THE
GOVERNMENT
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
----------
|
No.
155/2005/ND-CP
|
Hanoi, December 15, 2005
|
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on
Organization of the Government;
Pursuant to Import Tax and Export Tax Law No. 45/2005/QH11 of June 14, 2005;
Pursuant to Customs Law No.29/2001/QH10 of June 29, 2001, and Law No.
42/2005/QH11 of June 14, 2005, amending and supplementing a number of articles
of the Customs Law;
At the proposal of the Finance Minister,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Governing
scope and objects of application
1. This Decree provides for customs valuation
for the purpose of calculating tax and making statistics on imported and
exported goods.
2. Imported and exported goods are objects of
application of this Decree.
3. Where the treaties to which Vietnam is a
party contracting contain provisions different from those of this Decree, the
provisions of such treaties shall apply.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. "Transaction value" means the total
money amount actually paid or to be paid directly or indirectly by the buyer to
the seller in order to buy imported goods, adjusted under the provisions of
Article 13 of this Decree.
2. "Sale for export to Vietnam" means
a commercial activity whereby goods are transferred from the seller to the
buyer through Vietnamese border-gates or borders or from non-tariff zones into
the domestic market, for the purpose of transferring the goods ownership from
the seller to the buyer.
3. "The export date" used in the
method of transaction value of identical imported goods and the method of
transaction value of similar imported goods is the date when goods are loaded
onto means of transport according to the bills of lading; for goods transported
by land, the export date is the date of registration of the customs
declaration.
4. "The first border-gate of
importation" means the destination port stated in the bill of lading. For
international transport by land, railway or river, the first border-gate of
importation as the destination port indicated in the contract.
5. "Available information" means all
information relating to the examination and determination of the dutiable
value, supplied by customs declarants to customs offices or gathered by customs
offices by the time of examination and determination of the dutiable value.
Such information must be archived, analyzed and managed at customs offices.
6. "Identical imported goods" mean
goods which are the same in all aspects, including physical characteristics,
quality and reputation; turned out in the same country, by the same producer or
by another producer authorized by the former, which are imported into Vietnam.
7. "Similar imported goods" mean goods
which, though not alike in all aspects, have the same basic characteristics,
same raw materials or materials; the same function, and are interchangeable in
commercial transactions; turned out in the same country, by the same producer
or by another producer authorized by the former, and are imported into Vietnam.
8. "In the condition as imported"
referred to in the method of determining dutiable value on the basis of the
deductible value means goods whose shapes, characteristics, properties and/or
utilities are not altered or whose value is not increased or reduced under any
impact after importation.
9. The buyer and the seller shall have special
relationships when:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b/ They are partnership members, contributing
capital in legally recognized businesses;
c/ They are employer and employee;
d/ The seller has the power to control the buyer
and vice versa;
e/ They are both controlled by a third party;
f/ They both control a third party.
A person having the power to control another
person as defined at Points d, e and f, Clause 9 of this Article is the person
who can directly or indirectly restrict or instruct the other person.
g/ They have the following family ties:
- Husband and wife;
- Parents and children recognized by law;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Aunts, uncles and nephews, nieces who have
blood ties;
- Siblings;
- In-law brothers, sisters.
h/ A third person who owns, controls or holds 5%
or more of the voting shares of both parties;
i/ Parties associated in business with one other
in that a party is the sole agent, sole distributor or sole transferer of the
other party, shall be considered having a special relationship if such
relationship conforms with the provisions from Point a to Point h above.
Article 3.- The time for
of customs valuation
The time of customs valuation is the date when
the customs declarant registers the customs declaration of imported or exported
goods.
Where the customs valuation is made by the
customs office, the time of customs valuation shall be the date when the custom
office conducts valuation according to the provisions of this Decree.
Article 4.- Principle
and methods of customs valuation for tax calculation purpose
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. For exported goods, the dutiable value is the
sale price at the export border-gate (FOB price, DAF price), exclusive of
insurance (I) and freight (F).
2. For imported goods, the dutiable value is the
actual payable price up to the first border-gate of importation and determined
by applying in a sequential order the dutiable value-determining methods
specified in Articles 7 thru 12 of this Decree and stopping at the method by
which the dutiable value can be determined.
Where customs declarants make written requests,
the order of application of the dutiable value-determining methods specified in
Article 10 and Article 11 can be interchanged.
