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THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
40/2008/TT-BTC
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Hanoi,
May 21, 2008
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CIRCULAR
GUIDING THE GOVERNMENTS DECREE No. 40/2007/ND-CP OF MARCH
16, 2007, PROVIDING FOR CUSTOMS VALUATION OF IMPORTED GOODS AND EXPORTED GOODS
Pursuant to June 14, 2005 Law
No. 45/2005/QH11 on Import Tax and Export Tax;
Pursuant to June 29, 2001 Customs Law No. 29/2001/QH10, and June 14, 2005 Law
No. 42/2005/QH11 Amending and Supplementing a Number of Articles of the Customs
Law;
Pursuant to November 29, 2006 Law No. 78/2006/QH11 on Tax Administration;
Pursuant to the Governments Decree No. 77/2003/ND-CP of July 11, 2003, defining
the functions, tasks, powers and organizational structure of the Ministry of
Finance;
Pursuant to the Governments Decree No. 40/ND-CP of March 16, 2007, providing
for customs valuation of imported goods and exported goods;
The Finance Ministry guides the implementation as follows:
Part I
GENERAL PROVISIONS
I. SCOPE OF
REGULATION AND OBJECTS OF APPLICATION
1. This Circular provides for
customs valuation for the purpose of calculating duties and making statistics
on imported goods and exported goods.
2. Imported goods and export
goods are objects of application of this Circular.
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II.
PRINCIPLES AND METHODS OF CUSTOMS VALUATION
1. Custom value to be used for
the purpose of duty calculation (below referred to as dutiable value) is
determined on the following principle and according to the following method:
a/ For exported goods, the
dutiable value is the selling price of the exported goods at the border gate of
exportation (FOB or DAF price), which is exclusive of international insurance
cost (I) and international freight (F).
If no goods sale and purchase
contract is available, the export dutiable value is the value declared by the
customs declarant.
b/ For imported goods, the
dutiable value is the actual price payable upon arrival of the goods at the
first border gate of importation and determined by applying the six methods of
dutiable value determination specified in Sections I thru VI, Part II of this
Circular one after another and stopped immediately at any method by which the
dutiable value can be determined.
The order of application of
dutiable value-determining methods specified in Sections IV and V, Part II of
this Circular may be changed when so requested in writing by custom declarants.
2. Customs value to be used for
the purpose of making statistics (below referred to as statistical value) is
determined on the following principle:
a/ For dutiable goods, the
statistical value is determined based on the dutiable value already determined
on the principle and by the method specified at Point b, Clause 1 of this
Section.
b/ For non-dutiable goods, goods
exempt from duty or considered for duty exemption, or of which the dutiable
value cannot be determined under Point b, Clause 1 of this Section, the
statistical value is the value declared by customs declarants on the following
principle:
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- For exported goods, the
statistical value is the selling price of the goods at the border gate of
exportation (FOB or DAF price).
III. TIME OF
CUSTOMS VALUATION AND DUTY PAYMENT TIME LIMIT
1. The time of customs valuation
for imported goods or exported goods is the date a customs declarant registers
a customs declaration of the imported goods or exported goods.
In case the dutiable value
determination must be delayed, the time of dutiable value determination for
imported goods is the date a customs office or customs declarant successfully
determines the dutiable value under this Circular.
2. Duty payment time limit:
a/ For differences between duty
amounts assessed by customs offices and tax amounts declared or calculated by
duty payers themselves after the customs clearance of their goods, this time
limit is 10 (ten) days after customs offices sign decisions on duty assessment.
b/ For other cases, the duty
payment time limit complies with the provisions of Clauses 3, 4 and 5, Article
52 of the Tax Administration Law.
IV.
INTERPRETATION OF TERMS
Terms and expressions referred
to in this Circular are construed as follows:
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2. Purchase commission means a
sum of money paid by a purchaser to an agent for representing the purchaser in
purchasing imported goods at the most reasonable price.
3. Sale commission means a sum
of money paid by a seller to an agent for representing the seller in selling
exported goods to purchasers.
4. Brokerage commission means a
sum of money payable by a purchaser or seller or both to a broker that acts as
an intermediary in an imported goods sale and purchase transaction.
5. Royalty and licensing fee
means a sum of money payable by a purchaser directly or indirectly to the
intellectual property rights holder or a person authorized or licensed by the
intellectual property rights holder for the use of intellectual property
rights. For example, a sum of money paid for a patent, layout design copyright,
trademark, mark license, copyright or production license.
6. Different goods are regarded
as having values which closely approximate to one another if the value
disparity between them is caused by the following objective factors:
- Their nature or
characteristics of their manufacturing industries;
- Their seasonality;
- Their insubstantially
commercial distinctiveness.
Upon considering the approximate
equality of the two values, it is necessary to subject them to the same
purchase and sale condition.
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- Physical characteristics, such
as surface, composition materials, method of manufacture, functions, utility;
mechanical, physical and chemical characteristics;
- Quality;
- Reputation of marks;
- They are made in the same
country or by the same manufacturer or licensed manufacturer.
Imported goods which basically
satisfy the conditions for being regarded as identical imported goods but have
minor differences in appearance, such as color, size and design, which do not
affect their values, are still regarded as identical.
Imported goods are not regarded
as identical if in the process of manufacturing any of these goods, technical
designs, construction designs, development plans, fine-art designs, design
drawings, charts, sketches or similar products or services, which are made in
Vietnam and supplied free of charge by the purchaser to the seller, are used.
8. Similar imported goods means
goods which are not alike in all respects but have the same substantial
characteristics, including:
- They are made of equivalent
raw materials and materials or by the same method of manufacture;
- They have the same function or
utility;
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- They are commercially
interchangeable, for example: a purchaser accepts goods in substitution for
similar goods;
- They are made in the same
country or by the same manufacturer or licensed manufacturer and imported into
Vietnam.
Imported goods are not regarded
as similar if in the process of manufacturing any of these goods, technical
designs, construction designs, fine-art designs, development plans, design
drawings, charts, sketches or similar products or services, which are made in
Vietnam and supplied free of charge or at reduced cost by the purchaser to the
seller, are used.
9. Imported goods of the same
class or category means goods belonging to a group or a frame group of goods
manufactured by the same industry or in the same domain, including identical
imported goods and similar imported goods.
For example: Construction steel
products, including steel rods, wound coils and sections (U, I or V shape)
manufactured by the steel industry, are regarded as goods of the same category.
- In the method of determining
the dutiable value based on the deductible value, imported goods of the same
class or category may be goods imported from all other countries into Vietnam,
regardless of their origin.
- In the method of determining
the dutiable value based on the computed value, imported goods of the same
class or category must be imported goods of the same origin with the goods
being valued.
10. First border gate of
importation means the port of destination stated in the bill of lading. For
road, railway or river channel transportation, the first border gate of importation
is the port of destination stated in the contract.
Part II
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I.
DETERMINING THE DUTIABLE VALUE ON THE BASIS OF THE TRANSACTION VALUE
The dutiable value of imported
goods must be first of all determined on the basis of the transaction value.
Transaction value is the price
actually paid or payable by the purchaser to the seller for the purchase of an
imported goods and adjusted under the provisions of Section VII, Part II of
this Circular.
The price actually paid or
payable is determined to be the total sum of money already paid or payable by
the purchaser directly or indirectly to the seller for the purchase of imported
goods.
1. The transaction value is
applied if the following conditions are fully satisfied:
a/ There are no restrictions on
purchasers right to dispose of or use the goods after they are imported other
than the following restrictions which:
a.1/ Are imposed by Vietnamese
law, such as provisions requiring imported goods to be labeled in Vietnamese,
on goods subject to conditional import or a form of inspection before customs
clearance, etc.
a.2/ Limit the places where the
goods may be sold; or,
a.3/ Do not affect the value of
the goods.
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For example: The seller requests
the purchaser not to sell or display imported goods before the seller markets
these goods.
b/ The price or sale is not
subject to some conditions or payments for which a value cannot be determined
for the goods being valued.
For example:
- The seller fixes the price of
the imported goods on condition that the purchaser will purchase a certain
quantity of other goods.
- The price of the imported
goods depends on the prices of other goods which will be sold by the importer
to the exporter.
- The price of the imported
goods is fixed on the basis of a mode of payment extraneous to the imported
goods, for example: imported goods are semi-finished products supplied by the
seller to the purchaser on condition that the seller will receive back a
certain quantity of finished products manufactured from these imported
semi-finished products.
In case the sale or price of the
goods is dependent on one or several conditions but the purchaser possesses
objective and valid documents for the determination of the pecuniary impact of
such dependence, this condition shall still be regarded as being met. Upon
determination of the dutiable value, the money amount reduced due to the
dependences impact must be added to the transaction value.
c/ After reselling, transferring
or using imported goods, the purchaser is not required to additionally pay any
sum of money from the proceeds of the disposal of imported goods, except for
the additions specified at Point e, Clause 2, Section VII, Part II of this
Circular.
d/ The purchaser and seller have
no special relationship or have a special relationship which does not influence
the transaction value. The consideration of the special relationships influence
on the transaction value is guided in Clause 3 of this Section.
