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MINISTRY OF
FINANCE
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VIETNAM
SOCIALIST REPUBLIC
Independence – Freedom - Happiness
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No.: 205/2010/TT-BTC
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Hanoi, December 15, 2010
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CIRCULAR
GUIDING
THE DECREE NO.40/2007/ND-CP DATED MARCH 16, 2007 OF THE GOVERNMENT STIPULATING
ON DETERMINATION OF CUSTOMS VALUE FOR IMPORTED, EXPORTED GOODS.
Pursuance
to the Law on Customs 29/2001/QH10 dated June 29,
2001; the Law on Amending, Supplementing a number of Articles of the Law on
Customs No. 42/2005/QH11 dated June 14, 2005;
Pursuance to the Law on Import Duty and Export Duty
No.45/2005/QH11 dated 14/6/2005;
Pursuance to the Law on Tax Management No.78/2006/QH11 dated November 29, 2006;
Pursuance to the Law on Intellectual Property No.50/2005/QH11 dated November 29, 2005, the Law on Amending,
Supplementing a number of Articles of the Law on Intellectual
Property No.36/2009/QH12 dated June 19, 2009;
Pursuance to the Decree No.40/2007/ND-CP dated March 16, 2007 of
the Government stipulating on determination of customs value for imported, exported
goods;
Pursuance to the Decree No.87/2010/ND-CP dated August
13, 2010 of the Government detailing the implementation of a number
of Articles of the Law on Import Duty and Export Duty;
Pursuance to the Decree No.85/2007/ND-CP dated May 25,
2007 of the Government detailing the implementation of the
Law on Tax Management; the Decree No.106/2010/ND-CP
dated October 28, 2010 amending, supplementing a
number of Articles of the Decree No.85/2007/ND-CP
dated 25/5/2007 and the Decree No.100/2008/ND-CP dated 08/9/2008 2007 of
the Government detailing a number of Articles of the Law on Personal Income Tax.
Pursuance to the Decision No.149/2005/QD-TTg dated June
20, 2005 of the Government on pilot
implementation of e-customs procedures; the Decision No.103/2009/QD-TTg dated August 12, 2009 of the Prime Minister on
amending, supplementing a number of Articles of the Decision No.149/2005/QD-TTg;
Pursuance to the Decree No.118/2008/ND-CP dated
October 27, 2008 of the Government providing functions,
duties, powers and organizational structure of the Ministry of Finance;
To implement the Resolution No.25/NQ-CP dated June 02, 2010
of the Government on Simplifying
Administrative Procedures under the
management functions of Ministries and Branches;
The Ministry of Finance guides the Decree No.40/2007/ND-CP dated March 16, 2007
stipulating on determination of customs value for imported,
exported goods as follows:
GENERAL
PROVISIONS
Article 1. Scope of
governing and subjects of application
1)
Scope of governing: This Circular guides the inspection, determination of
customs value aiming to calculate tax and collect statistic for imported,
exported goods.
2)
Subjects of application: Organizations and individuals who export and import
goods, customs agencies, customs officers and other organizations and
individuals who perform tasks related to inspection and valuation of exported
and imported goods.
Article
2. Interpretation of Term
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1)
Goods purchase and sell contracts: mean the agreements to purchase and
sell goods which are established in writing or other forms with validity
equivalent to the written documents including telegraph, telex, fax and data
messages. Accordingly: the seller is obliged to deliver goods, transfer
ownership of goods to the buyer and receive payments; the buyer is obliged to
pay for the seller and receives goods; goods are transferred from the seller to
the buyer, through border gate, Vietnam border or from the duty-free zones into
the domestic market or from domestic market to the duty-free zones.
Sellers
include goods sellers, service providers.
2) Commission
of purchase: means an amount that the buyers make payment to their
representative agents to buy imported goods at most reasonable prices.
3)
Commission of sale: means an amount that sellers make payment to their
representative agents to sell exported goods for buyers.
4)
Brokerage fees: means an amount that the buyers or sellers or
both buyers and sellers must pay to the brokers to assume the role of
intermediaries in the transaction of purchasing, selling imported goods.
5)
Copyright fees: means an amount that the buyers must pay
directly or indirectly to the subject of intellectual property rights, to be transferred
ownership or right to use the intellectual property rights.
5.1)
Intellectual property rights: mean the rights of organizations and individuals
for intellectual property, including copyrights and rights related to copyright
and industrial property rights and rights for plant varieties.
5.1.1)
Copyrights are the rights of organizations and individuals for the work they created
or owned.
5.1.2)
Rights related to copyright are the rights of organizations and individuals for
their performances, recordings, video recordings, broadcast programs, satellite
signals carrying encrypted programs.
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5.1.4)
Rights for plant varieties mean the rights of organizations and individuals for
the new plant varieties created or discovered and developed by their own, or
are enjoyed the ownership.
Contents
of the rights as provided in the Law on Intellectual Property.
5.2)
Subjects of intellectual property: mean the owners of intellectual property
rights or organizations, individuals that are transferred intellectual property
rights by its owner.
6)
License fees: mean an amount that the buyers must pay directly or
indirectly to the subjects of intellectual property rights to perform some
activities within the rights of industrial property rights.
7)
Goods with value which are considered "approximate" with each
other: If the difference between them affected by the following objective
factors:
7.1)
The nature of the goods, the nature of the goods producing sector;
7.2)
The seasonal nature of goods;
7.3)
The insignificant difference on commerce.
While
considering the approximation of the two values, it must be put on the same
purchasing and selling conditions.
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8.1)
Physical characteristics such as product surface, component materials,
manufacturing methods, function, purpose to use and mechanical, physical,
chemical nature...;
8.2)
Products quality;
8.3)
Reputation of brands;
8.4)
Being produced in the same country, by the same producer or authorized producer.
The
imported goods which basically satisfy the conditions being identical imported
goods, but having insignificant differences in appearance such as color, size,
style without affecting value of goods shall still be considered as identical
imported goods.
The
imported goods are not considered identical goods if in the process of
producing such goods, producers used the technical design, construction design,
planning of implementation, art design, the design drawings, diagrams, scheme
of similar products and services which are made in Vietnam provided free to the
sellers by buyers.
9)
Similar imported goods: means the goods, though not identical in all
aspects, but they have the same basic characteristics, including:
9.1)
Being made from the similar raw material, material with the same manufacturing
methods;
9.2)
With the same function, purpose of use;
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9.4)
May be interchangeable in commercial transactions, i.e. the buyer accepts the
replacement of this goods for others;
9.5)
Being produced in the same country, by the same manufacturer or other
manufacturers that are authorized, imported into Vietnam.
The
imported goods shall not be considered as similar if in the process of
producing one of such goods, producers used technical design, construction
design, art design, implementation plan, the design drawings, diagrams, scheme
or similar products and services which are made in Vietnam provided free to the
sellers by buyers or buyers reduce price to the seller.
10)
Identical exported goods: mean exported goods which are identical in all
respects, including:
10.1)
Physical characteristics such as product surface, component materials,
manufacturing methods, function, purpose to use and mechanical, physical,
chemical nature...;
10.2)
Products quality;
10.3)
Reputation of brands;
10.4)
Being made in Vietnam, by the same producer or authorized producer.
11)
Similar exported goods: means the goods, though not identical in all
aspects, but they have the same basic characteristics, including:
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11.2)
With the same function, purpose of use;
11.3)
With similar product quality;
11.4)
May be interchangeable in commercial transactions, i.e. the buyer accepts the
replacement of this goods for others;
11.5)
Being made in Vietnam, by the same manufacturer or other authorized manufacturers.
12) Imported
goods with the same class or category: mean the goods which are in the same
group or a set of groups of goods produced by the same industry or the specific
field, including identical imported goods and similar imported goods.
For
example, category of construction steel such as rolled smooth steel, twisted
steel, form steel (U, I, V ...) produced by the steel production industry, is
goods with the same category.
12.1)
In the method of determining the taxable value under the deductible value
"imported goods with the same class or category" are the goods
imported from all countries into Vietnam, regardless of origin.
12.2)
In the method of determining the taxable value under the calculated value
"imported goods with the same class or category" must be the imported
goods having the same origin with the goods which are being determined taxable
value.
13)
First entry gate: means the destination port indicated in Bill of
Lading. For transport by road traffic, railway or river, the first entry gate
is the port of destination stated in the contract.
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15) Intermediaries:
are understood as the floppy disk, CD, tape, mag-card or any object which may
store information, are used as a means of temporary storage or to transfer
software. Enabling the software to be used, it must be delivered, installed or
integrated into data processing devices. Intermediaries herein do not include
integrated circuits, IC, semiconductors and similar devices or components
mounted on circuit boards or such devices.
16) Assumed price:
means the price rate determined when not yet had the goods sale and purchase
activities to import goods into Vietnam.
17) Imposed price:
means the price rate determined not in compliance with the principles and
methods of determining the taxable value guided in this Circular.
Article
3. Principles for determining customs value
1)
Customs value for purposes of calculating tax (hereinafter referred to as
taxable value) is determined according to the principles guided in Chapter II
this Circular.
2) Customs value for
statistical purposes (hereinafter referred to as the statistical value) is
determined according to the following principles:
2.1) For goods which
are subject to tax, the statistical value is the taxable value.
2.2) For goods which
are not subject to tax, goods exempted from tax, reviewed for tax exemption,
the statistical value is the value declared by the customs declarants upon the
following principles:
2.2.1) For imported
goods, being the selling price at the first entry gate (CIF, DAF price);
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Article
4. Time of determining customs value and time of paying tax
1) Time of
determining the customs value for exported or imported goods is the date of
registration of customs declarations of exported or imported goods.
For the case of
delaying the determination of taxable value, time of determining the taxable
value for exported or imported goods is the date that customs agencies or
customs declarants determining taxable value according to guidance in this
Circular
2) Time of paying tax:
2.1) For the
difference between the amount of tax imposed by the customs agencies and the
amount of tax declared, calculated by taxpayers in case the customs clearance
of goods has been made is 10 (ten) days from the date the Customs agency issues
the decision to impose tax;
2.2) For other cases,
time of paying tax is implemented according to provisions in clause 3, 4 and 5 Article
42 of the Law on Tax Management.
Article 5. Rights of
customs declarants
1) Being entitled to
request the customs agencies:
1.1) To keep
confidential commercial information provided to customs agencies, including the
kinds of information of the buyers, sellers and consignees, the domestic
purchaser, export prices, import prices, prices for reselling domestic goods,
the production cost of imported goods;
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1.3)
To notify in writing on the taxable value, the basis and methods used to
determine the taxable value in the case of taxable value determined by the
customs agencies;
1.4)
To consult for explanation and clarify the doubtful question of the customs
agencies on the declared value;
1.5)
To conduct customs clearance in case of exported goods without official price
at the time of registering declaration; or imported goods that must delay the
determination of taxable value, on the basis of the assurance of payable tax
has been made.
2)
To request in writing for the change of order to apply the deductible value
method and the calculated value method.
3)
To complaint or proceed against the determination of the taxable value of the
customs agencies in accordance with the law regulations on complaints and
denunciations and the law on procedures for settlement of administrative cases.
4)
Other rights according to regulations of the Law on Tax Management.
Article 6. Obligations of customs declarants
1)
To declare fully and accurately the costs related to goods purchase and sale
for export, import and self-determine the taxable value of exported and
imported goods under the provisions.