3. The Finance Ministry shall base itself on the
dutiable value-determining principles prescribed in Clause 2 of this Article to
specify the examination and determination of the dutiable value of imported
goods in the following cases:
a/ Imported goods have been exempt from tax and
put to use in Vietnam but later permitted by competent state bodies for
transfer or change of the previous tax exemption purpose;
b/ Imported goods are hired or borrowed goods;
c/ Imported goods are those brought overseas for
repair or processing;
d/ Imported goods are warranty or sale promotion
goods;
e/ Imported goods have no goods sale and
purchase contracts, including:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Imported goods of passengers on entry, gifts,
presents, moved assets in excess of duty-free limits;
- Imported goods of postal and express mail
service-providing enterprises.
f/ Other peculiar imported goods.
Article 5.- Customs
value for statistical purposes
1. Customs value for the purpose of making
statistics on exported and import goods (hereinafter called statistical value)
shall be determined on the following principles:
a/ For taxable goods, the statistical value
shall be determined on the basis of the dutiable value already determined on
the principles and by the methods specified in Article 4 of this Decree;
b/ For goods not liable to tax, not entitled to consideration
of tax exemption, or for which the dutiable value cannot be determined under
the provisions of Article 4 of this Decree, the statistical value shall be the
value declared by customs declarants on the following principles:
- For imported goods, the statistical value
shall be the sale price at the first border-gate of importation (CIF price);
- For exported goods, the statistical value
shall be the sale price at the border-gate of exportation (FOB price, DAF
price).
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 6.- Price
information, database
1. The dutiable value of imported goods shall be
examined and determined on the basis of price database and available
information.
2. The Finance Ministry shall specify the
building, management and use of price database and available information.
Chapter II
METHODS OF DETERMINING
THE DUTIABLE VALUE OF IMPORT ED GOODS
Article 7.- Method of
determining the dutiable value on the basis of the transaction value of
imported goods
1. The dutiable value of imported goods is the
transaction value.
The transaction value is the total money amount
which has been actually paid or shall be paid by the buyer directly or
indirectly to the seller for the purchase of imported goods, adjusted in
accordance with the provisions of Article 13 of this Decree.
The total money amount actually paid or to be
paid by the buyer directly or indirectly to the seller for the purchase of
imported goods shall cover the following items:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The Finance Minister shall specify the deduction
of these allowances from the dutiable value.
b/ The money amounts which must be paid by the
buyer but are not yet included in the purchase price shown on the commercial
invoice, including:
- Advance payments, deposits for production,
sale and purchase, transport, insurance of goods;
- Indirect payments to the seller such as:
amounts paid by the buyer to a third party at the request of the seller;
amounts paid by way of debt clearing.
2. Conditions for application of the method of
determining the dutiable value on the basis of the transaction value:
a/ The buyer is not restricted in the right to
dispose of or use the goods after the importation, except for the following
restrictions:
- Restrictions on the purchase, sale and use of
goods under the provisions of Vietnamese law;
- Restrictions on places for goods sale after
the importation;
- Other restrictions which, however, do not
affect the value of goods;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c/ After sale of goods, the importer must not
pay any additional amount from the proceeds from the disposal or use of the
goods, excluding the adjusted amounts specified at Point d, Clause 1, Article
13 of this Decree;
d/ The buyer and the seller have no special
relationship, or, if they have, such relationship does not affect the
transaction value.
Where the customs office has grounds to deem
that such special relationship does affect the transaction value, it must
immediately notify such grounds in writing to the customs declarant.
The customs office shall create conditions for the
customs declarant to supply more information in order to clarify that the
special relationship between the buyer and the seller does not affect the
transaction value. If past 30 (working) days as from the date of receiving the
notice of the customs office, the customs declarant fails to supply additional
information, the customs office shall determine the dutiable value according to
the provisions of Clause 6, Article 15 of this Decree.
The special relationship between the buyer and
the seller shall be considered not affecting the transaction value when the
transaction value approximates to one of the following values of the goods lot
exported to Vietnam on the same day or within 60 days before or after the
exportation of the goods lot being valued:
- The transaction value of identical or similar
imported goods sold to other importers having no special relationship with the
exporter (the seller);
- The dutiable value of identical or similar
imported goods, determined under the provisions of Article 10 of this Decree.
- The dutiable value of identical or similar
imported goods, determined under the provisions in Article 11 of this Decree.