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a/ The purchase price stated in
invoices:
In case the purchase price
stated in invoices includes discounts for the lot of imported goods, these
discounts must be subtracted in determining the dutiable value on the
conditions that the discount policy is stated in writing before the goods are
loaded onto a means of transport, there are lawful and valid data and documents
for excluding these discounts from the invoice price, and those documents must
be submitted together with the customs declaration.
Types of discount include:
- Discount based on the
commercial level of the goods purchase and sale transaction;
- Discount based on the quantity
of purchased and sold goods;
- Discount based on the mode and
time of payment;
Discounts are accepted to be
deducted upon determination of the dutiable value on condition that they
conform to international commercial practice.
If goods for which there are
contractual discounts are imported in different lots (with different
declarations), these discounts may be considered and accepted only after the
importing enterprise submits the manifest and documents proving that the
importation and payment for the whole contract have been completed. The customs
office at which the enterprise opens its customs declarations shall check
relevant records and documents submitted by the enterprise to prove that
discounts have been actually given.
b/ Adjustments under the
guidance in Section VII, Part II of this Circular.
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- Prepaid amounts, advances and
deposits for the manufacture, purchase, sale, transportation or insurance of
goods.
- Indirect payments to the
seller, such as sums of money paid by the purchaser to a third party at the
request of the seller or sums of money paid by debt clearing.
3. Determination of special
relationships influence on transaction value:
a/ If the purchaser and the
seller have a special relationship which does not influence the transaction
value, the customs declarant shall report this relationship and determine the
dutiable value according to the transaction value.
b/ If the customs office, based
on available information, suspects that the special relationship has influenced
the transaction value, it shall promptly notify in writing the customs
declarant of grounds for its suspicion.
c/ The customs office shall
create favorable conditions for the customs declarant to explain and supply
more information in order to clarify the special relationship between the
purchaser and the seller which does not influence the transaction value of the
imported goods specified at Point d of this Clause.
Past 30 working days after
receiving the customs offices notice, if the customs declarant fails to explain
and supply more relevant information, the customs office shall determine the
dutiable value of the imported goods lot on the principles and methods of
dutiable value determination specified in Sections I thru VI, Part II of this
Circular.
d/ The special relationship
between the purchaser and seller is considered not influencing the transaction
value if it satisfies one of the following two conditions:
d.1/ Despite the special
relationship, the purchase and sale transaction is still conducted between the
seller and purchaser like purchase and sale transactions with purchasers who
have no special relationship with the seller.
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+ The purchase and sale price of
the imported goods has been negotiated and agreed upon in the commercial
contract in a manner consistent with the normal pricing negotiation and
agreement practices of that goods line or with the way the seller offers the
goods purchase and sale price to other purchasers who have no special
relationship with the seller.
+ The purchase and sale price of
the imported goods is inclusive of also all costs and a profit corresponding to
overall profit from the sale of goods of the same class or category.
The customs office shall examine
the way the purchaser and the seller have organized the purchase and sale
relationship and the manner of negotiation to reach the declared price before
reaching a conclusion on whether the declared value has been influenced by the
special relationship.
d.2/ The transaction value
closely approximates to any of the following values of the goods lot exported
to Vietnam on the same day or within 60 days (of the calendar year) before and
after the date of exportation of the goods lot being valued:
- The dutiable value determined
on the basis of the transaction value of identical or similar imported goods
sold to other importers that have no special relationship with the exporter
(the seller);
- The dutiable value of
identical or similar imported goods determined on the basis of the deductible
value specified in Section IV, Part II of this Circular;
- The dutiable value of
identical or similar imported goods determined on the basis of the computed
value specified in Section V, Part II of this Circular.
d.3/ The above dutiable values
are used for comparison purposes only and the dutiable value of identical or
similar imported goods must be adjusted to the same condition with the imported
goods being valued:
- Adjustment to the same
purchase and sale condition: The adjustment of the dutiable value of identical
or similar imported goods to the same purchase and sale condition with the
goods lot being valued complies with the guidance of Point b, Clause 2, Section
III, Part II of this Circular.
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4. Determination of the dutiable
value of imported goods being carrier media bearing software for data
processing devices:
a/ The dutiable value of
imported goods being carrier media bearing software is the value actually paid
or payable for these carrier media, exclusive of the value of the software they
bear, on condition that the softwares invoice value is separated from the
carrier medias invoice value.
The dutiable value of carrier
media is inclusive of the purchase price stated in invoices and expenses for
recording or installation of the software in the media.
Software referred to herein
means data, programs or instructions which are expressed in the form of
commands, codes, diagrams or any other form and can make data processing
devices in which they are installed capable of performing a task or achieving a
specified result (for example: software programs, instructions describing
digitalized information programs). Audiovisual sequences in feature films or
video recordings are not regarded as software under this regulation.
Carrier media means floppy
disks, compact disks, magnetic tapes or cards or any objects capable of storing
information, which are used as devices for temporarily storing or transmitting
software. To be used, software must be transmitted to, installed in or
integrated into data processing devices.
Carrier media mentioned herein
exclude integrated circuits, microchips, semi-conductor circuits and the like
or parts affixed on circuit boards or devices.
b/ The provisions of Point a of
this Clause do not apply to the determination of the dutiable value of devices,
machines or equipment bearing imported software falling into one of the
following cases:
- Software is recorded,
installed or integrated in imported goods other than carrier media or in
hardware of machines or equipment.
- The value actually paid for
imported software is one of the additions specified in Section VII, Part II of
this Circular.
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- Customs dossier as specified;
- Other documents relevant to
the dutiable value determination.
II.
DETERMINING THE DUTIABLE VALUE BASED ON THE TRANSACTION VALUE OF IDENTICAL
IMPORTED GOODS
If the dutiable value of
imported goods cannot be determined on the basis of their transaction value
guided in Section I, Part II of this Circular, it may be determined on the
basis of the transaction value of identical imported goods.
The method of determining the
dutiable value of imported goods on the basis of the transaction value of
identical imported goods is guided in Section III of this Part, in which the
phrase similar imported goods should be replaced by the phrase identical
imported goods.
III.
DETERMINING THE DUTIABLE VALUE ON THE BASIS OF THE TRANSACTION VALUE OF SIMILAR
IMPORTED GOODS
1. Determining the dutiable
value:
If the dutiable value of
imported goods cannot be determined according to the methods guided in Sections
I and II, Part II of this Circular, it may be determined on the basis of the
transaction value of similar imported goods on condition that these similar
imported goods have been accepted by customs offices for the determination of
the dutiable value based on the transaction value and have the same purchase
and sale condition and export time condition with the imported goods being
valued under the guidance in Clause 2 of this Section.
If there is no similar imported
goods lot with the same purchase and sale condition with the imported goods
being valued, other similar imported goods lots with different purchase and
sale conditions may be chosen, provided that adjustments must be made to the
same purchase and sale condition.
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To be chosen, similar imported
goods lot must satisfy the following conditions:
a/ Export time condition:
The similar imported goods lot
must be exported to Vietnam on the same day or within 60 days before or after
the date of exportation of the imported goods being valued.
b/ Purchase and sale conditions:
b.1/ Condition on commercial
level and quantity:
b.1.1/ The similar imported
goods lot must have the same condition on commercial level and quantity with
the imported goods lot being valued.
b.1.2/ If no imported goods lot
mentioned at Item b.1.1 is found, an imported goods lot at the same commercial
level but in a different quantity may be chosen and the transaction value of
these similar imported goods must later be adjusted to the same quantity with
the goods lot being valued.
b.1.3/ If no imported goods lot
mentioned at Items b.1.1 and b.1.2 is found, an imported goods lot at a
different commercial level but in the same quantity may be chosen and the
transaction value of this similar imported goods lot must later be adjusted to
the same commercial level with the goods lot being valued .
b.1.4/ If no imported goods lot
mentioned at Items b.1.1, b.1.2 and b.1.3 is found, an imported goods lot at a
different commercial level and in a different quantity may be chosen and the
transaction value of this similar imported goods lot must later be adjusted to
the same commercial level and quantity with the goods lot being valued.
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The similar imported goods lot
must have the same distance and mode of transport, or have been adjusted to the
same distance and mode of transport with the goods lot being valued.
If there is a significant
difference in insurance cost between two lots, the similar imported goods lot
must be adjusted to the same insurance condition with the goods lot being
valued.
c/ If the method of determining
the dutiable value based on the transaction value of similar imported goods is
applied but no similar imported goods manufactured by the same manufacturer or
licensed manufacturer is found, goods manufactured by other manufacturers and
of the same origin may be considered and chosen.
d/ In case of determining the
dutiable value determination according to this method, if more than one
transaction value of similar imported goods are found, the dutiable value is
the lowest transaction value after similar imported goods have been adjusted to
the same purchase and sale condition with the goods lot being valued.
