcement by deducting part
of salary or income of individuals subject to enforcement.
4. A decision on enforcement by
deducting part of salary or income of an individual must clearly state the date
of issuance, grounds for issuance; full name, post and working unit of the
issuer; full name and address of the individual whose salary or income is to be
partly deducted; name and address of the agency or organization managing the
salary or income of the individual; the amount to be deducted (the same as that
indicated in the administrative decision plus enforcement expenses up to 5
(five) days before the date of enforcement); reason for enforcement; name and
address of the state treasury to receive the money; method of transferring the
deducted amount to the state treasury; and time limit for implementation. The
decision must bear the signature of the issuer and the seal of the
decision-issuing agency.
5. Upon the nearest time of
payment of salary or income, the agency, organization or employer managing the
salary or income of the individual subject to enforcement shall deduct part of
the salary or income of this individual according to the enforcement decision
and transfer the deducted amount into the state budget revenue account or
custody account of the customs office opened at the state treasury indicated in
the enforcement decision, and concurrently notify the decision issuer thereof.
6. The deducted part of salary,
retirement pension or working capacity loss allowance of an individual must not
be lower than 10% (ten per cent) and higher than 30% (thirty per cent) of the
total monthly salary income of the individual. For other kinds of incomes, the
deducted part depends on the actually received income but must not exceed 50%
(fifty per cent) of total income.
7. In case the tax money or fine
is not yet fully deducted under the enforcement decision upon termination of
the labor contract of the individual subject to enforcement, the employing
agency or organization shall notify the decision issuer within 5 (five) working
days after the date of termination of the labor contract.
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Article 41.
Enforcement measure of distraining property and auctioning distrained property
1. This enforcement measure is
applied only when customs offices cannot apply enforcement measures specified
in Clauses 1 and 2, Article 43 of the Decree because they have no information
on deposit accounts and incomes of organizations or individuals subject to
enforcement or have applied these measures but still fail to fully collect the
tax debts and fines.
2. This measure may not be applied
in the following cases:
a/ The person subject to
enforcement is receiving medical treatment as certified by a health agency or
organization:
b/ Past 15 (fifteen) days after
receiving the request of the customs office, the person subject to enforcement
fails to provide information on his/her existing own property and the customs
office fails to receive other information on the property of this person:
c/ The property value of the
person subject to enforcement is insufficient to cover enforcement expenses.
3. Types of property not to be
distrained
a/ For organizations subject to
enforcement:
a.1. Medicines, facilities,
instruments and property of medical establishments, except for those circulated
for business purposes: food, foodstuffs, instruments and furniture serving
laborers' mid-shift meals:
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a.3. Equipment, tools and
instruments to ensure labor safely and prevent and fight fires and explosions,
and prevent and control environmental pollution;
a.4. Important infrastructure
facilities serving public interests, security and defense;
a.5. Raw materials, materials,
finished products and semi-finished products being hazardous and dangerous
chemicals or property banned from circulation;
a.6. Raw materials, materials
and semi-finished products in closed production lines;
a.7. Working offices of state
agencies, political organizations, socio-political organizations, socio-professional
organizations, property procured with state budget.
b/ For individuals subject to
enforcement:
b.1. Sole houses of individuals
subject to enforcement and their families. For a person subject to enforcement
who has more than one house, verification should be conducted to identify a
house whose value is sufficient for paying tax debt, fine and enforcement
expenses:
b.2. Medicines to meet medical
prevention and treatment needs, food and foodstuffs lo mccl essential needs of
the person subject to enforcement and his/her family:
b.3. Necessary common working
tools used as main or sole means of livelihood of the person subject to
enforcement and his/her family.
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b.4. Necessary clothing and
common utensils for the individual subject to enforcement and his/ her family
within the minimum quantity in each locality, such as pots, pans, bowls and
dishes, beds, wardrobes and other common articles of small value. Such
furniture items and personal belongings as television set, refrigerator, air
conditioner, washing machine, computer and gold, silver and gem jewelries
(excluding wedding rings) shall still be distrained to ensure implementation of
administrative decisions.
b.5. Worshiping articles,
relics, orders, medals and certificates of merit.
