Thông tư 119/2003/TT-BTC

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT’S DECREE NO. 149/2003/ND-CP OF DECEMBER 4, 2003 WHICH DETAILS THE IMPLEMEN-TATION OF THE SPECIAL CONSUMPTION TAX LAW AND THE LAW AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE SPECIAL CONSUMPTION TAX LAW

Pursuant to May 20, 1998 Special Consumption Tax Law No. 05/1998/QH10;
Pursuant to June 17, 2003 Law No. 08/2003/QH11 Amending and Supplementing a Number of Articles of the Special Consumption Tax Law;
Pursuant to the Government’s Decree No. 149/2003/ND-CP of December 4, 2003 detailing the implementation of the Special Consumption Tax Law and the Law Amending and Supplementing a Number of Articles of the Special Consumption Tax Law;
Pursuant to the Government’s Decree No. 77/2003/ND-CP of July 1, 2003 defining the functions, tasks, powers and organizational structure of the Ministry of Finance,
The Ministry of Finance hereby guides the implementation as follows:

A. SCOPE OF APPLICATION OF SPECIAL CONSUMPTION TAX (SCT)

I. SCT-LIABLE OBJECTS AND SCT PAYERS

1. SCT-liable objects:

SCT-liable objects prescribed in Article 1 of the Government’s Decree No. 149/2003/ND-CP of December 4, 2003 are the following goods and services, except for cases where goods are not subject to SCT prescribed in Section II, Part A of this Circular.

1.1. Goods:

a/ Cigarettes, cigars;

b/ Liquors;

c/ Beer;

d/ Under-24 seat cars;

e/ Gasoline of various kinds, naphtha, reformade components and other components for mixing gasoline;

f/ Air conditioners of a capacity of 90,000 BTU or under;

g/ Playing cards;

h/ Votive gilt paper, votive objects.

1.2. Services:

a/ Dancing halls, massage parlors, karaoke bars;

b/ Casino, jackpot games;

c/ Entertainment with bet tickets;

d/ Golf business: sale of golf club membership cards, golf playing tickets;

e/ Lottery business.

2. SCT payers:

SCT payers prescribed in Article 2 of the Government’s Decree No. 149/2003/ND-CP of December 4, 2003 include organizations and individuals (referred collectively to as establishments) that produce and/or import goods or provide services, which are subject to SCT.

- Organizations producing and/or importing goods or providing services include:

+ Business organizations set up and registering their business under the Enterprise Law, the State Enterprise Law and the Cooperatives Law;

+ Economic organizations of political organizations, socio-political organizations, social organizations, socio-professional organizations, people’s armed force units, non-business organizations and other organizations;

+ Foreign-invested enterprises and foreign parties to business cooperation under the Law on Foreign Investment in Vietnam; foreign companies and organizations conducting business activities in Vietnam not under the Law on Foreign Investment in Vietnam;

- Individuals, households, independent businesspeople and other business subjects that conduct production, business and/or import activities.

II. CASES WHERE GOODS ARE NOT SUBJECT TO SCT:

1. Goods, including those sold to, or processed for, export-processing enterprises, which are directly exported to foreign countries by production and/or processing establishments.

Establishments that have goods not subject to SCT prescribed at this Point must have dossiers proving that their goods have been actually exported, concretely as follows:

- Goods sale contracts or contracts on processing for foreign countries.

- Invoices on export goods sale, goods delivery or payment of processing remuneration.

- Export goods declarations with the customs offices’ certification that goods have been exported.

- Via-bank payment vouchers.

Establishments producing goods subject to SCT that conduct temporary export for re-import under the permits for temporary export for re-import, during the grace period under the prescribed regime when conducting re-import, shall not have to pay SCT, but when selling such goods, they shall have to pay SCT.

2. Goods which are sold or consigned by production establishments to export business establishments for export under economic contracts.

Production establishments that have goods not subject to SCT prescribed at this Point must have the following dossiers proving that the goods have been actually exported:

- Contracts on purchase/sale of goods for export or export consignment contracts for cases of export consignment between production establishments and export business establishments.

- Invoices on goods sale or export consignment goods delivery.

- Records of (whole or partial) liquidation of contracts on sale of goods for export, records of liquidation of export consignment contracts clearly stating the following contents:

Names, quantities, categories and items of goods as well as sale prices of actually exported goods; payment modes; money amounts as well as serial numbers and dates of vouchers on via-bank payment of export goods by foreign purchasers to exporting establishments; money amounts as well as serial numbers and dates of payment vouchers between production establishments and exporting establishments or export consignees; serial numbers and dates of export contracts and customs declarations for export goods.

For goods which are purchased or accepted for consigned export by exporting establishments, and not exported but consumed in the country, the export business establishments must declare and pay SCT on such goods when selling them to domestic business establishments.

3. Goods which are brought to foreign countries for sale at overseas exhibitions-cum-fairs.

Establishments that have goods brought overseas for sale at exhibitions-cum- fairs must fully go through the following procedures:

- A written invitation or written registration for participation in overseas exhibitions-cum-fairs.

- Export goods declarations with the customs offices’ certification of the already exported goods.

- List of goods to be sold at the exhibitions-cum-fairs.

- Vouchers on payment for goods to be sold at exhibitions-cum-fairs, in cases where goods are sold with cash collection, such must be declared with the customs offices and there must be vouchers on remittances of money into banks under the current regulations.