During the time of carrying out
customs procedures, if there is insufficient information for choosing imported
goods identical or similar to imported goods being valued, the dutiable value
of imported goods must not be determined under the guidance in Section II or
Section III, Part II of this Circular but must be determined according to the
next method.
3. Documents to be submitted:
a/ If applying the method of
determining the dutiable value based on the transaction value of similar
imported goods, customs declarants shall submit, apart from customs dossiers as
specified, enterprise-certified copies of the following documents to customs
offices:
- Customs declaration and
declaration of the value of similar imported goods;
- Transport contract of similar
imported goods (in case of adjustment of freight);
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- Commercial contract and
commercial invoice of similar imported goods, exported goods price lists of the
foreign manufacturer or seller (in case of adjustment of quantity and
commercial level);
- Other lawful and valid
documents and vouchers necessary and relevant to the dutiable value
determination (when necessary).
b/ When applying the method of
determining the dutiable value based on the transaction value of similar
imported goods, customs offices shall base themselves on information available
at customs offices where the dutiable value is determined and documents and
vouchers supplied by customs declarants for determining the dutiable value.
IV.
DETERMINING THE DUTIABLE VALUE ON THE BASIS OF THE DEDUCTIBLE VALUE
1. Determining the dutiable
value:
If the dutiable value of
imported goods cannot be determined according to the methods guided in Sections
I, II and III, Part II of this Circular, it may be determined on the basis of
the deductible value and based on the unit price at which imported goods,
identical or similar imported goods are sold on Vietnams domestic market minus
(-) reasonable expenses for and profits earned from the sale of the imported
goods.
This method is not applied if
goods chosen for determining the unit price fall into one of the following
cases:
- They have not yet been sold on
the domestic market or their sales have not yet been reflected on accounting
books and documents under Vietnams accounting law;
- They are involved in assists
provided by any person as specified at Item d.1, Point d, Clause 2, Section
VII, Part II of this Circular.
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a/ It must be the unit price at
which imported goods being valued, identical or similar imported goods are sold
in the conditions as when imported.
b/ It must be the unit price at
which the greatest aggregate quantity of goods is sold, which is sufficient for
establishing that unit price. Goods are sold on the earliest day after the
importation but before the expiration of 90 days after the date of importation
of the goods being valued. The domestic purchaser and the seller have no
special relationship.
Example 2: Goods lot A consists
of many goods items, including item B being valued according to the deductive
method. Goods lot A was imported on January 1, 2005. A goods lot consisting of
a goods item identical to goods item B was imported earlier and sold to many
domestic purchasers at different prices and at different times as follows:
Unit
price
Quantity/sale
Selling
time
Total
quantity
VND
900/unit
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March
28, 2005
100
units
30 units
January
15, 2005
20 units
March 3,
2005
VND
800/unit
200
units
January
20, 2005
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250
units
February
12, 2005
Total:
550
units
In the above example, the sale
unit price chosen for deduction is VND 800/unit corresponding to the greatest
quantity of units sold (450) and sufficient for establishing the unit price.
This unit price satisfies the conditions on a unit price to be chosen,
including:
- The greatest aggregate
quantity (450).
- The sale time is within 90
days after the date of importation.
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The determination of deductions
must be based on accounting data and available lawful and valid accounting
documents and recorded and reflected under Vietnamese accounting standards.
Deductions must be those allowed
to be accounted as reasonable and lawful expenses of enterprises under the
Vietnamese accounting law.
4. Deductions to be made from the
sale unit price:
Deductions to be made from the
sale unit price are reasonable expenses for and profits earned from the sale of
goods on the Vietnamese market, including:
a/ Costs of transport and
insurance and expenses for other activities related to the transportation of
goods after their importation, specifically as follows:
a.1/ Costs of transport and
insurance and expenses for other activities related to the transportation of
goods incurred during the time of transportation from the first border gate to
the importers warehouse or the place of delivery in inland Vietnam;
a.2/ Costs of transport and
insurance and expenses for other activities related to the transportation of
goods incurred during the time of transportation from the importers warehouse in
inland Vietnam to the place of goods sale, in case the importer bears these
costs and expenses.
b/ Taxes, charges and fees
payable in Vietnam upon the importation and sale of the imported goods on the
domestic market of Vietnam.
c/ Commissions or general
expenses and profits related to the sale of the imported goods in Vietnam.
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c.2/ In case of importation by
the mode of definite purchase and sale, general expenses and profits shall be
deducted: General expenses and profits must be taken as a whole upon
determining the deductible value. The determination and allocation of general
expenses and profits to an imported goods lot must comply with Vietnamese
accounting regulations and standards.
General expenses include direct
and indirect expenses for the importation and sale of gsoods on the domestic
market, such as expenses for marketing goods, expenses for storage and
preservation of goods before sale, expenses for management of the importation
and sale of goods, etc.
Bases for determining deductions
are data recorded and reflected on accounting vouchers and books of the
importer and compliant with Vietnamese accounting regulations and standards.
These data must be consistent with those obtained from activities of purchasing
and selling imported goods of the same class or category in Vietnam.
5. For goods sold not in the
conditions as when imported:
a/ If no sale unit price of
goods sold in the conditions as when imported is found, the sale unit price of
imported goods having been further processed in the country, minus (-) expenses
for processing for the added value of the goods, will be used on condition that
added expenses for further processing in the country and expenses specified in
Clause 4 of this Section are quantifiable. If these added expenses cannot be
separated from the sale price, the method next to the method of determining the
dutiable value on the basis of the deductible value will be applied.
b/ If imported goods, after the
processing, still retain their nature, characteristics and utility as when
imported but are knocked down into parts for sale on the domestic market, the
deductible value must not be used to determine the dutiable value of the goods.
c/ If, after the processing,
imported goods have their nature, characteristics and utility changed to the
extent that they cannot be recognized as the originally imported goods, this
method must not be applied.
6. Documents and vouchers to be
submitted:
The customs declarant or
importer shall submit enterprise-certified copies of the following documents
together with the customs procedure dossier:
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b/ Sale agent contract, if the
importer is a sale agent of the exporter. This contract must specifically state
the commission receivable and various expenses payable by the agent.
c/ Written explanation of sale
turnover and expenses specified in Clause 4 of this Section.
d/ Customs declaration and
declaration of the value of the goods lot chosen for deduction.
e/ Other necessary documents for
checking and determining the dutiable value as requested by the customs office.
V.
DETERMINING THE DUTIABLE VALUE ON THE BASIS OF THE COMPUTED VALUE
1. If the dutiable value of
imported goods cannot be determined according to the methods specified in
Sections I thru IV of this Circular, it may be determined on the basis of the
computed value. The computed value of imported goods includes the following
items:
a/ Direct expenses for the
manufacture of imported goods: Cost or value of raw materials and materials,
expenses for the manufacture process or other processing used in the
manufacture of imported goods. These expenses include also the following:
- Expenses specified at Points
a, b and c, Clause 2, Section VII, Part II of this Circular;
- The value of assists under the
guidance at Item d.1, Point d, Clause 2, Section VII, Part II of this Circular.
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b/ General expenses for and
profits from the sale of goods of the same class or the same category with
imported goods being valued, made in the country of exportation for sale into
Vietnam. These general expenses and profits must be taken as a whole upon
determining the computed value.
General expenses include all
direct or indirect expenses for the manufacture and sale of goods for export
but not yet computed under the guidance of Point a, this Clause.
c/ Costs of transport and
insurance and expenses related to the transportation of imported goods as
guided at Point g and h, Clause 2, Section VII, Part II of this Circular.
2. Bases for determining the computed
value:
These bases are figures recorded
and reflected on accounting vouchers and books of the manufacturer, unless
these figures are inconsistent with those collected from activities of
manufacturing, purchasing and selling imported goods of the same class or the
same category made in the country of exportation by the manufacturer for export
to Vietnam.
3. Documents to be submitted:
The customs declarant or the
importer shall submit certified copies of the following documents and, at the
same time, produce their originals for comparison:
a/ The manufacturers written
explanation of the expenses specified at Points a and b, Clause 1 of this
Section, enclosed with manufacturer-certified copies of accounting documents
and figures compatible with this explanation.
b/ Sale invoices of the
manufacturer;
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If the above documents and
vouchers are insufficient, the dutiable value will be determined by the next
method instead of the method guided in this Section.
VI.
DETERMINING THE DUTIABLE VALUE ACCORDING TO THE INFERENTIAL METHOD
1. If the dutiable value of
imported goods cannot be determined according to the methods guided in Sections
I thru V, Part II of this Circular, it may be determined by the inferential
method based on objective documents and figures available at the time of
determining the dutiable value.
By the inferential method, the
dutiable value determined by sequentially and flexibly applying the dutiable
value-determining methods guided in Sections I thru V, Part II of this Circular
and immediately stopping at the method by which the dutiable value can be
determined, provided that such application complies with the provisions of
Clause 2 of this Section.
