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THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No:
190/2013/TT-BTC
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Hanoi,
December 12, 2013
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CIRCULAR
DETAILING THE IMPLEMENTATION OF DECREE NO. 127/2013/ND-CP of
OCTOBER 15, 2013 OF THE GOVERNMENT STIPULATING THE HANDLING OF ADMINISTRATIVE
VIOLATIONS AND THE COERCIVE IMPLEMENTATION OF ADMINISTRATIVE DECISIONS IN
CUSTOMS
Pursuant to the Law on handling of
administrative violations dated June 20, 2012;
Pursuant to the Law on Customs of June 29th,
2001; the Law on amendment, supplementation of a number of articles of the Law
on Customs of June 14th, 2005;
Pursuant to the Law on Tax Administration of
November 29th, 2006; the Law on amendment, supplementation of a number
of articles of the Law on Tax Administration of November 20th, 2012;
Pursuant to Decree No. 81/2013/ND-CP dated
July 19th, 2013 of the Government detailing a number of articles and
implementation methods of the Law on handling administrative violations;
Pursuant to Decree No. 83/2013/ND-CP of July
22, 2013 of the Government detailing the implementation of the Law on Tax
Administration and the Law on amendment, supplementation of a number of
articles of the Law on Tax Administration;
Pursuant to Decree no. 127/2013/ND-CP of
October 15, 2013 of the Government stipulating the handling of administrative
violations and the coercive implementation of administrative decisions in
customs;
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At the proposal of the General Director of
the General Department of Customs,
The Minister of Finance promulgates Circular
detailing the implementation of the handling of administrative violations and
the coercive implementation of administrative decisions in customs as follows:
Chapter I
SANCTION OF
ADMINISTRATIVE VIOLATIONS IN CUSTOMS
Section 1. GENERAL PROVISIONS
Article 1. Scope of
regulation and subjects of application
1. This Chapter detailing the implementation of
a number of articles of Chapter I of Decree No. 127/2013/ND-CP of October 15,
2013 of the Government stipulating the sanction of administrative violations
and the coercive implementation of administrative decisions in customs (below
referred to as Decree).
2. Individuals, organizations committing
administrative violations in customs intentionally or unintentionally, but not
being crimes, shall be sanctioned in accordance with provisions of the Decree
on the sanction of administrative violations and the coercive implementation of
administrative decisions in customs.
Article 2. Application of
legal normative documents
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2. The application of provisions in sanction of
administrative violations in customs shall comply with provisions of Article 83
of the Law on promulgation of legal normative documents 2008, Article 3 of the
Resolution No. 24/2012/QH13 of June 20th, 2012 of the National
Assembly on the implementation of the Law on handling of administrative
violations.
3. The principal in sanction of administrative
violations as specified in Article 3 of this Circular shall be applied to
sanction administrative violations in customs as specified in the Decree No.
127/2013/ND-CP of October 15th, 2013 of the Government stipulating
the sanction of administrative violations and the coercive implementation of
administrative decisions in customs.
Article 3. Application of
principals for sanction of administrative violations
1. Individuals, organizations committing
violations of provisions on state management in customs shall be sanctioned in
accordance with provisions of the Decree on the handling of administrative
violations and the coercive implementation of administrative decisions in
customs or Decrees of the Government on sanction of administrative violations
which are related to customs.
Individuals, organizations which have committed
administrative violations, but refused to receive commodities shall still be
legally responsible for their violations according to provisions.
2. First violation in customs as specified in
clause 2 Article 2 of this Decree is the case that an individual or an organization
has not previously been sanctioned administrative violations in customs or has
been sanctioned administrative violations in customs for more than 06 months,
since the date of finishing the implementation of the sanction decision of
warning, or more than 01 year, since the date of finishing the implementation
of other decisions on administrative sanction or without repeating an offence
since the date that the statute of limitations for implementing the decision on
sanction of administrative violations is expired.
3. In case the violation in customs is the
consequence of another violation in the same customs domain, offender shall
only be sanctioned for violation having tougher sanction.
Article 4. Cases not being
sanctioned for administrative violations in customs domain
The application of cases not being sanctioned
for administrative violations in customs according to Article 5 of the Decree
shall be implemented as follows:
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Non-informed cases shall be handled according to
prevailing laws.
Definition of accidental events or force majeure
events shall comply with provisions in clause 13, clause 14 of Article 2 of the
Law on handling of administrative violations.
2. Notification on mistakes as specified in
clause 2 Article 5 of the Decree must be carried out in writing with
clearly-stated reasons by the consignor, the consignee or the legal
representative and be sent to the customs offices together with documents
relating to the mistakes before the time that the customs offices decide to
check actual conditions of goods or decide not to check actual conditions of
goods; be accepted by the heads of customs offices where customs dossiers are
received and handled. The rejection of mistakes must be made in writing with
clearly-stated reasons by the customs offices.
In case there are evidences proving collusions
between consignors, consignees and / or transporters in order to commit tax
fraud, to transport goods illegally through borders or to smuggle, then customs
offices have the right to refuse acceptance of mistakes.
3. Decisions on inspection of actual conditions
of goods or decisions on exemption of checking actual conditions of goods as
specified in clause 2 Article 5 of the Decree shall be made by determining
lines for goods declaration forms by the data processing system or by approvals
of competent persons in the customs declaration forms.
4. Provisions in clause 3 of Article 5 of the
Decree shall apply to cases of amendment or supplementation of declarations in
customs dossiers as specified in clause 2 of Article 22 of the Law on Customs,
clause 2 of Article 34 of the Law on Tax Administration and provisions in
Article 14 of Circular No.128/2013/TT-BTC of September 10th, 2013 of
the Ministry of Finance guiding customs procedures; customs inspection and
supervision; taxes on import, export and tax administration of imported,
exported goods.
5. For cases as provided in clauses 4, 5 and 7
of Article 5 of the Decree:
a) At the time where the violations are
discovered, if having sufficient grounds for determining cases not being
sanctioned, then the sanction competent persons shall only make the minutes for
certification and keeping in dossier;
If there are insufficient grounds for
determining violation of being sanction cases or not being sanction cases, then
the customs officers who are carrying public services shall make minutes on
administrative violations in customs; based on customs dossiers, relevant
documents, the minutes on administrative violations in customs, the sanction
competent persons as defined in clauses 2,3,4,5 of Article 19 of the Decree
shall decide to sanction or not to sanction;
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6. When there are sufficient grounds proving the
custom declarers state correct names of goods being actually exported or
imported but state tax codes or first tax rate wrongly, the customs offices
shall provide guidance on correct tax codes, tax rates and make the minutes for
certification, without sanction.
7. The wrong declaration of a tax code or a tax
rate shall be considered as first time if it is fully meet the following
conditions:
Individual or organization has not yet exported
or imported such commodity;
Not yet being guided, determined tax code or tax
rate of such commodity by the Customs Office or being guided wrongly.
8. The following cases are determined as being
guided, determined tax codes or tax rates by the customs offices:
Being guided by the customs office in declaring
tax codes or tax rates and the minutes for certification of guiding declaration
of tax codes, tax rates;
The Customs Offices issued documents to
determine tax codes, tax rates in advance;
The Customs Offices determined tax codes, tax
rates for commodities and issued decisions on tax assessment.
9. In case of importing goods, articles
violating provisions on customs declaration, violating provisions of Article 14
of the Decree, but postal enterprises or express delivery enterprises carry out
customs procedures on behalf of the goods owners according to legal provisions,
if there are no grounds proving the collusion between consignors, consignees
and customs declarers for fraudulent purposes, no sanction is made.
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In case of requirement for determining the value
of material evidence involved in administrative violations to do as basis for
determination of fine frame and sanction jurisdiction, the unit which has
discovered the violations must determine the value of material evidences and be
responsible for such determination.
The determination of the value of material
evidences shall be carried out as follows:
1. For material evidence not being seized, the
value of material evidence or means involved in violations is the customs
value, being determined according to prevailing provisions on determination of
customs value at the time of making the minutes on violations; if it is foreign
currency, the exchange rate is determined in accordance with the Law on import,
export taxes and legal documents guiding the implementation.