Article 8.- Method of
determining the dutiable value on the basis of the transaction value of
identical imported goods
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Identical imported goods must satisfy the
following conditions:
a/ Identical imported goods lots are exported to
Vietnam on the same day or within 60 days before or after the export date of
the goods lots being valued;
b/ Identical import goods lots are traded on the
same level or have been adjusted to the same level of wholesale or retail; have
the same quantity or have been adjusted to the same volume with the goods lots
being valued;
c/ Identical imported goods lots have the same
transport distance and mode or have already been adjusted to the same transport
distance and mode as the goods lots being valued.
3. Upon the application of the dutiable
value-determining method specified in this Article, only if there are no goods
lots turned out by the same producer shall the goods lots turned out by other
producers be taken into account but in compliance with the provisions on
identical imported goods.
4. If two or more transaction values of
identical imported goods are determined upon the determination of the dutiable
value under the provisions of this Article, the dutiable value shall be the
lowest transaction value, after the price level is adjusted to the same
conditions specified in Clause 2 of this Article.
Article 9.- Method of
determining the dutiable value on the basis of the transaction value of similar
imported goods
1. If the dutiable value of goods imported into
Vietnam cannot be determined under the provisions of Articles 7 and 8 of this
Decree, the dutiable value shall be the transaction value of similar imported
goods of which the dutiable value has been determined under the provisions of
Article 7 of this Decree.
2. Similar imported goods must satisfy the
following conditions:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b/ Similar imported goods lots are traded on the
same level or have already been adjusted to the same level of wholesale or retail,
have the same volume or have been already adjusted to the same volume of the
goods lots being valued;
c/ Similar imported goods lots have the same
transport distance and mode or have been adjusted to the same transport
distance and mode as the goods lots being valued.
3. Upon the application of the dutiable
value-determining method specified in this Article, only if there are no
imported goods lots turned out by the same producer shall the goods turned out
by other producers be taken into account, but the provisions on similar
imported goods must be complied with.
4. If two or more transaction values of similar
imported goods are determined upon the determination of the dutiable value
under the provisions of this Article, the dutiable value shall be the lowest
transaction value, after the price level is adjusted to the same conditions
specified in Clause 2 of this Article.
Article 10.- Method of
determining the dutiable value on the basis of the value the deductible
1. If the dutiable value of goods imported into
Vietnam cannot be determined under the provisions of Articles 7, 8 and 9 of
this Decree, it shall be the deductible value. The deductible value shall be
determined on the basis of the sale price of imported goods, identical imported
goods or similar import goods in the Vietnamese market minus (-) reasonable
expenses incurred after the importation.
2. The sale prices of imported goods in the
Vietnamese market shall be determined on the following principles:
a/ The sale prices of imported goods shall be
the actual sale prices; if there is no actual sale price of imported goods
being valued, the actual sale price of identical imported goods or similar
imported goods in the condition as imported and sold in the domestic market
shall be used as actual sale price;
b/ The importer and the domestic buyer have no
special relationship;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d/ The goods are sold out (wholesaled or
retailed) on the earliest day after the importation but before the expiration
of 90 days (calendar days) after the date of importation of such goods lot.
3. Reasonable expenses incurred after the
importation of goods:
a/ Where the importer purchases goods by mode of
definitive purchase, the deductions shall include:
- Expenses for transport and expenses for
insurance for goods when they are sold on the domestic market;
- Tax, charge and fee amounts payable to the
state budget upon the importation and sale of goods, which, under the current
provisions of law, can be accounted into sale turnover, cost prices and imports
sale expenses;
- General management expenses related to the
sale of imported goods;
- Sale profits earned after the importation of
goods.
b/ Where the importer is the sale agent for a
foreign trader, the deductible expenses shall be sale commissions.
Where the sale agent is authorized by the
foreign trader to carry out some activities related to the post-importation
sale in Vietnam outside the agency contract, the expenses incurred in Vietnam
for these activities shall also be deducted within the limit of expenses agreed
upon in the contract.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. Imported goods going through further
processing in the country shall also have their dutiable value determined on
the principle specified in Clause 1 of this Article, minus the expenses for
processing to add value to the goods.
The dutiable value- determining method specified
in this Article shall not be applied when:
- The imported goods, after being processed, are
no longer in the condition as imported;
- The imported goods, after being processed,
still maintain their characteristics, nature and utilities as imported, but
constitute only a part of the goods sold in the Vietnamese market.
Where the imported goods are no longer in the
condition as imported after being processed but their value added by the
processing can still be accurately determined, their dutiable value shall still
be determined under the provisions of this Article.
