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THE
GENERAL DEPARTMENT OF CUSTOMS
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
285-TCHQ/QD
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Hanoi,
November 20, 1997
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DECISION
PROMULGATING THE REGULATION ON DETERMINING PRICES FOR
CALCULATION OF IMPORT-EXPORT TAXES
THE GENERAL DIRECTOR OF THE GENERAL DEPARTMENT OF
CUSTOMS
-Pursuant to the Ordinance on
Customs of February 20, 1990;
-Pursuant to Article 7 of the Law on Import-Export Taxes promulgated on January
4, 1992;
-Pursuant to Article 7 of Decree No.54-CP of August 28, 1993 of the Government;
-Pursuant to Decision No.918-TC/QD/TCT of November 11, 1997 of the Minister of
Finance;
-Pursuant to Circular No.82/1997/TT/BTC of November 11, 1997 of the Ministry of
Finance guiding the application of prices for calculation of import-export
taxes;
-At the proposal of the Head of the Department for Inspection of
Import-Export Tax Collection,
DECIDES:
Article 1.-
To issue together with this Decision the Regulation on Determining Prices for
Calculation of Import-Export Taxes.
Article 2.-
This Decision takes effect from December 01, 1997.
Article 3.-
This Decision shall replace Decision No.192/TCHQ/KTTT of May 15, 1995 of the
General Department of Customs; guiding Official Dispatch No.3670/TCHQ-KTTT of
November 14, 1996 of the General Department of Customs and the earlier
provisions of the General Department of Customs which are contrary to this
Decision.
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FOR
THE GENERAL DIRECTOR OF THE GENERAL DEPARTMENT OF CUSTOMSDEPUTY GENERAL
DIRECTOR
Nguyen Van Cam
REGULATION
ON DETERMINING PRICES FOR CALCULATION OF IMPORT-EXPORT TAXES
(issued
together with Decision No.285-TCHQ-QD of November 20, 1997 of the General
Director of the General Department of Customs)
A.- USE OF
PRICES FOR TAX CALCULATION:
In principle, the application of
prices for tax calculation must be carried out quickly, conveniently and in
strict compliance with the regulations on the control of the tax calculation
prices, thus avoiding obstruction to the release of goods.The use of prices for
tax calculation to specific cases is detailed as follows:
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1. At the place for filling customs
procedures, the tax officer shall have to examine all the dossiers of the lot
of goods, particularly the validity of the contract, receipts and payment
vouchers as prescribed. Invoices for the calculation of minimum import tax
(issued by the Ministry of Finance and by the General Department of Customs
after consulting the Ministry of Finance) and make public such invoices at the
place for filling customs procedures.
2. Basing him/herself on the
results of examination of the goods actually imported and the related
documents, the tax officer shall re-examine the following contents: Specific
names of the commodities, their symbols and codes, their quality, origin,
specifications, volume, weight and unit prices written in the contract..., then
determine the tax calculation price on the basis of the minimum import price
calculation index effective at the time of the import of goods. More
concretely:
a/ With regard to import goods
on the list of commodities with tax calculation prices controlled by the State
as prescribed in Decision No.918-TC/QD/TCT of November 11, 1997 of the Minister
of Finance:
- If the contractual prices
conform with the valid papers related to the sale and purchase of goods and are
equivalent to or higher than the minimum purchase prices provided for in the
current price indice, the prices for import tax calculation shall be the prices
stated in the sale and purchase contract (CIF prices).- If the contractual
prices are lower than the prices defined in the minimum price index or if the goods
are imported in a mode other than the mode of sale and purchase, the prices for
import tax calculation shall be the minimum prices provided for in the current
minimum import tax calculation price index.
b/ For import goods outside the
list of commodities with tax calculation prices controlled by the State:- If
they meet conditions prescribed in Point I, Section C of Circular
No.82/1997/TT/BTC of November 11, 1997 of the Ministry of Finance guiding the
use of prices for import tax calculation, the prices stated in the foreign
trade contracts (CIF prices) shall apply.