2. For commodities, material evidences being
seized, it shall depend on each category of specific commodity or material
evidence, and the value determination shall be carried out in accordance with
provisions in Article 60 of the Law on handling of administrative violations.
3. Documents pertaining to the valuation must be
presented in the dossier on handling of administrative violations, implementing
the value determination of goods, material evidence involved in violations.
Article 6. Handling of
goods, means involved in violations not being applied with the sanction form of
confiscation
1. Commodities or means being temporarily held
but not being seized, the persons who have issued decisions on temporary hold
shall issue decisions on returning.
2. Commodities, means being returned shall be
carried out with customs procedures or be delivered out of Vietnam or be
re-exported in accordance with provisions; if commodities are subjects of
application of the Law on import, export taxes and other relevant taxes, taxes
must be paid in accordance with provisions.
Section 2. APPLICATION OF
SANCTION FORMS AND SANCTION RATES
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1. Time limit for carrying customs procedures as
defined in Article 6 of the Decree is the time limit as specified in Article 18
of the Law on Customs and legal normative documents having provisions on time
limit for carrying customs procedures in each form of import or export;
transportation means on entry or exit.
2. In case the enterprise being sanctioned with
act of late submission of documents under the customs dossier being entitled to
late submission as defined in point b clause 1 Article 6 of the Decree, but
still does not submit additional documents being entitled to a late submission,
the customs office shall consider a settlement of commodities based on the
existing dossier.
3. In case where a customs declarer suggests to
adjust the norm in production of processed products; the norm in production of
exported products after the provided time, if such norm adjustment is accepted
by the Head of the Customs Sub-Department then the sanction shall comply with
point g clause 2 Article 6 of the Decree.
4. Acts violating provisions in point d, e of
clause 2; points a, b of clause 3; clause 4 of Article 6 of the Decree shall
only be sanctioned if the time of being re-exported or re-imported is mentioned
in the license, the customs declaration form or other documents according to
legal provisions.
5. The time limit in point b clause 2 Article 6
of the Decree is the time limit for report, liquidity, tax finalization,
consideration of contractual tax refund, the customs declaration form, the
commodity, the materials, the raw materials as specified in legal normative
documents in customs sector.
6. The determination on number of seats for the
violating transportation means as defined in clause 4 Article 6 of the Decree
shall be based on the registration paper for circulation of passenger
transportation means. In case where the registration paper for circulation of
passenger transportation means does not state number of seats, then the number
of seats shall be determined in accordance with the actual inspection or
supervision of the transportation means.
Article 8. Violations
against regulations of customs declaration as defined in Article 7 of the
Decree.
1. For acts which do not declare and wrongly
declare goods under the list of humanitarian aid or non-refundable aid goods
being certified by the Ministry of Finance or a state agency being authorized
by the Ministry of Finance, the sanction shall comply with point b clause 1
Article 7 of the Decree.
In case where a commodity is not under the list
being certified by competent state agencies, the sanction shall be based on
violations in accordance with Article 8 of the Decree or clause 2 Article 14 of
the Decree.
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3. Provisions in clause 3 Article 7 of the
Decree shall apply in the cases of wrong declarations and do not cause lack of
payable taxes or increase of taxes being exempt, reduced, refunded, uncollected
or not under cases of tax frauds or evasion.
4. Provisions in clause 4 of Article 7 of the
Decree shall apply in cases of customs declaration and clearance but do not
export or export insufficiently in comparison with customs declaration. This
provision does not apply to cases that customs declaration forms are not valid
in customs clearance as specified in clause 2 of Article 18 of the Law on
Customs.
Article 9. Violations
against regulations on tax declaration as defined in Article 8 of the Decree.
1. The sanction as specified in Article 8 of the
Decree shall apply to violations under forms of import, export of commodities
leading to lack of payable taxes or increase of taxes being exempt, reduced,
refunded or uncollected.
2. For acts which do not declare or wrongly
declare name of commodities, types, quantities, weights, qualities, value,
codes, tax rates, origin of import or export goods, inspection are needed for
verification; if it is not cases as specified in clause 1 Article 13 of the
Decree, the sanction shall comply with provisions in Article 8 of the Decree.
3. For acts which declare more than the actual
export of goods being processed products, products being produced from imported
materials (including materials being processed for re-export, materials being
imported for production and re-export) and re-exported goods in terms of types,
quantities, weight leading to a tax difference of under VND 100,000,000 shall
be fined in accordance with provisions in point a, clause 2 Article 8 of the
Decree. In case of a tax difference from VND 100,000,000 and above but still
under the level of being examined for penal liability, sanction shall comply
with point dd clause 1 Article 13 of the Decree.
Article 10. Violations
against regulations on customs declaration of people who leave or enter
Vietnam, with regards to foreign currencies in cash, Vietnam Dong in cash, gold
as specified in Article 9 of the Decree.
1. Violations prescribed in Article 9 of the
Decree shall apply to cases of persons on exit or entry using passports,
laissez passers, border identity cards violating provisions on customs
declaration; violating provisions on bringing foreign currencies in cash, gold
which are not permitted to bring along upon doing entry or exit procedures.
Other cases of bringing foreign currencies in cash, Vietnam Dong in cash or
gold illegally through the borders shall be sanctioned in accordance with
Article 12 of the Decree.
2. Value of illegal material evidence is the
value after being deducted the value of foreign currencies, gold or Vietnam
Dong which are not required to declare as prescribed by law.
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Article 11. Violations
against regulations on customs inspection, tax inspection; customs supervision;
customs control in accordance with Articles 10, 11 and 12 of the Decree
1. Provisions in point b clause 2 Article 10 of
the Decree shall apply to cases of legal normative documents having provisions
on storage of samples, dossiers or documents.
2. Clause 4 Article 10 of the Decree shall apply
to cases of failure to implement contents required by customs offices in
compliance with relevant legal normative documents for tax examination or
inspection.
3. When acts as specified in point b clause 5
Article 10 of the Decree are discovered, forged customs seals, documents and
materials must be sequestered. In cases of sequestered documents are licenses,
the licensing agencies must be informed in writing.
4. Violations against regulations on transport
of goods in transit, change of port, change of border gate, goods of trading in
temporary import for re-export in contrary to routes, locations, border gates,
time stated or registered in customs dossiers without explanation or with
explanation but without legitimate reasons and without approval of head of
customs sub-department, sanction shall comply with point a Clause 1 Article 11
of the Decree.
5. Provisions in points d, dd clause 1 Article
11 of the Decree shall apply in cases where fringing material evidence has not
been scattered or consumed. In cases where fringing material evidence has been
scattered or consumed, the sanction shall comply with point a, point b of
clause 2, point a, point b of clause 3 of Article 11 or point d clause 5
Article 12 of the Decree.
6. For violations prescribed in clause 2 Article
12 of the Decree:
Violations prescribed in clause 2 Article 12 of
the Decree which have been carried out by persons under 14 year-old shall be
recorded in writing for confirmation, be issued with decisions to confiscate or
destroy material evidence;
b) In cases where goods being illegally
transported through borders or having no valid documents as specified in clause
2 of Article 12 of the Decree are discovered, but subjects of violations have
escaped and left behind them the fringing material evidence or transportation
means, then records on administrative violations must be made in accordance
with Article 58 of the Law on handling of administrative violations if there
are grounds for determination of subjects of violations (names, addresses of
the fringing individuals or organizations); or records on certification of
matters and handling of material evidence if subjects of violations, owners of
the fringing material evidence or transportation means cannot be identified
must be made.
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1. Materials, documents as prescribed in point
a, clause 1 of Article 13 of the Decree shall be comprised of materials,
documents which have been submitted or presented to customs offices during
doing customs procedures and after customs clearance shall be bases for
determination or demonstration of payable taxes.
2. Failure of declaration or wrong declaration
on names of goods, types, quantities, weight, qualities, value, codes of goods,
tax rates, origin of exported or imported goods which are discovered after the
goods have been conducted customs clearance, but the infringers do not
voluntarily pay full taxes or not yet paid taxes in full as required before
records of violations are made by customs offices, then the sanction shall
comply with point c clause 1 Article 13 of the Decree.