4. Property shall be distrained
in the following order:
a/ Distraining property being
imports transported en route to Vietnam, having arrived at the border gate of
importation or having transported to a warehouse or storing yard of the person
subject to enforcement (excluding goods being materials and raw materials for
export production, humanitarian goods, imported goods for use as contributed
investment capital, and easy-to-deteriorate agricultural goods and food).
b/ Distraining the following
property when having sufficient information and conditions:
b.1. Distraining goods being
transported en route or put on sale at the shop of the person subject to
enforcement:
b.2. Distraining other property
at the request of the person subject to enforcement:
b.3. Distraining other property.
5. Verification of information
on property
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b/ The person competent to issue
enforcement decisions shall organize direct verification or request the person
subject to enforcement to provide documents of title of the property he/ she
currently owns and its value.
6. Decision on enforcement by
property distraint
a/ A decision on enforcement by property
distraint must indicate the date of issuance; grounds for issuance; full name,
post (position) and managing unit of the issuer; full name, residence and head
office of the person subject to property distraint; the amount of money to be
distrained; place of distraint. The decision must bear the signature of the
issuer and the seal of the issuing agency;
b/ A decision on enforcement by
property distraint shall be sent to the person subject to property distraint,
the People's Committee of the commune where he/she resides or the organization
is based or to his/her working agency 5 (five) working days before the date of
enforcement, except when the decision-issuing agency has grounds to believe
that the sending of the decision in advance will cause difficulties to the
enforcement.
7. Procedures for implementing
property distraint
a/ Property distraint must be
carried out at daytime and during working hours applicable in the locality
where property is distrained, except for cases in which the person subject to
enforcement is detected to disperse or destroy his/her property or shirk
implementing the enforcement decision and the person competent to issue
enforcement decisions may immediately organize property distraint in order to
stop the above acts of the person subject to enforcement;
b/ The person issuing the
enforcement decision or the person assigned to implement the enforcement
decision shall take charge of the distraint;
c/ Before issuing a property
distraint decision, the person competent to issue enforcement decisions shall
request the property ownership or use right registry to provide information on
the right of the person subject to enforcement to own or use the property;
request the security transaction registry to provide information on whether the
to be-distrained property is currently used to secure the performance of an
obligation of the person subject to enforcement toward a party or whether the
property managed or used by the person subject to enforcement is a financially
leased or purchased. Within 5 (five) working days, the above agencies shall
send written replies to the person competent to issue enforcement decisions on
the requested information:
d/ Present to the property
distraint must be the individual subject to enforcement or an adult member of
his/her family or a lawful representative of the organization subject to
property distraint, a representative of the local administration and a witness.
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c/ Individuals or organizations
subject to enforcement may request which property to be distrained first and
the person assigned to take charge of the distraint shall accept such request
if it does not affect the distraint. If individuals or organizations subject to
enforcement make no such request, property under personal ownership shall be
distrained first;
f/ Property under co-ownership
of the individual subject to enforcement and other persons may only be
distrained if such individual has not personal property or his/her personal
property is insufficient for implementing the enforcement decision. If there is
a dispute over such property, it shall still be distrained but explanation must
be given to its co-owners on their right to initiate a lawsuit according to
civil procedures.
The distraining agency shall
publicly notify the time and place of distraint to co-owners. Past 3 (three)
months from the date of distraint, if no lawsuit is filed, the distrained
property shall be auctioned under the law on property auction:
g/ The land use rights, houses
and offices of a person subject to enforcement may be distrained only after all
other properties have been distrained but they are not enough for implementing
the enforcement decision:
h/ Property of a person subject
to enforcement shall be distrained only to sufficiently implement the
enforcement decision and cover enforcement expenses. It that person has only a
sole property larger than the obligation to implement the enforcement decision
which is indivisible or will significantly decrease in value if divided, the
distraining agency may still distrain it to secure the implementation of the
enforcement decision:
i/ In case of distraining a
property being a locked house or a locked or packaged article, the organization
implementing the enforcement decision shall request the person subject to
enforcement or currently using and managing that property to unlock or unpack
it. If such person refuses to unlock or is intentionally absent, the
organization implementing the enforcement decision shall unlock or unpack the
property in the presence of a representative of the local administration and
witnesses, check and make a list of articles therein and distrain them
according to law. then make a written record thereon.
