THE MINISTRY OF FINANCE
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
08/2002/T-BTC
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Hanoi, January 23, 2002
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CIRCULAR
GUIDING THE APPLICATION OF IMPORT TAX
CALCULATION PRICES UNDER FOREIGN TRADE CONTRACTS
Pursuant to the competence and the principles
for determining tax calculation prices prescribed in Article 7 of the
Government’s Decree No.54/CP of
August 28, 1993 detailing the implementation of the Law on Export Tax and
Import Tax and the Law Amending and Supplementing a Number of Articles of the
Law on Export Tax and Import Tax;
Pursuant to the provisions of Article 59 of the Government’s Decree No.24/2000/ND-CP of July 31, 2000
detailing the implementation of the Law on Foreign Investment in Vietnam;
In order to create favorable conditions for units and enterprises to take
initiative in calculating business efficiency and to step by step prepare for
the implementation of international commitments regarding the value for import
tax calculation, the Ministry of Finance hereby guides the application of
import tax calculation prices under foreign trade contracts as follows:
I. SCOPE
OF APPLICATION
1. Objects of application
Objects of application of tax calculation prices
under foreign trade contracts are goods of organizations and individuals
permitted to be imported through the Vietnamese border-gates, except for those
specified in Section 2, Part I of this Circular.
2. Cases where tax calculation prices under
foreign trade contracts shall not be applied
2.1. For import goods on the list of goods items
with import tax calculation prices controlled by the State (other than those
subject to price management by the State mentioned in Section 2, Part III of
this Circular) with their contractual prices lower than those specified in the
minimum price index promulgated by the Finance Ministry, the import tax
calculation prices shall be those specified in such minimum price index.
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3. Some terms used to in this Circular shall be
construed as follows:
- Actual
payment price means the total money amount already paid or to be paid by
the buyer to the seller for import goods.
- Inspection
prices means price levels determined on the basis of actual import
prices of goods, prescribed by the General Customs Department, serving as a
basis for checking import prices, and uniformly applied at all border-gates.
- Normal
transaction conditions means those under which goods prices shall be
negotiated by a certain mode in accordance with pricing practices on the
market, and whereby the seller and the buyer shall not accord each other any
special privilege.
II.
DETERMINATION OF IMPORT TAX CALCULATION PRICES
Tax calculation prices applicable to import
goods are buying prices of customers at import border-gates, including freight
(F) and insurance (I) under goods purchase contracts and in conformity with
other vouchers related to the goods purchase. Buying prices at import
border-gates are the total money amount already paid or to be paid by the buyer
to the seller for import goods (actual payment prices).
1. In cases where import goods-buying prices
have not yet covered freight (F) and insurance (I), the importing organizations
and individuals shall have to produce valid vouchers or invoices evidencing the
said expenses to the customs office for purpose of determining the import tax
calculation prices. If the importing organizations and individuals fail to
produce required vouchers for figuring out freight and insurance, the customs
office shall calculate freight and insurance according to the uniform guidance
of the General Customs Department.
2. In case of purchase and sale by mode of
deferred payment: The tax calculation prices of import goods shall not cover
deferred payment interest, if the following conditions are fully met:
- Such deferred payment interest is inscribed in
goods purchase and sale contracts;
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- Deferred payment interest relates only to the
import lot currently subject to price determination, but not to other goods
lots.
Interest amount deducted from import tax
calculation prices must not exceed the ceiling interest rates applicable to
domestic foreign-currency loans announced by the State Bank of Vietnam.
3. In cases where the seller gives a price
discount to the buyer, the tax calculation prices of import goods shall be
reduced with such discount if the following conditions are met:
- The agreement on price discount must be made
in writing before the seller completes procedures for shipping goods to the
buyer with reason(s) for such discount clearly stated;
- The price inscribed in commercial invoice must
conform to the price level already discounted as agreed upon;
- The actual payment price must conform to the
discount price level;
- The price discount is effected for that very
import lot, other goods lots are irrelevant.
The price discount to be deducted from the
import tax calculation price shall not exceed 10% of the total value of such
goods as inscribed in the contract.
In cases where actual payment prices of import
goods on the list of goods items with import tax calculation prices controlled
by the State, after subtracting the price discount, are lower than those
inscribed in the minimum tax calculation price index promulgated by the Finance
Ministry, such minimum price index shall apply.
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1.
Import goods eligible for application of import tax calculation prices under
foreign trade contracts must fully meet the following conditions:
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Condition (1): Foreign trade contracts must be made in writing, with
full principal contents of a contract prescribed in Article 50 of the
Commercial Law passed by the National Assembly on May 10, 1997, of which a
number of principal contents are specified as follows:
+ Names of goods: shall be ordinary commercial
names;
+ Quantity;
+ Prices;
+ Payment mode: Trade contracts must clearly
show that the payment for 100% of the import goods lot’s
value is effected via commercial banks in a certain currency agreed upon by the
two parties strictly according to such international payment modes as L/C, TTR,
T/T, D/A, D/P.
Such communication forms as telegraph, telex,
facsimile, e-mail and other electronic communication forms, when printed on
paper, shall also be considered form of document.