2. When determining the dutiable
value according to this method, the customs declarant and the customs office
may not use the following values in determining the dutiable value:
a/ The sale price on the
domestic market of goods of the same kind made in Vietnam.
b/ The sale price of goods in
the domestic market of the country of exportation;
c/ The sale price of goods for
export to a third country;
d/ The manufacture costs of
goods, excluding those used in the computing method;
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f/ Arbitrary or fictitious
prices;
g/ A valuation system permitting
the use of the higher of two alternative values as the dutiable value.
3. Some examples of flexible
application of dutiable value-determining methods:
a/ Application of the method of
determining the dutiable value on the basis of the transaction value of
identical or similar imported goods.
a.1/ If there is no identical or
similar imported goods exported to Vietnam on the same day or within 60 days
before or after the date of exportation of the imported goods lot being valued,
identical or similar imported goods exported within a longer time limit, which,
however, must not exceed 90 days before or after the date of exportation of the
goods lot being valued may be chosen.
a.2/ If there is no identical or
similar imported goods of the same origin, imported goods of a different origin
satisfying other conditions on identical or similar imported goods may be
chosen.
b/ Flexible application of the
method of determining the dutiable value on the basis of the deductible value
in any of the following ways:
b.1/ If no unit price is
determined for deduction within 90 days after the date of importation, the sale
unit price of goods sold in the greatest aggregate quantity within 120 days
after the date of importation of the goods lot chosen for deduction may be
chosen.
b.2/ If there is no unit price
of the very imported goods or identical or similar imported goods resold to
persons having no special relationship with the importer, the unit price of
goods resold to purchaser having special relationship with the importer may be
chosen on condition that the special relationship does not influence the price
in the purchase and sale transaction.
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d/ The dutiable value of
imported goods may be determined to be equal to that of similar imported goods
already determined on the basis of the deductible value or computed value.
4. Apart from examples provided
in Clause 3 of this Section, the flexible application of the dutiable
value-determining methods may be based on the price database and lawful and
valid objective documents but must not violate the provisions of Clause 2 of
this Section.
VII.
ADJUSTMENTS
1. Principles for adjustment
a/ For additions, adjustments
can be made only when the following conditions exist:
- These additions are paid by
the purchaser and have not yet been included in the price actually paid or
payable.
- These additions are directly
related to the imported goods.
- If the imported goods lot
involves additions but there is no objective figure for determining the
dutiable value, the dutiable value will be determined by the method next to the
method of determining it on the basis of the transaction value.
b/ For deductions, adjustment
can be made only when there are lawful and valid figures and documents, which
are available at the time of determining the dutiable value, for separating
these deductions from the sale price.
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a/ Commissions and brokerage,
except for purchase commission. If these expenses are inclusive of tax amounts
payable in Vietnam, these tax amounts are not required to be added to the
dutiable value of imported goods.
b/ Costs of containers which are
treated as being one with imported goods, including the packing material cost
and other expenses related to the purchase, sale and transportation of packing
materials to the place of goods packing and preservation.
Containers, tanks and racks for
multiple use as tools for packing goods for transportation are not regarded as
tare. Therefore, they are not regarded as tare expenses to be added.
c/ Packing costs, including the
following:
c.1/ Packing material cost
consisting of packing material price and other expenses related to the
purchase, sale and transportation of packing materials to the place of goods
packing.
c.2/ Packing labor cost consisting
of amounts paid for workers packing the goods being valued and related
expenses.
If the purchaser has to bear
expenses for packing workers accommodation and travel during the time of goods
packing, these expenses are also accounted as packing labor cost.
d/ The value of goods or
services supplied free of charge or at reduced cost by the purchaser directly
or indirectly to the manufacturer or the seller for manufacture or sale of
goods exported to Vietnam (below referred to as the value of assists).
d.1/ Assists include:
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d.1.2/ Raw materials, materials
and fuels consumed in the process of manufacturing imported goods.
d.1.3/ Tools, devices, dies, molds,
models and the like which are used for the manufacture of imported goods.
d.1.4/ Design drawings,
technical drawings, fine-art designs, development plans, construction designs,
model designs, diagrams, sketches and similar products and services made in
foreign countries and necessary for the process of manufacturing imported
goods.
d.2/ Valuation of assists:
- If assistance goods or
services are purchased from a party having no special relationship for supply
to the seller, the value of assists is the purchase price of these assistance
goods or services.
- If assistance goods or
services are manufactured by the importer or a party having special
relationship with the importer for supply to the seller, the value of assists
is the manufacture cost of these assistance goods or services.
- If assistance goods or
services are made by the purchasers manufacturing establishment located in a
foreign country but there is no document or voucher for separately accounting
these assistance goods or services, the value of assists is determined by
allocating the total manufacture cost of that establishment in the same period
to the volume of goods or services made.
- If assists are hired or
borrowed by the purchaser, the value of assists is hiring or borrowing
expenses.
- If assists are used goods, the
value of assists is the residual value of these goods.
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- If assists are sold at reduced
cost by the purchaser to the exporter, the reduced value must be added to the
dutiable value.
- If there are redundant raw
materials, materials and scraps collected from assists in the process of
manufacturing imported goods, the value of these collected redundant raw
materials and materials and scraps may be deducted from the value of assists,
if there are figures reflecting the collected value.
The determined value of assists
covers also expenses related to the purchase and sale, transport and insurance
up to the place of manufacture of imported goods.
d.3/ Allocation of the value of
assists to imported goods
d.3.1/ Principle for allocation
of the value of assists
- The value of assists must be
fully allocated to imported goods;
- The allocation must be
recorded in lawful and valid documents;
- The allocation must comply
with Vietnamese accounting regulations and standards.
d.3.2/ Method of allocating the
value of assists:
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- Allocating to the quantity of
imported goods in the first shipment;
- Allocating to the quantity of
goods units manufactured up to the date of importation of the first shipment;
- Allocating to all products
expected to be manufactured under the purchase and sale agreement between the
purchaser and seller (or the manufacturer);
- Allocating on the principle of
gradual decrease or increase;
- Apart from the above methods,
purchasers may use other allocation methods on condition that they comply with
the accounting law and the allocation is recorded in writing.
e/ Royalty and licensing fee:
e.1/ Royalty or licensing fee
must be added to the price actually paid or payable for imported goods only
when the following conditions are satisfied:
e.1.1/ Royalty or licensing fee
is paid for the use of intellectual property rights directly related to
imported goods being valued.
If the payable royalty or licensing
fee is not directly related to imported goods, it is not required to be added
upon determining the dutiable value.
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e.1.2/ Royalty and licensing fee
must be directly or indirectly paid by the purchaser. The payment of royalty
and licensing fee must constitute a condition for the purchase and sale of
imported goods. The purchaser agrees to pay a royalty or licensing fee as part
of the purchase and sale for the purpose of acquiring imported goods.
Customs declarants shall submit
to customs offices copies bearing a true copy seal of documents and vouchers
showing the payment of royalty or licensing fee and the licensing document
issued by the copyright holder or the licensing right holder.
e.1.3/ Royalty and licensing fee
are not yet included in the sale price of the goods being valued.
e.2/ Royalty and licensing fee
are not required to be added to the dutiable value in the following cases:
e.2.1/ They are charges payable
by the purchaser for the right to reproduce imported goods or copy artistic
works in Vietnam.
e.2.2/ They are charges payable
by the purchaser for the right to distribute or resell imported goods, in case
the payment of these charges does not constitute a condition of the sale of
imported goods.
If the charges paid for the
right to reproduce, distribute or resell imported goods have been included in
the sale price, they are not allowed to be deducted from the dutiable value of
imported goods.
e.2.3/ If part of royalty and
licensing fee is included in the price of imported goods while the other part
is based on other factors not related to the imported goods and these two parts
cannot be identified and separated or it is impossible to single out the
royalty under a financial agreement between the purchaser and seller, royalty
and licensing fee are not required to be added to the dutiable value.
e.3/ Bases for determining
royalty and licensing fee:
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e.3.2/ If royalty and licensing
fee cannot be determined at the time of importation due to their dependence on
post-importation sale turnover or for other reasons specified in the goods
purchase and sale contract or a separate written agreement on payment of
royalty, the customs declarant shall declare and commit in writing to
additionally declaring these expenses for determining the full dutiable value
of the goods lot and fulfilling the tax obligation.
f/ Sums of money payable by the
importer from proceeds of resale, disposal or use of imported goods which are
transferred to the seller in any form.
Example 4: The importer shall
pay a sum of money equal to a certain percentage of post-importation goods sale
turnover or rent.