3. Violations which are related to exported
goods being processed goods, products manufactured
from imported raw materials, including raw materials processed for re-export,
raw materials imported for re-export production: In cases of carrying
out the export procedures but fail to export, the sanction shall comply with
point d, clause 1 Article 13 of the Decree. This provision does not apply to
cases that customs declaration forms are not valid in customs clearance as
specified in clause 2 Article 18 of the Law on Customs.
4. Acts as specified in point 1 clause 1 Article
13 of the Decree shall apply when customs offices have enough grounds to
determine that tax payers have known well the actual export or import of goods
but they have not declared or have declared wrongly in order to get tax evasion
or tax frauds.
5. Grounds for determination of tax difference
with the acts that lead to the declaration in lack of the tax payable or
increase of tax exempted, reduced or refunded; tax evasion or tax frauds are:
Tax statements of the tax payers and decisions on tax imposition of competent
authorities or tax payable under regulations.
Article 13. For violations
pertaining to licenses, conditions for export or import
1. Licenses, conditions, standards, criteria as
specified in Article 14 of the Decree are licenses, conditions, standards,
criteria as specified in the Decree of the Government detailing the
implementation of the Law on Commerce, legal documents guiding the
implementation and other legal normative documents stipulating licenses,
conditions, standards or criteria for imported or exported goods.
2. In cases that goods are under the list of
imported goods which are subject to licenses granted by the Ministry of
Industry and Trade or under the management of specialized Ministries (not under
list of goods banned from importation), within the time limit of customs
clearance but the owners do not carry out import procedures but request for
re-export, shall not be sanctioned.
3. For goods which are required to have import
or export licenses, the enterprises presents such licenses but the actual
quantities or weights of goods are more than the quantities or the weights as
stated in those licenses, then goods are out of those licenses shall be
sanctioned in terms of acts of goods import or export without licenses.
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5. For violations which are related to licenses,
conditions, standards, criteria for importation as specified in clause 3;
clause 4; points c, d clause 5 Article 14 of the Decree, but the imported
licenses have been granted by the competent authorities before the time of
decisions on sanction, then remedial measures of removal from the territory of
Vietnam shall not be applied.
In cases where decisions on sanction and
application of remedial measures of "removal from the territory of Vietnam
or re-export" have been issued but within 30 days since the date of
receiving decisions on sanction, the competent authorities allowed the
importation and the goods have not been removed from Vietnam, then importation
is allowable.
Article 14. Violations
against regulations on bonded warehouses, tax-suspension warehouses
Owners of goods who do not carry out procedures
to extend their warehouse leasing contracts under law, do not notify customs
offices, do not remove their goods from bonded warehouses after their warehouse
leasing contracts are expired, shall be sanctioned according to clause 1
Article 15 of the Decree, the goods shall be handled according to clause 4
Article 24 of the Decree No. 154/2005/ND-CP dated December 15th, 2005.
Article 15. Handling of
violations of the State Treasuries, credit institutions and relevant
individuals, organizations
1. Clause 1 Article 16 of the Decree shall apply
to cases of more than 10 days since the expiry date of transferring money from
bank accounts but the State Treasuries, credit institutions fail to extract,
transfer all or parts respectively which are equal to the tax payable, from
bank accounts of organizations or individuals those are forced for execution of
administrative decisions to the Government Budget’s revenue accounts or the
customs offices’ deposit accounts at State Treasuries, as per requirements of
the customs offices, when the time of receiving the coercive decisions, the
bank balance of violators are sufficient or excessive in comparison with taxes
or fines payable.
2. Provisions at clause 3, Article 16 of the
Decree shall not apply to organizations or individuals who are subjects of tax
payment. Organizations, individuals that are subjects of tax payment, having
violations against regulations on information provision shall be sanctioned
according to point b clause 3 Article 10 of the Decree.
Section 3. IMPLEMENTATION OF MEASURES FOR PREVENTING ADMINISTRATIVE VIOLATIONS AND
ENSURING THE SANCTION OF ADMINISTRATIVE VIOLATIONS; SANCTION JURISDICTION
Article 16. Application of
measures for preventing administrative violations and ensuring the sanction of
administrative violations.
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2. When there are grounds through risk
management systems or related information to confirm that individuals are
keeping drugs in their bodies, the competent persons shall carry out physical
inspection directly or may use technical means or equipments for searching.
3. Temporary seizure of material evidence or
transportation means of administrative violations in cases that violations are
far beyond the sanction jurisdiction of the Directors of Customs Departments,
the Director of the Anti-smuggling and Investigation Department, the Director
of the Post-Clearance Audit Department:
Persons who have sanction powers as specified in
clauses 3, 4 Article 19 of the Decree shall carry out their issuance of
decisions on temporary seizure of material evidence or transportation means of
administrative violations according to clause 1 Article 125 of the Law on
handling of administrative violations; be responsible for reservation of
material evidence or transportation means of administrative violations in
compliance with the Law on handling of administrative violations and carry out
the handling of such material evidence or transportation means as per decisions
of competent persons.
Article 17. Inspection of
transportation means, objects in accordance with administrative procedures
1. Inspection of transportation means, objects belongings of the entity entitled to immunity must comply
with the International Agreements to which Vietnam is a signatory or a
participant and must have decisions of the Director General of the General
Department of Customs.
2. When having grounds to confirm that the luggage
of person entering or existing Vietnam is entitled to immunity and privileges
containing goods which are not entitled to immunity, or banned from import,
export or goods do not comply with quarantine regimes of Vietnam, then the
inspection shall be carried out according to decision of the Director General
of the General Department of Customs, with the witness of the diplomat or his/
her authorized representative.
Article 18. Determination
of sanction jurisdiction
1. The fining jurisdiction over tax violations
as specified in Article 8, Article 13 and point a, clause 1 Article 16 of the
Decree of those persons as stated in clause 7 Article 19 of the Decree are
determined in accordance with the Decree, without limitation of maximum level
of fines.
2. For administrative violations in which
dossiers are related to many customs offices, the customs offices have firstly
discovered and recorded the administrative violations shall have their
jurisdiction in issuing decisions on sanction; other relevant customs offices
shall be responsible for transferring all related documents as per requests of
those customs offices handling cases of violations.
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a) Violations pertaining to goods in transit,
goods of temporary import for re-export discovered by border-gate Customs
sub-Departments, if there are signs of criminals, those border-gate Customs
sub-Departments shall request Customs sub-Departments where customs clearance
forms are made to transfer all related dossiers for handling in accordance with
criminal proceedings;
b) Goods in transit, goods of temporary import
for re-export having administrative violations, then border-gate Customs
sub-Departments shall transfer relevant dossiers to Customs sub-Departments
where customs declaration forms are made to sanction under their jurisdiction.
If material evidence are goods banned from import, toxic waste or contaminating
epidemics, detected at border gates, Customs sub-Departments where customs
declaration forms are made shall transfer all relevant dossiers to Customs
sub-Departments where sanction are being carried out within their jurisdiction.
Within 05 (five) days since the date of issuing
the handling decisions, Customs sub-Departments presiding over handling shall
notify the handling results to relevant Customs units.
4. When customs violations are detected,
competent persons need to compare with provisions of the Penal Code in order to
determine whether those are administrative violations or criminals. Cases with
criminal signs shall be handled in accordance with law on criminal procedure.
Dossiers for cases with signs of tax fraud shall be transferred to competent
authorities for investigation under regulations within 10 (ten) days, since the
date of being detected.
5. Violations being detected by units under
Anti-smuggling and Investigation Department with penalty levels go beyond
jurisdiction of Heads of Anti-smuggling and Control Squads, Heads of
Intellectual Property Rights Protection and Control Squads and Heads of
Maritime Control Squads under the Anti-smuggling and Investigation Department,
sanction jurisdiction shall be implemented by the Director of the
Anti-smuggling and Investigation Department under the General Department of
Customs according to regulations.