4. Goods which are imported in the following cases:

- Humanitarian aid or non-refundable aid goods;

- Foreign organizations’ or individuals’ gifts for State agencies, political organizations, socio-political organizations, social organizations, socio-professional organizations and/or people’s armed force units. Such gifts shall be determined within the limits prescribed by the Government or the Finance Ministry;

- Belongings of foreign organizations and/or individuals, that enjoy the diplomatic privileges and immunities prescribed by the Vietnamese Government in accordance with the international treaties which Vietnam has signed or acceded to;

- Personal effects within the duty-free luggage limits prescribed for Vietnamese individuals and foreigners on exit or entry through the Vietnamese border gates;

5. Goods which are transshipped, transited or transported through Vietnamese territory in the following forms:

- Goods transported directly from the exporting countries to the importing countries without arriving at the Vietnamese border gates;

- Goods transported from the exporting countries to the importing countries, arriving at the Vietnamese border gates but without going through the procedures for import into Vietnam and without going the through the procedures for export from Vietnam;

- Goods transported from the exporting countries to the importing countries, arriving at Vietnamese border gates, and deposited in bonded warehouses, but without going through the procedures for import into Vietnam and without going through the procedures for export from Vietnam;

- Goods transited and/or transported through Vietnam’s border gates and/or borders on the basis of the agreements signed between the two governments or between branches or localities, as permitted by the Prime Minister;

6. For goods temporarily imported for re-export, which have been actually re-exported during the period when the import tax is not paid according to the prescribed regime, SCT must not be paid for the volumes of actually re-exported goods.

7. Goods temporarily imported for participation in fairs or exhibitions, which have been actually re-exported during the period when import tax is not paid according to the prescribed regime.

At the end of fairs or exhibitions, if organizations or individuals fail to re-export the temporarily imported goods, they must declare and pay SCT; if they are detected through inspection as having not made such declaration, they shall, apart from having SCT retrospectively collected, be sanctioned according to law provisions.

8. Goods imported from foreign countries into export-processing zones and/or export-processing enterprises.

The dossiers, order and competence for non-collection of SCT for cases prescribed at Points 4, 5, 6, 7 and 8 mentioned above shall comply with the regulations on import tax non-collection and exemption under the provisions of the Law on Import Tax and Export Tax.

9. Goods imported for sale at duty-free shops at international seaports and/or airports or sold to subjects entitled to duty-free goods purchase regime under the Government’s regulations.

The procedures and dossiers for SCT non-collection and settlement in this case shall be the same as those prescribed for import tax exemption consideration.

In cases where import goods are not subject to SCT as prescribed at Points 4, 5, 6, 7, and 8 above, if their use purposes are changed as compared to those when such goods are imported, within 3 days after the use purposes are changed, the import goods owners must declare such with the customs offices where the import procedures have been carried out for the goods lots in order to fully pay SCT. The procedures for SCT collection in this case shall be the same as those prescribed for import tax.

B. TAX CALCULATION BASES AND TAX RATES

SCT calculation bases are the tax calculation prices of taxable goods or services and the tax rates.

Payable SCT = SCT calculation prices x SCT rates

I. SCT CALCULATION PRICES

SCT calculation prices of goods or services are specified as follows:

1. For home-made goods: SCT calculation prices shall be the sale prices set by the production establishments exclusive of SCT and value added tax (VAT), and specified as follows:

         SCT                          Sans-VAT sale prices
    calculation        =          ———————————
       prices                              1 +  SCT rates                         

The sans-VAT sale prices shall be determined according to the provisions of the VAT Law.

In cases where establishments producing SCT-liable goods sell goods via their branches, shops or affiliates, the prices serving as bases for SCT calculation shall be the sans-VAT sale prices set by such branches, shops or affiliates. For production establishments that sell goods via commission-enjoying sale agents, the prices serving as bases for determining SCT calculation prices shall be the sans-VAT sale prices, not yet excluding commissions, set by such production establishments.

- For bottled liquors, bottled beers and canned beers, which are sold at the prices inclusive of the value of empty bottles and empty cans, the SCT calculation prices shall be determined as follows:

           SCT                        Sans-VAT sale prices – Value of empty bottles or empty cans           calculation        =          —————————————————————————
          prices                                                          1 +  SCT rates

In which:

+ The value of empty bottles is the sans-VAT purchase prices of empty bottles or the cost prices if the establishments produce the bottles by themselves.

+ The value of empty cans shall be: VND 3,800/liter of canned beer.

Example 1: For bottled beers which are sold at the prices inclusive of the value of the empty bottles (empty bottled are not exchanged): The sans-VAT sale price of 1 liter of Sai Gon 330ml-bottled beer is VND 20,000, the value of empty bottles for one liter of beer at the sans-VAT purchase prices is VND 4,000, the SCT rate of bottled beer is 75%, then:

SCT calculation                          VND 20,000  –  VND 4,000
price of one              =              —————————————
liter of beer                                            1 +  75%

                                                            VND 16,000
                                =               ————————————
                                                                  1.75
                                =                           VND 9,143            

Example 2: For canned beers: The sans-VAT sale price of one liter of Sai Gon canned beer is VND 16,000, the to be-excluded value of empty cans of one liter of beer is VND 3,800, the SCT rate of canned beer is 75%, then:

     SCT calculation                      VND 16,000 – VND 3,800
        price of one           =          ————————————
  liter of canned beer                               1 +  75%
                                                                    
                                                            VND 12,200
                                     =              —————————— 
                                                                  1.75

                                     =                     VND 6,971

- For bottled beers which are sold by mode of exchange of empty bottles, the sale prices serving as bases for determining the SCT calculation prices shall be the sans-VAT sale prices.

Example 3: The sans-VAT sale price by mode of exchange of empty bottles of one case of Hanoi bottled beer is VND 120,000/case, then:

           SCT
       calculation                  VND 120,000
     price of one       =       ———————     =    VND 68,571
     case of beer                    1 + 75%

Example 4: For draught beer: The sans-VAT sale price set by the beer-producing establishment is VND 3,000/liter of draught beer, the tax rate of draught beer is 30%, then:

          SCT calculation                  VND 3,000
         price of one liter      =       ———————       =     VND 2,308/liter
          of draught beer                    1 + 30%

- For SCT-liable goods which are sold via trade business establishments, the prices serving as bases for SCT calculation shall be the sans-VAT sale prices set by production establishments, which, however, must not be 10% lower than the average sale prices set by the trade business establishments.

In cases where the sale prices set by production establishments are 10% lower than the sale prices set by the trade business establishments, the SCT calculation prices shall be the prices set by the tax agencies under the provisions at Point 8e, Part D of this Circular.

2. For import goods: The SCT calculation prices of import goods subject to SCT shall be determined as follows:

SCT calculation prices  =  Import tax calculation prices  +  Import tax

The import tax calculation prices shall be determined according to the provisions of the Law on Import Tax and Export Tax. In cases where import goods are eligible for import tax exemption or reduction, the import tax shall be included in the SCT calculation prices according to the payable import tax amounts.

