THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
60/2002/ND-CP
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Hanoi,
June 06, 2002
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DECREE
PRESCRIBING THE DETERMINATION OF TAX CALCULATION VALUES OF
IMPORT GOODS ACCORDING TO THE PRINCIPLES OF THE AGREEMENT IMPLEMENTING ARTICLE
7 OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE
THE GOVERNMENT
Pursuant to the Law on
Organization of the Government of December 25, 2001;
Pursuant to the Law on Export Tax and Import Tax;
Pursuant to Article 71 of the Customs Law;
At the proposal of the General Director of Customs,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope and objects of application
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2. Goods imported under
commercial contracts and originating from countries or international
organizations, to which Vietnam has committed to apply GATT-based tax
calculation values, shall be subject to the application of tax calculation
values prescribed in this Decree.
3. Basing himself/herself on the
commitments of the Socialist Republic of Vietnam State with foreign countries
and international organizations as well as Vietnam’s practical conditions, the
General Director of Customs shall coordinate with the concerned ministries and
agencies in proposing to the Prime Minister for decision the scope and objects
of application of tax calculation values prescribed in this Decree.
4. Tax calculation values of
import goods other than those specified in Clauses 2 and 3, Article 1 and
Clause 1, Article 18 of this Decree shall comply with the provisions of the
current legislation on export tax and import tax.
Article 2.-
Time and methods of determining tax calculation values
1. Time of determining tax
calculation values of import goods shall be the date the customs declarers
register their customs declarations of import goods.
2. The methods of determining
tax calculation values of import goods prescribed in Articles 5 through 10 of
this Decree shall be applied one after another until a certain one is
accredited effective for determining such tax calculation values.
In cases where customs declarers
request, the order for applying the methods of determining tax calculation
values prescribed in Articles 8 and 9 of this Decree may interchange.
Article 3.-
Exchange rates used in the determination of tax calculation values
1. Tax calculation values shall
be in Vietnam dong.
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Article 4.-
Interpretation of terms and expressions
In this Decree, the following
terms and expressions shall be construed as follows:
1. Transaction values means the
actual prices already paid or to be paid for goods sold for export to Vietnam.
2. Identical import goods are
those identical in all aspects, including their physical, qualitative and
prestigious characteristics; they are made in the same country, by the same
manufacturer or another manufacturer authorized by the former, and imported
into Vietnam.
3. Similar import goods are
those which, though being not identical in all aspects, have all the same basic
features, are made of equivalent raw materials and materials, have the same
functions, are interchangeable in commercial transactions, and made in the same
country, by the same manufacturer or another manufacturer authorized by the
former, and are imported into Vietnam.
4. The special ties between the
purchaser and the seller are their relationships when:
a/ They are both members of
another enterprise;
b/ They are co-owners of an
enterprise;
c/ They are employer and
employee;
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e/ They are both controlled by a
third party;
f/ They are members of one
family and bound together in the following relationships:
- Husband and wife;
- Parents and children;
- Blood siblings;
- Grandparents and
grandchildren, by blood;
- Uncles, aunts and nieces, nephews,
by blood;
- Parents-in-law and
sons-in-law, parents-in-law and daughters-in-law;
- Brothers-in-law,
sisters-in-law.
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Chapter II
METHODS OF DETERMINING
TAX CALCULATION VALUES OF IMPORT GOODS
Article 5.-
Method of determining tax calculation values according to transaction values of
import goods
1. Tax calculation values of
import goods are transaction values after being readjusted according to the provisions
in Article 11 of this Decree.
2. Conditions for application of
the method of determining tax calculation values according to transaction
values:
a/ The purchaser has the full
right to dispose and use goods after the importation. If there exist the
following restrictions, this condition shall be considered satisfied:
- The sale, purchase and use of
goods comply with Vietnamese law provisions.
- The purchaser and the seller
have agreed upon the place(s) for goods sale after the importation.
- Other restrictions which do
not affect the value of goods.
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c/ After reselling goods, the
importer does not have to pay any additional money amount from the proceeds
from the goods disposal or use, excluding readjusting amounts prescribed in
Article 11 of this Decree;
d/ There are not special ties
between the purchaser and the seller or these ties, if any, do not affect the
transaction value. The identification of special ties impact is prescribed in
Clause 3 of this Article.
3. Identification of special
ties impact on transaction values:
a/ In cases where the purchasers
declare that they have special ties with the sellers but such special ties do
not affect the transaction values, the condition prescribed at Point d, Clause
2 of this Article shall be deemed satisfied.
b/ In cases where the customs
office has grounds to believe that the special ties have impact on the
transaction values, it shall have to promptly notify such in writing to the
customs declarers, so that the latter can disprove it by evidencing that the
transaction value is approximate to one of the following values of the goods
lots exported to Vietnam on the same day or within 30 days before or after the
exporting date of the goods lot whose value is being determined:
- Transaction values of
identical or similar import goods, which are sold to other importers who have
no special ties with exporters (sellers);
- Tax calculation values of
identical or similar import goods determined according to the provisions in
Article 8 of this Decree.