If, at the time of importation,
it is impossible to determine this sum of money, which must be added, due to
its dependence on post-importation goods sale turnover or for other reasons
specified in the goods purchase and sale contract or a separate written
agreement, the customs declarant shall declare and commit in writing to
additionally declaring this expense for determining the full dutiable value of
the goods lot and fulfilling the tax obligation.
g/ Cost of transport and all
other expenses directly related to the transportation of imported goods to the
place of importation, such as expenses for cargo handling, towage and portage
expenses, demurrage, rents for containers, tanks and racks for multiple use as
tools for packing goods for transportation. The value of this adjustment is determined
on the basis of the transportation contract or documents or vouchers related to
the transportation.
g.1/ If a goods lot consists of
different kinds of goods but the bill of lading does not specify each kind of
goods, the customs declarant shall himself/herself allocate these expenses to
each kind of goods by using allocation methods in the following order of
priority:
- Allocation based on the
transport cost rate advice of the carrier;
- Allocation based on the weight
or volume of goods;
- Allocation based on the ratio
of the purchase price of each kind of goods to the total value of the goods
lot.
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h/ Cost of insurance for goods
up to the place of importation:
h.1/ If the importer fails to
buy insurance for goods, this cost is not required to be added to the dutiable
value.
h.2/ Insurance premium which has
been paid for the whole goods lot consisting of different kinds of goods but
not specified for each kind of goods shall be allocated according to the value
of each kind of goods.
If expenses specified at Points
g and h of this Clause are inclusive of a value-added tax amount payable in
Vietnam, this tax amount is not required to be added to the dutiable value.
3. Deductions:
If the following amounts are
already included in the transaction value and there are objective data from
lawful and valid documents available at the time of determination of the
dutiable value, these amounts may be deducted to determine the dutiable value:
a/ Expenses incurred after the
goods importation, including expenses for construction, architecture,
installation, maintenance or technical assistance or consultancy, supervision
or similar expenses.
b/ Cost of transport and
insurance in inland Vietnam. If these expenses are related to different kinds
of goods, they must be allocated to the goods to be valued on the principles
specified at Point g and h, Clause 2 of this Section.
c/ Taxes, charges and fees
payable in Vietnam and already included in the purchase price of imported
goods. If a charge or fee is related to different kinds of goods but cannot be
determined directly for each kind of goods, it must be allocated in proportion
to the ratio of the purchase price of each kind of goods to the total value of
the goods lot.
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- Expenses for market research
and survey for to be-imported products;
- Expenses for advertising
brands or trademarks of imported goods;
- Expenses for the display or
introduction of newly imported products;
- Expenses for participation in
trade fairs or exhibitions on new products;
- Expenses for inspection of the
quantity and quality of goods before importation. If these expenses are agreed
upon between the purchaser and seller and constitute part of the price actually
paid or payable by the purchaser to the seller, they must not be deducted from
the transaction value.
- Expense for opening L/C for
payment for the imported goods lot, in case this expense is paid by the
purchaser to the bank that represents the purchaser in making payment for the
goods.
e/ Payable interests related to
the payment for imported goods, on condition that:
- Payable interests must be
stated in writing and separated from the price actually paid or payable;
- When requested, the purchaser
shall prove that the declared value is the price actually paid or payable and
that the payable interest rate is compatible with the common credit interest
rate applicable at the time when and in the country where the financial
agreement is implemented.
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It is stated in the contract
that:
+ If the purchaser pays for the
goods within two weeks from the date of issuance of a commercial invoice, the
goods value is USD 9,700.
+ If the purchaser pays for the
goods two weeks after the date of issuance of a commercial invoice, the payable
goods value is USD 10,000 (USD 9,700 + USD 300).
The commercial invoice produced
by the purchaser upon carrying out customs procedures shows the goods lot value
of USD 9,700.
Because the customs office finds
out through the inspection of the import dossier that the purchaser has paid
for the goods two weeks after the date of issuance of the invoice, the price
actually paid or payable is USD 10,000.
In this case, though the
commercial invoice shows the goods lot value of USD 9,700, the value actually
paid by the purchaser to the seller is USD 10,000.
The dutiable value = the value
actually paid or payable = USD 10,000.
VIII. DETERMINING
THE DUTIABLE VALUE OF IMPORTED GOODS IN SOME SPECIFIC CASES
1. For imported goods which are
exempt from duty or considered for duty exemption but later used for purposes
other than those for which the duty exemption is given or considered, duty
payment declarations must be made. In a duty payment declaration, the value for
import duty calculation is determined on the basis of the residual use value of
goods computed according to their use and presence duration in Vietnam (from
the date of importation stated in the customs declaration to the date of tax
recalculation) and specifically determined as follows:
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Value
for import duty calculation = (%) of the value declared at the time of
registration of the first customs declaration
Six months or less (rounded up
to 183 days)
90%
Between six months and one year
(rounded up to 365 days)
80%
Between over one year and two
years
70%
Between over two years and three
years
60%
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50%
Between over five years and
seven years
40%
Between over seven years and
nine years
30%
Between over nine years and ten
years
15%
Over ten years
0%
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2. For scraps collected from the
processing of goods for a foreign party and sold by the processee to the
Vietnamese party, the dutiable value is determined as follows:
+ If there is a goods purchase
and sale contract, the principles and methods of determining the dutiable value
specified in Sections I thru VI, Part II of this Circular shall be applied to
determine the dutiable value.
+ If there is no purchase and
sale contract, the dutiable value is determined under the provisions of Clause
7 of this Section.
3. For imported goods that are
rented or borrowed, the dutiable value is the price actually paid under the
contract signed with the foreign party and consistent with lawful and valid
vouchers related to the rent or borrowing of goods.
4. For imported goods that have
been brought abroad for repair, the dutiable value is repair expenses actually
paid under the contract signed with the foreign party and consistent with
lawful and valid vouchers related to the repair of goods.
5. Warranty goods: In case
imported goods consist also of warranty goods under the purchase and sale
contract (including also goods consigned later), the dutiable value is the
value actually paid for these imported goods, including the value of warranty
goods. The value and quantity of warranty goods, warranty conditions and
duration must be specified in the contract.
6. Sales promotion goods: In
case imported goods consist of also sales promotion goods under the purchase
and sale contract (including also goods consigned later), the dutiable value is
determined as follows:
a/ If the value of sales
promotion goods is stated in the purchase and sale contract and does not exceed
10% of the imported goods, the dutiable value of the imported goods (inclusive
of that of sales promotion goods) is the value actually paid for the whole
imported goods lot;
b/ If the value of sales
promotion goods cannot be separated from the value of the imported goods or
exceeds 10% of the imported goods value, the dutiable value of the whole
imported goods lot (the dutiable value of the imported goods and that of sales
promotion goods) is not determined on the basis of transaction value but
according to the next method of determination.
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a/ For goods in single units:
- For automobiles, motorbikes or
machines or equipment in single units valued at VND 50 million or more
according to the price database, the dutiable value is determined by the
customs office on the principles and according to the dutiable
value-determining methods specified in Sections I thru VI of this Circular and
based on the price database at the time of valuation.
- For other goods in single
units: the dutiable value is the declared value.
b/ For goods in multiple units:
- If the declared total value of
the goods lot is VND 5 million or less, the dutiable value is the declared
value.
- If the declared total value of
the goods lot is more than VND 5 million (including cases in which Vietnamese
organizations or individuals purchase goods in bordering countries and import
them into Vietnam; goods carried along on the same or a different flight by
passengers on entry; goods being gifts or presents), the dutiable value shall
be determined by the customs office on the principles and dutiable
value-determining methods specified in Sections I thru VI, Part II of this Circular
and based on the price database at the time of valuation.
8. Other particular cases:
a/ If imported goods are
redundant compared to the goods purchase and sale contract signed with a
foreign party:
a.1/ If redundant imported goods
are identical or similar to imported goods stated in the contract: The dutiable
value of redundant imported goods is determined by the method used for
determining the dutiable value of the goods volume stated in the contract.
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b/ If imported goods are
inconsistent with the purchase and sale contract signed with a foreign party:
b.1/ If imported goods are of
improper specifications and permitted for import, their dutiable value is the
value actually paid for imported goods. Goods of improper specifications means
actually imported goods which are different in terms of color, dimensions or
models from those described in the purchase and sale contract and these
differences do not affect the actually paid price.
b.2/ If imported goods are
inconsistent with the purchase and sale contract and permitted for import,
their dutiable value is determined on the principle of sequential application
of the dutiable value-determining methods specified in Sections II thru VI,
Part II of this Circular other than the transaction value method.
c/ If imported goods are damaged
or lost for justifiable reasons in the course of transportation and handling:
c.1/ For goods which are neither
damaged nor lost, their dutiable value is the value actually paid for imported
goods (damage- or loss-free part).
c.2/ For damaged or lost goods,
their dutiable value is determined on the basis of the dutiable value of intact
goods and reduced in proportion to the damage or loss level and in accordance
with inspection results and relevant dossiers.
d/ For goods imported for
compensation for damage or loss specified at Point c of this Clause, the
dutiable value is determined under the guidance provided in Sections I thru VI,
Part II of this Circular.
e/ For actually imported goods
with a quantity disparity compared with commercial invoices due to their
characteristics but in conformity with delivery and payment conditions stated
in the purchase and sale contract, the import duty amount is determined as
follows:
e.1/ Regarding the determination
of the quantity of actually exported or imported goods: If verification has
been conducted, verification results will serve as a basis for determining the
quantity of actually exported or imported goods.