3. For processed goods: The SCT calculation prices shall be determined according to the sans-VAT sale prices set by the processee-establishments.

4. For goods sold by mode of installment payment: The SCT calculation prices shall be the sale prices exclusive of SCT and VAT of such goods sold by mode of lump-sum payment, excluding the interest amounts paid in installment).

5. Tax calculation prices for SCT-liable services shall be the service provision prices exclusive of VAT and SCT, set by business establishments, and be determined as follows:

              SCT                        Sans-VAT service prices
         calculation        =          ———————————
            prices                              1 +  SCT rates

For example: Sans-VAT turnover earned in the period by the establishments from dancing halls is VND 30,000,000.

           SCT                         VND 30,000,000
       calculation        =          ————————       =        VND 23,076,923
           price                              1 +  30%

The sans-VAT service prices serving as bases for determining the SCT calculation prices for a number of services are prescribed as follows:

- For dancing hall business, they shall be the sans-VAT prices of business activities at dancing halls.

- For massage services, they shall be the sans-VAT turnover from massage services, including steam bath and sauna services.

- For golf business, they shall be the sans-VAT actual turnover from the sale of membership cards, golf playing tickets, including golf playing charges paid by club members and deposits (if any). In cases where deposits are returned to depositors, the establishments shall be reimbursed the paid tax amounts by deducting them from the payable amounts of the subsequent period, if establishments cannot deduct them, they shall have the tax reimbursed according to regulations. For golf business establishments that deal in other kinds of goods and/or services not on the list of those subject to SCT, such goods and services shall not be subject to SCT.

For example: Golf business establishments that conduct hotel, food-catering, goods sale or game business activities, such goods and services shall not be subject to SCT.

- For casino and jackpot games, they shall be the sans-VAT sale turnover, excluding the paid prize money, or the money amounts (exclusive of VAT) gained from the pre-game exchanges for players at exchange counters, playing tables or playing machines minus the exchange amounts paid back to players.

- For entertainment with bet tickets, they shall be the turnover from the sale of bet tickets minus the prize money amounts paid to winning players (sans-VAT prices), excluding the turnover from the sale of tickets for watching entertainment games with bet tickets.

- For lottery services, they shall be the lottery ticket prices exclusive of VAT.

- The SCT calculation prices of SCT-liable goods or services used for sale promotion, exchange, internal consumption, gift or donation shall be the SCT calculation prices of goods or services of the same or equivalent kinds at the time such activities are conducted.

The SCT calculation prices of home-made goods or services, which are subject to SCT, shall include the additional levies outside the sale prices of goods or services (if any) enjoyed by the establishments.

In cases where tax payers have goods/service sale turnovers in foreign currencies, they must convert such foreign currency amounts into Vietnam dong at the inter-bank average exchange rates announced by Vietnam State Bank at the time such turnovers are generated to determine the tax calculation prices.

II. SCT RATES

Under the provisions of Article 6 of the Government’s Decree No. 149/2003/ND-CP applicable SCT rates are as follows:

SPECIAL CONSUMPTION TARIFF

SCT rates shall apply regardless of whether goods are imported or home-made.

The application of SCT rates to a number of goods and services in the Tariff is specified as follows:

1. Filter cigarettes produced mainly from imported raw materials subject to the tax rate of 65% are those produced with the volume of imported shred tobacco raw materials accounting for 51% or more of the total volume of shred tobacco raw materials used therefor.

2. For medicated liquors, the tax rate of 15% shall apply irrespective of their alcoholic strength. Medicated liquor production establishments must obtain medicated liquor production permits and certificates of registration of the names, trademarks, labels and quality of their medicated liquor products, issued by medical agencies or competent agencies. Import medicated liquors must be certified by medical agencies or competent agencies. If failing to obtain all the above-prescribed papers, the production/business establishments must pay the special consumption tax at the rates set for liquors of the corresponding alcoholic strength.

3. Votive objects subject to the SCT rate of 70% shall not include those being children toys and those used for decoration.

4. SCT rates applicable to fresh beer and draught beer: The bases for determining whether they are fresh beer or draught beer shall be technological processes, production equipment, investment projects’ econo-technical studies or investors’ production/business plans. Beer production establishments must register names and quality standards of products suitable to the product-manufacturing technological processes according to the provisions of Article 9 of the SCT Law. In cases where they fail to register the product names and fail to acquire enough documents proving or distinguishing whether the turned-out and sold products are fresh beer or draught beer, the SCT rate of 75% shall apply.

C. TAX REGISTRATION, DECLARATION, PAYMENT, REIMBURSEMENT AND SETTLEMENT

I. TAX REGISTRATION, DECLARATION AND PAYMENT AS WELL AS USE OF INVOICES AND VOUCHERS

1. Tax registration:

SCT registration is specified as follows:

a/ Establishments producing goods and/or providing services, which are subject to SCT, including their dependent units, branches and shops, must make tax registration with the tax agencies of the localities where they conduct production/business activities under the guidance on tax declaration and registration as well as registration of tax payers’ numeral codes.

For establishments that have just started their production/business activities, the time limit for tax registration shall be 10 days as from the date they are granted the business registration certificates.

In case of merger, consolidation, separation, splitting, dissolution, bankruptcy, change of production/business lines or business cessation, the production/business establishments must declare such with the tax agencies at least 5 days before the above-said changes occur.

b/ Establishments that produce SCT-liable goods and use trademarks therefor must register such trademark specimens with the tax agencies of the localities where they conduct production/business activities within 5 days after such trademarks are used. When changing the trademarks, the establishments must declare such with the tax agencies and register specimens of the new trademarks within 5 days after the trademarks are changed.

Cigarette-manufacturing establishments, apart from making trademark registration mentioned above, shall also have to register with the tax agencies the norms of consumption of shred tobacco raw materials used for production of each type of cigarette, clearly stating the volume of shred tobacco per product unit and the ratio of the volume of imported shred tobacco (if any) to the total volume of shred tobacco used for production of products for use as basis for determining SCT rates.