- Tax calculation values of
identical or similar import goods determined according to the provisions in
Article 9 of this Decree.
If past 30 days after receiving
notices from the customs office the customs declarers fail to disprove, the
customs office shall comply with the provisions at Point b, Clause 4, Article
13 of this Decree.
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1. If tax calculation values of
goods imported into Vietnam cannot be determined according to Article 5 of this
Decree, they shall be the transaction values of identical import goods, whose
tax calculation values have already been determined according to Article 5 of
this Decree.
2. Identical import goods must
satisfy the following conditions:
a/ The identical import goods
lot is exported to Vietnam on the same day or within 30 days before or after
the export date of the goods lot currently subject to the tax calculation value
determination;
b/ The identical import goods
lot is traded at the same level (wholesale or retail) or already readjusted to
the same trading level; has the same quantity or already been readjusted to the
same quantity as the goods lot currently subject to the tax calculation value
determination;
c/ The identical import goods
lot is transported over the same distance and by the same transportation mode,
or has already been readjusted to the same transport distance and mode as the
goods lot currently subject to the tax calculation value determination;
3. When applying the method of
determining tax calculation values prescribed in this Article, only if there is
not any other lot of import goods manufactured by the same manufacturer, can
goods made by other manufacturers be considered, provided that such goods
satisfy the conditions of identical import goods.
4. Upon determining the tax
calculation values prescribed in this Article, if two or more transaction
values of identical import goods are determined, the tax calculation value
shall be the lowest transaction value, after readjusting the price to under the
same conditions prescribed in Clause 2 of this Article.
Article 7.-
Method of determining tax calculation values according to the transaction
values of similar import goods
1. If tax calculation values of
goods imported into Vietnam cannot be determined according to Articles 5 and 6
of this Decree, they shall be the transaction values of similar import goods,
whose tax calculation values have already been determined according to Article
5 of this Decree.
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a/ The similar import goods lot
is exported to Vietnam on the same day or within 30 days before or after the
export date of the goods lot currently subject to the tax calculation value
determination;
b/ The similar import goods lot
is traded at the same level (wholesale or retail) or already readjusted to the
same trading level; has the same quantity or already been readjusted to the
same quantity as the goods lot currently subject to the tax calculation value
determination;
c/ The similar import goods lot
is transported over the same distance and by the same transportation mode, or
has already been readjusted to the same transport distance and mode as the
goods lot currently subject to the tax calculation value determination;
3. When applying the method of
determining the tax calculation values prescribed in this Article, only if
there is not any other lot of import goods manufactured by the same
manufacturer, can goods made by other manufacturers be considered, provided
that such goods satisfy the conditions of similar import goods.
4. Upon determining the tax
calculation values prescribed in this Article, if two or more transaction
values of similar import goods are determined, the tax calculation value shall
be the lowest transaction value, after readjusting the price to under the same
conditions prescribed in Clause 2 of this Article.
Article 8.-
Method of determining tax calculation values according to the deductible values
1. If tax calculation values of
goods imported into Vietnam cannot be determined according to the provisions in
Articles 5, 6 and 7 of this Decree, they shall be the deductible values. The
deductible values shall be determined on the basis of selling prices of import
goods on the Vietnamese market minus (-) reasonable expenses and goods sale profits
generated after the importation.
2. The selling prices of import
goods on the Vietnamese market shall be determined according to the following
principles:
a/ The selling prices of import
goods are actual selling prices; in cases where there exist no actual selling
prices of import goods subject to tax calculation value determination, the
actual selling prices of identical import goods or similar import goods, which
are in the original state as when they are imported and sold on the domestic
market, shall serve the determination of actual selling prices;
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c/ The selling price level is
calculated on the largest quantity of sold goods;
d/ The goods are sold (on
wholesale or retail) within 90 days after the importation of such import goods
lot.
3. Reasonable expenses and goods
sale profits generated after the importation:
a/ In cases where importers
purchase goods by the mode of definitive purchase and sale, the deductible
amounts shall include:
- Freight and insurance for
goods when they are sold on the domestic market;
- Taxes, fees and charges to be
remitted into the State budget upon the importation and sale of import goods,
which, under the current law provisions, may be accounted into sale turnover,
cost prices and expenses for sale of import goods;
- General management expenses
related to the sale of import goods;
- Profit from the sale of import
goods after the importation.
b/ In cases where importers are sale
agents for foreign traders, deductible expenses shall be sale commissions.