2)
To submit taxable value declaration, documents, legal vouchers used to
determine the taxable value with the customs declaration. To submit, present
the documents for use as a basis for inspection and determination of the
taxable value as the request of the customs authorities.
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4)
To take responsibility before the law for the declared contents and results of
self-determination of customs value aiming to calculate tax and customs
Statistics.
5)
To take responsibility for consultations invitation (Upon Form No.3 issued
together with this Circular) sent by the customs agency according to the
correct address declared in the customs declaration or the address registered
with the customs agency but having no recipient.
6)
To implement the assurance at the request of the customs agency stipulated in Article
25 of this Circular if wishing goods to be conducted customs clearance.
7)
Other obligations according to regulations of the Law on Tax Management.
Article 7. Responsibilities of customs
agencies
1) To keep confidential commercial
information provided by the customs declarants related to declared value,
including the kinds of information of the buyers, sellers and consignees, the
domestic purchaser, export prices, import prices, prices for reselling domestic
goods, the production cost of imported goods, except for the cases of being
forced to supply to the relative agencies in accordance with law regulations.
2) To explain, guide the customs declarants
to comply with the provisions of the Decree No.40/2007/ND-CP dated 16/3/2007 of
the Government and guidance in this Circular.
3) To notify in writing to the customs
declarants on:
3.1) Basis, doubtful grounds in case of having
doubt on the declared price rate for the items to be of the risk management List
of imported goods on prices of General Department level or the risk management List
of imported goods on prices of Department level (upon Form No.1 attached
herewith);
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3.3) Taxable value, the basis and methods used
to determine the taxable value in case of taxable value determined by the
customs agencies (upon Form No.4 attached herewith);
4) To organize the implementation of
consultation in accordance with correct order, procedures as guided in Article
26 of this Circular.
5) To publish the form of taxable value
declaration on page of electronic information of Vietnam Customs and guide the
customs declarants to declare suitably for each method of determining the
taxable value.
6) To resolve complaints from the customs
declarants on the determination of taxable value as prescribed by law.
7) Other responsibilities according to
regulations of the Law on Tax Management.
Article 8. Powers of
customs agencies
1) To check the contents of the declaration,
determination of the taxable value of the customs declarants as guided in
Chapter III of this Circular.
2) To require the customs declarants to
submit and present documents and vouchers relating to the purchase, sale,
payment for goods, documents of transport, insurance (if any) and sales
cost-accounting after import to explain, clarify the doubtful question of the
customs agencies for the declared value.
3) Determination of taxable value:
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3.1.1) Customs declarants may not determine
the value or determine value not in compliance with principles and methods
prescribed in Item I Chapter II of this Circular; do not declare or improperly
declare the official price;
3.1.2) Illegal goods sale and purchase
contract;
3.1.3) Contents between goods purchase and
sale contract and the contents declared on the customs declaration are
conflicted;
3.2) For imported goods: the customs agencies
determine taxable value in the following cases:
3.2.1) Customs declarants may not determine
the taxable value according to methods to determine value;
3.2.2) Failing to declare or declare
improperly the must-to-plus amounts provided in this Circular.
3.2.3) The cases that the customs agencies
reject the declared value specified in point 1.3.2.2 clause 1 Article 24 and point
4.4.1 clause 4 Article 26 of this Circular.
3.2.4) The cases that goods to be of the risk
management list of imported goods on prices of the General Department level or
the risk management List of imported goods on prices of the Department level
with doubtful question on price rates, and customs declarants agree to pay tax
at the price rates determined by the customs agencies under the form No.1
issued attached herewith.
3.2.5) The customs declarants do not comply
with provisions in the Decree No.40/2007/ND-CP dated 16/3/2007 of the
Government and guidance in the issuance attached herewith.
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Article 9. Documents,
vouchers
Apart from customs vouchers as prescribed, the
vouchers, documents which the customs declarants must hand in to the customs
agencies as prescribed in this Circular are certified true copies of
enterprises (except for the cases with specific requirement being the
original), each type of voucher, document 01 copy. If there are doubtful
questions on relevant documents, vouchers, the customs agencies must
cross-check with the original to ensure the accuracy.
Chapter II
VALUE
DETERMINATION FOR IMPORTED, EXPORTED GOODS
ITEM I. TAXABLE VALUE DETERMINATION FOR
IMPORTED, EXPORTED GOODS
Article
10. Principle, method of determination
1)
Principle: Taxable value for exported goods is the actual selling price at the
exit gate (FOB, DAF prices) not including International insurance costs (I) and
international transport costs (F) in accordance with the relevant documents.
2)
Method of determination:
2.1)
Actual selling price at the exit gate is the selling price stated in the
purchase and sale contracts or the forms with legal validity equivalent to
contracts, commercial invoices and relevant documents of the consignment in
accordance with exported goods in reality.
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2.2.1)
Declarations of identical exported goods, similar exported goods to be the basis
for determining taxable value, or/and
2.2.2)
Invoices of identical exported goods, similar exported goods issued or allowed
to use by the Ministry of Finance; or/and
2.2.3)
Vouchers used for conversion into FOB price, DAF used to determine taxable
value.
Article
11. Taxable value for exported goods which have not yet had official price at
the time of registering declarations
1) For exported
goods which have not yet had official price at the time of registering
declarations due to the agreement in the goods purchase and sale contract that
the time to close price is the time after goods were exported, customs declarants
declare temporarily calculated price at the time of registering declarations;
declare official price upon form No.5 issued together with this Circular and pay
the tax difference (if any) within 10 days since the date of closing price. The
customs agencies examine the declaration of the customs declarants, time to
close price, conditions to accept the time to close price and implementation:
1.1)
Handling the different taxation under the provisions on the handling of
overpaid taxation of the Tax Administration Law and the guidance documents for
the cases tax amount which is calculated by official price lower than the paid
tax at the temporarily calculated price;
1.2)
Issuing the decision to sanction administrative violations for the case customs
declarants declare the official price not in compliance with the time limit
specified in clause 1 of this Article;
1.3)
Determining taxable value, defining tax, collecting fully taxation, fines for
late payment (if any), issuing the decision to sanction administrative
violations for the case customs declarants fail to declare or declare not in
compliance with official prices.
2)
Time to close price for a maximum period is 90 days since the date of
registration of declarations for exported goods. Where the time to close price
exceeds 90 days since the date of registration of declarations, Directors of
the Customs Department of provinces and cities shall be assigned to inspect,
review, decide the acceptance of the time to close price stated in the contract
based on records and documents, actuality of exported consignment.
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3.1)
The goods sale and purchase contracts have agreement for the time to close
price in compliance with export field;
3.2)
The time to close price in reality is in compliance with the time to close
price upon the agreement stated in the contract;
3.3)
The official price is in compliance with actual price to make payment of
exported goods in accordance with payment vouchers.
Where
there are insufficient conditions to be accepted the time to close price, and
the taxation is calculated according to the official price higher than the paid
taxation under the temporarily calculated price, the customs
declarants must pay fines for late payment of tax difference.
ITEM
II. DETERMINATION OF TAXABLE VALUE FOR IMPORTED GOODS
Article
12. Principle and method of determination of taxable value
1) Principle: Taxable
value for imported goods is the calculable actual price to the first entry gate.
2) Methods of
determination: the calculable actual price to the first entry gate is
determined by serial application of six methods to determine taxable value as
guided in Article 13, 15, 16, 17, 18, 19 of this Circular and stopping right in
the method of determining the taxable value (except for the cases of determining
taxable value as prescribed in Article 20 of this Circular). The methods of
determining the taxable value includes:
2.1) Method of transaction
value;
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2.3) Method of transaction
value of similar imported goods;
2.4) Method of
deducted value;
2.5) Method of calculated
value;
2.6) The deductive method.
Where the customs
declarants request in writing, the order to apply the method of deducted value
and method of calculated value is changeable to each other.
Article
13. Method of transaction value
Taxable value of imported
goods firstly must be determined by transaction value.
The transaction value
is the price that the actual buyers paid or shall pay to the sellers to
purchase imported goods, after having been adjusted in accordance with provision
in Article 14 of this Circular.
The paid actual price or payable price is
determined by the total amount that buyers has paid or will pay directly or
indirectly to sellers to purchase imported goods
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1.1) Buyers are not restricted the right to
determine or use goods after being imported, unless the following restrictions:
1.1.1) Restrictions stipulated by the laws of
Vietnam, such as regulations on imported goods being forced to label in Vietnamese,
conditioned imported goods or imported goods which are subject to an inspection
form before being conducted customs clearance;
1.1.2) Restrictions on location to sell goods;
1.1.3) Other restrictions not affecting value
of goods.
These restrictions are one or more factors
relating directly or indirectly to imported goods, but not making increase or
decrease of real paid prices for such goods.
Example: The automobile sellers require
buyers not to sell or display imported automobiles prior to the time to
introduce this model of automobiles to market.
1.2) The price or sale does not depend on the
conditions or payments, but because it is not determined the value of the goods
need to determine taxable value.
Example:
- Sellers
determine the selling price of imported goods with condition that buyers also
will purchase a certain quantity of other goods.
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Where the sale and purchase of goods or prices
of goods depending on one or a number of conditions, but the buyers have the objective
documents to determine the impact level in money of such dependence is still considered
as it has met these conditions; when determining the taxable value, it must be added
the amount to be reduced due to the impact of that dependence on the transaction
value.
1.3) After reselling, transferring or using
imported goods, other than the must be added amount stipulated in point 1.2.6 clause
1 Article 14 of this Circular, buyers are not required to make additional
payment from collected amount due to determination of imported goods.
1.4) Buyers and sellers have no special
relationship or if any, such special relationship does not affect the transaction
value.
1.4.1) In cases buyers and sellers have a
special relationship but not affecting the transaction value, the customs
declararants must declare for this.
1.4.2) On the basis of available information,
where the customs agency suspects that the special relationship affects the
transaction value, the customs agency must notify promptly in writing upon the
form No.1 issued attached herewith to customs declarants on the doubtful
grounds right the date of registration of declarations or the next working day.
1.4.3) Customs agencies
must create conditions for customs declarants to exercise the right of
consultation, explanation and provide additionally relevant information to
clarify the special relationship between the buyers and the sellers not
affecting the transaction value of imported goods mentioned in point 1.4.4 of
this clause.
1.4.4) The special
relationship between the buyers and the sellers does not affect the transaction
value if satisfying one of two conditions as follows:
1.4.4.1) Although
there is the special relationship, but the sale and purchase transaction
conducted as transaction between buyers and sellers having no special
relationship:
- For
example:
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+ +
Sale and purchase price of imported goods includes general expenses and
profits, which correspond to the general costs and profits of the sale of goods
at the same class or category.
Customs
agencies must examine the method that buyers and sellers establish the sale
and purchase relationships and the method of negotiation to achieve the
declared price, so that they can make a conclusion that the declared value has
been affected by the special relationship or not.
1.4.4.2) Or the transaction
value approximates to one of the herein values of lot of consignment to be
exported to Vietnam in the same day or within a period of 60 days before or
after the date of exporting lot of consignment being proven:
- Taxable value is
determined by the method of the transaction value of identical or similar
imported goods to be sold to other importers without special relationship with
the exporters (sellers);
- Taxable value of
identical or similar imported goods is determined by the method of the deducted
value provided in Article 17 of this Circular;
- Taxable value of
identical or similar imported goods is determined by the method of the
calculated value provided in Article 18 of this Circular.