2. Tax declaration:

Establishments producing and/or importing goods or providing services, which are subject to SCT, must make SCT declaration according to the following regulations:

a/ Establishments producing goods or providing services, which are subject to SCT, shall have to make SCT declaration when consuming goods, providing services, returning processed goods, or making exchange, gift, donation, sale promotion or internal consumption. Tax declaration must be made monthly and tax declarations shall be submitted together with lists of goods sale vouchers (made according to set forms). The deadline for submitting the SCT declarations shall be the 10th day of the subsequent month. For example: The establishments shall have to submit tax declarations of February of 2004 to the tax agencies no later than March 10, 2004.

Particularly for production establishments with large amounts of payable SCT, apart from making monthly declaration, they must make SCT payment declaration once every 5 or 10 days according to the following regulations:

+ Beer-manufacturing establishments with a capacity of up to 20 million liters/year; cigarette-manufacturing establishments with a capacity of up to 20 million packs/year; car, air-conditioner and liquor production establishments shall make tax payment declaration once every 10 days.

+ Beer-manufacturing establishments with a capacity of over 20 million liters/year and cigarette- manufacturing establishments with a capacity of over 20 million packs/year shall make tax declaration once every 5 days.

Periodical tax declarations shall be submitted to the tax agencies on the dates following the 5-day or 10-day period. Monthly tax declarations shall be submitted within the prescribed time limits.

Production establishments that make periodical 5-day or 10-day tax declarations mentioned above shall still use monthly tax declarations and additionally inscribed the time of periodical declaration therein.

For production establishments that sell goods via their branches, shops, affiliates and/or commission-enjoying sale agents, or deliver goods for sale consignment, they shall have to make SCT declaration and payment for all such goods in the localities where they make tax registration, declaration and payment. Branches, shops and affiliates, when sending reports to the production establishments, shall also send one copy thereof to the tax agencies of the localities where such branches, shops or affiliates sell goods for monitoring.

In cases where payable SCT is not generated in the month, the production/business establishments shall still have to make tax declarations and send them to the tax agencies according to regulations.

For production establishments that sell goods via their branches and/or affiliates in other localities (provinces or cities), the declarations shall be made, based on the production establishments’ goods delivery invoices, and tax shall be settled according to the actual sale turnovers of such branches and/or affiliates.

For processed goods, if there appears any difference between the sale prices set by processee-establishments and those serving as bases for SCT calculation set by processor-establishments, the processee-establishments must make declaration and additional payment for the difference of SCT on goods given for processing at the actual sale prices set by the establishments.

b/ Goods-importing establishments must make import goods declarations and submit them upon each importation together with import tax declaration with the import tax-collecting agencies.

In case of entrusted import, the organizations conducting the entrusted import shall be subject to SCT declaration and payment.

c/ Establishments producing SCT-liable goods items from raw materials which have already been imposed with SCT, when making SCT declaration at the production stage, shall be entitled to deduct the SCT amounts already paid for such raw materials if they can produce lawful vouchers. The deductible SCT amounts for raw materials shall not exceed the SCT amounts paid for the volumes of raw materials used for the production of the sold goods.

The deduction of SCT amounts shall be made together with tax declaration and payment, the payable tax amounts in this case are determined according to the following formula:               

                                 Payable SCT                             SCT amounts already
    Payable             amounts of goods                paid for purchased raw materials
       SCT        =         ex-warehoused       –       corresponding to volumes of goods
    amount               for consumption                  ex-warehoused for consumption
                                 in the period                                    in the period

For example:

In a tax declaration period, the following operations are conducted at Establishment A:

+ 10,000 liters of liquor are imported, SCT amount already paid upon importation was VND 250 million (based on SCT payment receipts at importation stage).

+ 8,000 liters are ex-warehoused for production of 12,000 bottles of liquor.

+ 9,000 bottles of liquor are sold with payable SCT amount therefor of VND 350 million.

+ SCT amount already paid at importation stage for sold 9,000 bottles of liquor is VND 150 million.

SCT amount Establishment A shall have to pay in the period is:

VND 350 million – VND 150 million = VND 200 million.

In cases where the SCT amount already paid for the volumes of raw materials and materials corresponding to the volumes of products sold in the period cannot be accurately determined, the previous period’s data may serve as bases for temporary calculation of deductible SCT amount and the settlement shall be made according to the actual figures at the end of the month or quarter. In all cases, the deductible SCT amount shall not exceed SCT amount calculated on the volume of raw materials according to the products’ econo-technical norms. The production establishments must register products’ econo-technical norms with the tax agencies directly managing them.

d/ Establishments that produce and/or deal in different kinds of goods and/or services subject to SCT at different tax rates must declare and pay SCT at the rate prescribed for each kind of goods or services; if they cannot determine the payable tax amount according to each tax rate, they must calculate and pay tax at the highest rate of the goods produced or the services provided by the establishments.

e/ For exporting establishments that purchase goods for export but do not export such goods and sell them in the country, within 5 days after selling the goods, they must declare and fully pay SCT on behalf of production establishments. SCT calculation prices in this case shall be the purchase prices paid by the exporting establishments, if the purchase prices cannot be accurately determined, the actual sale prices exclusive of SCT and VAT, set by exporting establishments, shall apply.

3. Invoices and vouchers:

Establishments producing and/or importing goods or providing services, which are subject to SCT, must strictly abide by the accounting, invoice and voucher regimes when purchasing/selling goods, providing services and/or transporting goods according to law provisions.

Production establishments, when selling goods or delivering goods to their branches, affiliates or agents, must use invoices. In cases where branches and/or affiliates are based in the same provinces or cities as the production establishments or goods are transferred to other warehouses, the establishments may use ex-warehouse-cum-internal transportation bills enclosed with transfer orders.

For goods delivered to branches and/or commission-enjoying sale agents, the sale prices to be inscribed in the invoices shall be the sale prices set by the production establishments and applied by their branches and/or agents.

4. Tax payment:

SCT shall be remitted into the State budget according to the following regulations:

a/ Establishments producing and/or processing goods or providing services, which are subject to SCT, must remit SCT into the State budget at the localities where they conduct goods production/processing or service provision activities.