5. The deduction of expenses and profits
specified in Clauses 3 and 4 of this Article must be based on objective and
quantifiable documents and figures. These figures must be recorded and
reflected in accounting books in accordance with the provisions of law on
accounting.
Article 11.- Method of
determining the dutiable value on the basis of the computed calculation value
1. If the dutiable value of goods imported into
Vietnam cannot be determined by the methods specified in Articles 7 thru 10 of
this Decree, it shall be the computed value. Computed value shall include the
following items:
a/ The cost or value of raw materials and
materials, the cost of the stage of production or other processing of the
production of imported goods;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c/ Adjusted expenses defined at Points e and f
of Clause 1, Article 13 of this Decree.
2. The determination of computed value must be
based on the figures supplied by producers and in accordance with the
accounting principles of the goods-manufacturing countries.
Article 12.- The
deductive method of determining the dutiable value
1. If the dutiable value of goods imported into
Vietnam cannot be determined by the methods specified in Articles 7 thru 11 of
this Decree, it shall be determined by the deductive method.
The deductive method means the sequential and
flexible application of the dutiable value-determining methods specified in
Articles 7 thru 11 and the immediate stop at the method by which the dutiable
value can be determined, provided that such application complies with the
provisions of Clause 2 of this Article and must be based on the documents,
figures and information available at the time of determining the dutiable
value.
2. When the deductive method is applied, the
following values must not be used to determine the dutiable value:
a/ The domestic market sale prices of goods of
the same kind, which have been produced in Vietnam;
b/ The sale prices of goods in the domestic
market of the exporting country;
c/ The sale prices of goods for export to
another country;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
e/ The minimum dutiable price;
f/ Arbitrary prices;
g/ A valuation system permitting the use of the higher
of two alternative values as the dutiable value.
Article 13.-
Adjustments
1. Items to be added to the transaction value
for determination of dutiable value:
a/ The following expenses which must be borne by
the goods buyer but are not yet included in the transaction value:
- Buying commission, brokerage commission;
- Cost of packages, which are treated as being
one with imported goods.
Packages treated as being one with goods are
those which always accompany goods as a condition for preservation or use of
such goods, classified together with the goods according to the current
classification principles and goods codes.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b/ The value of goods and services which are
supplied free of charge or at reduced cost by the buyer to the seller for
production and sale of goods imported into Vietnam, not yet included in the
price actually paid or to be paid:
- Raw materials, materials, components parts and
similar details incorporated the imported goods;
- Tools, dies, molds and similar details used in
the production of imported goods;
- Raw materials and materials consumed in the
production of the imported goods;
- Technical designs, construction designs,
implementation plans, art designs, model designs, plans and sketches made
license fees for the overseas and necessary for the production of the imported
goods.
c/ Royalties, license fees for the use of
intellectual property rights related to imported goods, which must be paid by
the buyer as a condition for purchase and sale of the imported goods;
d/ Proceeds collected by the buyer after the
disposal or use of the imported goods and transferred in any forms to the
seller of the imported goods;
e/ Expenses for transportation, loading,
unloading and handling of goods related to the transportation of the imported
goods to the border-gate of importation;
f/ Cost of insurance expenses for transportation
of the imported goods to the border-gate of importation.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a/ Expenses for activities arising after the
importation of goods, including: expenses for construction, architecture,
installation, maintenance or technical assistance;
b/ Expenses for transport and insurance in the
country after the importation;
c/ Taxes, charges, fees payable to the state
budget, which are incorporated in the purchase prices of imported goods;
d/ Payable interests related to the payment for
purchase of imported goods, provided that the rates of payable interests are
expressed in writing and compatible with the common credit interest rates
applied by credit institution of the exporting countries at the time of signing
of contracts;
e/ Discounts made before loading goods onto
means of transport in the exporting countries, which are expressed in writing
and submitted together with the customs declarations of imported goods.
3. The addition or subtraction of the expenses
specified in Clauses 1 and 2 of this Article shall only be effected on the
basis of objective and quantifiable data available in accordance with the
provisions of law on accounting.
4. All items other than those specified in
Clauses 1 and 2 of this Article must not be added or subtracted.