1.4.4.3) Taxable values provided in point 1.4.4.2 of this clause aim to
compare to and it must adjust
the taxable value of identical imported goods, similar imported goods to the
same condition of purchasing, selling with imported goods being proven:
a) Adjusting
to the same conditions of purchase and sale: The adjustment of the taxable
value of identical or similar imported goods to the same condition of purchasing,
selling with goods lot being proven is made under the
guidance in point 2.2 clause 2 Article 16 of this Circular.
b) The
adjustment of the must be added, deducted amounts under the guidance in Article
14 of this Circular.
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2.1) Purchasing price stated in the
commercial invoice;
2.2) The adjustments are under the guidance in Article
14 of this Circular;
2.3) The amounts that
purchasers must pay but not included in the purchasing price stated in the
commercial invoice, including:
2.3.1) Advance
primitives, advance payments, deposits for the production, purchase and sale,
transportation, goods insurance.
2.3.2) Indirect
payments to the sellers such as the amounts that the buyers must pay to third
persons at the request of the sellers, the amounts which are paid by offsetting
debts.
3) Determination of taxable value for goods
with imported software:
3.1) Taxable
value is the actual value which is paid or payable for the imported goods being
intermediaries, not including the value of the software used for data
processing device that it contains with the condition that value of the
software is separated from the value of intermediaries in the commercial
invoice;
3.2) Taxable value is the actual value which
is paid or payable for the imported goods including value of the software and
cost for recording or installing software into the imported goods, if it is of
one of the following cases:
3.2.1) Value of the software is not separated
from the value of intermediaries in the commercial invoice;
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3.2.3) Software to be recorded, installed or
integrated in the imported goods not being intermediaries.
4) Vouchers,
documents to determine value according to this method include:
4.1) Vouchers,
documents proving special relationship not affecting the transaction value (if
any);
4.2) Vouchers,
documents relating to the amounts that purchasers must pay but not calculated
yet in the purchasing price stated in the commercial invoices (if any);
4.3) Vouchers,
documents relating to the added adjustments (if there are the added
adjustments);
4.4) Vouchers,
documents relating to the deducted adjustments (if there are the deducted
adjustments);
4.5) Other vouchers,
documents relating to the determination of taxable value upon transaction value
declared by customs declarants.
Article
14. The adjustments
1) Added adjustments:
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1.1.1)
Being paid by purchasers and not yet calculated in the actual price which is
paid or payable;
1.1.2)
it must be related to imported goods;
1.1.3)
There are objective data, quantity in accordance with relative legal documents.
Where
the imported consignment having added adjustments but there are no objective
data, quantity to determine taxable value shall not determine by the transaction
value and must move to the next method.
1.2)
The added adjustments:
1.2.1) Sales
commission costs, brokerage fees. Where these costs include the payable taxes
in Vietnam is not required to add the taxes to taxable value of imported goods.
1.2.2) Packaging
costs are considered consistent with imported goods, including price to
purchase packaging and other costs related to the purchase, sale and transport
of packaging to the place of packaging, preservation of goods.
Containers, barrels,
racks used as a means to package for transporting cargos and used many times is
not considered as packaging associated with goods so that they are not the must
be added costs for packaging associated with goods.
1.2.3) Costs for
packaging goods include the following costs:
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1.2.3.2) Costs for
labor on packaging, include staffs rent and costs related to hiring labor to
package goods being determined taxable value.
Where the buyers have
to bear the expenses on accommodation and transportation for workers during the
implementation of the packaging, the costs are also belong to the labor cost
for packaging.
1.2.4) Assistances:
The value of goods and services provided free of charge or reduced cost by
buyers are transferred directly or indirectly to the producers or sellers to
produce and sell exported goods to Vietnam.
1.2.4.1) The
assistances include:
a) Raw materials,
component parts, accessories and composed similar products are included in
imported goods.
b) Raw materials,
materials, consumed fuel in the process of producing imported goods.
c) Instruments,
tools, dies, molds, models and similar products used to produce imported goods.
d) Design drawings,
technical drawings, art design, plan of implementation, design of construction,
model design, diagrams, schemes and similar products and services made in
foreign countries and need for the process of producing imported goods.
1.2.4.2) Value
determination of the assistances:
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b) If assistant goods
and services produced by the importers or persons having special relationship
with the importers to supply to the sellers, the value of the assistances is
the costs of producing such assistant goods and services.
c) If assistant goods
and services are made by the oversea-based production establishment of buyer
but having no documents and vouchers to account separately for such assistant goods
and services, the value of the assistances are determined by allocating the
total cost of production in the same period of such establishment for the
amount of assistant goods and services produced.
d) The assistances
rent or borrowed by buyers, the value of the assistances are costs of renting
or borrowing.
e) The assistances
are goods which were used, the value of the assistances are the remaining value
of such goods.
g) Assistant goods processed
by buyers before handing over to the sellers for use in producing the imported
goods must include the added value due to process into the value of the assistances.
h) The assistances
which are reduced price to exporter by buyers, it must be added the reduced
value into taxable value.
i) If, after the
production of imported goods are completed but producers still obtain surplus
raw materials, material and waste materials from assistant goods, the value of
recovery from such surplus raw materials, materials and waste materials are
subtracted from the value of assistances, if there is data showing the value of
waste materials or surplus raw materials, materials.
Value of the
assistances is determined, including expenses related to the purchase and sale,
transportation and insurance to the place of producing imported goods.
1.2.4.3) Allocating
value of the assistance amounts for imported goods.
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a.1) Value of the
assistances must be allocated all for imported goods;
a.2) The allocation
must be formulated lawful documents;
a.3) The allocation
must comply with the regulations, accounting standards of Vietnam.
b) Method of allocating
value of the assistances:
The customs
declarants self-allocate the assistances for imported goods in accordance with
one of the following methods:
b.1) Allocating for
imported goods in the first imported consignment;
b.2) Allocating
according to number of goods units which were produced to the time of importing
for the first consignment;
b.3) Allocating for
all products expected to be produced in accordance with agreement of purchase
and sale between buyer and seller (or producers);
b.4) Allocating according
to the principle of descending or ascending;
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1.2.5) Fee of
copyright, licenses:
1.2.5.1) Condition for adjusting adding: Only
adjusting adding when there are fully the following conditions:
a) It must be paid
for the use of intellectual property rights relating to imported goods being
determined taxable value.
Example: A person who
imports Betacam tape containing video content, as agreed between the importer
and the exporter, importer shall pay royalties to be broadcasted such movie
from time to time and certain number of times of broadcasting. In this case,
the imported goods being Betacam tape, so the royalties are paid for using
video content contained in the tape, not paying for the royalties for imported
tape, so it shall not plus the copyright fees to the transaction value of
imported goods being Betacam tape.
b) Due to the purchaser must pay directly or
indirectly, as a condition for the goods sale transaction being determined
taxable value, means buyers must pay copyright fees, license fees as part of
activities of purchase, sale of imported goods.
c) Not yet calculated in the actual price
paid or payable of imported goods being determined taxable value.
1.2.5.2) Not required
to add to taxable value in the following cases:
a) The amounts that
buyers must pay for the right to re-produce imported goods or copy the art
works in Vietnam.
b) The amounts that
buyers must pay for the right of distribution or reselling imported goods if
this payment is not a condition stipulated in section b point 1.2.5.1 of this clause
of the sale of imported goods.
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1.2.5.3) Bases to
determine: payments documents of royalty, license fees or other lawful
documents representing the payment obligations for these items.
1.2.5.4) Time to
determine:
a) Where royalty,
license fee determined at the time of registering declarations, the declarants self-declare
royalty and license fee at the corresponding criterion in the value
declaration, self-determine value, calculate and pay tax in accordance with
provisions;
b) Where royalty,
license fee can not be determined at the time of registering declarations due
to depend on sale revenue after the import or other reasons specified in the
purchase and sale contracts or separate written agreement on the payment of
royalties, license fees, the procedures for declaration and inspection are
carried out as follows:
b.1) For the customs
declarants:
b.1.1) At the time of
registering declarations, declare clearly the reason not yet declared
royalties, license fees at the corresponding criterion in the value declaration;
b.1.2) Implementing
the declaration, calculating payable tax for royalty, the license fee actually
paid under the form No.5 issued attached herewith, and fully pay the taxation
within 10 days since the date of actually paying licensing fees, license fees
in accordance with the goods purchase and sale contracts or separate written agreement.
Time to calculate tax is the date that the customs declarant registers the
customs declarations.
b.2) For the customs
agencies:
b.2.1) Checking
relative documents and declared contents of the customs declarants provided in
section b.1 point 1.2.5.4 of this clause.
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b.2.3) Issuing the
decision to sanction administrative violations for the case the customs
declarants declare not in compliance with time limit provided in section
provided in section b.1 point 1.2.5.4 of this clause for the royalties, actual
payable license fees.
c) Where royalty or
license fee is calculated partly into imported goods, partly based on factors
not related to imported goods, then:
c.1) Adding to transaction
value, if the quantified, objective data to define, separate from royalty, the
license fees related to imported goods.
c.2) Not to determine
taxable value according to the method of transaction value and must move to the
next method, if it may not define, separate from royalty, the license fees
related to imported goods.
1.2.6) The amounts
that the importers must pay from the collected amount after re-selling,
disposing or using imported goods are transferred directly or indirectly to the
sellers in any form. Procedures of declaration, tests are carried out as
follows:
1.2.6.1) Where this
amount may be determined at the time of registering the declarations, the
customs declarants self-declare at the corresponding criterion in the value
declarations, self-determine value, calculate and pay tax in accordance with
provisions;
1.2.6.2) Where at the time of registering the
declarations it can not be determined the must be added amounts due to depend
on sale revenue after the import or other reasons specified in the purchase and
sale contracts or separate written agreements, then:
a) For the customs
declarants:
a.1) At the time of
registering the declarations, declare clearly the reason that has not declared
yet due to importers must pay from the amount collected after reselling,
defining, using imported goods at the corresponding criterion in the value
declarations;
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b) For customs
agencies:
b.1) Checking
relative documents and declaration of the customs declarants provided in point
a of this clause;
b.2)
Implementing the determination of taxable value, tax definition, the full
collection of taxation, fines for late payment (if any), issuing the decision
to sanction administrative violations for the case the customs declarants fail
to declare or declare incorrectly the must-pay actual fees;
b.3) Issuing the
decision to sanction administrative violations for the case the customs
declarants declare not in compliance with time limit provided in point a of
this clause for the must-pay actual amount from the amount collected
after reselling, defining, using imported goods.
1.2.7) Transportation costs and every other
costs directly related to transportation of imported goods until the goods have
been delivered to the first entry gate:
1.2.7.1) The expenses mentioned in this point
include: The cost of loading, unloading and transportation of goods, surcharges
for old ship, the cost of hiring types of containers, barrels, racks used as a
means to package for transporting cargos and used many times.
1.2.7.2) The expenses mentioned in this point
not including:
a) Costs of loading, unloading goods from
vehicles to the first entry gate if these costs are separated from
international transport costs (F). Where these cost included in the
international transport costs or included in the price actually paid or payable
are not allowed to separate (deduct) from the taxable value of imported goods.
b) Other expenses arise after the imported
goods are loaded, unloaded at the first entry gate.