The deadline for monthly tax payment shall be the 25th day of the subsequent month.

For establishments, that have large amounts of payable SCT (as prescribed at Point 2a, Section I, Part C of this Circular) and are subject to 5-day or 10-day periodical tax declaration, must pay SCT right after making declaration.

For individuals and households producing goods and/or providing services, which are subject to SCT, that are based in areas far from the State treasuries, the tax agencies shall collect tax and remit it into the State budget. The time limit for the tax agencies to remit money into the State budget shall be within 3 days after such money is collected.

b/ Establishments importing SCT-liable goods must pay SCT upon each importation at the places of import tax declaration and payment. The time limits for notification and payment of SCT on import goods shall be the time limits for the import tax notification and payment.

c/ SCT shall be remitted into the State budget in Vietnam dong.

5. SCT settlement:

Establishments producing goods and/or providing services, which are subject to SCT, must make SCT settlement according to the following regulations:

a/ Establishments producing goods and/or providing services, which are subject to SCT, must make annual SCT settlement with the tax agencies. The establishments must fully declare the criteria on the payable tax amounts, the amounts already paid, the outstanding amounts or the overpaid amounts by the time of settlement according to the set tax settlement form and send them to the tax agencies within the prescribed time limits. The tax settlement year shall be calendar year; in cases where the business establishments are allowed to apply a type of financial settlement year other than the calendar year, they shall still have to make SCT settlement according to the calendar year. The time limits for production/business establishments to submit the tax settlements to the tax agencies shall be within 45 days, counting from December 31 of the tax settlement year.

In cases where production establishments sell goods via their branches or attached units in localities other than the places of production, the tax settlement shall be based on the actual sale turnovers of such branches and units.

Both processee-establishments and processor-establishments must make SCT settlement with the tax agencies of the localities where they conduct production/business activities.

Production/business establishments must pay the outstanding SCT amounts into the State budget within 10 days after submitting their tax settlement reports; in case of overpayment, the overpaid amounts shall be deducted from the payable amounts of the following period or reimbursed according to regulations.

b/ In cases where production and/or business establishments conduct the merger, consolidation, separation, splitting, dissolution, bankruptcy, change of business lines, change of ownership form, assignment, sale, contracting or lease of State enterprises, they must make tax settlement with the tax agencies and send the tax settlement reports to the tax agencies within 45 days after the issuance of the decisions on the above-said changes, and must fully remit the outstanding tax amounts into the State budget within 10 days after submitting the settlement reports; in case of overpayment, the overpaid amounts shall be deducted from the payable tax amounts of the following period or reimbursed according to regulations.

Production/business establishments shall have to bear responsibility for the truthfulness and accuracy of the settlement data, if they make false reports for tax evasion, they shall be sanctioned according to law provisions.

II. SCT REIMBURSEMENT

Establishments producing and/or importing goods or providing services, which are subject to SCT, shall have their paid SCT amounts reimbursed in several cases; the dossiers, procedures and competence for tax reimbursement are as follows:

1. For import goods:

a/ For temporarily imported goods for which SCT has been already paid, when being re-exported, the paid amounts of SCT on the volumes of re-exported goods shall be reimbursed.

In cases where temporarily imported goods for which SCT has been already paid and which are still kept in warehouses or storing yards at the import border gates and permitted for re-export, tax reimbursement shall also be considered for the volumes of re-exported goods.

b/ Import goods for which SCT has been already paid as declared but the actual import volumes are smaller than the declared ones; import goods damaged or lost with plausible reasons in the course of importation, for which SCT has been already paid.

c/ For import goods which fail to meet the quality and category requirements under contracts or import permits (due to foreign goods owners’ faults), are expertised by competent agencies, certified by foreign goods owners and permitted for import, the customs offices shall inspect and re-certify the payable SCT amounts, the overpaid tax amounts (if any) shall be reimbursed and the outstanding amounts must be fully paid.

In cases where such goods are permitted for export back to foreign parties, the paid amounts of SCT on the volumes of goods exported back to foreign parties shall be reimbursed.

In cases where goods are returned to foreign parties in the import tax-free period under the prescribed regime, the customs offices shall check the procedures therefor and not collect SCT on the volumes of import goods returned to foreign parties.

d/ Goods temporarily imported for participation in fairs or exhibitions for which SCT has been already paid, when being re-exported, shall be entitled to tax reimbursement.

e/ Raw materials imported for production or processing of export goods.

The total SCT amounts to be reimbursed shall not exceed the SCT amounts already paid for the raw materials imported for production of export goods.

f/ For import goods which are permitted to be imported by Vietnamese enterprises that act as forwarding and/or sale agents for foreign parties with prior registration with the tax-collecting agencies at the importation stage, tax on the volumes of goods actually exported from Vietnam shall be reimbursed.

The procedures, dossiers, order and competence for reimbursement of SCT on import goods in cases mentioned above shall comply with the regulations applicable to import tax reimbursement under the provisions of the Law on Import Tax and Export Tax.

2. Production/business establishments that have overpaid tax amounts in the tax settlement upon the merger, separation, splitting, dissolution, bankruptcy, change of ownership form, assignment, sale, contracting or lease of State enterprises may request the tax agencies to reimburse the overpaid SCT amounts; the procedures and dossiers therefor are as follows:

+ A written request for the reimbursement of overpaid SCT amounts.

+ The competent authorities’ decisions on the merger, separation, splitting, dissolution, bankruptcy, change of ownership form, assignment, sale, contracting or lease of State enterprises.

+ SCT settlement by the time of the merger, separation, splitting, dissolution, bankruptcy, change of ownership form, assignment, sale, contracting or lease of State enterprises.

+ A record on SCT settlement examination by the time of the merger, separation, splitting, dissolution, bankruptcy, change of ownership form, assignment, sale, contracting or lease of State enterprises.

The tax reimbursement in these case shall be considered and decided by the directors of the provincial/municipal Tax Departments of the localities where the production/business establishments have already made tax registration, declaration and payment.