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e.3/ Some specific examples:
Example 6:
An enterprise imports under a
contract 1,000 tons of tobacco shreds at a unit price of USD 100/ton and with a
water content of 2%. The commercial invoice states: 1,000 tons x USD 100 =
payable value of USD 100,000.
- The goods volume actually
imported within the tolerable error under the contract: When imported, if this
volume weighs between 1,020 and 980 tons through the customs inspection, the
payment value for duty calculation is USD 100,000.
- For the actually imported
goods volume in excess of the tolerable error under the contract: If the
inspected goods volume weighs 1,200 tons, the actually imported goods volume is
determined to be 1,200 tons and the dutiable value is determined as follows:
1,000 tons x USD 100 + 176 tons x USD 100 (the goods volume for dutiable value
determination is 1,176 tons = 1,200 tons - (1,200 tons x 2%).
If the actually imported goods
volume is 900 tons, smaller than that stated in the commercial invoice, which
is issued according to the actually delivered goods, the dutiable value is the
payment value stated in the commercial invoice.
Part III
EXAMINATION OF THE
DUTIABLE VALUE
I.
EXAMINATION OF THE DUTIABLE VALUE AT THE STAGE OF CUSTOMS CLEARANCE
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a/ Objects of examination:
customs dossiers and documents related to the determination of the dutiable
value of goods subject to dossier examination or physical examination of goods.
b/ Examination principles:
application of value risk management.
The value examination on the
principle of application of value risk management is conducted on the basis of
classifying goods into those on the list of goods subject to price risk
management and those outside that list, specifically as follows:
b.1/ For goods on the list of
those subject to price risk management:
The General Department of
Customs shall draw up and promulgate a list of goods subject to price risk
management and guide provincial-level Customs Departments how to use this list
as a basis for the examination and assessment of the truthfulness and accuracy
of the declared values, organizing the explanation and exercising the right to
consultation (below referred to as consultation for short) on goods lots with
doubted declared values under Clause 5 of this Section.
Criteria for drawing up a list
of goods subject to price risk management include:
- Imported goods subject to high
duty rates and with large import value;
- Sensitive imported goods which
are vulnerable to trade frauds.
Based on management capability,
trade fraud practices and management human resources, the list of goods subject
to price risk management may be changed in different periods in order to suit
practical management requirements.
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Important goods subject to
concentrated management in localities are those frequently imported or those
with large import values, subject to high duty rates or vulnerable to trade
frauds through prices but not yet specified in the list of goods subject to
price risk management.
Directors of provincial-level
Customs Departments shall take the initiative in gathering, analyzing and
proposing in periodical reports to the General Department of Customs goods and
groups of goods which need to be added to the list of goods subject to price
risk management.
2. Contents of examination:
The customs office shall examine
in detail the following contents:
a/ Declared contents: The
customs office shall examine all items on the import declaration and value
declaration made by the customs declarant, paying attention to carefully
inspecting the following items:
Full name of the goods, detailed
signs, code, mark and origin of the goods, which are consistent with those on
the value declaration. Specifically as follows:
- Declared name of the goods is an
ordinary trade name accompanied with substantial features of the goods, such as
composition, component materials, ingredients and their contents, capacity,
size, design model, utility, mark, origin, etc., satisfying the requirements on
classification and identification of factors affecting and relating to the
determination of the dutiable value of goods.
- In case the name of the goods
is not specifically and clearly declared under the above provisions, the
customs declarant is required to make additional declaration. If the customs
declarant makes no or inadequate additional declaration, the case shall be
handled under Point a, Clause 3 of this Section.
For example: For motorbikes and
automobiles, there must be information on their brands, manufacturers,
manufacturing countries, design models, cylinder capacity, models, other signs
and codes, etc.
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b/ Examination of the accuracy
of dossiers (for example, arithmetical calculations); the truthfulness and
substantial consistency between documents in the customs dossier set
(comparison of terms of the contract, etc.); comparison of contents of the
commercial invoice and the commercial contract; comparison of contents declared
in the value declaration and relevant documents in the customs dossier.
c/ Examination of the legality
and validity of documents related to the dutiable value determination.
d/ Examination of adherence to
the principles and methods of dutiable value determination specified in this
Circular; application conditions and order of the methods used for determining
the declared value.
For example: The customs
declarant has improperly applied the prescribed order of the dutiable
value-determining methods specified in Part II of this Circular.
e/ Examination of the accuracy
and truthfulness of the declared value: The customs office shall compare the
declared value with the price database at the time of value examination in
order to assess risks and check the accuracy and truthfulness of the declared
value.
The price database used for
examining the declared value consists of price data collected, updated and used
under the Regulation on development, management and use of the price database
promulgated by the Finance Ministry.
3. Processing of examination
results:
a/ The declared value shall be
rejected and the dutiable value shall be determined on the principles and
according to the methods specified in this Circular if:
After the examination, the
customs office detects any of the following violations: Violation related to
procedures and dossiers; principles and order of application of the dutiable
value-determining methods (below referred to as violations related to
procedures and dossiers). Specifically as follows:
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a.1/ The customs declarant is
requested to make an additional declaration of the goods name but makes no or
inadequate declaration.
a.2/ There is an inconsistency
between contents of documents in the customs dossier submitted or produced by
the customs declarant to the customs office and there is a ground to believe
that the customs declarant has declared untruthful contents related to the
valuation;
For example: There is a
disparity in terms of goods description between the commercial invoice and the
transportation contract.
a.3/ The customs dossier and
relevant documents are unlawful or invalid;
a.4/ The customs declarant makes
no or inadequate or inaccurate declaration of transaction elements affecting
the value (for example: no declaration of adjustments, special relationship,
royalty, licensing fee);
a.5/ The methods of dutiable
value determination specified in Clause 2, Article 4 of the Governments Decree
No. 40/2007/ND-CP of March 16, 2007, have been improperly applied or have not
been applied in the prescribed order;
a.6/ Any of the conditions upon
the application of the methods of dutiable value determination specified in
Articles 7 thru 12 of the Governments Decree No. 40/2007/ND-CP of March 16,
2007, is not satisfied;
For example: The customs
declarant fails to satisfy the condition on the right to dispose of or use
goods after importation upon the application of method 1; or fails to satisfy
the condition on time upon selection of identical or similar goods in case of
application of method 2 or 3, etc.
b/ Handling of doubted cases:
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b.1/ If it has no doubt about
the price but has a doubt about a violation related to procedures or dossier,
it shall accept the declared value and at the same time direct its doubt about
the violation toward the stage of customs clearance.
b.2/ If it has a doubt about the
price and has a doubt or no doubt about violations related to procedures and
dossier, it shall handle the case as follows:
b.2.1/ For goods on the list of
goods subject to price risk management:
The customs office shall notify
the customs declarant of grounds for the doubt about the declared price, and
the method of valuation and the price determined by it, and handle the case as
follows:
b.2.1.1/ If the customs
declarant agrees with the price and valuation method determined by the customs
office, the customs office shall issue a notice on valuation and tax assessment
under regulations and clearly state them in the import declaration.
b.2.1.2/ If the customs
declarant disagrees with the price and valuation method determined by the
customs office, the customs office shall request the customs declarant to pay a
security and conduct consultations under Clauses 4 and 5 of this Section.
b.2.1.3/ In case of a doubt
about the price but the declared value is 5% or less lower than that on the
price database at the time of examination, the director of the provincial-level
Customs Department shall be assigned to base on the actual imported goods lot
and information and data on the imported goods and the importing enterprise to
decide on the application of a security and organize consultations on that
goods lot.
b.2.2/ For goods outside the
list of goods subject to price risk management:
b.2.2.1/ The customs office
shall notify the customs declarant of grounds for its doubt about the declared
price, and the valuation method and price determined by itself, and then handle
the case under Item b.2.1, Point b of this Clause, for goods on the list of
important goods subject to concentrated management in units as decided by the
director of the provincial-level Customs Department.
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b.3/ Cases of doubt about
prices:
Based on the price database at
the time of value examination, the customs office shall compare the declared
value with values available on the price database in order to check the
accuracy, truthfulness and objectivity of the declared value.
An imported goods is considered
subject to a doubt about price if it falls into one of the following cases:
b.3.1/ It has a declared value
lower than the lowest dutiable value of an identical or similar goods
determined by the customs office; or the lowest declared value of an identical
or similar goods already accepted by the customs office as the dutiable value
(without comparison with doubted goods lots in need of consultations).
Identical or similar goods used
for comparison are those exported to Vietnam on the same day or within 60 days
before or after the date of exportation of the goods subject to price doubt. If
no identical or similar goods within the above time limit is found, this time
limit may be extended to 90 days before and after the date of exportation of
the goods subject to price doubt.
b.3.2/ The imported goods has
its declared value lower than or equal to the declared value of imported parts
of the same kind in complete sets; or lower than or equal to the declared value
of main materials constituting an imported finished product.