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1.2.7.4) In case the shipments
with a variety of different goods but transportation contracts or vouchers,
documents related to cargos transportation not specified in detail for each
type of goods, the customs declarants self-allocate these costs for each type
of goods by using the methods of division according to the following order of
priority:
a)
To allocate on the basis of freight schedule of transporters;
b)
To allocate by weight or volume of goods;
c)
To allocate by proportion to the purchasing value of each type of goods on the
total value of shipments.
1.2.7.5)
Where the purchasing price not excluded transportation costs but the buyer does
not have transportation contracts, vouchers, documents related to cargos
transportation, or has but not legitimate, are not applied the method of transaction
value.
1.2.8) Cost for
insurance of imported goods to the first entry gate.
1.2.8.1) Where the
importers do not purchase insurance for goods, they shall not be required to
add this cost into taxable value.
1.2.8.2) Premium paid
for the whole shipment including many different kinds of goods but not been yet
specified in detail for each type of goods, shall distribute according to the
value of each type of goods.
1.2.9) The costs
mentioned in point 1.2.7 and 1.2.8 of this clause in case of the must be paid
value added tax in Vietnam was included, it shall not be required to add this
tax into taxable value.
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2.1)
Conditions for deducted adjustment: Only adjusting deduction when there are
fully the following conditions:
2.1.1)
There are quantified, objective data in accordance with the relative legal
documents and available at the time of determining value;
2.1.2)
Being Calculated in the actual price paid or payable;
2.1.3)
Complying with Vietnam law regulations on accounting.
2.2) The deducted adjustments:
2.2.1) Costs for activities arising after
importing goods, include costs of construction, architecture, installation,
maintenance or technical assistance, technical advice, supervision costs and
similar costs.
2.2.2) Transportation and insurance costs
arising after the goods have been transported to the first entry gate. Where
these costs are related to many different kinds of goods but not been stated in
detail for each type of goods, they must be allocated according to the
principles referred to in point 1.2.7 and 1.2.8 clause 1 of this Article.
2.2.3) The taxes, fees and charges payable in
Vietnam were included in the purchasing price of imported goods. Where the
fees, charges related to many different kinds of goods not directly be
determined for each type of goods, then they shall be distributed by proportion
of the purchasing value of each type of goods on the total value of shipments.
2.2.4) Discounts:
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a) Discounts to be of one of types of
discounts as follows:
a.1) Discounts upon
the commercial level of transactions of goods sale and purchase;
a.2) Discounts upon
quantity of goods sale and purchase;
a.3) Discounts upon
form and time to make payment.
b) Discounts were made in writing before
loading goods to the vehicles in the goods exporting countries;
c) Having quantified, objective data in
accordance with the lawful documents to remove this discount out of the transaction
value. These documents are filed with the customs declarations;
d) Making payments through banks by modes of
L/C or TTR for all imported goods under the sale and purchase contract.
e) Declared value and the actuality on
quantity of imported goods; commercial level, form and time to make payment
must conform to the list of publishing prices discount of sellers.
2.2.4.2) Procedures
to declare and inspect the discounts:
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a.1) To declare the
discount amounts in the corresponding criterion in the value declaration, but
not yet implemented the deducted adjustment for the discount amounts in the value
declaration;
a.2) To calculate,
pay tax at the price not yet deducted the discount amounts;
a.3) Filing dossiers
requesting for consideration to be deducted the discount amounts when the
import were completed and entire goods to be of the contract were made payment,
including the following documents:
a.3.1) A Written
request for being deducted the discount amounts after the import was completed
and entire goods to be of the contract were made payment (the original);
a.3.2) A
list of monitoring the actuality of goods import to be of the contract under
the form No.6 issued attached herewith (the original) for the case goods in the
same contract are imported for many different trips (many declarations);
a.3.3) A list of
publishing the discount of sellers according to quantity of purchased and sold
goods; or the commercial level of goods purchase and sale transaction; or form
and time to make payment;
a.3.4) All customs
declarations of imported goods to be of the contract and the enclosed customs
dossiers;
a.3.5) Payment
vouchers of all goods to be of the contract.
b) For customs
agencies:
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b.1) Inspecting
records, documents and the relevant documents together with the written request
of the customs declarants;
b.2) Inspecting and
comparing the declared value and the actuality on quantity; commercial level,
form and time to make payment with the List of publishing the discount of
sellers;
b.3) Considering or
deciding on deducted adjustment for the discount amount if it satisfies fully
all conditions stipulated in point 2.2.4.1 of this clause with a value of discount
amount not exceed 5% of the total value of shipments. Where the discount amount
at more than 5% of the total value of shipments, the customs agencies propose,
report and send the entire records to the General Department of Customs for
opinions before deciding to adjust or not;
b.4) Handling the tax
difference due to the discount amount to be deducted is implemented according
to the regulations on handling overpaid taxation in the Tax Administration Law.
2.2.5) The costs
borne by the Buyers relating to the marketing of imported goods, including:
2.2.5.1) Costs for research, market survey on
the products about to be imported;
2.2.5.2) Costs for advertisement of brands,
trade marks of imported goods;
2.2.5.3) Costs related to the exhibition,
introduction of newly imported products;
2.2.5.4) Costs for participation in fairs and
trade exhibitions on new products;
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2.2.5.6) Cost for opening L/C to pay for the
imported consignment, if these costs are paid by buyers to the bank that
represented them to make payment for goods.
2.2.6) The corresponding interest to interest
rates according to the financial agreement of the buyers and relating to the
purchase of imported goods: only being adjusted to deduct the interest from the
transaction value when satisfying all the conditions as follows:
2.2.6.1) Financial agreement is made in
writing;
2.2.6.2) Customs
declarants may prove that at the time of making the financial agreement, the
declared interest rate is not greater than normal credit interest rate in the
exporting country, but not exceeding the ceiling interest rate announced by the
Bank State of Vietnam;
2.2.6.3) Having
quantified, objective data to be deducted the interest from the transaction
value.
Article
15. Method of transaction value of identical imported goods
In case of unable to determine taxable value
under the method of transaction value as guided in Article 13 of this Circular,
taxable value of imported goods is determined by the method of the transaction
value of identical imported goods.
The method of the transaction value of
identical imported goods is implemented as guided in Article 16 of this
Circular, in which the group of words “similar imported goods” is replaced by
the group of words “identical imported goods”.
Article 16. The method of the transaction value of
similar imported goods
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Where unable to find
similar imported goods lot with the same conditions of purchase and sale with
the lot of imported goods being determined taxable value, then select a similar
imported goods lot which is different from conditions of purchase and sale, but
it must be adjusted to have the same conditions of sale and purchase.
2. Conditions to
select similar imported goods lot:
The similar imported
goods lot is selected if it satisfies the following conditions:
2.1) Condition on export time:
The similar imported goods lot must be
exported to Vietnam on the same day or with a period of 60 days before or after
the date of export with imported goods being determined taxable value.
2.2) Conditions of purchase and sale:
2.2.1) Conditions on commercial level and
quantity:
2.2.1.1) Similar
imported goods lot must have the same conditions on commercial level and
quantity with imported goods lot being determined taxable value;
2.2.1.2) If unable to
find a lot of imported goods referred to in point 2.2.1.1, select a imported
goods lot which has the same commercial level but different from quantity, then
adjust the transaction value of similar imported goods to become the same
quantity with shipments being determined taxable value;
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2.2.1.4) If unable to
find a lot of imported goods referred to in point 2.2.1.1, 2.2.1.2, 2.2.1.3, select
a imported goods lot which is different from both commercial level and
quantity, then adjust transaction value of similar imported goods lot to become
the same commercial level and quantity with shipments being determined taxable
value.
2.2.2)
condition on distances and modes of transport, insurance:
The
similar imported goods lot has the same distances and modes of transport, or
has been adjusted to have the same distances and modes of transport with
shipments being determined value.
If
there is a significant difference on the premium, then adjust to have the same
conditions with shipments being determined taxable value.
2.3) When applying the method of the transaction
value of similar imported goods, if unable to find similar imported goods
produced by the same producers or other producers who are authorized, then may
be allowed to consider goods produced by other producers and must have the same
origin.
2.4) When determining the taxable value by
this method that may determine from two transaction value of similar imported
goods or more, after they have been adjusted to have the same conditions of
purchase and sale with shipments being determined taxable value, taxable value
is the lowest transaction value.
If
during the time of conducting customs procedures without sufficient information
to select the identical or similar imported goods with shipments being
determined taxable value, not to determine the taxable value for imported goods
under the guidance in Article 15 or Article 16 of this Circular, but must move
to the next method.
3) Vouchers and documents to determine the
taxable value by this method include:
3.1) Customs
declarations and value declarations of similar imported goods;
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3.3) Insurance
contract of similar imported goods (if there is an adjustment for this cost);
3.4) List of export
sale price of the foreign manufacturer or seller (if there is an adjustment on
the quantity and commercial level);
3.5) Other records,
legal documents which are necessary and related to the determination of taxable
value.
Article
17. Method of deducted value
1) In case of unable
to determine taxable value under the method as guided in Article 13, Article
15, Article 16 of this Circular, the taxable value of imported goods is
determined by the method of the deducted value, based on the unit price of
imported goods, identical imported goods or similar imported goods in the domestic
market of Vietnam and minus (-) the reasonable expenses, profits earned from
the sale of imported goods.
Not to apply this method if goods are
selected to determine selling unit price to be of one of the following cases:
- Have not been sold in domestic market of
Vietnam or the sale has not been settled on vouchers, books keeping as
prescribed by law on Vietnam accounting;
- Related to the assistances due to any
person to supply, referred to in point 1.2.4.1 clause 1 Article 14 of this
Circular.
2) Conditions to select the selling unit
price in Vietnam market:
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2.2)
Selected selling unit price is the selling unit price corresponding to the
volume of goods sold with the largest cumulative number at level sufficient to
form the unit prices; goods were sold right after being imported, but not
exceeding 90 days after the date of import of the goods being determined
taxable; domestic buyers and sellers have not got any special relationship.
For example: The
goods lot A includes many items in which item B is required to determine
taxable value under the deducted method. The goods lot A is imported on
01/01/2005. A goods lot in which has an item identical to item B previously
imported and sold for many domestic buyers at the different price rates and different
time as follows:
900 dong/piece
50 pieces
28/3/2005
100 pieces
30 pieces
15/1/2005
20 pieces
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200 pieces
20/1/2005
450 pieces
250 pieces
12/2/2005
Total:
550 pieces
In the above
example, the unit price selected for deduction is 800 dong/piece corresponding
to the largest number of sale (450 pieces), at level sufficient to form unit
price. This unit price satisfies the conditions on selection of selling unit
price, that is:
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- Sale time
is within 90 days since the date of import.
3) Principle of deduction:
The
determination of the deductible amounts must be based on accounting data,
lawful documents available and recorded, reflected in accordance with the
regulations, standards of Vietnam accounting.
The
deductible amounts must be the amounts which are allowed to settle into
reasonable expenses of the enterprises in accordance with law on Vietnam accounting.