If the person subject to
enforcement or person with related rights and obligations is serving an
imprisonment sentence, the person in charge of implementing the enforcement
decision shall notify decisions and notices of the implementation of the
enforcement decision to these persons through prison wardens. Those who are in
prison may authorize other persons to exercise the rights and performs the
obligations related to the implementation of enforcement decisions;
j/ For cases of distraining
property subject to ownership or use right registration, when issuing a
decision on enforcement by property distraint, the person in charge of
implementing the enforcement decision shall immediately notify the following
agencies of the property distraint:
j.1. The land use right
registry, the agency competent to register assets attached to land in case of
distraining land use rights and assets attached to land:
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The regional ship and crew
registration department, in case of distraining seagoing ships;
j.3. The Road Traffic Police
Department or Division, in case of distraining road motor vehicles;
j.4. Other agencies competent to
register ownership and use rights as prescribed by law.
k/ From the time of receiving a
notice of property distraint, the agency with which the ownership or use rights
of the property in question has been registered may not register its transfer,
unless otherwise provided for by law.
Within 3 (three) working days
after the distrained property is released or the distrained property is
auctioned or assigned for implementation of the enforcement decision, the
organization implementing the enforcement decision shall notify it to the
agency with which the ownership or use rights of the property in question has
been registered;
1/ Within 30 (thirty) days from
the date of property distraint, if the person subject to enforcement fails to
fully pay tax debts and fines, the customs office may auction the distrained
property for full collection of tax debts and fines.
8. Written records on property
distraint
a/ Property distraint shall be
recorded in writing. Such a written record must indicate the time and place of
distraint; full name and post of the person in charge of distraint;
representative of the organizations subject to property distraint, individual
whose property is distrained or his/ her lawful representative: witness:
representative of the local administration (or the working agency of the
individual subject to enforcement), representatives of related organizations
and agencies: description, name, state and characteristics of each property
distrained, certificate of ownership or the right to use the property (for
types of property subject to ownership or use right registration);
b/ The person in charge of
distraint: representative of the organization subject to property distraint;
individual whose property is distrained or his/her lawful representative;
witness; representative of the local administration (or the working agency of
the individual subject to enforcement), representatives of related
organizations and agencies shall sign the written record. In case any of the
above persons is absent or refuses to sign the written record, such must be
written in the record with the reason therefor:
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9. Delivery of distrained
property for preservation
a/ The person in charge of the
distraint shall select any of the following forms of preservation of distrained
property:
a.1. Delivering the distrained
property to the person subject to enforcement or his/her relative or the person
currently managing and using such property for preservation:
a.2. Delivering the distrained
property to one of its co-owners for preservation, if it is under joint
ownership:
a.3. If the person subject to
enforcement or his/her relative or the person currently managing and using such
property refuses to receive the distrained property for preservation or there
are signs of dispersing or destroying the property or obstructing the
implementation of the enforcement decision, on a case-by-case basis the
distrained property shall be assigned to an organization or individuals with
preservation conditions:
a.4. The person in charge of the
distraint shall store and preserve dossiers and papers on the right to own and
use property and ensure their safety in the process of enforcement.
b/ Property being gold, silver,
precious metals, gems and foreign currency shall be delivered to the state
treasury for management; weapons, explosives, radioactive substances, military
technical equipment and other industrial explosive materials, support tools,
articles of historical and cultural value, national treasures, antiques, and
precious and rare forest products shall be temporarily handed over to
specialized state management agencies for management;
c/ When delivering a distrained
property for preservation, the person in charge of the distraint shall make a
written record indicating the date of delivery: full names of the person in
charge of enforcing the enforcement decision, the individual or representative
of the organization subject to enforcement, the person assigned to preserve the
property, the witness of the delivery, quantity, state (quality) of the
property, and rights and obligations of the person assigned to preserve the
property:
The person in charge of
distraint and person assigned to preserve the property, the individual or
representative of the organization subject to enforcement, and the witness
shall sign the written record. In case any of these persons is absent or
refuses to sign the written record, such must be written in the record with the
reason therefor.