6. In cases, main sanction form (fine) are under
sanction jurisdiction of Customs offices, but supplement sanction form or
remedial measures are not under jurisdiction of officers handling violations,
they shall transfer dossiers immediately to competent authorities according to
regulations.
7. For administrative violations in customs
domain having sanction forms or levels, values of material evidence or
transportation means of administrative violations being confiscated or remedial
measures going far beyond the jurisdiction of Directors of Customs Departments;
Directors of Anti-smuggling and Investigation Department, Directors of
Post-clearance Inspection Departments shall transfer dossier themselves or
through local Customs Departments to People’s Committees of provinces and
centrally-run cities (hereinafter collectively referred to as provincial-level
People’s Committees) where violations are occurred in order for Chairpersons of
provincial-level People’s Committees to issue sanction decisions.
Article 19. Delegation of the power to handle administrative
violations
1. Delegation of the power to handle
administrative violations of titles as specified in clauses 2, 3, 4, 5 and
clause 7, Article 19 of the Decree shall only be with deputies. The delegation
of the power must be assigned in writing. In delegation documents, there are
necessary to clearly determine the scope, contents and time limits of
delegation. In cases of temporary seizure of persons according to
administrative procedure, the delegation of power shall only be carried out
when the Heads are absent.
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2. Not using decisions on task assignments or
internal management of units for replacement of documents delegating power to
handle administrative violations.
Section 4. PROCEDURE FOR
SANCTION OF ADMINISTRATIVE VIOLATION AND IMPLEMENTATION OF DECISIONS ON
PENALTIES OF ADMINISTRATIVE VIOLATIONS
Article 20. Making records
of administrative violations
Making records of administrative violations,
jurisdiction in making records of administrative violations shall comply with
Article 58 of the Law on handling administrative violations, Article 6 of
Decree No. 81/2013/ND-CP dated July 19th, 2013 of the Government
detailing a number of articles and implementation measures of the Law on
handling administrative violations, Article 18 of Decree No. 127/2013/ND-CP
dated October 15th, 2013 of the Government stipulating sanction of
administrative violations and coercive implementation of administrative
decisions in customs domain.
Article 21. Transfer of
dossiers for sanction of administrative violations, extension of time lime for
issuing decisions of penalties in cases of violations going beyond the power to
sanction of Directors of Customs Departments, Directors of Anti-smuggling and
Investigation Departments, Directors of Post-clearance Inspection Departments
1. When dossiers of administrative violations in
customs domain being transferred to Chairpersons of provincial-level People’s
Committees for implementation of sanction under their jurisdiction, the
hand-over of such dossiers must comply with provisions. Time of dossier
transfer shall be as follows:
Within 05 (five) days, since the date of records
on administrative violations, Directors of Customs Departments, Heads of
Anti-smuggling and Investigation Departments, Heads of Post-clearance
Departments shall send dossiers, proposals of sanction forms of administrative
violations for Chairpersons of provincial-level People’s Committees to consider
and decide.
For cases of administrative violations having
complicated details but that are not under cases of explanation or for cases
that are required to have explanation according to clause 2 and clause 3,
Article 61 of the Law on handling administrative violations, the
above-mentioned time limit shall not exceed 20 days, since the date of records
on administrative violations. If material evidence of violation is temporary
hold, customs offices shall be responsible for management and handling
according to Article 82, Article 126 of the Law on handling administrative
violations.
2. In specially serious cases, having
complicated details and under cases of explanation according to clause 2,
clause 3 of Article 61 of the Law on handling administrative violations, which
need more time to verify or to collect evidences being grounds for
determination of violations, Directors of Customs Departments, Directors of
Anti-smuggling and Investigation Departments, Directors of Post-clearance
Inspection Departments shall report to the Director General of Customs to get
extension of time limit for issuing decisions on sanction.
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1. When considering violations for handling,
persons competent to sanction of administrative violations who are unable to
differentiate administrative violations or criminals yet, shall issue documents
exchanging opinions together with photocopied dossiers of those cases and send
to relevant agencies conducting criminal legal proceedings (Procuracies or
Investigation agencies) before issuing decisions on sanction of administrative
violations or criminal handling. Within 10 (ten) days, since the date of
documents exchanging opinions and enclosed dossiers but having no response from
agencies conducting criminal legal proceedings, persons competent to sanction
of administrative violations shall handle violations according to provisions and
afterwards send 01 decision to those agencies in which opinions have been
exchanged for reference.
In cases the agencies conducting criminal legal
proceedings request to transfer dossiers for their consideration and handling,
they shall comply with Article 62 of the Law on handling administrative
violations.
2. If it is confirmed that those violations
having criminal signs, persons competent to sanction who are handling those
cases shall transfer dossiers to competent officials for consideration and
initiating lawsuits (for crimes as specified in Article 153, Article 154 of the
Penal Code) or transfer dossiers to propose competent agencies conducting
criminal legal proceedings for consideration and initiating lawsuits for cases
having signs of other crimes.
3. In case where agencies conducting criminal
legal proceedings notify on decisions on institution of criminal cases, customs
offices shall transfer original dossiers of violations to competent agencies
conducting legal proceedings within 05 (five) days, since the date of receiving
notices.
Article 23. Issuance of
sanction decisions
1. When sanctioning administrative violations in
customs domain under forms of giving warnings or imposing a fine of up to VND
250,000 for individuals, VND 500,000 for organizations, competent officials
shall issue decisions on sanction on the spot.
2. Decisions on sanction of administrative
violations shall come into force since the signing date, except otherwise
provided for by those decisions. Within 10 (ten) days since the date of
receiving decisions on sanction, individuals or organizations being sanctioned
must execute those decisions on sanction.
3. Issuance of decisions on sanction shall
comply with Article 67, 68 of the Law on handling administrative violations,
Article 6 of Decree No. 81/2013/ND-CP dated July 19th, 2013 of the Government
detailing a number of articles and implementation measures of the Law on
handling administrative violations.
4. Time limit for issuing a decision on sanction
is 07 (seven) days, since the date of making the record on administrative
violation.
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5. Diplomatic officials, consular officials
taking advantages of preferences, privileges in order to conduct commercial
activities which are out of their scope of functions and commit administrative
violations in customs domain, then before sanction, it is needed to have
discussions with diplomatic agencies, consular agencies of countries where
offenders are working.
Article 24. Implementation
of sanction decisions
1. The implementation of decisions on sanction
shall comply with Section 2, Chapter III, Part No.2 of the Law on handling
administrative violations.
2. Competent officials issued decisions on
sanction shall be responsible for supervising, checking and urging the
implementation of decisions on sanction of individuals or organizations being
imposed with penalties and for issuing coercive decisions in cases of decisions
on sanction are not being executed within stipulated duration.
3. Decisions on sanction
being issued by Chairpersons of provincial-level People’s Committees, Heads of
units where transfer dossiers of violations shall be responsible for
supervising the implementation of decisions on sanction and for reporting the
implementation situations of decisions on sanction to Chairpersons of
provincial-level People’s Committees.
In cases, decisions on sanction are not executed
within stipulated time limit; those officials shall be responsible for
proposing the application of coercive measures for Chairpersons of
provincial-level People’s Committees to issue coercive decisions.
Article 25. Management of
money being collected from sanction of administrative violations
All amounts of money being
collected from sanction of administrative violations (including fines on
administrative violations, interests from late implementation of decisions on
fines; money being collected from sale or liquidation of material evidence or
transportation means of administrative violations which have been confiscated
or other sums of money) must be deposited into temporary seizure accounts of customs
offices being opened at the State Treasury according to prevailing provisions.
After the time limit for making complaints are expired or complaints have been
finally settled, based on results of handling, customs offices shall transfer
such amounts from the temporary seizure accounts into the State Budget in
accordance with the Law on State Budget.
Article 26. Supervision of
removing out of the territory of Vietnam or re-export of illegal goods
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Results of supervision must be verified in
writing by the exporting border-gate Customs offices and be sent back to units
which issue decisions on sanction within 05 days since the date of removal of
illegal goods out of the territory of Vietnam or re-export for archival of
dossiers of cases.