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4. Import goods, through further
processing or preparation in the country, can have their tax calculation values
determined according to the principles prescribed in Clause 1 of this Article,
while the processing or preparation costs which increase goods values shall be
deducted therefrom.
In cases where, after the
further processing or preparation, the properties, characteristics and utility
of import goods alter to the extent that they can no longer be recognized as
original import goods, the method of determining tax calculation values
prescribed in this Article shall not apply.
5. The determination of
reasonable expenses and goods sale profits specified in Clause 3 of this
Article must be based on available objective data and conform with the
Vietnamese accounting rules.
Article 9.-
Method of determining tax calculation values according to calculation values
1. If tax calculation values of
goods imported into Vietnam cannot be determined according to the methods
prescribed in Articles 5 through 8 of this Decree, they shall be calculation
values. The calculation values shall be determined to include the following
amounts:
a/ Costs and profits of the
manufacture of import goods;
b/ Readjusting expenses
prescribed in Clause 1, Article 11 of this Decree.
2. The determination of
calculation values must be based on data supplied by the manufacturers and
conform with the accounting rules of countries where goods are made.
Article
10.- Reasoning methods
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2. When applying the reasoning
methods, the following values shall not be used in determining the tax
calculation values:
a/ Domestic market selling
prices of goods of the same category already manufactured in Vietnam;
b/ Selling prices of goods on
the domestic market of the exporting country;
c/ Selling prices of goods for
export to another country;
d/ Production costs of goods,
except for production costs of import goods specified in Article 9 of this
Decree;
e/ Minimum tax calculation
prices;
f/ Various presumptive prices;
g/ Higher transaction values of
identical import goods or similar import goods when two or more different
values are determined.
Article
11.- Readjusting amounts
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a/ The following expenses, which
are borne by goods importers but have not yet been accounted into transaction
values:
- Commissions and brokerage
charges, except goods purchase commission;
- Expenses for package attached
to goods;
- Packing expense, including
materials and labor costs.
b/ Values of goods and/or services
already provided by purchasers to sellers free of charge or with discount, for
the purpose of manufacture, consumption and distribution to import goods lots,
including:
- Raw materials and materials
for manufacturing import goods, components, spare parts and similar details
constituting them;
- Tools, molds, casts and
similar details used for manufacturing import goods;
- Fuels and powers consumed in
the manufacture of import goods;
- Technical designs, blueprints,
fine-art designs, prototype designs, schemes and outlines drawn up in foreign
countries for the manufacture of import goods.
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d/ Money amounts earned by
importers after disposing and/or using import goods, which are transferred in
any form to import goods sellers;
e/ Transport freight, goods
loading, unloading and forwarding charges related to the transport of import
goods to importing border-gates;
f/ Expense for goods insurance
to importing border-gates.
2. The following amounts shall
be subtracted from the transaction values if they have already been included in
purchasing prices of import goods:
a/ Expenses for activities
arising after the importation of goods, including: expenses for construction,
architecture, installation, maintenance or technical support;
b/ Transport freight and inland
insurance cost arising after the importation;
c/ Taxes, fees and charges to be
remitted into the State budget, which are included in import goods purchasing
prices;
d/ Payable interests related to
the payment for import goods purchase, provided that payable interest rates are
specifically stated in purchase-sale contracts and compatible to the common
credit interest rates applied by credit institutions of exporting countries at
the time of signing the contracts;
e/ Price discounts given before
loading goods onto transport means in the exporting countries, listed in
writing and submitted together with customs declarations of import goods.
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4. It is prohibited to add or
subtract any other expenses than those specified in Clauses 1 and 2 of this
Article.
Chapter III
RIGHTS AND OBLIGATIONS
OF CUSTOMS DECLARERS, RESPONSIBILITIES OF THE CUSTOMS OFFICES
Article
12.- Rights and obligations of customs declarers
1. Rights of customs declarers:
a/ To request the customs
offices to keep secret the already supplied information related to the
determination of tax calculation values;
b/ To request the customs
offices to guide and notify the determination of tax calculation values
according to the provisions of this Decree;
c/ To prove the accuracy and
truthfulness of the already declared tax calculation values and complain about
the customs offices decisions on tax calculation values according to the
provisions in Article 14 of this Decree.
2. Obligations of customs
declarers:
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b/ To submit and produce
documents for use as basis for inspecting and/or determining the tax
calculation values at the requests of the customs offices;
c/ To be subject to the customs
offices inspection of tax calculation values as prescribed in this Decree.