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d/ The person assigned to
preserve the probity shall be paid for reasonable preservation expenses, except
those persons specified at Point a. Clause 1. Article 54 of Decree No.
98/2007/ND-CP of June 7, 2007;
e/ The person assigned to
preserve the property who causes damage to. fraudulently exchange, loses or
destroys it shall pay compensation and may, depending on the nature and
seriousness of violation, be administratively handled or examined for penal
liability under the criminal law.
10. Valuation of distrained
property
a/ The valuation of distrained
property shall be conducted in the house of the individual or the office of the
organization subject to distraint or the place of storage of the distrained
property (except for cases in which a valuation council is required to be set
up):
b/ When distraining property,
the person in charge of implementing the enforcement decision shall temporarily
calculate the value intended to be distrained so as to distrain the property of
a value sufficient for paying the payable amount and enforcement expenses.
He/she shall base himself/herself on the market value and concurrently consult
functional agencies and related parties to temporarily calculate the value of
the distrained property;
After the distraint, if the
related parties can reach agreement on the value of the distrained property,
the person in charge of implementing the enforcement decision shall make a
written record clearly stating this agreement and have it signed by the related
parties.
c/ A distrained property under
co-ownership shall be" valued according to the agreement between the
person in charge of implementing the enforcement decision and the
representative of the organization or individual subject to enforcement and
other co-owner(s). The time limit for the parties to reach agreement on the
property value is 5 (five) working days after the date the property is
distrained;
For a distrained property valued
at under VND 500,000 or perishable, if the parties cannot reach agreement on
its value, the person issuing the enforcement decision shall value it.
d/ If the distrained property is
valued at VND 500,000 or more, difficult to value or the related parties cannot
reach agreement on its value, within 15 (fifteen) days after the date the
property is distrained, the person issuing the enforcement decision shall
request a competent agency to set up a council to value it;
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The person issuing the
enforcement decision shall act as head of the council and representatives of
the finance agency and related specialized agencies as council members. The
person in charge of implementing the enforcement decision may hire or request
assessment of the property value. When requested by the person in charge of
implementing the enforcement decision, the specialized agencies shall appoint
qualified persons to participate in the valuation. Members of a valuation
council must be representatives of competent specialized management agencies
with professional and technical expertise about the re-valued property. If the
to be-valued property is a house, there must be representatives of the house
and land management agency and construction management agency in the valuation
council;
Within 7 (seven) working days
after the date of establishment, the valuation council shall conduct valuation.
The individual or the representative of the organization with the distrained
property may give opinions in the process of valuation but the valuation
council has the right to make decision on the property's value.
The valuation council shall base
itself on the market value at the time of valuation and expertise opinions of
property assessment agencies and organizations to determine the property value.
It shall decide on the property value by majority; if the numbers of opinions
for and against are equal, the side sharing the opinion of the head of the council
will be the ground for determining the reserve price of the property for sale.
Members of the valuation council have the right to reserve their opinions and
propose the competent person issuing the enforcement decision to re-consider
the valuation. Types of property with prices uniformly managed by the State
shall be valued based on their state-prescribed prices;
e/ Property valuation shall be
recorded in writing. A written record must indicate the time and place of
valuation: participants in the valuation and the name and value of the
property, and contain the signatures of the participants in the valuation and
property owner.