Article 27. Handling late
payments of fines
If individuals, organizations being sanctioned
on administrative violations in customs domain are late in paying fines within
time limit of implementing decisions on sanction of administrative violations,
in addition to full payments of fines, those individuals or organizations have
to pay an additional payment of 0.05% per day being counted on the total unpaid
fine for every day of late payments.
The period during which cases are considered,
decided to reduce or to exempt the remaining fines or to permit payments of
fines in many times shall not be included in the periods of late payments.
Chapter II
COERCIVE IMPLEMENTATION
OF ADMINISTRATIVE DECISIONS IN CUSTOMS DOMAIN
Section 1. GENERAL
PROVISIONS
Article 28. Scope of
regulations and subjects of application
This Chapter details the implementation of a
number of articles of Chapter II, Decree No. 127/2013/ND-CP of October 15th,
2013 of the Government stipulating sanction of administrative violations and
coercive implementation of administrative decisions in customs domain.
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1. Customs offices at all levels are responsible
for supervising, managing entities which owe taxes, fines; usually classify
debtors, debts in order to urge and to collect debts before the time of applying
coercive measures.
Forms of urging, collecting outstanding taxes or
fines:
a) To send notices to request tax payers or tax
guarantors for full payments of outstanding taxes or fines;
b) To directly go to the headquarters of the tax
payers to request for payments of outstanding taxes or fines;
c) To notify on network systems about the list
of debtors of taxes or interests;
d) To publicize on mass media about subjects
owing taxes, fines; amounts of outstanding taxes or fines.
2. When tax payers, tax guarantors owing taxes
or fines receive notices from customs offices about debts of taxes or fines,
they shall have to quickly settle full payments of taxes or fines according to
legal provisions. If it is beyond the deadline as specified in Article 26 of
the Decree and the implementation is still not been made, coercive measures as
specified in Article 27 of the Decree shall be applied.
Article 30. Coercion in
cases of imposing taxes on post-clearance goods
In cases of imposing taxes on post-clearance
goods, if it is more than 90 days, since the date of issuing decisions on
imposing taxes and tax payers or tax guarantors do not voluntarily execute
decisions on imposing taxes, the Customs offices shall executive coercions in
compliance with provisions.
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1. Officials competent to issue of coercive
decisions must timely verify information and issue coercive decisions on
implementation of administrative decisions in customs domain in cases of ending
the stipulated period but tax payers or tax guarantors; individuals or
organizations that commit administrative violations do not voluntarily execute
the administrative decisions in customs domain or do have acts of dispersing
property or attempting to escape.
2. In case where coercive decision for a measure
has been no longer valid, if competent official who issued such coercive
decision confirms that there are grounds for continuing application of such
coercive measure for getting debts, fines or interests, then they are entitled
to issue other decision in replacement of invalid decision for continuing
implementation of such coercive measure.
Documents, papers being grounds for issuance of
coercive decisions must be kept in dossiers of cases.
Article 32. Organizing the
implementation of coercive decisions
Officials issuing coercive decisions of
executing administrative decisions in customs domain shall be responsible for
organizing the implementation of those coercive decisions.
2. For coercive decisions issued by Chairpersons
of provincial-level People’s Committees, Directors of Customs Departments,
Directors of Anti-smuggling and Investigation Departments, Directors of
Post-clearance Inspection Departments where proposed the issuance of coercive
decisions shall be responsible for organizing the implementation of such
coercive decisions and reporting results to Chairpersons of provincial-level
People’s Committees.
3. If applying coercive measures of seizing
properties; collecting money, properties being hold by other individuals or
organizations that have their headquarters located in other areas, Directors of
Customs Departments that control such areas shall be responsible for
coordinating with Customs Offices where coercive decisions are issued or
Customs Offices where bear responsibilities in organizing the implementation of
coercive decisions of Chairpersons of provincial-level People’s Committees in
order to organize the implementation of coercive decisions.
Article 33. Delay in
implementing coercive measures; Pausing the application of coercive measures of
stopping customs clearance
1. In cases of delay in implementing coercive
measures; pausing the application of coercive measures or stopping customs
clearance:
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b) Tax payers are entitled to delay in applying
coercive measures, stop customs clearance in accordance with clause 5, Article
46 of the Decree.
2. Formalities, competency of settlement:
2.1. Gradual payments of outstanding debts shall
comply with Article 39 of Decree No. 83/2013/ND-CP of July 22, 2013 of the
Government detailing the implementation of a number of articles of the Law on
Tax Administration and the Law on amendment, supplementation of a number of
articles of the Law on Tax Administration and Article 132 of Circular No.
128/2013/TT-BTC of September 10th, 2013 of the Ministry of Finance
guiding customs procedures; customs inspection and supervision; export taxes,
import taxes and tax management over import-export goods.
2.2. Cases of pause of the application of
coercive measures, stopping customs clearance for import-export goods as
specified in clause 5, Article 46 of the Decree:
a) Tax payers who are being imposed with
coercion send written documents to request for pausing the coercion to Customs
offices where coercive debts occur together with guarantee letters of credit
institutes regarding outstanding taxes, interests and fines;
b) Customs Departments where tax payers have
debts being imposed with coercive measures of stopping customs clearance shall
receive, check the accuracy, the sufficiency of dossiers and reports; proposals
shall be sent to the General Department of Customs within 05 (five) working
days since the date of receiving valid dossiers;
In cases of invalid dossiers, within 03 (three)
days since the date of receiving dossiers, customs offices which received
dossiers must notify tax payers for completing dossiers.
c) The General Department of Customs shall base
on provisions of clause 5, Article 46 of the Decree to do assessment on
dossiers, to get opinions of relevant units (if any), to report the Ministry of
Finance within 07 (seven) working days since the date of receiving valid
dossiers;
d) The Ministry of Finance shall consider,
settle the postponement of coercive measures, stopping customs clearance for
each specific case at the proposals of the General Department of Customs within
05 (five) working days since the date of receiving reports from the General
Department of Customs;
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3. Documents on pausing the implementation of
coercive decisions of tax administrative decisions in customs domain for cases
being permitted by Customs offices to gradually pay outstanding taxes and cases
of pausing the application of coercive measures, stopping customs clearance
shall comply with sample of decision (QD-59) which is attached to this
Circular.
Article 34. Coercion in
cases tax payers have not executed tax administrative decisions in customs
domain but to have acts of escaping, scattering properties
1. Signs of escaping, dispersing properties
a) Signs of escaping:
Tax payers who have not executed tax
administrative decisions no longer operating their productions or businesses at
registered locations with verification by People’s Committees of communes,
wards or towns or residential groups where coercive subjects having business
activities or according to notices of tax agencies regarding coercive subjects
have stopped their operations (including cases of dissolutions without
following orders of the Law on Enterprise);
b) Signs of dispersing properties
Tax payers who have not executed tax
administrative decisions but to carry out procedures of transferring, giving,
selling properties, clearing or dispersing the balances of bank accounts
extraordinarily without concerns with normal transactions or through check at
enterprises detecting that there are no more goods.
2. Competent officials who issued coercive
decisions shall base on verified information to issue decisions on application
of conformable coercive measures in accordance with formalities, orders of each
measure as specified in Chapter II of the Decree and provisions of this
Circular in order to collect full taxes, fines and interests (if any) for the
State Budget.
Article 35. Expenses in
coercive implementation of administrative decisions
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Expenses in mobilizing persons to execute
coercive decisions: expenses for agencies, organizations or individuals that
directly get involved in coercive implementation of administrative decisions
such as: officials issuing coercive decisions, officials implementing coercive
decisions, protection police, medical staffs, representatives of local
authorities, representatives of social organizations, etc;
Expenses in valuation of properties, auctions of
properties: remunerations for members of valuation councils; expenses in
assessment of properties (if any); rents of locations, means for organizations
of auctions, notifications, expenses in organizations of revaluation of
properties; expenses in posting auction notices on mass media; rental expenses
for keeping or reserving properties; rents for transporting things, properties
being imposed with coercive decisions;
Expenses for renting means to dismantle and
transport things, properties; expenses for buying fuels, renting means,
protection equipments, medical equipments to serve the implementation of
coercive decisions;
Rental expenses for keeping or reserving
properties have been seized;
Expenses for prevention of fire or explosion (if
any): Renting fire engines, renting equipments preventing and fighting fire,
checking and destroying bombs or mines, and other necessary means or equipments
preventing fire or explosion;
Expenses for posting information about tax
debtors on mass media;
Other actual expenses serving the implementation
of coercive decisions (if any).