3. Production/business establishments shall be reimbursed the SCT in cases where they obtain competent agencies’ decisions under law provisions or the Finance Minister’s decisions requesting the reimbursement of tax to the establishments.

The tax agencies shall have to examine the dossiers, determine the tax amounts to be reimbursed, issue tax reimbursement decisions for cases falling under their competence prescribed at Point 2 above, and reimburse tax to the tax payers by making deduction from the payable tax amount of the following period; in cases where they cannot make deduction, they shall transfer the cases to the finance bodies for carrying out the reimbursement procedures strictly according to the Finance Ministry’s regulations.

D. TASKS, POWERS AND RESPONSIBILITIES OF THE TAX AGENCIES

The tax agencies shall have the following tasks, powers and responsibilities:

1. To guide tax payers in fully observing the regimes of tax registration, declaration and payment strictly according to the provisions of the tax legislation.

For production/business establishments that fail to strictly implement the regulations on tax registration, declaration and payment, the tax agencies shall sanction them for tax-related administrative violations according to law provisions.

2. To notify the payable tax amounts (to individuals and households producing goods and/or providing services, which are subject to SCT, that have not fully complied with the accounting, invoice and voucher regimes), urge tax payers to pay tax on time. Tax payment notices must be sent to tax payers 3 days before the dates of tax payment stated in the notices. The deadline for monthly tax payment shall be the 25th day of the subsequent month. The notification and determination of the payable tax amounts and the dates of tax payment shall be made right in the month or at the beginning of the subsequent month (made according to a set form).

If past the time limits for tax payment the tax payers fail to pay tax, the tax agencies shall make the first notices on deferred payment. Such notices shall state the payable tax amounts and fines for deferred payment according to the provisions of Clauses 2 and 3, Article 17 of the SCT Law.

The duration for monthly calculation of fines for deferred tax payment shall count as from the 26th day of the subsequent month; the duration for calculation of fines for deferred payment for import goods and other cases shall be after the dates prescribed for payment as prescribed by law. If the establishments still fail to pay tax and fine amounts stated in the notices, the tax agencies may apply or propose competent agencies to apply measures to handle tax-related administrative violations prescribed in Clause 4, Article 17 of the SCT Law in order to ensure the full collection of tax and fine amounts. If the measures of handling tax-related administrative violations have been applied, the establishments still fail to fully pay the tax and fine amounts, the tax agencies shall transfer the dossiers of the cases to competent agencies for handling according to law.

3. The tax agencies which directly manage production establishments selling goods for export shall base themselves on the prescribed list to make written notices in time to the tax agencies which manage the exporting establishments on the names of units purchasing goods for export as well as names, volumes, categories and quality of goods purchased for export by the establishments. The tax agencies that manage the exporting establishments shall have to monitor and inspect actually exported goods. If the purchased goods are not actually exported but sold in the country, they shall have to request the exporting establishments to declare and fully pay the amounts of SCT on such goods.

4. To examine and inspect the tax declaration, payment and settlement by production/business establishments, ensuring the strict observance of law provisions.

5. To handle tax-related administrative violations and settle tax-related complaints according to law provisions.

6. To request tax payers to provide accounting books, invoices, vouchers as well as other dossiers and documents related to tax calculation and payment; to request credit institutions, banks as well as other relevant organizations and individuals to provide documents related to tax calculation and payment.

7. To keep and use data and documents supplied by tax payers and other subjects in accordance with the prescribed regime.

8. The tax agencies shall be entitled to set the payable SCT amounts for tax payers in the following cases where:

a/ Production/business establishments fail to implement or improperly implement the invoice and voucher regimes.

For small-scale production/business individuals and households (referred collectively to as business households) that fail to effect the purchase and/or sale of goods and services with full invoices and vouchers, the tax agencies shall base themselves on the practical production/business situation to determine the turnovers and the payable tax amounts, and notify such to tax payers for implementation.

The set tax amount for each time of payment may serve as basis for stable tax collection for a duration of 3, 6 or 12 months, depending on each business line, price fluctuations and business situation of tax payers. The tax agencies shall have to publicize the turnovers and tax levels fixed for such subjects. Those households that cease their business activities must declare such with the tax agencies; if they cease their business activities for the whole month, they shall not have to pay the fixed tax amounts for such month.

If small-scale business households, that are subject to payment of tax at set levels, cease their business activities for the whole month, and shall be considered for non-collection of tax, they must send requests (made according to the tax agencies’ forms and guidance), clearly stating the reasons for business cessation and the number of days of business cessation to the district tax agencies. The tax agencies shall examine practical situation and settle the cases according to regime.

For small-scale business households, each goods item and business line shall be determined to suit the practical situation in localities according to the Finance Ministry’s regulations. The provincial/municipal Tax Departments shall base themselves on households’ business situation to guide the classification and determination of small-scale households in their respective localities in order to manage and collect tax according to regulations.

b/ Establishments fail to declare tax or fail to submit tax declarations within the prescribed time limits even though they were notified and reminded thereof, or they have submitted tax declarations but falsely declared the bases for determining the SCT amounts.

c/ Establishments refuse to produce accounting books, invoices, vouchers and necessary documents related to the SCT calculation.

d/ Establishments conduct business without business registration, without tax declaration or payment registration, as detected through inspection.

e/ Establishments have declared the sale prices serving as bases for determining the SCT calculation prices not being the actual sale prices or 10% lower than the market sale prices of goods and services of the same or equivalent kinds. The tax agencies that manage tax payers shall base themselves on the market sale prices to determine bases for determining SCT.

The tax agencies shall base themselves on the documents related to the investigation of establishments’ business activities or the tax amounts to be paid by production/business establishments engaged in the same production/business lines with equivalent scales to determine the tax amounts to be paid by each establishment in cases mentioned above.

In cases where tax payers disagree with the fixed payable tax amounts, they may lodge complaints to the tax agencies that have fixed the tax or to the immediate superior tax agencies of the tax agencies that have set the tax. Pending the settlement, the tax payers shall still have to pay tax at the tax levels fixed by the tax agencies.