11. Transfer of distrained
property for auction
a/ For a distrained property to
be put up for auction, based on its value determined under Clause 10 above,
within 30 (thirty) days after the date of issuance of the distraint decision,
the person in charge of enforcement shall sign a contract on authorization of
auction with one of the following organizations with the auctioning function
for auctioning the property:
a.1. If the distrained property
is valued at under VND 10,000,000, the person in charge of enforcement shall
sign a contract on authorization of auction with a district-level finance
agency;
a.2. If the distrained property
is valued at VND 10,000.000 or more, the person in charge of enforcement shall
sign a contract on authorization of auction with the provincial-level auction
service center of the place where exists the property.
b/ The reserve price for an
auctioned property is its value determined upon distraint under the guidance of
Clause 10 of this Article:
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d/ If the distrained property is
bulky goods or in large quantity and the provincial-level property auction
center or district-level finance agency has no place for storage, after
completing the delivery procedure, a property preservation contract may be
signed with the place where such property is currently stored. Expenses for the
performance of the preservation contract shall be paid with proceeds from
property auction;
e/ When the distrained property
has been delivered to an agency responsible for auction, the procedures for its
auction comply with current provisions of law on property auction;
f/ For property under
co-ownership put up for auction, co-owners will have the pre-emptive right to
buy it;
g/ If the proceeds from property
auction exceed the sum of money stated in the administrative decision and
enforcement expenses, within 10 (ten) days from the date of completion of the
auction, the agency implementing the measure of enforcement by property
distraint and auction shall carry out procedures for returning the difference
to the person subject to enforcement.
12. Transfer of property
ownership
a/ Those who buy distrained
property have their right to own or use such property recognized and protected
by law;
b/ Competent state agencies
shall complete procedures for transferring ownership or use right to buyers
under law:
c/ A dossier of transfer of
ownership or use right comprises:
c.1. A copy of the decision on
administrative enforcement by property distraint for auction;
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c.3. Other papers related to the
property (if any).
13. Proceeds from the auction of
distrained property or property of persons subject of enforcement collected
from other individuals and organizations holding such property shall be handled
in the following order:
a/ Paying expenses for
enforcement, auction of distrained property or property collected from other
individuals and organizations holding such property;
b/ Remitting a sum of money
equal to the tax amount and fine indicated in the enforcement decision into the
state budget revenue account or custody account of the customs office opened at
the state treasury;
c/ Returning the remainder (if
any) to the person subject to enforcement.
Article 42.
Enforcement measure of collecting money and property of persons subject to
enforcement which are held by other organizations and individuals
1. This measure is applied only
when customs offices cannot apply the enforcement measures specified in Clauses
1, 2 and 3, Article 43 of the Decree or have applied them but still fail to
fully collect tax debts and fines and they have grounds to ascertain that a
third party owes debts to or hold money and property of persons subject to
enforcement.
2. Persons holding property of
organizations or individuals subject to enforcement referred to in Clause 4.
Article 43 of the Decree include:
a/ Individuals, households,
organizations (such as securities trading centers, securities companies, trade
partners) authorized by persons subject to enforcement to hold their property:
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c/ Individuals and organizations
that are parties to securities transactions or carry out procedures for
property handling under law;
d/ Domestic tax agencies
currently holding value added tax, money and other property refundable to
persons subject to enforcement;
e/ Other agencies and
organizations (forwarders, bonded warehouses, entrusted importers) currently
holding imports of persons subject to enforcement.
3. Principles of collection of
money and other property of persons subject to enforcement from third parties
a/ Third parties owing due debts
to persons subject to enforcement or holding money and other property of these
persons shall pay tax debts and fines for these persons:
b/ If money and other property
of persons subject to enforcement currently held by a third party are objects
of security transactions or fall into a case of bankruptcy, the collection of
money and property from a third party complies with law;
c/ Money remitted by a third
party into the state budget revenue account or custody account of the customs
office opened at the state treasury for the person subject to enforcement shall
be determined as money paid for the person subject to enforcement.
Based on documents on collection
of monej and property from a third party, the agency in charge of enforcement
shall notify persons subject to enforcement and related parties thereof.
4. Responsibilities of third
parties owing debts to or holding money and other property of persons subject
to enforcement
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b/ Upon receiving a written
request of a competent person, to refrain from returning money and other
property to persons subject to enforcement before remitting money into the
state budget revenue account or custody account of the customs office opened at
the state treasury or delivering the property to the customs office for
carrying out auction procedures;
c/ If unable to satisfy the
request of the customs office, to send a written explanation to the customs
office within 5 (five) working days after the date of receipt of such request;
d/ Organizations and individuals
owing debts to holding money and other property of persons subject to
enforcement that fail to pay tax money subject to enforcement within 15
(fifteen) days after the date of receipt of a request of the customs office
shall be regarded as owing tax debts to the .State and subjected to enforcement
measures prescribed in Article 43 of the Decree.