2. Levels of expenses
Expenses: Rent for keeping or preserving
properties; assessment of properties; rents of locations, means for organizing
auctions; posting information about auctions on mass media; rents for
transporting things or properties being imposed with coercive decisions……shall
be based on contracts, bills, invoices with legal and valid expenses in
accordance with regulations;
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In cases of having no provisions of the State,
officials conducting coercive decisions shall decide actual levels of expenses
which are accompanied by valid bills or invoices and shall be responsible for
their decisions.
3. Financial sources ensuring expenses for
implementing coercive decisions
Expenses for coercion of implementing coercive
decisions shall be borne by coerced subjects.
Customs offices where issued coercive decisions
shall put in estimates on coercive expenses in conjunction with the issuance of
coercive decisions and shall be entitled to settlement after completing
coercive cases.
If coercive expenses being borne by coercive
subjects but have not been collected fully by customs offices, customs offices
are entitled to get advances from operation expenditure sources of customs
domain and to get refunds immediately after completing collection of money from
subjects being imposed with administrative coercions. The advance payment level
must not exceed VND 100,000,000 (one hundred millions). If cases having huge
expenditure levels and amounts being permitted to pay in advance for use are
insufficient, officials issuing coercive decisions shall report to higher level
customs offices for consideration and settlement in each specific case.
Article 36. Exemption,
reduction of expenses for implementation of coercion
1. Individuals being coerced may be considered
for exemption or reduction of expenses in implementing coercion if they belong
to one of following cases:
a) Having economic difficulties: Individuals
having economic difficulties are individuals having incomes which do not
guarantee the minimum living standards in order for them to live a normal life
or having extremely economic difficulties prolonged by fire or natural disasters.
The minimum level of income is the level of income not subject to income tax
for high-income persons.
b) Being families which are enjoyed policies,
meritorious with the revolution;
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2. Procedures for being exempted or reduced of
coercive expenditures:
In order to be considered for
exemption or reduction of coercive expenditures, individuals must prepare
application for considering exemption or reduction of coercive decisions and
send to customs offices where coercive decisions are issued.
Being enclosed with an application form
includes:
a) For coerced subjects having economic
difficulties by natural disasters or fire, there must be verification of
commune-level People’s Committees where they are living or of Heads of agencies
or organizations where they are working;
b) Coerced subjects are individuals having
income levels which do not guarantee the minimum living standards in order for
them to live a normal life or being families which are enjoyed policies,
meritorious with the revolution shall carry out formalities, dossiers as
guidance of prevailing laws regarding recognition and settlement of legitimate
rights of revolutionary martyrs or families of revolutionary martyrs, war invalids
or persons who are entitled to policies as war invalids or sick soldiers;
c) Coerced subjects are individuals being
disabled or sick for long time shall have documents being certified by the
Medical Inspection Council or competent health care agencies in accordance with
provisions of the Ministry of Health.
3. Levels of exemption, reduction of expenses
for implementation of coercion
a) Coerced individuals have executed a part of
coercive expenditure having extremely difficult economic situations prolonged
by natural disasters or fire, shall be considered for reduction of remaining
expenditure for coercion;
b) The remaining cases shall be considered for
reductions of 50% (fifty percent) of expenditure payable for coercion.
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In cases that agencies issuing coercive
decisions have decisions on exemption or reduction of coercive costs, coercive
costs shall be taken from operating costs of those units.
5. Decisions on exemption or reduction of
coercive costs shall be cancelled if it is confirmed that coerced subjects have
acts of scattering or hiding money, properties in order to avoid the
verification of specific conditions for coercive implementation.
Section 2. COERCIVE
MEASURES AND ORDERS OF, PROCEDURES FOR COERCIVE IMPLEMENTATION OF
ADMINISTRATIVE DECISIONS IN CUSTOMS DOMAIN
Article 37. Coercion by
measures of deducting money from bank accounts of subjects being coerced to
implement administrative decisions at the State Treasury, commercial banks and
other credit institutes; requests of seizing bank accounts.
1. Subjects being coerced to execute tax
administrative decisions and organizations, individuals holding money of
coerced subjects shall be responsible for providing information on bank
accounts to competent officials who issue coercive decisions, such as: Banks
where bank accounts have been opened, numbers and notations of accounts,
current balance of accounts and other information pertaining to coerced
subjects as per requests of competent officials who issue coercive decisions.
2. Competent
officials shall base on available databases, outstanding taxes, fines, interests
being late more than 90 days and information being verified, collected to issue
coercive decisions on applying measures of deducting money from coerced
subjects’ bank accounts which have been opened at the State Treasury,
Commercial Banks, other credit institutes or issue decisions on transfer to
next coercive measures if the time limit specified in clause 1, Article 40 of
the Decree is over or if those bank accounts do not have balance.
3. If the balance is less than the amounts which
must be deducted from those banks of coerced subjects, the State Treasury,
commercial banks, credit institutes shall still have to deduct and transfer
such amounts; to continue deducting and transferring outstanding amounts when
there are transactions pertaining to those bank accounts of coerced subjects
within valid duration of coercive decisions.
4. If there are information on individuals,
organizations that have not executed tax administrative decisions in customs
domain having acts of scattering properties or escaping, competent officials
issuing coercive decisions shall issue coercive decisions in which requirements
are clearly stated or issue documents (if coercive decisions were issued before
that) requesting the State Treasury, Commercial Banks or other credit institutes
to deduct money from bank accounts of subjects being coerced with the
implementation of administrative decisions.
Article 38. Coercing by
measures of deducting a part of salary or income
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a) To issue coercive decisions on applying
measures of deducting a part of salary or income of the coerced individual if
such individual has legal income;
b) To decide transferring to implementation of
next coercive measures, if the coerced individual does not have a legal income
or within 3 (three) working days, since the date of receiving the request from
competent officials, the coerced individual or the organization, the individual
who pays the salary or the income and relevant organizations or individuals do
not provide information on the salary or the income of the coerced individual
to competent officials who issued coercive decisions.
2. The total salaries and incomes being the base
for deduction is all amounts of salaries, incomes of similar nature and other
legal incomes being arisen in the month.
Article 39. Coercing by
measures of stopping customs clearance for import-export goods
1. Competent officials shall base on available
databases, verified information and coercive results of deducting money from
coerced subjects’ accounts which have been opened at the State Treasury,
Commercial Banks, other credit institutes; based on coercive results of
applying measures of deducting a part of salary or income in order to issue
coercive decisions on applying measures of stopping customs clearance for
import-export goods.
2. Officials issuing coercive decisions shall be
responsible for publicizing coercive decisions on applying measures of stopping
customs clearance for import-export goods on the website of customs domain
within the time limit as specified in clause 3, Article 46 of the Decree.
Article 40. Coercion by
applying measures of property seizure, auction of seized property in accordance
with laws
1. To verify information on properties of
coerced subjects
a) Officials competent to issue coercive
decisions shall be entitled to send documents to coerced subjects; agencies
registering the ownership on properties; agencies registering secured
transactions and other relevant organizations or individuals to get
verification on properties;
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c) Information being verified shall include:
verified properties, values of the verified properties which are be reflected
in accounting books of the coerced subjects, results of productions and doing
business (for establishments having productions, doing business or providing
services) or economic situations (for non-business individuals); For assets
which are required to register, the transfer of those assets must base on
contracts for sale and purchase, conversion, assignment or donation,
certificates of the property ownership, the verification shall be implemented
through the owners, local authorities, competent agencies or witnesses such as
the verification of the sellers, local authorities or competent agencies on the
sale and purchase.