4) The
deductible amounts from selling unit price:
The
deductible amounts from the selling unit price is the reasonable costs and
profits earned after selling goods in the Vietnam market, including the
following amounts:
4.1) Transportation
costs, premiums and costs for other activities related to the transport of
goods after being imported, specifically:
4.1.1) Transportation
costs, premiums and other costs related to the transport of goods arising from
the first entry gate to the warehouse of the importer or location of goods
delivery in the interior of Vietnam;
4.1.2)
Transportation costs, premiums and other costs related to transport from the
warehouse of the importer in the intetrior of Vietnam to the location of sale,
if the importer must bear these costs.
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4.3) Commission
or overhead expenses and profit related to the sale activities of imported goods
in Vietnam.
4.3.1) Where the
importer is the sale agent for foreign traders, the commissions shall be
deducted. If the commission included expenses mentioned in point 4.1 and 4.2 of
this clause, these expenses shall not be deducted more.
4.3.2) In
case the import by the mode of definitive purchase and sale, overhead expenses
and profit shall be deducted: overhead expenses and profit must be considered
generally when determining the deductible value. The determination and
allocation of overhead expenses and profit for the imported goods lot must be
implemented according to the regulations and accounting standards of Vietnam.
Overhead
expenses include direct costs, indirect costs for the import and sale of goods
in the domestic market, such as goods marketing costs, the cost of storage and
preservation of goods before the sales, cost of management activities for the
import and sales, ...
Bases to
determine the deductions is the data recorded and reflected in the vouchers,
books keeping of the importers in accordance with regulations, accounting
standards of Vietnam. This data must correspond to the data obtained from the
sale and purchase activities of imported goods with the same class or category
in Vietnam.
5) For goods
sold not in the original status as imported:
5.1)
If unable to find a selling unit price of goods sold in the original status as
imported, then the selling unit price of imported goods which was spent the
course of outsourcing, domestic further processing shall be applied and the
costs of outsourcing, processing to enhance the value of goods shall be subtracted
with the condition that it can be quantified the cost of outsourcing, dommestic
further processing and the costs mentioned in clause 4 of this Article. Where unable
to separate these enhanxe costs from the sale price, the method of deducted
value shall not be applied and it must move to the next method.
5.2) If, after being processed,
imported goods remain its special characteristic, nature and function as they
are imported, but they are only as part of the goods sold in the domestic
market, the method of deducted value shall not be applied and it must move to
the next method.
5.3) If after being processed,
imported goods do not remain its special characteristic, nature and function as
they are imported and no longer be recognized the initial imported goods, the
method of deducted value shall not be applied and it must move to the next
method.
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6.1) A sale
invoice issued or allowed to use by the Ministry of Finance;
6.2) A sale
agent contracts if the importer is a sale agent of the exporter. This contract
must be stated specifically the commission that the agent is enjoyed, the types
of expenses that the agent must pay;
6.3) A
written explanation on sales revenue and vouchers, books keeping reflecting the
expenses mentioned in clause 4 of this Article;
6.4) Declarations
and value declaration of the goods lot selected for deduction;
6.5) Other
necessary document for inspection, determination of taxable value.
Article
18. Method of calculated value
1)
If unable to define taxable value upon the method guided in Article 13, 15, 16,
17 of this Circular, taxable value of imported goods is determined upon the
method of calculated value. The calculated value of imported goods includes the following costs:
1.1)
Direct costs to produce the imported goods: The cost price or value of
materials, the cost of the production process or other processing used in
producing the imported goods. These expenses include the following costs:
1.1.1)
The costs provided in point 1.2.1, 1.2.2, 1.2.3 clause 1 Article 14 of this
Circular;
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1.1.3)
Only be included in the taxable value the value of the support products
specified in section d point 1.2.4.1 clause1 Article 14 is done in Vietnam if
the producer bears costs for such support products.
1.2)
Overhead expenses and profit arising from the sale activities of goods having
the same class or category with imported goods being determined its value, are
produced in the exporting countries to sell goods to Vietnam. The profit and
overhead expenses should be considered generally when determining the calculated
value.
Overhead
costs include all direct or indirect costs of the process of production and
sale for export of goods, but not been calculated under the guidance referred
to in point 1.1 of this clause.
1.3)
The transportation cost, insurance and other costs related to the transport of
imported goods under the guidance in point 1.2.7 and 1.2.8 clause 1 Article 14
of this Circular.
2)
Bases to determined the calculated value:
To
be data recorded and reflected in the vouchers, books keeping of the producers
unless the data is not consistent with the data collected in Vietnam. This data
must correspond to the data obtained from the activities of production, sale
and purchase of imported goods with the same class or category produced by the
producers in the exporting countries for export to Vietnam.
3)
Vouchers and documents to determine the taxable value upon
this method include:
3.1)
A written explanation of the producers on the expenses mentioned in point 1.1
and 1.2 clause 1 of this Article, together with certified true copies of the
producer for the documents, accounting data consistent with this explanation;
3.2)
A sale invoice of producer;
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Article
19. The deductive method
1) If unable to define the taxable value upon the methods as guided in Article
13, 15, 16, 17, 18 of this Circular, the taxable value is determined upon the
deductive method based on the available, objective materials, data at the time
of determining the taxable value.
Taxable value upon the deductive method is determined by the way of
sequential and flexible application of methods of determining the taxable value
as guided in Article 13, 15, 16, 17 and 18 of this Circular and stop at the
method of determining the taxable value, with the condition that the
application of so shall be in accordance with the provisions in clause 2 of
this Article.
2) When determining the taxable value under this method, the customs
declarants and customs agencies are not entitled to use the following values to
determine the taxable value:
2.1) Selling prices in the domestic market of goods of the same class
produced in Vietnam.
2.2) Goods selling price in the domestic market of the exporting
countries.
2.3) Goods selling price for export to other countries.
2.4) Production costs of goods, excluding the costs of producing goods
used in the calculated method.
2.5) Minimum taxable value.
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2.7) Using the higher values in both replacement values to be taxable
value.
3) Some flexible applications of the methods of determining taxable
value:
3.1) Applying the method of the transaction value of identical imported
goods or similar imported goods.
If there is not identical imported goods or similar imported goods
exported to Vietnam on the same day or within a period of 60 days before or
after the date of export of the imported goods lot being determined taxable
value, then it shall be selected the identical imported goods or similar imported
goods exported in the longer period, but not exceeding 90 days before or after
the date of export of the imported goods lot being determined taxable value.
3.2) Applying the method of determining taxable value upon the method
of deducted value by one of the following ways:
3.2.1) Within 90 days since the date of of import but unable to
determine the unit price used for deduction, it is selected the unit price sold
with the largest number of accumulation within 120 days since the date of
import of the goods lot selected to deduct.
3.2.2) If there is the reselling unit price of the imported goods or
identical imported goods or similar imported goods to the person who has no
special relationship with the importer, it shall be selected the reselling unit
price of goods to purchaser who has special relationship with the condition
that such special relationship does not affect the prices in the sale and
purchase transaction.
3.3) Taxable value of imported goods is determined by the taxable value
of the identical imported goods already determined upon the method of the
deducted value or the method of calculated value.
3.4) Taxable value of imported goods is determined by the taxable value
of similar imported goods already determined upon the method of the deducted
value or the method of calculated value.
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5)
Documents and materials: include all documents and
materials relating to the determination of taxable value upon this method.
Article 20. Taxable
value for imported goods in some special cases
1) For goods have changed use purpose compared with
the purpose has been determined which are not subject to the tax payment,
subject to tax exemption, tax exemption consideration, the taxable value is
determined as follows:
1.1) Goods already used in Vietnam: The imported taxable value is
determined on the basis of the remaining use value of goods, calculated by
duration of use in Vietnam (calculated from the time of import upon the declarations
to the time of calculating tax) and is defined specifically as follows:
The use duration in Vietnam
The imported taxable value = (%) declared value at the time of
registering the declarations
From 6 months or less (rounded up to 183 days)
90%
From 6 months to 1 year (rounded up to 365 days)
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From more than 1 year to 2 years
70%
From more than 2 years to 3 years
60%
From more than 3 years to 5 years
50%
From more than 5 years to 7 years
40%
From more than 7 years to 9 years
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From more than 9 years to 10 years
15%
More than 10 years
0%
If the
declared price rates at the time of import of goods which are not subject to the tax payment or subject to tax
exemption, tax exemption consideration is lower the price rates in the
price database and the proportion specified above to determine the taxable
value.
1.2) Goods
not yet used in Vietnam: The taxable value is determined according to the
principles and methods of determining the taxable value as guided in this
Circular.
2) For waste
materials obtained during the process of processing, outsourcing for foreign
countries that the outsourcing hirer resells to the Vietnam side, the taxable
value is determined as follows:
2.1) If
having goods sale and purchase contracts, the taxable value is determined
according to the principles and methods of determining the taxable value as
guided in this Circular.
2.2) If
having no goods sale and purchase contracts, the taxable value is determined in
accordance with the provisions in clause 5 of this Article.
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4) For
imported goods which are goods brought for repair in the foreign countries,
when they are imported back to Vietnam, they are subject to tax payment, the
taxable value is the cost of repairs actually paid under the contract signed
with foreign side, in accordance with lawful documents relating to the repair
of goods.
5) Imported
goods without sale and purchase contracts:
5.1) Imported
goods as declared from 5 million dong or less, the taxable value is the
declared value. Where there are grounds to determine the declared value not consistent,
then the taxable value shall be defined by the customs agencies upon the
principles and one of the methods of determining the taxable value as guided in
this Circular;
5.2) Imported
goods as declared at value of more than 5 million:
5.2.1) Goods
imported by passengers on entry, goods imported for the purpose as awards in
sports, cultural and artistic competitions; goods as gifts, samples, imported
goods of providers of postal services, courier services:
a) For
imported goods as machinery, equipment and other goods at value of from 50
million dong or more; imported goods as automobiles, motorcycles: The taxable
value is determined according to principles and one of the methods of
determining the taxable value defined in this Circular.
b) For other
goods other than those specified in point a of this clause, the taxable value
is the declared value. Where there are grounds to determine the declared value
not consistent, then the taxable value shall be defined by the customs agencies
upon the principles and one of the methods of determining the taxable value as
guided in this Circular.
5.2.2) For
imported goods which are goods of warranty; promotion, buying and selling,
exchanging by border residents; other types without sale and purchase contract,
then the taxable value shall be defined by the customs agencies upon the
principles and one of the methods of determining the taxable value as guided in
this Circular.
6) Goods
imported surplus compared to the sale and purchase contracts signed with the
foreign side:
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6.2) Surplus
imported goods are goods different from imported goods stated in the contract,
if it is allowed to import, the taxable value is determined on the principle of
sequential application of the methods of determining taxable value as guided
from Article 15 to Article 19 of this Circular, not to determine by the method
of transaction value.
7) Imported
goods not in compliance with the sale and purchase contracts signed with
foreign side:
7.1) Imported
goods not in compliance with the specification, if it is allowed to import, the
taxable value is the value actually paid for imported goods. Goods not in
compliance with specification mean actual imported goods with differences from
color, size, style compared with description stated in the purchase and sale contract
and these differences do not affect the must-be-paid actual price.
7.2) Imported
goods not in compliance with the purchase and sale contract other than the case
stipulated in point 7.1 of this clause, if it is allowed to import, the taxable
value is determined on the principle of sequential application of the methods
of determining taxable value as guided from Article 15 to Article 19 of this
Circular, not to determine by the method of transaction value.