If sale offers and acceptance thereof are made
in various forms of document, valid as a trade contract and contain all
principal details as prescribed above, they shall also be considered foreign
trade contracts.
In case of any amendment and/or supplement to
provisions of already signed foreign trade contracts, such must be made
according to the order and procedures applicable to each type of contract. The
amendment and/or supplement to contracts must be finished before the seller
completes procedures for goods shipment to the buyer.
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In cases where the via-bank payment for the
import goods lot’s value is made
before goods are received, payment vouchers must be produced to the customs
office upon carrying out import procedures. If the payment is made after goods
are received, the trade contracts must clearly state a payment time limit.
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Condition (3): Importing enterprises shall pay value added tax (VAT) by
the deduction method. Upon carrying out import procedures, the importing
enterprises shall have to submit (only once) to the customs office (where
import procedures are carried out) copies of written registration for VAT
calculation by the tax deduction method with approval of the tax offices where
the enterprises have made tax payment registration (affixed with true copy
certification seals of enterprises).
2. Special cases:
2.1. For import goods of foreign-invested
enterprises (subject to the Law on Foreign Investment in Vietnam), the import
tax shall be calculated according to the prices inscribed in import goods
invoices, provided that such prices are buying prices for actual payment,
including freight (F) and insurance (I).
2.2. For goods imported by enterprises for use
as raw materials or materials for direct production of products, the import tax
shall be calculated according to prices inscribed in foreign trade contracts,
if the following conditions are fully met:
a/ The conditions prescribed in Section 1, Part
III of this Circular are fully met;
b/ The importing enterprises (or
import-entrusting enterprises) have no over-due tax arrears subject to forcible
payment in the import process;
c/ Imported raw materials and materials conform
to the list of raw materials and materials imported for production of products
already registered with the customs offices where the enterprises carry out the
import procedures;
Raw materials and materials supplied among
enterprises with independent cost-accounting (including units within the same
corporation or union) shall not be considered the direct production inputs.
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Within 30 days after the customs office issues
tax notices, importers may base themselves on payment invoices and vouchers as
well as other information related to import goods to prove the truthfulness and
objectivity of the prices inscribed in contracts by indicating that prices
inscribed in contracts are import prices for actual payment, formed under
normal transaction conditions.
Within 30 days after the importers produce
vouchers proving the truthfulness and objectivity of the prices inscribed in
contracts, the customs office shall have to reply the former in writing. If the
importers can prove the truthfulness and objectivity of the prices inscribed in
their contracts, the customs office shall recalculate import tax according to
the prices inscribed in contracts. In cases where the customs office
disapproves the importers proving result, it shall have to give reasons for the
disapproval and keep intact the prices already applied to the tax calculation.
In cases where importers disagree with handling
decisions of the customs office, they may lodge complaints under guidance in
Part IV of this Circular. They shall also be held responsible before law for
the accuracy of prices inscribed in their contracts as well as vouchers and
information already declared with the customs office.
During the time they complain about tax
calculation prices, enterprises shall have to pay tax within the time limits
and at the levels inscribed in tax notices of the customs office. When
decisions on readjustment of payable tax amounts are issued, enterprises shall
be refunded overpaid tax amount if the already paid tax amount is larger than
the payable one.
IV.
INSPECTION, HANDLING OF VIOLATIONS AND SETTLEMENT OF COMPLAINTS
1. Inspection:
The Finance Ministry shall coordinate with the
General Customs Department in directing the local tax departments and customs department
in the coordinated inspection of import tax calculation prices after the
release of import goods, for cases where there appear doubts about false tax
declaration for tax evasion through import tax calculation prices. The
inspection of the said cases shall be based on the whole dossiers of import
lots as well as accounting books, invoices and vouchers of concerned
enterprises strictly according to regulations of the Finance Ministry and the
General Customs Department.
2. Handling of violations:
In cases where the customs office and the tax
office detect any falsities in the declaration of invoices and vouchers related
to tax calculation prices of import goods, or violations of one of the
provisions of this Circular, the importing or import-entrusting enterprises
shall, apart from having to pay fully import tax, special consumption tax and
value added tax, be sanctioned for their acts of tax evasion according to
provisions of law.
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Rights and responsibilities of tax payers in
complaining about import tax calculation value, and responsibilities and powers
of agencies in settling complaints shall strictly comply with provisions of
current legal documents.
V.
ORGANIZATION OF IMPLEMENTATION
This Circular takes effect as from January 20,
2002 and replaces the Finance Ministry�s
Circulars No.82/1997/TT-BTC of November 11, 1997 and No.92/1999/TT-BTC of July
24, 1999. The previous stipulations which are contrary to this Circular are all
hereby annulled.
The General Customs Department shall guide the
local customs departments in organizing the implementation and inspect the
implementation under the guidance in this Circular.
Any problems arising in the course of
implementation should be promptly reported by the concerned organizations and
individuals to the Finance Ministry for study and timely guidance.
FOR THE MINISTER OF FINANCE
VICE MINISTER
Vu Van Ninh