The time limit for seeking data
must comply with Item b.3.1 of this Point b.
b.3.3/ The imported goods has
its declared value lower than the value of an identical or similar goods on the
list of goods subject to price risk management.
b.3.4/ The imported goods has
its declared value lower than the value determined by the customs office after
gathering information from other sources already converted to the same
condition with the goods lot being examined.
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b.3.6/ If no identical or
similar goods under this Circular is found for comparison or examination of the
declared value, the definition of identical or similar goods will be applied in
a more flexible manner and in a broader scope, specifically as follows:
- For imported goods with many
properties or utilities, the value of goods of the same type with an identical
basic function already available on the price database may be used for
comparison.
- For imported goods of higher
quality, the value of goods of the same type and lower quality already
available on the price database may be used for competition.
- For imported goods originating
from developed countries or groups of developed countries, the value of goods
of the same type from underdeveloped or developing countries or groups of
underdeveloped or developing countries available on the price database may be
used for comparison (for example, for imported goods being examined and
originating from Japan, the value of goods of the same type originating from
the Republic of Korea available on the price database may be used for
comparison).
The time limit for data search
must comply with Item b.3.1 of this Point b.
c/ Acceptance of the declared
value: The customs office shall accept the declared value in cases other than
those specified at Points a and b of this Clause.
4. Delayed dutiable value
determination
a/ Cases of delayed dutiable
value determination:
a.1/ Customs declarants delay
the dutiable value determination if they do not have sufficient necessary
information for determining the dutiable value at the time of customs
declaration registration.
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b/ Procedures for delaying the
dutiable value determination:
b.1/ For cases in which the
customs declarant delays the dutiable value determination:
- At the time of customs
declaration registration, the customs declarant must request in writing the
customs office to delay the dutiable value determination for the reason that
information necessary for the dutiable value determination is insufficient and
permit customs clearance, together with a commitment to paying a security
sufficient to secure the whole duty amount of the imported goods lot assessed
by the customs office.
- Based on the customs
declarants written request, the customs office carrying out procedures for
importing goods shall determine the dutiable value used for calculating the
payable security under Item c.3, Point c of this Clause and notify it in
writing to the customs declarant.
- The customs office may permit
the customs clearance only when the customs declarant pays the security under
this Circular.
- Within 30 days (of the
calendar year) from the date of customs clearance of goods, the customs
declarant shall make additional declaration of information necessary for
determining the dutiable value of the imported goods lot and recalculate the
payable duty amount under regulations. Past the time limit of 30 days, if the
customs declarant fails to make an additional declaration for determining the
dutiable value, the customs office shall determine the dutiable value and
notify it in writing to the customs declarant for compliance.
b.2/ For cases in which the
customs office delays the dutiable value determination:
- The customs office shall
clearly notify in writing the customs declarant of the following contents:
+ Grounds for doubt;
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+ Payable security: calculated
under Item c.3, Point c of this Clause.
- The customs office will only
permit the customs clearance when the customs declarant pays the security
according to its notice.
- In the duration of security,
the customs office shall organize consultation on the accuracy and truthfulness
of the declared value under the provisions of Clause 5 of this Section on
consultation before concluding on the dutiable value and notifying it in
writing to the customs declarant for compliance.
c/ Security amount in cases of
delayed dutiable value determination:
c.1/ Forms of security include:
- Bank guarantee; or,
- Payment of collateral; or,
- Payment of deposit; or,
- Other forms: the customs
office shall temporarily keep legal documents of title (for automobiles,
motorbikes) or part of imported goods for which procedures are carried out.
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c.2/ Security duration: The
security duration must be long enough for consultation and tax assessment
(dutiable value determination) and fulfillment of the tax obligation under
regulations.
c.3/ Security amount:
- Security amount must be
sufficient for securing the whole payable duty amount.
The director of the
district-level Customs Department shall base himself/herself on the price
database and the principles and methods of dutiable value determination
specified in this Circular to decide on the value used for calculating the
security and the payable security amount.
- If the customs declarant has
paid a duty according to the declaration, the security amount is equal to the
difference between the duty amount calculated on the basis of the price
determined by the customs office and that calculated on the basis of the price
declared by the customs declarant.
c.4/ Security procedures:
c.4.1/ For the form of
guarantee:
Guarantees must comply with the
tax administration laws provisions on guarantees for payable tax amounts.
c.4.2/ For the form of deposit:
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- The deposit amount is remitted
into the customs offices deposit account at the State Treasury.
- After making a conclusion on
the dutiable value, the district-level Customs Department shall carry out
procedures for transferring the deposit amount corresponding to the increased
duty amount (if any) from the customs offices deposit account to the state
budget revenue account under current regulations.
- Upon the expiration of the
security duration, if the customs office does not adjust the dutiable value and
accept the declared value, it shall refund the deposit amount paid by the
customs declarant.
- The district-level Customs
Department shall immediately refund the overpaid deposit amount to the customs
declarant.
c.4.3/ For other forms of
security:
- If the customs declarant does
not apply the form of guarantee or deposit, he/she shall request in writing the
customs office to apply another form.
- The director of the
district-level Customs Department shall, based on the customs declarants
request and the practical situation, decide on an appropriate form of security
and procedures.
5. Consultation:
a/ Competence to conduct
consultation:
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- The director of the
provincial-level Customs Department shall organize the consultation.
Based on the practical situation
and management capability, the director of the provincial-level Customs
Department may authorize the director of the district-level Customs Department
to conduct consultation and take responsibility for the consultation by the
district-level Customs Department.
b/ Form of consultation: direct
consultation.
c/ Cases subject to consultation
are those specified in Items b.2.1.2 and b.2.2.1, Point b, Clause 3, Section I,
Part III of this Circular.
For the same goods item for
which import procedures are carried out by the same enterprise at the same
customs office and under the same contract or several contracts, consultation
is required only for the first imported goods lot, provided that:
- Information related to the
examination and determination of the dutiable value obtained by the customs
office from the price database and information collected by other professional
methods up to the time of examination and determination of the dutiable value
for a new goods lot are the same as information used for organizing
consultation on the first imported goods lot.
- The customs declarant accepts
the use of results of the first-time consultation for subsequent imported goods
lots.
d/ Consultation and processing
of consultation results:
d.1/ Preparation for
consultation:
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+ Notify in writing the customs
declarant of the time and place for consultation; the dossier and documents
related to the consultation; and grounds for doubt about the declared value.
+ Collect information available
on the price database and related documents. Analyze and sum up information for
consultation.
+ Prepare questions to be asked
in the consultation, focusing on doubts about the dossier, price and discounts.
+ Come up with reason(s) for
rejecting the declared value, and provide the dutiable value it has determined
and the valuation method it has used.
- The customs declarant shall:
+ Supply information, documents
and vouchers as required by the customs office.
+ Send a representative, who is
authorized to decide on contents related to the dutiable value determination,
or a fully authorized attorney to participate in the consultation meeting.
+ Answer questions in the course
of consultation related to the import transaction at the request of the customs
office.
d.2/ Contents to be consulted:
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The customs office shall focus
on clearing its doubts about the dossier and the declared value. Questions and
answers made in the course of consultation must be fully and truthfully
recorded in the consultation minutes. Concluding the consultation minutes,
based on answers of the enterprise, price information and data, the customs
office shall clearly state that the declared value and proposed dutiable value
are accepted or rejected. Participants in the consultation shall jointly sign
the consultation minutes.
d.3/ The time limit for
organizing consultation and determining the dutiable value is 30 days (of the
calendar year) from the date of declaration registration. The director of the
provincial-level Customs Department shall create conditions for the customs
declarant to participate in the consultation within the prescribed time limit.
d.4/ Processing of consultation
results:
d.4.1/ The customs office shall
reject the declared value and determine the dutiable value in the following
cases:
d.4.1.1/ The customs declarant
has declared untruthful contents related to the dutiable value determination:
- The customs declarant fails to
declare or has declared falsely the price actually paid or payable; factors
related to the dutiable value determination (adjustments, special relationship,
conditions on application of the valuation method).
- The exporter or its
representative has information affirming that the declared price is untrue to
the actual purchase and sale.
- Information obtained by the
customs office by other professional methods affirms that the transaction value
is untruthful.
- Information supplied by the
customs declarant, through examination, is found to be inaccurate, supplied
documents are found to be forged, unlawful or invalid.
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- Upon the expiration of the
prescribed time limit for consultation, the customs declarant still refuses or
fails to participate in the consultation.
- Upon the expiration of the
prescribed time limit for consultation, the customs declarant still fails to
supply information, documents and vouchers required by the customs office.