8) Actual imported
goods with the difference on the quantity compared with the commercial invoice
due to the nature of the goods, in accordance with the condition of delivery
and payment in the purchase and sale contract, when determining the taxable value,
the commercial invoices and the purchase and sale contract must be based on (condition
of delivery, the rate of tolerance, natural characteristics of the goods and
conditions of payment). Taxable value is not lower than the value actually paid
recorded in the commercial invoices and relevant documents.
9) Goods
imported into Vietnam from bonded warehouse:
9.1) The
taxable value is determined on the principle and the methods of determining
taxable value as guided in this Circular.
9.2) Date of
import is determined as:
9.2.1) Date
of loading goods up to vehicles indicated in the bill of lading for the case person
who brings goods into the bonded warehouse directly importing goods into
Vietnam.
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10) For
imported goods which are goods to be rent, the taxable value is the price
actually paid under the contracts signed with foreign countries, in accordance
with lawful documents related to the renting of goods.
Chapter III
INSPECTION
OF TAXABLE VALUE
ITEM I. INSPECTION OF TAXABLE VALUE OF
EXPORTED GOODS DURING THE PROCESS OF CUSTOMS PROCEDURES
Article
21. Objects, principle of inspection and competence, criteria for making the
List of risk management of exported goods on price of Department level and
sources of information for making inspection price rates
1) Subjects of inspection:
Customs dossiers or electronic customs dossiers, documents relating to
the determination of the taxable value of exported goods subject
to inspection of records or actual inspection of
goods.
2) Principle
of inspection: applying the
principle of risk management on value
The inspection of the
taxable value of exported goods is
made on the basis of examining
the items to be of the List of risk management of exported goods on prices of Department level (hereinafter referred to as the List of risk management of exported goods of
Department level).
3) Competence
to make, adjust, examine the List of risk management of exported goods of
Department level:
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3.2) General
Director of the General Department of Customs guides Customs Department of provinces and cities to amend, adjust the List of
risk management of exported goods of Department level
in cases the List of risk management of exported goods of
Department level has not been yet appropriate to the reality.
4) The criteria for making the risk List of
exported goods of Department level: Goods meet one of the following criteria:
4.1) Goods
are natural resources,
unprocessed minerals with tax rate of
export duty, excluding crude oil;
4.2) Goods
which are capable of commercial fraud.
5) Sources of
information to make examination price rates:
5.1) FOB, DAF prices of identical exported goods,
similar exported goods;
5.2) Sale price in the domestic market of
identical exported goods, similar exported goods after subtracting value added tax, special consumption tax (if any) and lawful costs arising
before exporting goods at exit border gate.
5.3) Other information collected
by the customs agencies after
converting into FOB, DAF prices.
Article
22. Inspection, handling results of examining taxable value
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1.1) For
goods which are subject to the risk
List of exported goods of Department level:
1.1.1) Contents
of inspection: Compare the declared price
rates with the inspection price rate
at the risk List of exported
goods of Department level.
1.1.2) Handling
the inspection result:
1.1.2.1) If
there is not doubful question on the declared price
rates, the declared price rates of the customs
declarants shall be accepted.
1.1.2.2) If
there is any doubful question on the declared price
rates, the inspection of procedures, records as provided in clause 2 of
this Article shall be continued to implement.
1.2) For
goods which are not subject to the risk
List of exported goods of Department level, the declared
price rates of the customs declarants shall be accepted.
2) Inspection
of procedure, dossiers:
2.1) Contents
of the inspection:
2.1.1) To
inspect the legitimate of the goods sale and purchase contracts.
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2.2) Handling
the inspection result:
2.2.1) To determine the taxable value if the goods purchase and sale
contract is not lawful or the contents the goods purchase and sale
contract and the
declared contents in the declarations or the electronic declarations are conflict.
2.2.2) To accept the declared price rates of the customs declarants, transfer to the post-clearance inspection force for the case having doubtful question on illegal documents or declared
price rate lower than the price rate at the
risk List of exported goods of Department level.
2.2.3) To accept the declared price rates of the customs declarants if the
inspection result is not subject to the cases provided in point 2.2.1, point
2.2.2 of this clause.
3) The case
of doubtful question on
the declared price rates: Exported goods having declared price rates lower
than the price rate at the risk List of
exported goods; or the declared
price rates are lower than
the price rates of identical, similar exported
goods at the price database of the customs agencies.
ITEM
II. INSPECTION OF TAXABLE VALUE OF IMPORTED GOODS DURING THE PROCESS OF CUSTOMS
PROCEDURES
Article
23. Objects, principle and competence, criteria for making the List of risk
management of imported goods on price of General Department level, the List of
risk management of imported goods on price of Department level and sources of
information for making inspection price rates
1) Subjects of inspection:
Customs dossiers or electronic customs dossiers, documents relating to
the determination of the taxable value of goods subject to
inspection of records or actual inspection of
goods.
2) Principle
of inspection: Applying risk management on value
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3) Competence to
make, adjust, supplement, reject the risk
List of imported goods of General Department level,
the risk List of imported goods of Department level:
3.1) Competences of
General Director of General Department of Customs:
3.1.1) To make,
adjust
the risk List of imported
goods of General Department level and inspection price rate attached on the
basis of:
3.1.1.1) The criteria to make the risk List of imported
goods of General Department level as guided in point 4.1 clause 4 of this Article;
3.1.1.2) Management
capabilities, the import situation
of
goods at
each
period on the
scope of
nation;
3.1.1.3) The
report, recommendations
of the
provincial, city Department
of Customs on making, adjustment
of the risk
List of imported
goods of
General Department level.
3.1.2) To supplement to the
risk
List of imported
goods of
General Department level the
imported goods which were put into the risk List of imported
goods of
Department level by from 17 provincial, city Departments of
Customs or more;
3.1.3) To remove from the
risk
List of imported
goods of
General Department level the
imported goods which are no longer suitable to the criteria to make the risk List of imported
goods of
General Department level as guided in point 4.1 clause 4 of this Article;
3.1.4) To guide the provincial,
city Departments
of Customs to modify, supplement, adjust the risk List of imported
goods of
Department level in case the risk List of imported goods of such level is not
suitable to the reality.
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3.2.1) To make,
adjust
the risk List of imported
goods of Department level and inspection price rate attached on the
basis of:
3.2.1.1) The criteria to make the risk List of imported
goods of Department level as guided in point 4.2 clause 4 of this Article;
3.2.1.2) Management
capabilities, the import situation
of
goods at
each
period under
the management scope, capabilities of commercial fraud;
3.2.1.3) Guidance of General
Departments of Customs on amending, supplementing, adjusting the risk List of imported
goods of Department level.
3.2.2) To supplement to the
risk
List of imported
goods of
Department level the goods which were removed from the risk List of imported
goods of
General Department level by the General Department of Customs;
3.2.3) To remove from the
risk
List of imported
goods of
Department level the goods which were put into the risk List of imported
goods of
General Department level by the General Department of Customs or the goods which
are no longer suitable to the criteria as provided in point 4.2 clause 4 of
this Article;
3.2.4) Periodically
propose, report
to the
General Department of Customs the items which should be added, adjusted in the risk List of imported
goods of
General Department level and the price rates attached to on the basis of the active collection,
synthesis, analysis
of price data information.
4) The criteria to make the risk List of imported
goods:
4.1) The criteria to make the risk List of imported
goods of General Department level: Imported
goods with
great value
and high tax rate of preferential
import
duty.
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4.2.1) Having great value and high tax rate of preferential
import
duty;
4.2.2) Having great import turn-over, regular import with import duty;
4.2.3) Capabilities of
commercial fraud.
5) Information source to
make inspection price rates:
5.1) Information sources
on prices from import dossiers declared by enterprises or determined by the
customs agencies;
5.2) Information sources
from offering letter of exporters;
5.3) Information sources
from selling price in domestic market;
5.4) Information sources
from business lines Associations;
5.5) Information sources
from Internet,
magazines, books;
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5.7) Information sources
from agencies, international organizations offer such as: Information supplied
by commercial counsellor; information supplied by the customs agencies of the
countries; information supplied by the foreign price appraisal agencies;
5.8) Other information
sources collected by the customs agencies under the regulation of making,
managing and using price database.
Article
24. Inspection and handling of taxable value inspection results
1) For electronic
customs procedures:
1.1) Form, level of
taxable value inspection:
1.1.1) Form of inspection:
1.1.1.1) To inspect the
declared value on the basis of information in the electronic customs
declaration, electronic value declaration;
1.1.1.2) To inspect the
declared value on the basis of information in the printed electronic customs
declarations, printed electronic value declaration and documents
together with declarations under form of paper.
1.1.2) Level of inspection:
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1.1.2.2) For
the form of
declared
value inspection on the basis of printed E-customs declaration, printed E-value
declaration and documents attached to the declaration under form of paper: to inspect the
declared contents;
the accuracy of
records; legality of the documents; compliance with the principles and methods
of determining
value; declared
price
rate.
1.2) Competent
to decide the form,
level to inspect
taxable value: Heads of Branches of Customs where
electronic customs procedures are implemented to decide the form, the inspection level of
taxable value.
The decision of Heads of Branches of Customs where
electronic customs procedures are implemented must comply upon the principles of applying
value risk management on the basis of the risk List of imported
goods of
General Department level and the risk List of imported goods of Department level
provided in this Circular on the basis of information at the time of decision,
showed by:
1.2.1) To decide on updating
of the
risk
List of imported
goods of
General Department level and the risk List of imported goods of Department level into E-customs data
processing system for flow distribution of customs dossiers; or
1.2.2) Directly decide on
system when having doubtful information on taxable value.
1.3) Value inspection:
1.3.1) To inspect the
declared value on the basis of information in E-customs declarations and E-value
declarations:
1.3.1.1) Contents of
inspection:
a) To inspect declared
contents: to inspect all of the criteria stated in the E-customs declarations,
E-value declarations declared by the importers in which the following criteria should be paid attention
carefully to inspect:
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Example: Motorcycles,
automobiles need to have information on their brands, manufacturers, countries
of manufacture, design, cylinder, model, other semaphore,...
a.2) Unit: Must be clearly
quantified upon units of measurement (such as meters, kilograms,...), in case
of not clearly quantified (such as barrels, boxes ...) they must be made the
conversion into similar units (such as the number of boxes in a barrel, the
number of kilograms, packs, pieces in a box)...).
a.3)
For the
cases that goods’ names, units were not declared specifically, clearly and were
not quantifiable as specified above, it’s necessary to request the customs
declarants to clarify more information on the goods. Where the customs declarants
do not declare more information as required by the customs agencies or declare
additional information but incomplete, the provisions in section a, point
1.3.2.2 of this clause shall be applied for handling.
b) Inspection of the
declared price rates: Customs
agencies compare, cross-check the declared prices with the price database at
the time of value inspection.
The price database
used for inspection of declared value is the price data to be collected,
updated, used according to provisions in the Regulation of making, managing,
using the price database.
1.3.1.2)
Handling
of Inspection result:
a) To accept the
declared price
rates of the customs declarants if the inspection results are not subject to the cases
mentioned in section b of this
point.