E. SCT REDUCTION AND EXEMPTION

The procedures, order and competence for consideration of tax exemption or reduction for cases prescribed in Article 16 of the Government’s Decree No. 149/2003/ND-CP are specified as follows:

1. Cases entitled to tax exemption or reduction as well as procedures and dossiers therefor:

a/ Establishments producing goods subject to SCT, that meet with difficulties due to natural disasters, enemy sabotage or accidents or suffer from losses, shall be considered for SCT reduction. The tax reduction levels shall be determined on the basis of the extents of the losses caused by natural disasters, enemy sabotage or accidents, which, however, shall not exceed the post-compensation (if any) value of the damaged assets and not exceed 30% of tax amounts to be paid in the years when damage is caused according to law provisions.

To be entitled to SCT reduction under the above-said regulations, production establishments must acquire the following procedural dossiers:

+ An application for SCT reduction, clearly stating the time and cause of damage, the value of damaged assets, the extents of losses caused by natural disasters, enemy sabotage or accidents, the payable tax amounts, and the tax amounts proposed for reduction.

+ A record on determination of the extents and value of the material losses, made by the competent body and certified by the local administration of the district or higher level.

+ A financial settlement enclosed with explanations on analysis and determination of damage extents and losses caused thereby.

+ A tax settlement and a record on tax settlement examination with the tax agency.

The above-said dossiers and documents shall be sent by the establishments to the tax agencies directly managing them.

The tax agencies that manage the establishments shall receive the dossiers, examine documents and send written proposals enclosed with establishments’ dossiers of application for tax reduction to competent agencies for tax reduction decisions.

Pending the tax reduction decisions, the establishments shall still have to declare and fully pay the tax amounts as prescribed. When the tax reduction decisions are issued, the to be-reduced tax amounts shall be deducted from the payable tax amounts of the subsequent period.

In cases where establishments that produce goods subject to SCT meet with difficulties due to natural disasters, enemy sabotage or accidents and suffer from great losses, thus being incapable of conducting production/business activities and paying tax, they shall be considered for exemption of the SCT amounts which they must pay but are incapable of paying them. The tax exemption shall be considered and decided by the Finance Ministry on a case-by-case basis. The procedures and dossiers of application for SCT exemption in this case shall comply with the above-said regulations on tax reduction consideration but the establishments’ incapability of conducting production/business activities and paying tax should be clearly determined.

b/ Establishments engaged in the assembly and/or manufacture of automobiles shall be entitled to the reduction of tax rates prescribed in Article 6 of Decree No. 149/2003/ND-CP from January 1, 2004 to the end of December 31, 2006 as follows:

A 70% reduction for 2004, a 50% reduction for 2005 and a 30%  reduction for 2006. From 2007 on, tax shall be paid at the rates prescribed in Article 6 of the above-said Decree No. 149/2003/ND-CP.

Under the above-said regulations, the SCT rates to be applied in each year (after tax is reduced) are as follows:

For example: In 2004, in a tax declaration period, Automobile-Manufacturing Enterprise A is in the following situation:

- Turnover from cars of 5 seats or under at sans-VAT sale prices is VND 15 billion.

- Turnover from cars of between 6 and 15 seats at sans-VAT sale prices is VND 10 billion.

- Turnover from cars of between 16 and 24 seats at sans-VAT sale prices is VND 5 billion.

The Establishment must calculate, declare and pay SCT in such period as follows:

Payable                15                                     10                                   5
    SCT        =      ———      x    24%      +     ———     x    15%    +      ———     x     7.5%
  amount            1 + 0.24                            1 + 0.15                         1 + 0.075

                   =  2.9 + 1.3 + 0.35  =  VND 4.556 billion.

2. Competence and order for consideration of tax exemption or reduction:

a/ Competence for consideration of SCT exemption or reduction in cases prescribed at Point 1.a mentioned above is stipulated as follows:

- The General Director of Tax shall make consideration and decision for cases where the to be-exempted or –reduced tax amounts are less than VND 500 million/year.

- The Finance Minister shall make consideration and decision for cases where the to be-exempted or –reduced amounts are VND 500 million/year or more.

b/ Order for consideration of SCT exemption or reduction:

- The provincial/municipal Tax Department or the Tax Sub-Departments, when receiving SCT exemption or reduction application dossiers sent by establishments, shall have to examine the dossiers, determine the to be-exempted or –reduced tax amounts and send written proposals enclosed with such dossiers to the superior tax agencies within 15 working days after receiving the complete dossiers; in cases where the provincial/municipal Tax Departments receive dossiers sent by the Tax Sub-Departments, the time limit for sending such proposals to the superior tax agencies shall be 10 working days.

- The General Department of Tax shall examine, consider and decide on tax reduction for establishments within 15 working days after receiving the complete dossiers.

In cases where establishments are not entitled to tax reduction or their dossiers are not yet complete as prescribed, within 10 working days, the agencies that receive tax exemption or reduction application dossiers must make a reply thereto or notify such to the establishments for supplementation of the dossiers.

F. HANDLING OF VIOLATIONS AND COMMENDATION

I. HANDLING OF TAX-RELATED VIOLATIONS

1. For tax payers:

Under the provisions of the SCT Law, the Law Amending and Supplementing a Number of Articles of the SCT Law and the Government’s Decree No. 149/2003/ND-CP tax payers that violate the SCT Law shall be handled as follows:

a/ Those who fail to implement or improperly implement the regulations on procedures for business registration, tax registration, declaration, payment and settlement, declaration and compilation of accounting books as well as keeping of invoices and vouchers related to tax calculation and payment shall, depending on the seriousness of their violations, be subject to caution or fine.

b/ Those who make deferred payment of tax amounts or fines stated in the tax notices, tax collection orders or sanctioning decisions shall, apart from having to fully pay the tax amounts or fines as prescribed by law, also have to pay an amount equal to 0.1% (1 thousandth) of the late-paid amount for every day of late payment.

c/ Those who falsely declare or evade tax shall, apart from having to fully pay the tax amounts according to the provisions of the SCT Law, depending on the nature and seriousness of their violations, be fined with an amount from one to five times the evaded tax amount; if they have large evaded tax amounts or continue committing acts of other serious violations after having been sanctioned for tax-related administrative violations, they may be examined for penal liability according to law provisions.

d/ Those who fail to pay tax and/or fines shall be handled as follows:

- Their deposits at banks, treasuries or credit institutions shall be deducted for tax or fine payment.