The verification must be formed in writing;
verified contents must be clearly stated, together with signatures of persons
or agencies providing the information;
d) Verified information on properties which are
required to register or to transfer the ownerships of properties may be
publicized widely in order for persons who have relevant rights or obligations
to know and to have their interests protected;
dd) For properties which have been legally
pledged or mortgaged and under the list of properties which are not permitted
to seize as specified in Article 49 of the Decree, agencies conducting the
seizure shall notify pledgees, mortgagees on obligations of coerced subjects
and request pledgees, mortgagees to notify agencies conducting the seizure in a
timely manner when pledgees or mortgagees settle their payment obligations according
to the pledge or the mortgage contracts;
e) Competent officials who issued coercive
decisions after verifying properties of tax payers at above-mentioned locations
shall need to determine amounts of money collectable for the state budget
through the application of these coercive measures by way of estimating values
of those properties after the auction.
In cases the amount of money collected from
coercive activities are not enough to compensate for coercive costs, the senior
agencies must be notified in order to postpone the issuance of coercive
decisions (except otherwise being exempted or reduced in costs of implementing
coercive decisions as specified in clause 4, Article 36 of this Circular);
g) If after 05 (five) working days, since the
date of sending verification documents of properties to coerced subjects;
agencies registering the ownership on properties; agencies registering secured
transactions and other relevant organizations or individuals do not provide or
provide insufficiently information on properties or in cases of determining the
coerced money are not enough to compensate coercive costs, the next coercive
measures shall be applied.
2. When issuing decisions on coercive measures
of property seizure for seized properties which are under list of properties
must be registered ownership, officials organizing the seizure shall
immediately notify the following agencies on the property seizure:
a) Land use right registration offices,
competent agencies for registration of assets attached to lands in cases of
seizing land use rights or assets attached to lands;
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c) Competent agencies for registration of ownerships
or other use rights in accordance with laws.
3. Procedures in implementing measures of
property seizure
a) The property seizure must be carried out in
day time and within administrative hours being applied at localities of
property seizure, except otherwise the coerced subjects being discovered to
have acts of escaping, scattering or destroying properties, competent officials
issuing coercive decisions shall be entitled to immediately organize the
property seizure in order to stop above-mentioned acts of coerced subjects;
b) In cases of seizing properties which are
residential houses or things being locked or packed, officials organizing the
seizure are entitled to request coerced subjects, persons who are using or
managing such properties to unlock or to unpack; if coerced subjects, persons
who are using or managing such properties do not unlock or intentionally
absent, the organizations conducting coercive decisions shall make records
(with the presence of local authorities and witnesses) of unlocking or
unpacking in order to check and list down details of properties and carry out
the seizure as provided by laws;
b) From the time of receiving notices on
property seizure, agencies registering ownerships or use rights of properties
shall not execute the registration of transactions of those properties, except
otherwise provided by laws.
Within 03 (three) working days, since the date
of releasing property seizure or completing the sale or the hand-over of seized
properties for coercive implementation of administrative decisions on taxation,
officials organizing the seizure must notify agencies registering ownerships of
properties, agencies registering secured transactions as specified in point c,
clause 3 of this Article.
4. Specific cases when conducting the seizure
a) Only do seizure of land use rights,
residential houses, headquarters of coerced subjects after completing seizure
of other properties but still not enough for implementing coercive decisions;
b) Only do seizure of properties of coerced subjects
which are sufficient enough for implementation of coercive decisions and
payment of costs for coercion. If the coerced subject has only one property
with its value is higher than the obligation of implementing the coercive
decision but cannot be divided or the division shall result significant
decrease of its value, officials organizing the seizure shall still be entitled
to seize such property in order to ensure the implementation of the coercive
decision;
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d) If coerced subjects suggest to seize their
common properties being movables which are in the common property block with
other persons, officials organizing the seizure shall carry out the seizure of
such properties, but they must ensure the priority in buying such properties of
the co-owners;
dd) If the coerced subject has no any other
property, agencies conducting the seizure shall be also entitled to seize those
properties being pledged or mortgaged in case the value of those properties is
higher than the guaranteed obligations. Agencies conducting the seizure shall
be responsible for notifying the pledgee or the mortgagee on the seizure.
5. To entrust the seized properties for
reservation pledgee
If coerced persons, persons who are using or
managing the properties, relatives of the coerced persons do not reserve or it
is confirmed that there are signs of scattering or destroying properties or
hindering the implementation of the coercive decisions, the coerced properties
shall be entrusted to other organizations or individuals that have favorable
conditions for reservation, depending on each specific case.
Officials conducting the seizure of properties
shall keep, reserve dossiers, documents on the ownership or use rights of
properties to be safe during the implementation of the coercion.
6. When seizing the properties, officials
conducting the seizure shall temporarily count the value of all properties
supposed to be seize which are equal to a sufficient amount payable to the
outstanding debts, interests or fines as stated in the coercive decisions and
other coercive costs. Officials conducting the seizure shall base on the market
prices and consult opinions of competent agencies and concerned persons in
order to temporary count values of the coerced properties.
7. The Valuation Council and tasks of the
Valuation Council
a) Members of the Valuation Council: Officials
issuing coercive decisions are Chairpersons of the Councils; representatives of
financial agencies or specialized agencies shall be members. Officials who
chair the implementation of coercive decisions shall be entitled to hire or to
solicit the assessment on values of the properties. When receiving requests
from officials who chair the implementation of coercive decisions, specialized
agencies shall be responsible for assigning professional officials to
participate into the valuation.
Representatives of specialized agencies in the
Valuation Councils shall be professional or technical officials of competent
agencies managing specialties or professions with regard to the coerced
properties. If the coerced properties are residential houses, there must be
representatives of agencies managing houses and lands and agencies managing
construction participating into the Valuation Councils.
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Within 07 (seven) working days, since the date
of establishment, the Valuation Councils must conduct the assessment.
Individuals being seized or representatives of organizations having coerced
properties shall be entitled to contribute their opinions, but the final
decisions shall come from the Valuation Councils.
The Valuation Councils shall base on market
prices at the time of assessment and professional opinions of property
assessment agencies or organizations to determine values of the properties. The
Valuation Councils shall decide values of properties based on majority; in case
parties have equal opinions on the property’s value, party that has opinion of
Chairpersons shall be the base for determining the starting prices for selling
the properties. Members of the Valuation Councils shall be entitled to preserve
their opinions and to propose the heads of customs offices to re-consider the
valuation. For properties in which the State uniformly manages prices, the
valuation shall base on prices as provided by the State.
8. Agencies conducting the seizure shall be
entitled to organize the revaluation of properties in the following cases:
a) It is confirmed that there is basis to
determine violation of valuation procedures;
b) There is a big fluctuation of prices;
c) Over six months, since the date of valuation,
the properties have not been sold yet.
9. Revaluation of the properties
When it is necessary to revaluate the
properties, agencies conducting the coercive implementation of administrative
decisions shall make notices to the Valuation Councils regarding revaluation of
the properties in order to coordinate implementation or to request the
assessment agencies being established in accordance with laws in order to
conduct revaluation of the properties. The revaluation of the properties as
specified in point a, point b, clause 8 of this Article shall be conducted as
follows:
a) The valuation of the properties shall be
considered as violations of procedures if it falls under one of the following
cases:
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a.2. The coerced subjects are not legally
notified in order to participate into the valuation of the properties;
a.3. Provisions on value of properties have been
wrongly applied in case the properties are uniformly managed in term of prices
by the State;
a.4. There were serious mistakes in the
classification, determination of the valuable percentage of the properties;
a.5. Other cases as provided by laws;
b) The seized properties shall be considered as
having big fluctuation of prices in the following cases:
Prices of the properties change from twenty
percent (20%) and above, with regards to the property has its value of less
than Vietnam Dong one hundred millions.
Value of the properties change from ten percent
(10%) and above, with regards to the property has its value of between Vietnam
Dong one hundred million and one billion.