Article 43.
Other enforcement measures
1. Enforcement by suspending
customs clearance for imports
a/ This measure is applied only
when customs offices cannot apply the measures specified in Clauses 1, 3 and 4,
Article 43 of the Decree or have applied them but still fail to fully collect
tax debts and fines;
b/ Persons competent to decide
on enforcement shall issue enforcement decisions to persons subject to
enforcement and post them on the customs information network at least 5 (five)
working days before applying the measure of suspending customs clearance for
imports;
c/ An enforcement decision must
indicate the date of issuance: its number and legal grounds for issuance:
reason for enforcement, full name, post and managing unit of the issuer; full
name and address of the person subject to enforcement unpaid tax amounts and
fines detailed by declaration form and case; total amount of money to be
collected; name and address of and account number at the state treasury; time
of implementation; signature of the issuer and seal of the issuing agency;
d/ Suspension of customs
clearance must comply with law. The temporary termination of the measure of
suspension of customs clearance for imports in cases permitted by law must
ensure that no new debts will arise and current tax debts and fines are
guaranteed by a credit institution or another organization operating under the Law
on Credit Institutions.
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When applying this measure to
taxpayers, competent customs offices shall:
a/ Notify the person subject to
enforcement at least 5 (five) working days before applying this measure:
b/ Send a written request to a
competent state agency for withdrawing the tax identification number,
suspending use of invoices; revoking the business registration certificate or
establishment and operation or practice license.
Within 10 (ten) days after the
date of receipt of the customs office's notice, the competent state agency
shall issue a decision to withdraw the tax identification number, suspend use
of invoices; revoke the business registration certificate or establishment and
operation or practice license. When failing to do so. it shall notify the
reason to the customs office.
3. Enforcement for confiscating
evidence materials and means used in administrative violations; enforcement for
implementing remedies to overcome consequences caused by administrative
violations.
The procedures and order for
implementing the measures of enforcement for confiscating evidence materials
and means used in administrative violations and enforcement for implementing
remedies to overcome consequences caused by administrative violations comply
with the provisions of Section D, Chapter II, and Chapter III of Decree No. 37/
2005/ND-CP of March 18, 2005.
Article 44.
Enforcement expenses
1. Expenses include
a/ Expenses for persons
implementing the enforcement decision;
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c/ Expenses for protection of
enforcement: Expenses for persons directly taking part in protecting the
enforcement (person issuing the enforcement decision, security police, health
workers, implementers of the enforcement decision, representative of the local
administration and social organizations, etc.), expenses for purchasing fuel,
hiring security equipment and medical equipment serving the implementation of
the enforcement decision;
d/ Expenses for fire and
explosion prevention and fighting (if any): Hiring fire engines, fire fighting
equipment, hiring bomb and mine sweeping and other necessary fire and explosive
prevention and fighting;
e/ Expenses for hiring storage
or preservation of distrained property:
f/ Expenses for property
evaluation and distraint: remuneration for valuation council members, property
survey expenses (if any), expenses for renting venues and equipment for
property auction, expenses for property revaluation; expenses for publishing
auction notices on the mass media;
g/ Other actually arising
expenses for the implementation of the enforcement decision (if any).
2. Expense levels
- Expenses for hiring property
storage or preservation; property survey, renting of venues and equipment for
property auction; publishing of auction notices on the mass media; hiring
transportation of articles and property for implementing the enforcement
decision shall be paid based on lawful and valid contracts, invoices and
documents according to regulations;
- Other expenses shall be paid
at levels under common regulations of the State.
If there are no state
regulations on expense levels, persons organizing enforcement shall decide on
expense levels and take responsibility for their decisions.
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Expenses for implementation of
enforcement decisions shall be incurred by persons subject to enforcement.