- If they fail to meet
conditions for the use of prices stated in the foreign trade contracts as
prescribed in Point I, Section C, Circular No.82/1997/TT/BTC of November 11,
1997 of the Ministry of Finance guiding the use of prices for import tax
calculation or if they are imported in a mode other than the mode of sale and
purchase without payment through a bank, the current minimum import tax
calculation price index shall apply.
c/ In case the tax calculation
must be based on the prices provided for in the minimum price index (for goods
with prices controlled by the State or goods which are not eligible for the use
of the contractual prices) but such prices are not available in the minimum price
index issued by the Ministry of Finance or the General Department of Customs,
the tax officer at the place for filling customs procedures shall calculate the
tax on the basis of the prices (CIF prices) declared by the concerned
enterprise for the newly-made commodities, and at the same time make a price
report to be submitted to the price bureau or the tax collection inspection
bureau of the local customs department which shall later make a sum-up price
report attached with its proposal on the prices for tax calculation (as defined
in Point II, Section B of this document) and send it to the General Department
of Customs for consideration and direction.
d/ For the enterprises and units
entitled to make a self-declaration on prices for import tax calculation, they
shall have to make commitments and take full responsibility for the veracity
and accuracy of the declared prices; if a false declaration is detected, the
concerned enterprise shall not only have to pay import tax arrears but
depending on the seriousness of its violation, also be fined from two to five
times the evaded tax amount.
e/ In case the imported goods
are accompanied with lawful and valid sale and purchase contracts and eligible
for tax calculation according to contractual prices as provided for in Decision
No.918-TC/QD/TCT of November 11, 1997 of the Minister of Finance and Circular
No.82/1997/TT/BTC of November 11, 1997 of the Ministry of Finance, but the
selling and buying prices (CIF prices) written in the foreign trade contracts
are two low or too absurd, the local customs department shall report to the
General Department of Customs and the Ministry of Finance for direction on each
specific case.
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4. If contractual prices are
used, the provincial/municipal customs department shall have to write the
goods' specific names, the names of the companies importing them, the serial
numbers of the declaration papers, the FOB or CIF prices and the serial numbers
of the contracts; consider cases of using contractual prices for tax
calculation and once every ten days report them to the General Department of
Customs and the Ministry of Finance for considering and directing the
determination of tax calculation prices (separate reports are required for specific
cases of import as mentioned in Section II, Circular No.82/1997/TT/BTC of
November 11, 1997 of the Ministry of Finance).
5. Prices for the calculation of
tax on used import goods shall be equivalent to 70% (seventy per cent) of the
prices of brand-new goods of the same type. If the prices of the brand-new
goods of the same type are not available, the prices of brand-new goods of the
equivalent type shall serve as basis for tax calculation.
II.- FOR GOODS ON THE LIST OF
COMMODITIES WITH TAX CALCULATION PRICES CONTROLLED BY THE STATE, IMPORTED BY
SUBJECTS DEFINED IN SECTION A, CIRCULAR No.82/1997/TT/BTC OF NOVEMBER 11, 1997
OF THE MINISTRY OF FINANCE FOR USE AS MATERIALS AND RAW MATERIALS TO BE PUT
DIRECTLY INTO PRODUCTION OR ASSEMBLY:
1. On the basis of a thorough
study of the provisions applicable to the above-said form of import defined in
Decision No.918-TC/QD/TCT of November 11, 1997 of the Minister of Finance and
Circular No.82/1997/TT/BTC of November 11, 1997 of the Ministry of Finance and
the dossier registered for completion of procedures for the import of the lot
of goods, the local customs department shall conduct a check and if it deems
that all conditions prescribed in Point II, Section C of Circular
No.82/1997/TT/BTC of November 11, 1997 of the Ministry of Finance are met, the
contractual prices (CIF prices) shall comply with its approval written on the
customs declaration.
In implementing these
provisions, the local customs department should pay attention to the following:
a/ Regarding the certification
of technological lines for the manufacture of products:
- A domestic production unit
must obtain certification from the parent ministry or the provincial/municipal
People's Committee that it has the necessary technological line for production
and assembly, is fully able of making products as prescribed and uses the
imported materials and raw materials for the production thereof.
- An enterprise with foreign
investment ital must obtain certification from the Ministry of Planning and
Investment or the Ministry of Science, Technology and Environment that it has
the technological line for production and assembly and complete equipment,
meets the prescribed technical conditions, performs the production and business
functions in conformity with its investment license and uses the imported
materials and raw materials for production and assembly of the products.
b/ The enterprise or unit
engaged in the import or consigned import activities must obtain from the tax
agency directly managing it the certification that it has strictly observed the
regulations on accounting books, vouchers and receipts.