Banks, treasuries or credit institutions shall have to deduct money from tax payers’ deposit accounts for payment of tax and/or fines into the State budget according to the tax agencies’ or competent agencies’ decisions on handling tax-related violations before collecting debts.

- Seizing their goods or material evidences in order to ensure the full collection of tax and/or fine amounts.

- Inventorying their assets according to law provisions in order to ensure the full collection of the outstanding tax and/or fine amounts.

The handling of tax-related violations mentioned above shall comply with the procedures and order prescribed in legal documents on handling of tax-related violations.

2. For tax officials and other individuals:

Under the provisions of Article 19 of the SCT Law and Article 17 of the Government’s Decree No. 149/2003/ND-CP tax officials or other individuals, who violate the SCT Law, shall be handled as follows:

a/ Tax officials or other individuals who abuse their positions or powers to illegally use or appropriate tax money and/or fines, must fully reimburse to the State all the tax and/or fine amounts which they have illegally used or appropriated, and shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability according to law provisions.

b/ For tax officials or other individuals, who show irresponsibility or make improper handling, thus causing damage to tax payers, the compensation for damage shall comply with the provisions of the civil legislation. Tax officials or other individuals, who cause damage shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability according to law provisions.

c/ Tax officials or other individuals who abuse their positions or powers to collude with, or cover up, violators of the SCT Law or commit other acts of violating the provisions of the SCT Law shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability according to law provisions.

d/ Those who obstruct or incite others to obstruct the implementation of the SCT Law shall, depending on the nature and seriousness of their violations, be administratively sanctioned or examined for penal liability according to law provisions.

II. COMMENDATION

Under the provisions of Article 20 of the SCT Law and Article 18 of the Government’s Decree No. 149/2003/ND-CP tax agencies or tax officials that well fulfil their assigned tasks; organizations and individuals that record achievements in implementation of the SCT Law; and tax payers that well fulfil their tax payment obligations shall be commended and/or rewarded.

III. COMPETENCE TO HANDLE TAX-RELATED VIOLATIONS

The tax agencies of all levels, when detecting that business establishments violate the SCT Law, shall have to examine and clearly determine violation acts, their seriousness and causes as well as responsibilities of organizations and individuals for violation acts, and make dossiers thereof according to regulations. Basing themselves on the regulations on, and levels of, sanctioning administrative violations in the tax domain, the tax agencies of all levels shall, within the ambit of their respective sanctioning competence, issue sanctioning decisions or propose the superior tax agencies or law agencies to handle them according to their competence, concretely as follows:

1. The heads of the tax agencies that directly manage the tax collection shall be entitled to handle violations committed by tax payers prescribed at Points 1.a and 1.b and sanction tax-related administrative violations prescribed at Point 1.c, Section I, Part F of this Circular.

2. The heads of the tax agencies that directly manage the tax collection shall be entitled to apply handling measures prescribed at Point 1.d, Section I, Part F of this Circular according to law provisions and transfer the dossiers of the cases to competent agencies for handling according to law provisions, for those violating the provisions at Point 1.c, Section I, Part F of this Circular.

G. COMPLAINTS AND STATUTE OF LIMITATIONS

1. Rights and responsibilities of tax payers in lodging tax-related complaints:

Under the provisions of Article 21 of the SCT Law, organizations and individuals may lodge their complaints about tax officials’ or tax agencies’ improper application of the SCT Law to them. The written complaints must be sent to the tax agencies that issue tax notices, collection orders or handling decisions within 30 days after receiving the collection orders and/or handling decisions. Pending the settlement, the complaining organizations and individuals shall still have to fully pay the notified tax and/or fine amounts on time. If the complaining organizations and individuals disagree with the tax agencies’ decisions on complaint settlement, or if past 30 days as from the date the written complaints are sent, they do not receive the settlement opinions, they may lodge their complaints to the superior tax agencies or initiate lawsuits at courts according to law provisions.

The procedures and order for lodging complaints or initiating lawsuits as well as the consideration and settlement thereof must strictly comply with the current law provisions.

2. Responsibilities and powers of tax agencies in settling tax-related complaints:

Under the provisions of Article 22 of the SCT Law, the tax agencies of all levels, when receiving tax-related complaints from tax payers, must consider and settle them within 15 days after receiving such written complaints. For complicated cases, which require a lot of time for investigation and verification, they must notify such to the involved persons but the time limit for the settlement shall not exceed 30 days after receiving the written complaints; if the cases fall beyond their settlement competence, they must transfer the dossiers of the cases or report them to competent agencies for settlement and notify such to the involved persons within 10 days after receiving the complaints. In cases where false declaration, tax evasion or tax-related confusion have been detected through inspection, the tax agencies shall have to retrospectively collect or reimburse the tax and/or fine amounts, which have been incorrectly calculated for 5 years backwards, as from the date of detecting such false declaration, tax evasion or tax-related confusion through inspection. In cases where business establishments fail to make registration, declaration or payment, the time limits for retrospective collection of tax and/or fine amounts shall count from the time such establishments start their operations.

H. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes implementation effect as from January 1, 2004 and replaces the legal documents on SCT already issued by the Finance Ministry.

2. The settlement of SCT-related problems before January 1, 2004 shall comply with the corresponding regulations of the SCT Law and the regulations in legal documents on SCT which are effective at that time.

3. In cases where international treaties which the Socialist Republic of Vietnam has signed or acceded to contain provisions different from those of the SCT Law, the SCT shall comply with such treaties.

4. The collection of SCT is prescribed as follows:

a/ The tax agencies shall have to collect SCT from establishments producing goods and/or providing services, which are subject to SCT.

b/ The customs offices shall have to collect SCT from establishments importing goods, which are subject to SCT.

c/ The tax agencies and the customs offices shall have to coordinate with each other in managing SCT collection nationwide.

In the course of implementation, if any problems arise, organizations and individuals are requested to promptly report them to the Finance Ministry for study, guidance and supplementation.