If enforcement expenses are
incurred by persons subject to enforcement but customs offices cannot yet
collect any money, customs offices may pay for such expenses in advance with
their operational funds and get refunds right after money is collected from
persons subject to administrative enforcement. The advance level must not
exceed VND 30 (thirty) million. For cases in which the level of enforcement
expense is higher than the permitted advanced amount, persons issuing
enforcement decisions shall report them to superior customs offices for
consideration and settlement on a case-by-case basis.
4. Exemption from and reduction
of enforcement expenses
a/ Individuals subject to
enforcement may be considered for exemption from and reduction of enforcement
expenses in one of the following cases:
- Having financial difficulties.
Individuals with financial difficulties are those who have incomes insufficient
for ensuring minimum living standards of a normal life or fall into a prolonged
exceptionally difficult economic plight caused by natural disaster or fire. The
minimum income level is that not liable to the income tax on high-income
earners.
A decision on exemption from or
reduction of enforcement expenses shall be cancelled when the person subject to
enforcement is detected to disperse or hide his/her money and property in order
to shirk the verification of practical conditions for enforcement.
- Their families are eligible
for social policy or have made meritorious services to the revolution;
- They are supportless lonely
persons, persons with disabilities, or suffer prolonged illnesses.
b/ Procedures for requesting
exemption from or reduction of enforcement expenses:
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- For a person subject to
enforcement facing financial difficulties caused by natural disaster or fire,
certification of the commune-level People's Committee of the place where he/she
resides or the head of the agency or organization he/she is working for is
required.
c/ Levels of exemption from or
reduction of enforcement expenses:
- For individuals subject to
enforcement who have paid part of enforcement expenses but then fall into a
prolonged exceptionally difficult economic plight caused by natural disaster or
fire, shall be considered for non-payment of remaining enforcement expenses;
- Individuals referred to at
Point a, Clause 4 of this Section may enjoy 50% (fifty per cent) reduction of
payable enforcement expenses.
d/ Persons competent to issue
enforcement decisions shall receive written requests, consider and decide on
exemption from and reduction of enforcement expenses.
In case the agency issuing the
enforcement decision decides on exemption from or reduction of enforcement
expenses, these expenses shall be covered with its operational funds.
Chapter
III
ORGANIZATION OF
IMPLEMENTATION
Article 45.
Implementation responsibilities
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2. Immediate superiors of
persons with sanctioning competence shall organize inspection of the handling
of administrative violations by their subordinates.
Directors of provincial-level
Customs Departments, the director of the Anti-Smuggling Investigation
Department and the director of the Post-Customs Clearance Inspection Department
under the General Department of Customs shall closely inspect the handling of
administrative violations in their respective units.
At district-level Customs
Departments, control teams of provincial-level Customs Departments shall
appoint their officers to specialize in monitoring, guiding and inspecting
operation teams in the sanctioning of administrative violations.
3. If customs officers competent
to sanction and apply measures to prevent administrative violations and ensure
the sanctioning of administrative violations and enforcement of administrative
decisions or assigned to give advice to persons competent to sanction
administrative violations or enforce administrative decisions in the customs
domain commit law-breaking, irresponsible, harassing or self-seeking acts
shall, depending on the severity of their violation, be strictly handled under
law; if causing material damage to individuals and organizations, they shall
pay compensation therefor.
4. Printed forms used in the
sanctioning of administrative violations, application of measures to prevent
administrative violations and ensure the handling of administrative violations
and enforce administrative decisions in the customs domain are provided in the
appendices to this Circular (notprinted herein). The General Director of
Customs shall guide the uniform use of printed forms in the entire sector.
Article 46.
Effect
1. This Circular takes effect 45
days from the date of its signing. To annul the Minister of Finance's Circular
No. 62/2007/TT-BTC of June 14, 2007, guiding the Government's Decree No.
97/2007/ND-CP of June 7, 2007, stipulating the handling of administrative
violations and enforcement of administrative decisions in the customs domain.
2. Any problems arising in the
course of implementation should be promptly reported to the Ministry of Finance
for study and settlement.-
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FOR
THE MINISTER OF FINANCE
DEPUTY MINISTER
Do Hoang Anh Tuan