Prices of the properties change from ten percent
(5%) and above, with regards to the property has its value of Vietnam Dong one
billion and above.
c) The coerced subjects are entitled to suggest
customs offices to re-consider prices when there is fluctuation of prices
before having public notices on the auctioned properties. The Customs Offices
shall base on market prices, prices provided by agencies managing prices in order
to determine whether there are fluctuation of prices or not and to decide
organizing re-valuation.
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The starting prices for the auction of
properties are the property values being evaluated when the properties are
seized as specified in Article 54 of the Decree.
11. The money collected from the auction of the
seized properties of coerced subjects shall be handled according to following
order:
a) Paying coercive costs, auctioned costs of
seized properties or collected properties being hold by other individuals or
organizations;
b) Paying amounts which are in proportion to
taxes, interests or fines as stated in the coercive decisions to revenue
accounts of the state budget or accounts being temporary hold by customs
offices opened in the state treasury;
c) To refund to the coerced subjects (in case of
odd amounts).
Article 41. Coercion by
measures of collecting money or properties of the subjects being coerced to
implement administrative decisions in customs domain which are being kept by
other organizations or individuals
1. Organizations, individuals keeping money,
properties, goods, documents or valuable certificates of subjects being coerced
to implement administrative decisions in customs domain include:
a) Organizations, individuals having due debts
needed to pay to the coerced subjects;
b) Organizations, individuals, the state
treasury, banks, credit institutes that are authorized by the coerced subjects
to keep their money, properties, goods, documents or valuable certificates or
customs offices have sufficient evidences proving such money, properties,
goods, documents or valuable certificates that are being kept by those
individuals, households or organizations are under the ownership of the coerced
subjects.
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a) Competent officials or officials being
assigned to issue coercive decisions shall be entitled to collect, verify
information by writing documents to third parties who are keeping money,
properties of coerced subjects and request for providing information on money,
properties being kept or payable debts to coerced subjects. In cases, third
parties keeping money, properties of coerced subjects are unable to conduct,
they must send explanations to customs offices within 05 (five) working days,
since the date of receiving requests from customs offices;
b) Based on information provided by third
parties who are keeping money, properties of coerced subjects, competent
officials shall issue coercive decisions by applying measures of collecting
money or properties of coerced subjects which are being kept by third parties
or payable debts to coerced parties;
c) If after 05 (five) working days, since the
date of sending requests to third parties regarding provision of information on
money, properties being kept or payable debts to coerced subjects, third
parties did not provide; provided insufficiently or had explanation on
non-execution of the provision of information on money, properties being kept,
the next measures shall be applied.
Article 42. Coercion by
applying measures of revoking the business registration certificates, the
enterprises registration certificates, the establishment and operation permits,
the practicing permits
1. Verification of information
Competent officials or officials being assigned
to issue coercive decisions shall be responsible for organizing the
verification of information on whether tax payers are subjects being applied
with measures of revoking the business registration certificates, the
enterprise registration certificates or the establishment and operation
licenses or the practicing certificates through databases on management of tax
payers at customs offices or at competent state agencies issuing above-mentioned
documents for tax payers to be a base for issuing coercive decisions and for
requesting competent state agencies which issued revoking the business
registration certificates, the enterprise registration certificates or the
establishment and operation licenses or the practicing certificates to revoke
those certificates or licenses.
2. Coercive decisions
a) Coercive decisions by applying measures of
revoking the business registration certificates, the enterprises registration
certificates, the establishment and operation permits, the practicing permits
must clearly note: Dates, months, years of issuing decisions; basis of issuing
decisions; surnames and names, designations, working offices of officials who
issued decisions; registered names, registered business addresses, tax codes of
individuals being coerced by measures of revoking the business registration
certificates, the enterprises registration certificates, the establishment and
operation permits, the practicing permits; types of documents being suggested
to revoke (numbers, days, months of issuance, etc); coerced amounts (pursuant
to amounts as stated in tax administrative decisions and coercive costs being
counted until the end of deadline of 05 (five) days before carrying out coercion),
coercive reasons; names, addresses, revenue account numbers of the state
budget, methods in transferring coerced amounts (cash or transfer); deadline of
implementation and signatures of officials who issued decisions, seals of
agencies which issued coercive decisions;
b) Coercive decisions must be sent to coerced
subjects, relevant state agencies, organizations or individuals within 05
(five) working days, since the date of issuance.
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a) Written coercive requests on revoke of the
business registration certificates, the enterprises registration certificates,
the establishment and operation permits, the practicing permits must have one
of following major contents: The state agencies being recipients of coercive
requests; Information of coerced individuals or organizations: registered
names, tax codes, registered business addresses; types of documents being
suggested to revoke; information pertaining to types of documents being
suggested to revoke (numbers, dates of issuance, etc); reasons for conducting
coercive measures (enclosed with duplicates of coercive dossiers of previous
coercive measures); Duration suggested the issuing agencies to revoke the
business registration certificates, the enterprises registration certificates,
the establishment and operation permits, the practicing permits;
b) Written coercive requests must be sent to
coerced organizations or individuals and competent state agencies in order to
revoke the business registration certificates, the enterprises registration
certificates, the establishment and operation permits, the practicing permits
within 03 (three) working days, since the date of issuance.
4. Obligations of agencies competent to revoke
the business registration certificates, the enterprises registration
certificates, the establishment and operation permits, the practicing permits.
Within 10 (ten) working days, since the date of
receiving coercive requests from customs offices, competent state agencies must
notify customs offices on the implementation or the non-implementation of
revoking the business registration certificates, the enterprises registration
certificates, the establishment and operation permits, the practicing permits.
Chapter III
ORGANIZATION OF
IMPLEMENTATION
Article 43. Implementation
obligations.
1. The General Director of the General
Department of Customs shall organize and direct the handling of administrative
violations, coercive implementation of administrative decisions in customs
domain; check the legal compliance and settle complaints in order to ensure the
unifying implementation within the branch and in accordance with laws.
2. Direct senior officials of officials who have
competency in sanction shall be responsible for organizing the inspection of the
handling of administrative violations of their junior officials.
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At Customs sub-Departments, Inspection Squads
under Customs Departments must assign officials who are specialized in
supervising, guiding, inspecting the sanction of administrative violations of
Professional Squads.
3. Customs officials, cadres who have competency
in imposing penalties, applying measures to stop administrative violations and
to ensure the sanction of administrative violations or coercive implementation
of administrative decisions or who are assigned to act as advisors for
competent officials who have competency in imposing penalties on administrative
violations, coercive implementation of administrative decisions in customs
domain, having acts which violate legal provisions or lack sense of
responsibility or harassing or self-seeking acts, shall be strictly handled
according to legal provisions, depending on the seriousness of violations; if
they cause material damages to individuals or organizations, they must be
responsible for compensation according to legal provisions on compensation
responsibility of the State.
4. Samples of records, decisions, notices being
used during the process of sanction of administrative violations or application
of measures to stop administrative violations and guarantee of the handling of
administrative decisions, coercive implementation of administrative decisions
in customs domain shall comply with Annexes which are attached with this
Circular. The General Director of the General Department of Customs shall guide
the use of these samples uniformly in the domain.
Article 44. Transitional
provisions
1. The sanction on acts of administrative
violations in customs domain which have been occurred before the effective date
of this Circular shall comply with legal provisions at the time of conducting
violated acts.
For violated acts being occured before the
effective date of this Circular but being discovered later or being considered
or handled, this Circular shall be applied to consider, handle if provisions in
this Circular are favorable to individuals or organizations that committed
administrative violations.
2. For decisions on sanction of administrative
violations which have been issued or implemented before the effective date of
this Circular, in which individuals or organizations being sanctioned
administrative violations in customs domain still have complaints, legal
provisions which were effective at the time of committing violated acts shall
be applied to the settlement.
Article 45. Implementation
effect
1. This Circular takes effect on January 26th,
2014.
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2. Any difficulties and problems arising in the
course of implementing this Circular should be reported to the Ministry of
Finance, the General Department of Customs for research and settlement./.
FOR
THE MINISTER OF FINANCE
DEPUTY MINISTER
Do Hoang Anh Tuan