Article
13.- Responsibilities and powers of the customs offices
1. The General Department of
Customs shall issue declaration forms of import goods tax calculation values,
specifying declaration contents to suit each method of determining tax
calculation values prescribed in this Decree. The provincial/municipal and
inter-provincial Customs Departments or the border-gate Customs Sub-Departments
shall issue tax calculation value declaration forms to customs declarers; and
guide customs declarers to declare and determine import goods tax calculation
values according to the provisions of this Decree.
2. To request customs declarers
to submit or produce documents related to the goods purchase and sale to prove
the accuracy and truthfulness of the already declared import goods tax
calculation values.
In cases where customs declarers
fail to prove the accuracy and truthfulness of tax calculation values, they
must promptly notify such in writing to the customs declarers.
3. To keep secret information
supplied by customs declarers related to the determination of tax calculation
values at the requests of customs declarers.
4. The customs offices shall
have the right to determine tax calculation values in the following cases:
a/ Customs declarers fail to
determine tax calculation values by one of the methods prescribed in Articles 5
through 10 of this Decree within the time limit for customs procedure
clearance;
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c/ Customs declarers wrongly
determine tax calculation values or the tax calculation value determination is
made at variance with the provisions of this Decree.
5. To inspect the declaration
and determination of values to serve as basis for calculating taxes on import
goods.
Chapter IV
COMPLAINTS AND HANDLING
OF VIOLATIONS
Article
14.- Complaints and settlement thereof
1. In cases where customs
declarers have grounds to believe that the customs offices decisions on tax
calculation values are wrong, they may lodge complaints to the directors of the
Customs Sub-Departments that have determined tax calculation values. Pending
the settlement, the customs declarers shall still have to abide by such customs
offices decisions.
2. If disagreeing with
complaint-settling decisions of the directors of the Customs Sub-Departments,
the customs declarers may further lodge their complaints directly to the
directors of the provincial/municipal or inter-provincial Customs Departments.
If disagreeing with complaint-settling decisions of the directors of the
provincial/municipal or inter-provincial Customs Departments, the customs
declarers may further lodge their complaints to the competent State agencies
according to the provisions of law.
Customs declarers may initiate
lawsuits at courts according to the provisions of law.
3. The time limit and procedures
for settling complaints and the complaint-settling competence shall comply with
the provisions of the legislation on complaints and other relevant law provisions.
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Organizations and individuals
that violate this Decree shall, depending on the nature and severity of their
violations, be administratively sanctioned or examined for penal liability
according to the provisions of law.
Customs officers and employees
and other individuals who show irresponsibility or violate the provisions of
this Decree, thus causing damage to customs declarers, shall have to pay
compensations therefor according to the provisions of law and, depending on the
nature and severity of their violations, be disciplined or examined for penal
liability according to the provisions of law.
Chapter V
ORGANIZATION OF
IMPLEMENTATION
Article
16.- Responsibilities of the State management agencies
1. The General Department of
Customs shall assume the prime responsibility and coordinate with the concerned
ministries and agencies in gathering information and building up a database in
service of the determination of tax calculation values according to the provisions
of this Decree, and devising measures against trade frauds through prices.
2. The State Bank of Vietnam
shall direct and guide credit institutions in fully supplying documents related
to the liquidation of import or export goods lots in service of the inspection
and determination of tax calculation values.
Article
17.- Provisions on preservation
1. Clause 4, Article 8 and
Article 9 of this Decree shall be preserved from implementation. Basing itself
on international commitments and practical conditions of Vietnam, the General
Department of Customs shall coordinate with the concerned ministries and
agencies in proposing the Government to amend, supplement or annul the
provisions in this Clause.
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Article
18.- Implementation provisions
1. This Decree takes effect as
from July 1, 2002.
Import goods on Vietnam’s
commodity list for the implementation of the Common Effective Preferential
Tariffs Agreement of the ASEAN shall have values calculated according to the
provisions of this Decree.
2. In cases where the Agreement on
Implementation of Article 7 of the General Agreement on Tariffs and Trade is
amended and/or supplemented, and such amendments and/or supplements are not
contrary to the basic principles of Vietnamese laws and international treaties
which Vietnam has signed or acceded to, the amended and/or supplemented
contents of such Agreement shall apply. The General Department of Customs shall
propose the Government to amend and supplement this Decree to make it
compatible with the amended and supplemented content of the Agreement.
3. The General Department of
Customs shall study and compile documents guiding the implementation of this
Decree, to be signed for promulgation by the Minister-Director of the
Government Office according to the provisions of the Prime Minister’s Decision
No.40/2002/QD-TTg of March 18, 2002 on competence to sign the promulgation of
legal documents for exercising the State management over branches and fields
managed by the agencies attached to the Government.
4. The ministers, the heads of
the ministerial-level agencies, the heads of the agencies attached to the
Government and the presidents of the People’s Committees of the provinces and
centrally-run cities shall have to implement this Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
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