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4. The supply of imported
materials and raw materials by a domestic independent business cost-accounting
enterprise to another (including units of the same corporation or union...)
shall not be considered "direct input into production".
5. With regard to the imported
materials and raw materials on the list of commodities with tax calculation
prices controlled by the State, which have been taxed according to the
contractual prices (CIF prices) that are lower than the prescribed minimum
prices, if they are not directly put into production but sold or transferred to
other enterprises, units or organizations, within two days after such sale or
transfer, the concerned units or enterprises shall have to declare to the
customs agency of the locality where the procedures for the import of the lot
of goods has been completed. The local customs department shall, on the basis
of the declaration made by the importing unit and certification by the local
tax department, re-calculate the tax for the transferred materials in
accordance with the regulations on the tax calculation prices at the time of
transfer and then issue a notice on the additional tax amount.
6. In order to manage customs
declarations for import registration in this form, the tax collection
inspection bureau of the local customs department shall have to open a monitor
book which must include the following details:
+ The name of the importing unit
+ The serial number of the
import contract
+ The registration number of the
customs declaration
+ The opening date of the
customs declaration
+ The import volume
+ The volume of goods that have
been put into production
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+ The volume of goods
transferred (not directly put into production)
Once every three months, the
local customs department shall request the importing unit to discuss directly
with it on a detailed calculation of the volume of goods imported in this form,
which have not yet been put into production or not been directly put into
production.
III.- REGARDING GOODS IMPORTED
BY ENTERPRISES WITH FOREIGN INVESTMENT ITAL AND RAW MATERIALS AND MATERIALS
IMPORTED FOR THE PRODUCTION OF GOODS FOR EXPORT:
1. With regard to goods imported
by enterprises with foreign investment ital, which are not exempt from import
tax under the Law on Foreign Investment in Vietnam:
a/ With regard to import goods
which are not exempt from tax as prescribed, the determination of tax
calculation prices shall comply with the current regulations guiding the
determination of tax calculation prices as provided for in Points I and II,
Section A of this document.
b/ With regard to goods which
are raw materials, spare parts, accessories and materials imported for the
production of export goods, which, when being imported, are subject to the
import tax, and when being exported are eligible for the reimbursement of the
tax amount corresponding the volume of materials and raw materials used for the
production of the export products, the tax shall be calculated according to the
prices stated in the foreign trade contract. The remaining raw materials, if
not being used for the production of export goods and subject to the tax
payment when imported the tax calculation prices shall be re-determined
according to the guidances on the application of tax calculation prices provided
for in this document.
c/ To avoid the possibility that
the goods owner may lower the goods' prices to sell them within the country or
increase the goods' prices to raise the value of his/her ital contributions,
the provincial/municipal customs department shall have to monitor specific
cases, summarize and report them to the General Department of Customs for
handling measures, which, however, must not affect the release of goods.
2. With regard to raw materials
imported for the production of goods for export (by enterprises without
investment ital contributions): if being exported in the form of finished
products and eligible for the reimbursement of the tax amount corresponding to
the volume of finished products, the determination of tax calculation prices
shall also comply with the provisions of Point I(b), this Section.
3. With regard to materials and
raw materials imported for the processing of goods for foreign countries:
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- In case the materials and raw
materials imported for the processing of goods for foreign countries have not
been used up or the finished products therefrom have not been exported, if they
have been subject to import tax payment, the prices for tax calculation shall
be determined in accordance with guidances provided for in this document and
the time for determination shall be the time when the reason for tax exemption
changes.
IV.- FOR EXPORT GOODS:
In case a foreign trade contract
is lawful and valid as prescribed in Point I, Section C, Circular
No.82/1997/TT/BTC of November 11, 1997 of the Ministry of Finance and the
prices written thereon conform with the relevant valid documents, the tax
calculation prices shall be the prices stated in the foreign trade contract
(FOB prices, excluding the freight "F" and insurance premium "I")
B.- SETTING
PRICES:
I.- CASES WHERE TAX CALCULATION
PRICES MUST BE SET:
- For newly-made goods with tax
calculation prices controlled by the State but such prices are not available in
the price index promulgated together with Decision No.918-TC/QD/TCT of November
11, 1997 of the Minister of Finance;
- For goods with tax calculation
prices not controlled by the State, which are not qualified for the application
of the contractual prices for tax calculation as prescribed in Article 2,
Decision No.918-TC/QD/TCT of November 11, 1997 of the Minister of Finance, or
goods imported in a mode other than the mode of sale and purchase for which the
tax calculation prices have not yet been specified in the minimum import tax
calculation price index promulgated jointly by the General Department of
Customs and the Ministry of Finance.