Where there
is no doubtful
question
on the price rates but doubtful on procedures
and records as prescribed in section a.4, a.5, a.6
point 1.3.2.2 of this clause, however, there is not
sufficient grounds to make a conclusion, the customs agencies still accept the
declared price
rates,
at the
same time, transfer the doubtful questions on customs procedures to the post-clearance inspection force.
b) To move the
inspection of taxable value to the inspection level on the basis of the printed E-customs
declarations, printed E-value declarations and documents attached to the
declarations under form of paper, if
belonging to one of the following cases:
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b.2) To detect the conflicts on procedures, dossiers as
provided in section a.4, a.5, a.6 point
1.3.2.2 of this clause;
b.3) Having doubtful question on price rates.
1.3.2) To inspect the declared value on the basis of the printed
E-customs declarations, printed E-value declarations and documents
attached to the declarations under form of paper:
1.3.2.1) Contents of
inspection:
a) To inspect declared
contents: to inspect all of the criteria stated in the printed E-customs
declarations, printed E-value declarations declared by the importers as
prescribed in section a point 1.3.1.1 of this clause.
b) To inspect the accuracy of the
records (such as arithmetic,...); faithfulness, consistence on the contents
among documents in the customs dossiers (such as comparison, cross-check between
the Articles of contracts,...); to compare, cross-check the contents of
commercial invoices with the goods purchase and sale contracts; to compare,
cross-check the declared contents in the printed E-value declarations with the
corresponding documents involved in customs dossiers.
c) To inspect the legality of the
documents relating to the determination of taxable value.
d) To inspect the compliance of principles
and methods of determining the taxable value as guided in this Circular,
the conditions of
application, order and the methods
used to determine the declared value.
Example: The
customs declarants apply incorrect
procedures on
the methods of
determining taxable value as guided in Item II Chapter II of this
Circular.
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1.3.2.2) Handling of
inspection results:
a) To reject the
declared value and determine the taxable value as prescribed in this Circular
and, depending on the nature and seriousness of the violations to handle according to
law
regulations,
if after the inspection,
the customs agencies detect one of
the contradictions on procedures, records; on principles and order to apply the
methods of
determining the taxable value (hereinafter referred to as contradictions on procedures,
records). The contradictions on procedures, records include:
a.1) Customs
declarants are
required to supply more information on goods’ names, units but the customs
declarants do not declare
or declare
insufficiently;
a.2)
Having
the contradictions
on contents between vouchers, documents in
the customs dossiers submitted or presented to the customs agencies by the
customs
declarants and
the bases to determine that the customs
declarants
declare untruthfully the contents relating to
the value
determination;
For example: there are
differences on the
description of goods between commercial
invoice
and the
purchase and sale contracts.
a.3) Customs
dossiers and
the
relevant documents
are not lawful;
a.4) Failing
to declare or declare incompletely
and
inaccurately
the factors of transactions
affecting value (eg
failing to declare the adjustments, special relationships; royalties, license fees,...);
a.5) Applying incorrect
order for the methods, contents of the methods of determining taxable value
under the provisions of this Circular;
a.6) Failing to satisfy
one of the conditions when applying the methods of determining taxable value as
provided in this Circular;
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b) Handling the cases of
doubtful question:
b.1) Where
there is no doubtful
question
on the price rates but doubtful on procedures
and records,
the
customs agencies accept the
declared price
rates,
at the
same time, transfer the doubtful questions to the post-clearance inspection force.
b.2) Where
there is doubtful
question
on the price rates except for the one
reffered in section b.4.7 of this point and whether or not
the doubtful question on procedures and records, it is handled as
follows:
b.2.1) For goods which are
subject to the risk List of imported goods of General Department level, the
risk List of imported goods of Department level: the customs agencies
notify to the customs declarants the bases, grounds of the doubtful question
for the declared price rates, method, the price rates shall be defined by the
customs agencies under the form No.1 issued together with this Circular.
b.2.1.1) Where
customs declarants agree with the price rates and the method defined by the customs agencies under the form No.1,
the customs agencies issue notification to determine the value under the form No.4
issued together with this Circular, to implement tax imposition at the price defined
and state clearly in
the
customs declarations.
b.2.1.2) Where
customs declarants disagree with
the price
rates
and the method defined by the customs agencies under the form No.1,
the customs
declarants
are allowed to implement the right of advisory according to the provisions in Article 25 of this Circular, if the customs
declarants
wish for clearance of goods for the cases goods which are subject to tax
payment before being received.
Customs agencies
notify to the customs declarants to implement the assurance under the form No.2
attached herewith. The price rate to determine the assurance is the price rate
determined by the customs agencies under the form No.1.
b.2.2) For goods which are
out of the risk List of imported goods of General Department level, the risk
List of imported goods of Department level, the customs agencies accept the
declared price
rates,
at the
same time, transfer the doubtful questions to the post-clearance inspection force.
b.3) Where
there is doubtful
question
on the price rates in section b.4.7 and whether or not
the doubtful question on procedures and records, the customs agencies accept the
declared price
rates,
at the
same time, transfer the doubtful questions to the post-clearance inspection force.
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b.4.1) The imported goods
with the declared price rates lower than the lowest taxable price rates of
similar, identical goods determined by the customs agencies; or lower than the
lowest declared price rates of similar, identical goods (not compared with the goods
lots being in the doubtful case), have been approved under the declared price
by the
customs agencies.
Identical, similar
goods used to compare are those which are exported to Vietnam on the same day
or within a period of 60 days before or after the date of export of the goods being
inspected its value. In cases unable to find the identical, similar goods
within the period mentioned above, a period of time shall be extended but not
exceeding 90 days before or after the date of export of the goods being
inspected its value.
b.4.2) The
imported goods have
the
declared price rate
lower
than or equal to the declared price rate of the synchronous components of the imported
same type
of
goods, or less than or equal to the declared price rate of key raw
materials constituting an imported complete
product.
The period to select
data is implemented according to provisions in section b.4.1 of this point.
b.4.3) The
imported goods with
the
declared price rate
lower
than the
inspected
price rate
of the identical, similar goods having the risk List of imported goods of
General Department level, the risk List of imported goods of Department level.
b.4.4) The
imported goods with
the
declared price rate
lower
than the
price
rate collected by the
customs agencies from other sources of information after being converted into
the same condition with the goods lot being inspected its value.
b.4.5) Imported
goods with the discount
factors in which after subtracting the
deducted amounts the
declared price rate
are less
than the price
rate
of similar, identical
goods as
provided in the
price database.
b.4.6) In case of unable to find the
identical goods, similar goods in accordance with provisions in this Circular to
compare and examine the declared price rates, the application of flexibility,
expansion of the concept
of identical goods, similar will be made, specifically:
b.4.6.1) Imported
goods with many
features and utilities associated with are comparable to the items of the
same type with a basic
features already put
in
the price database.
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b.4.6.3) The
imported goods originating from developed countries, countries block are comparable
to the items of the
same type from
the not-yet developed, developing countries,
countries
block
already put
in
the prices database (eg imported
Goods
being needed to inspect value
originating from Japan are
comparable
to goods of the same type
originating from South Korea already put in the prices database).
The period of time to
select data is implemented according to the provisions in section b.4.1 of this point.
b.4.7) Imported goods with declared
pricer rate higher than 15% compared to the price rates in the price database.
The period of time to
select data is implemented according to the provisions in section b.4.1 of this point.
c) To accept the
declared price rates for the cases not belonging to section a, section b of this point.
2) For the case of
failing to conduct E-customs procedures:
2.1) Contents of inspection: the
inspection of the contents of the declaration, the declared price
rates, the accuracy of records, the legality of the relevant
documents, the compliance with principles and methods of determining the
taxable value is implemented in accordance with provisions in point
1.3.2.1 clause 1 of this Article, but replacing the printed E-customs declaration, the printed E-value
declaration by customs declaration, value declaration available
in the customs dossiers according to
regulations.
2.2) Handling of inspection results: to conduct as provided in point
1.3.2.2 clause 1 of this Article.
Article
25. Delay of determining taxable value
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1.1) Customs
declarants delay the determination of taxable value: applying to the cases the
customs declarants who have not got enough necessary information to determine
taxable value at the time of registering customs declaration.
1.2) Customs
agencies delay the determination of taxable value: applying to the cases
required to conduct the consultantcy as prescribed in Article 26 of this
Circular.
2) Time of
delay: within 30 days since the date of registering customs declaration.
3) Procedures
to delay the determination of taxable value:
3.1) For the
cases that customs declarants delay the determination of taxable value:
3.1.1) For
customs declarants:
3.1.1.1) Applying
written request to the customs agencie for delaying the determination of
taxable value with the reason that they have not got enough necessary
information for determination of taxable value at the time of registering
customs declaration;
3.1.1.2) Where
goods which are subject to tax payment before being received, the assurance
for entire taxation of imported goods lot determined by customs agencies shall
be made, if customs declarants wish to be conducted customs clearance;
3.1.1.3) Within
30 days since the date of registering customs declaration, the customs declarants
must declare the necessary information to determine the taxable value for the
imported goods lot, self-re-calculate the payable tax and pay enough tax in
accordance with regulations
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3.1.2.1) The
heads of Branches of Customs base on price database and the principles, methods
of determining the taxable value provided in this Circular to determine the
taxable value and calculate the must-be-paid assurance level. The assurance
level must be sufficient to ensure for all must-be-paid tax obligations.
3.1.2.2) To
notify the assurance level to the customs declarants under the form No. 2.
3.1.2.3) To
clear goods when the customs declarants implement the assurance as prescribed
in this Circular.
3.1.2.4) Over
30 days since the date of registering customs declaration but the customs
declarants fail to declare information to determine the taxable value, the
customs agencies determine taxable value according to the form No.4 of this
Circular, assess tax and notify to the customs declarants for making full
payment in accordance with regulations.
3.2) For the
cases that customs agencies delay the determination of taxable value:
3.2.1. For
customs agencies:
3.2.1.1) The
heads of Branches of Customs calculate the must-be-paid assurance level for the
cases goods are subject to tax payment before being received and notify to the
customs declarants according to the form No.2. The price rate to calculate the
assurance level is the one notified under the form No.1.
Where the customs declarants has paid taxation
according to declaration, the assurance level shall equal to the difference
between the tax amount calculated
at price rate determined by the customs
agency and the tax amount calculated at the price rate declared by the customs declarants.
3.2.1.2) To
clear goods when the customs declarants implemented the ensurrrance for entire the
must-be-paid tax amount as prescribed in this Circular.
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3.2.2) For customs
declarants:
3.2.2.1) To
implement the assurance to all taxations of the imported goods lot at the
assurance level determined by the customs agencies if they wish for customs
clearance;
3.2.2.2) To
implement the consultations as prescribed in Article 26 of this Circular.
4) Forms of
assurance, time for assurance:
4.1) Forms of
assurance: Contents and forms of assurance
performed under the law on tax administration that provides the guarantee
for the amount of payable tax.
4.2) Form of
deposit:
4.2.1) For customs
declarants: to remit the deposit
in the deposit account
of the customs agencies at the State Treasury; the deposit which is payable at the assurance level in the notice of the customs
agencies according to the form No.2 of this Circular.
4.2.2) For the customs agencies:
4.2.2.1) To
guide the customs declarants to remit deposits into the
deposit account of the customs
agencies at the State
Treasury;
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a) To make procedures for transfer of the deposit equivalent
to the payable tax (if any)
from the deposit account of the customs agencies to the collection account of the state budget under
current regulations;
b) To make procedures for returning the overpaid deposit to the customs
declarants.