Chapter III
RIGHTS AND OBLIGATIONS
OF CUSTOMS DECLARERS, RESPONSIBILITIES OF CUSTOMS OFFICES
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Customs declarants shall have the following
rights:
a/ To request customs offices to keep secret supplied
information relating to the dutiable value determination;
b/ To request customs offices to inform and
guide the dutiable value determination under the provisions of this Decree;
c/ To prove the accuracy and truthfulness of the
declared dutiable value;
d/ To complain about customs offices’ decisions
on the dutiable value;
e/ To request customs offices to notify them in
writing of the dutiable value, the method and way of calculation used by
customs offices to determine such value;
f/ To request customs clearance for goods as
provided for in Article 16 of this Decree.
2. Obligations of customs declarants:
a/ To comply with the principle of accurate and
truthful self-declaration and self-determination of the dutiable value; to be
answerable to law for the accuracy and truthfulness of the declared contents
and the results of determination of the dutiable value;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
c/ To submit to customs inspection of the
dutiable value as provided for in this Decree.
Article 15.-
Responsibilities and powers of customs offices
1. To guide customs declarants in determining
the dutiable value under the provisions of this Decree.
2. To request customs declarants to submit or
produce valid and lawful vouchers and documents related to the goods purchase
and sale for proving the accuracy and truthfulness of the declared dutiable
value of imported goods.
In case of rejecting the customs declarants’
proof and explanation on the dutiable value, they must immediately notify in
writing customs declarants of the bases and grounds therefor.
3. To send written notices to customs declarants
on the dutiable value, the method and way of calculation used by customs
offices for the dutiable value determination.
4. To keep secret information supplied by
customs declarants and relating to the dutiable value determination, at the
request of customs declarers and in accordance with the provisions of law.
5. To clear customs procedures at the request of
customs declarants, based on the payment of a security sum under the provisions
or Article 16 of this Decree.
6. To determine the dutiable value in the
following cases:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b/ Customs declarers make untruthful declaration
of the dutiable value;
c/ Customs declarants do not or cannot explain
the truthfulness and accuracy of the declared value at the request of customs
offices.
7. To inspect the declaration and determination
of the dutiable value of imported goods. To issue decisions on retrospective
collection or refund of tax amounts due to the wrong determination of the
dutiable value.
8. To gather, analyze and manage necessary
information for use as the basis for inspection and determination of the
dutiable value.
Article 16.- Delayed
determination of dutiable value
1. In the course of determining the dutiable
value of imported goods, if customs declarants have no adequate information for
determination of the dutiable value, customs offices shall, at the customs
declarants request, approve the customs clearance for goods, provided that
customs declarants must pay a sum as security for the tax money of the goods
lot in the form of security, collateral or other appropriate guarantee modes
for the performance of their tax liabilities.
2. The Finance Ministry shall specify the
levels, forms and procedures for payment of security sums defined in Clause 1
of this Article.
Chapter IV
COMPLAINTS, HANDLING OF
VIOLATIONS
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Where customs declarants disagree with customs offices’
decisions on the dutiable value, they shall still have to abide by such
decisions while having the right to lodge complaints under the provisions of
law on complaints.
Article 18.- Handling
of violations
Organizations and individuals violating the
provisions of this Decree shall, depending on the nature and seriousness of
their violations, be administratively sanctioned or examined for penal
liability under the provisions of law.
Customs officers and employees and other
individuals who lack a sense of responsibility and violate the provisions of
this Decree, causing damage to customs declarants, shall have to compensate for
the damage under the provisions of law and, depending on the nature and
seriousness of their violations, be disciplined or examined for penal liability
according to the provisions of law.
Chapter V
ORGANIZATION OF
IMPLEMENTATION
Article 19.-
Responsibilities of agencies, organizations and individuals
1. The Finance Ministry shall guide and organize
the implementation of this Decree.
2. The State Bank of Vietnam shall direct and
guide credit institutions in supplying customs offices with adequate documents
related to the settlement of imported and exported goods in service of the
inspection and determination of the dutiable value.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4. Relevant business associations, organizations
and individuals shall have to supply information on imported and exported goods
at the request of customs offices.
Article 20.-
Implementation provisions
1. This Decree takes effect 15 days after its
publication in "CONG BAO" and replaces the Government’s Decree No.
60/2002/ND-CP of June 6, 2002, stipulating the determination of the dutiable
value for imported goods on to the principles of the Agreement on
Implementation of Article 7 of the General Agreement on Tariffs and Trade. The
previous provisions contrary to this Decree shall all be annulled.
2. Ministers, heads of ministerial-level
agencies, heads of government-attached agencies and presidents of
provincial/municipal People’s Committees shall have to implement this Decree.
GOVERMENT
Phan Van Khai