II.- PRICE SETTING PROCESS:
- When calculating tax according
to prices (CIF prices) declared by the enterprise itself for the lot of the
newly-made goods (the minimum prices of which have not been provided for in the
current minimum import tax calculation price index), the tax officer at the
place for filling customs procedures shall make a price report and send it to
the tax collection inspection bureau or the price bureau of the local customs
department on the same day of tax calculation.
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In the price report all columns,
sections and notes must clearly state the grounds for making price proposals
and for keeping the goods' samples or not. The local customs department shall
have to take responsibility before the General Department of Customs for the
proposed prices as well as the grounds for making such proposal.
- Within 15 days after receiving
the price reports from the local customs departments, the General Department of
Customs shall have to decide the concrete levels of prices to be uniformly
applied by the customs departments in all localities. The General Department of
Customs shall consult the Ministry of Finance to gather the price reports and
issue a decision on the amendment and supplement to the minimum price index.
- In case the local customs
department discover that the prices prescribed in the minimum price index are
not reasonable, it shall report in time to the General Department of Customs
and the Ministry of Finance for prompt adjustment.
C.-
SETTLEMENT OF COMPLAINTS:
- In case an importing unit
complains about the application or the setting of high prices or unreasonable
prices as compared with the average CIF prices applicable at the border gate,
the customs department of the province or city where the customs procedures
have been completed shall consider the complaint and proceeds as follows:
+ If the prices are unreasonable
since the tax officer has improperly applied the prices in the minimum price
index, the provincial/municipal customs department shall re-examine such
application, reply in writing to the complainant and at the same time apply the
prescribed prices.
+ If the complaint is about the
unreasonably high tax calculation prices which have been, however, specified in
the minimum price index, the provincial/municipal customs department shall
transfer the complaint dossier to the General Department of Customs and the
Ministry of Finance for consideration and reply.
- After the General Department
of Customs has sent a written reply to the importing unit and the customs
department of the province or city where the customs procedures have been completed,
the latter shall study such official dispatch and settle the case quickly and
conveniently in the spirit of the directions in the official dispatch. In case
the reply from the General Department of Customs remains unclear, the local
customs department must immediately report it to the General Department of
Customs. Within 7 days after receiving the official dispatch giving reply on
the settlement of the complaint from the General Department of Customs, the
provincial/municipal customs department shall have to settle the goods owner's
claim.
- If the importing unit does not
satisfy with the settlement by the General Department of Customs, it may lodge
its complaint to the Ministry of Finance, and the opinions of the Minister of
Finance shall be final.
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An importing enterprise, if
detected to be violating the provisions of Decision No.918-TC/QD/TCT of
November 11, 1997 of the Minister of Finance and Circular No.82/1997/TT/BTC of
November 11, 1997 of the Ministry of Finance guiding the application of import
tax calculation prices, shall, besides having to pay the import tax and special
consumption tax (if any) arrears but also be sanctioned for tax evasion in
accordance with the provisions of the current Law on Import and Export Taxes,
the Law on Special Consumption Tax, Decree No.22-CP of April 17, 1996 of the
Government on sanctions against administrative violations in the field of
taxation, and Circular No.45-TC/TCT of August 1st, 1996 of the Ministry of
Finance guiding the implementation of Decree No.22-CP.
For a repeat violation (from the
second time onwards), the local customs department shall not allow the
concerned unit, organization or enterprise to continue the application of the
regulations provided for in Circular No.82/1997/TT/BTC of November 11, 1997 of
the Ministry of Finance.
In the course of implementation,
any arising problem must be promptly reported to the General Department of
Customs for study, consideration and appropriate amendment and supplement.
FOR
THE GENERAL DIRECTOR OF THE GENERAL DEPARTMENT OF CUSTOMSDEPUTY GENERAL
DIRECTOR
Nguyen Van Cam