4.3) Time for
assurance: within 30 days since the date of registering
customs declaration.
Article
26. Consultations
1) Competence
of consultations:
1.1) Directors
of Customs Department of provinces and cities hold
to implement the consultation and take responsibility
for the effectiveness of the consultation at the units.
1.2) Based on the actual situation, management capabilities, the distances between the Departments and Branches,
the Directors of Customs Department of
provinces and cities may decentralize to Heads of the Branches to carry out the consultation for the items to be of
the risk List of imported goods of Department-level
but not exceeding 10% of number of goods to
be of the risk List of imported goods of Department-level
that must consult.
1.3) In case
many imported goods are declared in a declaration must be consulted including
goods to be of the risk List of imported goods
of General Department-level and the risk List of imported goods of Department-level, Directors
of the Department of Customs of provinces, cities hold to implement the
consultation.
2) Form of
consultation:
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2.2) Consultation
by e-mail: to guide specifically when having enough conditions to implement.
3) The cases
must be consulted:
3.1) Customs agencies
have doubtful on the price rates for items to be of the
risk List of imported goods of General Department-level
or the items
to be of the
risk List of imported goods of Department-level, but the customs
declarants disagree with the price rate and the method determined by the
customs agencies under the form No.1 attached herewith;
3.2) The
customs agencies have grounds for doubts on the special relationship affecting
transaction value.
3.3) Directors
of the Customs Departments of provinces and cities decide on the consultation
for goods to be of the risk List of imported goods
of General Department-level or the risk List of imported goods of Department-level
with doubt on price rates, However the declared price rates are lower
but not exceeding 5% compared with the price rates in the price database at the
time of inspection.
3.4) For the
same item, the import procedures made by the same enterprice at the same
customs unit, under the same contract or the many different contracts, only to
hold for the first imported goods lot, if it meets fully the following
conditions:
3.4.1) Information
relating to the inspection and determination of taxable value which the customs
agencies obtained from the price databases and information collected by other professional
measures, to the time of inspection, determination of taxable value for
imported goods lot being determined value, unchanged compared to the
information used to hold the consultation for the first imported goods lot.
3.4.2) The
customs declarants accept to use the first consultation result for the
following import times.
4) Consultation
and handling of consultation result:
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4.1.1) Customs
agencies:
4.1.1.1)
To notify under the form No.3 issued together with this Circular to the customs
declarants the time and location to execute the consultation; relative records
and documents for the consultation;
4.1.1.2) Preparation
of consultation contents.
4.1.2) Customs
declarants:
4.1.2.1) To
supply the information, documents, vouchers upon the contents notified from the
customs agencies.
4.1.2.2) To
assign the competent representatives to decide the contents relating to the
determination of taxable value or persons who are authorized wholly for joining
the consultation.
4.1.2.3) To
answer the questions during the course of consultation relating to the import
transaction at the request of the customs agencies.
4.2) Contents
of consultation:
Pursuant to
records, documents and information, data prepared in advance, the customs
agencies require the enterprises to answer the questions relating to the
declaration of the import transaction elements; declared price rates; method of
determining the taxable value of use enterprises.
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4.3) Time to
consult and determine the taxable value: a maximum period of 30 days since the
date of registering the declarations.
4.4) Handling
of consultation result:
4.4.1) The
Customs agencies reject the declared price rates and determination of taxable
value in the following cases:
4.4.1.1) During
the consultation process, the customs agencies detect contradictions on
procedures and records as prescribed in point 1.3.2.2 clause 1 Article 24 of
this Circular.
4.4.1.2) The
customs declarants declare untruthfully the contents relating to the
determination of taxable value:
a) The
customs declarants fail to declare or declare wrongly the payable or paid
actual value; the factors involved in determining the taxable value (as
adjustment amounts, special relationship, the conditions to apply the methods
of determining the value...)
b) The
exporters or the exporters' representatives have the information to confirm the
declared price rate incorrectly to the actual purchase and sale.
c) The
information obtained from the customs agencies by the other professional
measures to assert the untruthful transaction value.
d) Information
provided by the customs declarants after being detected that it is inaccurate;
fake documents; vouchers or illegal documents.
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a) Over the
time for consultation requirement but the customs declarants fail to joint in
the consultation.
b) Over the time
limit of requirement but the customs declarants fail to supply the information,
documents, vouchers upon the notification’s contents of the customs agencies.
c) Customs
declarants fail to explain, fail to prove the explanation, prove inconvincibly,
unfounded for the doubful questions of the customs agencies (as on record
rationality; declared price rates or special relationship that affects the
transaction value, the contents of the reply of the customs declarants conflict
with the customs dossiers, records, documents and materials declared or
presented by enterprises having conflict; the reasonableness of the declared
price rates and the price of similar, identical goods having in the price database...).
4.4.1.4)
For the case the declared value is rejected, within a maximum 05 day period
since the date of ending the consultation but not exceeding 30 days since the
date of registering the customs declarations, the customs agencies determine
the taxable value and issue notice of taxable value under the form No.4
attached herewith.
4.4.2) Acceptance
of the declared price rates: Apart from the case the declared price rate is
rejected as mentioned in point 4.4.1 of this clause, the customs agencies
accept the declared price rate and and issue notice of taxable value under the
form No.4 attached herewith.
5) Entire
documents, records relating to the consultation must be stored with the customs
dossier.
6) Apart from
consultation, to ensure the truthfulness and objectivity of the inspection
process, determination of the taxable value, the customs agencies may conduct to
collect advisory opinion of the relative units and agencies.
7) Customs
declarants are entitled to complain for the results of determining the taxable
value of the customs agencies after consulting as guided in Article 29 of this
Circular.
Section
III. INSPECTION OF TAXABLE VALUE AFTER GOODS CLEARANCE
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1) For re-inspection
force at the Branches of customs:
1.1) Subject of
inspection: Inspection of customs dossiers, the declared prices and other
materials relevant to the determination of the taxable value of exports and
imports.
1.2) Contents of inspection:
1.2.1) For exported
goods: examining on the contents stipulated in Article 22 of this Circular.
1.2.2) For imported
goods: examining on the contents stipulated in Article 24 of this Circular.
1.3) Handling of
inspection results:
1.3.1) If any
conflict of procedures or documents being detected, the declared price shall be
rejected, the taxable value is determined under the provisions of this
Circular;
1.3.2) If any
suspicious records, documents or declared price rates is detected, but not
sufficient grounds to conclude the fraud, the suspected case shall be transferred
to the post-clearance inspection force for verifying and clarifying.
2) For the post-clearance
inspection force:
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2.2) Content of
inspection, inspection procedures, handling the inspection results: shall be
complied with the regulations on customs clearance and inspection regulations
for determining taxable value.
3) For the
anti-smuggling investigation force:
Organizing the inspection
and verification of cases with signs of major fraud in value as: Falsified
records and documents; connived to lower or create false value transfered from
post-clearance inspection force or the outstanding cases of fraud, be
systematic, large scale detected by anti-smuggling force.
4) For the inspected
goods lot in the process of customs procedures, including the cases being
rejected the declared value or the cases being accepted the declared value but
violations detected by reinspection force, post-clearance inspection force,
anti-smuggling force, violations is still handled in accordance with law, make
tax imposition and clarify responsibilities inspection in the process of
customs procedures, violations are disciplined according to branch regulations
and laws.
Article
28. The professional coordination relationship between value inspection force
in the process of customs procedures and the post-clearance inspection force.
1). For the value
inspection force in the process of customs procedures:
1.1) Periodically
collecting, reviewing the suspected issues about the prices, the procedures;
evaluating, analyzing the suspicious signs and transmit to post-clearance
inspection force for inspection according to regulations.
1.2) Receiving the
inspection results and recommendations of the inspection force after the goods
have been cleared for synthesizing, analyzing, evaluating to identify solutions
for value inspection in the process of customs procedures to prevent on time
value fraud and improve the efficiency of the management of taxable value of
goods export and import.
2) For inspection
force after the goods have been cleared:
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2.2) Based on actual
inspection results, recommending the inspection solutions to the value inspection
forces during customs procedures, to prevent value fraud, and proposing amendments
of price control policies in line with the actual situation.
Chapter
IV
COMPLAINTS
AND HANDLING OF VIOLATIONS
Article
29. Complaints and complaints settlement
1) The customs
declarant who does not agree with the results of determining the taxable value
of the customs agencies shall have the right to appeal under the provisions of
law on complaints and denunciations, or may initiate an administrative case in
court under the provisions of law on procedures for settlement of
administrative cases;
2) The time limit for
complaints is made under the provisions of law on complaints and denunciations;
3) The order of handling
complaints and denunciations is made under the provisions of law on complaints
and denunciations and the provisions of relevant laws;
4) During the
settlement of complaints, the customs declarants, the taxpayers must pay enough
tax upon the price rates determined by the customs agencies for exports and
imports;
5) General Director
of Customs General Department, Heads of Customs Departments of provinces and
cities establish price advisory councils for the second time complaints on the
price rates determined by the customs agencies which its tendency is complex
and prolonged.
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1) The Customs
agencies, customs cadres and officers lack sense of responsibility, violate the
provisions of the Decree No.40/2007/ND-CP dated 16/3/2007 and the guidance in
this Circular, causing damages to tax payers, the loss of tax money shall pay compensation
for damages as stipulated in the Law No.35/2009/QH12 June 18, 2009 on liability
to pay compensation of the State, at the same time:
1.1) For customs
cadres and officers: Depending on the nature and seriousness of their
violations, shall be disciplined or examined for penal liability according to
law.
1.2) For the heads of
units: To conduct regime of responsibility for the heads of units as prescribed
by law.
2) Taxpayers, customs
declarants violate the provisions in the Decree No.40/2007/ND-CP dated March
16, 2007 of the Government and the guidance in this Circular shall, depending
on the nature and seriousness of violations shall have to pay tax according to
decisions of tax imposition of customs agencies and shall be administratively
sanctioned or examined for penal liability according to law regulations.
Chapter
V
IMPLEMENTATION
ORGANIZATION
Article
31. Responsibility for implementation
1) The Ministry of
Finance coordinates with the ministries and business lines associations to
collect and exchange price information for inspecting, determining value; the
General Department of Customs organize price database system for inspection and
determination of taxable value in the customs field; the Customs Department of
provinces, cities, inter-provinces take responsibility to collect, process,
report and use price information in accordance with provisions of the General
Department of Customs.
2) The General
Department of Customs stipulates specifically the process of inspection,
consultant, determination of taxable value; guides, conducts, organizes the
specific implementation of this Circular.
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Article
32. Effect.
1) This Circular
takes effect after 45 days since the signing date, replaces the Circular No.40/2008/TT-BTC
dated May 21, 2008 of the Ministry of Finance, Article 21 of Circular No.222/2009/TT-BTC
dated November 25, 2009 and the previous guidance of the Ministry of Finance
which are contrary to this Circular.
2) During the
implementation process, if the relevant documents mentioned in this Circular
and the Appendix attached to this Circular which are amended, supplemented or
replaced, the amended, supplemented or replaced one shall be applied./.
FOR
MINISTER
DEPUTY MINISTER
Do Hoang Anh Tuan