- The customs declarant fails to
explain or prove, or unconvincingly or groundlessly explain or prove matters
doubted by the customs office (the reasonability of the dossier; the declared
price or special relationship influencing the transaction value; inconsistency
between the customs declarants answers and the customs dossiers;
inconsistencies in the dossier, documents and vouchers declared or produced by
the enterprise; the reasonability of the declared price and price of an
identical or similar goods available on the price database).
In case of rejection of the
declared value, the customs office shall notify such in writing to the customs
declarant, clearly stating grounds for the rejection.
d.4.2/ Acceptance of the
declared value: The customs office shall accept the declared value in cases
other than those specified in Item d.4.1 of this Point.
e/ All documents and dossiers
related to the consultation must be archived together with customs dossier
sets.
f/ In order to ensure the
truthfulness and objectivity of the dutiable value examination and
determination, the customs office may, apart from organizing the consultation,
consult opinions of concerned agencies and units.
6. The General Department of
Customs shall specify the procedures for examining and determining the dutiable
value.
II.
POST-CUSTOMS CLEARANCE EXAMINATION OF THE DUTIABLE VALUE
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1. The district-level Customs
Departments section in charge of reexamination shall:
Examine customs dossiers,
declared prices and documents related to the determination of dutiable values
of imported goods, and dossiers which have not yet been checked in detail at
the stage of customs clearance. Its examination must be conducted under the
provisions of Clause 2, Section I, Part III of this Circular. Through the
examination, if it detects errors in or violations related to dossiers,
documents and valuation methods, it shall reject declared values and determine
dutiable values according to the principles and methods specified in Sections
II thru VI, Part II of this Circular. If it has doubts about dossiers,
documents and declared prices but does not have sufficient grounds for
concluding on acts of fraud, it shall transfer the doubted cases to the section
in charge of post-customs clearance examination for further verification and
clarification under regulations.
2. The section in charge of
post-customs clearance examination shall:
Based on the doubts about
dossiers, documents and declared prices transferred from the reexamination
section or the section in charge of examination at the customs clearance stage,
assess the level of risk of each goods item or line or importing enterprise and
conduct the post-customs clearance examination at the customs office or the
enterprises office. Examination contents and procedures comply with regulations
on post-customs clearance examination.
3. The section in charge of
anti-smuggling investigation shall:
Organize the examination and
verification of cases showing signs of big frauds in value, such as: forging of
dossiers and documents or collusion in lowering or falsely declaring the value,
transferred from the section in charge of post-customs clearance examination,
or serious and systematic cases detected by anti-smuggling forces.
4. For goods lots that have
their values already examined at the customs clearance stage, regardless of
whether their declared values are rejected or accepted after consultations but
the reexamination section, the section in charge of post-customs clearance
examination or the section in charge of anti-smuggling investigation detects
violations, these violations shall still be handled under law, duty arrears
shall be fully collected, and the responsibility of the section in charge of
examination at the customs clearance stage shall be identified. If this section
has committed a violation, it shall be disciplined under regulations of the
customs service and law.
5. Results of the post-customs
clearance value examination must be notified to the section in charge of
customs clearance examination within 5 days after they are obtained.
Part IV
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I. RIGHTS
OF CUSTOMS DECLARANTS
1. To request customs offices to
keep confidential commercial information they supply to customs offices,
including information on purchasers, sellers, consigners, domestic goods
purchasers, prices of goods sold in the country, and production costs of imported
goods.
2. To request customs offices to
guide the dutiable value determination and notify in writing dutiable values,
documents, valuation and calculation methods used to determine dutiable values
in case dutiable values are determined by customs offices.
3. To request the organization
of consultations to prove the accuracy and truthfulness of values they declare
when customs offices have doubts.
4. To request customs offices to
release goods in case of necessity to delay the dutiable value determination
after paying a security for payable duty amounts.
5. To lodge complaints about
prices determined by customs offices.
6. To request in writing the
change of the order of applying the deductible value method and the computed
value method.
II.
OBLIGATIONS OF CUSTOMS DECLARANTS
1. To fully and accurately
declare, based on dossiers of imported goods lots, the principles and methods
of dutiable value determination specified in this Circular, expenses related to
the purchase and sale of imported goods and determine by themselves dutiable
values of imported goods according to the dutiable value declaration form set
by customs offices.
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3. To explain and submit to the
examination by customs offices of the accuracy and truthfulness of declared
values. To coordinate with customs offices in verifying the accuracy and
truthfulness of declared contents related to dutiable values.
4. To take responsibility before
law for the accuracy and truthfulness of declared contents and results of
customs valuation for taxation and customs statistical purposes.
5. To take responsibility for
the non-delivery of documents sent by post from customs offices to addresses they
have registered with customs offices on customs declarations.
6. To pay security amounts as
requested by customs offices under Item 4, Section I, Part III of this
Circular.
III.
RESPONSIBILITIES AND POWERS OF CUSTOMS OFFICES
1. To keep confidential commercial
information related to declared values as requested by customs declarants,
except for cases in which such information must be supplied to concerned
agencies in accordance with law.
2. To explain and guide customs
declarants in complying with the provisions of the Governments Decree No.
40/2007/ND-CP of March 16, 2007, and the guidance in this Circular.
3. To notify in writing customs
declarants of dutiable values, documents, valuation and calculation methods
they have applied to determine dutiable values when so requested in writing by
customs declarants.
4. To supply dutiable value
declaration forms to customs declarants and guide them in filling in these
forms in compliance with each dutiable value determining method. To organize
the printing, distribution and issuance of dutiable value declaration forms to
customs declarants.
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6. To request customs declarants
to explain, submit or produce documents related to the purchase and sale of and
payment for goods to prove the accuracy and truthfulness of declared values. If
doubting about related documents, to compare these documents with their
originals to ensure the truthfulness.
7. To determine dutiable values
on the basis of dossiers of imported goods lots, the price database and the
dutiable value-determining methods specified in this Circular in the following
cases:
a/ Customs declarants cannot
determine dutiable values according to the methods specified in Sections I thru
VI, Part II of this Circular.
b/ Customs offices reject
declared values in the cases specified at Point a, Clause 3 and Item d.4.1,
Point d, Clause 5, Section I, Part III of this Circular.
c/ Customs declarants fail to
comply with the provisions of the Governments Decree No. 40/2007/ND-CP and the
guidance in this Circular.
Part V
COMPLAINTS AND HANDLING
OF VIOLATIONS
I.
COMPLAINTS AND SETTLEMENT THEREOF
1. Customs declarants may
complain about results of dutiable value determination by customs offices.
Complainants have the rights and obligations provided by the law on complaints
and denunciations. Written complaints must clearly state grounds and reasons
for making complaints. In the course of making complaints, customs declarants
shall still abide by customs offices decisions on dutiable values, unless these
decisions are suspended from enforcement under the Law on Complaints and
Denunciations.
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2. If disagreeing with results
of the first-time complaint settlement by customs offices, customs declarants
may lodge second-time complaints with immediate superiors of issuers of
decisions on the first-time complaint settlement or institute administrative
lawsuits at courts under the law on complaints and denunciations and the law on
administrative procedures.
In case complainants further
lodge their complaints, they shall send their complaints enclosed with copies
of decisions on the first-time complaint settlement and relevant documents (if
any) to persons responsible for second-time complaint settlement.
Heads of immediate superiors of
authorities settling first-time complaints shall issue decisions on second-time
complaint settlement.
3. Complaints for which
decisions on second-time complaint settlement have been issued and those
accepted by courts for handling will not be considered for settlement.
4. If complaints are not
settled, complaint-settling authorities shall reply in writing to complainants
within a time limit prescribed by law, clearly stating reasons for refusal to
settle complaints.
II.
HANDLING OF VIOLATIONS
1. Customs officers and
employees who lack a sense of responsibility and violate the provisions of the
Governments Decree No. 40/2007/ND-CP of March 16, 2007, and the guidance in
this Circular, causing damage to duty payers and loss of duty amounts, shall pay
compensations for damage and loss in accordance with law and shall, depending
on the nature and severity of their violations, be disciplined or examined for
liability in accordance with law.
2. Duty payers shall pay duty
arrears when their acts of tax evasion are detected by customs offices or other
competent agencies.
Part VI
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1. The Finance Ministry shall
coordinate with other ministries and line associations in organizing the
collection and exchange of information on prices to serve the value examination
and determination.
2. The General Department of
Customs shall organize the price database to serve the dutiable value
examination and determination within the customs service.
Inter-provincial and
provincial-level Customs Departments shall organize the collection, processing,
reporting and use of information on prices under regulations of the General
Department of Customs.
3. The General Director of
Customs shall guide, direct and organize the implementation of this Circular.
4. This Circular guides the
examination and determination of the value of exported goods and imported goods
and replaces Appendix I to the Finance Ministrys Circular No. 113/2005/TT-BTC
of December 15, 2005. Other contents which are contrary to this Circular are
annulled.
This Circular takes effect 15
days after its publication in CONG BAO.
FOR
THE MINISTER OF FINANCE
VICE MINISTER
Do Hoang Anh Tuan
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